01.07.2025 Date of ingh Kuldeep Singh Mohit Kumar mar & Others v. CORAM: HON’BLE
Case Details
Page 1 of 36 36 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH CR-2717-2025 (O&M) Reserved on: 27.05.2025 of pronouncement: 01.07.2025 Date of ingh Kuldeep Singh Mohit Kumar mar & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA ...Petitioner(s) ...Respondent(s) Argued by:- Mr.Ashish Aggarwal, Senior Mr. Vikram Singh, Mr. Visha Mr. Saket Bhandari, Mr. De Mr. Ishnoor Singh, Advocat for the petitioner. nior Advocate with ishal Pundir, Mr. ARS Dhillon, r. Devansh Verma and ocates Mr. Sanjay Kaushal, Senior Mr. Arjun Kaushal and Ms. for respondent No.1. nior Advocate with Ms. Pawelpreet Kaur, Advocates NIDHI GUPTA, PTA, J. *** Challenge in the present ent Revision Petition is to the order dated 2 d 22.04.2025 (Annexure P-15), pas passed by the Election Tribunal, Panipat wh whereby the application filed f by the Election petitioner/res respondent No.1 herein, for reco recounting of votes, has been allowed. 2. Briefly stated the facts a ts are that the petitioner and respondent n t no.1 had contested for elect lection of Sarpanch of Gram Panchayat, Bu , Buana Lakhu, District Panipat pat which was conducted on 02.11.2022. The petitioner was declared ed elected. However, upon a recount of vot f votes conducted on 2.11.2022 itse itself, the respondent no.1 was SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document then declared lared elected as Sarpanch on 2 n 2.11.2022. This action was Page 2 of 36 36 (cid:1) challenged by by the petitioner before this Court ourt by way of CWP No.25694 of 2022, which ich was allowed vide order date ated 5.3.2024 (Annexure P-1). However, libe liberty was granted to the respo spondent no.1 to file election petition. In th n the said election petition, the re e respondent no.1 filed instant application se n seeking recount of votes; whi which has been allowed vide impugned ord order. Hence, present revision petit petition. 3. It is inter alia submitted ted by learned Senior Counsel appearing on on behalf of the petitioner that the t the first application filed by the respondent N t No.1 for recounting of votes al already stood dismissed by the Election Tribu ribunal vide order dated 05.07.20 7.2024 (Annexure P8). The said order was nev never challenged by respondent No t No.1. Thus, during pendency of the Election p n petition, there was no cause or o or occasion for respondent No.1 to file a secon cond application for recounting of g of votes. It is contended that if votes are rec recounted time and again, there here would be no end to this process. Mor Moreover, the Election Tribunal had already dismissed the previous appli pplication of the respondent for re r recounting, and therefore, the Tribunal could ould not have gone against its own own order (Annexure P8) in now directing that hat votes be recounted. 4. Learned Senior Counsel s el submits that if the Election Tribunal had ad wanted recount, it ought to to have allowed the Election Petition and t nd then ordered recount. In passin assing the impugned order, the Election Tribu ribunal has exceeded its jurisdict diction. Once having held that SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document recount would ould amount to allowing the Elec Election Petition, then how can recount be ord e ordered now. 5. Ld. Senior Counsel further ther submits that in any event, Page 3 of 36 36 (cid:1) no fruitful pu l purpose will be served in recoun ounting the votes as the ballot already stood ood compromised. It is submitted tted that in election, secrecy of ballot is sacro sacrosanct and inviolable. Howeve ever, in the present case the secrecy of bal f ballot and other election material erials had been compromised. It has not been d en denied by Returning Officer PW PW7 that Ex.PW7/G which is the copy of resul esult of Booth No.69 and deposi posited Form No.15, had been prepared agai again after opening the record and and seal of the sealed covers by Presiding Offic Officer Brijpal PW8. It is submitted t ted that therefore, any recount if even conducte ucted in pursuance to the impugne ugned order would be rendered irrelevant. 6. Learned Senior Counsel s el submits that on 02.11.2022 itself, after h r having declared the petitioner ner as elected, a recount had already been een conducted. It is submitted th d that the said recount dated 2.11.2022 was was ostensibly on the basis of a vid a video created by the Returning Officer Brijpal ijpal on his private phone. It is poin pointed out that the said video has not been een proven in accordance with law law; and although this fact has been recorded rded by the learned Tribunal in th in the impugned order that the said video has has not been proven in accordance ance with law and even the pen drive in which hich it has been presented is unreli reliable, yet a recount has been ordered. It is a t is argued that when the very basis basis fundamental to the dispute SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document at hand - whic which is the video/pen drive in the p the present case – has been held Page 4 of 36 36 (cid:1) to be not pro proven in accordance with law, the , then the very basis of not just the recount b nt but also the Election Petition ition is demolished. Ld. Senior Counsel argue rgues that therefore, even the in e initial recount conducted on 2 02.11.2022 itself it is shoddy; and the p e present recount is utterly unnecessary. ry. In support of his contentions, le s, learned Senior Counsel relies upon judgmen ment of the Hon’ble Supreme Cou Court in “Udey Chand Vs. Surat Singh & Anot nother” (2009) 10 SCC 170; Law F w Finder Doc ID # 204039. It is accordingly p ly prayed that the present peti petition be allowed, and the impugned ord order be set aside. 7. Per contra, learned Senior
Legal Reasoning
nior Counsel appearing on behalf of respondent dent No.1 submits that vide order der dated 05.03.2024 (Annexure P1), the respo spondent No.1 had duly been give given liberty by this Court to file Election Petiti etition. Accordingly, respondent No t No.1 had filed Election Petition soon thereafte eafter on dated 16.03.2024 itself. It lf. It is submitted that in the said Election Petitio etition, an objection was received ed from the petitioner that same had not been been filed in time. The said objec bjection of the petitioner was dismissed by by the learned Tribunal; wher hereupon the petitioner had approached th d this Court by way of Civil Writ Writ Petition No.2825 of 2024, which was al s also dismissed by this Court vid t vide order dated 30.07.2024; whereupon th n the petitioner had approached ed the Hon’ble Supreme Court vide SLP (C) N C) No.25303 of 2024, which was al as also dismissed by the learned SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Apex Court vid t vide order dated 08.11.2024 categ categorically holding therein that Page 5 of 36 36 (cid:1) “The Election P ion Petition is clearly within the limit limitation period.”. 8. Ld. Senior Counsel for resp respondent No.1 further submits that the initia nitial application filed by responde ndent No.1 before the Election Tribunal for for interim recount had been d n dismissed vide order dated 05.07.2024 (A 4 (Annexure P8) on the ground th d that at that stage, the matter was still at t at the stage of examination-in- -chief of the witnesses; and therefore, it w it was held that interim recount unt was not called for. Learned Senior Counse unsel contends that in contrast, at t, at the present juncture, while ordering recou ecount vide the impugned order, th r, the learned Tribunal was fully apprised of th of the entire dispute. The entire e ire evidence had been led and concluded; fin findings on all the issues were d re duly returned by the learned Tribunal; wher hereupon a positive finding was g as given by the learned Tribunal that for the the resolution of the dispute at at hand, and for the proper adjudication o on of the matter, it was necessary ary to conduct recount. Learned Senior Counse unsel argues that after having co g considered the matter in its entirety the he learned Tribunal had satisfied fied itself that for the proper adjudication o on of the matter, it was necessary to ry to conduct the recount; and it is for this we well thought-out and considered ered reason that recount was directed. It is t is contended that therefore, there here is no error in the impugned order and th the present petition is misconc conceived and deserves to be dismissed. In In support, learned Senior Couns unsel relies upon judgments of this Court in in Radha Kishan v. Election Tribu Tribunal-cum-Sub-Judge, HIssar, SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document (P&H)(FB) : L : Law Finder Doc Id # 26219 19; and Sandeep Vs. Election Tribunal, Karn Karnal and Others (P&H): Law Finde inder Doc ID # 882838. 