(1.) THIS is petition filed under Article 227 of the Constitution of India by Mander Singh against Mangal Singh seeking quashing of the order dated 9.5.2000 passed by the Presiding Officer, Election Tribunal, Moga in election petition No. 13 of 16.7.1998 titled Mangal Singh v. Mander Singh pending before him whereby he has ordered recount of votes polled at election to the office of Sarpanch of Gram Panchayat Mahla Khurd. It is alleged in this revision by Mander Singh that he was elected on 21.6.1998 for the office of Sarpanch of Gram Panchayat, Mahla Khurd. Mangal Singh challenged his election through election petition. In the election petition, he (Mangal Singh) examined three witnesses. Their cross-examination was deferred. Out of these witnesses, Sohan Singh, Chowkidar appeared and was cross-examined. No other witness ever came present for cross-examination. Mander Singh alongwith his counsel appeared on every date fixed in the election petition. Remaining witnesses never appeared for their cross- examination. Election Tribunal has held him (Mander Singh) responsible for not cross-examining the witnesses of the election petitioner, though the shoe is on the other leg. Election petitioner did not produce his witnesses so that they could be cross-examined. Election Tribunal could close evidence of the election petitioner. Election Tribunal ordered recount for no sufficient reason. Recount was ordered merely because there is small margin of victory i.e. of four votes. At the time of counting of votes, 626 votes were found in the kitty of Mander Singh while 622 votes were found in the kitty of Mangal Singh. It is alleged that the election petition was filed on the ground of corrupt practices. None of the grounds regarding corrupt practice was pressed by the election petitioner. It is further alleged that recount was ordered simply to ensure what really was the comparative position of the candidate. It is alleged that the order was passed on grounds which are totally alien to the consideration which should weigh while passing an order of recount.
(2.) I have heard the learned counsel for the parties.
(3.) LEARNED counsel for the petitioner-Mander Singh submitted that merely because margin of victory was very small is no ground to order recount. It was submitted that order of recount can be passed only if case for recount is laid in the election petition and then substantiated at the trial. In this case, he submitted there is only allegation by Mangal Singh that Presiding Officer was conniving with Mander Singh and he unduly rejected the valid votes polled in his favour and unduly accepted invalid votes in the kitty of Mander Singh. He has not set out that the votes polled by such and such persons in his favour were valid votes and votes polled by such and persons in favour of Mander Singh were invalid votes. It was submitted that there can be no fishing enquiry by the Election Tribunal. It was submitted that recount cannot be ordered casually and in routine because if order of recount is passed casually and in routine, it will impinge upon the secrecy of ballot and secrecy of ballot is sacrosanct in democracy.