ORDER 1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legal validity of the order dated 18.6.2001 passed by the prescribed authority as contained in Annexure P-3, and further to issue a writ of certiorari for quashment of the same and further to issue a writ of mandamus commanding the Collector-cum-prescribed authority, the respondent No. 12 herein to proceed in accordance with law. 2. The facts as have been unfolded in the writ petition are that the election for various posts of Janpad Panchayat, Rampur Naikin, District Sidhi was held on 1.2.2000. The petitioner and the respondents No.1 to 9 filed their nomination papers for membership of Janpad Panchayat from Ward No. 1(2) Bharatpur. All the nomination. papers were found in order and symbols were allotted to the candidates and eventually the polling took place on 1.2.2000. The petitioner secured 983 votes whereas the respondent No. 1 obtained 980 votes. Having got more votes, the petitioner was declared elected is a member of Janpad Panchayat. Being aggrieved by the result of the election, the respondent No.1 filed election petition under section 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act'). The petitioner filed her written statement in oppugnation of the election petition and specifically denied each and every ground urged in the election petition. A stand was also taken that the election petition was baseless and devoid of substance and, therefore, liable to be dismissed. 3. The prescribed authority framed three issues: (i) Whether on account of inadequate arrangement of light during counting of votes, the counting of the ballots was affected ? (ii) Whether the counting of votes was not in accordance with the instructions of the State Election Commission ? (iii) whether the election petitioner is entitled to an order for recount of votes of polling booth No. 11, Amila ? 4. Before the Election Tribunal, the petitioner examined herself and she was cross-examined by the counsel for the election petitioner. Thereafter the case was fixed to 29.5.2001 for examination of remaining witnesses of the respondent No. 1. On 29.5.2001 the respondent No.1 was present with her counsel but the petitioner and her counsel were absent. The respondent No.1 thereafter closed her case without examining further witnesses. The election petition was adjourned to 12.6.2001 for arguments. Thereafter the case was fixed to 29.5.2001 for examination of remaining witnesses of the respondent No. 1. On 29.5.2001 the respondent No.1 was present with her counsel but the petitioner and her counsel were absent. The respondent No.1 thereafter closed her case without examining further witnesses. The election petition was adjourned to 12.6.2001 for arguments. The prescribed authority heard the arguments of the counsel for the respondent No.1. and closed the petition for the orders. Thereafter he passed the impugned order as contained in Annexure P-3 directing recount of votes polled in booth No. 11, Amilai on 28.6.2001. It was further directed that the recount would be done under the supervision of the Sub-divisional Officer, Churhat in accordance with the rule 80(4) of the Madhya Pradesh Panchayat Nrivachan Niyam, 1995. According to the petitioner, before the final order vide Annexure P-3 was passed, the petitioner had filed an application contained in Annexure P-4 for setting aside the order dated 25.5.2001 which was passed ex-parte against the petitioner. But when she came to learn that the final order had already been passed by the Collector, she submitted another application for suspension of execution or the impugned order but the same was not paid heed to. 5. It is urged in petition that the respondent No.1 had not made any specific ground for order of recount but in paragraph 13, a vague allegation was made that counting of votes was taken up very late without making alternative arrangement. It is also submitted that the allegations made in the election petition are absolutely vague. It is also averred that the order contained in Annexure P-3 was orally announced on 18.6.2001 and no final order in writing was passed on that date. No sooner the petitioner saw the written order the petitioner submitted an application for keeping the operation of the said order in abeyance. 6. I have heard Mr. A.K. Pathak, learned counsel for the petitioner, Mr. Ravish Agrawal, learned senior counsel for the respondent No. 1 and Mr. B.N. Mishra, learned Government Adovate for the State. 7. It is apposite to state here that this Court had called for the records from the respondent No. 12 which were accordingly produced by Mr. B.N. Mishra, learned Dy. G.A. for the State. It is also appropriate to state here that initially Mr. B.N. Mishra, learned Government Adovate for the State. 7. It is apposite to state here that this Court had called for the records from the respondent No. 12 which were accordingly produced by Mr. B.N. Mishra, learned Dy. G.A. for the State. It is also appropriate to state here that initially Mr. Pathak, learned counsel for the petitioner had advanced a contention that the Tribunal had directed the recount of votes without affording an opportunity of hearing to the petitioner but later on Mr. Pathak as well as Mr. Ravish Agrawal, learned senior counsel for the respondent No.1 agreed to the effect that justifiability of the impugned order be scrutinised by this Court and the matter may not be remitted for the purpose of arguments before the Tribunal. 