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2008 DIGILAW 1479 (PNJ)

Gurnam Bindra Singh v. State of Punjab

2008-08-27

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. - This revision petition under Article 227 of the Constitution of India has been moved for quashing of order dated 8.5.2007 passed by respondent No. 3 with a consequential orders. 2. The facts leading to the filing of the present revision are that Election to the Municipal Council, Mohali was held on 30.7.2006 under the superintendence and control of the Punjab State Election Commission. The petitioner and respondent No. 4 contested the election from Ward No. 15. The petitioner was declared elected as the Municipal Councilor, Municipal Council, Mohali and is continuing as such. Respondent No. 4 was defeated by a margin of 52 votes in the said election. He filed an election petition on 29.8.2006 under Section 76 of the Punjab State Election Commission Act, 1994 against the election of the petitioner on vague grounds without giving any material particulars. The written statement to the said election petition was filed by the petitioner on 19.12.2006 and the rejoinder was also filed to the written statement was also filed on 23.1.2007. The election petition was taken up on different dates and the orders passed by the Election Tribunal read as under :- "File produced. Case called for. Counsel for the parties came present. The presiding officer has gone to attend the meeting in connection with Govt. works so case is fixed for 20/02/2007 for proper orders. Sd/- Reader 06/02/2007 File produced. Case called for. Record not produced so the record be summoned from the lower court for 06/03/2007. Sd/- TEJVIR SINGH DC SAS NAGAR 20/02/2007 File produced. Case called for. Counsel for the parties came present. Two days time given to the counsel for the petitioner to inform the court what type of election record is required. File be put up for 07/03/2006. Sd/- TEJVIR SINGH DC SAS NAGAR 20/02/2007 File produced. Case called for. Counsel for the parties came present. Presiding officer being busy in meeting for Govt. works. File be put up for proper orders on 17/04/2007. Sd/- READER 28/3/2007 File has been called. Counsel for the petitioner came present. Concerned record along with election petition has not received. Sh. Pardeep Bains Tehsildar-cum-returning officer, SAS Nagar and Sh. Dalip Election Tehsildar, SAS Nagar are bound down to produce complete record in respect of elections of Ward No. 15 held on 30/07/2006. Sd/- READER 28/3/2007 File has been called. Counsel for the petitioner came present. Concerned record along with election petition has not received. Sh. Pardeep Bains Tehsildar-cum-returning officer, SAS Nagar and Sh. Dalip Election Tehsildar, SAS Nagar are bound down to produce complete record in respect of elections of Ward No. 15 held on 30/07/2006. The aforesaid record be produced in my court on 24/04/2007 at 2.00 p.m. by the aforesaid officers. In this regard information be also sent to Treasury Officer, Kharar. File be put up on 24/04/2007. Sd/- DEPUTY COMMISSIONER-CUM-ELECTION TRIBUNAL DC SAS NAGAR" 3. It is the case of the petitioner that on 17.4.2007 counsel for the petitioner Sh. Mohan Lal Setia was not present due to heart surgery and on said date an application was moved by the counsel for respondent No. 4 for summoning the election record of Ward No. 15. However, the copy of the said order was not supplied to the petitioner. On 1 8.4.2007 a news report appeared in the various newspapers stating therein that the Election Tribunal-cum- Deputy Commissioner has ordered the recounting of votes and the said recounting took place on 24.4.2007. The petitioner filed a writ petition No. 5874 of 2007 and on 23.4.2007, this Court passed the following order :- "Notice of motion for April 26, 2007, accepted by Mr. Vivek Sood, Advocate, on behalf of respondent No. 4. Copy of order dated April 17, 2007 whereunder recount has been ordered for tomorrow, has been delivered to the learned counsel for the petitioner today in court. In the meanwhile proceedings for recount which are scheduled for April 24, 2007 at 2.00 PM shall continue but shall be subject to any order passed in this petition. However, in the event of recount going against the petitioner, no further order shall be passed by the Election Tribunal, as a result of said recount. Copy of this order be given dasti under the signatures of Special Secretary of this Branch." 