JUDGMENT By the Court.—The petitioner has invoked extra ordinary writ jurisdiction under Article 226 of the Constitution of India for assailing the judgment and order dated 30.8.2008 passed by the Additional District Judge in election petition No. 6 of 2006, Ajit Kumar Jaiswal v. Virendra and others deciding issue No. 2 as a preliminary issue whereby directions have been issued for recounting of votes for election to the post of President, Nagar Palika Parishad, Gaura Barhaj, Deora. 2. The elections for the post of President, Nagar Palika Parishad were held on 31.10.2006. In the said elections apart from other candidates petitioner Virendra and Ajit Kumar Jaiswal were the main rivals. Petitioner secured a total 6422 votes whereas the rival Ajit Kumar Jaiswal secured 6234 votes and as such the petitioner was declared elected by a margin of 188 votes by the Returning Officer. The election of the petitioner was challenged by the respondent No. 3 Ajit Kumar Jaiswal under Section 20 of the Municipalities Act by means of an election petition inter alia on one of the grounds that there was an irregularity in the counting of the votes. 3. The election petition was got amended by moving an amendment application which was allowed. The order allowing the amendment was challenged by the petitioner in a writ petition which was ultimately dismissed. Thus, the amendment became final. 4. The petitioner in the election petition had moved an application for taking on record a compact disc (CD) of the videography showing incidents which took place at the place of counting immediately after the counting was over and the result was declared but before the Returning Officer had left the place. The compact disc was directed to be taken on record vide order dated 30.10.2007 but it was said that its admissibility in evidence would be considered later on. 5. It is said that an official videography was also conducted of the counting of the votes which was not brought on record. Therefore, an application was moved to summon the CD of the official videography also but the said application was rejected by the Court on 25.3.2008. 6. Eventually, the Court of first instance vide judgment and order dated 14.5.2008 allowed the election petition, declared the election of the petitioner to be invalid and ordered for recounting of the votes. Therefore, an application was moved to summon the CD of the official videography also but the said application was rejected by the Court on 25.3.2008. 6. Eventually, the Court of first instance vide judgment and order dated 14.5.2008 allowed the election petition, declared the election of the petitioner to be invalid and ordered for recounting of the votes. The said judgment and order was challenged by the petitioner by filing writ petition No. 25082 of 2008. The writ petition after contest was allowed by this Court on 22.5.2008 and the matter was remanded. 7. After remand an application was moved by the petitioner to decide about the admissibility of the CD which was on record but the same was rejected by the Court on 14.7.2008 against which a writ petition No. 35971 of 2008 was preferred but was dismissed on 29.6.2008. 8. The petitioner had also applied for transfer of the election petition to another Court under Section 24 CPC but the said application also came to be rejected. The application moved to the same effect before the High Court was also rejected on 31.7.08 with the observation to seek remedy under Section 43-BB of the Municipalities Act. Thereafter, the petitioner filed objections under Section 43-BB of the Municipalities Act which were rejected. To challenge the said rejection petitioner preferred yet another writ petition No. 41896 of 2008 which was dismissed on 18.8.2008 which judgment was upheld in Special Appeal No. 1120/08 though the order imposing cost while dismissing the petition was set aside. 