Judgment :- The Order of the Court was as follows : The petitioner has filed this writ petition to quash the order of the Election Tribunal (Principal District Judge, Chengleput) in the Election Petition No. 226/96 wherein the petitioner's election as the President of Ramacherri village Panchayat had been set aside. 2. The petitioner as well as the second respondent contested for the post of the President of the Village Panchayat of Ramancherri Village, Tiruvellore Taluk, Chengleput District in the election held on 9-10-96. The counting of votes was done on 14-10-96. The petitioner was declared elected by a margin of 4 votes. The second respondent herein filed an election petition 226 of 1996 on the file of the Principal District Judge, Chengleput challenging the said election, alleging that the votes were tampered and counting was done erroneously and the fifth respondent who is the member of the Legislative Assembly ordered recounting. In the recounting the result of the election was declared in favour of the petitioner, even though earlier the second respondent was declared elected and the results were published. Before the Election Tribunal both the contesting parties filed a memo stating that recounting can be made and on the basis of the same the Election Tribunal has recounted the disputed votes alone and thereafter declared the second respondent elected and set aside the election of the petitioner. Hence the writ petition. 3. The second respondent filed counter in which she has stated that the Returning Officer, after the counting was over, declared that the second respondent was elected as the President of Ramancherri Village Panchayat and the same was subsequently published in the newspaper. Soon after the results were announced, the fifth respondent, the local ruling party M.L.A., commanded the Block Development Officer to recount the votes again. The Block Development Officer, the third respondent herein recounted the votes as per the direction of the said M.L.A. During the recounting, the ballot papers were allowed to be tampered and finally declared the petitioner to be elected with a margin of 4 votes difference. Hence the second respondent filed the election petition before the Tribunal. Both the parties had agreed for the recounting and in the recounting the undisputed votes had been counted. Apart from the undisputed votes, the invalid votes of 90 and the disputed votes of 37 were considered. The invalid votes had been totally rejected. Hence the second respondent filed the election petition before the Tribunal. Both the parties had agreed for the recounting and in the recounting the undisputed votes had been counted. Apart from the undisputed votes, the invalid votes of 90 and the disputed votes of 37 were considered. The invalid votes had been totally rejected. So far as 37 disputed votes are concerned, the Tribunal verified the objections raised by the other side and ultimately found 10 votes were invalid, 5 votes are valid in favour of the petition herein and 22 votes are valid in favour of the second respondent and ultimately found that the petitioner got totally 762 votes and the second respondent got 766 votes. Finally the election of the petitioner was set aside and the second respondent was declared elected. Hence there is no merit in the writ petition. 4. The Legal Advisor of the sixth respondent has filed the counter-affidavit on behalf of the sixth respondent. No serious averments have been made by the sixth respondent in the counter; except to state that he is only a formal party and he will abide by the order of this Court. 5. Mr. Kanniah, the learned counsel for the petitioner contended that the Election Tribunal has totally erred in ordering recount for the mere asking of it. The Tribunal has totally failed to consider whether the averments made in the election petition with regard to the irregularities committed either in the counting or otherwise. Unless the second respondent is able to establish the irregularities in the process of the election or in the counting, the recounting cannot be ordered and hence the procedure adopted by the Tribunal is totally contrary to law and the principles laid down by the Supreme Court as well as this Court. By mere consent of the parties, recounting cannot be ordered. In the absence of the oral evidence with regard to the irregularities alleged to have been committed by the petitioner herein during the counting, the election petition ought to have been rejected in limine. Further even assuming that the recounting can be sustained still it is the duty of the Tribunal to recount all the votes and the recounting of disputed 37 votes alone is irregular and illegal. On this ground also the order is liable to be set aside. Further even assuming that the recounting can be sustained still it is the duty of the Tribunal to recount all the votes and the recounting of disputed 37 votes alone is irregular and illegal. On this ground also the order is liable to be set aside. Before the Returning Officer, the second respondent did not file any application for recounting and as such the Tribunal has no jurisdiction to order the recounting. In the absence of any request before the Election Officer for recounting, it is not open to the parties to seek for recounting before the Tribunal and hence the recounting ought not to have been done. Since the finding of the Tribunal is based upon the recounting alone which is contrary to law, the order of the Tribunal is liable to be set aside. 