4. It was during the pendency of the writ petition that copy of the order dated 17.4.2007 was supplied wherein it was found that only record has been summoned with respect to election of Ward No. 15. The writ petition filed by the petitioner was disposed of on 24.4.207 by passing the following orders :- "This case came up yesterday. It was during the pendency of the writ petition that copy of the order dated 17.4.2007 was supplied wherein it was found that only record has been summoned with respect to election of Ward No. 15. The writ petition filed by the petitioner was disposed of on 24.4.207 by passing the following orders :- "This case came up yesterday. A copy of order dated April 17, 2007 was delivered by the learned counsel for respondent No. 4 to the learned counsel for the petitioner. Today, the learned counsel for the petitioner has argued that after reading the order dated April 17, 2007. It has been discovered that as a matter of fact no recount was ordered. The confusion resulted on account of the fact that no one bothered to read the order, which was in illegible Punjabi. Therefore, the counsel for the petitioner alleges that the recount has now been ordered on the basis of the order that was passed by this Bench yesterday. Learned counsel submits that the relief he had sought was on the basis of press reports (Annexures P-7 and P-8). Be that as it may, since no recount has been ordered, the petitioner wishes to withdraw this petition. This prayer is allowed. The petition is dismissed as withdrawn with liberty to file a fresh petition at a later stage on the same or fresh cause of action. Copy of this Order be given dasti under the signatures of the Special Secretary of this Bench." 5. On 24.4.2007, the case was adjourned to 8.7.2007. The petitioner moved an application for transfer of the election petition in which notice of motion was issued for 21.8.2007 and passing of final order was stayed by this Court. 6. It is case of the petitioner that when counsel for the petitioner reached at 3:00 p.m., the learned Election Tribunal-cum-Deputy Commissioner, SAS, Nagar Mohali ordered that all other cases except the Election petition be adjourned. It is also the case of the petitioner that the learned Election Tribunal-cum-Deputy Commissioner, SAS, Nagar Mohali got annoyed in view of the order passed by this Court and did not allow the petitioner to make any submission. A request was made for framing of issues in the election petition so the parties could lead evidence. However, the said application was torn and thrown away and not taken on record. A request was made for framing of issues in the election petition so the parties could lead evidence. However, the said application was torn and thrown away and not taken on record. It is the case of the petitioner that detailed affidavits in this regard were also filed by the counsel for the petitioner before the Honble Chief Justice of Punjab and Haryana High Court. The Election Tribunal-cum-Deputy Commissioner, thereafter ordered the recount verbally and recounting started. The seals of the record were not seen nor the genuineness of record was not shown to the counsel for the petitioner present there. However, keeping in view the attitude of respondent No. 4 the counsel for the petitioner left the proceedings and the final process of recounting was completed without the counsel for the petitioner and thereafter a fresh statement was made that respondent No. 4 Kulwant Singh has won by margin of 109 votes. 7. It is also the claim of the petitioner that result would also be sent to the High Court in sealed cover. It is the case of the petitioner that even copies of the orders were not supplied. It is contention of the petitioner that final order of recount was in violation of the orders of the Honble High Court dated 7.5.2007. It is also the case of the petitioner that basic procedure of law regarding trial of the suit as per C.P.C. was not followed. The learned Election Tribunal failed to frame any issue nor give any opportunity to the parties to lead evidence. It is also the case of the petitioner that recount was made with an ulterior motive to favour Kulwant Singh, who belongs to the Akali party in power. It is also the case of the petitioner that COCP No. 777 of 2007 was also filed by the petitioner, and this Court on the basis of allegations has been pleased to take suo motu notice by observing as under :- "In view of the aforesaid enunciation of principle of law, the Court has the jurisdiction to initiate contempt proceedings suo motu, may be in rare cases, on the information which comes to the knowledge of the Court in any of the modes including that by way of a petition for initiation of a civil contempt. The present is the case where prima facie, the proceedings have been alleged to have been conducted in a manner, which lowers the dignity of the authority of law and by a person, who is engaged in the administration of justice. The actions, utterances and conduct of proceedings by the respondent prejudice and interfere with the due course of judicial proceedings and/or interfere or tend to interfere or obstruct or tend to obstruct the administration of justice. Therefore, I am satisfied that prima facie, the allegations, disclose commission of a criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 and, therefore, I hereby take suo-moto notice of the contempt. Accordingly, I order that the present petition be treated as a criminal contempt petition. The papers of the present case be placed before the Honble Chief Justice, for placing it before the appropriate Bench." 8. On the abovesaid allegations the petitioner had challenged the order dated 18.5.2007, attached as Annexure P-11 to this petition. 