9. In rebuttal, learned Senio enior Counsel for the petitioner Page 6 of 36 36 (cid:1) submits that it at it is incorrect for learned Senior ior Counsel for respondent No.1 to suggest tha t that the matter had been finally ally considered by the Election Tribunal and th nd that findings in respect of all issu issues had been returned by the learned Tribun ribunal. It is submitted that no fin finding in respect of the most important and and crucial issue has been returne rned by the learned Tribunal. In fact, even the the evidence in the present case ha e has not yet been concluded as vide the prese resent/second application (Annexu nexure P12) filed by respondent No.1 for recou ecount of votes, a second prayer to er to the effect that respondent No.1 be perm permitted to summon witness No s No.9 for leading evidence in rebuttal, had had also been made by responden dent No.1. It is submitted that therefore, afte after having dismissed the first app t application of respondent No.1 for recount, t t, the second application of respo espondent No.1 also for interim recounting cou g could not have been allowed by th y the learned Tribunal. 10. 11. No other argument is raise aised on behalf of the parties. I have heard learned Senio enior counsel for the parties and given my thou thoughtful consideration to the riv e rival submissions advanced on behalf of both both the parties. I find no merit i rit in the submissions made on behalf of the r he respondent No.1 for the reasons sons recorded hereinbelow: - 12. Dispute in the present cas case pertains to the election of Sarpanch of G of Gram Panchayat, Buana Lakhu, khu, District Panipat which was SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document conducted on on 02.11.2022. There were total 6 tal 6 Booths being Booth No.65 Page 7 of 36 36 (cid:1) to 70. Seven ven candidates had participated in d in the election, including the petitioner and and contesting candidate - respo espondent no.1. The petitioner received highe ighest number of votes being 111 1117 votes out of 3767 votes polled. Where hereas respondent No.1 had recei eceived 804 votes out of 3767 votes. The pe petitioner having won by margin rgin of 313 votes was declared elected; and F nd Form 19 (Result of Election) and and Form No.21-B (Declaration) were issued in ed in favour of the petitioner. The r he result was duly signed by the Returning Offi Officer Brijpal/ respondent No.7. N .7. No application was given by the responde ndent No.1 to the Returning Off Officer under Rule 69 of the Haryana Panc anchayati Raj Election Rules, 1964 1964 (hereinafter referred to as “1964 Rules”) les”) for recounting of votes on da n day of polling. Accordingly, all poll material in ial including the result, EVM, etc. wa c. was sealed under Rules 56 and 57 of the Rule Rules. Thereafter, the petitioner ha r had gone home. All the above had transpired ired on 02.11.2022 itself. 13. However, in the evening o ing of 02.11.2022 supporters of respondent N t No.1 had gathered at the pollin olling Booth No.69 and created ruckus and law d law and order situation. The Depu eputy Superintendent of Police, Panipat was i as informed, and Police Force wa was called. Subsequently, the Election Staff Staff of Booth No.69 along with with respondent no.1 and his supporters, we , were taken in a Bus to Control Ro l Room with the Election Record and EVM, etc. etc. It is the case of the petitioner ner that at this stage, the father of the respond pondent No.1 and his supporters w rs who had also gone in the Bus SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document to the Control trol Room, had tampered with the r the record. In the late evening of 02.11.2022, th 2, the petitioner was informed by d by the Returning Officer that Page 8 of 36 36 (cid:1) recounting is g is to be done; for which the p e petitioner was called to the Control Room oom (SD School). When the peti petitioner reached the Control Room, he was was told that he had lost the electio ection; and Forms No.19 and 21- B had now be been issued to the respondent N nt No.1 who has been declared elected as Sarp Sarpanch. 14. The petitioner made a r a representation to the Chief Electoral Offic fficer, Haryana State Election Com Commission, however, no action was taken. 15. The petitioner had then ap n approached this Court by way of Civil Writ P rit Petition No.25694 of 2022 seeki eeking issuance of a Writ in the nature of Cert Certiorari for setting aside the Elect lection Certificate Form No.21-B dated 02.11.2 .11.2022 issued in favour of resp respondent No.1 by Returning Officer/respon spondent No.7 after having declare clared the petitioner as elected Sarpanch of G of Gram Panchayat, Buana Lakhu a hu and after issuance of Forms No.19 and 21 21-B in favour of the petitioner. ner. The said Writ Petition was allowed by a D y a Division Bench of this Court vide vide judgment dated 05.03.2024 (Annexure P1) P1), as follows:-
Decision
“22. In view of the above, the inst e instant writ petition is allowed. It is held that after the petitioner w ner was duly declared elected as Sarpanch of Gram Panchayat Bua t Buana Lakhu and Form 19 and Form 21-B stood issued in favo favour of the petitioner, then subsequent to declaration of such such result, the respondent No. 4 did not have the jurisdiction to on to alter or change or correct SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 9 of 36 36 (cid:1) the so-called mistake in Form 19 19 and Form 21-B in favour of respondent No. 5. Consequently, ntly, the action of the concerned authority to declare responden ndent No. 5-Mohit Kumar as elected Sarpanch by issuing a revi revised/fresh Form 19 and Form 21-B, in his name, subsequent uent to declaring petitioner as elected Sarpanch of village Buan Buana Lakhu upon issuance of Form 19 and Form 21-B, in the na e name of petitioner; is declared illegal and accordingly the Electio lection Certificate Form No. 21-B dated 02.11.2022 (Annexure P-3) 3), issued to respondent No. 5 (Mohit Kumar) is set aside. Resp Respondent No. 4 is directed to notify the name of the petitioner ioner as an elected Sarpanch of Gram Panchayat Village Buana Lakhu and respondent No. 4 is directed to ensure that the petitio etitioner is administered oath of office of the post of Sarpanch wit within a period of 15 days from the date of presentation of copy o py of this order. However, liberty is given to respon espondent No. 5 to challenge the election of the petitioner by filing filing an election petition under Section 176 of Haryana Panchay chayati Raj Act, 1994 and it is hoped that the petition filed by d by respondent No. 5 will be disposed of by the Election Tribu Tribunal as early as possible but latest within 3 months after the s he service of notice.” 