Judgment ( 1. ) THE petitioner in the instant writ petition challenges the dismissal of election petition by the S. D. O. as per Order (P-7 ). ( 2. ) PETITIONER preferred election petition under Section 122 of the MP. Panchayat and Gram Swaraj Adhiniyam, 1993 on the ground of irregularity in the counting and the recounting was held in illegal manner by the Presiding Officer. Respondent Nos. 3, 5 and 7 in the reply before SDO contended that counting was properly held. No written application was filed by the petitioner for recounting. On the prayer made by the petitioner recounting was done, still no change was found. SDO as per order (P-4) in spite of giving finding that no written application was filed before the Presiding Officer seeking recount, ordered the recount as per order dated 4-7-2001 and appointed a Committee of three persons. Recounting has been held and report (P-5) was submitted before the SDO. SDO has dismissed the election petition holding that counting was held properly and result remains the same. ( 3. ) SHRI Vivek Rusia, learned Counsel appearing for the petitioner, submits that from the report (P-5) of recounting it is clear that on 24 ballot papers out of 28 some other marks were also found by the lead pen. As such these 24 votes ought to have been discarded and could not be counted in favour of respondent No. 4 Teerat Prasad. He further submitted that double standard has been applied inasmuch as similar votes found in favour of the election petitioner were rejected. ( 4. ) SHRI R. L. Ariha, learned Counsel appearing for respondent No. 4, contended that initial order directing recount is without jurisdiction as no application was filed before the Presiding Officer seeking recount by the election petitioner. As such it was not open to file election petition and maintain it on the ground of recount. Shri Ariha has relied on Rule 80 of the M. P. Gram Panchayat Election Rules. He has also submitted that no case was made out for recount and SDO erred in law in directing the recount to be made. ( 5. ) FIRST submission is that 24 votes which have been counted in favour of elected candidate ought to have been rejected, be examined. He has also submitted that no case was made out for recount and SDO erred in law in directing the recount to be made. ( 5. ) FIRST submission is that 24 votes which have been counted in favour of elected candidate ought to have been rejected, be examined. On recount it has been found that out of 28 votes which were questioned, on 4 there were signature of the voters. These ballot papers have been rejected and on other 24 the mark of lead pen exist from which it is not possible to identify the voter is the finding recorded by the SDO. As per Rule 76 (1) (a) of the M. P. Panchayat Nirvachan Niyam, 1995 only if a ballot paper contained mark or writing by which voter can be identified shall be rejected not otherwise. The finding of fact has been recorded that on 24 ballot papers mark in question was found by lead pen from which it was not possible to make identification of the voter. It is purely finding of fact. No interference is called for. It is also submitted that counting could not be ordered to be done by a committee comprising of 3 persons, in my opinion, no illegality has been done, counting was directed at the prayer of petitioner and he has lost on recounting. ( 6. ) NEXT question raised by Counsel for respondent No. 4 is that the election petition ought to have been dismissed only on the ground that application seeking recount was not presented before the Presiding Officer. Hence, election petition ought to have been dismissed and no recounting could be held. ( 7. ) THE Supreme Court recently in Sohan Lal Vs. Babu Gandhi and others, 2002 AIR SCW 4803, has overruled its decision in Ram Rati Vs. Saroj Devi, AIR 1997 SC 3072 , wherein Rule 76 of the M. P. Panchayat Election Rules, 1994, came for consideration, which is pari materia to Rule 80 of M. P. Panchayat Election Rules, 1995. On consideration of Rule 80, the Apex Court has held that it is not necessary to file application seeking recount before Presiding Officer and Court or Tribunal can see even if application was not filed praying for recount; whether counting was held properly or not and in appropriate case can order recount. The Apex Court has laid down:- "10. On consideration of Rule 80, the Apex Court has held that it is not necessary to file application seeking recount before Presiding Officer and Court or Tribunal can see even if application was not filed praying for recount; whether counting was held properly or not and in appropriate case can order recount. The Apex Court has laid down:- "10. Thus, under sub-rule (5) once the result sheet is completed and signed, no application for recount can be entertained. 11. Rule 81 also provides that after the counting of the votes, the Returning Officer shall prepare a return and declare the candidate who has the largest number of votes to have been elected. Under Rule 83, a certificate is to be granted to the returned candidate who has been declared elected. Under Rule 84 after the certificate has been granted, the election officer or the Returning Officer can only correct clerical or arithmetical mistakes. 12. Thus after declaration of results, the Returning Officer has no power either to direct recount or to change the results of the election. Once the result is declared, the only remedy of an aggrieved party is an Election Petition under Section 122. 13. In this case, as stated above, the appellant had been orally told that he had won. He only came to know that respondent No. 1 had been declared elected after the result was declared. At this stage, he could not have approached the Returning Officer for recount. The only remedy, therefore, available to the appellant was to file an election petition. 14. In view of Section 122 and the rules, we are unable to agree with the ratio laid down in Ram Ratis case. It is not correct to hold that, in an election petition, after the declaration of the result, the Court or Tribunal can not direct recounting of votes unless the party has first applied in writing for recounting of votes. There is no prohibition in the Act or under the Rules prohibiting the Court or Tribunal to direct a recounting of the votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition under Section 122. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition under Section 122. In such a case, the Court or the Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, held that the ratio laid down in Ram Ratis case is not correct. " ( 8. ) THUS, it is open to the Court or Tribunal to order recount in case an application was not presented before the Presiding Officer questioning the counting and election petition can not be dismissed for not filing such an application as held by Apex Court in Sohan Lal (supra ). Thus, the submission raised by learned Counsel for respondent No. 4 fails. However, writ petition is liable to be dismissed on other grounds. ( 9. ) RESULTANTLY, writ petition is dismissed. Costs on parties. Writ Petition dismissed.