6. On the contrary, Mr. Selvaraj, the learned counsel for the second respondent contended that the Election Officer filed counter before the Tribunal stating that the recounting was done by him only on the application filed by the second respondent and as such it cannot be said that the second respondent has not asked for the recounting before the Election Officer. Further when the parties have filed joint memo stating that they are not letting in any oral evidence and the case can be decided on the basis of the recounting alone, now it is not open to the petitioner to go back from the statement made before the Tribunal and contend that the Tribunal has no jurisdiction to order the recounting. The Tribunal had accepted the joint memo filed by the parties and ordered recounting. The Tribunal in fact counted all the votes and so far as the undisputed votes are concerned that has been kept as a separate category. So far as the remaining invalid votes are concerned there is no dispute and the same had been totally rejected. The Tribunal has considered 37 votes over which there is a dispute with regard to the validity or the same and found that some of the votes are valid in favour of the petitioner, some of the votes are valid in favour of the second respondent and the remaining votes are invalid. The petitioner, having failed to raise any objection before the Tribunal for the procedure adopted in recounting the votes, cannot be permitted to raise any objection before this Court. The petitioner, having failed to raise any objection before the Tribunal for the procedure adopted in recounting the votes, cannot be permitted to raise any objection before this Court. Hence the order of the Tribunal is quite valid and in accordance with law. 7. I carefully considered the contention of both the counsel. The following question arise for consideration. (i) Whether the order of recount is not sustainable since the second respondent has not asked for the recount before the Election Officer? (ii) Whether the order of recount is not sustainable as the second respondent has not made out any case of irregularities alleged in the petition? (iii) Whether the Election Tribunal is right in verifying the disputed votes and find the validity of the same in the absence of any oral evidence? 8. So far as the first issue is concerned, the learned counsel for the petitioner vehemently contended that the second respondent did not ask for any recount before the Returning Officer and as such the Tribunal ought not to have ordered for the recount. The counter filed by the second respondent before the Election Tribunal i.e., the D.D.O., Election Officer had been filed in the typed set of the second respondent. In paragraph 3 he has categorically stated as follows. "On the basis of the petition lodged by the petitioner the votes already counted were recounted openly in the presence of the contesting candidates and their agents. Even after the recount there was no change." From the above statement of the Election Officer, it is clear that the second respondent herein had requested for the recount and the recount was done by the Election Officer. 9. The learned counsel for the petitioner relied upon the following judgments reported in Ram Rati v. Saroj Devi and K. Ashokan v. Kunasekaran, (1998) 3 Mad LW 206 and contended that in the absence of any petition before the Election Officer for recounting, the Tribunal has no jurisdiction or authority to order recount. 10. I am of the opinion that the principles laid down in the said judgments have no application to the facts of the present case; especially when the Election Officer has filed the counter-affidavit stating that the second respondent herein filed a petition for recounting and the recounting was done. 10. I am of the opinion that the principles laid down in the said judgments have no application to the facts of the present case; especially when the Election Officer has filed the counter-affidavit stating that the second respondent herein filed a petition for recounting and the recounting was done. Hence the contention of the counsel for the petitioner cannot be accepted and the recount cannot be set aside on the ground that there was no petition before the Election Officer. This issue is answered against the petitioner. 11. So far as the second issue is concerned, the learned counsel for the petitioner contended that the petitioner did not let in any oral evidence with regard to the irregularities alleged in the petition filed by her. Unless the irregularities are established, it is not open to the Tribunal to go into the averments made in the petition, as there was no evidence before the Tribunal. 