- (1.) The petitioner is the elected candidate. The respondent No. 1 being aggrieved by the result filed an Election petition. Allegation of irregularities committed in the election and illegal reception of votes has been alleged in paragraph Nos. 11 and 12 of the election petition. The petitioner has denied these allegations. The Tribunal on the basis of the material facts framed several issues. Issues No. 4, 6, 9 and 10 relate to the irregularities committed by the petitioner and his agents in the election process as well as illegal reception of votes. Evidence by the both the sides has been led. The Tribunal without adverting to the material facts and without considering the evidence led has issued an order dated 3.5.2013 directing recounting of the votes on the sole ground that these issues can only be decided after recounting of the votes and only on that basis it could be known that the allegation made in the election petition is correct or not. By an order dated 6.5.2013 recounting was done and the respondent No. 1 was declared elected as the Pradhan. The petitioner being aggrieved by the said orders has filed the present writ petition. In view of the decision of the Full Bench of this Court in Ram Adhar Singh v. District Judge, Ghazipur and others, 1986 2 RevDec 151 and the decision of the Supreme Court in Bhabi v. Sheo Govind and others, 1975 AIR(SC) 2117 the right of a defeated candidate to assail the validity of an election result and seek recounting of the votes is subject to the basic principle that the secrecy of the ballot is sacrosanct unless the defeated candidate alleges and is able to substantiate by means of evidence that a prima facie case of a high degree exists for the recounting of the votes. The salutary rule is, that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be broken unless there is a prima facie case and that a genuine case is made out. The justification for an order or re-examination of ballot papers and recounting of the votes is not to be arrived at from hindsight or by the result of the recount of the votes. The justification for recounting of the votes must be made out from the material available on the record.
(2.) In the light of the aforesaid principle of law, the Court finds that in the instant case the assertion of facts have been made in paragraphs 11 and 12 of the election petition. With regard to the alleged irregularities, issues have been framed and oral and documentary evidence has presumably been filed. In the instant case, the Court finds that there is no discussion of the evidence on any issue framed by the Court. No finding has been given as to whether the evidence has brought out any clinching case or prima facie evidence for recounting of the votes. The Tribunal has only directed recounting of the votes in order to find out as to whether the allegations made in the election petition and the issues framed on its basis was actually correct or incorrect. No finding has been given that on the basis of clinching evidence, a prima facie satisfaction is made out by the Tribunal for recounting of the votes.
(3.) It is of prime importance that the secrecy of the ballot papers is sacrosanct and purity of the election is required to be maintained at all cost. The secrecy of the ballot papers cannot be violated on mere conjectures nor recounting of the votes can be made the basis to bring on record the evidence on the issues so framed. In fact, the issues are required to be decided and on the basis of the finding given on the issues, a prima facie case, if any, is required to be given by the Tribunal for recounting of the votes which in the instant case has not been done. In view of the aforesaid this Court is of the opinion that no clinching evidence or finding has been given by the Tribunal to show any irregularity or illegality in the counting of the votes or in the reception of the votes. No finding has been given on issues No. 4, 6, 9 and 10. In the light of the aforesaid, the order of recounting, being patently illegal and against the settled principle of law, cannot be sustained and is quashed. The consequential order of recounting dated 6.5.2013 for the same reason also cannot be sustained and is also quashed. The writ petition is allowed. The Tribunal is directed to pass a fresh order in accordance with law and in the light of the observations made aforesaid.;