9. The petition is contested by respondent No. 4 and a preliminary objection has been raised that the present revision petition under Article 227 of the Constitution of India is not competent as the petitioner could challenge this order only by filing Civil Writ Petition. It is also the case of the respondent that revision against interim order is not competent as the petitioner was required to take his remedy under the Punjab State Election Commission Act, 1994 and also Punjab Municipal Election Rules, 1952. It is the case of the respondent that there was no necessity to frame issues as the party knew about the controversy which was that the fair counting was not conducted. The stand of the respondent is that it was specifically pleaded by him that recounting the votes would clinch the matter between the parties. The respondent claimed that it was open to the learned Tribunal to formulate any procedures and the technicalities could not come in way of the provisions as the provisions of CPC are not strictly applicable to the Election Tribunal. The other averments, on the merits, were also denied. 10. Mr. K.S. Sidhu, Sr. The respondent claimed that it was open to the learned Tribunal to formulate any procedures and the technicalities could not come in way of the provisions as the provisions of CPC are not strictly applicable to the Election Tribunal. The other averments, on the merits, were also denied. 10. Mr. K.S. Sidhu, Sr. counsel appearing on behalf of the petitioner vehemently contended that the impugned order passed by the learned Election Tribunal cannot be sustained as no material facts and particulars were furnished by the respondent in his election petition and in absence of the material facts and particulars the election petition itself was not competent. Therefore, the order of recount cannot be sustained. In support of this contention reliance has been placed by the learned senior counsel for the petitioner on the judgment of the Honble Supreme Court in the case of Preet Mohinder Singh v. Kirpal Singh, 2001(1) P.L.R. 214 wherein the Honble Supreme Court has been pleased to lay down as under :- "5. A bare reading of the above averments shows that these paragraphs contain nothing but bald allegations. No facts, muchless material facts and particulars have been furnished. The averments to the effect that the Presiding Officer had illegally rejected 57 votes whereas in fact these were only 37 votes of such nature, is a hopelessly vague and bald allegation. Leaving aside the question whether the figure as mentioned above is true or imaginary, the basis on which this figure had been carried at, has not been disclosed in the election petition. No particulars at all have been furnished of allegedly wrongfully rejected votes as mentioned in paragraphs 11 and 13. Same is the position with regard to the allegations contained in other paragraphs (supra). The pleadings on this aspect are hopelessly vague. Neither material facts nor material particulars have been furnished. In the absence of material facts and particulars which are sine qua non for letting an election petition proceed to trial, the Tribunal was not justified in ordering a recount in a rather mechanical manner. The Courts have always opined that mere allegations not supported by material fact do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon. 6. The Courts have always opined that mere allegations not supported by material fact do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon. 6. In V.S. Achuthanandan v. P.J. Francis and another, 1999(3) SCC 737, this Court reiterated the settled propositions of law in the matter of inspection and recount of ballot papers. Some of the guidelines and conditions reiterated in that judgment are : "(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statement of material facts; (3) The Court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials." 7. On the touchstone of those guidelines, the pleadings in the present case being hopelessly deficient the Tribunal fell in error in ordering recount. There was no material before it on the basis of which it could arrive at a conclusion to order recount. The High Court was, under the circumstances, justified in setting aside the order of the Tribunal. We are not persuaded to take a view contrary to the one taken by High Court either. This appeal, therefore, fails and is dismissed but with no order as to costs." 11. The High Court was, under the circumstances, justified in setting aside the order of the Tribunal. We are not persuaded to take a view contrary to the one taken by High Court either. This appeal, therefore, fails and is dismissed but with no order as to costs." 