ORDER : K.K. Dube, J. 1. By this petition under Article 226 of the Constitution of India, the petitioner seeks a writ of certiorari to quash the order in an election petition under Rule 43 of the Rules framed under the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972. 2. The petitioner and the respondent No. 1 were the only contestants for the election of membership of Krishi Upaj Mandi Samiti, Khurai from ward No. 8. The petitioner's symbol was 'Taraju' while that of the respondent No. 1 was 'bullock'. The polls were held on 25-12-1975 and 26-12-1975 was fixed as the date for counting. In the counting, 4 votes were rejected out of which two were found to be blank. 38 votes were cast in favour of the respondent No. 1 and 37 votes were found in favour of the petitioner. Before the return had been signed, the petitioner applied for a recount contending that the two votes polled in his favour were improperly rejected. The respondent No. 1 did not object to the re-count but stated that the re-counting should confine itself to mere enumeration of the votes and the Returning Officer should not go into the question of the validity of the votes already rejected. The Returning Officer acting under Rule 37 of the rules framed under Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 permitted a re-count He found that if the ballot papers Nos. 38 and 59 cast in favour of the respondent No. 1 were accepted, there was no reason why ballot papers numbering 35 and 41 should be rejected as all the four votes were tainted with the same imperfection, if it could be called so. Since, in his opinion, ballot papers Nos. 35 and 41 were improperly rejected, he accepted them with the result that the total number of votes in favour of the petitioner was enhanced by two votes making his total to 39. The Returning Officer thereafter filled in the return and declared the petitioner elected. 3. Since, in his opinion, ballot papers Nos. 35 and 41 were improperly rejected, he accepted them with the result that the total number of votes in favour of the petitioner was enhanced by two votes making his total to 39. The Returning Officer thereafter filled in the return and declared the petitioner elected. 3. The respondent No. 1 filed an election petition under Rule 43 of the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974 framed under the Act The petitioner contested the election petition and filed his written statement before the Tribunal contending that it was competent for the Returning Officer to accept the improperly rejected votes in a re-count and go into the question of propriety of rejection of votes. He reiterated that the two votes cast in favour of the petitioner were improperly rejected while the two votes cast in favour of respondent No. 1 were improperly accepted. 4. The respondent No. 2 who heard the election petition held that under Rule 37, it was not competent for the Returning Officer to have scrutinized the validity of the rejected votes in the recounting done. In his opinion, the Returning Officer's job was restricted to the enumeration of votes and to mistakes in such enumeration but he could not either reject or accept any ballot paper which was previously rejected in the counting under Rule 36. The respondent No. 2, however, did not give any decision on the question whether or not the votes as alleged by the petitioner were improperly rejected in the counting in the first instance. 5. The petitioner now a seeks to assail the order in election petition on two grounds: first, that the Tribunal not having given a verdict on the question of improper acceptance or rejection of bollot papers being Nos. 35, 41, 38 and 59, there has been a failure of exercise of jurisdiction vested in the Tribunal vitiating the order and secondly, that the view that the Returning Officer was not competent to go into the question of the validity of votes was erroneous. 6. Having heard Shri A.K. Jain, counsel for the petitioner and Shri R.K. Pandey, counsel for the respondent No. 1, we are of the view that the petition ought to be allowed. 6. Having heard Shri A.K. Jain, counsel for the petitioner and Shri R.K. Pandey, counsel for the respondent No. 1, we are of the view that the petition ought to be allowed. respondent No. 2 while deciding the election petition did not examine the question whether ballot papers 35 and 41 were improperly rejected and whether ballot papers 38 and 59 were improperly accepted. If all the four votes were not taken into account, the petitioner would be elected as then he would poll one vote more than the respondent No. 1. Then again, if the four votes were accepted, he would be elected as was done by the Returning Officer. It was, therefore, necessary to examine whether the votes (ballot papers) 35 and 41 were improperly rejected while those bearing Nos. 38 and 59 were improperly accepted. The question that had to be decided was whether the votes could be rejected under clause (viii) of Rule 36 (2) (b) of the Rules. The relevant clause reads as under:-- 36 (2) (b) (viii)--If the mark indicating the vote or votes thereon is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote or votes has or have been given". Under clause (b) of Rule 36 (2), a ballot paper could be rejected as invalid on the grounds enumerated therein. Under clause (viii) of Rule 36 (2) (b), the ballot paper would be rejected if the marking on it made it doubtful to find out to which candidate the vote was given. The Returning Officer was enjoined to reject a vote if the marking on the ballot paper was such that it left a doubt as to which of the candidates the vote has been given. We have seen the four ballot papers and we find that the making of the vote is done by means of a seal using the red ink. While fixing the seal it bad left some impression on the fold but it is ascertainable without any doubt as to which of the candidates it was given. In ballot papers 35 and 41, the wet ink of the seal left an impression on