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2025 DAILYLAW 3772 (HP)

Anu Rangta v. State of Himachal Pradesh

2025-10-29

G S Sandhawalia, Jiya Lal Bhardwaj

body2025
JUDGMENT : G.S. Sandhawalia, C.J. Consideration in the present Letters Patent Appeal is sought to the judgment passed by the learned Single Judge in CWP No.5245 of 2023 titled Ranju Vs. The State of H.P. and others, decided on 26.09.2025, filed by the elected candidate whose election has been set aside by recounting of the votes and holding that there was a difference of one vote between the present appellant, who was wrongly declared as a winning candidate. Resultantly, learned Single Judge set aside the order passed by the Authorized Officer-cum-Sub-Divisional Officer (Civil) Rohru, District Shimla, Himachal Pradesh dated 21.03.2022 and the order dated 06.05.2023, passed by the Deputy Commissioner, Shimla, District Shimla, Himachal Pradesh in appeal. 2. The reasons for interference by the learned Single Judge on the ground which he exercised the jurisdiction after taking a recount of the votes was that there was a consent as such given regarding the recounting of the votes by the counsel(s) and therefore, while placing reliance upon the judgment of the Apex Court in Civil Appeal No.10487 of 2025 titled Mohit Kumar Vs. Kuldeep Singh and Others, decided on 11.08.2025, it has been held that the Court could undertake the process of recounting. 3. Accordingly, since the report of the learned Registrar Accounts for the recounting process was taken into consideration whereby it was found that the present appellant-Anu Rangta who had stood for the elections of Pradhan in Gram Panchayat, Sari Development Block Jubbal, District Shimla, Himachal Pradesh under the symbol of “Lock and Key” and had recieved 243 non-objected votes, whereas, three votes were being objected too. 4. In contrast the election petitioner-Ms. Ranju who had contested under the election symbol of “Bucket”, had 245 votes cast in her favour and there was one objected vote and therefore both the candidates had 246 votes each, including the objected votes. One of the objected votes did not contain the mark of the instrument supplied and it was deemed to be invalid vote for the election petitioner-Ranju and therefore her tally of votes came to 245. The elected candidate-appellant had invalid vote bearing Serial No.3755009 as it contained the mark of instrument both against her name and as against the column of ‘NOTA’. Similarly, in the Ballot Paper bearing Serial No.3756288, it was found that two marks were present against the name of the elected candidate-Ms. The elected candidate-appellant had invalid vote bearing Serial No.3755009 as it contained the mark of instrument both against her name and as against the column of ‘NOTA’. Similarly, in the Ballot Paper bearing Serial No.3756288, it was found that two marks were present against the name of the elected candidate-Ms. Anu Rangta and against the name of another candidate namely-Anjana Chauhan. 5. The learned Single Judge had folded all the said Ballot Paper to find out that whether it was a smudge mark and came to the conclusion that the same was not possible. Resultantly, the said vote was declared as invalid vote having a mark against two candidates. Another vote as such which was disputed out of the three votes containing Ballot Paper bearing Serial No.3753592 had been checked and there was no smudge mark and no other mark it was validly considered against her name. Therefore, the entitlement from 243 was given to 244. 6. Resultantly, it has been held that the appellant had only polled 244 votes, whereas the election petitioner had polled 245 votes, since, her vote which had been objected to had found to contain not a proper mark. Resultantly, for the difference of one vote, the election petitioner was held to be a winning candidate and declared elected to the office of the Pradhan of the Panchayat, which had been held on 21.01.2021. Arguments of counsel for the appellant: 7. Mr. Ajay Sharma, learned Senior Counsel for the appellant has vehemently argued that the learned Single Judge had exceeded to his jurisdiction while exercising jurisdiction under Article 226 of the Constitution of India and submitted that as per the provisions of Section 164, the contents of the petition of the election petition had to show concise statement of material facts, on which the petitioner relied and a roving inquiry was not permitted as had allegedly been done by the learned Single Judge. He had also placed reliance upon Rule 76 of the “Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (for short the ‘Rules, 1994’) which provide for Scrutiny and Rejection of ballot papers to contend that the process had to be done by the Returning Officer on the grounds mentioned therein which provided that the ballot paper could be rejected on various grounds. These include when the voter could be identified or it did not bear any mark which would have been borne under the provisions of sub-Rule (3) of Rule 59, which provided that it had to be marked with such distinguishing mark as the District Election Officer (Panchayats) may direct or where it could have been marked in columns of more than one candidate or it had been marked by other than the equipment and the manner prescribed for that purpose. Similarly, reliance was placed upon Rule 79 of “Rules, of 1994” to contend that the recount of the votes had been prayed for and not the scrutiny and rejection of the ballot papers. The learned Single Judge had mixed up the said issue while examining the ballot papers while coming to a conclusion which was not permissible, keeping in view the strict law which governs the election petition. 