11. The learned counsel for the petitioner also placed reliance on the judgment of the Honble Supreme Court in the case of Chandrika Prasad Yadav v. State of Bihar and others, 2004(2) RCR(Civil) 568 to contend that in the present case no averments as to how and in what manner the so called valid votes were kept out of consideration or invalid votes had been taken into consideration and in what manner the election result is materially affected on that count. Therefore, the plea raised by the respondent was thus liable to be rejected straightway. The Honble Supreme Court in the case referred to above has been pleased to lay down as under :- "18. It is well settled that an order of recounting of votes can be passed when the following conditions are fulfilled : (i) A prima case; (ii) Pleading of material facts stating irregularities in counting of votes; (iii) A roving and finishing inquiry shall not be made while directing recounting of votes; and (iv) An objection to the said effect has been taken recourse to. 19. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting." 12. The reliance has also been placed on the judgment of the Honble Supreme Court in the case of Shri Satyanarain Dudhani v. Uday Kumar Singh, 1993 A.I.R. (SC) 367 wherein the Honble Supreme Court has been pleased to lay down as under :- "10. It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning Officer. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. 11. As state above only three line objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition has been pleaded with the object of having a fishing enquiry and does not inspire confidence." 13. The reliance has also been placed on the judgment of this Court in the case of Pardaman Singh v. State of Punjab, 1996(3) RCR(Civil) 35, wherein this Court has been pleased to lay down as under :- "6. It has been repeatedly held by the Supreme Court of India as well as this Court that an order of recount cannot be passed on the mere asking of a party. There have to be proper pleadings making out the case for recount, framing of an issue and contemporaneous evidence to substantiate the plea of recount. It would suffice to refer to the latest judgment of the Supreme Court on this point in Sh. There have to be proper pleadings making out the case for recount, framing of an issue and contemporaneous evidence to substantiate the plea of recount. It would suffice to refer to the latest judgment of the Supreme Court on this point in Sh. Satyanarain Dudhani v. Udya Kumar Singh and others, AIR 1983 SC 367, where their Lordships reiterated the principles laid down in the earlier judgments of the Supreme Court that secrecy of the ballot could not be permitted to be tinkered lightly and a recount can only be ordered on a prima facie case made out on the basis of material facts pleaded and duly supported by evidence justifying a recount. It was held:- "Thus in the instant case only three line objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition, has been pleaded with the object of having a fishing enquiry and it did not inspire confidence. A cryptic application claiming recount was made any that contestant before the Returning Officer. No details of any kind was moved by the petitioner. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. Held, when there was no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition." This case was under the Representation of Peoples Act, 1961. A Division Bench of this court in Bharat Singh v. Dalip Singh and others, (1196-1) 112 PLR 70, while dealing with the Haryana Panchayati Raj Act, 1994, and the Punjab State Election Commission Act, 1994, held that in an election dispute relating to Gram Panchayat, a recount cannot be ordered as a matter of course and the same can only be ordered on the basis of material facts stated in the petition duly supported by evidence making out a prima facie case for recount. Similar was the view taken by a learned Single Judge of this Court in Mithu Singh v. Ranjit Singh and others, (1996-1) 112 PLR 217. 7. Similar was the view taken by a learned Single Judge of this Court in Mithu Singh v. Ranjit Singh and others, (1996-1) 112 PLR 217. 7. In the present case, recount has been ordered on vague pleadings, without framing an issue, on an oral request without taking any evidence whatsoever, holding that the same would be in the interest of justice and to maintain the purity of the election as it would do no harm to anybody, thereby making a mockery of the basic principles of law as laid down by Honble the Supreme Court and this Court relating to the plea of recount of votes in an election dispute. Orders, Annexures P-2 and P-3 being against the provisions of the Act and the law laid down by the Supreme Court of India and this Court are unsustainable in law and deserve to be quashed. 