Dr. A.S. Anand, CJI., R.C. Lahoti and K.G. Balakrishnan, JJ.
1. The appellant was elected as Member of Gram Panchayat, Aklad on a seat reserved for O.B.C. from Ward No. 3. The election was challenged by respondent No. 3 by way of an election petition filed before Joint Civil Judge, Junior Division, Dhule. The principal ground of attack in the petition was to the effect that as many as 12 votes which were required to be counted in favour of Respondent No. 3 had been wrongly held invalid. Respondent No. 3 lost the election by 4 votes only. It is not disputed that Respondent No. 3 had filed an application for recount immediately after the counting was over on 27th October, 1997, but the returning officer rejected the application on 29th October, 1997, primarily on the ground that result of the election had in the meantime been declared. The Tribunal hearing the election petition took note of the situation and directed the calling of the ballot papers to the Court and appointed a Commissioner for recounting of votes. The parties were directed to suggest name of the Commissioner. The order of the Tribunal (Joint Civil Judge, Junior Division), dated 1.12.1997 was challenged by the appellant through Writ Petition No. 48 of 1998 in the Aurangabad Bench of the High Court of Judicature at Bombay. A learned single Judge of the High Court, vide order dated 6.1.1998., opined that since the election petitioner – Respondent No. 3 had made specific allegations about the alleged irregularities committed in the counting of votes, the order of the Tribunal, directing recount did not call for any interference.
2. After hearing learned Counsel for the parties and examining the available record, we find that in the face of the observations by the High Court regarding the making of specific allegations about alleged irregularities and illegalities in the counting of votes, the view expressed by the Tribunal, which has been upheld by the High Court, is u1-exceptionable. Delay by the returning officer to decide the application seeking recount, filed by the applicant immediately after the counting was over and before the result was declared, could not be used to the disadvantage of the election petitioner. To see (sic) the least it was unfair to the election petitioner. We, therefore, do not find any reason to interfere with the impugned order. The appeal fails and is hereby dismissed but without any order as to costs.
3. It is, at the request of learned Counsel for the appellant, clarified that the dismissal of this appeal would not come in the way of the appellant, should an occasion arise for him to agitate the matter after recounting of the votes takes place. We do hereby so clarify.