Madhya Pradesh High Court
Kiran Pidiha vs The Sub Divisional Officer on 13 August, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SHREEDHARAN
&
HON'BLE SHRI JUSTICE PRADEEP MITTAL
ON THE 13TH OF AUGUST, 2025
WRIT APPEAL No. 1109 OF 2024
KIRAN PIDIHA
Versus
THE SUB DIVISIONAL OFFICER (REVENUE) AND
OTHERS.
Appearance:
Shri Sanjay K. Agrawal, Senior Advocate with Shri Mihir
Agrawal, Advocate for appellant.
Shri Rajvardjam Dutt, Government Advocate for respondent
No.1/State. Shri K.C. Ghildiyal, Senior Advocate with Shri Brindawan
Tiwari, Advocate and Shri Raj Kumar Tripathi, Advocate for respondent
No.2.
ORDER
Per: Justice Pradeep Mittal, Judge.
This Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth of appeal) Adniyam, 2005 has been filed against the impugned Order dated 07.05.2024 passed by the ..2..
learned Single Judge in writ petition no 7755/2024, whereby writ petition has been dismissed confirming the order passed by the Specified Officer/Sub Divisional Officer, Raipur Karchuliyan, District Rewa directing for recounting of votes.
(2) The impugned order is challenged on the ground of that the order dated 07.05.2024 passed in writ petition no.7755/2024 is not in accordance with law and beyond the pleadings of respondent no
2. Respondent no. 2 has neither raised the issue regarding re- counting slip of polling booth Nos.191 & 192 nor the counting slip was issued in Form 17, as required under Rule 77(2) of Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995, before the Election Tribunal or in writ petition. Order of the Sub Divisional Officer would clearly reveal that the direction for recounting of votes has been issued in a mechanical manner only on the ground that the objection has been raised regarding the votes being declared invalid in polling station nos. 191 and 192. The impugned Order has been passed only on the statement of the Presiding Officer, without seeing and verifying the fact as to whether the election petitioner has anywhere pleaded that her election has been materially affected by declaration of certain votes invalid. Respondent no. 1 has not pleaded about any irregularity or illegality in respect of polling in booth No. 191 and 192. Nothing has been brought on record to show that in what manner the votes were wrongly declared to be invalid by the presiding officers. The Respondent no. 2 did not give adequate pleadings and ample evidence in her election petition which would have resulted into recounting of votes. Respondent ..3..
no. 2 has nowhere in the election petition has pleaded that in what manner the votes which are alleged by her to be invalid and void, have been accepted in favour of appellant. Respondent no. 2 has thus nowhere in her election petition has pleaded and proved as to in what manner, her election has been materially affected by improper acceptance and rejection of votes. It is a trite law that an order for the counting of votes cannot be ordered as a matter of course unless the election petition had laid the foundation and there is clinching evidence to support the case set up by the election petitioner. Election petition seeking a recount of votes must contain a concise statement of material facts and clear evidence in support of the facts pleaded. Only a small margin of victory by itself cannot be a ground for ordering recounting of votes. A roving and fishing inquiry is not permissible while directing the recounting of votes. It is submitted that the requirement of maintaining secrecy of ballot papers has to be kept in mind before directing a recount. It is further submitted that respondent no. 1 has not recorded any finding as to how the technicality not adhered to by the Presiding Officer and difference of one vote has materially affected the result of election in so far as the Respondent no. 2 is concerned. The allegations made by the Respondent no. 2 in the election petition are vague and merely on such vague allegations, recounting of vote ought not to have been directed by the Respondent no. 1. The Respondent no. 2 has not led evidence to demonstrate that valid votes were illegally rejected. The Respondent no.2 has also not pleaded that there is an illegality in rejection of valid votes. The direction for recount of votes has been ordered in a mechanical manner without due application of mind. There was no substantial ..4..
defect in the process of election and counting of votes. The election petition also did not contain a concise statement of all material facts with sufficient particulars. There was thus non-compliance of the provisions contained under Rule 5 also and consequently the election petition ought to have been dismissed under Rule 8 for non- compliance of the provisions contained under Rule 5 and Rule 7 of the Rules of 1995. Appellant is the duly elected Sarpanch and in case recounting of votes takes place the result of the writ petitioner may be disturbed. The appellant/writ petitioner prays for setting aside the order dated 07.05.2024 passed by the learned Single Judge.
