Judgment 1. The petitioner seeks to challenge the judgment and order, dated 6.4.2002 passed by the Munsif, Raxaul at Motihari, East Champaran in Election case No. 6 of 2000. By the impugned judgment and order, the learned Munsif allowed the election petitioner filed by respondent no. 4 under section 140 of the Panchayat Raj Act, 1993, set aside the election of the petitioner, declared respondent no. 4, the election-applicant as the returned candidate and directed the Dist. Election Officer, to take steps for administering to him the oath of office. 2. In the election for the post of Mukhiya of Raj Gamhariya Gram Panchayat, there were 24 candidates, including the petitioner and respondent no. 4 (the election-applicant) in contest. The polling took place on 19.4.2001 and the counting of the votes was held on 20.5.2001. According to the election authorities, the petitioner secured 702 valid votes and respondent no. 4,670. while the rest of the candidates got much lesser number of votes. The petitioner was, therefore, declared as the returned candidate defeating his nearest rival, respondent no. 4 by a margin of 32 votes. 3. Respondent no. 4 challenged the election of the petitioner before the Munsif, primarily on the ground that irregularities were committed in the counting of votes; a number of valid votes cast in his favour were declared invalid or were added in the bundle of votes in favour of the petitioner and a number of invalid votes were also counted in the petitioners favour. As noted above, the learned Munsif allowed the election petition and granted the reliefs prayed for by respondent no. 4. 4. The judgment and order, dated 6.4.2002 by which the election petition was finally disposed of was a formality because the case was already decided on the basis of a recount of votes held under the supervision of the court in pursuance of an earlier order passed in the suit on 20.10.2001. As a result of the recount respondent no. 4 was found to have got 671 votes and the petitioner only 667 votes, that is to say, four votes less than respondent no. 4. In the final judgment, therefore, the learned Munsif simply allowed the election petition after briefly stating the respective cases of the parties and incorporating the result of the recount. 4 was found to have got 671 votes and the petitioner only 667 votes, that is to say, four votes less than respondent no. 4. In the final judgment, therefore, the learned Munsif simply allowed the election petition after briefly stating the respective cases of the parties and incorporating the result of the recount. In this writ petition, therefore, what mainly came under challenge was the order passed by the Munsif allowing the prayer of respondent no. 4 for recount of votes. 5. Mr. S.N. P. Sharma, learned Senior counsel appearing in support of this writ petition submitted that in the facts and circumstances of the case and having regard to the pleadings of respondent no. 4, the decision to hold a recount of votes was wholly unjustified. The order of recount passed on 20.10.2001 was quite invalid and illegal and as the final judgment and order was founded on the result of recount of votes in pursuance of an illegal order, the final judgment of the Munsif was equally illegal and unsustainable in the eyes of law. 6. Mr. Y.C. Verma, learned counsel appearing for respondent no. 4 defended and justified the decision of the Munsif for the recounting of votes. 7. It is well settled that in a judicial proceeding a direction for recount of votes cannot be given as a matter of course and simply for the asking by the defeated candidates. The confidentiality of votes is of great value and importance and in view of the provisions regarding the conduct of elections, the Supreme Court has laid down stringent tests only on the satisfaction of which it may be permissible for the court to issue a direction for recount of votes. It is now to be examined how far the facts and circumstances of the case, the pleadings made by respondent no. 4 and the materials produced by him in support of his case justified the decision of the court below to hold a recount of the votes. 8. Respondent no. It is now to be examined how far the facts and circumstances of the case, the pleadings made by respondent no. 4 and the materials produced by him in support of his case justified the decision of the court below to hold a recount of the votes. 8. Respondent no. 4 began his election petition by stating that the counting of the votes concluded late in the evening of 20.5.2001 and then it was disclosed that he had got 900 votes out of which 150 were invalid and, thus, the number of valid votes in his favour was 670; that the petitioner had got 622 votes and he had, therefore, won by a margin of 48 votes. There is an apparent error in this statement inasmuch as if 150 votes are taken out, as invalid, from 900 votes, then the balance would be 750 and not 670. There is no explanation for this statement which is obviously incorrect. It also does not appear to be typing mistake which might have been corrected later on by filing any amendment petition because the same figures are stated in the final judgment of the Munsif while describing the case of the election-applicant. 