JUDGMENT 1. - This appeal is directed against the judgment dated 22-3-96 passed by the learned single Judge, by which the learned single Judge dismissed the writ petition filed by the petitioner and maintained the orders passed by the District Judge, Jaisalmer, by which the election petition filed by Smt. Soni was partly allowed and the order of recounting of the votes was passed and after the recounting, Smt. Soni was declared as duly elected Sarpanch of Gram Panchayat, Lawa. 2. The facts, which gave rise to the present controversy, in nut shell, are that the election to the post of Sarpanch, Gram Panchayat, Lawa (a reserved constituency for Scheduled Tribes (woman)) was held on 3-2-95. Smt. Pepo and Smt. Soni contested this election. The result of the election was declared on the same day after counting of the votes. The total votes polled were 1063. Both the candidates got 518 votes while twenty-seven votes were declared invalid. Since there was a tie as both the candidates got the equal number of votes, therefore, the decision was taken by Draw of Lot. The result went in favour of Smt. Pepo and, therefore, after the Draw of Lot, Smt. Pepo was declared as the elected Sarpanch of Gram Panchayat, Lawa. 3. Smt. Soni filed an election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, calling in question the election of Smt. Pepo on various grounds given in the election petition. The election petition was contested by Smt. Pepo - the returned candidate. Smt. Soni, in support of her case, examined herself as AW 1 and examined her two election agents AW 2 Sangi Das and AW 3 Babu Lal. The returned candidate Smt. Pepo produced herself as DW1 and examined DW2 Chiranji Lal. The learned District Judge, Jaisalmer, after trial, came to the conclusion that the Returning Officer did not act fairly while counting the votes. As the impartiality was not observed by the Returning Officer at the time of counting, the learned District Judge, vide his judgment dated 13-2-96, ordered for the recount of the votes and fixed the date for recounting as 19-2-96 and directed the parties and their Advocates to remain present on that day. The Returning Officer was, also, directed to produce the ballot papers in the Court on 16-2-96. The Returning Officer was, also, directed to produce the ballot papers in the Court on 16-2-96. On 19-2-96 the envelop containing twenty-seven rejected ballot-papers was not received and, therefore, the recounting was adjourned to 22-2-96. On 22-2-96, the recounting was done and after the recounting, it was found that Smt. Soni got 517 votes in her favour while Smt. Pepo got 516 votes; and thirty votes were declared as invalid. Three votes out of which two were counted in favour of Smt. Soni and one in favour of Smt. Pepo by the Returning Officer, were rejected by the learned District Judge after recounting because these three ballot-papers did not bear any mark of the seal indicating the wish of the voters. On the basis of the recount, the District Judge, therefore, in place of Smt. Pepo, declared Smt. Soni as the duly elected Sarpanch of Gram Panchayat, Lawa. 4. Dissatisfied with the judgment dated 13-2-96 and the order dated 22-2-96 passed by the learned District Judge, the petitioner-appellant Smt. Pepo filed a writ petition. In the writ petition, the only ground taken by the petitioner was that two of her votes, which were counted in her favour by the Returning Officer clearly show the intention of the voters and the learned District Judge was not justified in rejecting these votes. The judgment dated 13-2-96 and the order dated 22-2-96 passed by the learned District Judge were not challenged on any other grounds. 5. In order to arrive at just and fair decision, the learned single Judge, in the light of the arguments of the learned Counsel for the petitioner, called only the thirty rejected ballot-papers and after receipt of the same personally looked into the ballot-papers. After perusal of the ballot-papers, the learned single Judge came to the conclusion that the thirty rejected ballot-papers did not indicate the wish of the voters as to whom they wanted to cast their votes and the rejection of all these thirty votes was in accordance with law. The learned single Judge, therefore, dismissed the writ petition filed by the petitioner by his judgment dated 22-3-96. It is against this judgment that the appellant-petitioner has filed this appeal. 6. The learned single Judge, therefore, dismissed the writ petition filed by the petitioner by his judgment dated 22-3-96. It is against this judgment that the appellant-petitioner has filed this appeal. 6. It is contended by the learned Counsel for the appellant that (i) vague and bald allegations have been made in the election petition and the petition lacks concise statement of facts and, therefore, the recount should not have been ordered; (i) there is no finding by the learned District Judge, on the basis of which the recount has been ordered and the election has been set aside; (iii) the learned District Judge was not justified in recounting the whole ballots; (iv) the prayer in the election petition was only to the extent that her three votes have been wrongly rejected and as such the Tribunal has exceeded its jurisdiction in ordering for the recount of the whole votes; and (v) the learned single Judge committed the same mistake in calling and perusing only the thirty rejected ballot-papers and not considering the other evidence. 