JUDGMENT 1. :- The matter has been called twice. It is 12.10 P.M. but neither the learned counsel for the petitioner nor learned counsel for the respondents are present despite their names having been shown in the cause list. Hence, the petition is being decided on merit at the admission stage itself. 2. The case of the petitioner in short is that Dalu Ram, respondent No.2, Surendra, respondent No.3 and Vishwanath, respondent No.4 residents of Ward No.10, Surajgarh (Constituency), District Jhunjhunu contested the elections of the Municipal area of Surajgarh Constituency which has been divided in 20 Wards. The election of all the wards of Municipal Board, Surajgarh was held on 27.8.1995. The petitioner as well as respondent Nos. 2 Daluram and 4 Surendra were the Independent candidates for election of Councilor from Ward No. 5 whereas, respondent No.4 Vishwanath was the candidate of BJP. Respondent No.5, being the Returning Officer of Municipal Board Surajgarh conducted the elections and the counting of votes took place on 28.8.1995. The total number of votes secured by the parties were thus:- 1. Sewaram (petitioner) - 88 2. Dalu Ram (respondent No.2) - 11 3. Surendra (respondent No.3) - 24 3. Vishwanath (respondent No.4) - 87 3. Soon after declaration of results of the Municipal election, respondent No.4 Vishwanath filed an election petition before the District Judge, Jhunjhunu (respondent No.1) on 23.9.1995 under Section 34 and 40 of the Rajasthan Municipalities Act, 1959 (for short "the Act of 1959") against the declaration of result dated 28.8.1995 in which petitioner-Sewaram was declared Ward Member of Ward No.5. 4. The case of respondent No.4 Vishwanath was that one ballot paper was wrongly declared as doubtful whereas the same should have been counted in his favour. It has further been averred that out of total number of votes counted in favour of Daluram (respondent No.2) i.e. 11, as many as 4 votes were those which were casted in his favour. It is further averred that out of 24 votes counted in favour of Surendra (respondent No.3), 6 votes had the stamps in front of his election symbol. The contention of respondent No.4 in election petition was that 11 more ballot papers should have been counted in his favour, as a result of which he would have received 87+11=98 votes and he would have been declared successful. 5. The contention of respondent No.4 in election petition was that 11 more ballot papers should have been counted in his favour, as a result of which he would have received 87+11=98 votes and he would have been declared successful. 5. Replying to the election petition, the petitioner denied the averments made by respondent No.4 in his election petition and submitted that counting of votes was made with due process of law. The petitioner in reply further stated that one ballot paper was fully doubtful hence, the Returning Officer, respondent No.5 rejected the same as doubtful by not counting the same in favour of any of the candidates. The petitioner further replied that it was open to respondent No.4 Vishwanath to have filed a written or oral objection before the Returning Office but neither any written nor oral objection has been filed by respondent No.4 before the Returning Officer nor any complaint in this regard was submitted before the Returning Officer at any point of time. The petitioner in reply prayed that keeping in view the fact that respondent No.4 has neither mentioned the number of ballot papers nor any other description which is essential requirement for being mentioned in a election petition, the election petition filed by him being not maintainable deserves to be rejected. 6. The contention of the petitioner is that notwithstanding the aforesaid objections raised by him, the District Judge, Jhunjhunu (respondent No.1) proceeded to hear the election petition by framing 5 issues on 28.2.1996 and after examining the witnesses led by the parties with reference to the relevant documents on the record, decided the election petition in favour of respondent No.4 Vishwanath vide impugned order dated 19.4.1997 (Annexure-1). 7. It is in the aforesaid circumstances that the petitioner has challenged the impugned-order dated 19.4.1997 passed by learned District Judge Jhunjhunu being contrary and illegal to the settled principles of law and as such the petitioner who was declared Ward Member of Ward No.5 having been deprived of his legal right to continue as Ward Member of Municipal Area Surajgarh. 8. I have examined the aforesaid contentions advanced by the petitioner in the petition at length with reference to the grounds taken in support thereof. 9. 8. I have examined the aforesaid contentions advanced by the petitioner in the petition at length with reference to the grounds taken in support thereof. 9. 1 am of the considered opinion that in view of the settled law, the statutory requirements of election law as contained in Representation of Peoples Act, 1951 (for short "the Act of 1951") should be strictly observed and the election contest is not an action at law or a suit in equity but is purely statutory proceedings unknown to the common law and that the court possess no common law powers. It is also well settled law that sound principles of natural justice that success of a candidate who has won at an election, his result should not be lightly interfered and seeking such interference must be on strict requirements of law. 10. As regards the objection with regard to recount of ballot papers this Court has laid down the law in the matter of Jai Chand vs. Ramji Lal 1976 WLN (UC) 228 that it is not necessary to give serial number of rejected ballot papers in the election petition. Likewise, in the matter of Ram Niwas vs. Sardar Singh AIR 1980 Raj. 149 , wherein this Court has observed that it is only in exceptional circumstances that re-counting of votes should be permitted and before aggrieved candidate requests for re-counting of votes, he has to make out a case for prima-facie satisfaction of the concerned authorities that the successful candidate who had been declared elected and the object of seeking re-counting of ballot papers with a view to cause any harassment to the elected candidate with malafide intention should not be there. The presence of special circumstance therefore, is very much essential as per the requirements of the provisions of Act of 1951 read with Sections 83 and 97 of the Evidence Act, 1872 before such re-counting should be permitted. 