Smt. Deepa W/O. Sunil Sahare vs the Returning/ Election Officer, Municipal Council, Gondia and Others

The Returning/Election Officer, Municipal Council, Gondia, Office at S.D.O. Office, First Floor, Administrative Building, Jai Stambh Chowk, Taluka and District Gondia.

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Niharika Ravindra Pardhi, Aged 21years, Occ: Student, R/o Seth Surajmal Ward, Shankar Chowk, Tahsil and District Gondia.

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Vishakha Yogesh Tembhurne, Aged 35 years, Occ: Housewife, R/o Sundar Nagar, Near Harikashi Nagar, Tahsil and District Gondia. RESPONDENTS

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Shri H.S. Chitaley, counsel for the petitioner. Shri M.R. Joharapurkar, counsel for the respondent no.2. None for the respondent nos.1 and 3, though served.

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CORAM : PRAFULLA S. KHUBALKAR, J.

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DATE ON WHICH ARGUMENTS WERE HEARD : APRIL 10, 2026 DATE ON WHICH JUDGMENT IS PRONOUNCED : APRIL 27, 2026

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JUDGMENT

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RULE . Rule made returnable forthwith and heard finally with consent of the learned counsel for the parties.

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By this petition, the petitioner has raised a challenge to the order

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dated 06.03.2026 passed by the Court of District Judge-1 and ASJ, Gondia, by which an interim application for recounting of votes is allowed in the pending election petition bearing Election Petition no.2 of 2026.

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2704WP2251-26.odt 2 Judgment

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The respondent no.2 has filed Election Petition no.2 of 2026 before the Principal District Judge, Gondia, challenging the election of the petitioner as a Councilor from Ward no.9, Seat no.9A of Municipal Council, Gondia. The petitioner herein appeared in the election petition and filed her written statement. The elections in question were held in December 2025, in which the petitioner herein was elected by defeating the respondent no.2 by one vote. During pendency of Election Petition, before the evidence could be started, the election petitioner filed an interim application at Exhibit 5 seeking immediate recounting of votes. The elected candidate opposed the said application, however by order dated 06.03.2026, the trial Court has allowed the said application. Feeling aggrieved by this order the elected candidate has filed the instant petition. For the sake of convenience, the petitioner herein is referred to as the ‘elected candidate’ and the respondent no.2 herein is referred to as the ‘election petitioner’.

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The contentions put forth by the election petitioner, vide her application at Exhibit 5, for seeking recounting of votes were firstly,that the earlier request of recounting of votes as made by the election petitioner before the Election Officer was rejected without any reason; secondly, that there was discrepancy in the declaration of results as the election petitioner was declared as elected candidate through announcement from microphone, however, the result was later on changed and the petitioner herein was declared as elected candidate; and thirdly, while counting the postal ballots, one postal ballot was rejected without transparency.

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The elected candidate opposed the application by filing her reply dated 12.01.2026 by which the contentions raised for recounting, were specifically denied. The elected candidate in her reply stated that there is no provision on the basis of which an interim relief of immediate recounting of votes can be claimed. The elected candidate opposed the contention that the election petitioner was declared as winner by announcement on microphone and she also opposed the contention that there was any discrepancy, in the counting of postal ballot papers. The elected candidate opposed the contention that the election petitioner had requested for recounting of votes before the Election Officer or there was any illegal refusal by the Election Officer. The elected candidate also submitted that the interim relief of recounting of votes was in the nature of final relief and the application, therefore, deserved to be rejected with compensatory costs of Rs.25,000/-.

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The trial Court passed the order on 06.03.2026 and allowed the application by inferring that recounting of the votes was necessary for deciding the controversy in the election petition. The trial Court has observed that since the election petitioner has lost the election by one vote, the Returning Officer ought to have considered the application for recounting of votes and since the application was not considered, there is sufficient reason for allowing the application for recounting of votes. By relying on the position of law as laid down by the High Court of Allahabad in Mohd. Mustafa Versus U.P. Ziladhikari & Others [ 2007 SCC OnLine All

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4 Judgment

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1564 ], the trial Court has observed that an election Court can grant prayer for recounting of votes at any stage and in view of the fact that the election petitioner has lost the election by only one vote and further the request for recounting of votes was not considered by the Election Officer, the trial Court concluded that the election petitioner has made out a case for grant of interim relief of recounting of votes.

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Shri H.S. Chitaley, learned counsel for the elected candidate raised several contentions for challenging the impugned order. He submitted that an application for recounting of votes cannot be allowed before any evidence is led in the election petition. He also submitted that the election petitioner has prayed for the relief of recounting of votes as an alternate prayer in the main election petition and by allowing the interim application, the trial Court has granted the final relief at an interim stage, which is not permissible. The trial Court has committed an error in allowing the application by ignoring the settled principle that secrecy of ballot is sacrosanct in democratic process of election. He also submitted that the difference of votes being only one, cannot be a reason to presume that there was any illegality in the counting of votes, requiring recounting at this stage, even before any evidence is laid in the election petition. Further, the application submitted for recounting at the time of counting was cryptic and did not mention any reasons and as such the same cannot be made the basis to ask for recounting even without any evidence being led.