9. Now on remand one of the issues i.e., issue No. 2 which is to the effect as to whether recount is necessary or not has been decided by the impugned judgment and order dated 30.8.2008. For the sake of convenience issue No. 2 is reproduced herein below : D;k v/;{k uxjikfydk ifj"kn] xkSjk cjgt] tuin nsofj;k in gsrq iquZerx.kuk djk;s tkus ;ksX; gS \ 10. I have heard patiently with pleasure the address of Sri Ashok Khare learned Senior Advocate assisted by S/Sri Shashi Kant Upadhyaya and Siddhartha Khare learned counsel for the petitioner and Sri K.N. Tripathi learned Senior Advocate assisted by Sri Ved Vyas Misra learned counsel for the respondent No. 3. Learned Standing Counsel who has appeared for respondents No. 1 and 2 was also heard. 11. Learned Standing Counsel who has appeared for respondents No. 1 and 2 was also heard. 11. Sri Khare in assailing the impugned order has made the following four submissions : (1) The court below has erred in passing the impugned order as it had not decided about the admissibility in evidence of the CD referred above; (2) The application for summoning the CD the official videography was incorrectly rejected; (3) No case for recounting was made out, as the pleadings were insufficient and inadequate and even otherwise as there was no evidence in support; and (4) The order of recounting has been passed simply on the statement of the Returning Officer Dr. U.C. Srivastava and the tabulation chart (paper No. 88 C) 12. In reply Sri Tripathi submitted that the pleadings with regard to irregularity in counting are not at all vague but are sufficiently clear and on the basis of the statement of the court witness the Court has rightly recorded its satisfaction that a prima-facie case of irregularity in counting has been made out and recounting is necessary for doing complete justice. In such circumstances if recounting has been ordered, it causes no prejudice to the petitioner so as to invite interference of this Court in writ jurisdiction. 13. The law with regard to inspection/recounting of votes remains more or less settled without any substantive distinction right from the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC1249 wherein the matter was considered at great length and it was observed that an order for inspection should not be granted as a matter of routine but only under special circumstances and fulfilment of the following two conditions : (i) that the petition for setting aside an election contains adequate statement of the material facts relied in support of the case; and (ii) the court/tribunal is prima-facie satisfied that in order to decide the dispute and to do complete justice inspection of ballot papers is necessary. 14. In Dr. Jagjit Singh v. Giani Kartar Singh and others, AIR 1966 SC 773 , the Court held that the discretion to allow inspection of ballot papers should not be used to make a roving or a fishing inquiry to discover materials for declaring the election void. 15. 14. In Dr. Jagjit Singh v. Giani Kartar Singh and others, AIR 1966 SC 773 , the Court held that the discretion to allow inspection of ballot papers should not be used to make a roving or a fishing inquiry to discover materials for declaring the election void. 15. The above two authorities were followed by the Apex Court in AIR 1970 SC 276 , Jintendra Bahadur Singh v. Krishna Behari and others. 16. In another popular case of Shashi Bhushan v. Prof. Balraj Madhok, AIR 1972 SC 1251 , Hegde (J) speaking for the apex Court observed as follows : “It is true that merely because some one makes bold and comes out with a desperate allegation that by itself should not be a ground to attach value to the allegation made. But at the same time serious allegations cannot be dismissed summarily merely because they do not look probable. Prudence requires a cautious approach in these matters. In all these matters the Courts aim should be to render complete justice between the parties. Further, if the allegations made raise issues of public importance, greater care and circumspection is necessary." 17. In Smt. Sumitra Devi v. Shri Sheo Shanker Prasad Yadav and others, AIR 1973 SC 215 , the Supreme Court held as under : “A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the recounting. It has to be decided in each case whether a prima-facie ground has been made out for ordering an inspection.” 