8. The moot, question that arises for consideration is whether the order passed vide Annexure P-3 is sustainable in law or not. Before I delve into the defensibility of the order passed by the Tribunal, the prescribed authority, it is thought apposite to peruse the application. preferred under section 122 of the Act. Mr. Pathak has drawn the attention of this Court to paragraphs 5, 6, 7 and 13 of the same. The learned counsel has put forth that as far as the paragraph 5 is concerned, it relates to corrupt practice and forgery during polling. In paragraph 6 it had been alleged that the Retuning Officer did not commence counting from booth No. 11 immediately after the voting time was over but stm1ed after some time knowing fully well that there was no lighting arrangement and there was irregular electricity supply. It has also been alleged that during counting, deliberate steps were taken to stop the electricity supply intermittently and many an in irregularity was committed. At that juncture, the election petitioner protested before the Returning Officer but he did not pay any heed and in collusion with the returned candidate, proceeded with counting and declared the result in favour of the elected candidate. It is also been put forth that the election petitioner had filed an application for recount but the same was returned on the ground that there was no adequate supply of light to make recount. It is also been put forth that the election petitioner had filed an application for recount but the same was returned on the ground that there was no adequate supply of light to make recount. It has also been pleaded that the order of refusal was passed by the Returning Officer to suppress the facts that certain votes which were to be counted in favour of the election petitioner were counted in favour of the returned candidate. Allegation has also been made that voters were compelled to vote in favour of the returned candidate. 9. I have perused the written statement which has been brought on record as Annexure P-2. In the same, the present petitioner who was the respondent No.1 before the Election Tribunal, had controverted the allegations made therein, pleading, inter alia, that the counting of votes was done as per the specified time and was carried out in the most lawful manner. All the allegations made in the application were refuted. As has been indicated earlier the Election Tribunal on the basis of the allegations and material on record directed for recount. 10. It is noteworthy to state here that though three issues were framed, the real crux is that whether there should have been a direction for recount of votes. On a perusal of the Annexure P-3 it transpires that the election petitioner examined himself and she was cross-examined. The matter stood adjourned to 25.2.2001 on which day the election petitioner declined to adduce any further evidence. As the returned candidate was absent, he was proceeded ex parte and the matter was posted to 12.6.2001 for argument. On that day also, the petitioner did not appear and the matter was heard. On a careful perusal of the Annexure P-3, it appears that the Tribunal has dealt with two aspects, namely, whether there was adequate light at the time of counting of votes and whether the counting took place at the appropriate place. On that day also, the petitioner did not appear and the matter was heard. On a careful perusal of the Annexure P-3, it appears that the Tribunal has dealt with two aspects, namely, whether there was adequate light at the time of counting of votes and whether the counting took place at the appropriate place. With regard to the second aspect, the Tribunal has recorded a finding that the counting had taken place at the specified place as per the direction of the State Election Commission and there was no irregularity in the same but with regard to the first facet, the Tribunal opined that there was no adequate light when the counting had taken place as the same is perceptible on a perusal of the order passed for recount. Solely on this base, it directed for recount. 11. The heart of the matter is whether the refusal by the Returning Officer to recount the votes made it obligatory on the part of the Specified Officer to direct for recount. On a perusal of the application, it transpires that the recount was refused as there was no adequate light to Carry out recount of votes. On a scrutiny of the order of Tribunal it transpires that as there was no adequate light for recount, the recount should be directed. This is the only aspect which has been brought on record. It is worthwhile to state here that there is no allegation in the petition that during the process of initial counting there was non-supply of adequate light and there was illegality in the counting of votes on that score. I may hasten to add that there are various aspects which have been averred in the petition but the Election Tribunal has directed the recount only on this score. The Tribunal observed as the recount could not be done because lack of adquate supply of electricity, the case warranted recount of votes 12. To appreciate the aforesaid factual scenario it is apposite to refer to certain decisions in the field which deal with the issue of recount of votes. The Tribunal observed as the recount could not be done because lack of adquate supply of electricity, the case warranted recount of votes 12. To appreciate the aforesaid factual scenario it is apposite to refer to certain decisions in the field which deal with the issue of recount of votes. In the case of Ram Sewak Yadav v. Hussain Kamil Kidwai and others, AI R 1964 SC 1249 the Apex Court ruled thus : "An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in graning an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adquate statement of the material facts on which the petitioner relies in support of his case; and (ii) The Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by avernments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." 