12. He relied upon the judgment reported in Shamsudeen v. Mohindeen, wherein it is held as follows :- "Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be drived from hindsight 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. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes." 13. He also relied upon another judgment reported in Bhabhi v. Sheo Govind in which the Supreme Court has held as follows : "Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers : (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the election candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper." In the above cases the Supreme Court has considered the order of allowing an application for sample inspection of the ballot papers. The Supreme Court has laid the above guidelines to exercise the power of recounting. 14. Yet another judgment relied upon by the learned counsel for the petitioner is Ram Autar v. Ram Gopal. In the above case, when the defeated candidates asked for the recounting on the ground of wrongful rejection of certain votes, the elected candidate also filed a petition for recrimination on the ground of wrong rejection and reception of votes and wrong counting of votes. In the above case, when the defeated candidates asked for the recounting on the ground of wrongful rejection of certain votes, the elected candidate also filed a petition for recrimination on the ground of wrong rejection and reception of votes and wrong counting of votes. The High Court ordered the inspection and recount of the total votes polled at the election, since both the candidates have complained wrongful rejection of the votes. The Supreme Court has held as follows : "The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes. These pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioner's case which (as set up in Para 11 of the petition) fell under Section 100(1)(d)(iii) of the Act." 15. Relying upon the above judgments, the learned counsel contended that mere consent would not confer any power on the Tribunal to order the recounting, in the absence of any evidence. 16. It is worthwhile to refer to the joint memo filed by the parties which is as follows :- In the Court of Principal District Judge at Chengalpet. E.O.P. No. 226/96 Yamuna, Petitioner v. Ravi Respondent. M E M O It is respectfully submit that in the above case both parties agreed for recount the votes. No oral evidence. Sd/-. . . . . . . . Sd/- . . . . . . . Counsel for respondent Counsel for petitioner 3-8-98. Sd/- 3-8-98 G.P. There is no dispute that both the counsel for the petitioner as well as the second respondent has signed the memo and agreed for recounting without any oral evidence. The petitioner did not dispute the authority of her counsel in signing and filing the memo. Hence the fact remains that both the defeated candidate as well as the elected candidate agreed that there is no need to let in any oral evidence and the Tribunal can recount the votes in order to have a decision. 17. The petitioner did not dispute the authority of her counsel in signing and filing the memo. Hence the fact remains that both the defeated candidate as well as the elected candidate agreed that there is no need to let in any oral evidence and the Tribunal can recount the votes in order to have a decision. 17. The learned counsel for the petitioners contended that the consent memo would not confer any authority on the Election Tribunal to order the recount. On the basis of the well laid principles laid down in the above referred judgments. He also referred to another judgment in (V. Geeva v. R. Rathiresam and others (W.P. 14444/98 dated 4-2-99). Wherein I have held that the consent will not confer the jurisdiction in the absence of the compliance of the requirements of the Rules. In fact I relied upon the judgment reported in Ashokan v. Kunasekaran, (1998) 3 Mad LW 206 wherein it has been categorically held that if a party failed to ask for recount before the Returning Officer, it is not open to them to seek for the recounting before the Tribunal. But in this case the second respondent has sought for the recounting and hence the principles laid down therein may not be of any assistance to the petitioner herein. 18. The learned counsel for the respondents contended that the Tribunal has taken into consideration the disputed votes alone and given credit to both the parties wherever the vote is found to be valid and rejected the invalid votes. The procedure adopted by the Tribunal is quite valid and legal in view of the principles laid down in the judgment reported in Maliksingh v. Jagatsingh, 1987 AIR(Bom) 206 and Manni Lal v. Panmal Lal. It is worthwhile to extract the following passage from the judgment reported in 1967 AIR(Bom) 206. "The question which fell for the consideration of the Supreme Court in Shradha Devi's case, was also considered earlier by the Supreme Court in Dr. Anup Singh v. Abdul Ghani. It is worthwhile to extract the following passage from the judgment reported in 1967 AIR(Bom) 206. "The question which fell for the consideration of the Supreme Court in Shradha Devi's case, was also considered earlier by the Supreme Court in Dr. Anup Singh v. Abdul Ghani. After making a detailed reference