Untwalia, J.:— The petitioner has obtained a rule from this Court on his application filed under Articles 226 and 227 of the Constitution of India against the respondents to show cause why the orders dated 15-11-65 and 21-12-65 of the Election Tribunal ordering the recounting of the ballot papers in respect of the election of the Mukhiya of Jawanganj Gram Panchayat in the district of Gaya be not called up and quashed. Cause has been shown by Mr. Raghunath Jha on behalf of respondent No. 1—fee petitioner who filed the election petition and at whose instance the Impugned orders have been made—and by the learned Additional Standing Counsel on behalf of the State of Bihar.

2. The petitioner' case in short is that he was elected Mukhiya of the Gram Panchayat aforesaid in the election held on the 21st of May, 1965. The first respondent, by an application filed under the Bihar Panchayat Elections Rules, 1959, hereinafter called the Rules, challenged the election of the petitioner and claimed a further relief feat it should be declared that the respondent No. 5 was the duly elected Mukhiya in the election petition, a copy of which is annexure A to the writ application, amongst others, fee grounds stated in the following paragraphs are these—

“18. That a large number of rotes fit to be rejected under G.P Election Rules were wrongly counted in favour of Shri Maksudan Ram fee respondent No. 1 by the presiding officers of all the booths.

19. The several votes cast in favour of the respondent no. 5 were wrongly rejected at the time of counting by fee Presiding Officers at Jawangunj and other booths A proper scrutiny of fee ballot papers would show that fee voters had clearly indicated their intention in favour of fee respondent No. 5.

28. That a reasonable opportunity to inspect the ballot papers was not given to the polling agents before rejecting the same.

21. That a prayer was made on behalf of the polling agents for recount of ballot papers but the presiding officer declined to do so.

22. That a proper scrutiny and recount of fee ballot papers said to have been polled in favour of fee respondent No. 1 Shri Maksudan Ram and the rejected ballot paper is necessary in the ends of justice”.

3. The petitioner's case is that when the counting was done by the Presiding Officer on the day when the election was held, polling events of nil the contesting candidates were present including the agent of respondent no. 5, for whose benefit respondent no. 1 seems to have filed the application, and this would appear from the chart (annexure A to the writ application).

4. The sole Member of the Election Tribunal. Mr. S.A Hassan, made an order on 15-11-65 in these terms.

“The prayer for the counting of ballot papers is allowed.”

4. The petitioner filed an application on 6-12-65 praying to the Election Tribunal to recall the order dated 15-11-1965. No reasons were given for ordering recounting on 15-11-65. But while rejecting the prayer of the petitioner for recalling that order, reasons were given in support of the order made for recounting, and those reasons are contained in the order dated 21-12-65. And feat is why both the orders have got to be read together and have been challenged in this application in the latter order the Tribunal has said

“On the perusal of the election petition it would appear that the petitioner has alleged specific instances that votes feat were counted for respondent No. 1 should have been counted for respondent No. 5 and that votes cancelled were polled in favour of respondent No. 5 and so on. It also appears that the difference in the margin of votes was only nine (9). and the main allegation of the petitioner is about improper counting of ballot papers in favour of respondent No. 5. That being so, I do not see why the prayer of the petitioner for recounting of ballot papers before fee recording of evidence should not be granted.”

5. The petitioner was respondent No. 1 and respondent No. 5 was also respondent No. 5 there. The points have been urged in support of this application by Mr. K.P Verma, learned counsel for the petitioner—(i) that the Election Tribunal dealing with the election disputes under the Rules has no power to order inspection or recounting of fee ballot papers; and (ii) that in any event, even if the power be there, it has been arbitrarily exercised by committing an error of jurisdiction in exercise of that power.