13. In the case of Dr. Jagjit Singh v. Giyani Kartar Singh and others, AIR 1966 SC 773 the Apex Court laid down that there may be some cases where for ends of justice it is necessary for the election, Tribunal to allow a party to inspect the ballot boxes and consider his objection about the improper acceptance of votes tendered but while considering the same care has to be taken to see that the election petitioner does not get an Opportunity to make a roving or fishing enquiry. 14. In the case of Shashi Bhushan v. Prof Balraj Madhok and others AIR 1972 SC 1251 the Apex Court gave emphasis on the secrecy of ballot papers and on pleading of material facts. 15. 14. In the case of Shashi Bhushan v. Prof Balraj Madhok and others AIR 1972 SC 1251 the Apex Court gave emphasis on the secrecy of ballot papers and on pleading of material facts. 15. In the case of Smt. Sumitra Devi v. Shea Shankar Prasad Yadav and others, AIR 1973 SC 215 the Supreme Court held that recount is not to be allowed as a matter of light, but on the basis of evidence of good grounds which would make it believable that there has been a mistake in the counting. 16. In this context, I may profitably refer to the decision rendered in the case of Belaram Bhalaik v. Jai Behari Lal Khachi and another, AIR 1975 SC 283 wherein the Apex Court has observed that the Court will be justified in ordering a recount or permitting inspection only where all the material facts on which the allegation of irregularity or illegality in counting are founded adequately in the election petition and the Court trying the matter is satisfied that the order of such recount is imperatively necessary. 17. In the case of Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376 their Lordships reiterated the principles of imperative necessity and availability of materials on record for recount and inspection. . 18. At this stage I may profitably refer to the observation of the Apex Court made in the case of Ram Surat Singh v. Harish Chwldra Mahato, AIR 1975 SC 701 wherein it has been held as under: "Inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection cannot be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such claim. Furthermore, the Court must be satisfied that for the purspose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection." 19. In the case of N. Naryanan v. S. Semmalai and others. AIR 1980 SC 200 the Apex Court laid down as under: ".....the relief of recounting cannot be accepted merely on the possibility of there being an error. In the case of N. Naryanan v. S. Semmalai and others. AIR 1980 SC 200 the Apex Court laid down as under: ".....the relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence." 20. In the case of Hari Ram v. Hira Singh and others, AIR 1984 SC 396 , Fazal Ali, J. speaking for the Court observed that inspection of ballot papers should be allowed very sparingly and only when it is absolutely essential to determine the issue. . 21. In the case of Satyanarain Dudhani v. Uday Kumar Singh and others, AIR 1993 SC 367 their Lordships held as under: "10. It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent, before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning officer, we are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that 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. The secrecy of the ballot papers has to be maintained and 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." 22. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and 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." 22. In the case of M. Omkar v. Revuri Prakashh Reddy and others (1999) 4 SCC 508 their Lordships took view that when in the evidence it is revealed that during the counting there was no complaint of any malpractice or irregularity in the matter of counting of votes and that after the result was declared an application for recount was made which was vague the circumstances did not justify the recount of votes. 23. At this juncture, I may profitably refer to the recent decision rendered in the case of Vadivelu v. Sundaram, (2000) 8 SCC 355 wherein it has been held as under: "15. In M.R. Gopalkrishanan v. Thachady Prabhakaran the election petitioner alleged that the counting was not done in a congenial atmosphere. The allegation was that counting was held in a small hall and there were other officials present in the hall; therefore, it became very crowded and counting of bundles of the ballot papers was done hastily and, therefore, it was not possible for the agents of the petitioner to carefully keep track of the process of sorting out and it was alleged that the Returning Officer rejected many votes as invalid in spite of the protest made by the petitioner. On these allegations, the petitioner sought for recount of votes. That prayer was rejected by the High Court and the same was challenged before this Court. After referring to the various decisions, it was held that the keeping in view that secrecy of ballot is sacrosanct in a 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 reliable character that there existed a prima facie case for recount, no Tribunal Court would be justified in directing re-count. 16. 