16. In face of the above said l aid liberty granted by this Court, respondent No t No.1 filed instant Election Petition tition along with the first interim application fo n for recounting dated 16.03.202 .2024 (Annexure P2) with the following pray prayer:- “It is, therefore, prayed that th t the petitioner may kindly be declared as winning candidate f ate for the post of Sarpanch of Gram Panchayat Buana Lakha Te ha Tehsil & Block Israna District Panipat and it is further prayed th ed that the certificate of winning SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 10 of 36 36 (cid:1) candidate issued by the Returning rning Officer/ Election Officer i.e. respondents no.7 8 may kindly s dly set-aside, which is obtained fraudulently in by the respond fra ondent no.1 in collusion with respondents no.7& 8, in the inter interest of justice may kindly be passed. It is therefore, further pra r prayed that the original record of election for the post of Sar Sarpanch of Gram Panchayat Buana Lakhu i.e. voting Machine chine, voter list, voter tick mark record may kindly summoned ned and votes may kindly be recounted for deciding the prese resent petition on merit, in the interest of justice.” (Emphasis added) 17. The petitioner had filed filed written statement dated 16.05.2024 (A 4 (Annexure P4) to the Election Peti Petition. The petitioner also filed reply dated 1 d 16.05.2024 (Annexure P5) to th o the application of respondent No.1 for reco recounting of votes. Following issu issues were framed by learned Court below v w vide order dated 16.05.2024; and ; and additional issue No.2A was framed on 05. 05.07.2024:- "1. Whether petitioner is entitled titled to declaration, as prayed for? OPP fo 2. Whether the petition of the pe e petitioner is not maintainable in its present form? OPR 2A. Whether the election docume cuments and EVMs were forged and tampered with after de declaration of result? OPR (Respondent no.1) 3. Whether the petition of petition titioner is time barred? OPR 4. Whether petitioner has concea ncealed true and material facts and have not come to the Court w urt with clean hands? OPR 5. Whether the petitioner has no as no cause of action and locus OPR standi to file the present suit? OPR SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document 6. Whether plaintiff is estopped by ed by his own act and conduct to Page 11 of 36 36 (cid:1) file this petition? OPR fil 7. Relief." 18. As pointed out above, alon along with the Election Petition respondent N t No.1 also filed the first interim erim application for recounting, dated 16.03.2 .03.2024. Vide order dated 05.07 5.07.2024 (Annexure P8), the learned Electio ection Tribunal had dismissed the a he application of the respondent No.1 seeking r ing recounting of votes. 19. However, despite the abov bove dismissal, during pendency of the Electio ection Petition respondent No.1 o.1 again filed present/second application da n dated ‘Nil’ (Annexure P-12) once a nce again, praying for recounting of the votes. es. The petitioner filed reply dated ated ‘Nil’ (Annexure P13) to the said applicatio cation Vide the impugned order dat r dated 22.04.2025 (Annexure P- 15), the said a id application of the respondent No t No.1 has been allowed. 20. The impugned order is uns unsustainable on account of the fact that it is is undisputed that a recount had had taken place on the date of election itself, self, that is 2.11.2022, whereupon pon the result of the petitioner who had alre already been declared elected w ed was reversed, and instead, respondent no t no.1 was declared elected. There ereafter, in the present election petition, the the prayer of the Election petit petitioner/respondent no.1 for recounting of g of votes vide first interim applic pplication dated 16.3.2024, was rejected by th y the Tribunal vide order dated 5.7 5.7.2024 (Annexure P-8) in the following term terms: - SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 12 of 36 36 (cid:1) tition “Perusal of election petition filed by the present applicant/petitioner shows that in hat in the relief clause alongwith relief of declaring him as winnin inning candidate, petitioner has also sought the further relief o lief of summoning the original record of election for the po post of Sarpanch of Gram Panchayat Buana Lakhu i.e. votin voting machine, voter list, voter tick mark and prayed for recount ounting of votes for deciding the present petition on merit. By way of present application al n also, the petitioner is seeking relief of recounting the votes. G es. Giving this relief, by way of present application, would amoun mount to allowing the final relief as sought by present petitioner ner in the petition which could not be done at this stage. Moreover, in Uday Chand and Vs Surat Singh and another 2009(10) SCC, following wing has been held by Hon'ble Supreme Court which is relevant ant for deciding this application "it would be trite to state that bef t before an Election Tribunal can permit scrutiny of ballot papers a ers and order re-count, two basic requirements viz. (I) the election tion petition seeking re-count of the ballot papers must contain an in an adequate statement of all the material facts on which the a the allegations of irregularity or illegality in counting are founde unded, an (ii) on the basis of evidence adduced in support of t t of the allegations, the Tribunal must be prima facie satisfied th ed that in order to decide the dispute and to do complete and e nd effectual justice between the parties, making of such an orde order is imperatively necessary, are satisfied'. So for ordering recounting of vote f votes, the Court must be prima facie satisfied on the basis of fa is of evidence that there are requirement of re- counting o g of votes for complete and effectual justice between the part parties. SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 13 of 36 36 (cid:1) The present petition is at st stage of evidence and only examination-in-chief of witness h ss had been done so, this is not a stage where recounting of of votes could be ordered. Moreover, as discussed above, ove, it is also main relief of petitioner to recount votes theref herefore, this relief could not be given to the petitioner at this stag s stage for the reasons discussed above. Therefore, this applicatio cation of recounting of votes is dismissed.” 21. Thereafter, matter was fix s fixed for rebuttal evidence on 2.12.2024; w ; whereupon present/2nd appl application for recount and summoning o g of polling officer in rebuttal e tal evidence, was filed by the respondent n t no.1 on dated 2.12.2024 (Anne Annexure P-12). Therefore, the present applic pplication for recount is not mainta aintainable, being barred by res judicata. 22. Further, the impugned dire direction for recount is liable to be set aside de being patently illegal being with without jurisdiction. In ordering the re-countin nting of votes the Ld. Tribunal has t has transgressed it jurisdiction as enshrined in in Section 176 of the Haryana ana Panchayati Raj Act, 1994 (hereinafter re er referred to as "the Act") where reby no such power is vested in the Ld. Court urt below. Relevant extract of Sect Section 176 (4) (b) of the Act of 1994 is reprod produced herein under: "(4)(b) If, in any case to which hich [clause (a) or clause (aa)] [Substituted by Haryana Act No. No. 17 of 2001 w.e.f. 1.5.2000.] does not apply, the validity of y of an election is in dispute between two or more candidat idates, the court shall after a scrutiny and computation of the the votes recorded in favour of SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 14 of 36 36 (cid:1) each candidate, declare the cand candidate who is found to have the largest number of valid votes votes in his favour, to have been duly elected : Provided that after such computa putation, if any, equality of votes is found to exist between any ca y candidate and the addition of one vote will entitle any of the the candidates to be declared elected, one additional vote sh e shall be added to the total number of valid votes found to d to have been received in the favour of such candidate or cand fa candidates, as the case may be, elected by lot drawn in the pre presence of the judge in such manner as he may determine." 