Judgement CHANDRASHEKHARA DAS, J.:- The petitioner and the respondent No. 2 were the candidates for the Village Panchayat elections in the village of Merces held on 29-10-1991 in Ward No. 6. There were only these two contestants in that ward. The petitioner got 157 votes and the 2nd respondent got 158 votes and with the margin of 1 vote the 2nd respondent was declared elected. While the counting was going on, the Returning Officer rejected 4 ballot papers on the ground that the votes recorded therein were void for uncertainty. According to the petitioner, out of these 4 votes, 2 votes which were voted in favour of the petitioner, were wrongly rejected by the Returning Officer as the marking of the seal was overlapping a little the borderline of the ballot paper. He contended that the major portion of the seal was in the column signifying his candidature. The petitioner then filed election petition before the 1st respondent. On behalf of the 2nd respondent a preliminary objection was raised before the 1st respondent on the ground that the petition did not contain material particulars. The preliminary objection was heard in detail by the 1st respondent and by Order dated 27-8-1992 the objection raised by the 2nd respondent was sustained and the election petition filed by the petitioner was rejected. It is thus that the petitioner approached this Court under Articles 226 and 227 of the Constitution of India. 2. The learned counsel for the petitioner has taken us in great detail to the election petition and argued that the election petition contains several material particulars necessary for deciding the disputes involved in that case. On the other hand, the counsel for the 2nd respondent has argued that the necessary material particulars are lacking and in view of the consistent decisions of the various High Courts and the Supreme Court, the rejection of the petition for want of sufficient material by the 1st respondent was justified. 3. Therefore, the short question to be decided in this case is whether sufficient materials are contained in the petition for which a close scrutiny of the petition and the dispute involved therein may be necessary. Before embarking upon this main task, we have to examine the main scope and definition of the 'sufficient materials' as laid down by the various High Courts and the Supreme Court as cited at the Bar. Before embarking upon this main task, we have to examine the main scope and definition of the 'sufficient materials' as laid down by the various High Courts and the Supreme Court as cited at the Bar. In support of his contention the counsel for the petitioner has argued that his prayer in the petition is to re-count the ballot papers. The 1st respondent has sustained the preliminary objection raised by the 2nd respondent on the ground that the material particulars, namely, the numbers of ballot papers required to be re-counted was dot furnished. The learned counsel for the petitioner refuted this contention by citing the decision of the Supreme Court in Km. Shradha Devi v. Krishna Chandra Pant, AIR 1982 SC 1569 . It was a case of election to Rajasabha. In paragraph 8 of the judgment, the Supreme Court says: "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. . . . . . . . . ." He cited another decision of Chanda Singh v. Ch. Shiv Ram Varma, AIR 1975 SC 403 . In head-note (A) it is stated : ". . . . .Of course, even if the difference be more than microscopic, if there is a serious flaw or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistake is a fair exercise of power." After citing these decisions in support of his case, the learned counsel led us to the details of the pleadings contained in this election petition in paragraphs 5, 6 and 7. 4. The next attempt therefore on our part is to examine whether the above particulars will be sufficient to maintain an election petition without being rejected at the threshold. When various decisions were cited before us by the counsel for the respondent it is profitable to examine a few of them relevant to the context namely in Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 and Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253. When various decisions were cited before us by the counsel for the respondent it is profitable to examine a few of them relevant to the context namely in Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 and Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253. Jitendra Bahadur v. Krishna Behari (supra) is a decision relied on by the Administrative Tribunal, the Appellate Authority in support of its conclusion that the material particulars have not been furnished by the petitioner. The aforesaid decision laid down that in order to maintain an application for setting aside an election, the basic requirement to be satisfied before an Election Tribunal is that it should contain detailed statement of material facts on which the petitioner relies in support of his case. 5. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, AIR 1989 SC 640 , it is stated in para 15 : ". . . . . an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes. " It is further stated in para 13 : ". . . . . . the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it." 6. In Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253) (supra) in para 11, the Supreme Court stated : - "In the context of a charge of corrupt practice it would wean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. In Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253) (supra) in para 11, the Supreme Court stated : - "In the context of a charge of corrupt practice it would wean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a)." 7. Bearing in mind all the decisions of the apex Court to the points, a learned single Judge of the Kerala High Court in Balaram v. Aravindakshan, a decision reported in (1988) 1 Ker LT 615 states in para 10 of the judgment thus : - "A whimsical and bald statement of the candidate that he is not satisfied with the counting is not sufficient. All the material facts on which the allegations of irregularity or illegality in counting are founded should be pleaded adequately and the Court trying the petition must be prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and do complete and effectual justice between the parties Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417 : ( AIR 1975 SC 283 ). What are the material facts is then the question. All primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts. Material facts would mean all the basic facts constituting the ingredients of the particular cause of action the party is bound to establish before Court in order to succeed in that cause of action. Undhav Singh v. M.R. Scindia, (1976) 2 SCR 246 : ( AIR 1976 SC 744 ). Whether a particular fact is material or not and as such required to be pleaded and proved or not is a question which depends upon the nature of the challenge levelled, the grounds relied on and the special circumstances of the case. Undhav Singh v. M.R. Scindia, (1976) 2 SCR 246 : ( AIR 1976 SC 744 ). Whether a particular fact is material or not and as such required to be pleaded and proved or not is a question which depends upon the nature of the challenge levelled, the grounds relied on and the special circumstances of the case. Several primary or material basic facts may be available to a party to establish a cause of action. " 8. Now let us examine the adequacy or inadequacy of the pleadings contained in this petition. As we pointed out earlier, the material portion of the pleadings are in paras 5, 6 and 7 of the election petition before the Deputy Collector, Goa North Division at Panaji which read as follows: - "5. After the ballot papers were opened for counting, valid ballot papers were separated in purported pursuance of Rule 48 of the Goa, Daman and Diu Village Panchayat Election Rules. There were four doubtful ballot papers which were submitted to the Returning Officer for decision. The Returning Officer apparently has not recorded any statement of reasons for rejection though he did not take them for counting and declared the respondent No. 1 as elected for having secured one vote over and above the votes secured by the petitioner. 6. In terms of Rule 51 of the Election Rules the petitioner through her counting agent namely Shri Nelson Pires sought for a recount of the votes by an application in writing which was rejected, apparently on the ground that agent had no locus standi. The reasons, however, recorded by the respondent No. 2 were not disclosed to the Returning Officer. 9. For the facts and circumstances of the case the petitioner is entitled for the recount of all the ballot papers including valid, invalid and or invalid and the verification thereof." 9. In these paragraphs one of the allegations of the petitioner was that 4 ballot papers were rejected. His objection was that out of the 4 ballot papers, two of them ought not to have been rejected by the Returning Officer. In these paragraphs one of the allegations of the petitioner was that 4 ballot papers were rejected. His objection was that out of the 4 ballot papers, two of them ought not to have been rejected by the Returning Officer. On going through the pleadings, it is clear that the 4 invalid ballot papers which were separated by the Polling Officer and submitted to the Returning Officer, the Returning Officer then has not recorded any statement of reasons for rejection of the ballot papers though he has not taken there for counting. Therefore, it is clear from the pleadings that the Returning Officer has not given the polling agents any opportunity to express their opinion about the validity or otherwise of the four rejected ballot papers, in spite of the fact that the election agent had requested for recount of votes. The assertion made in the petition by the petitioner is that out of the 4 ballot papers rejected, two of them ought not to have been rejected. This is the main point of dispute involved in this petition. This averment cannot be termed as whimsical or bald. This issue could be resolved if the 4 ballot papers which were declared invalid could be scrutinized by the Dy. Collector. It is not disputed that only 4 ballot papers were rejected which were separately packed. Therefore, merely because the non-mentioning of numbers of ballot papers rejected cannot be taken as a ground for dismissing the election petition on a preliminary objection raised by the respondents we cannot agree with the observations of the Deputy Collector that the names of the counting officers and the details and numbers of the ballot papers to be ordered for recounting are constituting the material facts in order to decide the question involved in this case. According to us the material facts required for ordering a recount on the election petition being taken up for trial has been supplied by the petitioner. 