9. The election petition further states that on the next morning (21.5.2001), to the great surprise of respondent no. 4, the petitioner was declared as the returned candidate; and that on enquiry respondent no. 4 came to learn about a number of irregularities committed by the returning officer in the counting of votes. Here it will be appropriate to reproduce the allegations of irregularities in counting of votes as contained in paragraphs 6 to 11 and 17 of the election petition: "6. That, on enquiry, it has transpired that, the cancelled votes, and invalid votes have also been counted and kept in the bundle, treating the same as valid votes for defendant no. 1. This has been done on all the counting tables and in all bundles of different booths. "7. That, the Returning Officer (Defendant no. 2) (llnd Set) wrongly declared 150 votes, cast in favour of the plaintiff, as invalid though, as a matter of fact, all these votes are valid votes. "8. That, the Returning Officer, has wrongly declared that defendant no. 1, got 702 valid votes and only 35 invalid votes. "9. That, if the bundles of valid and invalid votes, counted in favour of defendant no. "8. That, the Returning Officer, has wrongly declared that defendant no. 1, got 702 valid votes and only 35 invalid votes. "9. That, if the bundles of valid and invalid votes, counted in favour of defendant no. 1, are opened and recounted in presence of the court, or in presence of any person, authorised by the court, the matter will be clear. The plaintiff is sure that 34 illegal and invalid votes, have been, included as valid votes for defendant no. 1 and the figure of 115, valid votes have wrongly been shown in favour of defendant no. 1 on booth no. 118. Similarly, 26 invalid votes have been counted as valid making the total 98 votes for defendant no. 1 on booth no. 119, and 20 invalid votes have wrongly been included in the bundle of valid votes of defendant no. 1 on booth no. 120, showing it as 84 valid votes. "10. That, such illegalities and corrupt practices, as well as, an act of improper receiption (sic) of votes have been made in favour of defendant no. 1 at the instance of the Returning Officer and counting staffs. "11, That, inspite of requests for recounting the Returning Officer (defendant no. 2) has not paid any heed and has wrongly declared defendant no. 1, as elected mukhiya of Gram Panchayat Raj Gamhariya Kalan, in Adapur Block (East Champaran). "17. That, the bundle of votes (now kept in the I.T.I. Building at Motihari), if opened, in presence of the court, the court will find that in all the bundles, the votes shown in favour of defendant no. 1, are not the votes cast in favour of defendant no. 1, rather votes of other candidates, including the plaintiffs, have also been fraudulently tagged in the bundle of defendant no. 1. In every such bundle, more than 10 invalid votes, will be found." 10. From the pleadings of respondent no. 4, it is manifest that the allegations made by him were quite vague and did not come up to the stringent standards laid down by the Supreme Court. 11. But on a prayer made by respondent no. 4 the learned Munsif by his order, dated 20.10.2001 directed the election authorities to produce the ballot papers for the recounting of votes under the supervision of the court. 11. But on a prayer made by respondent no. 4 the learned Munsif by his order, dated 20.10.2001 directed the election authorities to produce the ballot papers for the recounting of votes under the supervision of the court. The prayer for recount was allowed solely because the learned Munsif felt that in the statements from two booths in Form 20 which were marked as Exts. A/12 and A/20, there were interpolation, cuttings and re-writings by means of which an attempt was made to show a higher number of votes in favour of the petitioner. The relevant portion from the order is as follows: "Both parties were heard and record was pressed. In view of documentary as well as oral evidence I find that there are sufficient materials available on record to show that allegation of petitioner, about illegal receiption (sic) of votes in favour of opposite party and mischief in preparation of result are clearly evident and suitch (sic) about something hidden. In ext. A/12 O.P. Mahendra Rai was shown to have got 81 votes but on the very first look of form 20 (A/12) shows that 31 votes was made 81 and in A/13 total votes 237 was changed into figure 287. There is no initial in any cutting likewise in Ext. A/20. Mahendra Rai was shown to have got 09 votes but it was cut and 122 votes have been shown in favour of Mahendra Rai. There is no initial of any officer on this cutting too. In oral evidence D.W. 9 and D.W. 12 have supported the petitioner allegations." 