23. Thus, as per the above pro provision, the learned Tribunal can merely, up upon scrutiny and computation o on of votes recorded in favour of each candidat idate, declare the candidate having ving the largest number of valid votes as elect lected. As per the statutory provisi ovisions, Ld. Court is required to scrutinize the the result, and declare the result; ; whereas in the instant case a direction has b has been cast upon the Deputy Com Commissioner/ Election Officer, Panipat to g o get the recounting of votes tes in booth no.69 under his supervision on n on 07.05.2025 which is per se se illegal since no such power vests in the L he Ld. Tribunal. It is clear from a bare reading of the above provision, that that the Tribunal is only vested with with the power of scrutinization and computat utation of the result; and could not not have directed any authority to recount the t the votes especially since the Ld. Ld. Tribunal is also required to adjudicate up upon the questions of the valid alidity of votes. Moreover, the entire election ction record has been summoned ned and is available before the Ld. Tribunal al to make such scrutinization upo upon leading of such evidence. SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 15 of 36 36 (cid:1) However, the the Ld. Court has breached the stat statutory mandate while passing the impugned ned order. 24. Learned Senior Counsel fo el for respondent No.1 has been unable to app apprise this Court as to under wh which provision of law can the respondent No t No.1 keep seeking recounting or e or even seek first recount of the ballot; or und under what provision of law can su n such a direction be issued for recount of the f the ballot. It has been argued by d by learned Senior Counsel for respondent N t No.1 that recount has been dire directed only after the learned Tribunal had s ad satisfied itself that for the prope roper adjudication of the matter, recount was n as necessary. It has been argued by by learned Senior Counsel for respondent N t No.1 that the entire evidence nce stands concluded and that issue-wise find findings have already been given b en by learned Tribunal and trial stands conclud cluded; whereupon, it was found b nd by the learned Tribunal upon examination o on of the entire leading and mater aterial and evidence of the case that recount w nt was necessary for the proper adj adjudication of the matter. 25. However, the said argum rgument is misconceived, and contrary to th o the record as vide the present ent application (Annexure P12), prayer had bee - been made by respondent No.1:- “Application for permission for su for summoning the witness no.9 (diet money of the said witness al ss already deposited) in rebuttal evidence as per order of the Hon Hon'ble Court dated 05.07.2024 passed by the predecessor court S urt Sh. Prateek Jain ld. ACJ (S.D.) Panipat, which is kept pending ding by this Hon'ble Court and further permission to recount the fu the votes from brining record by witness no.9 as per list already su dy submitted in court from EVM SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Machine and Ballet Unit machi achine for proper decision on merits of the case.” 26. The above prayer makes akes clear that trial is not yet Page 16 of 36 36 (cid:1) concluded, in , in fact, even evidence is not not yet concluded. Admittedly, findings on th n the most crucial Issue no.1 have have not been given by the ld. Tribunal. As As such, above contention of the the learned Senior Counsel for respondent no t no.1, is rejected. 27. Further, in the impugned ned order the learned Tribunal has held that hat recount is necessary for decisio cision on issue No.1; and that a ‘Prima Facie’ c ie’ case has been made out for rec r recount. The said ‘prima facie’ case adverted ed to by the ld. Tribunal is stated d to be made out on the basis of oral statem tements/testimonies of PW7 Pankaj nkaj Patidar (Assistant Returning Officer), and P nd PW8 Brij Pal (Presiding Officer, cer, Booth No.69). However, the record would uld reveal that the above-cited ost ostensible ground for directing recount of vot f votes, does not stand scrutiny. 28. Before proceeding, it may ay first be pointed out that the entire genus us of the present dispute stems fro s from a video privately created and shot by by Presiding Officer, Brijpal (PW8 W8) from his personal private mobile phone one in which certain irregularities w ies were allegedly recorded. The entire basis fo is for challenging the election of of the petitioner is this video privately mad made by Presiding Officer, Brijpa rijpal (PW8) from his personal mobile. It was was stated by PW8 Brij Pal/ Presidin siding Officer, Booth no.69 in his evidence/state statement (Annexure P-11) before ore the learned Tribunal that at the time of pr f preparing the manual record, na , names of candidates were not SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document written as per per the ballot number and had bee been interchanged, and that he had realised th ed this mistake on checking the vide video. First and foremost, as per Page 17 of 36 36 (cid:1) Election Rules ules/Handbook no mobile phone ne is allowed in the booth and there is comp mplete ban on videography. In the the impugned order (Annexure P-15/at page age 213 of the paper book), the the learned Tribunal has duly referred to th o the statements of RW3 and RW RW4/ Election Agents of the petitioner, to t to the effect that in compliance of e of the said rule, no mobile was allowed. How owever, in flagrant violation of th f the above said Rule, PW8 Brij Pal/ Presiding ding Officer, Booth no.69 in his sta statement (Annexure P-11) has admitted to m making a video. More importantly antly, PW8 has admitted that the video of 02.11 2.11.2022, was not deposited in El in Election Revival/Control Room despite the f he fact that there was no orde rder of the Returning Officer permitting PW PW8 to keep the said video with h ith himself; and that the mobile phone/pen dr n drive were a private document. PW8 has further stated in his evidence (Ann (Annexure P-11), that he had not bro t brought the said mobile phone on which the the alleged video was shot, and that that he had further sold the said mobile in 2023 2023. PW7 Pankaj Patidar (RO) in his n his statement (Annexure P-10), has also admi dmitted the above facts. PW7 has has admitted that the video in question was as not given to anyone from Novem ovember 2022 to 2024-25. From the above fact facts, it would appear that the auth authenticity of the video sought to be relied u d upon by the election petitioner ner in seeking recount of votes, which is the ve e very foundation of the dispute at e at hand, is not established. SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document 29. Despite the above facts, t ts, the said video recording was Page 18 of 36 36 (cid:1) sought to be be produced before the learned T ed Tribunal by way of pen drive (Ex.PW8/A). However, keeping the above fa ve factors in mind the learned Tribunal, in th n the impugned order, has categor egorically recorded that the said video (pen dri n drive) (Ex.PW8/A) was inadmissib issible in evidence, as it had not been proved i ed in accordance with law. In this r his regard, a positive finding has been given by n by the learned Election Tribunal nal in Para 43 of the impugned order that: - “43. In the present cas case, petitioner has pleaded material fact stating irreg irregularity in the counting of votes. It is the case of pet f petitioner that initially Brijpal, Presiding Officer of Booth oth No.69, has committed error while recording the votes f tes from EVM to the Form 19 in as much as the votes polled polled in favour of petitioner has been recorded in the name ame of respondent no.1 and the votes polled in favour of r of respondent no.1 have been recorded in favour of Maha ahavir. Petitioner has examined Brijpal as PW8 and Pankaj nkaj Patidar as PW to show the alleged irregularity.No dou doubt, the pen-drive Ex.PW8/A containing the alleged vide video recording of counting has not been, proved as p s per law and is therefore inadmissible in law, but but the oral testimony of PW7 Pankaj and PW8 Brijpal i pal is sufficient to make out a prima-facie case in favour o our of petitioner. Without doubt, the stand of Petitioner had had taken a slight change from his pleadings to the extent tent that act of initial recording of votes by PW8 Brijpal ha al has been termed as 'mistake', though in the petition, th n, the act has been termed as SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 19 of 36 36 (cid:1) illegal and the result of hija f hijacking of electoral process by respondent no.1. In the con considered opinion of the court, the material fact was wron rong recording of votes and not the reason for the same. ame. The argument that PW7 Pankaj and PW8 Brijpa rijpal were in collusion with petitioner is not sustainable nable as in that case respondent no.1 would not have bee been declared winner initially. Therefore, I have no h o hesitation in holding that petitioner has made out a ut a prima facie case for recount of votes in booth no.69. I a 9. I am prima facie satisfied that order for recount of votes otes is imperatively necessary to decide the dispute and to d to do complete justice between the parties. 