8. It was thus argued that there was no specific allegations in the election petition of wrongful stamping and the only issue was regarding 13 votes, which were held to be invalid and which had been allegedly cast in favour of the petitioner and therefore the scrutiny as such of the invalid votes in dispute which had been polled out of the total 944 was beyond the jurisdiction which the learned Single Judge had gone into and examined the objected three votes of the appellant and the one vote of the election petitioner. 9. Resultantly, reliance was placed upon judgment of the Apex Court in Bhabhi Vs. Sheo Govind and Others (1976) 1 SCC 687 to contend that the secrecy of the ballot paper was sacrosanct and the allegations made against the elected candidate must be clear and specific and supported by adequate statements of material facts; and the indulgence in a roving inquiry with a view to fish out materials for declaring the election to be void was not permissible. 10. He has also placed reliance upon judgment of the Apex Court in Vijay Bahadur Vs. Sunil Kumar & Others [2025] 4 S.C.R. 11 to contend that the view of the Apex Court was consistent that there have to be specific allegations and fishing out evidence could not be permitted and order of recount could not be ordered as a matter of course. 11. Lastly, while placing reliance upon Civil Appeal No.2517 of 2023 titled Dharmin Bai Kashyap Vs. 11. Lastly, while placing reliance upon Civil Appeal No.2517 of 2023 titled Dharmin Bai Kashyap Vs. Babli Sahu & Others, decided on 16.08.2023, it was contended that the Deputy Commissioner while allowing the appeal of the appellant had come to the conclusion that there was no application given in writing for recount of the votes to the Returning Ofifcer and therefore in the absence of the same while falling back on Rule 79 sub-Clause (2) of the ‘Rules, 1994’ it was contended that it was not disputed that no application has been given in writing for the recount and therefore, it was not permissible. While arguing that in the absence of any such request, recourse by the learned Single Judge for the said procedure was uncalled for. Arguments of counsel for respondent No.6: 12. Mr. Ankush Dass Sood, learned Senior Counsel for respondent No.6 on the other hand argued that it was not disputed that in the initial stage the election petitioner had been elected under the difference of as many as 15 votes initially polled to the tune of 259 against 244, but the Returning Officer had wrongly not declared the result. Without any request recounting had taken place and as per the evidence and record admittedly it had been done on three times. 13. The last of the recount was that the votes were equal and thereafter on account of the toss, the appellant had been declared elected wrongly and therefore the recourse followed by the learned Single Judge was well justified. Having given its consent, the petitioner as such was estopped from objecting to the said methodology in an appeal. 14. He has placed reliance upon the principle of estoppel acquiescene and waiver and fallen back on the judgment passed by the Apex Court in Chairman, State Bank of India and Another VS. M.J. James (2022) 2 SCC 301 , wherein it has been held that acquiescence could be either direct with full knowledge and express approbation, or indirect and it was an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right and cannot afterwards complain. 15. He has also placed reliance upon a three-Judge Bench judgment of the Apex Court in Sohan Lal Vs. 15. He has also placed reliance upon a three-Judge Bench judgment of the Apex Court in Sohan Lal Vs. Babu Gandhi and Others (2003) 1 SCC 108 to submit that even in the absence of the written application, if there was sufficient evidence on record the Court or Tribunal as such could order to direct recounting of the votes and there is still no prohibition in the Act or under the Rules. 16. Accordingly, it is argued that the scrutiny and recount could not be limited to ballot papers which were objected to only or declared invalid but it was the larger exercise and all the ballot papers have to be examined and the Court was not helpless to examine other ballot papers to come to the conclusion and if there was an error apparent and the Court could always exercise jurisdiction. Pleadings and evidence on record: 17. It is in this limited context, we have to see whether the learned Single Judge had kept himself within the parameters prescribed and whether there was any specific evidence on record on the basis of which interference could have been done while exercising the jurisdiction and dealing with the issue which was subject matter of consideration arising out of the order of the Authorized Officer, while dealing with the election petition. 18. Firstly, it is important to take into consideration what was the specific case as such of the election petitioner and what was the material on record on the basis of which the proceedings had been initiated. 