7. Learned Counsel for the respondents, on the other hand, has supported the judgment passed by the learned single Judge and submitted that (i) there is no error in the judgment passed by the learned single Judge and the finding of facts arrived at by the learned single Judge do not require any interference; (ii) at the time of recounting, the appellant did not raise any objection regarding the recounting before the learned District Judge or even before the learned single Judge or in the writ petition; (iii) the order passed by the District Judge was challenged only on the ground that two of her votes were wrongly rejected by the learned District Judge at the time of counting; and (iv) the findings arrived at by the learned single Judge as well as by the District Judge are purely the findings of facts recorded by the Court after due appreciation of the evidence and no interference is called for. 8. We have considered the submissions made by the leaned Counsel for the parties. 9. The first ground, on which the judgment passed by the learned single Judge has been assailed is that there were vague and bald allegations in the election petition that the valid votes were illegally rejected and unless there is a concise statement of facts, the recount should not have been ordered. 9. The first ground, on which the judgment passed by the learned single Judge has been assailed is that there were vague and bald allegations in the election petition that the valid votes were illegally rejected and unless there is a concise statement of facts, the recount should not have been ordered. In support of his contention, learned Counsel for the appellants has placed reliance over several judgments. It is not necessary to refer to all these judgments cited by the learned Counsel for the appellant because the law discernable from these judgments is well settled that the election petitioner, in order to seek an order of recount, has to place on record the material and make out a prima facie case on the threshold before an order of recount is actually made. The demand of a candidate for recounting of the votes has to be considered keeping in view that the secrecy of the ballots is sactosanct in the Democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliability that there exists a prima facie case for recount, no Tribunal or Court would be justified in directing the recount. 10. The learned District Judge, on the basis of the evidence available on record, gave a specific finding that the counting of the votes by the Returning Officer was not impartial and the Returning Officer partially acted in favour of the returned candidate at the time of counting the votes. Issues Nos. 2, 3 and 4 were, also decided against the appellant by the learned District Judge but these findings arrived at by the learned District Judge were not challenged by the appellant in the writ petition. Even after the judgment dated 13-2-96, without any objection, Smt. Pepo (the appellant) participated in the recount and when the result of the recount went against her, she filed the writ petition. In the writ petition, though in the Relief Clause it was prayed that the orders Annexure-1 and Annexure-2 may be set aside; but the order dated 13-2-96 passed by the learned District Judge ordering for the recount, was not attacked or assailed on any of the grounds and the only ground taken in the writ petition was that two of her valid votes were wrongly rejected. In the grounds, only the order dated 22-2-96 was assailed. The grounds mentioned in the writ petition relate only to the challenge to the order dated 22-2-96 and that too in connection with the two of the petitioners votes which were rejected by the learned District Judge. 11. The attending circumstances, thus, clearly show that the appellant consented to the recount and participated in the proceedings. Even before the learned single Judge, on her request, only the thirty rejected ballot-papers were called and they were examined by the learned single Judge. Her counsel participated in the proceedings when these thirty rejected ballot-papers were examined by the learned single Judge. She was, therefore, a consenting party to the recount. 12. In Sukhand Raj Singh v. Ram Harsh Misra, AIR 1977 SC 681 , it was held by the Supreme Court:- "If both the sides to the election petition agree that the recount of the disputed votes shall be done by or under the personal supervision of the Joint Registrar of the High Court and the result of the election is declared by him, such type of agreement does not violate any of the provisions of the Representation of the People Act." The Supreme Court, therefore, directed the Joint Registrar to count the votes and declare the result. 13. In Barkatulla v. Rabindra Nath Malakar, AIR 1980 Gauhati 35 , the respective parties agreed that the recount and re-scrutiny of the votes be made and the Single Bench of Gauhati High Court hold that "recounting and re-scrutiny of the disputed votes on the basis of the agreement between the parties is not violative of any of the provisions of the Act and the Court can act upon such agreement". 14. In Mahender Singh v. Shri Hukum Singh, AIR 1993 Punj & Har 172 , the parties agreed for the test check of certain booth and tables and further agreed for recounting of the entire votes if irregularity and illegality were found committed during the counting. Prima facie irregularities were found during the test check. Thereafter the order for recounting of the entire votes was passed which was challenged. The Single Bench of Punjab & Haryana High Court, therefore, held that "the agreement entered into between the parties at election petitions for having a test check to trace out any illegality is not against the law. Prima facie irregularities were found during the test check. Thereafter the order for recounting of the entire votes was passed which was challenged. The Single Bench of Punjab & Haryana High Court, therefore, held that "the agreement entered into between the parties at election petitions for having a test check to trace out any illegality is not against the law. The inspection of the ballot-papers as a test check re-enforces the implicit admission. The respondent (returned candidate) after expressing his free will to the recount of test check under the advice of Senior Counsel available to him, cannot be said to be ignorant of law. It would be highly unjust, rather perpetuating injustice if the returned candidate is allowed to take shelter under the garb of scrutiny of the ballots and use this as a shield for perpetuating the illegality".The High Court, therefore, refused to interfere in the order of recounting and ordered recount of the entire constituency. 