44. In view of the above di ve discussion and on the basis of my findings issue no.2 to to 6, Respondent No.8 Deputy Commissioner/ Election Of Officer, Panipat is directed to get the recounting of votes votes in booth no.69 for the post of Sarpanch of Gram Panc Panchayat Village Buana Lakhu under his supervision on 0 on 07.05.2025. It is made clear here that the candidates w es would be entitled to take one representative along with with them. The Worthy DC, Panipat is directed to notif notify the candidates about the time and place of recou recounting. The recounting be videographed. Report c t containing the result of recounting in booth no.69 i .69 is awaited for 09.05.2025 for decision on issue no.1. Cop . Copy of this order be sent to Worthy Deputy Commissio issioner, Panipat for requisite action as per law.” (emphasis added) SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document 30. The entire case of Re Respondent No. 1 (Election Page 20 of 36 36 (cid:1) Petitioner) is ) is that the alleged error in prepa reparation of the election result was discovere vered after checking the videograp raphy whereas the videography has been done done on a personal level in the mob mobile phone and the sanctity of the same is qu is questionable. Thus, the very initi initiation of the case pleaded by Respondent N nt No. 1 is apparently false renderin ering the entire version as false. 31. As regards the oral testim stimony of PW7 and PW8 which the learned Tr d Tribunal has opined to be sufficie ficient to make out a prima facie case for reco recount, the same is also liable ble to be rejected. Firstly, the impugned ord order reveals that no reasons have ave been assigned as to why, on what basis, or s, or even on basis of which statem atement(s), a case for recount is made out. Not Nothing has been pinpointed as to s to on basis of which statement of which witne itness recount was necessitated. Th The impugned order therefore indicates total otal non-application of mind. 32. To the contrary, a perusal usal of the depositions of PW7 and PW8 whe when scrutinized wholistically reve reveal that the same are riddled with material rial discrepancies that would in no n no manner justify recounting. These discrep crepancies have been overlooked ked and ignored. The relevant extract of dep deposition PW 7 Pankaj (Annexure P ure P-10), is as follows: "Question: Whether any agent or nt or candidate gave any written application for recounting after after the result which you had prepared vide Ex PW 7/ E Form No m No. 19? Answer: I was not given an any written application for recounting. However, as soon as n as I reached SD Vidya Mandir the presiding officer of booth n th no. 69 Sh Brij pal ji gave a SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 21 of 36 36 (cid:1) written application in which he a he appraised regarding mistake in performa no. 19. Question:Whether is correct tha that on non receipt of written application or objection on Ex Pw x Pw 7 / E you had handed over certificate on form no. 21 - B afte after declaring Sh Kuldeep Singh as winning Sarpanch on booth n th no. 65 itself under signature and in your handwriting? Answer: In the village at the pool pooling booth I had not received any written application or compla mplaint therefore after compiling form no. 19 and after agreeing w fo ing with other PO I had declared Kuldeep Singh Ji as winner in perfo performa no. 21 - B. Question: Whether it is correct rrect that after declaration of Sarpanch and after issuance of E of Ex PW7/E, all election record and EVM were packed in diffe different different packets and sealed by the all the PO? Answer: Yes it is correct that Ballo Ballot unit and Control Unit and all documents as per the rules of s of the election were deposited in election office, all the records w rds were sealed in the village." 33. A perusal of the above fa e falsifies the entire version of events as set set out by respondent no.1. In fact fact, PW 7 had further deposed that "In view o iew of the ruckus (hungama) Brijpal ijpal PO Booth No. 69 had taken this decision h ion himself" with respect to check hecking of the result. However, once the elec election process is over and result sult is declared and documents are placed in s in sealed covers, there was no occa occasion for any such mistake to have been ‘dis discovered’ in the first place, muc much less correct it. PW 8 Brijpal had deposed sed regarding the sealing of the the election documents at the polling booth oth itself, therefore the result of of the election could not have SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document been changed ged, or mistake could not have bee been discovered except without Page 22 of 36 36 (cid:1) opening the s he seals which cannot be done. In In case the election documents were sealed o ed on the polling booth itself, how ow was the mistake discovered; and how could ould such ‘mistake’ in Form No. 19 . 19 and 15 have been corrected without open pening the election documents in s in the sealed cover - thereby destroying th the sacrosanct seal of the ele election documents. It would therefore app appear that election record was was tampered with or placed without sealin ealing and subsequently changed r ed rendering the entire process invalid. A vital vital response of PW8 to this effect i ect is as follows: "Q. Whether Ex.PW7/G has b s been prepared again after opening the record and seal of sea f sealed covers? Ans: This I do not remember." 34. Moreover, the entire case ase of the Election Petitioner is that ruckus w s was caused in the village itself d elf demanding change of result whereas it ha t has been stated that the demand and for change was made after coming to SD SD Vidya Mandir Control Room. m. Furthermore, PW 7 on being shown the P e PO Diary and election record cords had stated that "Those documents tha s that have been shown to me in t in the PO Diary written by me along with atta attached documents are not availa vailable". Hence, material lapses and gaps exist xist in the entire story which go to t to the root of the validity of the votes itself. Bu f. But these aspects have not been c en considered. 35. Further, the material co l contradictions between the testimonies of es of PW 7 and PW 8 could not have have been overlooked especially since PW 7 h 7 had stated that he had not t seen the video of counting; SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document whereas PW PW 8 has deposed that such vide video was sent to PW 7. The Page 23 of 36 36 (cid:1) relevant extra xtract of deposition of PW8 is repro produced herein under: “Q. Whether alleged video of B of Booth No.69 was shown to Pankaj Patidar who was the Incha Incharge of Booth No.65? Ans: Yes. Because in the Control trol Room entire Israna Block of Panipat RO Sugar Mill M.D. whos whose name I do not remember were given oral orders to all the ll the Presiding Officers that all send their video to Presiding Off g Officer of Booth No.65 Pankaj Patidar then we send this video video to him. It is wrong that Pankaj Patidar has seen and chec check your video it is also wrong that Pankaj Patidar told you abo u about your alleged error. It is also wrong that you in conni onnivance with Mohit himself without any evidence prepared fa ed false Form Ex.PW7/G and by taking Pankaj Patidar in faith by w by wrong manner got prepared Ex.PW7/F from him and it is also also wrong that Kuldeep Singh got 254 vote at Booth No.69 and and Mohit got only 7 votes. It is also wrong that certificate Ex.PW x.PW7/J has been given to Mohit on the basis of wrong record by pr by preparing it falsely." 