(3) The facts necessary for disposal of present petition in short are that respondent no.2 filed election petition under Section 122 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (in short 'Adhiniyam 1993') by pleading inter alia that voting was held on 01/07/2022 for the post of Sarpanch of Gram Panchayat Nawagaon Unmulan including in polling booth Nos.191 & 192. Respondent No.2/ election petitioner was declared as elected by two votes and accordingly, she came outside the counting centre along with her supporters. After some time, Returning Officer declared the writ petitioner/respondent No.1 in the election petition, as winner as elected by one vote. As soon as respondent No.2 /election petitioner came to know about the change in result of election, then she immediately came back and gave an application to the Presiding Officer for recounting but the Presiding Officer refused to conduct recounting, however gave an acknowledgment of the application made by respondent No.2/ ..5..
election petitioner. It was alleged that as per Rule 77(2) and 80 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (in short 'Rules, 1995'), the Returning Officer was entitled to make the entries in part one of Form 16, 17, 18 & 19 of result sheet and allows the total number of votes polled by each candidate, however that was not done. The counting slip was not provided to the candidates and the petitioner/respondent No.1 was declared as winner by one vote. In polling booth No.191, total 430 votes and in polling booth No.192, total 387 votes were casted. The election petitioner/respondent No.2 received 139 votes in polling booth No.191, however two votes were declared in favour of Rani Sumant Singh otherwise election petitioner/respondent No.2 would have got 141 votes in polling booth No.191. Similarly, 13 votes were declared illegal, whereas 6 votes would have gone in favour of election petitioner/ respondent No.2 because while folding the ballot paper, the impression of the ink got printed on the election symbol of another candidate as well as while issuing the ballot paper, the impression of the thumb also got imprinted on the ballot paper and in case if those 6 votes would have been counted in favour of the election petitioner/respondent No.2, then she would have got 147 votes. Whereas, in the counting her votes were reduced to 139. Similarly, in polling booth No.192, total 387 votes were casted. Petitioner/respondent No.1 had got 126 votes but after taking 6 illegal votes in her favour, it was declared that she has got 132 votes whereas out of 23 votes which were casted in favour of petitioner, two ballot papers were declared illegal and therefore, it was declared that election petitioner/ respondent No.2 had got 21 votes. When the counting slip was demanded from the Returning ..6..
Officer, then the same was not given immediately and it was provided after two hours and it was declared that the petitioner/ respondent No.1 had got 132 votes whereas election petitioner/respondent No.2 had got 21 votes. Although, election petitioner/ respondent No.2 had given an application for recounting but recounting was not done by the Returning Officer. Thus, it was claimed that in polling booth Nos.191 & 192, the Returning Officer had deliberately committed illegality and even after having declared election petitioner/ respondent No.2 as winner by two votes, thereafter declared the petitioner/respondent No.1 as winner by one vote. Therefore, it was prayed that in case if recounting is done, then total number of votes received by both the candidates would be clear. It was further claimed that counting slip of polling booth Nos. 181 and 192 was not issued in Form 17 as required under Rule 77(2) of Rules, 1995 and accordingly, the election petition was filed.
(4) Writ petitioner/respondent No.1 filed her written statement and denied the averments made in the election petition. It was pleaded that the family members of the election petitioner/respondent No.2 were also present in the counting room and she should have disclosed the names of her family members which has not been done. The election petition has been filed out of political vendetta.
(5) There are several issues that are required to be decided in the matter. They are as under:-
(i) Whether the order of recounting was given without the pleading of petitioner ?
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(ii) Whether the petitioner has not given the evidence on facts of matrix ?
(iii) Whether the procedural lapses (like issuing the counting slip on the plain paper and not in form 17) materially affected the election result ?
(iv) Whether the recounting done four time violated rule 5,7,8 of the 1995 rules ?
(6) Appellant placed reliance on judgment reported in 2012(3)MPLJ 191 Hanumant Singh vs. State of M.P. and others, in which coordinate bench held that to make out a case seeking a direction of recount, the facts must be pleaded and must be supported by material particulars.