15. The appellant never challenged the order of recount, rather she participated in the recount with her free will with her counsel. She challenged the order of the District Judge only on the ground that two of her valid votes were wrongly rejected and, therefore, only thirty rejected votes were called for perusal by the learned single Judge. She, by her free will, prayed for the recounting of only two of her votes which were allegedly wrongly rejected. It appears that on the basis of this implicit agreement/consent of the appellant, the recounting of only thirty rejected votes were made. Once she agreed to the recounting of only two of her votes, it would be unjust and rather unfair to dismiss the election petition on the ground that no better particulars have been given, rather it would amount to perpetuating injustice to the election petitioner. 16. The recounting of the disputed votes on the basis of the agreement arrived at between the parties is not violative of any of the provisions of the Election Law and the Court can act-upon on such agreement. The appellant cannot be allowed to approbate and reprobate. She participated in the recounting and took a chance and when the result of the recounting went against her in the writ petition, she only challenged the result of the recounting and not the order of the District Judge ordering for the recount. The appellant cannot be allowed to approbate and reprobate. She participated in the recounting and took a chance and when the result of the recounting went against her in the writ petition, she only challenged the result of the recounting and not the order of the District Judge ordering for the recount. Before the learned single Judge, none of the grounds, which have been raised before us, was agitated by the appellant-petitioner. These grounds were not taken even in the Memo of writ petition. The legality, propriety and validity of the judgment of the learned single Judge can be judged only on the basis of the grounds raised, considered and decided by the learned single Judge and not on the grounds which were neither raised before the learned single Judge nor taken in the writ petition. The appellant, therefore, cannot be permitted to raise these grounds, now, in the appeal. 17. Even otherwise, we are of the opinion that the learned District Judge gave a specific finding that the counting of the votes was not done by the Returning Officer fairly and impartially. Both the candidates secured equal number of votes, there was a tie and the decision was taken by Draw of Lots and the Returning Officer was not fair in the counting and his impartiality was questioned. In these circumstances if the learned District Judge, in order to do justice between the parties, ordered for the recount, no illegality appears to us to have been committed by the learned District Judge. The judgment ordering for the recount was not assailed on any of the grounds before the learned single Judge and the appellant-petitioner agreed and participated in the recounting and challenged only the rejection of her two votes by the District Judge. 18. In this view of the matter, we are of the opinion that the grounds agitated by the learned counsel for the appellant in the appeal are bereft of any substance. 19. Now, coming to the votes which were though originally counted by the Returning Officer in favour of the appellant-petitioner but rejected by the learned District Judge. The learned District Judge rejected both the votes on the ground that the arrow-mark of the seal is not specific/definite. The learned single Judge, also, found that the intention of the voters is not clear from the ballot papers. We ourselves have seen these two ballot-papers. The learned District Judge rejected both the votes on the ground that the arrow-mark of the seal is not specific/definite. The learned single Judge, also, found that the intention of the voters is not clear from the ballot papers. We ourselves have seen these two ballot-papers. Both these ballot-papers do not contain the arrow mark of the seals to indicate the wish of the voters. One vote/ballot-paper does not bear any mark on it while the second ballot paper bears the marks otherwise than that of the instrument supplied for the purpose. No mark of the seal is present on this ballot paper, also. These two votes were therefore, wrongly counted in favour of Smt. Pepo by the Returning Officer and they were rightly rejected by the learned District Judge. The learned District Judge, on the back of each of the ballot-papers has given reasons for their rejection. The learned single Judge, also, examined these two votes and the other twenty-eight rejected votes and rightly came to the conclusion that all these thirty rejected votes did not indicate the wish of the voters in favour of any candidate. We are, also, A the opinion that these two votes were rightly rejected by the learned District Judge. 20. For the discussion made herein above, we are of the opinion that the judgment passed by the learned single Judge does not require any interference. 21. In the result, we do not find any merit in this appeal and the same is hereby dismissed.Appeal dismissed. *******