6. A comparison of some of the rules of the Bihar Panchayat Elections Rules with the provisions of the Representation of fee People Act, 1951 (Act 43 of 1951) and the Conduct of Elections Rules, 1961 will be useful in order to appreciate the first point. Section 83 of Act 43 of 1951 says—

“(1) An election petition

(a) shall contain a concise statement of the material facts on which the petitioner relies, x x x”

7. To the same effect is the provision contained in rule 75 of the Rules. Section 90 of the said Act says—

“(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, ts nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure 1908 (5 of 1908), to the trial of suits:……”

8. A similar provision is to be found contained in sub-rule (2) of rule 79 of the Rules. Section 92 of the said Act provides the power of the tribunal in specific terms under the Code of Civil Procedure when trying a suit in respect of certain matters—clause (a) of that section is in respect of discovery and inspection and other clauses are regarding the attendance of witnesses, production of documents, examination of witnesses, etc. In rule 86 of the Rules, the provisions contained in clauses (b) to (g) of section 92 with slight variations have been incorporated in clauses (a) to (f) of rule 86 of the Rules. But it is significant to note that clause (a) relating to the power of the tribunal as to discovery and inspection has been omitted.

9. In Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 Gajendragadkar, C.J has said at page 783.

“Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers.”

10. This power not having been granted in express terms to the election tribunal trying election disputes under the Rules, it can be legitimately inferred that the State Government omitted the power to order discovery and Inspection purposely and did not like to grant this power to such a tribunal. The learned Additional Standing Counsel who supported the contention put forward on behalf of respondent No. 1 that the power to order discovery and inspection is there in the election tribunal of the Gram Panchayat, could not give any answer as to why then clause (a) of section 92 has not been incorporated in rule 86 of the Rules. While recognising such a power in the election tribunal trying election disputes, in relation to the elections held under the Representation of the People Act, Shah, J., in Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, has pointed out at p. 1251 that the Returning Officer not being a party to an election petition, an order for production of ballot papers cannot be made under Order 11 of the CPC—that is to say—exactly and precisely in exercise of the powers granted under clause (a) of section 92 of Act 43 of 1951. But the election tribunal

“is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit a Ss. 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from O. 11 of the CPC may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Ss. 94 and 128(1).”.

11. On comparison of the sections aforesaid of Act 43 of 1951 and, specially, of sub-clause (iii) of clause (d) of sub-sec. (1) of sec. 100, it would be noticed that the specific ground for declaring an election to be void, as embodied in that sub-clause, namely, “the improper reception, refusal or rejection of any vote or the reception of any vote which is void” is not to be found in rule 82 where the grounds on which an election in relation to a Gram Panchayat can be declared to be void are mentioned. That, in my opinion, is an additional reason for taking the view that the State Government, in their wisdom and in exercise of their powers to frame statutory rules, did not provide for setting aside the election of a Gram Panchayat on the ground of improper reception or rejection of votes by ordering their recounting or inspection at the trial of the election dispute.

12. Learned counsel for respondent No. 1 as also learned Additional Standing Counsel for the State of Bihar submitted in reply that in rule 82 an omnibus ground on which an election in relation to a Gram Panchayat can be set aside is there contained in the phrase “any sufficient cause” and for exercising the power of inspection or recounting, the general power contained in rule 87 is there, which says

“In respect of any matter not specifically provided for in these rules, the Election Tribunal shall proceed in such manner as it considers proper in the circumstances of the case”.

13. In my opinion, this construction of the general provisions of rules 82 and 87 cannot be accepted as correct in regard to the power of ordering inspection or recounting. The expression “improper reception, refusal or rejection of any vote or the reception of any vote which is void “and the powers in respect of recounting and inspection” have got a legislative history behind it. Many controversies have arisen in decisions in relation to this matter. That being so, it is difficult to uphold the contention on behalf of the respondents that such a contingency, although not specifically provided for in rule 82 or 86, should be held to be covered by general provisions contained in the former rule or in rule 87.