11. In the matter of R. Narayanan Vs. S. Semma Lal and ors. (1980) 2 SCC 537 , respondent 'S' who was unsuccessful candidate, had filed an election petition in Madras High Court challenging the election of the appellant 'N' to the Tamil Nadu Legislative Assembly in an election held on 11.5.1977. The main ground which was taken in the election petition was that there were number of errors in counting of votes and that the Electoral Roll thus was invalid. The main ground which was taken in the election petition was that there were number of errors in counting of votes and that the Electoral Roll thus was invalid. The main relief sought for by the respondent 'S' was a direction from the Madras High Court for recounting of the votes. The appellant 'N' also filed a recrimination petition alleging that respondent 'S' had actually got elected by wrong number of votes and that his margin of victory would have otherwise been higher. In the main election petition, the High Court found that most of the allegations of contesting respondent 'S' were not proved but directed re-counting holding that although there was no clear evidence of any irregularity in counting in the first two rounds, there was a possibility of the counting staff being completely exhausted in the third round which may have led to erroneous sorting and counting of votes. As a result, two appeals came to be filed before the Apex Court against the judgment of the High Court dismissing the recrimination petition. The Apex Court while allowing two appeals held thus: "The finding of the High Court regarding the exhaustion of the counting staff and the resultant possibility of error is based purely on speculation. It is obvious that election, being a technical matter, the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover the relief of re-counting cannot be accepted merely on the possibility of there being an-error. It is well settled that such allegations must not only be dearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific instance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general, yet he accepts the case of the respondent on such insufficient and infirm evidence. From the timings of the rounds it appears that there were sufficient intervals between the three rounds and therefore the question of the staff being tired does not arise. Moreover, re-count should be ordered not on possibility of error but when the matter is proved with absolute certainty. From the timings of the rounds it appears that there were sufficient intervals between the three rounds and therefore the question of the staff being tired does not arise. Moreover, re-count should be ordered not on possibility of error but when the matter is proved with absolute certainty. The fact that the margin by which the appellant succeeded was very narrow was undoubtedly an important factor to be considered but that would not by itself vitiate the counting of votes or justify re-counting by the court". 12. Likewise, in the matter of Satyanarain Dudhani v. Uday Kumar Singh and others 1993 Supp.(2) SCC 82 , the question which arose for consideration of the Apex Court was in what circumstances re-count should be permitted. It was observed by the Apex Court thus : "The secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. Only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. When there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition". 13. Likewise, in the matter of M.R. Gopalkrishnan v. Thachady Prabhakaran and others 1995 Supp. (2) SCC 101 , the Apex Court confirming its earlier decision as aforesaid, held that unless and until prima-facie case is made out re-count normally should not be permitted. It was further observed by the Apex Court thus : "The tribunal or the court trying an election petition has power to direct inspection and re-count of votes if the material facts and particulars are pleaded and adequate grounds are found to exist for directing such re-count in the interest of justice. While doing so, however, the provisions contained in Section 94 of the Act may not be ignored but the same be given due weight and consideration before directing inspection and re-count. Section 94 directs that no witness of other person shall be required to disclose for whom he has voted at an election particularly in view of the statutory rules which provide adequate safeguard for proper conduct of the counting and for testing of the validity or invalidity of the ballot papers. Section 94 directs that no witness of other person shall be required to disclose for whom he has voted at an election particularly in view of the statutory rules which provide adequate safeguard for proper conduct of the counting and for testing of the validity or invalidity of the ballot papers. The rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agents are well informed of the nature of the objection that was raised with regard to the ballot papers and make a concise statement of material facts in the election petition in relation thereto. Therefore, the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected". 