19. It is to be noticed in the grounds which had been raised on which the petition had been filed under Sections 162, 163 and 164 of the ‘The Himachal Pradesh Panchayati Raj Act, 1994 read with Section 175, it was specifically stated that in ground No. 3 (vii) that the election petitioner had been declared elected and had led the process by 15 votes and after deducting the valid votes casted in her favour she was declared to be a defeated candidate by draw of lots. 20. 20. Similarly, it was again stated that 259 votes have been cast in her favour and 244 votes in favour of the elected candidate and she had been declared to be a winner and on being congratulated by her agent had come inside to sign as such when the Returning Officer had asked her that he had declared the respondent No.1 as a Pradhan by way of draw. Thus no proper procedure had been followed and the entire election process was null and void. The 13 of the votes as such which were valid and cast in her favour had been declared invalid and there was no double stamps. Resultantly, the total number of ballot papers deserved to be opened before the Court so they were to be recounted. 21. In the written statement, the fact of recounting already done three times at the spot when there were 20 agents present which fact was admitted by the appellant. It was also admitted that after agreeing of the draw, all the agents had signed the vote counting completion form. The factum of getting equal valid votes and call for the draw of votes was admitted. 22. The Authorized Officer in his decision dated 21.03.2022 had examined the evidence on record of the witnesses who had appeared in which the election petitioner had examined herself and PW-2 Subhash. The elected petitioner had examined six witnesses in defence including official witnesses and the Authorized Officer had held that the counting was done three times. Similarly, the cross-examination of the witness RW- 3-Joginder Singh had been done by the elected candidate and it has come in the evidence that in the first counting, the election petitioner had got 249 votes and the elected candidate got 246 votes but the result had not been declared. In the second round of the counting of petitioner, two votes were counted in favour of another candidate and one vote was blank and in the third counting both got equal votes. Similarly, the Presiding Officer as well as of the Counting Officer RW-4-Manoj had stated that in the first counting, the election petitioner-Ranju was winning and the second counting, the elected candidate-Anju Rangta had won and there was difference of one or two votes and votes were counted three times. RW-5-Amrit Thakur, the Presiding Officer/Counting Officer stated that counting was done as per the procedure. RW-5-Amrit Thakur, the Presiding Officer/Counting Officer stated that counting was done as per the procedure. Whereas, the Assistant Reutrning Officer namely Sh. Rohit Sahuta while appearing as RW-6 stated that the votes were found equal in all the three times and the counting have been done three times and therefore, the draw of lots has been done as per law. He is stated to have raised allegations against the husband of the election petitioner that he had shouted and created the dreadful situation on the spot and was not satisfied with the first counting and second counting was done and he was satisfied with the second counting but third counting was done for self-satisfaction. Resultantly, the finding was recorded that the Assistant Returning Officer has done recounting without any written application form, which was required by law and there was no result of the first and second counting on the record. 23. In such circumstances, recounting was ordered by the Authorized Officer as there was sufficient evidence and material to show that there was an infirmity as such to the procedure prescribed as apparently, the first recounting was done without any written application and also, the result had not been declared. The said order had been then challenged in the appeal and the Deputy Commissioner had then taken technical view in the absence of any application for recounting and the result having been declared, the Authorized Officer as such was wrong in passing the order for recount and set aside the same. Our reasoning to uphold the order: 24. It is also a matter of record while placing reliance on Rule 79 of the ‘Rules, 1994’ the said order passed by the Deputy Commissioner was without even appreciating or dealing with the evidence which is there as apparently there was an admission of the witnesses of the election petitioner of the elected candidate. In the first round of counting, the election petitioner had got more votes. Unfortunately, the Deputy Commissioner had relied upon the provisions as such of Rule 79 of the ‘Rules, 1994’ without appreciating the law laid down by the Apex Court in Sohan Lal case (supra), which provides that on the basis of evidence led on record, the resort as such can be done to, wherein subject matter of consideration as such was the earlier view in Ram Rati Vs. Saroj Devi and Others (1997) 6 SCC 66 which was overruled. Resultantly, it was held that the ratio was not correct and if