14. Mr. Raghunath Jha, learned counsel for respondent No. 1, further referred to one distinct point of difference between rules contained in the Conduct of Election Rules and the Bihar Panchayat Election Rules. R. 56 of the former provides for scrutiny and rejection of ballot papers at the time of the counting. Corresponding to that provision, rule 58 is there in the Rules. And, that is done in presence of the candidates or their agents. That would be dear from both the rules. But one special power given to the Returning Officer under rule 63 of the Conduct of Election Rules to order recounting of all or any of the ballot papers already counted before declaration of result of the election is not to be found in the Rules in relation to election of Gram Panchayat. Mr. Jha submitted that rule 63 of the said Rules also was one of the reasons which induced the learned Chief Justice in the case reported in AIR 1966 SC 773 to hold on merits that recounting should not be easily ordered. But in absence of such a rule in the Rules under consideration, it should be readily inferred that the power to order recount of the ballot papers is necessarily there in the election tribunal. I am unable to accept this contention. To my mind, this again indicates that the framers of the Rules did not like in their wisdom to introduce the complication of recounting of votes cast in an election of the office-bearers of the Gram Panchayat at any stage-neither at the stage when the counting has been finished by the Presiding Officer or the Election Officer as the case may be nor at the stage of the trial of the election disputes. Compared to the number of elections which are held in the State of Bihar under the Representation of fee People Act the number of elections held under the Bihar Panchayat Raj Act and the Rules, is large enough to justify the keeping out the power of recounting of ballot papers where the counting has been done in accordance with the rules framed in relation to conduct of the Gram Panchayat election. In my opinion, therefore, the election tribunal has no power to order inspection or recounting of ballot papers under the Rules.

15. Even assuming that the power is there in the election tribunal, I am further of the view that it has been arbitrarily exercised in the instant case, without keeping in view the fundamental principles justifying the exercise of such power or giving jurisdiction to the tribunal for exercise of it. In Ram Sewak Yadav's case, AIR 1964 SC 1249 it has been pointed out at page 1252

“An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled-

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary

16. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported in averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, it the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believe that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.”

17. The same view has been reiterated in Jagjit Singh's case, AIR 1966 SC 773. In the background of these principles, firstly it is to be observed that the order dated 16-11-65 is no order in the eye of law as it does not indicate that the election tribunal exercised its power, if any, on the well-settled principles of few? the tribunal seems to have made an order for recounting as a matter of course, winch, in my opinion it had no power to do. When it was asked to recall that order, it Rave some reasons which I have extracted above from the order of the tribunal itself. But it would be noticed from the vague allegations made in the election petition that the reasons given by the tribunal for exercise of this power are not correct.

18. In paragraphs 18, 19 and 22 vague allegations have been made, and it would exactly be a case of abuse of power, it any, to allow the petitioner in his election petition to fish out evidence by ordering inspection and recounting of the ballot papers his allegations are too vague to indicate any specific materials in support of them. The allegations made in paragraphs 20 and 21 of the election petition could only be substantiated by adducing evidence, and it is all the more dear that the tribunal, without there being any evidence in support of those allegations, could not order inspection and recounting of the ballot papers unless it was satisfied that a prima facie case has been made out for exercise of such power on the evidence adduced. After all, it is to be remembered that secrecy of ballot papers is a fundamental principle in all democratic elections and such a secrecy should not be violated easily by any authority or court unless it becomes very essential in the interest of justice to do so. Even when such specific powers are there in the election tribunal in regard to election disputes under the Representation of the People Act the Supreme Court has always laid down and specially in recent decisions principles for circumscribing and limiting such power within very narrow bounds. That is all the more a reason that when no such power has been conferred in accordance with the express term of the Rules, the election tribunals trying election disputes in relation to election of Gram Panchayat should be more slow and reluctant to exercise such power even assuming that under the general provisions of the Rules referred to they have such power.

19. In the result, I allow the application and by virtue of the authority vested in the Court under Article 227 of the Constitution, I call up and quash the order dated 16-11-65 as affirmed by the order dated 21-12-65 ordering recounting of the vote or the ballot papers. I would make no order as to costs.

20. S.N.P Singh, J.:— I agree.

DK/VSD/G.G.M

21. Petition allowed.