JUDGMENT A. S. NAIDU, J. — The appellant was elected as the Member of Zone No. 27, Angul Zilla Parishad. His election was declared invalid by the Additional District Judge-cum-Election Tribunal, Angul in Election Misc. Case No. 70 of 2002. Being aggrieved by the judgment of the Election Tribunal this appeal has been filed invoking jurisdiction of this Court under Section 44-Q read with Section 32 (3)(iv) of the Orissa Zilla Parishad Act, 1991 (here¬inafter referred to as ‘the Act’). 2. Bereft of unnecessary details the short facts for an effectual adjudication of his appeal are : The appellant and respondent Nos. 1 and 4 had contested the election for the office of the Member, Zone No. 27 of the Angul Zilla Parishad. After completion of voting on 21st February, 2002 counting of votes was made and it was found that respondent No. 1 had secured 54 more votes than his nearest contestant, the appellant, and he was declared elected. At the instance of the appellant and on his allegation that certain irregularities and illegalities had been committed during counting, the votes were recounted. On such recounting it was found that the appellant had polled 76 more votes than his nearest contestant, respondent No. 1, and was accordingly declared elected by Notification duly issued in consonance with law. Being aggrieved by such election of the appellant, respondent No. 1 filed the aforesaid Election Misc. Case before the Tribunal challenging recounting of votes and declaring the appellant as elected. The Tribunal allowed the Election Misc. Case on contest and declared the election of the appellant invalid with direction to the B.D.O., Banarpal-cum-Election Officer, present respondent No. 5, to take steps to fill up the vacancy in terms of the provi¬sions of Section 32 of the Act. The Tribunal arrived at its conclusion on the basis of the finding that there was no provi¬sion for recounting in the Act and the Rules framed thereunder. The appellant thereafter approached this Court in Election Appeal No. 2 of 2003. This Court after hearing the parties came to the conclusion that the Tribunal had disposed of the Election Misc. Case relying upon the pre-amended Rules and had not taken into consideration the provisions of the amended Rules. This Court by order dated 24th September, 2004 allowed the Election Appeal and remanded the matter to the Tribunal with a direction to rehear the Election Misc. Case relying upon the pre-amended Rules and had not taken into consideration the provisions of the amended Rules. This Court by order dated 24th September, 2004 allowed the Election Appeal and remanded the matter to the Tribunal with a direction to rehear the Election Misc. Case de novo on the basis of the provisions of law as stood amended and decide the issues already framed or any other issue as may be required to be framed for the purpose of the case. After remand the Tribunal framed an additional issue, viz., “Whether the Election Officer directed recounting of ballot papers as per law ?”. On the basis of the materials, the Tribunal came to the conclusion that the recounting of ballot papers was not made as per law as there was no written application and, accordingly, allowed the Election Misc. Case and declared the election of the appellant invalid. The said judgment of the Tribunal is impugned now. 3. Mr. Ratho, learned counsel appearing for the appellant, relying upon different provisions of the Act and the Rules framed thereunder, forcefully submitted that the Tribunal acted illegal¬ly and with material irregularity and its findings are based on misinterpretation of law as well as evidence on record. According to him, the appellant had filed an application for recounting and on that basis the Election Officer had directed recounting. Relying upon the evidence of respondent No. 1, Mr. Ratho submit¬ted that the said respondent had admitted in his deposition that there was a written application for recounting. To add to that, there was absolutely no averment in the Election Misc. Case petition to the effect that no written application had been filed for recounting. 4. Mr. Misra, learned counsel appearing for respondent No. 1, forcefully submitted that in the Election Misc. Case petition the process of recounting itself was challenged. Thus the submis¬sion that there was no pleading in the said petition with regard to recounting of votes is not correct. According to him no evidence at all was adduced by the appellant to prove that in fact an application for recounting of votes had been filed by him. That apart, the Election Officer was set ex parte in the case and there was no occasion for him to produce any document. Drawing attention of this Court to the deposition of P.W.2, Mr. That apart, the Election Officer was set ex parte in the case and there was no occasion for him to produce any document. Drawing attention of this Court to the deposition of P.W.2, Mr. Misra submitted that the said witness had admitted in his deposi¬tion that recounting of votes had been made on the oral objection of the appellant to the earlier counting. Further, relying on order dated 4th April, 2003 passed in the Election Misc. Case, Mr. Misra submitted that on records being called for, the author¬ity concerned indicated that the same were not available having been already destroyed. 