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The Election Tribunal can recount the votes if there is doubt in the declaration of results: SC

Chandeshwar Saw vs. Brij Bhushan Prasad & Ors., Civil Appeal No. 780 of 2020 arising out of SLP( C) No. 22715/2019 – January 28, 2020.

The Bench comprising of Justice A.M. Khanwilkar and Justice Dinesh Maheswari dismissed the appeal.

Facts: the respondent was elected as the Mukhia. The appellant has noted that invalid votes were counted but valid votes were rejected. The respondent was declared elected by a margin of 154 votes. Therefore, this Election case is filed, seeking recounting of votes and electing the appellant elected. The appellant alleged that the swastika symbol pressed in light ink was not counted in favor of the appellant and when the matter was taken to the Returning Officer, he paid no attention. The Election Tribunal evaluated all the evidence and concluded that the result sheet prepared is not proper. In the final order of the Election Tribunal it is declared that the final result for the post is null and void. It is also ordered to the District Magistrate to recount the votes and propose the final order. This order was assailed before the High Court. The High Court stated that there is no illegality much less than any material illegality. The learned judge of the HC passed an order by setting aside the election before the recounting of votes. The recounting was completed and was kept in a sealed envelope. The petitioner has thus made this appeal. During the pendency of this appeal, the election tribunal had passed an order stating the District Magistrate to have the sealed envelope to declare the result. The respondent also challenged the said order.

The Division Bench did not bother to check the ballots but directed for recounting of votes.

Issue:  whether material facts to justify an order of recount of votes has been clearly pleaded and the same have been proved by the appellant/election petitioner in the present case?

Ratio – Ram Rati (Smt) vs. Saroja Devi and Ors   the decision was overruled and instead the Court held that in an election petition, after the declaration of result, the Court or Tribunal can direct recount of votes even if the party had not applied in writing for recounting of votes to the Returning Officer. There is no provision in the Act or in the Rules prohibiting the Court or the Tribunal to direct recounting of votes.

The Court concluded that the Division Bench has interfered with the judgment of the Election Tribunal which directed recounting of votes. It is found that the petitioner has secured 95 excess valid votes more than the respondent. That has reinforced the challenge set up by the appellant that the officials had committed serious irregularities bordering the intentional manipulation of the valid votes secured by the appellant. Therefore, we have no hesitation in upholding the order of recounting the votes as passed by the Tribunal and justly upheld the order of the learned single Judge in the facts of the present case. About directing the District Magistrate to declare the result, it is not inappropriate and will not affect the recount of votes.

Thus, the appeal is allowed. The impugned judgment and order are set aside. The election case filed by the appellant before the Election Tribunal is allowed.

–  Vydurya Selvi Baskaran

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