10. The counsel for the respondents next argued that even if this Court is satisfied that there are material facts to go on with the election petition, the ultimate result would be recounting which is very sparingly and rarely allowed by the Election Tribunal because the secrecy of the ballot papers will be in jeopardy and it has to be considered as most sacrosanct in the process of election law. No doubt, there is no quarrel with this proposition. But if an illegality has been proved to have been committed in the election that definitely outweighs the secrecy of the ballot paper. Merely because to maintain the secrecy an illegality cannot be condoned, the Supreme Court in a recent decision in Neelalohithadasan Nadar v. George Mascrene, a decision reported in (1994) 1 Ker LT 887 : (1994 AIR SCW 2198), a three Judges Bench of the Supreme Court held in para 10 : - "The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. " In para 11 it was observed : - "In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process." Then in para 13 it was observed : - "The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for recount. We are thus of the view that the High Court committed no error in permitting such inspection in the facts and circumstances. " 11. Going by the guiding principles laid down by the Supreme Court in the above decisions, a mere inspection of invalid ballot papers, that too only 4 in number, could resolve the issue and the learned Deputy Collector could decide whether the rejection of the ballot papers was justified or not. " 11. Going by the guiding principles laid down by the Supreme Court in the above decisions, a mere inspection of invalid ballot papers, that too only 4 in number, could resolve the issue and the learned Deputy Collector could decide whether the rejection of the ballot papers was justified or not. It is illegal on his part to reject the election petition at the threshold on the face of the preliminary objection raised by the respondents. In view of the Supreme Court pronouncement in N. Nadar's case, (1994 AIR SCW 2198) we have no hesitation to hold that the necessary particulars required for taking a decision by the Deputy Collector was supplied by the petitioner in the election petition and the rejection of the election petition at the threshold on the ground of preliminary objection raised by the respondents without necessary particulars being furnished, namely, the number of the ballot papers is not legal and proper. Therefore, we hold that the order of the Deputy Collector dismissing the application on the preliminary ground is liable to be set aside and we do so. 12. Lastly, the petitioner's counsel argued that since the provision of the Civil Procedure Code is not made applicable to the election petition under the Goa, Daman and Diu Panchayat Raj Act, the dismissal of the election petition at the threshold raising a preliminary objection is not sustainable in law. An election petition under the Goa, Daman and Diu Panchayat Raj Act is not governed by the provisions of Civil Procedure Code whereas the election petition under the Representation of the People Act the provisions of Civil Procedure Code are applicable. By virtue of the relevant provisions in the C.P.C. though an issue can be heard as a preliminary issue and decide the matter at the threshold, but at the same time, when the provisions of the C.P.C. do not apply, this procedure is uncalled for. However, we do not decide this question in this case as we can dispose of this petition on other grounds which are already mentioned above. However, the question whether election petition under the provisions of the Goa, Daman and Diu Panchayat Raj Act can be disposed of by raising a preliminary objection without going through the entire trial is a question to be left open. We do not propose to express our opinion regarding this point in this petition. 13. However, the question whether election petition under the provisions of the Goa, Daman and Diu Panchayat Raj Act can be disposed of by raising a preliminary objection without going through the entire trial is a question to be left open. We do not propose to express our opinion regarding this point in this petition. 13. In the result, we allow the writ petition and set aside the order passed by the Deputy Collector dated 27th August, 1992 and remand the matter back with a direction to proceed with the petition and decide it according to law, within three months positively. In the circumstances of the case, there shall be no order as to costs. Petition allowed.