SMT RAM RATIversusSAROJ DEVI AND ORS.

A                               SMT RAM RATI
                                      v.
                             SARO.T DEVI AND ORS.

                                   APRIL 25, 1997

B                 (K. RAMASWAMY AND D.P. WADHWA, JJ.]

            Election Law :

            M.P. Panchayat Election Rules 1994 :
c       R. 76-Recount of votes-Panchayat Election-Election of Sar-
  pa11ch-Electio11 petition by defeated candidate alleging elections 11ot to have
  been propelly conducted and recounting was not done 011 his application to
  do so-Tribunal ordered recmmting-Held, the fact that the Officer had not
  passed a11y order in w1iti11g would i11dicate that the election petitioner had not
D made a11y applicati01t-Secrecy of ballot should not be breached-Tribunal
  or Co wt to order recount i11 rare cases 011 satisfactory grounds.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3678 of
    1997.

E         From the Judgment and Order dated 30.10.96 of the Madhya
     Pradesh High Court in W.P. No. 632 of 1995.

            Shiv Sagar Tiwari for the Appellant.

            Prakash Shrivastava for the Respondents.
F
            The following Order of the Court was delivered :

            Leave granted.

            We have heard the counsel on both sides.
G
          This appeal, by special leave, arises from the judgment of the High
     Court of Madhya Pradesh at Jabalpur Bench, passed on October 30, 1996
     in W.P. No. 632/95.

           Elections to the post of Sarpanch of Gram Panchayat, Laua Kothar
H    Bloc~,,.,Raipur Distt. Rewa were held on May 30, 1994. 223 votes were
                                        1050
                       RAM RATI v. SAROJ DEVI                            1051

polled in favour of the appellant while the respondent was polled 207 votes.     A
In Form No. 26-B, Ex. P2, the Returning Officer had declared that the
elections to the office of Sarpanch of the Gram Panchayat were held and
the appellant, Smt. Ram Rati, R/o Village Laua Kothar, Raipur Kur-
chulian, Rewa Distt. M.P., who was a candidate in the said election, was
duly elected. The said certificate of the Returning Officer is dated June 1,
1994. The respondent, feeling aggrieved filed an Election Petition. In the
                                                                                 B
said petition, the respondent stated that the election was not properly
conducted; an application for recounting was made but it was not done;
evidence was adduced in support thereof. The Tribunal directed recount-
ing, which has been affirmed by the High Court. Thus this appeal, by
special leave.                                                                   c
      The· question is' : whether the respondent has made any application
for recounting? The order of the Tribunal indicates thus :

        "According to the aforesaid, after discussing the election applica-
        tion and analysing the submissions of Applicant and Respondent           D
        No. 1, the Vihit Adhikari at the first instance is satisfied with this
        that to decide the dispute properly and administering justice to
        the parties it is essential that recounting be got done. Therefore,
        Returning Officer (Panchayat), Development Division, Raipur
        Kurchuliyan District Rewa is hereby directed that after obtaining        E
        all the documents connected with Gram Panchayat Laua Kothar
        Sarpanch Election 1994 from the strong room in police custody,
        he should present himself in the Court on 1.3.95 at 10.30 AM."

      The question, therefore, is : whether the respondent has made any
application to the returning Officer and recounting was properly done?           F
Rule 76 of the M.P. Panchayat Elections Rules, 1994 (for short, the 'Rules')
postulates thus :

        "76. Recount of Votes - (1) After the completion of the counting,
        the Returning Officer (Panchayat) or such other officers G
        authorised by him shall record in the result sheet in Forms men-
        tioned in Sub-rule (2) of Rule 73 the total number of votes polled
        by each candidate and announce the same.

        (2) After such announcement has been made a candidate or, in
        his absence, his election agent may apply in writing to the Return- H
    ' 1052                SUPREME COURT REPORTS                  [1997] 3 S.C.R.

A            ing Officer (Panchayat) or such other officers authorised by him,
             for a recount of all or any of the ballot papers already counted
             stating the grounds on which he demands such recount.

             (3) On such an application being made the returning officer
             (Panchayat) or such other officers authorised by him shall decide
                                                                                    -
B            the matter and may allow the application in whole or in part or
             may reject it if it appears to him to be frivolous or unreasonable.

             (4) Every decision of the returning officer (Panchayat) or such
             other officers authorised by him, under the Sub-rule (3) shall be
             in writing and contain the reason thereof."
c
         By application of sub-rule (1) of Section 76, after the completion of
  the counting, the Returning Officer (Panchayat) or such other officers
  authorised by him, shall record in the result sheet, in Forms mentioned in
  sub-rule (2) of Rule 73 (Form 26-B), the total number of votes polled by
D each candidates and announce the same. Under sub-rule (2), after such
  announcement has been made, a candidate or in his absence, his election
  agent, may apply in writing to the Returning Officer (Panchayat) or such
  other officers authorised by him, for a recount of all or any of the ballot
  papers already counted, stating the grounds on which he demands such
E recount. Under sub-rule (3), on such application being made, the Return-
  ing Officer (Panchayat) or such other officers authorised by him, shall
  decide the matter and may allow the application in whole or in part or may
   reject it if it appears to him to be frivolous or unreasonable. Under sub-rule
   (4), every decision of the Returning Officer (Panchayat) or such officers
   authorised by him, under the sub-rule (3), shall be in writing and contain
F the reason thereof.
        It is difficult to give acceptance to the contention that the respondent
  made an application to the Returning Officer and the Returning Officer
  had not recounted. In the light of the mandatory language of Rule 76 of
  the Rules, it is incumbent upon a candidate or an agent, if the candidate
G was not present, to make an application in writing and give reasons in
  support thereof, while seeking recounting. If it is not done, then the
  Tribunal or the court is not empowered to direct recounting even after
  adduction of evidence and consideration of the alleged irregularities in the
  counting. The essential condition-precedent is that an application in writing
H should be made and the Returning Officer should pass an order with
                           RAM RATI v. SAROJ DEVI                            1053

    reasons in support thereof either- to recall the order or otherwise, in          A


-   writing. The fact that the officer had not passed any order in writing would
    indicate that the respondent had not made any application. Obviously,
    some subsequent manipulation, as contended by the appellant, would have
    taken place, as a result of which the election petition was filed and the
    arguments were addressed for recounting. It is settled legal position that
    secrecy of ballot should not be breached and as far as possible, the secrecy
                                                                                     B
    of ballot should be maintained. In rare cases, the Tribunal or the court is
    required to order recount, that too on giving satisfactory grounds for
    recounting. In view of the fact that the rule itself provides that, as soon as
    the result of the election is announced, an application in writing must be
    made at the first instance and the fact that no such application has been        c
    placed before us does indicate that rio such application had been made on
    the date of the declaration of the result. The allegation of an application
    having been made, would be an afterthought. The Tribunal therefore, has
    committed manifest error in directing recount.

          The appeal is accordingly allowed and the orders of the Tribunal and       D
    the High Court stand set aside. No costs. We, however, make it clear that
    we have proceeded on the basis of plea of the respondent for recount
    under Rule 76 aforementioned which has been negatived and we have not
    examined the powers of the Tribunal to order recount and the circumstan-
    ces under which it can be so ordered.                                            E
    R.P.                                                         Appeal allowed.