5. I have heard learned counsel for the parties at length and have perused the materials available on record. Before proceeding to analyse the facts, it would be necessary to refer to the relevant provisions of the Rules framed under the Act with regard to counting and recounting of votes. Rule 39(2) of the Orissa Zilla Parishad Election Rules, 1994 was repealed by amendment. Sub-rules (5) to (8) to Rule 39 were inserted to the Rules by amendment. The said Sub-rules (5) to (8) to Rule 39 read as follows : “(5) After the declaration under Sub-rule (2) has been made, a candidate or, in his absence, his polling agent may apply in writing to the Election Officer to recount the votes either wholly or in part, stating the grounds for such recounting. (6) On an application made under Sub-rule (5), the Election Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (7) Every decision of the Election Officer under Sub-rule (6) shall be in writing and contain the reasons therefor. (8) If the Election Officer decides under Sub-rule (6) to allow recounting of the votes either wholly or in part, he shall : (a) make the recounting in accordance with Rule 36; (b) make necessary corrections in the result sheet in Form No. 12 to the extent necessary after such recounting, and (c) announce the result on the basis of the corrections so made by him.” 6. It would be evident from Sub-rules (5) and (6) supra that only on the basis of an application made in writing by a candidate or in his absence by his polling agent, the Election Officer shall decide as to whether there would be recounting or not and pass necessary orders for recounting. The only question that needs determination in this case is as to whether the appellant had in fact filed an application for recounting. In absence of such application, the Election Officer had no authority to direct recounting of votes. According to Mr. Ratho, the appellant had in fact made an application in writing for recounting. The said submission is stoutly denied by Mr. Misra. 7. In support of his contention, Mr. Ratho relied upon the evidence of D.W.1 who has clearly stated that appellant Binod had filed a petition for recounting of votes. He also relied upon an affidavit filed on behalf of respondent No. 5 before this Court enclosing a Xerox copy of the written application dated 1st March, 2002 said to have been filed by appellant Bind before the Election Officer praying for recounting of votes. 8. To countenance such stand, Mr. Misra relied upon the order dated 4th April, 2003 passed by the Tribunal which would reveal that no records were available with the Election Officer and, as such, according to Mr. Misra, the genuineness of the application annexed to the affidavit of respondent No. 5 as Annexure-C/5 cannot be accepted. It was further submitted that as the said document was neither produced or proved, nor was there any application for accepting the said document as additional evidence, no reliance can be placed on the said document. 9. I find some force in the contention of Mr. Misra, Admittedly the Xerox copy of the application filed as Annexure-5 was not produced before the Tribunal and the said document has not been proved in consonance with the Evidence Act. For non-compliance with the aforesaid formality, this Court while deciding this appeal cannot accept and rely upon the said docu¬ment. At the same time this Court feels that if such a document was in fact available on record, only because the State machinery failed to produce the same before the Tribunal, respondent No. 1 should not be deprived of the benefit he was otherwise entitled due to laches of the State. At the same time this Court feels that if such a document was in fact available on record, only because the State machinery failed to produce the same before the Tribunal, respondent No. 1 should not be deprived of the benefit he was otherwise entitled due to laches of the State. The same would amount to miscarriage of justice. 10. In the aforesaid scenario, this Court feels that ends of justice would be better served if the appeal is allowed, the impugned judgment and order passed by the Tribunal are set aside and the matter is remitted back to the Tribunal for the limited purpose of deciding as to whether the appellant had in fact filed an application for recounting of votes, and I order accordingly. I further direct that for the said purpose the Tribunal shall issue necessary direction to the Election Officer (respondent No. 5) to produce the original of Annexure-C/5 and on such production, the Tribunal shall deal with the same in consonance with the Evidence Act. In the event any party may seek to adduce any supporting/rebuttal evidence, such opportunity shall be afforded. It is needless to say that if the Tribunal comes to a finding that in fact the appellant had made an application in writing before the Election Officer in consonance with Rule 39 of the Orissa Zilla Parishad Rules, then the recounting to be held to be valid and the consequences will follow. With the aforesaid observations/directions the Election Appeal is disposed of. Appeal disposed of.