JUDGMENT M.B. Shah, J. :- This appeal under Section 116-A of the Representation of the People Act. 1951 (hereinafter referred to as "the! Act" is filed against the final judgment and order dated 4.5.2001 passed by the High Court of Himachal Pradesh at Shimla in Election petition No.l of 1998.

2. The election petition was filed by the appellant for setting aside the election of respondent No.l. It is submitted that the appellant contested the election as a candidate sponsored by the Indian National Congress while respondent No.l contested the election as candidate sponsored by the Bhartiya Janta party. Appellant secured 11.657 votes and respondent No. 1 secured 11.660 votes. Therefore, respondent No. 1 I was declared elected by a margin of three votes only. It was alleged that I the said election result was vitiated because of improper reception of invalid votes in favour of respondent No.l and improper rejection of valid votes in favour of appellant. It was also contended that many irregularities were committed during the course of counting which had materially affected the result of election insofar as the returned candidate is concerned. It was pointed out that total number of ballot papers which were shown to ha\e b«en distributed were 35310 but after counting the votes ballot papers as per Form 20-A were shown to be 35318. which indicated that eight votes which had been counted in excess had been illegally counted in favour of the returned candidate.

3. Firstly it is to be stated that election petition filed by the appellant was rejected on preliminary issue namely - election petition lacks in material facts and particulars and do not furnish a cause of action as alleged. That order was challenged before this Court in Civil Appeal No.4085 of 1998 and this Court allowed the appeal by-judgment and order dated 27.10.1999 reported as Mahendra Pal v. Ram Dass Malanger & Ors. 2000 (1) SCC 261 (2000 SC 16:1999 AIR SCW 4130) by holding that election petition did contain an adequate statement of material facts on which the allegations of irregularities and illegatieis in counting were founded. The Court, therefore, directed the designated Judge to decide the election petition afresh on merits expeditiously.

4. Learned counsel for the appellant relied upon the observations of this Court in said appeal (in paragraphs 30 and 31) and contended that the High Court ought to have granted application for recount of the votes. The said observations read thus:- "30. In the present case, it is not disputed, as indeed it cannot be. that in Form 20-A. Ex. P-2 it is recorded that the total number of votes found in the ballot boxes of 82 polling stations pertaining to this constituency were 35.310 whereas a perusal of the statement of "round wise detailed result of counting." certified copy whereof is Ex.P-3 records that the total number of valid and rejected votes counted for the purpose of declaring the result were 35.318. A difference of 8 votes had been projected in Annexure P-2 and Annexure P-3. The margin of difference between the votes polled by the election petitioner and the returned candidate, in the present case, was only 3 votes. Unless a satisfactory explanation was furnished during the trial about the discrepancy, there would be need to inspect the ballot papers to clarify doubts regarding the excess contain got 8 votes, allegedly in favour of the returned candidate. This was also necessary to dispel doubts about the allegations of irregularity in counting. Had the Returning Officer, instead of rejecting the application for recount made a test check, soon after the declaration of result, he could have silenced the scepticism and removed all doubts but since that was not done, the learned designated Judge ought to have considered the matter in its correct perspective.

31. Indeed, recount of ballot papers cannot be ordered just for the asking but it is equally well settled that while maintenance of secrecy of ballot is sacrosanct, mainten

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