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10.According to the learned counsel for the revision petitioner, the main prayer is for recounting and the second prayer is only for declaration of the election of returned candidates as void and last for declaring that person who secures highest votes as elected. https://www.mhc.tn.gov.in/judis

11.This according to him, is not proper way of seeking relief. The main prayer cannot be for recounting. According to him, recounting is not permissible. So he relied upon Section 259 of the Tamil Nadu Panchayat Act, 1994. According to him, if at all the grounds that are made by the respondent will attract Section 259 (4) of the Act, recounting of votes is not prescribed as ground for declaring the elections to be void. He would straight away rely upon the judgment of the Honourable Supreme Court made in the case of Dharmin Bai Kashyap Vs. Babli sahu and others reported in (2023) 10 SCC 461, wherein it has been held as follows:

14.In view of Section 122 and the rules, we are unable to agree with the ratio laid down in Ram Rati's case. 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 https://www.mhc.tn.gov.in/judis 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, 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's case is not correct.

“41. But, it may not be sufficient for a Court to order recount for atleast 2 reasons which I shall discuss in the following paragraphs.
42. Reason 1: Assuming that a recount is ordered on the ground that 19 votes are unaccounted for, it is not known as to how a recount will enable the concerned authorities to find out those 19 votes. If the averments contained in the election petition are accepted in total, it would mean that 9513 ballot papers were distributed but only 9494 ballot papers were collected. The annexure ''A'' and annexure ''B'' to the election petition merely show that 9513 votes were distributed to the electors and the counting produced only a tally of 9494 votes. A recount may not produce a different tally, since as per Rule 51(2) every elector is issued with one ballot paper which contains a serial number. He is supposed to go to the voting compartment, make a mark on the ballot paper and then fold the ballot paper so as to conceal his vote and then insert the folded ballot paper into the ballot box kept for that purpose. Rule 51(4) prohibits an elector from https://www.mhc.tn.gov.in/judis being allowed entry to a voting compartment when another elector is there. All the ballot papers and counterfoils are serially numbered as per Rule 49(3) and issued one by one to the electors. Thus, there is no chance for an elector to receive more than one ballot paper since the ballot papers and the counterfoils are serially numbered and the agents of the contesting candidates are present when ballot papers are issued to the electors. There is also no possibility of two or more ballot papers getting stuck together since each ballot paper is folded before being inserted into the ballot box.”

56.Further, it was held that “45. Therefore even in respect of missing votes, the material produced by the election petitioner is not sufficient enough to order recount. Looked at from another angle, it could be appreciated that a recount could be ordered by the Court only in respect of the votes polled for the election to the post of President, as we are now concerned only with the post of President of the Panchayat. Since the true copy of Part-I of Form 20 is not produced by the election petitioner https://www.mhc.tn.gov.in/judis (despite the entitlement of her agent to the same by virtue of Rule 58(4)(b)) and since what is contained in Part-II of Form 20 is found in Form 22 filed as Ex.R.1, it has to be presumed that even a recount will produce only 9494 votes and nothing more. Probably if the votes polled for the post of President as well as the posts of Members of the Panchayat are all recounted, it may be possible to see if those 19 votes got mixed up with the votes for the Members of the Panchayat. In other words, to locate those 19 votes, it is not enough if a recount is ordered in respect of the votes polled for the post of President. It may be necessary to order a recount of the votes polled for all the posts. Such a recount is not what is contemplated under the Rules. A recount, even if ordered, could be confined only to the particular post in question and it cannot be with respect to all the posts, in order to locate the votes unaccounted for with regard to one post.