12. The ground on which the order of recount was passed appears at the first instance, to be quite weighty but it is to be seen that this ground was completely contradicted by the result of the recount. Learned Munsif found that in Form 20 (Ext. A/12) the figure 31 was changed into 81. And further, in Ext. A/20 the figure 09 was cut and replaced by 120 votes in favour of the petitioner. By simple arithmetic, therefore, on recount the number of votes in favour of the petitioner should have been reduced by 163, 50 from Ext. A/12 and 113 from Ext. A/20. But in actual fact, on recount the number of the petitioners votes was reduced only by 35 and there was increase of only one vote in favour of respondent no. 4. 13. A/12 and 113 from Ext. A/20. But in actual fact, on recount the number of the petitioners votes was reduced only by 35 and there was increase of only one vote in favour of respondent no. 4. 13. At this stage it may be noted that rule 79 of the Bihar Panchayat Election Rules, 1995 contains the provisions for recounting of votes and provides that a candidate or in this absence, his election agent may make an application in writing before the Returning Officer for recounting of votes. On such an application being made the Returning Officer will either reject it wholly or in part for reasons to be recorded in writing or shall hold a recount as requested in the application. 14. In para 11 of the election petition filed by respondent no. 4, though a bald statement is made that a request for recounting was made before the Returning Officer, the statement was denied in the written statements filed on behalf of the election authorities and respondent no. 4 did not produce an iota of evidence to show that a request for recount was in fact made on his behalf in terms of rule 79. 15. Mr. S.N.R Sharma, counsel for the petitioner strongly argued that no direction for recount could be issued on the basis of the vague and unfounded pleadings made in the election petition. Learned counsel pointed out that the sole ground on which recounting was ordered by the learned Munsif was proved wrong by the result of the recount itself. He further stated that respondent no. 4 was in any event disentitled from making any prayer for recount before the court because no such request was made before the Returning Officer in terms of rule 79 of the Election Rules. Mr. Sharma also submitted that the suit was bad for non-joinder of parties inasmuch as two of the contesting candidates were not impleaded as defendants. 16. In support of his submissions, Mr. Sharma relied upon a number of Supreme Court decisions. Mr. Sharma also submitted that the suit was bad for non-joinder of parties inasmuch as two of the contesting candidates were not impleaded as defendants. 16. In support of his submissions, Mr. Sharma relied upon a number of Supreme Court decisions. These are (i) Ram Sewak Yadav V/s. Hussain Kamil Kidwai & Others, AIR 1964 S.C. 1249 (Paras 4, 5 and 7), (ii) Shri Jitendra Bahadur Singh V/s. Shri Krishna Bihari and others, AIR 1970 S.C. 276 (Paras 7 and 8), (iii) Bhabhi V/s. Sheo Govind and others, AIR 1975 S.C. 2117 , (para 15), (iv) Hari Ram V/s. Hira Singh and others, AIR 1984 S.C. 396 , (Paras 4 and 7), (v) Satya Narain Dudhani V/s. Uday Kumar Singh and others, AIR 1993 S.C. 367 and (vi) Udhav Singh V/s. Madhav Rao Scindia, AIR 1976 S.C. 744 , (para 20). 17. Mr. Yogesh Chandra Verma, learned counsel for the respondent submitted that all the Supreme court decisions relied upon by Mr. Sharma were in cases arising from the Representation of the People Act. Mr. Verma submitted that the provisions of the Representation of the People Act and the rules framed thereunder for conduct of elections and for the trial of an election dispute were far more rigorous and stringent than the provisions of the Bihar Panchayat Raj Act and the election rules framed there-under and, therefore, the decision in cases from the Representation of the People Act may not be wholly appropriate for deciding an election dispute under the Panchayat Raj Act. 18. Mr. Verma does not appear to be quite correct. Because the Supreme court has itself referred to and relied upon decisions under the Representation of the People Act for deciding cases of Panchayat election disputes. But there I do not see any need to advert to the decisions under the R.P. Act because atleast two decisions of the Supreme Court are available, in cases arising from Panchayat elections, which provide sufficient guidance for deciding this case and I will, therefore, confine my discussion to the two Supreme Court decisions in cases relating to Gram Panchayat elections. 