there is evidence on record, the Court or the Tribunal is bound to consider the plea. The relevant portion reads as under:- “14. In view of Section 122 and the Rules, we are unable to agree with the ratio laid down in Ram Rati case [ (1997) 6 SCC 66 : AIR 1997 SC 3072 ]. It is not correct to hold that, in an election petition, after the declaration of the result, the court or tribunal cannot direct re-counting of votes unless the party has first applied in writing for re-counting of votes. There is no prohibition in the Act or under the Rules prohibiting the court or tribunal to direct a re-counting of the votes. Even otherwise, a pary may not know that that re-counting is necessary till after the result is declared. At this stage, it would not be possible for him to apply for re-counting to the Returning Officer. His only remedy would be to file an election petition under Section 122. In such a case, the court or the tribunal is bound to consider the plea and where a case is made out, it may direct re-count depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, hold that the ratio laid down in Ram Rati case [ (1997) 6 SCC 66 : AIR 1997 SC 3072 ] is not correct.” 25. Another aspect which would heavily way as such against the present appellant is that the learned Single Judge had passed the specific order at that point of time, whereby the consent had been given for re-counting which would be clear from the order dated 30.05.2025. The said order reads as under:- “Heard for some time. Taking into consideration the controversy involved in this writ petition, this Court is of the considered view that it would be in the interest of justice, in case, the votes casted in the election are directed to be produced by the Office of the learned Advocate General, before the Court, so that re- counting thereof can be ordered under the supervision of the Court, which of course will be without prejudice to the respective contentions of the parties. As there is no objection to the said observation made by the Court, accordingly, the case is ordered to be listed on 20.06.2025, on which date the votes casted in the election in issue shall be produced before the Court in a sealed covered. Original record of the Election petition be also produced by the Office of learned Advocate General on the next date of hearing.” 26. Apparently having agreed to the same, the subsequent order was again passed on 28.07.2025, whereby the Registrar Accounts of the Registry as such was delegated the power to count the votes in the presence of the counsel(s) for the parties and submit his report in the sealed cover. The record was to be produced before the said Officer on 30.07.2025. The order dated 28.07.2025 reads as under:- “Learned Counsel for the petitioner submits that as the requisite ballots have been produced before the Court, let some responsible officer of the Registry count the same and furnish the result in a sealed cover to the Court. He further submits that it would in the interest of justice, in case, needful is done in the presence of learned Counsel for the parties. In light of the request so made, it is ordered that Mr. Davinder Chopra (Registrar Accounts of the Registry), is called upon to count the votes in the presence of learned Counsel for the parties and submit his report in a sealed cover to the Court on the next date of hearing. The record be produced before the Officer on 30.07.2025 at 11:00 a.m. and thereafter, the same be gone through the by the officer, in the presence of the parties as per his convenience. Officer/official, who has brought the record, shall also be associated in the counting. List on 11.08.2025.” 27. Apparently, only on account of the fact that the report as such in which it was specifically mentioned that the 243 votes were in favour of the present appellant and the three votes had been objected to and 245 votes were in the favour of the election petitioner and one vote was objected to and that all the 13 votes had been rightly invalidated the challenge has been made. Accordingly, the detail had been given that there were three votes in favour of the present appellant one and two of them were having double stamps and in one, there was a blot on the ballot paper. The single vote which had been objected to of the present election petitioner was having no stamp but ink was spread on the name and sign. It is in such circumstances, the report of the Registrar (Accounts) was provided by subsequent order to both of the counsel(s) and the matter was then listed on 11.08.2025. 28. Apparently, thereafter on 11.08.2025, the copy of the report was supplied to both the counsel(s) and it was held that it was only a fact finding report and none of the parties could be permitted to file objections as such to the report submitted by the Registrar (Accounts). The said order dated 11.08.2025 reads as under:- “Report of the Registrar (Accounts) is taken on record. Copy thereof be provided to learned Counsel for the parties today itself. As prayed for by learned Senior Counsel appearing for respondent No. 6, list for consideration on 18.08.2025. Record be retained in the meanwhile. In light of the order passed on 30.05.2025, which was a consent order, none of the parties shall be permitted to file objections to the report submitted by the Registrar (Accounts) as this, which is only a fact report.” 