the fold but the seal mark was placed on the 'balance' indicating the casting of vote in favour of the petitioner. The impression caused by folding was not on the "bullock" but below the line. In ballot papers 35 and 41, the wet ink of the seal left an impression on the fold but the seal mark was placed on the 'balance' indicating the casting of vote in favour of the petitioner. The impression caused by folding was not on the "bullock" but below the line. It was noticeable that the impression was caused due to folding when the ink was wet. On ballot papers 38 and 59, the impression due to folding was caused in column of the 'balance' (petitioner). The vice, if any, inhering in ballot papers Nos. 38 and 59 was of the same character as is existing on the ballot papers Nos. 35 and 41, therefore, there was no justification in allowing one and rejecting the other. Since the ground had been raised, the Tribunal dealing with the election petition was bound to go into the question and give its finding on it. 7. We may here advert to the objection of the petitioner Annexure 1A of the petition made to the Returning Officer while claiming a recount. Under Rule 37 of the Rules, a candidate could apply in writing to the election authority for recount of ballot papers already counted stating the grounds on which he demands such recount. The grounds here were expressly that the four votes ought to be scrutinised. The Returning Officer decided to hold the recount as provided by Sub-rule (3) of Rule 37 of the Rules. He, therefore, proceeded to scrutinize the ballot papers leading to the aforesaid result. In the election petition, the respondent No. 2 was necessarily required to give a finding as to the validity of the four votes discussed above and failure on his part to perform this duty could only be characterised as failure to exercise the jurisdiction vested in him and a writ of certiorari would have to be issued to quash the order. We find that this is a sufficient ground for attracting our jurisdiction under Article 226 of the Constitution. 7A. Shri Pandey, learned counsel for respondent No. 1 strenuously contended that the jurisdiction of this Court under Article 226 of the Constitution could not be invoked to correct the decision of the election Tribunal. He relied on M/s Parry and Company Ltd. v. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta and others AIR 1970 SC 1334 . 7A. Shri Pandey, learned counsel for respondent No. 1 strenuously contended that the jurisdiction of this Court under Article 226 of the Constitution could not be invoked to correct the decision of the election Tribunal. He relied on M/s Parry and Company Ltd. v. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta and others AIR 1970 SC 1334 . The Supreme Court observed: .....a writ of certiorari is generally granted when a Court has acted without or in excess of its jurisdiction. It is available in those cases where a Tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected". We think that the case does not support the respondent No. 1's. case. We have already pointed out that the Collector had clearly failed to exercise jurisdiction vested in him by law in not deciding the validity of votes referred to by the Returning Officer and on which the petitioner raised an issue in his return. If a dispute as regards the validity of the votes could not be decided in election petition, the petitioner was left without any remedy and a writ of certiorari could be granted. 7B. The learned counsel then relied on Beliram Bhalaik v. Jai Behari Lal Khachi and another AIR 1975 SC 283 . This case would also not help the respondent. In the first place, the ground that the ballot papers accepted by the Returning Officer ought not to have been done on the ground that they violated the secrecy of the ballot, was not taken. The only objection taken was that the Returning Officer should not re-consider the question of validity of the votes rejected in a recount. This was obviously with a view that he was afraid that if the petitioner's votes were rejected his votes numbering 38 and 59 would also be rejected on the same ground. The only objection taken was that the Returning Officer should not re-consider the question of validity of the votes rejected in a recount. This was obviously with a view that he was afraid that if the petitioner's votes were rejected his votes numbering 38 and 59 would also be rejected on the same ground. We think that, in the circumstances of the case, the ground touching upon the secrecy of the ballot could hardly be available in the instant case. There were a number of votes over which impressions on the fold were made and we do think that it was possible to ascertain, by such impressions on the fold that the vote was cast by a particular voter. 7C. There is no substance in the argument that the application for recount was made belatedly. It is ordinarily not possible to take the objection then and there. It would, in any case, take some time but this had to be done before the election results were declared and the returns filled as provided by the rules. The objection having been taken before that time, no exception could be taken on the ground of delay. 8. At first, we thought of remanding the case but as the ballot papers have been seen by us and we have examined them to satisfy that the impressions on ballot papers Nos. 38 and 59 are of a similar nature as found on ballot papers Nos. 35 and 41, we think if the former were accepted, there is no valid reason why the latter set of votes ought to have been rejected. If there was any infirmity as entitled the rejection of votes it subsisted in all the four ballot papers alike and, therefore, all the four ballot papers ought to be treated alike. In our opinion, since the marks on them do not make them doubtful as to which candidate the vote has been given, all the four ballot papers ought to be accepted. When ballot papers 35 and 41 are accepted, as it ought to be held to be the correct position, the petitioner would get more votes and would be elected. 