to the law in the field, including the celebrated Woodward's case, in para 15 of its judgment the Supreme Court observed :- "But the mere fact of there being two such crosses is not a substantial breach of the statute." Then in para 22 the Supreme Court clarified the position that a cross in a slender basis on which the elector can be reasonably identified. Therefore, as a general rule, putting up of more than one cross marks against the same candidate is not treated as covered by the Rule providing the grounds for rejection of a ballot paper. Therefore, it will have to be seen as to whether this general principle is excluded either expressly or by necessary implication by the provisions of the present enactment. In our view, it is not possible to hold that this general principle has been given a go-by either expressly or by necessary implication if the relevant provisions of the present enactment are read harmoniously and together. An elector is entitled to give only one vote. By putting up two marks against the same candidate. She does not exercise more than one vote. Exercise of vote by the method of ballot is the expression of the choice of the voter. Here the choice is qua the same candidate and there is no confusion about his choice. An elector is entitled to give only one vote. By putting up two marks against the same candidate. She does not exercise more than one vote. Exercise of vote by the method of ballot is the expression of the choice of the voter. Here the choice is qua the same candidate and there is no confusion about his choice. In this context reference could usefully be made to the statement of law in Halsbury's Laws of England quoted with approval in Shradha Devi's case, and the law laid down in that behalf, which reads as under :- "As respects ballot papers which have names, initials, figures or other possible marks of identification on them by which it might be suggested that the voter could be identified, it has been said that the Court should look at the paper and form its own opinion whether what is there has been put there by the voter for the purpose of indicating for whom he votes; if the voter has not voted in the proper way (if for example he has made two crosses, or some other such marks which might have been intended for purposes of identification) but the Court comes to the conclusion on looking at the paper that the real thing that the voter has been doing is to try, badly or mistakenly, to give his vote, and made it clear for whom he voted, then these marks should not be considered to be marks of identification unless there is positive evidence of some agreement to show that it was so. In Woodward's case (1875-32 LT 867) the Court came to the conclusion that the placing of two crosses or three crosses or a single stroke in line of a cross or a straight line or a mark like imperfect letter 'p' in addition to the cross or star instead of a cross or a cross blurred or marked with a tremulous hand, or a cross placed on the left side of the ballot paper, or a pencil line drawn through the name of the candidate not voted for or a ballot paper torn longitudinally through the centre, are not marks which would invalidate the votes on the ground that the mark was such that the voter can be identified. Similarly, Election Tribunal in Sohan Lal v. Abinash Chander, (1953) 4 ELR 55 held that the addition of a horizontal line after figure 1 indicating first preference vote would not invalidate the ballot paper, unless there was evidence that the horizontal line was drawn so as to reveal the identity of a voter. In the absence of any such evidence the ballot paper was held valid. It would, therefore, follow that the mark or writing which would invalidate the ballot paper must be such as to unerringly point out in the direction of identity of the voter. In the absence of such suggested mark or writing the ballot paper cannot be rejected merely because there is some mark or writing on the ground that by the mark or writing the voter may be identified. One has to bear in mind the difference between 'can be identified' and might possibly be identified. " From the above passage, it is clear that the ballot papers cannot be rejected merely because there is some mark or writing and the voter can be identified. Unless there is any indication that the voter can be specifically identified the vote cannot be rejected. 