18. In Suresh Prasad Yadav v. Jai Prakash Misra, AIR 1975 SC 376 , while summarising the principles laid down from time to time for granting prayer for inspection of ballot papers it was held that the Court would be justified in ordering a recount, only where : (1) The election petition contains adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of the 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 imperative to decide the dispute and to do complete and effectual justice between the parties. 19. The above principles so enunciated time and again were eventually crystallised in the prominent case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117 and the following conditions were held to be imperative for grant of inspection of ballot papers; (1) It is important to maintain the secrecy of ballot; (2) Allegations made must be clear and specific and must be supported by adequate statements of material facts; (3) The court must be satisfied on the material produced regarding the truth of the allegations made for a recount; (4) The discretion conferred upon the Court should not be exercised so as to make a roving or fishing inquiry to collect material to declare the election void; 20. About two decades ago, the Supreme Court in P.K.K. Samsuddin v. KAM Mappillai Mohindeen, (1989) SCC 526, remarked that “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 principles 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 prima-facie case of a high degree of probability existed for recount of votes being ordered by the Election Tribunal in the interest of justice a Tribunal or Court should not order the recount of votes.” 21. Recently, the Apex Court reiterated the above principles for recount relying upon two prior decisions in Mahendra Pal v. Ram Das Milanger and others, (2002) 3 SCC 457 and a three Judges Bench decision in M. Chinnasomy v. K.C. Palarisomy and others, (2004)6 SCC 331 and held that an order of recounting cannot be made as a matter of course unless the election petition had laid down the foundation and there was clinching evidence to support the case. 22. 22. The relevant factors for directing recounting of votes can thus be summed up as under : (i) Secrecy of ballot papers should be maintained; (ii) Foundation stating material facts about the irregularities in counting must be laid in the plaint itself; (iii) Court must be satisfied on the basis of the evidence adduced in support thereof about the truthfulness of the allegation or the high decree of probability for recording; (iv) roving and fishing inquiry should not be entered into, to collect the material in support of recounting; and (v) recounting is necessary in the ends of justice to do complete justice between the parties. 23. In the instant case, the pleadings of the election petition clearly reveal that apart from the certain irregularities in counting of votes mentioned in paragraphs 5, 6 and 7 of the petition, specific averments have been made in paragraph 8 concerning irregularity in the counting of votes at the various counting tables which materially affected the election result. 23. In the instant case, the pleadings of the election petition clearly reveal that apart from the certain irregularities in counting of votes mentioned in paragraphs 5, 6 and 7 of the petition, specific averments have been made in paragraph 8 concerning irregularity in the counting of votes at the various counting tables which materially affected the election result. The pleadings contained in paragraph 8 of the election petition as amended are reproduced herein below : ß8 ;g fd erx.kuk ds le; erx.kuk LFky ij tks fLFkfr Fkh og bl izdkj Fkh%& ¼d½ ;g fd bl Li"V funsZ’k ds ckotwn fd v/;{k in gsrq eri=ksa dh x.kuk d{kkokj gksxh] izR;sd d{k ds v/;{k in ds er i=ksa dks ysdj ,d esa feyk fn;k x;k vkSj iwjs uxj ikfydk {ks= ds v/;{k in ds er i=ksa dh fefDlax ,d esa dj erx.kuk fd;k x;kA ¼[k½ ;g fd mDr izfØ;k fjVfuaZx