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2704WP2251-26.odt 5 Judgment

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In support of his submissions, Shri H.S. Chitaley, learned counsel for elected candidate placed reliance on the following case laws:-

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P.K.K. Shamsudeen Versus K.A.M. Mappillai Mohindeen & Others [ (1989) 1 SCC 526 ].

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Duryodhan Mahadev Kale & Others Versus Election Returning Officer, Grampanchayat Redni & Others [ 2004(2) Mh.L.J. 861 ].

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Anjali Deepak Mundlik & Another Versus Returning Officer, Gram Panchayat Badnapur, Jalna & Others [ 2008(3) Mh.L.J. 187 ].

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Kattinokkula Murali Krishna Versus Veramalla Koteswara Rao & Others [ (2010) 1 SCC 466 ].

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Satyanarain Dudhani Versus Uday Kumar Singh & Others [ 1993 Supp (2) SCC 82 ].

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By pointing out the position of law, as laid down by the Hon’ble Supreme Court in P.K.K. Shamsudeen (supra), the judgment of the Full Bench in Duryodhan Mahadev Kale & Others (supra) and the judgment of the Division Bench of this Court in the matter of Anjali Deepak Mundlik & Another (supra), he vehemently submitted that an order of recounting of votes can be passed by the election Court only after the parties lead evidence and on the basis of evidence point out any kind of irregularity or illegality, necessitating recounting of votes. He submitted that in absence of any evidence, no inference can be drawn based on mere allegations about irregularities in the counting or declaration of results.

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By relying on the judgment in Kattinokkula Murali Krishna (supra),

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he submitted that the difference of one vote in between the winning and

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2704WP2251-26.odt 6 Judgment

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losing candidate is of no significance while considering an application for recounting of votes in the election petition since the recounting has to be ordered rarely and on the basis of specific allegations and proof about any illegality or irregularity.

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By relying on the judgment in Satyanarain Dudhani (supra), he submitted that a cryptic application before the Election Officer seeking recounting of votes without mentioning any reasons cannot be the reason for the Election Court to infer the necessity for recounting of votes even before evidence is laid.

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Per contra, Shri M.R. Johrapurkar, learned counsel for the election petitioner, vehemently opposed the petition and submitted that the election Court has given due consideration to all the relevant aspects while ordering recounting of votes. By pointing out the reasons mentioned in the application for recounting, he submitted that the election petitioner has made out a case in view of the refusal of earlier request for recounting by the Election Officer and the discrepancies in the declaration of results. He submitted that since there was a difference of only one vote, the recounting of votes during pendency of the election petition would facilitate the decision of the election petition.

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In support of his submissions, the learned counsel for the election petitioner placed reliance on the judgment of the Hon’ble Supreme Court

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in Chandeshwar Saw Versus Brij Bhushan Prasad & Others [ (2020) 12 SCC 70 ] and submitted that there is no prohibition in the Act or the Rules

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7 Judgment

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prohibiting the election Court or Tribunal to direct recounting of votes. In support of his submissions, he placed heavy reliance on the judgment of the Allahabad High Court in Mohd. Mustafa (supra) and submitted that an election Court is empowered to direct recounting of votes at any stage of the election petition and such an order is in aid of final determination of the election petition. By relying on this judgment, he submitted that the order of recounting of votes by itself does not dispose of the election petition finally and the election petition can be decided on the basis of evidence to be laid, even after the recounting of votes is conducted. He submitted that the trial Court has given due consideration to the factual and legal aspects and the order of recounting of votes does not warrant interference on any count.

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In the backdrop of above submissions, rival contentions fall for my consideration.

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While dealing with the controversy, it has to be noted that undisputedly the application for recounting of votes is filed even before any evidence is laid by any of the parties. The trial Court has directed recounting of votes by considering contentions of the election petitioner as mentioned in the application at Exhibit 5. As such, the primary contention canvassed on behalf of the elected candidate, who is the petitioner in the instant petition, about the stage at which the order of recounting of votes is passed, needs primary consideration. It has to be noted that the contentions put forth for seeking recount of votes about refusal of earlier request for recounting before the Election Officer or the alleged earlier

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2704WP2251-26.odt 8 Judgment declaration of the election petitioner to be the winner or the alleged discrepancy in the counting of postal ballots, are not proved by leading any evidence. True it is, that there is a difference of only one vote in the returned candidate and the defeated candidate, it has to be noted that the elected candidate i.e. the petitioner herein was ultimately declared as a winner and she is holding the post of Councilor as on today. Her election is challenged by way of the election petition in which she has filed the written statement and is contesting the election petition on merits and as such the grounds raised and allegations made are subject matter of adjudication on merits.

