Ram Pal Singh vs Prescribed Authority & Ors.

S. Harkauli, J.—Heard learned Counsel for the parties and perused the record.

The impugned order in this writ petition is the order of recount passed by the Election Tribunal. The recount has been attempted to be justified on the ground that the date and time of the actual counting was not intimated to the election petitioner, as a result of lack of knowledge neither the election petitioner nor his agent could be present at the time of actual counting. Learned Counsel for the election petitioner has argued that Rule 12C specifically provides that the date and time of the counting should be intimated to the candidates and the said rule has been violated, therefore, the next thing which election petitioner is required to prove is that in consequence of noncompliance of the Rule 12C, the result of the election has been materially affected. According to the learned Counsel for the election petitioner he and his agent could not be present at the time of counting therefore, recounting is only the method by which the election petitioner can prove the effect of the noncompliance of the rule upon the result of the election.

I am unable to agree because of settled law. Recount cannot be ordered to enable the election petitioner to get the evidence in support of his claim because there is difficulty or even impossibility of getting other evidence. The order of recount has to follow when specific averments and cogent evidence which require the recount are given. Since neither election petitioner nor his agent were present at the time of counting, obviously election petitioner is not in a position to lead any evidence at the time of counting. Whatever evidence he adduces is only hearsay. In these circumstances recounting cannot be justified upon the reasons given by the election tribunal.

In view of the facts and reasons stated above, this writ petition succeeds and is allowed. The impugned order dated 871997 is hereby quashed. There will be no order as to costs.