(7) Appellant also placed reliance on the judgment reported in 2013(2)MPLJ 447 Ganesh Ram v/s Bagdiram, in which coordinate bench held the onus of proof on the basis of proper pleading is on election petitioner. It was further held that the degree of proof must be of very high standard for the purpose of annulling an election or for issuing the direction of recounting.
(8) Appellant also placed reliance on a judgment reported as 2016(2)MPLJ 457, Rani Maraskole Vs. State of M.P. and others, in which coordinate bench held that the low margin of vote alone cannot be a sole ground for setting aside election or recounting of vote.
(9) Ground taken by the appellant is that there is no pleading in the petition and no evidence was led to show as to how many votes were counted in illegal manner in favour of appellant/winner ..8..
candidate and how many votes were rejected in illegal manner which were casted in her favour.
(10) To deal with this issue, everment of the election petition Annexure/P-1 will have to be seen. Respondent no.1, has categorically stated in para no. 5 & 6 of her petition, that total 430 votes were casted in polling booth no.191. 13 votes out of 430 were declared invalid for the reasons that while folding the ballot paper, the impression of the ink got printed on the election symbol of another candidate in which 6 votes were in favour of election petitioner Sanju Singh and 07 votes were invalid for the reason that while issuing the ballot paper the thumb impression also got imprinted on the ballot paper. These votes were casted in the favour of petitioner. After adding these 8 illegally rejected votes in favour of Sanju Singh, she would have got 147 votes. In polling station no. 192, total 387 votes were casted. The writ petitioner/respondent No. 1 in election petition, had got 126 votes but after adding 6 votes wrongly in favour of appellant, it was declared that she has got 132 votes whereas out of 23 votes which were casted in favour of the writ petitioner, two ballot papers were declared illegal and therefore, it was declared that election petitioner/ respondent No. 2 had got 21 votes.
(11) It is submitted by counsel for appellant that the Specified Officer/SDO has wrongly put the burden of proof on the Authorized Officer whereas the burden of proof is on the election petitioner to prove that the counting was not done in accordance with law.
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(12) In our opinion the respondent no. 2 led her evidence and categorically stated that firstly she was declared winner by two votes and later on a counting slip was issued in which two votes were illegally shifted in favour of appellant and she was declared as a winner. Respondent no. 2 discharged her onus of proof by leading evidence. After that onus shifted to the respondent or returning officer. He could rebut the evidence led by the respondent no 2 but he was neither able to produce the material document nor explained how many disputed votes are shifted in favour of wining candidate which shows the counting of votes was not done fairly.
(13) Next objection is that respondent no.2 has not examined material witness who was present at the time of the counting hence, her evidence is hearsay evidence and her agent was the eye witness, who could demonstrate the real position of the counting. Onus was on the election petitioner and she should have examined that witness before the tribunal.
(14) Respondent no.1 has clarified that she filed affidavits of the witness Varun Pratap Singh and Devraj Singh under Order 18 Rule 4 of the C.P.C. and appellant had cross examined the witness before the tribunal. She had never objected that the witness cannot be taken on affidavit and she is not able to show in which law the evidence on affidavit cannot be taken in election petition. Hence, the objection regarding validity of evidence of respondent by way of affidavit and that it cannot be taken on affidavit, has no force.
(15) The impugned order is challenged on the ground that the counting slip was not issued in Form no. 17 which is in violation of ..10..
Rules 77 and 80 of Rules, 1995. That issue was neither raised before the tribunal and nor has it been considered by tribunal. Yet impugned order is based on the above facts which show that the judgment travels beyond the pleading and finding of the Election Tribunal. It is revealed from the order of the tribunal and petition of respondent no.1 filed before the tribunal that whatever grounds have been raised by the election petitioner the same have been considered and dealt with by the tribunal. Hence the objection taken by the appellant has no force at all.
(16) In the election petition Annexure-P/1, the election petitioner has categorically stated in para nos. 5 & 6 that the counting slip of polling booth Nos.191 & 192 was not issued in Form-17 as required under Rule 77(2) of Rules, 1995.
(17) Appellant takes an objection that the impugned order travels beyond the pleadings and proof regarding the fact that after four time counting being done, no counting slip was issued, therefore on the above ground counting of votes should not been held erroneous. In our opinion that objection has no force because that fact comes on record in cross examination and is not supported by any documentary evidence. Therefore, that objection is not acceptable. It is only to disbelieve the fairness of counting procedure. If recounting had been done for four times the authorized officer would have mentioned in his diary and prepared counting slip as per Rule 17 of the Rules, 1995. Therefore, it could not be said that the order travels beyond pleadings and proof.