36. The many discrepancie ncies in the contradictory statements ma made by PW7 and PW8 may be en enumerated in tabular form as Pg PW8 W8 Brijpal (RO Booth No.69) follows: - Pg PW7 P 7 Pankaj Patidar O) (ARO) jection to mode of Object of, photocopies of proof, cuments exhibited docum to be decided at – to b e of arguments time of 126 No a recoun the tim applica application for ounting given at time of counting, plication given to Application for Recoun 145 counting No objection was o written eceived from Mohit at the time receiv f counting of co SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 24 of 36 36 (cid:1) 8 after reaching Vidya Mandir cision for ounting was taken PW8 PW8 a SD Vidy 130 Decisio recoun B Brijpal by self himsel instructions in recoun ounting en given for were 136 No ocuments Sealing of Election Docu 146 Mate aterial was sealed in the village self itself llot and Unit Ballot ntrol Unit and all Contro were cuments docum led in village sealed or to depositing Prior in docum SD cuments Mandir, ya Vidya found stake was mistake corrected d and cument were docum posited deposi aled Sealed re not opened were n documents 146 o not remember whether Form Do n No.15 o.15 and 19 were put in sealed over cover 147 149 No o o order was given to check video ideography Q. Whether Form No.15 and “Q. orm No.19 were put in envelop Form y putting them in sealed cover? by pu ns: This I do not remember.” Ans: T Q. Whether Ex.PW7/G has been “Q. W prepa repared again after opening the ecord and seal of sealed covers? recor Ans: T ns: This I do not remember.” Q. Whether on reaching the “Q. have ontrol Contr comp ompared the alleged Video with he EVM Control Room? the E ns: No” Ans: N Room you Some p me persons got on in the the bus of polling icials to SD Vidya official ndir Mandir Videog checke eography was not ecked PW7 and Others Videography checking by PW7 nly oral orders for recording Only ideography video ideography was shown to PW7 Video 143 147 127 129 130 129 136 SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document 37. A bare perusal of the ab e above reveals that there are Page 25 of 36 36 (cid:1) numerous ma material discrepancies in the test testimonies of PW 7 and PW 8. Yet, the said said statements have been made ade the basis for the order of recounting. 38. Furthermore, as already dy mentioned above, the very basis for the the recount, which is the video deo produced by PW8, is not sacrosanct. Ho t. However, learned Tribunal has fa as failed to properly appreciate this aspect of t of the matter. Authenticity of th of the pen drive containing the alleged video ideo (Ex.PW8/A) placed on record cord by Brijpal, has not been established. . It is pertinent to mention that th t the Issue no. 2A regarding the validity of vo f votes has not been thoroughly hly examined and, in case, the election docum ocuments itself were tampered with with, there could not have been any order for for recounting of the votes. In th n this regard, the finding of the learned Tribun ibunal in respect of relevant Issue n ue no.2A (at pages 219 and 220 of the paper r book), makes interesting read eading. In respect of the Issue no.2A “Wheth hether the election documents an ts and EVMs were forged and tampered with with after declaration of result? O lt? OPR (Respondent no.1)”, the learned Tribun ibunal has held that “No doubt, peti , petitioner Mohit has deposed in his cross-exam examination that he along with h ith his father had gone to the Control Room om in the bus. However, the fact th ct that petitioner and his father had went into into the bus meant for transporting rting the officials to the Control Room does no s not by itself prove that the EVM EVM were tampered with.” The learned Tribun ibunal has failed to appreciate that hat the entire controversy in the SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document instant case re se rests upon the discovery of the the alleged error in the election Page 26 of 36 36 (cid:1) result which i ich is alleged to have been found und suo moto by the Presiding Officer of Boo Booth No. 69 in the absence of an f any application for recounting. The testimony ony of PW 7 and PW 8 clearly show shows that some election record was not seale ealed on the polling booths and br d brought loosely to the control room because ause of which possibility of tamperin ering cannot be ruled out. 39. Last but not the least, the , the Ld. Court has ignored that relief with res respect to recounting of votes has has been pleaded in the election petition by Re y Respondent No. 1 (Election Petit Petitioner) as a final relief. It is trite in law th w that final relief cannot be gran granted in the form of interim. Moreover, an , an application for recounting ting of votes was moved by Respondent N nt No. 1/ Election Petitioner whic hich was dismissed vide order dated 05.07.2 07.2024. Once the application ha has been dismissed, a similar application co n could not have been made again a ain at a subsequent stage. 40. It is also to be appreciat ciated that Recount cannot be ordered in a m a mechanical manner. Recount can t can be resorted to only in rare cases where a re a strong case is made out, aft after giving due reasons upon application of n of mind. In holding as above, I dra I draw support from judgment of the Hon’ble S le Supreme Court in “Udey Chand and Vs. Surat Singh & Another” (2009) 10 SCC SCC 170, wherein it is held as under der:- “9. Before adverting to the merit merits of the issue raised by the parties with reference to the statu statutory provisions, it would be appropriate to bear in mind the the salutary principle laid down in the election law that since an e an order for inspection and re- SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 27 of 36 36 (cid:1) count of the ballot papers affects ffects the secrecy of ballot, such an order cannot be made as a ma a matter of course. Undoubtedly, in the entire election process, cess, the secrecy of ballot is sacrosanct and inviolable except xcept where strong prima facie circumstances to suspect the pur purity, propriety and legality in the counting are made out. The The importance of maintenance of secrecy of ballot papers and and the circumstances under which that secrecy can be breach reached, has been considered by this Court in several cases. It w It would be trite to state that before an Election Tribunal can l can permit scrutiny of ballot papers and order re-count, two ba o basic requirements viz.: (i) the election petition seeking re ing re-count of the ballot papers must contain an adequate statem atement of all the material facts on which the allegations of i of irregularity or illegality in counting are founded, and (ii) on the basis of evidence a ce adduced in support of the allegations, the Tribunal must be t be prima facie satisfied that in order to decide the dispute and t nd to do complete and effectual justice between the parties, m ju s, making of such an order is imperatively necessary, are satisfi atisfied. XXX XXX XXX 17. It is no doubt true that the le the legislature in its wisdom has not incorporated in clause (b) the ) the expression "on the holding of such inquiry" it appears in clau clause (a), but bearing in mind the importance and the sanctity o tity of the secrecy of a ballot, in our considered opinion, it cann cannot be the intention of the legislature that a bald allegat legation of irregularity in the counting process would ipso fact facto warrant a re-count. Such