9. We do not find substance in this submission. In A. Neelalohithadason Nadars case (supra), their Lordships found that there were pleadings for recount, an issue had been framed and the parties had led their evidence. Affirming the findings recorded by the High Court that the case for recount had been made, their Lordships observed that the principle of secrecy of the ballot has to give way to the principle of purity of the election. The facts in A. Neelalohithadasan Nadars case (supra) are distinguishable and the ratio of the law laid down in the above case would not be applicable to the facts of the present case where there are practically no pleadings and evidence and even a prayer for declaration that the election petitioner be declared elected after recount under Section 13(00) of the Act has not been made. It has not been held in A. Neelalohithadasan Nadars case (supra) that the end result can justify the recount. Justification has to precede the order of recount and cannot be offered as a defence after the recount has taken place as held by their Lordships in P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640, as under :- "The settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is a prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes." 14. The contention of the learned counsel for the petitioner, therefore, was that the order of recount under challenge has been ordered in violation of settled law as the learned Tribunal was not justified in ordering the recount on the vague allegations which lack specific particulars and without letting parties to lead evidence. 15. Mr. M.L. Sarin, Senior counsel appearing on behalf of the respondent raised a preliminary objection to the effect that the present petition under Article 227 of the Constitution of India is not competent in view of the order passed by this Court in CWP No. 5874 of 2007. 16. The contention of the learned senior counsel for the respondent was that petitioner has sought permission to file a fresh petitioner to invoke at a later stage and, therefore, it was not open to the petitioner to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. 17. This plea of the learned senior counsel for the respondent cannot be accepted in view of the law laid down by the Honble Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai & Ors, 2004(1) RCR(Civil) 147, wherein the Honble Supreme Court has been pleased to lay down as under :- "(3) of Article 227 with which we are not concerned here at. It is well- settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar." 18. It is otherwise not in dispute that the Court has the power under Article 227 of the Constitution of India to set aside the order Annexure P-11 passed by the learned Election Tribunal. 19. The learned senior counsel appearing on behalf of the respondent thereafter contended that a specific ground for recount were made out in Para 6 of the petition which reads as under :- "That the counting of the petitioners in all the booths having been repeatedly telling the polling officer and his team that the votes are being illegally rejected/cancelled which should have been counted in favour of the petitioner and were not liable to be cancelled or rejected in favour of the petitioner. That similarly, many votes, which were liable to be rejected and could not be considered in favour of the respondent No. 1 were illegally accepted and were counted for the respondent. That though this objection and protest was raised by the counting agents again and again, but since the polling officer/presiding officer had already been won over by the respondent No. 1 in such a manner that they refused to listen to any genuine and reasonable request of the petitioner and his agents. So much so that when a demand was made immediately that let the returning officer respondent No. 5 be called and votes be rechecked, the same was rejected. That the illegal rejection of votes which should have been validly considered for petition and similarly illegal acceptable of votes for the respondent No. 1 which should have been rejected has made the difference of 80 votes illegally which has ultimately materially effected the election result. That the illegal rejection of votes which should have been validly considered for petition and similarly illegal acceptable of votes for the respondent No. 1 which should have been rejected has made the difference of 80 votes illegally which has ultimately materially effected the election result. If these 80 votes would not have been illegally accepted or rejected as mentioned above, the difference of 52 votes by which the petitioner has lost would not have come and thus the illegal action on the part of the polling/counting officer in connivance of the respondent No. 1 who had won them over has materially effected the result of this case." 20. The learned senior counsel for the respondent also mentioned that a specific prayer has been made by the respondent to set aside the election of the petitioner and declare respondent to set aside the election of the petitioner and declare respondent No. 4 as having been duly elected as winning candidate from the said Ward. 21. The learned senior counsel for the respondent by placing reliance on the Judgment of Full Bench of this Court in the case of Radha Kishan v. Election Tribunal-cum-Sub-Judge, Hissar, 1999(3) PLR 1 made reference to Paras 46 and 49 of the said judgment, which read as under :- "46. In the petition detailed circumstances were stated and the petition was duly verified. The petitioner Smt. Darshana on 18.5.1996, had given up all the grounds of corrupt practices or otherwise and had confined her relief and claim to the recount and scrutiny and computation of the valid