29. The said orders were never subject matter of challenge as such and the parties had given their consent and acquiescence. 30. In such circumstances, this Court is of the considered opinion that the judgment in Chairman, State Bank of India and Another case (supra), would be directly applicable as the appellant cannot now be permitted to blow hot and cold having agreed to the recount as such which was to be done by the Officer who was delegated with the said consideration and had submitted the report. Only on account of the report throwing light and the Court as such thereafter examining the concerned ballot papers challenge is being raised. Thus, the appellant will be precluded as such from this course of action. The relevant principles have been laid down in Chairman, State Bank of India and Another case (supra), wherein it has been held that the acquiescence virtually destroys the right of the parties and can be directed with full knowledge and express approbation. Thus, the appellant will be precluded as such from this course of action. The relevant principles have been laid down in Chairman, State Bank of India and Another case (supra), wherein it has been held that the acquiescence virtually destroys the right of the parties and can be directed with full knowledge and express approbation. The relevant portion read as under:- “39. Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance,31 which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention.32 Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence. 40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indreict acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person.31 Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person.31 Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.” 31. In State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another (1982) 2 SCC 463 , it has been held that the Judges cannot be dragged into the arena of dispute inter se litigation. Whatever the Judges say in their judgment that something was done, said or admitted before them that has to be the last word on the subject. The relevant para of the said judgment read as under:- “4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri. A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation.” We are bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. WE cannot allow the statement of other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily and there. Of course a party may resile and an appellate court may permit in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.” 32. Reliance can also be placed upon judgment the Full Bench judgment in The State of Punjab and Others Vs. Radha Kishan AIR 2000 P&H 1 that the discretion is to be left with that Court and therefore now having given consent as such to the learned Single Judge, counsel for the appellant cannot argue to the contrary. The relevant portions reads as under:- “27. In other words the party filing an application and the party which is called upon to defend such an application must know the precise extent of the relief prayed for, and the case which has to meet, must be clearly pleaded. The situation would be entirely different where a party has consented to the recounting of votes and upon such recounting of votes an order has been passed in consonance with the provisions of sub-sec.(4)(b). It will be difficult for the Court to upset such a decision. Firstly a non- applicant is at liberty to give consent and once such consent is given and is acted upon, such non-applicant would be estopped from challenging the correctness of such order. He would be estopped in lay by his conduct from taking a contrary stand. It will be difficult for the Court to upset such a decision. Firstly a non- applicant is at liberty to give consent and once such consent is given and is acted upon, such non-applicant would be estopped from challenging the correctness of such order. He would be estopped in lay by his conduct from taking a contrary stand. In the case of Rahda Kishan petitioner, on 12-5-1995 the respondent had specifically stated that he had no objection if the counting of votes is conducted. It is the result of those counting which was recorded by the Court. 28. The consent by the parties for recounting or scrutiny and computation of votes founded on the consent of the parties does not offend any law or public policy. Having taken a stand not only of stating no objection to the order as contemplated under section 4 (b) of the Act, but also having given specific consent, we feel that it will neither be fair nor proper for the consenting parties to challenge the validity of such order. The parties are governed by their conduct before the Court of competent jurisdiction. Normally the parties would not be permitted to alter their conduct to the disadvantage and prejudice of the other and more particularly in the cases of the present kind. A Division Bench of this Court in the case of Bharat Singh (supra) following the principles enunciated by the Hon’ble Supreme Court of India in the case of Sukhchand Raj Singh held as under :— Counsel appearing for the petitioner argued that no recount can be allowed on the basis of the statement of the parties. It was contended that