JUDGMENT Honble Sunil Ambwani, J.—Heard Shri C.B. Singh and Shri Manoj Kumar Singh for the petitioner. Shri Rakesh Pande appears for respondent No. 2. With the consent of Counsels for the parties, the matter was finally heard and is being decided at the admission stage. 2. Shri Ashwani Kumar-respondent No. 2 filed an election petition No. 3 of 2006, challenging the elections of Shri Shanker Lal-the petitioiner as Member of Ward No. 19 Qasba Mungara Badshahpur, Tehsil Machhali Shahar, District Jaunpur, held on 31.10.2006 in which he was declared elected on 6.11.2006 with the margin of three votes. 3. The Additional District Judge, Court No. 1, Jaunpur-Election Tribunal has, by his order dated 31.1.2008, directed recount of votes on 1.3.2008. The petitioner challenged the order of recount of votes in Writ Petition No. 11002 of 2008. The Court, by its judgment dated 27.2.2008, dismissed the writ petition with the following findings, after narrating the case law on the subject : "In the present case there is clear assertion in para 11 of the election petition that out of 406 ballots caste on 31.10.2006, 197 were in favour of the election petitioner and 190 in favour of the returned candidate. Ten invalid votes were malafidely included in the ballots of elected candidate and that he was declared elected with a difference of three votes. The election petitioner was injured and was walking with the help of a walking stick. He was not able to stand for long. His request to change the counting agent was not accepted and that he was not allowed to sit on the chair. He, however, led evidence of Shri Dharmendra Kumar, who was present at the time of counting as election agent of one of the candidate to the post of Chairman. Shri Dharmendra Kumar deposed in his direct evidence that the election petitioner had secured 197 votes as against 190 votes polled in favour of the returned candidate. Nineteen votes were declared to be invalid out of which ten invalid votes were counted in favour of the elected candidate and this fact was told by him to Shri Ashwani Kumar. The submission of Shri P.N. Tripathi that Shri Dharmendra Kumar, PW-2 could not say as to which of the vote was invalid and on what ground was not found to be good ground to disbelieve his statement. The submission of Shri P.N. Tripathi that Shri Dharmendra Kumar, PW-2 could not say as to which of the vote was invalid and on what ground was not found to be good ground to disbelieve his statement. On the basis of clear pleadings, which were supported by statement of Shri Dharmendra Kumar, the Tribunal has found that there was irregularity in elections inasmuch as ten invalid votes improperly counted in favour of the returned candidate. This, however, is prima facie finding based on evidence on record for the purpose of recount of votes. The Election Tribunal has concluded that with these facts it was necessary and in the interest of justice that the votes be recounted. I do not find that the Tribunal has committed any such error, which may require interference from this Court. There was clear pleading supported by admissible and reliable evidence to arrive at a prima facie finding that ten invalid votes were counted in favour of returned candidate. Shri Dharmendra Kumar, PW-2 was present at the time of counting and has supported the plaint allegations. The petitioner did not lead any evidence to prove his defence. The prima facie finding is based on evidence led in the proceedings on which it was found that recount would be in the interest of justice. The writ petition is dismissed." 4. In the recount of votes, it was found by the election tribunal, that after excluding the votes declared as invalid at the time of counting, the election petitioner has secured 201 votes as against 188 votes of the petitioner and that by order dated 1.3.2008 of the election tribunal the election petitioner-respondent No. 2 was declared to have won the elections with 13 votes, giving rise to this writ petition. 5. In the recount of votes after opening the sealed bundles, it was found that a total number of 406 votes were polled, out of which 17 votes were invalid. Shri Ashwani Kumar-election petitioner with election symbol bicycle had polled 201 valid votes as against Shri Shanker Lal with the election symbol lotus with 188 valid votes, whereas in the counting of votes immediately after elections the petitioner the election officials had found that he had polled 196 valid votes as against 200 valid votes of Shri Shanker Lal. 6. Shri Ashwani Kumar-election petitioner with election symbol bicycle had polled 201 valid votes as against Shri Shanker Lal with the election symbol lotus with 188 valid votes, whereas in the counting of votes immediately after elections the petitioner the election officials had found that he had polled 196 valid votes as against 200 valid votes of Shri Shanker Lal. 6. On the opening of the bundles and counting each of the votes it was found on recount that in the bundle of election-petitioner four votes had a clear impression of election seal on bicycle and five votes were invalid. As against this in the four bundles of Shri Shanker Lal of 50 votes each, seven invalid votes were found in first bundle; two invalid votes in second bundle and three invalid votes in the fourth bundle. Thus a total number of 12 invalid votes were found to be included in the four bundles of elected candidate. 7. Shri C.B. Singh learned Counsel for the petitioner submits that the election tribunal did not have authority to declare the votes as invalid. The prima facie proof of rejection of invalid votes was not furnished. In Km. Shradha Devi v. Krishna Chandra Pant and others, AIR 1982 SC 1569 it was held that scrutiny and recount cannot be limited only to those ballot papers of which the proof of error is furnished. When a petition is for relief for scrutiny and recount and there is prima facie proof of errors in counting and if proofs are prima facie established a recount can be ordered. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. If such an approach is taken, it will work havoc in a Parliamentary constituency where more often 10,000 or more votes are rejected as invalid. The law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. 8. The Supreme Court further held that every mark or writing on ballot papers does result in invalidation of the vote. 8. The Supreme Court further held that every mark or writing on ballot papers does result in invalidation of the vote. The mark and identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the marks must be made available and innocuous nature or meaningless mark cannot be raised to the level of such suggestive mark or writing so as to reveal the identify of the voter. 9. The decision is not applicable to the facts of the present case. In this case the election tribunal has not declared any vote to be valid or invalid. The tribunal proceeded to count the valid votes, which were not counted and separated invalid votes, which were counted in favour of the elected candidates. No objection was taken to the validity of four ballot papers which were not counted in favour of the election petitioner and 12 invalid votes which were added in the bundles of the elected candidate. The election tribunal simply recounted the votes. It included the valid votes and excluded the invalid votes from the bundles and found that instead of nine, there were in fact 17 invalid votes. The validity and invalidity of votes was determined by the election officer immediately after the polling and not by the election tribunal. There was no fresh consideration or proofs of errors in respect of the same ballots. 10. The election tribunal found the averments made in the election petition supported by the statements of the witnesses, that the invalid votes were counted in favour of the elected candidate, to be correct. The recount disclosed that in fact 12 invalid votes were added in the bundles of the elected candidate apparently to favour him for winning the elections. 11. There is no legal error in the judgment of the election tribunal to cause any interference. The writ petition is dismissed. ————