votes. The learned Judge vide order dated 14.8.1996 had come to the conclusion that in order to do justice between the parties and on the basis of the averments made in the petition supported by documents, it would be imperative to direct recount/scrutiny and computation of valid votes. The order dated 14.8.1996 is a well reasoned order and we are of the considered view that it fully satisfies and basic and underbuying requirements of Section 176(4)(b) of the Act. 49. The order dated 14.8.1996 is a well reasoned order and we are of the considered view that it fully satisfies and basic and underbuying requirements of Section 176(4)(b) of the Act. 49. With respect and for the reasons recorded above, we are not quite in agreement with either of the extreme views taken by the Honble Division Benches of this Court in the cases of Sunehri Devi v. Narain Devi, C.W.P. No. 6381 of 1995, decided on 20.10.1995 and Bharat Singh v. Dalip Singh and others, C.W.P. No. 9671 of 1995, decided on 6.10.1995. We would prefer to adopt the middle path and practical oriented approach so as to achieve the purpose of the Act. The scrutiny and computation by recount of votes arises in such election more than often. Such request de hors of the corrupt practices or other allegations prima facie may justify passing of an order within the scope of Section 176(4)(b) of the Act. The legislative intent requiring expeditious disposal of a petition and passing of an order of scrutiny and computation without detailed inquiry is explicit in the language of these provisions. Without placing unnecessary emphasis on the language of the Section and to make the law susceptible to the situations likely to arise in the cases to which such provisions are applicable and with intention to obstracise the possibility of confusion we would interpret the Section on its cumulative reading and in synthesis with the scheme of the Act." 22. Contented that in the given circumstances when a case is made out then the recount could be ordered. However, this plea of the learned senior counsel for the respondent cannot be accepted as Para 50 of the judgment relied upon by the petitioner reads as under : "50. Ergo we hold that recounting of votes in such an election cannot be directed on more asking and in a routine manner. The applicant if makes definite averments on verification supported by unambiguous details, in accordance with law, supported by documents, if any, and where the applicant makes out a prima facie case to the satisfaction of the court, nothing prevents the Court from ordering scrutiny and computation of votes on recount in the case falling within restricted scope of Section 176(4)(b) of the Act. In other words, the court would not be justified in declining such a relief for the reason that the applicant, irrespective of above, must lead evidence through detailed enquiry. Such detailed enquiry is neither postulated nor would be necessary within the purview of said provisions in the limited cases. Afore-referred." 23. The learned senior counsel appearing on behalf of the respondent thereafter by placing reliance on the judgment of the Honble Supreme Court in the case of Sadhu Singh v. Darshan Singh & Anr., 2006(4) RCR(Civil) 55 contended that following factors are relevant for directing recounting of votes :- "(i) prima facie case must be established; (ii) material facts must be pleaded stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes; (iv) an objection to the said effect should be raised; and (v) secrecy of ballot papers should be maintained." 24. There is no dispute with the proposition. However, it may be noticed that in the judgment relied upon by the learned senior counsel for the respondent, it has been specifically mentioned that material facts have to be pleaded stating irregularities in counting of votes. It has also been observed that secrecy of ballet papers should be maintained. It has further been noticed that in case said facts were arrived at after the parties were allowed to adduce their evidence. However, in the present case, even prior to framing of issues the learned Election Tribunal ordered the recounting. 25. Finally the reliance was placed by the learned senior counsel for the respondent on the Division Bench judgment of this Court in the case of Lillu Ram v. The Additional Civil Judge (Sr. Division), Gurgaon and others, 2007(1) PLR 480 wherein this Court was pleased to hold as under :- "Held that through her agent had made a request for recounting of votes which according to her had been turned down by the S.D.M. In case such an application was made before the Returning Officer, demand was either to be considered or rejected after following the procedure provided in Rule 69. Admittedly, the said procedure has not been followed and, therefore, insofar as the respondent No. 2 is concerned, there has been an infraction of Rule 69 inasmuch as her claim for recount of the votes has not been considered. Admittedly, the said procedure has not been followed and, therefore, insofar as the respondent No. 2 is concerned, there has been an infraction