ORDER 1. This petition has been preferred for quashment of Annexures P-5, P-6, P-8 and P-1 0 by the present petitioner whose election on the post of Member of Janpad Panchayat, Kanjariya was challenged and has been set aside by the impugned order. 2. The Collector-cum-Specified Officer, Dindouri vide order Annexure P-6 dated 17th of January, 2006 directed for recounting in the election petition. On recounting the election petitioner is found to have secured 567 votes as against 562 votes secured by the present petitioner. Accordingly, the election petitioner was declared elected vide Annexure P-8 dated 10.2.2006. Annexure P-10 is the report of recounting. Thus, Annexures P-6, P-8 and P-10 are under challenge in the present writ petition. 3. Short facts of the case are that the petitioner and respondents contested the election for the post of Member of Janpad Panchayat Karanjiya District Dindouri Ward No.9. The election was held on 19.1.2005. Petitioner was found to have secured highest votes in counting and was, therefore, declared as Member of Janpad Panchayat from Ward No.9. 4. An election petition was preferred by the respondent No.1 under section 122 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 mainly on the ground that the voting was allowed even after expiry of scheduled time till late night. Voting was permitted on different polling booths at different hours. Accordingly, the counting of votes started in the late night which continued even after mid night. There was frequent intermittent power failure and there was no sufficient alternative arrangement of light at the time of polling as well as counting. Counting was held in the dim light of lanterns and mud lamps. It was alleged that proper counting could not take place for want of sufficient light and that several votes polled to her were included in the bundle of other candidates taking advantage of dim and insufficient light. An objection was taken by election petitioner that the counting shall be made in the broad day light but the same was turned down. This apart, the petitioner had entered into the polling booth No. 33 during the counting and sat with the Presiding Officer. He also participated in the counting by sorting out the ballot papers. Objections regarding the same were raised. Thus, it has been stated that the counting was affected materially due to the aforesaid irregularities.
This apart, the petitioner had entered into the polling booth No. 33 during the counting and sat with the Presiding Officer. He also participated in the counting by sorting out the ballot papers. Objections regarding the same were raised. Thus, it has been stated that the counting was affected materially due to the aforesaid irregularities. Application for the recounting of votes was submitted on the same day i.e. on 20th of January, 2005. 5. Accordingly, the election petitioner prayed for declaration that the election of the present petitioner may be declared void and direction for recounting be made. She also prayed for declaration in her favour as an elected Member of Janpad Panchayat Karanjiya. 6. The present petitioner submitted return refuting all the allegations. 7. After recording the evidence, the learned Collector-cum-Specified Officer, Dindouri allowed the election petition and directed recounting of votes vide Annexure P-6 dated 17th of January, 2006. Recounting was made and the election petitioner was found to have secured more votes. Accordingly, she was declared elected vide order dated 10.2.2006 (Annexure P-8). Proceedings of recounting are contained in Annexure P-10 which, too, have been challenged in the present writ petition. 8. Shri Ashok Lalwani, counsel for the petitioner contended that there was no material to direct for recounting. Election petitioner has failed to adduce cogent and sufficient evidence to reach on a conclusion that the counting was vitiated due to any sort of illegality or irregularity. According to learned counsel for the petitioner sanctity of election cannot lightly be disturbed by directing recounting, moreover, because the election petitioner has failed to establish that the counting of ballot papers was vitiated in the facts and circumstances. 9. He placed reliance on D.B. decision of this Court rendered in WP No. 677/06 [ 2007 (3) JLJ 301 , Smt. Sampat Devi v. Sub Divisional Officer-cum-Prescribed Authority Niwadi and others and Single Bench decision of this Court in WP No. 7663/05 [ 2007 (3) JLJ 244 , Rafiq Khan v. Sub-Divisional Officer and other]. 10. It is almost a settled law that election tribunal can order recounting only after its satisfaction that the counting is vitiated on account of any of the valid reasons and it cannot be directed merely on the basis of general and bald allegations. There are catena of decisions on this point.
10. It is almost a settled law that election tribunal can order recounting only after its satisfaction that the counting is vitiated on account of any of the valid reasons and it cannot be directed merely on the basis of general and bald allegations. There are catena of decisions on this point. I may profitably refer to the apex Court decision rendered in the case of Vadivelu v. Sundaram and others [ 2000 (8) SCC 355 ] wherein it has been observed as under: "The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations on illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties." 11. Thus, recounting can be ordered very rarely and on specific allegations in the pleadings and proof that illegality and substantial irregularity has occurred during counting. It cannot be casually ordered merely on the ground that margin between the returned candidate and next highest is meagre. 12. In the present case the election petitioner has categorically pleaded that there was frequent power failure in intermittent manner on the day of polling and counting. When the polling as well as counting was performed there was no arrangement for sufficient light during the absence of electricity. There was insufficient, dim light of lanterns and mud lamps and consequently, proper counting could not take place and on the contrary, taking advantage of dim and insufficient light, certain ballot papers polled in her favour were included in the bundle of other candidates. This was complained but no heed was paid. 13.
There was insufficient, dim light of lanterns and mud lamps and consequently, proper counting could not take place and on the contrary, taking advantage of dim and insufficient light, certain ballot papers polled in her favour were included in the bundle of other candidates. This was complained but no heed was paid. 13. It is now a trite law that election petitioner may very well take an objection about improper counting and ask for recounting in the election after furnishing cogent proof with necessary pleadings. 14. The Specified Officer has recorded its satisfaction that the returning officer has not made total compliance of rules and procedure regarding election. 15. On perusal of the evidence it is found that the voting as well as counting were performed after the time period fixed therefor. Petitioner's own witness Jai Singh (DW 7) admitted in his cross-examination that the voting ended at II p.m. and the counting was performed thereafter in the night. It was competed at 4 p.m. Although the witnesses of the petitioner stated that the electricity was available throughout the time of polling and counting, Shri Chandanlal Parte who as the returning officer admitted that during intervening night between 19- 20th (date of polling and count and succeeding day) electricity was discontinued twice or thrice. This establishes the falsity of the petitioner's witnesses who stated that electricity was available throughout the aforesaid period. No specific proof is on record that alternative arrangement of light was duly made and proper light was available at the time of counting. This being so, learned Election Tribunal is not found to have committed any error in directing recounting. 16. On recounting having been made pursuant to the order of Election Tribunal, respondent No.1 is found to have secured five votes in excess of the votes polled by the elected candidate i.e. the present petitioner. 17. Hon 'ble Supreme Court of India in the case of T.A. Ahammed Kabeer v. A.A. Azeez and others [ AIR 2003 SC 2271 ] has clearly held that once the recounting is allowed, its effect cannot be ignored. I may profitably refer to paragraphs 28 and 29 which run as under: "28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount.
I may profitably refer to paragraphs 28 and 29 which run as under: "28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard. It is then result of the recount which has to be given effect to. 29. So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of a vote which is void by reference to the election result of the returned candidate under section 100 (1) (d) (iii), as also as to the result of the election of any other candidate by reference to section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of findings out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to." 18. In the present case it is found that recount was directed by the returning officer due to the absence of sufficient light.
Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to." 18. In the present case it is found that recount was directed by the returning officer due to the absence of sufficient light. This being so, the order of recount is not found to be improper and after recount pursuant thereto, the respondent No. I has been righty declared as elected candidate. 19. Consequently, I do not find any substance in the writ petition and the same is hereby dismissed. However, there shall be no order as to costs.