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(18) The election petitioner/ respondent No.2 had stated in her evidence that as per the tabulation sheet of polling booth No.191, the election petitioner Sanju Singh/respondent No.2 was ahead by two votes and accordingly, it was stated by Returning Officer that the certificate of election will be given in Janpad Panchayat, Raipur Karchuliyan. However, recounting was done under the pressure of appellant but no information was given to him about the recounting and later on he came to know that appellant has been given one vote more than the election petitioner/respondent No.2. Immediately, he gave an application for recounting which has been filed as document No.1. However, no action was taken on the said application for recounting. Later on, an incorrect counting slip was given which has been filed as document No.2 & 3. Since Returning Officer had not taken any action on the application for recounting, W.P. No. 15658 of 2022 was filed.
(19) Election petitioner/respondent No.2 had also filed an affidavit of Devraj Singh under Order 18 Rule 4 CPC who has stated that he was the authorized agent of election petitioner/respondent No.2 in polling booth No.192. As per the tabulation sheet of polling booth No.192, the election petitioner/respondent No.2 was ahead by two votes and accordingly, it was stated by Returning Officer that the certificate of election will be given by Janpad Panchayat, Raipur Karchuliyan. However, recounting was done under the pressure of appellant but no information was given to him about the recounting and later on he came to know that appellant has been given one vote more than the election petitioner/ respondent No.2. Immediately, he gave an ..12..
application for recounting which has been filed as document No.1. However, no action was taken on the said application for recounting. Later on, an incorrect counting slip was given which has been filed as document No.2 & 3. Since Returning Officer had not taken any action on the application for recounting.
(20) Appellant also entered in the witness box. She denied that any illegality was done in the counting. She further admitted that recounting was done for 4 to 5 times.
(21) Returning/authorised Officers were examined as Court witnesses. Dr. Tapan Kumar Singh has stated that immediately after counting was over, he had received the application for recounting. He also admitted that he had not decided the application for recounting yet had taken suggestions from the Sector Magistrate. He also admitted that he was authorized to conduct voting as well as counting. He denied that he did not conduct recounting and therefore, he did not take the record of the recounting on record. The agents of all the candidates were satisfied with the recounting. The counting slips were given to the agents in prescribed format.
(22) Ashok Kumar Patel was the Returning Officer of Polling Booth No.192. He has stated that after the polling was over, counting was done and the counting slip was given to the candidates in accordance with the format and their signatures were obtained. He further admitted that an application for recounting was received immediately after counting was done. But it was not decided by him.
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(23) Varun Pratap Singh and Devraj Singh have categorically stated in their evidences that counting slips given by the Returning Officer are documents No.2 & 3. This fact has not been denied by any of the Presiding Officer or by the petitioner/respondent No.1. From recounting slip of polling booth No.191, which has been filed as document No.2, it is clear that it is not in Form 17 and the said counting slip (document No.2) is on a plain paper.
(24) Dr. Tapan Kumar Singh was the Returning Officer of polling booth No.191. He has not denied his signatures on the counting slip (document No.2). Furthermore, at the bottom of the counting slip (document No.2), the seal of the authorized officer has been affixed in which the polling booth number has been mentioned as 91 and not 191, although at the top of the said plain paper, the polling booth number has been mentioned as 191. Why Dr. Tapan Kumar Singh issued the counting slip on a plain paper and not in Form 17 as required under Rule 77(2) of Rules, 1995 has not been explained by him.
(25) On the above ground learned Single Judge has taken a view that the Authorized Officer of polling booth No.191 namely, Dr. Tapan Kumar Singh had not issued the counting slip as per Form 17 as required under Rule 77(2) of Rules, 1995. Under these circumstances, it is clear that Dr. Tapan Kumar Singh had violated the provisions of Rule 77(2) of Rules, 1995.
(26) FORM-17 of the rule 2 of the section 77 has been prepared after the counting of the votes, as per the format of the form 17 following information is required to be given as below:
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6. Form 17 of Rules, 1995 reads as under:-
PART ONE FORM-17 [See rule 77(2)] RESULT OF COUNTING OF VOTES FOR ELECTION OF SARPANCH OF GRAM PANCHAYAT ..........