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As regards the stage at which the order of recounting of votes can be made, it is beneficial to refer to the position of law as laid by the Hon’ble Supreme Court in P.K.K. Shamsudeen (supra), the judgment of the Full Bench of this Court in Duryodhan Mahadev Kale & Others (supra) and the judgment of the Division Bench of this Court in the matter of Anjali Deepak Mundlik & Another (supra). The position of law as culled from all these judgments is that an order of recounting of votes can be passed on the basis of evidence laid by the parties, showing the circumstances necessary for recounting of votes. In this regard, the following observations made by the full bench in Duryodhan Mahadev Kale & Others (supra) after considering the judgment of the Hon’ble Supreme Court in P.K.K. Shamsudeen (supra), in paragraph 12 of the judgment are reproduced below:-

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9 Judgment

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“12. Even before P. K. K. Samsudeen, in R. Narayanan vs. S. Semmalai, (1980)2 SCC 537, the High Court granted the prayer of the defeated candidate and orders re-counting observing (like the present case) that although there was no clear evidence of any irregularity in counting, there was a possibility of erroneous sorting and counting of votes. Another circumstances weighed with the High Court was small margin of votes (19 votes) between the returned candidate and the defeated candidate.

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Reversing the order of the High Court, the Supreme Court stated;

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"The court would be justified in ordering re-count of the ballot papers only where:

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(1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality of counting are founded;

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(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and

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(3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.”

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Further, on consideration of the position of law in other judgments referred above, the common thread which runs through, is requirement of leading evidence before entertaining any application for recounting of votes. In the instant case, undisputedly evidence is not yet led by any of the parties and the application for recounting of votes is decided only on the basis of mere allegations as contained in the application filed by the election petitioner. It has also to be noted that the election petitioner has made a prayer for recounting of votes in the main petition, which could be decided after evidence is led by the parties. It has also to be noted that

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there are no compelling circumstances, warranting immediate recounting

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10 Judgment

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of votes, even before recording any evidence. The only reason stated by the trial Court in the impugned order about the earlier refusal by the Election Officer for recounting of votes, could also be considered after the evidence is led in that regard, since at this stage it is a disputed question of fact as it is denied by the elected candidate.

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The position of law as laid down in the judgments relied upon by the counsel for the election petitioner is not disputed. However, in the light of the observations recorded by the Hon’ble Supreme Court about the stage at which the application for recounting of votes has to be considered, the judgments relied upon by the counsel for election petitioner are not of any assistance.

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Although the election Court has passed the impugned order by considering the position of law as laid down by the Hon’ble Allahabad High Court in Mohd. Mustafa (supra) however, in view of the position of law as laid down by the Hon’ble Supreme Court in P.K.K. Shamsudeen (supra) and other judgments referred above, I am of the considered opinion that the impugned order directing recounting of votes was unwarranted before any evidence is led by the parties.

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Thus, after giving anxious consideration to the contentions canvassed on behalf of both the parties, I am of the opinion that the impugned order directing recounting of votes does not stand to the scrutiny of law and needs to be quashed and set aside.

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11 Judgment

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It has to be noted that the instant petition is decided by considering the contentions as put forth in the interim application for recounting of votes and by considering the position of law and as such any observations in this regard are limited to this extent. The trial Court is entitled to decide all the contentions on the basis of evidence to be led by the parties by way of oral and documentary evidence.

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In the light of the above, it has to be noted that the election petitioner would be entitled to file a fresh application for the purpose of recounting of votes, if advised, after the parties lead evidence and if such an application is filed by either of the parties, then such application be considered by the election Court in the light of the pleadings, evidence of parties and well settled principles governing the counting of votes as laid down in several judgments, including those referred above.

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In view of the above mentioned factual and legal aspects, the writ petition is allowed. The order dated 06.03.2026 passed by the trial Court on the application at Exhibit 5 in Election Petition no.2 of 2026 is quashed and set aside. The application filed by the election petitioner seeking recount of votes, at Exhibit 5, is rejected.

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Rule is made absolute in aforesaid terms with no order as to costs.

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(PRAFULLA S. KHUBALKAR, J.)

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APTE

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Signed by: Apte Designation: PS To Honourable Judge Date: 28/04/2026 19:04:54

Smt. Deepa W/O. Sunil Sahare v. the Returning/ Election Officer, Municipal Council, Gondia and Others

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Smt. Deepa W/O. Sunil Sahare v. the Returning/ Election Officer, Municipal Council, Gondia and Others

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