Judgment :- 1.The question that arises in this Original Petition is when can a recount be ordered by an election Tribunal enquiring into the validity of an election. 2. The law on the point is well settled. A recount, I think., is not a matter of right, but only on evidence of positive facts which would lead to the conclusion that the Returning Officer had committed a mistake. A good case should be made out, no doubt, only on the preponderance of probabilities and not on conclusive proof as such, before an order can be obtained for inspection and recount of ballot papers This should be so in a democratic set up as the Supreme Court points out in Chanda Singh v. Choudhary Shiv Ram Varma (AIR. 1975 SC. 403). "A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant re-counts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if re-count of votes in made easy. The general reaction. if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step." In Beliram Bhalaik v. Jai Behari Lal Khachi (AIR. 1975 SC. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step." In Beliram Bhalaik v. Jai Behari Lal Khachi (AIR. 1975 SC. 283) the Supreme Court points out that: "Although no cast-iron rule of universal application can be or has been laid down, yet from a bead roll of the decisions of this Court, two broad guidelines are discernible; that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties." (emphasis added) In W. Narayanan v. S. Semmalai (AIR 1980 SC. 206) Fazal Ali, J. said: "Moreover, the relief of recounting cannot be accepted merely on the possibility of their being in error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence " 3. The same learned judge in Bhabhi v. Sree Govind (AIR. 1975 SC. 2117) summarised and catalogued the circumstances under which re-counting could be ordered as follows: "The Court would be justified in ordering a recount of the ballot papers, only 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 that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties." (Emphasis added). 4. In this case the petitioner and the 1st respondent along with four others were contesting candidates in Ward No. III of Edavilangu Panchayat in the election to the said Panchayat which was held on 18-9-1979. 4. In this case the petitioner and the 1st respondent along with four others were contesting candidates in Ward No. III of Edavilangu Panchayat in the election to the said Panchayat which was held on 18-9-1979. The petitioner was the successful candidate securing 264 votes as against the 1st respondent who secured only 263 votes. The Ist respondent has filed an election petition before the Election Tribunal (Munsiff) challenging the election on the ground that there were improper rejection of votes and improper acceptance of votes. The 1st respondent filed an application for appointing a Commission to recount the ballot papers as an interim measure. This, was rejected by the Election Tribunal pointing out that such an application could be made after evidence is adduced. The 1st respondent examined himself and a counting agent of his. The petitioner was also examined. It was then that the present impugned order was passed on a fresh application for recount. I think it would be useful to extract the following portion from the order of the Election Tribunal: "Summing the evidence the learned advocate for the respondent has argued before me that the petition itself is not maintainable as the petitioner has not impleaded the Executive Officer of the Panchayat concerned. Likewise the copy of the petitions have not been served on the concerned persons as required under R.11 to Chap.1 and R.10 of the Panchayat Rules. He has also quoted AIR. 1968 Kerala 252: "Even if the margin of difference is narrow, good proof has to be adduced that there were mistakes at the counting which make the return unreliable. A narrow difference in poll, would not, by itself, warrant an order for recount by an election court." The facts and evidence adduced are again reconciled, pws.1 and 2 in one voice say that the counting was conducted in an insufficient room wherein such a huge number of persons cannot be admitted. It is the admitted case that the counting of the ballot papers of 5 wards were done in S tables covering the respective officers together with their agents. He claims that due to insufficient space and poor light the invalid votes cannot be clinchingly identified. pw.1 has also admitted the space of the room. Both of them have accepted that the B. D. O. was only having a supervision. He claims that due to insufficient space and poor light the invalid votes cannot be clinchingly identified. pw.1 has also admitted the space of the room. Both of them have accepted that the B. D. O. was only having a supervision. It emphatically goes to show that he has got only a bird's eyeview. Considering the circumstance I am inclined with the allegation that there was only a breath of time to decifer the factors in its true perspective and no opportunity was availed of by the petitioner which will prompt him immediately to request the B.D.O., his desire of recounting the same. It is true that be has not given a written petition. Whether the position claimed by the petitioner is genuine or not is to be looked into. This suggestion is neither denied nor an opportunity was given to the petitioner to examine the officers who conducted the counting. Here the only evidence available to rebut the case is the oral evidence of pw.1. But that evidence can only be appreciated as self serving. Thus the circumstance now placed before me concludes that no opportunity for the petitioner was given to have a recount so that his genuine doubt or ambiguity crept in his mind can be abrogated. His consistent case is that some invalid votes have been added in favour to pw.1 and it stands