Polling Station Number of wards included
Number
S. No. Name of No. of valid votes cast in
candidate favour of the candidate
(1) (2) (3)
No. of valid votes..............
No. of rejected votes..........
No. of Votes polled............................ Place of counting............................. Date ........................................ ....................................
Returning Officer (Panchayat/ Officer authorized by returning Officer (Panchayat) PART TWO BLOCK LEVEL FORM 17 RESULT OF COUNTING OF VOTES FOR ELECTION OF MEMBER OF GRAM PANCHAYAT........
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Block.................. Total No. of Polling Stations included.............
S.No. Name of candidate Valid votes cast in favour of the candidate Total
Polling Polling Polling Polling Polling
Station Station Station Station Station
No...... No...... No...... No...... No......
(1) (2) (3) (4) (5) (6) (7) (8)
A. Total No. of valid votes in Gram Panchayat.............. B. Total No. of rejected vots in Gram Panchayat............ C. Total No. of votes polled in Gram Panchayat.............. Place of counting............ Date...........
.................
Returning Officer (Panchayat/officer authorized by returning Officer (Panchayat) (27) It is admitted that the returning officer has not used the printed format of form-17 yet he has issued the slip on plain paper.
Returning officer has given the information on plain paper and delivered to the candidate after signing it. It is revealed from the counting slip that the aforesaid information has been mentioned in the slip.
(28) In our opinion on the basis the only ground that the returning officer has not used printed format, it cannot be said that the counting of vote is materially affected. The learned Single Judge has opined that the returning officer has mentioned the polling booth no. 91 in the slip, it cannot be a ground for violation of the rule of 77 of the Rules, 1995, because in the counting slip the polling booth no. 191 has to be mentioned but where the returning ..16..
officer has put his signature he mentioned 91 number. It is a clerical mistake. That is not an error to hold the violation of rule 77 of the Rules, 1995. Therefore, in our considered opinion counting of the votes are not materially affected by the counting slip issued on plain paper. Therefore, merely on this basis recounting cannot be directed.
(29) It is clear as per Rule 77(2) of Rules, 1995 that recounting can be done in the following circumstances:-
"(i) After counting is done, the Returning Officer or the Authorized Officer shall announce the result as per Rule 77(2) of Rules, 1995 in prescribed format which is Form 17 in the present case.
(ii) After such announcement, the candidate or his polling agent or counting agent may file an application for recount.
(iii) The Returning Officer or the Officer authorized by him shall decide the matter and may allow or partially allow or reject the application for recount.
(iv) Every decision in this regard has to be in writing.
(v) If the application for recounting is allowed, then recounting shall be done.
(vi) After recounting, result shall be declared and further no application for recount shall be entertained thereafter."
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(30) If the facts and circumstances of the case are considered in the light of Rule 77 and Rule 80 of Rules, 1995, then it is clear that only once the calculation sheet was prepared and it has to be presumed that it was after the counting.
(31) Appellant has placed reliance on the judgment in the case of Chanda Singh Vs. Choudhary Shiv Ram Verma and others reported in (1975) 4 SCC 393, in which the Hon'ble Apex court held as under:-
"On all hands, it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. We would only like to stress that in the whole process the secrecy is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer. We may even say that no winning candidate should be afraid of recount and, conditions as they are, a sceptica1 attitude expecting the unexpected may be correct, informed of course by the broad legal guidelines already set out. Who knows if infirmities are indicated by evidence, what the result of recount will be? It lies buried in the womb of the sealed boxes and cannot, therefore, be demonstrated without a ..18..
second judicial inspection. To set the records straight it may be proper to refer to the ruling in Malaichami Case [P. Malaichami V. M. Ambalam, (1973) 2 SCC 170:(1973) 3 SCR 1016) which affirmed a recount ordered by the High Court. The very recent judgment on recount in Beliram Bhalaik Case [Beliram Bhaliak V. Jai Beharlal Khachi, (1975) 4 SCC 417] flows along the same current."