an interpretation of the provision ision, in our view, would not only tantamount to automatic conve conversion of a petition under Section 176(1) of the Act into a nto an order for re-counting, it SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 28 of 36 36 (cid:1) would be destructive of the settle ettled principle of secrecy of poll, as also violative of letter and spir spirit of Section 183 of the Act, which mandates every officer, ag r, agent, etc. who performs duty in connection with the recordin rding or counting of votes, to maintain the secrecy of votes tes…We have no hesitation in holding that a petition for re-co count as contemplated under clause (b) of Section 176(4) of the f the Act must contain adequate statement of material facts on w on which the election petitioner relies in support of his allegati egation(s) and it must also be supported by some contempor poraneous evidence to show irregularity or illegality in the the counting. On this basic material, which affords the basi basis for the allegations in the petition and the response of the the opposite party thereon, the Tribunal is required to record its p its prima facie satisfaction that in order to decide the issue raised aised in the petition and in order to do complete justice between t en the parties the "scrutiny and computation of the votes" rec " recorded in favour of each candidate is necessary. The need eed to record reasons in support of the satisfaction can hardly b dly be overemphasised because reasons are the soul of the orde order/judgment. Therefore, we hold that though in an election ction petition seeking an order under Section 176(4)(b) of the Act e Act, it may not be necessary for the court to hold a regular enquir quiry as postulated under clause (a) of Section 176(4) of the Act Act but the court is obliged to apply its mind to the a mater aterial facts, disclosed in the petition, on which the allegation tions of irregularity or illegality are founded, along with some c me contemporaneous evidence, which would depend on the facts facts and circumstances of each case. An order for re-count on the n the basis of bare allegations in the election petition would no not be a proper exercise of ” jurisdiction under the provision.” ju SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document 41. In the present case, contra ntrary to the above mandate of Page 29 of 36 36 (cid:1) the Hon’ble le Supreme Court, there are no no specific statements and/or material facts acts on the basis of which recount unt could have been ordered. In fact, the plead leadings are vague and contradictor ictory. 42. Reliance may be placed up d upon another judgment of the Hon’ble Supre upreme Court in Vijay Bahadur v. Su v. Sunil Kumar, (SC) : Law Finder Doc Id # 27026 702643 relevant part of which is as u s as under:- “13. Since the question involved lved in this appeal appertains to recount of votes, let us consider ider the law on this aspect - as has been laid down through vari various pronouncements of this Court, in the context of various leg us legislations. 13.1 A Constitution Bench o h of this Court in Hussain KamilKidwai (supra), in the cont context of the 1962 Lok Sabha elections to the Barabanki C ki Constituency, wherein the appellant before this Court had had been declared elected, and the respondent who was one one of the contestants in the election, was aggrieved and his d his grievance was heard and eventually allowed by the High Co gh Court, observed that an order for inspection of ballot papers is fo rs is not to be made as a matter of course and it is only upon pon the fulfillment of certain conditions that the same can an be permitted. The relevant extract is :- ction may not be granted as a "6. An order for inspection ng regard to the insistence upon matter of course: having re llot papers, the court would be the secrecy of the ballot p n order for inspection provided justified in granting an or illed: two conditions are fulfilled: tion for setting aside an election (i) that the petition f quate statement of the material contains an adequat he petitioner relies in support of facts on which the p his case; and SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 30 of 36 36 (cid:1) (ii) the Tribunal is p order to decide the justice between the ballot papers is ne inspection of ballot p support vague pleas supported by mate evidence to support petitioner must be supported by averm establish a case s inspection may undo justice require, be g that the petitioner there has been an im rejection of votes wil an order for inspectio is prima facie satisfied that in the dispute and to do complete the parties inspection of the s necessary. But an order for llot papers cannot be granted to pleas made in the petition not material facts or to fish out port such pleas. The case of the t be set out with precision verments of material facts. To se so pleaded an order for undoubtedly, if the interests of e granted. But a mere allegation oner suspects or believes that an improper reception, refusal or s will not be sufficient to support ection." 13.2 In Vadivelu v. Sundaram, am, (2000) 8 SCC 355, a three- Judge Bench of this Court while Ju while concerned with a dispute regarding the election for th r the post of President of Vannavalkudi Village Panchayat, yat, Pudukkottal District in Tamil Nadu, which was governed by t by the Tamil Nadu Panchayats (Elections) Rules 1995, held : "16...this Court has consis onsistently taken the view that recount of votes could be be ordered very rarely and on specific allegation in the the pleadings in the election petition that illegality or or irregularity was committed while counting. The petit petitioner who seeks re- count should allege and prove rove that there was improper acceptance of invalid vote votes or improper rejection of valid votes. If only the c he court is satisfied about the truthfulness of the above ove allegation, it can order re- count of votes. Secrecy o cy of ballot has always been considered sacrosanct in t in a democratic process of election and it cannot be t be disturbed lightly by bare allegations of illegality or ir or irregularity in counting. But if SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 31 of 36 36 (cid:1) it is proved that purity of e of elections has been tarnished and it has materially affect ffected the result of the election whereby the defeated cand candidate is seriously prejudiced, the court can resort to re to re-count of votes under such circumstances to do justice stice between the parties." 13.3 Sarkaria J., writing for the Co he Court in Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 75) 4 SCC 822,recorded three scenarios when recount would ould be justified. The relevant extract of the judgment is as unde under: "6. The Court would be just justified in ordering a recount of the ballot papers only wher where: (1) the election-peti petition contains an adequate statement of all the ma material facts on which the allegations of irregularity rity or illegality in counting are founded; (2) on the basis o sis of evidence adduced such allegations are prima fac facie established, affording a good ground for believin lieving that there has been a mistake in counting; and (3) the court trying ying the petition is prima facie satisfied that the makin aking of such an order is imperatively necessary to d to decide the dispute and to do complete and effectual just l justice between the parties." 