vf/kdkjh us euekus rkSj ij viuk;k ftldk fojks/k ;kph o muds vfHkdrkZx.k us fd;k rks fjVfuZx vf/kdkjh us ;g dgk fd os Lo;a jkT; fuokZpu vk;ksx ds funsZ’kkuqlkj erx.kuk djkuk pkgrs Fks ijUrq miftykf/kdkjh egksn; ds funsZ’kkuqlkj ,slh izfØ;k blfy, viukbZ xbZ gS rkfd ;g irk py lds fd fdl d{k esa v/;{k in ds izR;kf’k;ksa ds i{k esa fdruk ernku gqvk gS] tcfd ,slh dksbZ ikfylh ugha FkhA ¼x½ ;g fd tSlk fd ckn esa irk pyk mDr of.kZr izfØ;k iwoZ esa r;’kqnk /kka/kyh djus ds fufeRr cnuh;rho’k viuk;k x;k FkkA ¼?k½ ;g fd erx.kuk ds nkSjku uxj ikfydk xkSjk cjgt dh erisfV;ksa ls dqN ,sls er i= Hkh feys ftl ij izR;k’kh ds :i esa e/kqckyk dk uke Fkk rFkk pquko fpUg irax Fkk] tcfd uxj ikfydk xkSjk cjgt esa v/;{k in gsrq dksbZ izR;k’kh e/kqckyk uked ugha Fkh vkSj u fdlh dk pquko fpUg irax FkkA ¼³½ ;g fd lacaf/kr fuokZpu {ks= ds eri=ksa ds kkfey fd, tkus ls tkfgj gS fd okLrfod eri=ksa esa gsj&Qsj fd;k x;k vkSj cny dj ,sls er i= cnfu;rho’k erx.kuk ds le; kkfey dj fy;s x;s ftlls Li"V gS fd erx.kuk esa dkQh cM+sa iSekus ij /kka/kyh gqbZA ¼p½ ;g fd ,slk dksbZ izi= rS;kj ugha fd;k x;k ftlls Li"V gks lds fd okLro esa fdrus er i= v/;{k in gsrq ernku esa iz;ksx esa yk;s x;s ijUrq tSlkfd fjVfuZx vfèkdkjh us crk;k] 16450 eri=ksa dk iz;ksx fd;k x;kA ¼N½ ;g fd fjVfuZx vf/kdkjh us ;g dFku fd;k fd v/;{k in gsrq 16250 erksa dh gh x.kuk dh x;h rFkk ;g dFku Hkh fd;k fd 265 de er i=ksa dh x.kuk dh x;h vkSj bl /kka/kyh ds fy, mUgksaus vius v/khu erx.kuk dfeZ;ksa dks ftEesnkj Bgjk;kA ¼t½ ;g fd tks fjiksZV fjVfuSZx vf/kdkjh }kjk nh x;h] mlds vuqlkj v/;{k in gsrq 16265 erksa dh x.kuk gqbZ tcfd lnL; in gsrq 16261 erksa dh x.kuk dh x;h] tcfd nksuksa ds erksa esa dksbZ varj ugha vkuk pkfg, FkkA ;gka ;g dFku Hkh vko’;d gS fd d{k la0 19 esa tks eri= iz;ksx esa yk;s x;s mudh okLrfod la[;k 593 gS vkSj la[;k c<+kus ds mn~ns’; ls mls 603 gksuk n’kkZ;k x;k gS bl izdkj lnL; in gsrq okLro esa 16251 er gh gksuk pkfg;s FkkA ¼>½ ;g fd okLrfodrk ;g gS fd u rks v/;{k in gsrq iz;ksx esa yk;s x;s leLr er i=ksa dh x.kuk gqbZ] vkSj u lnL; in gsrq iz;ksx esa yk;s x;s leLr er i=ksa dh x.kuk gqbZ] vkSj dkYifud rkSj ij fjiksZV rS;kj dj yh x;hA ¼V½ ;g fd erx.kuk ds ckn ernku LFky o vkl&ikl v/;{k o lnL; in gsrq iz;ksx esa yk;s x;s vusd er i= QVss gky esa rFkk lkcwr gkyr esa ik;s x;s ftlesa vfèkdrj ;kph ds i{k ds eri= FksA ¼B½ ;g fd mdr er i=ksa dks fjVfuZax vf/kdkjh dks fn[kk x;k rFkk mudh vkokt dks Vsi fd;k x;k vkSj QksVksxzkQh Hkh djk;h x;h ftlesa fjVfuZax vf/kdkjh us pquko ifj.kke ?kksf"kr dj nsus ds dkj.k fdlh dk;Zokgh ds djus ls viuh etcwjh tkfgj fd;k] ;|fi voS/kkfud dk;Zokgh gksuk Lohdkj fd;kA ¼M½ ;g fd mijksDr of.kZr dFkuksa ls Li"V gS fd pquko esa viukbZ xbZ izfdz;k fu"i{k ugha Fkh vkSj kklu o iz’kklu ds ncko esa euekuh izfdz;k viuk;h x;h ftlls pquko ifj.kke lkjoku izHkkfor gqvkA ¼r½ ;g fd ;fn fof/kor er i=ksa dh x.kuk dh x;h gksrh rks ;kph fot;h gksrk vkSj ;fn vc Hkh fu"i{k erx.kuk gks rks ;kph gh fot;h gksxkA ¼Fk½ ;g fd erx.kuk esa u dsoy okLrfod er i=ksa dks b/kj m/kj fd;k x;k cfYd ;kph ds i{k esa gq, erksa dks izfri{khx.k ds erksa esa kkfey dj fy;k x;k rFkk xyrA ¼n½ ;g fd voS/k erksa dks izfri{kh la[;k 1 ds erksa esa kkfey dj erx.kuk dj fy;k x;kA ¼/k½ ;g fd pquko esa Hkz"Vkpkj O;kIr Fkk vkSj Lora= o fu"i{k erx.kuk o pquko ugha gqvkA ¼u½ ;g fd mDr ekgkSy esa euekus *;g fd lkjs gh eri=ksa dk ,d esa feDl dj 50&50 eri=ksa dh xfMM;ka rS;kj dh x;h vkSj izR;sd Vscqy ij pkSfcl&2 xfMM;ka ;kfu 1200&1200 eri=ksa dks x.kuk gsrq fn;k x;k vkSj 50&50 er i=ksa dh xfMM;ka cukus ds ckn tks eri= mUgsa vafre Vscqy ij erx.kuk gsrq fn;k x;k ijUrq tSlk fd pdzokj erx.kuk izi= ls Li"V gS] Vscqy la[;k 1 ij dsoy 803 er ik;s x;s] Vscqy la[;k 4 ij 1261 er i= ik;s x;s] Vscqy la[;k 8 ij 1000 er ik;s x;s rFkk Vscqy la[;k 14 ij 1199 er ik;s x;sA *;g fd mDr vkadM+s ls Li"V gS fd er i=ksa dh x.kuk 50&50 eri=ksa dh xMMh cuk dj Hkh ugh dh x;h vkSj euekus *;g fd Vscqy la[;k 14 esa izfri{kh la[;k 1 ds erksa dks 39 ls 391 dj fn;k x;kA *Added on Amendment 24. The gist of the aforesaid pleadings is that for the purposes of counting of the votes the total votes polled were mixed together after