14. In the matter of Atma Ram v. Mana Ram and others 1996(2) RLR 254=RLW 1996(3) Raj. 83 , the petitioner who was a BJP candidate contesting the election for Ward No.19 of Panchayat Samiti Revdar held on 20.1.1995. Respondent No.1 was a Congress candidate while rest were Independents. The counting took place on a particular date and the petitioner was declared successful by a margin of one solidatory vote. The petitioner secured 1053 votes and non-petitioner No.1 secured 1052 votes. Out of total votes secured by different candidates, 109 votes were declared invalid. Respondent No.1 filed an election petition before the District Judge Sirohi challenging the election of the petitioner on two grounds thus:- (1) that Inder Singh, Sub Registrar, Abu Road played mischief in the last recounting by taking out five votes from the bundle of rejected votes and added in the petitioner total. Thereby, the petitioner got 1053 votes as against that the non-petitioner No.1 got 1052 votes; and (2) the Polling Officer instead of issuing ballot papers meant for Ward No.19 issued to the voters of ward No.18, and thereby, dis-entitled 29 voters from voting for ward No.19 election." 15. Thereby, the petitioner got 1053 votes as against that the non-petitioner No.1 got 1052 votes; and (2) the Polling Officer instead of issuing ballot papers meant for Ward No.19 issued to the voters of ward No.18, and thereby, dis-entitled 29 voters from voting for ward No.19 election." 15. In writ petition filed before this Court which came to be decided on 26.7.1996, this Court observed thus: "It is also true that the difference is of only one vote and in ordinary circumstances when there is a marginal difference of one vote only then in the interest of justice also one opportunity could have been given to the parties. But, this was a different type of case. ...... "As stated earlier number of authorities were cited, but I have refrained from referring any of them as the law is very well settled that recounting can be ordered only on the production of material facts which establish a prima facie case to order recount. In detail I have set out the evidence and the findings recorded by the Election Tribunal. The material which is tried to be produced by the applicant Mana Ram before the Election Tribunal did not establish a prima facie case on which recounting could be ordered. If the recounting is ordered then it would effect the secrecy of the ballot papers which would have created ugly situation in the small village". 16. It was observed by this Court while dismissing the writ petition that law is well settled that recounting can be directed only on production of material facts which establish a prima facie case permissible for recounting. The material which is to be produced has to prima facie establish a case for recounting in the absence of which, recounting should not be permitted. 17. In the matter of Pala Ram vs. Mangtu Ram & anr. 1984 RLR 247 , the learned Division Bench of this Court while deciding the appeal observed that it is only in the exceptional circumstances when a prima-facie case is made out for recount should be permitted and not as a matter of right. 17. In the matter of Pala Ram vs. Mangtu Ram & anr. 1984 RLR 247 , the learned Division Bench of this Court while deciding the appeal observed that it is only in the exceptional circumstances when a prima-facie case is made out for recount should be permitted and not as a matter of right. While confirming the findings of the learned Single Judge, it was observed by the Division Bench that absence of a clear averment in the election petition that any, of the votes counted in favour of the return candidate was invalid or was improperly received, any direction for recounting would have been improper since there was a total absence of averment in the election petition on the question of improper acceptance or improper reception of votes in favour of the returned candidate, no evidence at all was adduced in the election petition to show that any of the votes counted in favour of the returned candidate was either invalid or was improperly received, there was no justification to interfere with the order of Returning Officer by which the contesting candidate was declared successful. 18. With due respect to the principles of law laid down by the Apex Court as well as by this Court in the aforesaid decisions, however, it is well settled that the tribunal or the court trying an election petition has absolute power to direct inspection and recount of votes if the material facts and particulars are pleaded and adequate grounds are found to exist for directing such recount in the interest of justice, inasmuch as a demand for recount should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. In the instant case, the learned District Judge trying election petition of the respondent No.4 (Vishwanath) ordered recounting and inspection of votes on the material facts and prima facie case established in the pleadings and evidence on record especially the statement of the Returning Officer Chandgiram (DW2) who in his cross examination categorically deposed that voting was not conducted by him but by his subordinate employees. Therefore, I do not find any reason or justifying ground to interfere with the impugned order of the learned District Judge who has found material facts established on record and a prima facie case made out by the election petitioner (respondent No.4) for recounting of the vote and I am of the considered view that the writ petitioner is not entitled to the relief prayed for in this writ petition. The finding recorded by the learned District Judge, Jhunjhunu vide his order dated 19.4.1997 does not call for any interference by this Court.As a result of the above discussion, the writ petition being devoid of any merit is dismissed summarily.Petition Dismissed summarily. *******