ASHIM SANA Vs. COLLECTOR KANKER

JUDGEMENT

(1.) By this petition, filed under Article 227 of the Constitution of India, petitioner seeks to challenge the correctness, validity and propriety of the order dated 25.5.2000 passed in Case No.2/A-89A(4)/ 99-2000 granting election petition of the respondent No. 5 and directing recount of the votes.

(2.) According to the learned counsel for the petitioner as an application for recount was not made to the returning officer immediately after declaration of the results, the Tribunal could not accept the plea and direct recount. It is further submitted that the Court/Tribunal has acted contrary to law by issuing a direction to the Returning Officer to recount the votes in the entirety. According to learned counsel for the petitioner, when the election petition is allowed by the Tribunal, then the Tribunal alone has the jurisdiction to direct recount and it is bound to recount the votes itself.

(3.) Learned counsel for the respondent No. 5, on the other hand, submits that the petitioner, immediately after counting of the votes, made a complaint to the Polling Officer that the counting slips were not issued to them and he also wanted to make a request for recount but the Polling/Counting Officer informed them that such an application is to be filed before the Returning Officer. Thereafter the respondent No. 5 met the Returning Officer and wanted to supply him the application for recount but his request was returned down and he was advised to file the election petition. According to the learned counsel for the respondent No. 5 even in the statements of the witnesses the facts have come that the counting slips were not issued and as none has said contrary to the statements of the respondent No. 5 that he went to make an application to the Returning Officer which the Returning Officer refused to accept, the Tribunal below was absolutely justified in granting the election petition in his favour. So far as the operative portion of the judgment of the lower Tribunal is concerned, he conceded to the argument submitted by learned counsel for the petitioner.