19. Mr. Sharma relied upon the Supreme Court decision in Ram Rati V/s. Saroj Devi (1997) 6 S.C.C. 66 . Mr. 19. Mr. Sharma relied upon the Supreme Court decision in Ram Rati V/s. Saroj Devi (1997) 6 S.C.C. 66 . Mr. Sharma stated that the case of Ram Rati arose from M.P. Panchayat Election Rules in which rule 76 contains a similar provision as rule 79 of the Bihar Panchayat Rules for recount of votes. Learned counsel submitted that the decision in Ram Rati laid down that unless a request for recount of votes was made before the Returning Officer under the relevant provision of the election rules, no such prayer could be made before the court. In support of the submission he relied upon the observations made in paras 7 and 8 of the decision. 20. Mr. Y.C. Verma referred to the observations in the concluding para 9 of the judgment which are as follows: "We, however, make it clear that we have proceeded on the basis of plea of the respondent for recount under rule 76 afore-mentioned which has been negatived and we have not examined the powers of the Tribunal to order recount and the circumstances under which it can be so ordered." 21. Mr. Verma submitted that though the observations made in para 8 of the decision suggest that a request for recount before the Returning Officer was a precondition for making such a prayer before the court, the observation in the concluding para suggested to the contrary. Mr. Verma further submitted that unfortunately the full facts of the case were not discussed in this decision but it appears that in Ram Rati the Supreme Court was dealing with the limited issue whether or not a request for recount was made by the election-applicant before the Returning Officer. 22. Even if Mr. Vermas submissions on Ram Rati are to be accepted, the Supreme Court has clearly laid down the powers of the Tribunal and the circumstances under which the Tribunal can issue a direction for recount of the votes in Vadivelu V/s. Sundaram and others, AIR 2000 S.C. 3230 . This case arose from a Panchayat election from Tamil Nadu where there is a similar provision for recount under rule 66 of the Tamil Nadu Panchayat (Election) Rules, 1995. The facts in Vadivelu seem to cover the facts of the case in hand on all fours. This case arose from a Panchayat election from Tamil Nadu where there is a similar provision for recount under rule 66 of the Tamil Nadu Panchayat (Election) Rules, 1995. The facts in Vadivelu seem to cover the facts of the case in hand on all fours. In Vadivelu the defeated candidates, the election applicant had lost the election by one vote and had made similar allegation of irregularities in recount. He had also claimed that an application for recount was made before the Returning Officer under rule 66. The Election Tribunal had directed for recount on the basis of which Vadivelue was found to have secured 27 votes more than the returned candidates and the Election Tribunal had, therefore, set aside the election of the returned candidate and had made a declaration that the election applicant Vadivelue was the duly elected candidate. 23. The High Court found and held that in the facts and circumstances of the case, the Election Tribunal committed an error in directing for a recount of votes. The matter went up to the Supreme Court where on a consideration of a number of decisions, under the R.P. Act, the decision of the High Court was upheld. In paragraph 17 of the decision the Supreme Court took note of the pleadings of the election applicant alleging irregularities in counting and it appears that the pleadings in Vadivelue were atleast more precise and definite than in the present case. Even those pleadings were held not sufficiently substantive for a direction of recount. 24. In paras 19 and 20 of the decision, it was held that there was no evidence to show that the request for recount was made before the Returning Officer and on that score alone, the prayer for recount was not fit to be allowed by the Election Tribunal. 25. The facts in Vadivelue appear to be very similar to the facts of the case in hand and the ratio in Vadivelue appears to fully apply to this case. 26. On the basis of the Supreme court decision in Vadivelue (supra), it must be held that the learned Munsif committed an error in giving the direction for recount of votes and the order, dated 20.10.2001 was, therefore, invalid and illegal. As the final judgment is founded on the result of the recount, that also must be held to be equally unsustainable. As the final judgment is founded on the result of the recount, that also must be held to be equally unsustainable. The order, dated 20.10.2001 and the judgment and order, dated 6.4.2002 passed in Election Case No. 6 of 2001 before the Munsif, Raxaul at Motihari are, accordingly, set aside and the election petition filed by respondent no. 4 is dismissed. 27. In the result, this writ petition is allowed but with no order as to costs.