where the election petition does not disclose any cause of action or where there was no evidence to support the allegations made in the election petition for a recount, no recount can be ordered because any statement made by the returned candidate, agreeing for a recount, will be against law and, therefore, cannot be acted upon. As against this the stand taken by the counsel appearing for the respondents is that the compromise regarding recount is a valid agreement and binding between the parties. As against this the stand taken by the counsel appearing for the respondents is that the compromise regarding recount is a valid agreement and binding between the parties. Whether a recount can be ordered on the basis of an agreement between the parties, came up for consideration before the Supreme Court of India in Sukhchand Raj Singh v. Ram Harsh Misra and others A.I.R. 1977 S.C. 681, Supreme Court of India ordered recount on the basis of agreement between the parties. While considering such an agreement, it was held by their Lordship that (emphasis supplied) "This agreement, we may add, does not violate any of the provisions of the Representation of People Act, 1951, including Section 97 thereof. 29. In view of the law enunciated by the Hon’ble Supreme Court, referred to above, we are of the considered view that a party giving consent for recounting of votes would be estopped from challenging the correctness of that order on the ground that the consented order is impermissible in law or otherwise. The validity of such consent order would hardly be open to attack keeping in view the limited scope of section 4 (b) and more particularly when such an order could otherwise be passed by the Court on merits of the case. The power otherwise vested in the court of competent jurisdiction can always be exercised on the consent of the parties, unless the Court has any valid reason to decline the relief prayed for. In the case of Radha Kishan, we would not permit the petitioner to assail the order as he had agreed to it and a definite consent was given by him for such scrutiny and computation. The impugned order is nothing but consequences of such recounting of valid votes.” 33. The last argument which was to be rebuted is that whether all ballot papers or any of the ballot papers can be examined, would also be clear from the provisions itself of Rule 79 of the ‘Rules, 1994’ which reads as under:- “279. Recount of votes.- (1) After the completion of the counting and preparation of result sheet under rule 75, the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorised by him shall announce the particulars of the result sheet. Recount of votes.- (1) After the completion of the counting and preparation of result sheet under rule 75, the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorised by him shall announce the particulars of the result sheet. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his couting agent may apply in writing to the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorised by him in this behalf for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount; Provided that if no application for recount is received within reasonable time the result shall be declared in accordance with the provisions of clauses (v) and (vi) of rule 75. (3) On an application for recount under sub-rule(2), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or other officer authorised by him in this behalf shall decide the matter and may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable: Provided that every decision of the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorised by him shall be in writing and contain the reasons therefor. (4) If the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other officer authorised by him in this behalf, decides under sub-rule (3) to allow an application either in whole or in part then he shall- (a) count the ballot papers again in accordance with his decision; (b) amend the result sheet to the extent necessary after such recount; and (c) announce the amendment so made by him. (5) After the total number of votes polled in favour of each candidate has been announced under sub-rule (4), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or such other officer authorised by him, shall complete and sign the result sheet and no application for a recount shall be entertained thereafter.]” 34. (5) After the total number of votes polled in favour of each candidate has been announced under sub-rule (4), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or such other officer authorised by him, shall complete and sign the result sheet and no application for a recount shall be entertained thereafter.]” 34. A perusal of the Rule 79 sub-Clause (2) of the ‘Rules, 1994’ provides that the recount of all or any of the ballot papers already counted stating the grounds on which the demand is as such to recount. 35. Thus, material evidence having come on record that the recount had taken three times without any application and apparently, the first recount was at the insistence of the appellant, whereas the election petitioner had not been declared elected wrongly and thus there was a violation of procedure by the Returning Officer. 