B.J.SHETHNA,J. - (1.) THE petitioner alongwith four others including the non -petitioner No. l. Mana Ram contested the election from 'Nirvachan Kshetra No. 19' of Panchayat Samiti Revdar held on 20th January, 1995. The petitioner was a candidate of B.J.P. and non -petitioner No. l. was a Congress Candidate and rest were independents. The counting took place on 22.1.1995 and the petitioner was declared successful by a margin of one solidatory vote. The petitioner secured 1053 votes and non - petitioner No. 1 secured 1052 votes. Other three candidates secured 367, 292 and 76 votes and 109 votes were declared invalid. The non -petitioner No. 1, Mana Ram filed election petition on 8.2.1995 before the Court of Distt. Judge, Sirohi and challenged the election of the petitioner mainly on two counts: (i) that Inder Singh, Sub Registrar, Abu Road played mischief in the last recounting by taking out five votes from the bundle of rejected votes and added in the petitioners total. Thereby, the petitioner got 1053 votes as against that the non -petitioner No. 1 got 1052 votes and (ii) the Polling Officer instead of issuing ballot papers meant for ward No. 19 issued to the voters of ward No. 18 and thereby, dis -entitle 29 voters from voting for ward No. 19 election.
(2.) OUT of the above two objections the election Tribunal rejected the second contention. However, by an order dated 2.5.96 the re -counting was ordered by the Tribunal as the first ground appealed to it. Aggrieved by this order passed by the Election Tribunal on 2.5.96 the petitioner has filed this petition challenging the order of recount. Learned Counsel Shri Mehta for the petitioner vehemently submitted that regarding the mal practices played by the Sub - Registrar, Indra Singh was never raised either before the counting officer or returning officer during the counting in writing. Even in a representation made to his Excellency the Governor of Rajasthan also the specific allegations were not made against Indra Singh and such allegations came to be made for the first time by the non -petitioner No. 1 only in a election petition, which was filed on 2.5.96 i.e. about ten days of the result of election. He submitted that on the statement of material fact which should be established at least prima facie the court can order recount otherwise it would affect the secracy of ballot paper and in a small village like this the situation may turn violent and take ugly turn if the recount order is granted. He submitted that on the facts of this case the learned Election Tribunal committed a grave error in ordering recount. He submitted that the learned Tribunal has swayed away with the act that there was a difference of only one vote and, therefore, in the interest of justice recount should be ordered. In support of his contention, the learned Counsel Shri Mehta cited number of decisions of Supreme Court as well as of this Court and submitted that in the instant case the non -petitioner No. 1 failed to establish prima facie material for recounting and therefore, the learned Tribunal ought not to have passed the order of recount. He therefore, submitted that the impugned order of recount be quashed and set aside. As against this, learned Counsel Shri Singhvi appearing for the non -petitioner No. 1 vehemently submitted that the election tribunal has rightly passed the order of recount and this Court in its limited jurisdiction under Article 226 and 227 of the Constitution should interfere with such orders. In support of his contention he has also relied upon two decisions of Supreme Court on the point of granting recount when there is difference of votes is very less.
(3.) FOR considering the rival submissions few facts are required to be stated which are as under:;