Shiv Singh Yadav vs Addl. District Judge and Others

M. Katju, J.—Heard counsel for the parties and perused the impugned order dated 23.8.96, true copy of which is Annexure-5 to the writ petition. An order of recount of votes has been passed in connection with the election of Pramukh, and this has been challenged in this petition.

The law regarding recount is well settled by a series of decisions of the Supreme Court and this Court. In Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others, , it was held that an order of recount cannot be made as a matter of course in view of the secrecy of the ballot. The order of recount should only be passed where:

(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded ;

(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting ; and

(3) the Court trying the petition is prima facie satisfied the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual Justice between the parties.

The same view has been valid in Bhabhi Vs. Sheo Govind and Others, , and in the decision of the Full Bench of this Court in Ram Adhar Singh v. District Judge 1985 UPLBEC 317.

In the light of these decisions, I have to examine the impugned order. I have carefully perused the said order which states that four invalid votes have been counted in favour of the Petitioner and hence recount is justified. However, the said order does not state the reasons why the authority is of the prima facie opinion that four invalid votes have been counted in the Petitioner''s favour. In my opinion, the authority should have considered the evidence in support of the allegation that four invalid votes were counted in the Petitioner''s favour, and should have then given some reasons why it was prima facie of the opinion that this allegation is correct. The impugned order does not give any reasons why it has prima facie accepted the said allegations. In Bhabhi''s case (supra), it has been mentioned that one of the conditions necessary for ordering recount is that the court must be prima facie satisfied on the materials produced before it regarding the truth of the allegation made for a recount. This indicates that the court must give some reasons why it prima facie believes the versions of the Petitioner. In the present case, as already stated above, the impugned order only states that according to the Petitioner, there were six invalid votes whereas according to the Respondent No. 1 (the writ Petitioner) there were only two invalid votes, but the authority does not go further and discuss the evidence in this connection.

Learned Counsel for the Respondent has invited my attention to paragraph 3 (iii) of the counter affidavit and has submitted that the reasons why the four votes were invalid have been mentioned therein.

It is settled law, that an order cannot be supplemented by an affidavit as held by the Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . Hence, I cannot look into the counter affidavit for this purpose. The impugned order itself should have discussed the evidence and should have given the reasons why it was prima facie of the opinion that four invalid votes were counted in favour of the Petitioner. Since, that has not been done, the impugned order dated 23.8.96 is illegal and is hereby quashed. However, it is open to the authority to pass a fresh order in accordance with law after hearing the parties concerned.

The writ petition is allowed. No order as to cost.