JIWAN Vs. ELECTION TRIBUNAL DEPUTY COMMISSIONER

JUDGEMENT

(1.) IN this petition, challenge is to order dated 15.6.1995 of the Election Tribunal-cum-Deputy Commissioner, Mansa, whereby election record of Ward No. 3 of Nagar Panchayat, Bhikhi, has been summoned for fresh scrutiny and rechecking of withdrawal forms and rejected votes. This order has been impugned by the petitioner on the ground that no case had been made out for ordering recount of votes. Counsel for the petitioner has also contended that secrecy of the ballot is sacrosanct and as such secrecy of the ballot should not have been violated by the Tribunal unless a prima facie case had been made out by election-petitioner for inspection and recount. Opposed to this, Mr. H.S. Mattewal, Senior Advocate, counsel for election petitioner, has contended that the Tribunal has not ordered recount of all the votes but has ordered only rechecking of rejected votes which are 11 in number. He also contended that there was sufficient material before the Tribunal for coming to the conclusion that there was a need for rechecking of rejected votes.

(2.) COUNSEL for the petitioner has not disputed the legal position that in an appropriate case the Tribunal can examine the objection raised by the parties in relation to the improper acceptance or rejection of voting papers by calling the election record. But before exercising this power, the Tribunal on the basis of material on record, must come to the conclusion that a case had been made out for exercise of such discretion. Discretion is not to be exercised on vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted.

(3.) IN P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640, the aforesaid principle was reiterated by the Apex Court and it was held :