16. The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot paper has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties." 24. In the case of V.S. Achuthanandan v. Francis and another, (2001) 3 SCC 81 it has been held as under: "16. We also do not agree with the submission of the learned senior counsel for the appellant that this Court had directed the High Court to permit an inspection and recount if a prima facie case was made out for such relief but the High Court has unreasonably insisted on availability of 'good grounds' before allowing the relief-of recount. In Suresh Prasad Yadav case the law stated by this Court is that the order for recount of ballot papers would be justified if, inter alia on the basis of evidence adduced the requisite allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting". This answers the submission which is more a play on jugglery of words. What was needed was proof of prima facie case of. availability of good grounds' wherein the election petitioner-appellant has failed." 25. The present factual matrix has to be tested on the anvil of the aforesaid pronouncement of law. As has been indicated hereinbefore the Tribunal has directed for recount of votes solely on the ground that the recount could not take place as there was non-supply of electricity. Mr. availability of good grounds' wherein the election petitioner-appellant has failed." 25. The present factual matrix has to be tested on the anvil of the aforesaid pronouncement of law. As has been indicated hereinbefore the Tribunal has directed for recount of votes solely on the ground that the recount could not take place as there was non-supply of electricity. Mr. Ravish Agrawal, learned senior counsel put-forth that had the recount being done by the Returning Officer, the truth would have been revealed and as the said exercise had been done by the Election Tribunal the same cannot be found fault with. The aforesaid submission, in my considered opinion has an inherent fallicy. Filing of an application for recount is mandatory. It is a condition precedent to pray for recount before the Election Tribunal unless an application has been filed before the Returning Officer such a prayer cannot be put-forth before the Election Tribunal. In this context, I may profitably refer to the decision rendered in the case of Ram Rati v. Saroj Devi and Others [1997 (2) Vidhi Bhasvar 195 = AIR 1997 SC 3072 ] wherein their Lordship held as under : "....In the light of the mandatory language of Rule 76 of the Rule, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. If it is not done, then the Tribunal or the Court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. The essential condition precedent is that an application in writing should be made and the Returning Officer should pass an order with reasons in support thereof either to recall the order or otherwise, in writing. The fact that the officer had not passed any order in writing would indicate that the respondent had not made any application. Obviously, some subsequent manipulation as contended by the appellant, would have taken place, as a result of which the election petition was filed and the arguments were addressed for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. In rare cases, the Tribunal or the Court is required to order recount, that too on giving satisfactory grounds for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. In rare cases, the Tribunal or the Court is required to order recount, that too on giving satisfactory grounds for recounting. In view of the fact that the rule itself provides that as soon as the result of the election is announced, an application in writing must be made at the first instance and the fact that no such application has been placed before us docs indicate that no such application has been made on the date of declaration of the result. The allegation of an application having been made, would be an after thought. The Tribunal, therefore, has committed manifest error in directing recount." The purpose of referring to the aforesaid decision is that the present Rules also prescribe for the filing of an application and it is mandatory but that does not necessarily mean that the election petitioner can ask for recount of votes before the Tribunal on the ground that his application for recount was not entertained. As has been indicated hereinbefore there has to be an imperative necessity and a foundation has to be made by bringing adequate material on record and adducing cogent evidence. In the instant case, the pleadings, as have been scrutinised by me, do not show the nature of irregularities that had crept in while the counting had taken place. It is not the case of the election petitioner that counting had taken place when there was no electricity supply; the count could not take place because of non-supply of electricity. The filing of an application for recount is not disbelieved but mere filing of an application does not ipso facto entitle the election petitioner to obtain an order from the Tribunal for recount or the Tribunal shall, in a routine manner, direct for recount of votes. There is nothing in evidence to show what were the irregularities or illegalities committed by the Returning Officer so that a recount of votes was warranted. In absence of such a base or foundation, I am of the considered view that the Election Tribunal has fallen into gross error by directing recount of votes. 26. Ex. consequenti, the writ petition is allowed and the order passed by the Election Tribunal vide Annexure P-3 is quashed. In absence of such a base or foundation, I am of the considered view that the Election Tribunal has fallen into gross error by directing recount of votes. 26. Ex. consequenti, the writ petition is allowed and the order passed by the Election Tribunal vide Annexure P-3 is quashed. The petitioner shall reap ail the consequential benefits. However, in the facts and circumstances of the case there shall be no order as to costs.