JUDGMENT
G.C. Garg, J.
1. Few facts giving rise to this petition under Article 227 of the Constitution of India are that the petitioner and the respondent contested election for the office of Sarpanch of Village Chhochhi, Tehsil Jhajjar, ‘District Rohtak, which was held on 19 12.1994. Petitioner secured 626 votes, whereas respondent secured 625 votes and as such the petitioner was elected and declared as Sarpanch of the Grani Panchayat. Respondent filed an election petition under the Haryana Panchayati Raj Act, 1994 (herein after referred to as the Act) for setting aside the election of the petitioner. He also sought a declaration that he be declared elected as Sarpanch. The election was challenged inter alia on the ground that the counting took place in candle light and in a very hasty manner, that three invalid votes were wrongly counted as valid votes in favour of the returned candidate, three valid votes polled in favour of the election-petitioner were wrongly counted in favour of the returned candidate by keeping the same in his bundle and that the petitioner gave an application for recounting but the same was not entertained on the false pretext that there was likelihood of breach of peace. It was also stated that the election-petitioner obtained nine more valid votes than the returned candidate and the facts can be proved if the recounting was done. Recounting was thus prayed on the above allegation. The allegation was denied by filing a written statement. Election-petitioner, however, moved another application, wherein, he prayed that recounting of votes may be ordered and the result of the election be declared accordingly. The allegation seeking recounting of votes was the same as was made in the election petition. The allegation made in the application was controverted by filing a reply by the returned candidate.
2. The application for recounting of votes was considered by the Sub Judge, 1st Class, Jhajjar, who by his order dated 4.3.1995, allowed the same in view of the provisions of Section 176(4) (b) of the Act and ordered the recounting of the votes. Copy of the order is Annexure P-4/1 to this petition. In pursuance of the order dated 4.3.1995, recounting of votes took place in the presence of the learned counsel for the parties on 8.5.199;. Sh. Rajbir Singh, S. E. P. O. Beri, who acted as the Counting Officer found that both the candidates secured 629 valid votes each, and that the Returning Officer had wrongly mentioned the invalid votes as 48 against 23 actually found on reopening of the bundle. The matter was thereafter adjourned to May 31, 1995 for consideration on the request of learned counsel for the returned candidate.
3. The returned candidate filed this petition in the month of June 1995, challenging the orders dated 4.3.1995 and 8.5.1995.
4. On notice of motion being issued, respondent has put in appearance through Sh. R. K. Malik, Advocate.
5. Learned counsel for the parties prayed that this revision petition may be disposed of at the motion stage.
6. Counsel for the parties have been heard at some length.
7. In order to appreciate the controversy raised in this petition, it is necessary to notice the relevant provisions of Section 176 of the Act.
“176.(4)(a) “If on the holding of such inquiry the Civil Court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5) he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held.
(b) If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour to have been duly elected :
Provided that after such computation, if any equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected ; one additional vote shall be added to the total number of valid votes found to have been received in the favour of such candidate or candidates as the case may be, elected by lot drawn in the presence of the judge in such manner as he may determine.”
8. Learned counsel for the petitioner submitted that the learned trial Court acted illegally in ordering recount of votes. According to the learned counsel, recounting could not be ordered without affording an opportunity to the parties to lead evidence or merely because there was some chance of the election-petitioner on recount finding some of his votes to have been wrongly rejected or some of opponent’s votes to have been wrongly accepted. According to the learned counsel, the allegation made in the application did not justify the grant of prayer for recount as it was nothing but a fishing inquiry, which was not permitted by the statute. Learned counsel in support of his submission placed reliance on Basant Singh v. Ram Partap Garg, 1965 (Supplement) Punjab Law Reporter 538, and Bhabhi v. Sheo Govind and Ors., 1975 (Supplement) Supreme Court Reports 202.
9. Learned counsel for the respondent, however, submitted that the election-petitioner moved an application before the Returning Officer at the time of counting of votes with a prayer for recounting of votes but the application was not entertained and that he did not challenge the election of the returned candidate on any other ground except that the votes be recounted as invalid votes had been counted in favour of the returned candidate and some votes validly polled in favour of the election-petitioner had been put in the bundle of the returned candidate. Placing reliance on the provisions of clause (b) of sub-section (4) of Section 176, he submitted that a special provision has been made in the Act for ordering scrutiny and computation of the votes recorded in favour of each candidate in order to dispose of the election petitions at a very early date, having regard to the fact that the duration of the office of the elected Sarpanch is only three years.
10. On a consideration of the matter, I am of the opinion that this revision petition has no merit and deserves to be dismissed. A reading of clause (b) of sub-section (4) of Section 176 clearly gives an indication that in cases where provisions of clause (a) of sub-section (4) does not apply, namely, where the challenge to the election of the returned candidate is not on the ground of .corrupt practice within the meaning of sub-section (5) of Section 176, the civil Court can after scrutiny and computation of the votes re corded in favour of each candidate declare the candidate, who is found to have the largest number of valid votes in his favour, to have been duly elected. The provision as contained in the sub-section appear to me clear and unambiguous. It is not necessary in each and every case to afford an opportunity to the parties to first lead evidence before coming to the conclusion whether it is a fit case for ordering recounting of votes or not. The provisions contained in the sub-section are couched in different language than those contained in the Representation of People Act. Two judgments relied upon by the learned counsel for the petitioner are under the Representation of People Act and thus have no application to the facts of this case. The above observations made, however, be not understood to mean that the recounting of votes can be ordered just at the asking of the election-petitioner. It will depend on the facts and circumstances of each case and the allegation made seeking recounting of votes. Ordinarily recounting of votes would not be allowed where, the allegation made and accepted, the result of the election would not be materially affected. The election-petitioner seeking recount of votes is prima facie required to make out a case for recounting of votes, which may prima facie show that the result of the election is likely to be materially affected.
11. As already noticed, returned candidate polled 624 valid votes whereas the election-petitioner polled 625 votes as per the Returning Officer. The Returning Officer has recorded 48 as rejected/invalid votes, whereas on scrutiny the bundle was found to contain only 23 votes. The returned candidate only won by one vote and the allegation made in the application seeking recounting of votes was that three invalid votes had been counted as valid in favour of the returned candidate and another three votes validly cast in favour of the election-petitioner were kept in the bundle of the returned candidate and were not counted in his favour. In the above situation, I think the learned Presiding Officer was right in ordering recounting of votes arid no exception can be taken to the order passed. It is not disputed that the votes have already been counted by Counting Officer appointed by the Subordinate Judge and admittedly both the candidates have now obtained 629 valid votes each. The result of recount to a great extent also supports the allegation made by the election-petitioner in his application for recounting of votes.
12. In view of the above, this revision petition is dismissed. The learned subordinate Judge shall now proceed further in the matter according to law. Interim order dated June 6, 1995 is vacated.