of Rule 69 inasmuch as her claim for recount of the votes has not been considered. Respondent No. 2 was entitled for recount of the votes on the basis of the application dated 9.4.2004 (Annexure R-2/2) wherein such a request was made and which was in consonance with the provisions of Rule 69 of the Rules. Sub Rule (2) of Rule 69 provides for the Returning Officer or the Officer authorised by him for re-count of all or any of the ballot papers already counted stating the demand on which he demands such re-count. The stand taken by the appellant that an application in terms of Rule 69 was not moved before the Returning Officer is of no significance as the respondent No. 2 on the very same day had moved an application (Annexure R-2/2) before the Deputy Commissioner, Gurgaon that her request for re-counting had been turned down by the S.D.M." 26. However, this judgment also does not advance the case of the respondent as in the said case interpretation was with respect to Haryana Panchayati Raj Act, 1994 especially Rule 69 which is neither the case in the present case nor any such application was moved by the petitioner before the Returning Officer. 27. On consideration of the matter, I find force in the contention raised by the learned counsel for the petitioner. Para 6 of the Election Petition on which strong reliance has been placed would show that the allegations levelled by respondent No. 4 were vague allegation without specific particulars. Neither the name of the Polling Officer or team was mentioned, who was said to have illegally rejected and cancelled the votes as claimed by respondent No. 4. There are allegations that the polling Officer was won over by the petitioner herein. The allegations were required to be substantiated by summoning the witness and thereafter making a case for recount. The reading of the law referred to above, which has been relied upon by the petitioner as well as by respondent No. 4 leads to only one conclusion that recount cannot be ordered on the merely asking of a party. There have to be a proper pleading making out a case for recount. The reading of the law referred to above, which has been relied upon by the petitioner as well as by respondent No. 4 leads to only one conclusion that recount cannot be ordered on the merely asking of a party. There have to be a proper pleading making out a case for recount. In dealing with such allegations it is the responsibility of the Election Tribunal to maintain the secrecy of ballot papers. The conduct recount the anticipated order was published in the newspapers even before the said order was passed on the judicial side, which compelled the petitioner to file writ petition in this Honble Court. When the petitioner had moved an application for transfer of the case and the notice had been issued by this Court still the Election Tribunal proceeded to order recount in absence of the petitioner or his counsel. 28. Be that as it may, the impugned order cannot be sustained as respondent No. 4 had failed to prima facie establish the case for recount as allegations were too general in nature required to be proved by evidence. Nothing has been placed on record as to whether any written complaint was made by respondent No. 4 before the Polling Officer immediately after the election. Even after filing of the Election Petition different dates were given and only when there was change of officer holding the post, decision was taken to order the recount. The reading of the order shows that much reliance has been placed on averments made in Para 6 of the petition which has been reproduced above. 29. As already observed, the allegations lack the material particulars. It was incumbent upon the Election Tribunal to first prima facie satisfy itself on the material produced regarding truth of the allegations made for recount. The learned Tribunal even did not think it proper to summon the Polling Officer or other officials against whom serious allegations were made. 30. It may also be noticed that the learned Tribunal has taken the averments to be gospel truth without examining the officials. The learned Election Tribunal ordered the recount by observing that it see no reason why the petitioner was shying away from recount. In the present case, once the matter for transfer was pending before the Court, it was for the Election Tribunal to stay his hand and to wait the decision of this Court. 31. The learned Election Tribunal ordered the recount by observing that it see no reason why the petitioner was shying away from recount. In the present case, once the matter for transfer was pending before the Court, it was for the Election Tribunal to stay his hand and to wait the decision of this Court. 31. In any case, the order passed is contrary to the settled law that in absence of evidence of evidence to prove prima facie allegations the recount could not be ordered on the basis of vague allegations. Thus, the impugned order cannot be sustained. Consequently, this revision is allowed. Order passed by the learned Election Tribunal is ordered to be set aside. Petition allowed.