opening the ballot boxes and bundles of 50 each were prepared. A total of 14 tables were put for the counting. Each table was provided with 24 bundles each of 50 ballot papers for counting. Thus, on each total 1200 votes were distributed in bundles of 50 each for counting except for the last table but on actual counting it was found that instead of adopting the above procedure in a clandestine manner on table No. 1 only 803 ballots were distributed; on table No. 4, a total of 1261 ballots were distributed; on table No. 8 only 1000 ballots were distributed and on table No. 14 only 1199 ballots were distributed as against 1200 ballots said to have been given on each table. Thus, it is alleged that there was unfair distribution of ballots for counting which was against the official version of distribution. 25. In this connection, the statement of the Court witness Dr. U.C. Srivastava who was the Returning Officer also is very relevant. The relevant extract of his statement is reproduced herein below : v/;{k in gsrq iMs+ eri=ksa dks igys ,d esa feyk fn;k x;k Fkk eri=ksa dh ipkl&ipkl dh xfMM;ka cuh gq;h Fkh oDls esa ,df=r fd;s x;s Fks igys er i= er isfVdk esa yk;s Fks er isfVdk ls fudky dj ipkl-ipkl dh xfMM;ka cuk dj cDls esa j[ks x;s Fks vafre Vscqy NksM+ dj ks"k Vscqyksa ij eSus cjkcj cjkcj er x.kuk gsrq fn;k Fkk pquko vk;ksx ls gesa funsZ’k iqfLrdk feyh FkhA 26. The aforesaid statement unequivocally establishes and supports the pleadings that all the ballot papers were put together and bundles of 50 each were prepared which were distributed by the Returning Officer himself equally on each counting table for the purposes of counting except the last table. 27. Tabular chart paper No. 88 C prepared by the Returning Officer reveals that the following number of ballot papers were counted on each table which is admittedly not in conformity with the statement of the Returning Officer : Table No. Ballot distributed/counted 1. 805 2. 1200 3. 1200 4. 1261 5. 1200 6. 1200 7. 1200 8. 1000 9. 1200 10. 1200 11. 1200 12. 1200 13. 1200 14. 1199 Total. 16265 28. 805 2. 1200 3. 1200 4. 1261 5. 1200 6. 1200 7. 1200 8. 1000 9. 1200 10. 1200 11. 1200 12. 1200 13. 1200 14. 1199 Total. 16265 28. Thus, in view of the statement of the Returning Officer and the tabular chart on record it is established beyond doubt that atleast on 3 tables i.e., table No.1, 4 and 8, the ballot papers which were counted were neither in multiples of 50 nor they were 1200 in number. The Returning Officer has categorically stated that equal number of ballot papers in bundles of 50 each were distributed on every table except the last table. Therefore, there appears to be no reason for any difference in the number of ballot papers on the above referred three tables which prima-facie gives an impression that there was no even distribution of ballot papers on all the tables as stated by Returning Officer and therefore the counting was not proper and stood materially affected. The submission of the counsel for the appellant is that the counting tables were arranged in a semi-circle and the table which was marked as table number 1 was actually not the first table but the last table. Therefore, on the said table only balance ballot papers which were lesser in number and remained after distribution upon the other 13 tables were given for counting. The submission though attractive to some extent cannot be accepted. The table which was marked as table No. 1 cannot be treated to be the last table. The Returning Officer while undertaking the process of counting being conscious of the sensitiveness of the issue could not have taken a casual attitude in treating the table marked as number 1 to be the last table in the matter of distribution of the ballot papers. Apart from the above, there is no explanation whatsoever for higher or lesser ballot papers being available on tables No. 4 and 8. In view of the aforesaid circumstances I am of the view that the Court below has not committed any error which may be manifest in recording its prima-facie satisfaction