19. The learned counsel for the petitioner contended that the burden is on the person who challenges the election to show that there had been improper reception or refusal of votes or reception of any vote which is void as contemplated under Section 100(2)(c) of the Representation of the People Act and relied upon the judgment reported in Hari Vishnu v. Ahmad Ishaque, wherein it has been held as follows :- "It remains to deal with the contention of the appellant that the decision of the Election Tribunal under Section 100(2)(c) that the result of the election had not been materially affected is bad, as it is based on considerations extraneous to that section. This opens up the question as to the scope of an enquiry under Section 100(2)(c). That section requires that before an order setting aside an election could be made two conditions must be satisfied. This opens up the question as to the scope of an enquiry under Section 100(2)(c). That section requires that before an order setting aside an election could be made two conditions must be satisfied. It must firstly be shown that there had been improper reception or refusal of a vote or reception of any vote which is void, or non-compliance with the provisions of the Constitution or of the Act (No. 43 of 1951) or any rules or orders made under that Act or of any other Act or Rules relating to the election or any mistake in the use of the prescribed form. It must further be shown that as a consequence thereof the result of the election had been materially affected." 20. He also relied upon another judgment reported in F. A. Sapa v. Singora, and contended that the statutory provision has to be strictly complied with. In the above judgment it has been held as follows : "It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equit. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds." 21. There is no doubt that the election petition has been filed by the second respondent alleging certain irregularities. The petitioner herein also filed counter, disputing the same. But, however, both the parties have filed joint memo before the Tribunal stating that they are not letting any oral evidence and the case can be decided by recounting. In such case, there is no doubt that the parties do not venture to take up the trial by letting in any evidence and agreed to abide by the decision of the Court by resorting to recount. Naturally in the recounting process the disputed votes have been set apart for the Court's decision. In such case, there is no doubt that the parties do not venture to take up the trial by letting in any evidence and agreed to abide by the decision of the Court by resorting to recount. Naturally in the recounting process the disputed votes have been set apart for the Court's decision. After verifying the disputed votes, the Tribunal has given credit to 27 votes of which 5 in favour of the petitioner herein and 22 in favour of the second respondent. The learned counsel for the petitioner did not challenge the decision of the Tribunal in giving credit of these votes in favour of the parties. In fact, no argument had been advanced as to whether the Tribunal has committed any error in giving credit of those votes, in favour of either of the parties. The only argument advanced is that the Tribunal cannot count the disputed votes alone. 22. A perusal of the order of the Tribunal clearly reveals that the entire votes had been recounted in the presence of the Court Officer and the counsel for the both the parties. In the recount it has been found that the second respondent herein secured 744 undisputed votes and the petitioner herein secured 757 undisputed votes. Ninety votes found to be invalid about which there is no dispute. The remaining 37 votes over which the petitioner claimed those votes had been improperly rejected by the Election Officer which ought to have been given credit in favour of him. The Tribunal verified those 37 votes and found 10 votes are invalid. Of the remaining 27 votes, the Tribunal found the rejecting improper and found them to be valid 5 in favour of the petitioner herein and 12 in favour of the second respondent. Ultimately found that the petitioner secured 762 votes and the second respondent herein secured 766 votes and accordingly set aside the election of the petitioner herein. 23. Hence the contention of the counsel for the petitioner that the Tribunal has recounted only the disputed votes alone and not recount the entire votes cannot be accepted, as the same is contrary to the records. 23. Hence the contention of the counsel for the petitioner that the Tribunal has recounted only the disputed votes alone and not recount the entire votes cannot be accepted, as the same is contrary to the records. When the Tribunal has counted the entire votes, and identified those disputed votes alone during the recounting, thereafter the disputed votes alone taken for consideration as to whether to be rejected or to be given credit to and ultimately found that out of 37 votes, 27 votes are valid and gave credit to the respective parties. When the counsel for the petitioner did not dispute the validity of the votes given credit to the parties, I do not find any irregularity in the procedure followed by the Tribunal. 24. As already stated the judgments referred to by the counsel for the petitioner do not refer to a case where the parties have agreed for recount without letting in any oral evidence. In this case I am of the view that the Tribunal is well within its authority in ordering recount by consent of the parties and hence the contention of the learned counsel for the petitioner that the Tribunal has no authority to order recount has to be rejected. 25. In view of the above stated reasons, there is no illegality or irregularity committed by the Tribunal which vitiates the finding. Hence the writ petition is dismissed. No costs. Petition dismissed.