- (1.) M. Katju, J. Heard counsels for the parties and puiused the impugned order dated 23-8-96, true copy of which is An- nexure-5 to the writ petition. An order of re-count of votes has been passed in con nection with the election of Pramukh, and this has been challenged in this petition.
(2.) THE law regarding re-count is well settled by a series of decisions of the Supreme Court and this Court. In Suresh Prasad Yadav v. J. R Misra, AIR 1975 SC 376, it was held that an order of re-count can not be made as a matter of course in view of the secrecy of the ballot. THE order of re-count should only be passed where: - (1) THE election petition contains an ade quate statement of all the material lacss on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) THE Court trying the petition is prima facie satisfied the the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. The same view has been valid in Bhabhi v. Sheo Govind, AIR 1975 SC 2117, and in the decision of the Full Bench of this Court in Ram Adhar Singh v. District Judge, 1985 UPLBEC 317. In the light of these decisions, I have to examine the impugned order. I have carefully perused the said order which states that four invalid votes have been counted in favour of the petitioner and hence re- count is justified. However, the said order does not state the reasons why the authority is of the prima facie opinion that four invalid votes have been counted in the petitioner's favour. In my opinion, the authority should have con sidered the evidence in support of the al legation that four invalid votes were counted in the petitioner's favour, and should have then given some reasons why it was prima facie of the opinion that this allegation is correct. The impugned order does not give any reasons why it has prima facie accepted the said allegations. In Bhabhi's case (supra) it has been men tioned that one of the conditions neces sary for ordering re-count in that the Court must beprima facie satisfied on the materials produced before it regarding the truth of the allegation made for a re-count. This indicates that the Court must give some reasons why it prima fade believes the versions of the petitioner. In the present case, as already stated above, the impugned order only states that according to the petitioner there were six invalid votes whereas according to the respondent No. 1 (the writ petitioner) there were only two invalid votes, but the authority does not go further and discuss the evidence in this connection.
(3.) LEARNED counsel for the respon dent has invited my attention to paragraph-3 (iii) of the counter- affidavit and has submitted that the reasons why the four votes were invalid have been men tioned therein. It is settled law, that an order can not be supplemented by an affidavit as held by the Supreme Court in the case of M. S. Gill v. Chief Election Commissioner, AIR 1978 SC 851. Hence, I cannot look into the counter-affidavit for this purpose. The impugned order itself should have discussed the evidence and should have given the reasons why it was prima facie of the opinion that four invalid votes were counted in favour of the petitioner. Since, that has not been done, the impugned order dated 23-8-96 is illegal and is hereby quashed. However it is open to the authority to pass a fresh order in accord ance with law after hearing the parties concerned.;