that there was material irregularity in counting of the votes which may affect the election result. In view of the aforesaid circumstances I am of the view that the Court below has not committed any error which may be manifest in recording its prima-facie satisfaction that there was material irregularity in counting of the votes which may affect the election result. The irregularity which was detected by the Court below was apparent on the face of the material on record i.e., the statement of the Returning Officer and the tabular chart prepared by him which are the clinching piece of evidence in this regard. This irregularity was clearly and precisely pleaded. Thus, in my opinion the pleadings do contain material facts pertaining to the above irregularity in the counting and the Court was rightly satisfied on the basis of the evidence on record about the probability and truthfulness of such pleadings and in ordering for the recounting of the votes in order to do justice. There is nothing even to demonstrate that recounting would destroy the secrecy of the ballot papers. Therefore the decision of the Court below cannot be faulted with. 29. The other submissions that the order has been passed without deciding about the admissibility in evidence of the compact disc and without summoning the official videography of the counting is of no consequence as the order of recounting by the Court below is not solely based upon any such material especially the compact disc on record. The said CD or the CD of the official videography would have been an additional material to support the irregularity allegedly committed in counting of the votes but it would not dilute the reasoning/finding based upon the other evidence on record. The Court had found that there was sufficient undisputed material on record to support the sufficiently clear and precise pleadings which put together do make out a case for recount. 30. It may also be noted that the petitioner is invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the judgment and order of the Court below. The scope of judicial review or interference in exercise of writ jurisdiction is very limited and the Court does not sit in appeal over the decision of the Court below. The scope of judicial review or interference in exercise of writ jurisdiction is very limited and the Court does not sit in appeal over the decision of the Court below. Besides, the basic principle for exercise of writ jurisdiction is not only the establishment of the legal right but also establishment of the fact that if the order impugned is allowed to stand, the same would result in miscarriage of justice and would prejudice the cause of the petitioner. No such prejudice has been demonstrated in the event the order is allowed to stand and recount is permitted. Therefore, also this Court is not inclined to interfere in the matter particularly when the election petition is yet to be decided. Therefore, it is in the interest of justice that the matter be allowed to be proceeded with and decided finally by the Court below in accordance with law whereupon the parties would be at liberty to take necessary legal action as the occasion would arise. 31. The conduct of the petitioner in invoking the extra ordinary writ jurisdiction of the Court also does not appear to be above board. This is the 5th writ petition in succession apart from the two transfer applications and special appeal filed by him in connection with the pending election petition. All this has considerably delayed the final outcome which is not a healthy sign for democracy. If the purity of election and the process of democracy is to be preserved and saved such litigation ought to be decided at the threshold without waste of any time and by avoiding technicalities. In this view also the petitioner does not deserve any sympathy in equity. 32. Accordingly, in the totality of the circumstances, the Court is not inclined to interfere in the matter and as such the writ petition is dismissed with the above observation. No orders as to costs. ————