(32) The appellant has placed reliance on the judgment passed by the Hon'ble Supreme Court in the case of Bhabhi Vs. Sheo Govind and others reported as 1976 1 SCC 687 in which the Apex court held as under:-
"15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection, of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court ..19..
regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper."
(33) The appellant has placed reliance on the judgment passed by the Hon'ble Supreme Court in the case of P. K. K. Shamsudeen, Versus K. A. M. Mappillai Mohindeen and others reported as (1989) 1 SCC 526 in which the Hon'ble Apex court held as under:-
"Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the ..20..
justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. 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 principle 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 a prima facie case of a high degree of probability existed for the re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes."
(34) The appellant has placed reliance on the judgment in the case of Sohan Lal Vs. Babu Gandhi & Ors reported in (2003) 1 SCC 108 in which the Hon'ble Apex court held as under:
"In view of Section 122 and the rules, we are unable to agree with the ratio laid down in Ram Rati case (1997) 6 SCC 66. It is not correct to hold that, in an election petition, after the declaration of the result, the Court or Tribunal cannot direct recounting of votes unless the party has first applied in writing for recounting of votes. There is no prohibition in the Act or under the rules prohibiting the Court or Tribunal to direct a recounting of the votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, ..21..
it would not be possible for him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition under Section
122. In such a case, the Court or the Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, hold that the ratio laid down in Ram Rati case is not correct."
(35) Appellant has placed reliance on the judgment rendered in the case of Sampat Devi (Smt.) Vs. Sub-Divisional Officer-cum- Prescribed Authority Niwadi and others reported as 2007(3) JLJ 301 in which the court held as under:-
"In the case at hand the learned Single Judge has referred to rule 80 of the Rules which deals with recount of votes by the returning officer. Emphasis has been laid on sub-rules (2) and (3). There can be no shadow of doubt, the Returning Officer should decide the matter and may allow the application, if circumstances so warrant. But, an eloquent and fertile one, non-entertaining of such an application can never be the sole and the singular factor for issue of a direction for recount of votes. The Election Tribunal is required to apply its own mind to the pleadings and the evidence brought on record to satisfy that there is requisite and necessity for recount of votes. As the factual position would show, the Election Tribunal has answered the Issue No.1 in favour of the returned candidate. We have ..22..
reproduced the reasonings ascribed by the Tribunal for issue of a direction for recount of votes. As is evincible, the Tribunal has been totally guided by the non-compliance of the Rules and the small margin of votes. Further, it has taken recourse to the conception of doing an effective and complete justice. The said grounds, in our considered opinion, are absolutely not germane or cogent for directing recount of votes. As has been held by the apex Court, the small margin of votes cannot be the sole ground for directing recounting. If we permit ourselves to say so, no evidence was adduced warranting a recount and in fact, the Tribunal has failed to appreciate the factual scenario in proper perspective and directed for recount of votes."
(36) The appellant has also placed reliance on the judgment of Hon'ble Supreme Court in the case of Vijay Bahadur Vs. Sunil Kumar and others reported as 2025 INSC 332 in which the appellant alleged discrepancies in the number of votes recorded three polling booths: Booth Nos. 43,44 and 45. He claimed the vote count orally conveyed by the Presiding Officer differed (1194 votes) from the official final count in Form 46(1213 votes). Suspecting manipulation or irregularities, the appellant sought a recount pursuant to Section 12-C of the U.P. Panchayat Raj Act, 1947.
The Court's pronouncement clarifies the grounds on which recounts can be issued emphasizing that secrecy of the ballot ..23..
remains sacrosanct except where there are substantiated irregularities. Ultimately, the Court restored the order issued by the Sub- Divisional Magistrate for a recount, reversing the High Court's decision that had quashed such recount. This commentary delves into the detailed background, reasoning, and potential repercussions of this judgment in Indian electoral jurisprudence.
(37) Admittedly, an application for recount was given immediately after the result was declared. For polling booth No.191, the result was not declared in prescribed Form 17 as required under Section 77(2) of Rules, 1995. Application was given immediately. Admittedly, no decision was taken by the Returning Officer or the Officer authorized by him on the application filed for recounting. No written order in this regard was given. According to the election petitioner/ respondent No.2, no recounting was done in her presence and no decision was taken on the application filed for recounting, whereas according to the writ petitioner/ respondent No.1 as well as Authorized Officer Dr. Tapan Kumar Singh, the recounting was done for four times which again was contrary to Rule 80(5) of Rules, 1995.