36. In such circumstances, fall back can also be made on the judgment of Apex Court in Km. Shradha Devi Vs. Krishna Chandra Pant and Others (1982) 3 SCC 389(II), wherein it has been held that recount cannot be limited to those ballot papers only in which there are specific allegations and that recount will not be a right in the absence of good grounds to the said Returning Officer. The relevant portion reads as under:- “8. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. If the recount is limited to those ballot papers in respect of which there is specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituency where more often we find 10,000 or more votes being rejected as invalid. If the recount is limited to those ballot papers in respect of which there is specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituency where more often we find 10,000 or more votes being rejected as invalid. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. This is not the area of inquiry in a petition for relief of recount on the ground of miscount. True it is that 'a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of Returning Officer' (See Halsbury's Laws of England, 4th Edn,, Vol. 15, para 940). This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed. What was broadly alleged by the petitioner in the election petition was that where election is held in accordance with the proportional representation by the single transferable vote it would be illegal and erroneous for the Returning Officer to reject as invalid a ballot paper if after first preference vote is validly cast some error is committed in indicating the remaining preferences. Instances of error is committed in indicating the remaining preferences. Instances of error set out in paras 14, 15, 17 and 18 spelt out a ground that the ballot papers which were rejected under rule 73 (2) (d) did not contain or carry any mark or writing by which elector can be identified and that there has been thus improper rejection of a vote otherwise validly cast or which is partially valid. Without allowing inspection of all the disputed ballot papers the learned judge has accepted that at least two ballot papers can be correlated to allegation in para 15 and 17 which would prove the allegations made in the petition. The learned Judge, however held that the rejection of these two ballot papers was correct. Without allowing inspection of all the disputed ballot papers the learned judge has accepted that at least two ballot papers can be correlated to allegation in para 15 and 17 which would prove the allegations made in the petition. The learned Judge, however held that the rejection of these two ballot papers was correct. A further observation is that even if the rejection of these two ballot papers is held to be improper, the result of the election so far as returned candidate is concerned is not materially affected. And it would be succinctly pointed out that allegation in para 18 in respect of two other ballot papers is wholly substantiated. Even at the cost of repetition it must be said that it is not the requirement of law that in respect of each ballot paper rejected as invalid a specific averment must be so made as to identify the ballot paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be recounted. That is contrary to the requirement of the Act and the Rules.” 37. Keeping in view the above settled principle, this Court is of the considered opinion that the procedure which had been followed by the learned Single Judge does not suffer from any infirmity which would warrant interference, in view of the settled principles of law as there was sufficient material on record, whereby he had come to the conclusion that recounting had been done wrongly three times and even the Deputy Commissioner had come to the conclusion that there was nothing to show that any person had filed an application. The result had never been declared in the first instance which was the requirement under Rule 79 sub-clause (1) of the ‘Rules, 1994’ and the same had to be put-forth in Form-35 after preparing the result sheet in Form-34 as per the procedure prescribed under Rule 75 of the ‘Rules, 1994’. 38. The result had never been declared in the first instance which was the requirement under Rule 79 sub-clause (1) of the ‘Rules, 1994’ and the same had to be put-forth in Form-35 after preparing the result sheet in Form-34 as per the procedure prescribed under Rule 75 of the ‘Rules, 1994’. 38. In such circumstances, in order to cut-short the controversy and rather than remanding the matter while keeping in mind the order of the Authorized Officer who had directed the recount way-back on 21.03.2022 and keeping in view the fact that the tenure of the elected term was to come to an end in January, 2026 and the petition would have been rendered infructuous, the learned Single Judge was well justified in reaching out to grant the benefit of declaring the elected petitioner as the winning candidate. 39. Accordingly, in view of the above discussion, we do not find any plausible reason to interfere with the well reasoned order and the tedious exercise conducted by the learned Single Judge, to call for the report and recount and examine the ballot papers earnestly. Resultantly, the present appeal stands dismissed accordingly. 40. Pending miscellaneous application(s) if any, shall also stand disposed of.