stubborn in his mind. The objection of election is to satisfy the right of franchise not even to the candidates but even to the voters. In the judgment reported in 1981 KLT. 578 this salient principle is discussed by quoting a decision reported in 1958 AIR., Supreme Court, 698: "the questions relating to purity of election and due and undue return of a candidate are matters in which the electorate as a whole is interested." If this position is accepted the facts now agitated before me is a right to satisfy the interests of voters as well as when a genuine doubt has been held by the petitioner. Here the consistent case of the petitioner is that the oral request made by him has not been heard of by the counting officers and no opportunity was given to him to give his request in black and white. This piece of evidence is not rebutted by giving an opportunity of examining the counting officers. Here the consistent case of the petitioner is that the oral request made by him has not been heard of by the counting officers and no opportunity was given to him to give his request in black and white. This piece of evidence is not rebutted by giving an opportunity of examining the counting officers. The respondent has not taken pain to examine the concerned officers who was in charge of the counting. Considering the peculiar aspects I have no hesitation to conclude that an opportunity must be given to the public at large to see any illegality is crept in which substantially affects the result of the election. Even pw.1 has no objection in counting the ballot papers if the court so decides. Nobody is in a stubborn position that the counting was done accurately. As stressed earlier the version of pw.1 will conclude: F( nA sXap]amw, sXanbmA ho-pw F®nbmWv sXav Xncpt -Xv. Hence the only solution to form and to arrive at a logical conclusion is that the doubt can be removed only by way of recounting the ballot papers now available in court I find that for fairness to the voters as well as to the contested candidates of the ward I find that the ballot papers now available in court is to be recounted by appointing a commission'." I have underlined some portions in the above. The same indicate that the Tribunal has not really understood the scope of the law on the matter. There cannot be a recounting merely on the basis that there might be an error or there being a chance of an error. The evidence of the 1st respondent should establish that mistake has in fact been committed by the Returning Officer or mistake has been committed in the matter of counting the votes before the court directs a recount. On the material facts placed before the Tribunal, the Tribunal should be satisfied that prima facie there is a good case for inspection of the ballot papers and recounting. 5. The prayer for recount should be supported by averments of material facts. The order of inspection of ballot papers cannot be had for the asking for satisfying himself about the correctness of the counting unless some doubts are thrown in by positive evidence about such correctness. 5. The prayer for recount should be supported by averments of material facts. The order of inspection of ballot papers cannot be had for the asking for satisfying himself about the correctness of the counting unless some doubts are thrown in by positive evidence about such correctness. As pointed out by the Supreme Court, as referred to above, the fact that the margin by which the successful candidate was declared elected is very narrow is undoubtedly an important factor to be considered but that would not by itself vitiate the counting of votes or justify re-counting by the court. But certainly the fact that there is difference of one vote is important In the circumstances what I would order is to set aside Ext. P1 and remit back the matter to the Election Tribunal for fresh disposal of this petition for recounting, after allowing the parties to adduce any further evidence in the matter. 6. Here T might add that there is no written prayer made before the Returning Officer for recount immediately after the results were announced. The 1st respondent sought to explain it by stating that he made an oral request and he was not afforded an opportunity to make a written request. The learned Election Tribunal mainly on the evidence of the 1st respondent himself has accepted that. That is not correct. The Tribunal proceeds on the basis as if the petitioner herein has got the burden of proof in the matter. This is certainly not right If there was a denial of opportunity to the applicant to make a written representation regarding the re-counting, he has to establish it. Probably the evidence of the Returning Officer would be material in such circumstances. In the light of the provisions of R.62 of the Panchayats (Election of Members) R.1962 the petitioner herein can very well contend, as he has contended, that the absence of a written application to the Returning Officer would effectively prevent the person who filed the election petition to pray for recounting at this stage. This would certainly be considered by the Tribunal while disposing of the petition. The petitioner has also a contention that the election petition itself is not maintainable. That is a question to be raised before the Tribunal. It is for the Tribunal to decide whether maintainability of the election petition should be disposed of as a preliminary issue. This would certainly be considered by the Tribunal while disposing of the petition. The petitioner has also a contention that the election petition itself is not maintainable. That is a question to be raised before the Tribunal. It is for the Tribunal to decide whether maintainability of the election petition should be disposed of as a preliminary issue. The Original Petition is disposed of as above. No costs.