(38) Rule 80(5) of Rules, 1995 provides that recounting shall be done only once and no further application shall be entertained. Why the recounting was done in the present case for four times and if it was done then every time, a tabulation sheet should have been prepared in Form 17 but it is neither the case of writ petitioner/respondent No.1 nor the case of Authorized Officer that separate tabulation sheet was prepared in Form 17 as required under Rule 77(2) of Rules, 1995. The statement of Authorized Officer is ..24..
not reliable that recounting was done four times. His statement is not supported by any documentary evidence. Hence, his statement is not reliable.
(39) Thus, it is clear that the Authorized Officer of polling booth No.191 committed material illegality in spite of the fact that the respondent was declared winner by one vote and after sometime he declared the appellant as elected by one vote. In respect of respondent it is specifically pleaded and proved by his statement that two votes illegally shifted in favor of appellant. In above circumstances, Authorized Officer ought to have prepared and issued tabulation sheet after recounting in Form 17 of Rule 77(2) of Rules, 1995, therefore, in our opinion it was rightly held that the counting and so called recounting of votes casted in polling booth No.191 was not in accordance with law. Thus, the learned Single Judge did not commit any mistake by affirming the finding of Election Tribunal directing for recount of votes of polling booth No.191.The learned Single Judge has opined that the returning officer has mentioned the polling booth no. 91 in the slip. Merely mentioning of wrong booth number cannot be a ground for violation of the Rule 77 of the Rules, 1995, because in the counting slip the polling booth no. 191 was to be mentioned but whereas the returning officer has put his signature and mentioned Polling Booth No. 91. It is a clerical mistake. That is not a substantial error to hold the violation of rule 77 of the Rules,1995. Therefore, in our opinion counting of the votes is not materially affected for the reason that the counting slip was issued on plain paper. Therefore, only on basis recounting cannot be directed.
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(40) So far as the evidence of Ashok Kumar who was authorized officer of polling booth No.192 as well as evidence of writ petitioner/respondent No.1 with regard to polling booth No.192 is concerned, except that the computation sheet of counting was issued in Form 17 as prescribed under Rule 77(2) of Rules 1995, all the other mistakes which were committed by Dr. Tapan Kumar Singh in respect of polling booth No.191 are identical. Ashok Kumar has admitted that an application for recounting was given. He admitted that he did not decide the application. There is nothing on record that as per the provisions of Rule 80(2)(3) of Rules, 1995 the said application was decided. No written order in that regard was passed. Even Ashok Kumar has admitted that recounting was done for four times, whereas as per Rule 80(5) of Rules, 1995, recounting can be done only once and no further application for recounting can be entertained. Except that there is no mistake in the booth number as well as first counting slip was issued in Form 17 all other reasons for directing for recount of votes casted in polling booth No.191 would apply to the polling booth No.192 also.
(41) In the light of above discussion, it is crystal clear that the returning officer has made a procedural lapses in recounting of vote and declaring the respondent no.1 in the election petition, as an elected candidate and in the absence of her agent illegally shifted two votes in favour of appellant for which an application was filed for recounting which was not decided. That ground materially affected the counting of votes, which was properly pleaded and proved by the respondent No.2. Hence, we are of the considered view the learned Single Judge has not committed any error in ..26..
affirming the order of the Specified Officer/Sub Divisional Officer, Raipur Karchuliyan, District Rewa directing for recounting of votes. The order passed by the learned Single Judge does not call for any interference. Accordingly, the writ appeal stands dismissed.
(ATUL SREEDHARAN) (PRADEEP MITTAL)
JUDGE JUDGE
MSP
Digitally signed by MANVENDRA SINGH PARIHAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,
MANVENDRA ou=HIGH COURT OF MADHYA PRADESH,
2.5.4.20=534e8d22bdfc256c011c9667a71dd1bf1f1b3504 498290589d50b42155de9c43, postalCode=482001, SINGH PARIHAR st=Madhya Pradesh, serialNumber=58BFD009297C8990B6288F0D15E55CD57 5416988807F9D09534E18795B5B728F, cn=MANVENDRA SINGH PARIHAR Date: 2025.08.25 16:49:21 +05'30'