Smt. Mithlesh vs Sub-Divisional Magistrate and Others

M. Katju, J.—This writ petition has been filed against the impugned order of re-counting dated 22.3.1996.

Heard the learned Counsel for the parties. The Petitioner was elected as Pradhan of Gram Sabha, Pamnauli. An election petition was filed against her which is pending. The impugned order of re-counting has been passed during the pendency of the election petition.

A perusal of the impugned order shows that the election Tribunal has observed that 29 persons have given affidavits stating that there were irregularities in the counting whereas seven persons have given affidavits to the contrary. The Tribunal, thereafter, has observed that after perusing the record and hearing the argument, he is of the opinion that prima facie there was violation of the relevant rules and hence he ordered for re-counting.

It is settled law that order of re-counting cannot be passed as of course as it interferes the secrecy of tire ballot. In Ram Adhar Singh v. District Judge, Ghazipur and Ors. 1985 UPLBEC 317, a Full Bench of this Court has given the conditions under which an order of re-counting can be passed. Condition No. 3 as mentioned in the said judgment is that the Court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made therein. In my opinion, this means that the Election Tribunal must at least, in brief, consider the evidence before it and discuss it briefly in the order of recounting and mention why the evidence of the election Petitioner has been prima facie accepted and not of the opposite party. The impugned order is a cryptic order which does not discuss any material on record and merely states that the Tribunal is prima facie satisfied that there was violation of the rules.

In my opinion, this is not the proper approach, Accordingly, the order of re-counting is set aside and I direct the Respondent No. 1 to pass a fresh order within one month from the date of production of a certified copy of this order before him in the light of the observations made above after hearing the parties concerned. The petition is disposed of accordingly.