9. Coming to the question whether the Returning Officer was competent to re-scrutinize the rejected ballot papers in a recount, we may refer the scheme of Rules 36 and 37. Rule 37 reads as under:-- 37. 9. Coming to the question whether the Returning Officer was competent to re-scrutinize the rejected ballot papers in a recount, we may refer the scheme of Rules 36 and 37. Rule 37 reads as under:-- 37. Recounting of votes --(1) After completion of the counting and preparation of the return prescribed under clause (g) or Sub-rule (2) of Rule 33 but before the return has been finally signed by the election authority, a candidate or in his absence his counting agent may apply in writing to the election authority for a recount of ballot papers already counted stating the grounds on which he demands such recount. (2) On such application being made, the election authority shall decide the matter and may allow the application or may reject it if it appears to him to be frivolous or unreasonable. Every such decision of the election authority shall be in writing and contain the reason there for. (3) If the election authority decides to allow the application, he shall:-- (a) count the ballot papers again in accordance with his decision; (b) amend the return (Form XVII) to the extent necessary after such recount, and (c) announce the amendments made by him. (4) After the total number of votes polled by each candidate has been recounted according to clause (a) of Sub-rule (3) the election authority shall complete the return and no application for a recount shall be entertained thereafter". Rule 36 provides for the procedure as to how the counting of votes has to be done in the first instance. By sub-rule (2), the ballot papers are to be sifted in a manner that the rejected votes are separated. Now, sub-rule (2) (b) provides the grounds on which the votes could be rejected as invalid. The Returning Officer applies his mind and sees if any of the defects enumerated in clause (b) is found. He would then proceed to reject them. Once that is done, he would count the valid votes given to each candidate. Under Rule 37, the candidate is permitted to apply for a recount before the declaration of the result after furnishing grounds on which he demands such recount. The election authority, when such application is made, decides whether to permit a recount or not. Once that is done, he would count the valid votes given to each candidate. Under Rule 37, the candidate is permitted to apply for a recount before the declaration of the result after furnishing grounds on which he demands such recount. The election authority, when such application is made, decides whether to permit a recount or not. If he allows the application, Sub-rule (3) comes into force and he would recount the ballot papers in accordance with his decision (Italics is ours). His decision is naturally related to the grounds on which such recount is asked. Recounting is re-doing the counting and must necessarily relate to Rule 36 which prescribes counting of votes. As already observed, counting consists of sifting of votes, examining their validity, rejection of votes on the grounds stated and an enumeration of valid votes given to each candidate. The words 'in accordance with his decision' in sub-rule 3 (a) makes it clear that a recount is not restricted to a mere enumeration of valid votes as is provided in Rule 36 (2) (c). If the Rule 37 intended mere enumeration, it could have been easily expressed without the addition of the words, in accordance with his decision and which expression seems to have been added as an attribute of counting. Again, Sub-rule (4) while referring to recount reiterates that it is to be in accordance with clause (a) of sub-rule (3). This would also indicate that recount is not mere enumeration but something more and refers to all other scrutiny provided under Rule 37 which may eventually result in the variation in the count. 10. Rogers in his book Parliamentary Elections and Petitions (vol. II) at page 200 described the procedure of a recount thus: The course of procedure is as follows:-- The ballot papers for the respondent are counted by counsel for the petitioner, assisted by his client and an enumerator appointed by him, and checked by an enumerator representing the respondent. Whenever exception is taken to a ballot paper by the petitioner's counsel, it is submitted to the respondent's counsel, and, if they do not at once agree, it is put aside till later. When the petitioner's counsel has exhausted all the respondent's ballot papers, the respondent's counsel, in like manner, proceeds to count the petitioner's ballot papers. Whenever exception is taken to a ballot paper by the petitioner's counsel, it is submitted to the respondent's counsel, and, if they do not at once agree, it is put aside till later. When the petitioner's counsel has exhausted all the respondent's ballot papers, the respondent's counsel, in like manner, proceeds to count the petitioner's ballot papers. The votes put aside are then considered with the assistance of the presiding officer, if desired, and if not agreed are reserved for the Court. The votes rejected by the Returning Officer are then dealt with". The last sentence would indicate that the rejected votes are again checked and examined. This would support the view that re-examination of rejected votes in a recount has always been considered to be necessarily implied in the process of recount. The recount here was only on the ground of re-scrutiny of votes Nos. 35 and 41 and if the recount was allowed, the Returning Officer was bound to scrutinise and re-examine the validity of the improperly rejected votes. 11. For the above reasons, we allow the petition with costs. The order of respondent No. 2 is hereby quashed with the result that the declaration that the petitioner was duly elected stands. counsel's fee Rs. 100.