13.4 In Beli Ram Bhalaik v. Beha Behari Lal Khachi, (1975) 4 SCC 417, wherein the subject matter o ter of dispute was the election of the respondent therein from t m the '6-Kumarsain Assembly Constituency' of the State of Him Himachal Pradesh, and so, was obviously governed by the RPA RPA, considered a number of precedents including Hussain Kam KamilKidwai (supra), the Court observed : SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 32 of 36 36 (cid:1) "45. ... Since an ord n order for a re-count touches upon the secrecy of the ba e ballot papers, it should not be made lightly or as a mat matter of course. Although no cast-iron rule of universal ersal application can be or has been laid down, yet from a om a beadroll of the decisions of this Court, two broad guid guidelines are discernible: that the court would be justifie stified in ordering a re-count or permitting inspection of th of the ballot papers only where (i) all the material facts o cts on which the allegations of irregularity or illegality in y in counting are founded, are pleaded adequately in the e the election petition, and (ii) the Court/Tribunal trying the the petition is prima facie satisfied that the makin aking of such an order is imperatively necessary to d to decide the dispute and to do complete and effectual just l justice between the parties...” 13.5. The law mandates that sec t secrecy of the ballot should be maintained. In Satyanarain Dud Dudhani v. Uday Kumar Singh, 1993 Supp (2) SCC 82, the Court h urt held: "10. It is thus obvious that that neither during the counting nor on the completion of t of the counting there was any valid ground available for e for the recount of the ballot papers. A cryptic applica plication claiming recount was made by the petitione itioner-respondent before the Returning Officer. No detai details of any kind were given in the said application. No Not even a single instance showing any irregularity o ity or illegality in the counting was brought to the notice o tice of the Returning Officer. We are of the view when ther there was no contemporaneous evidence to show any irre irregularity or illegality in the counting ordinarily, it wou would not be proper to order recount on the basis of bar f bare allegations in the election SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 33 of 36 36 (cid:1) petition. We have been tak n taken through the pleadings in the election petition. We e are satisfied that the grounds urged in the election petitio etition do not justify for ordering recount and allowing inspe nspection of the ballot papers. It is settled proposition of la of law that the secrecy of the ballot papers cannot be be permitted to be tinkered lightly. An order of recoun ecount cannot be granted as a matter of course. The secre secrecy of the ballot papers has to be maintained and on d only when the High Court is satisfied on the basis of m of material facts pleaded in the petition and supported ted by the contemporaneous evidence that the recount c unt can be ordered.” 13.6. In Udey Chand v. Surat Sin t Singh, (2009) 10 SCC 170, this Court while entertaining an appe appeal by special leave, from a judgment and order of the High C ju igh Court of Punjab and Haryana wherein the order of the Election T tion Tribunal directing recount of the votes cast in the election for for the post of Sarpanch, Gram Panchayat, Village Badshahpur, pur, in a petition filed under Section 176 of the Haryana na Panchayat Raj Act, 1994, observed:- "12. The importance of m of maintenance of secrecy of ballot papers and the circu circumstances under which that secrecy can be breached, h ed, has been considered by this Court in several cases. It w . It would be trite to state that before an Election Tribunal unal can permit scrutiny of ballot papers and order re-count, unt, two basic requirements viz.: (i) the election petition see n seeking re-count of the ballot papers must contain an ad n adequate statement of all the material facts on which th ch the allegations of irregularity or illegality in counting are are founded, and SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 34 of 36 36 (cid:1) (ii) on the basis of evidence dence adduced in support of the allegations, the Tribunal m al must be prima facie satisfied that in order to decide the the dispute and to do complete and effectual justice betw between the parties, making of such an order is imperatively necessary, are imp satisfied."” 43. Reliance may also be placed upo upon judgment of this Court in Sadhu Singh ngh v. Sub Divisional Magistrate rate-cum-Presiding Officer, and Others (Punja unjab and Haryana) : Law Finder Do r Doc Id # 2032823 relevant part of which is as s as under:- “10. A perusal of the impugned or ed order reveals that respondent No.1 has extensively reproduced uced the statements recorded in evidence of the parties to the the lis. However, there is no consideration of the merits or de r de-merits of these statements by respondent No.1. The impug mpugned order does not even mention the grounds of challen allenge to the election of the petitioner as Sarpanch. The very very brief facts are mentioned in the opening paragraph of the im he impugned order, followed by the statements of Ravinder Singh ingh (present respondent No.4), Sadhu Singh (present petitioner) ner) and Kamaljit Singh (present respondent No.5). Thereafter res r respondent No.1 proceeded to order the recount by holding as un as under : "After perusing the documents o nts on record and after hearing both the parties. After perusing sing the above mentioned facts the petition filed by the petitioner ioner is accepted. For recounting of votes/ballot papers casted in t d in the Village Singpura for the post of Sarpanch the committee o ttee of the following officials has been constituted: 1) Sh. Puneet Bansal, Naib Tehsild hsildar, Gharaun SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document Page 35 of 36 36 (cid:1) 2) Executive Officer, Municipal Cou l Council Kharar The above committee under th r their supervision and in the presence of both the parties will will conduct recounting of votes in the Court of undersigned an d and Block Development and Panchayat Officer, Kharar will ass ll assist the above committee but the date of recounting will be decl declared later."” 44. Reference may be made t de to another judgment of this Court in “Mo “Mohammad Islam Vs. Aas Moha ohammad & Others” CR-1482- 2024 decided ded on 30.04.2024, wherein it is hel s held that: - “16. Having viewed the impug statement of material facts on wh and the principles enumerated in held that learned Tribunal lost sig applied, while ordering for recoun the impugned order would show the basis of the pleadings of the p even does not indicate that an affidavits of the parties by way o into account, before ordering impugned order does not indicate was recorded by the learned Tr recount of votes. It does not pro made any limited inquiry base passing the order. It is settled pos for an order of recount of votes fo hindsight and by result of reco material placed by an election-pe recount of the votes. The right assail the validity of an election re of votes has to be subject to t secrecy of the ballot is sacrosanct affected candidate is able to sub evidence that a prima facie cas made out, the learned Tribunal should not order recount of votes. pugned order in the light of n which petition has been based ed in the judicial precedents, it is st sight of the parameters to be counting of the votes. Perusal of show that same was passed on the parties. The impugned order t any material much less the ay of their evidence were taken ring recounting of votes. The icate any prima facie satisfaction d Tribunal, before ordering the t provide that learned Tribunal based on any material before position of law that justification otes cannot be derived from the recount of votes but from the petitioner on the threshold for ight of a defeated candidate to ion result and seeking recounting to the basic principle that the sanct in a democracy. Unless the substantiate by means of some case of recounting of votes is unal, in the interest of justice, otes.” SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document 45. In view of the factual a al and legal position as noted Page 36 of 36 36 (cid:1) above, the e present petition is allowed. The impugned order dated 22.04.2025 (A 5 (Annexure P-15) passed by the the Election Tribunal, Panipat, directing recou ecount of votes, is set aside. 46. Pending application(s) if an if any also stand(s) disposed of. 01.07.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document