ORDER 1. Challenge in this petition under Article 226/227 of the Constitution is made to order Annexure P-l dated 31.5.2005 passed by the Election Tribunal allowing a election petition filed by respondent No.2 directing for recounting of the ballot papers and the consequential order passed vide order Annexure P-1A, dated 2.6.2005 declaring respondent No.2 as Sarpanch of the Gram Panchayat Utanbada. 2. Elections of the Gram Panchayats were held on 17.1.2005 and in the said election, counting of votes took place on 27.1.2005. Petitioner and respondent No. 2 were candidates contesting the election for the post of Sarpanch of Gram Panchayat Utanbada, Tahsil and Dist. Sheopur (M.P.). In the counting held on 27.1.2 005, petitioner secured 533 votes while the respondent No.2 secured 520 votes. 67 votes were found invalid. Accordingly, results were declared and the petitioner was declared elected as Sarpanch of the Gram Panchayat Being aggrieved by the election of the petitioner, respondent No.1 filed an election petition under section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the "Panchayati Raj Adhiniyam") on 7.2.2005 before the Sub-Divisional Officer, the specified officer respondent No.3. In the election petition, the main objection raised by the respondent No. 2 was that the recounting ordered by the returning officer was not conducted and without properly counting of votes, petitioner has been declared elected. Inter alia contending that counting of votes were not properly undertaken, respondent No. 2 challenged the election of petitioner as Sarpanch in the said election petition. 3. Petitioner appeared and filed various objections. Petitioner submitted that the election petition is not properly presented in accordance with law. Requirement of rule 3 (1) of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification from the Memberships) Rules, 1995 (hereinafter referred as the "Rules of 1995") is not complied with inasmuch the election petition was presented before the specified officer on 7.2.2005 by Shri C.S. Gupta. Advocate, and not by the petitioner, there is no authorization, authorizing Shri C.S. Gupta, Advocate to present the election petition before the specified officer. Advocate, and not by the petitioner, there is no authorization, authorizing Shri C.S. Gupta, Advocate to present the election petition before the specified officer. It was also stated that copies of the election petition supplied to the petitioner were not attested as per rule 3 (2) of the Rules of 1995 and therefore the petition is liable to be dismissed in view of the rule 8 of the Rules of 1995, however, it is the grievance of the petitioner that without considering these objections properly, Election Tribunal namely Specified Officer by the impugned order Annexure P-l dated 31.5.2005 has ordered for recounting of votes and after recounting of votes, the respondent No.2 is declared as elected. Inter alia contending that no relief of recounting can be claimed in the election petition and that orders of recounting cannot be granted in such a manner, petitioner seeks interference in the matter. 4. Inviting my attention to various judgments on the question of recounting, so also and by taking me through the order dated 31.5.2005 passed by the specified officer, Shri D.P. Singh, learned counsel for the petitioner argued that the specified officer has clearly misdirected itself in deciding the election petition. Apart from the fact that the petition under section 122 of the Adhiniyam of 1993 was not maintainable, even on merits it was argued by Shri D.P. Singh learned counsel for the petitioner that the election petition could not he allowed. The judgment received upon by Shri D.P. Singh are as follows: 1. Hari Singh v. Anwar Khan & others [2001 (1) MPJR SN 6] 2. Uday Singh v. Himmat Singh and others [ 1999 (1) JLJ 200 ]. 3. Smt. Summan Patel v. Smt. Bhanwati [1998 (2) Vidhi Bhasvar 261 = 1998 (2) MPJR 368 ]. 4. Laladhar v. Lakshman Singh [1996 (II) MPWN 132]. 5. Kailash Singh v. Narayan Singh and others [ 1999 (1) JLJ 342 ] 6. Ramlakhan Sharma v. Badan Singh and others [1999 (1) MPJR SN 42]. 7. Satyanarayan Dudhani v. Uday Kumar Singh and others [ AIR 1993 SC 367 ] 5. 4. Laladhar v. Lakshman Singh [1996 (II) MPWN 132]. 5. Kailash Singh v. Narayan Singh and others [ 1999 (1) JLJ 342 ] 6. Ramlakhan Sharma v. Badan Singh and others [1999 (1) MPJR SN 42]. 7. Satyanarayan Dudhani v. Uday Kumar Singh and others [ AIR 1993 SC 367 ] 5. Refuting the aforesaid contention advanced by Shri D.P. Singh learned counsel for the petitioner learned counsel representing respondent No.2 Shri J.P. Mishra argued that finding recorded in the matter of counting of votes by the specified officer is in accordance with law and no case for grant of relief in this petition is made out. 6. Shri J.P. Mishra pointed out that when respondent No. 2 had moved the applications for recounting was not done by the authorities concerned. This fact was considered by the specified officer and finding orders of recounting already available on record action by the specified "officer is said to be proper. That apart, it was submitted by Shri J.P. Mishra that objection with regard to violation of rule 3 (1) of the Rules of 1995 was not raised by the petitioner when the matter was pending before the Election Tribunal and therefore now on this petition the said objection cannot be considered. . 7. It is stated by Shri I.P. Mishra that as recounting of votes' in pursuance to the order dated 31.5.2005 has been done and on recounting conducted on 2.5.2005 respondent No.2 is declared to have been elected, no case is made out for interference. Accordingly, it is prayed that petition be dismissed. 8. I have heard learned counsel for the both the parties at length and have also perused the original records received from the specified officer in Election Petition No.09/04 pertaining to election of Gram Panchayat Utanbada ward, Tahsil and Dist. Sheopur (M.P.). Before adverting to the question with regard to direction given for rocountig of votes by the specified officer and the law laid down with regard to issuance of such a direction, it would be proper to consider the question raised with regard to maintainability of the election petition Itself on the grounds of breach of rule 3 (1) of the Ejection Rules of 1995. 9. 9. A perusal of rule 3 (1) of the Rules of 1995 indicates that all election petition has to be presented to the specified officer during officer hours by the person making objection or by a person authorized in writing in this behalf by the person making the petition. It is clear from the aforesaid rule that the election petition is required to he presented before the specified officer either by the election petitioner himself or herself or by a person who is authorized in writing by the election petitioner. Rule 8 of the Rules of 1995 further provides that if the provisions of rule 3 are not complied with, the election petition shall be dismissed by the specified officer. It is therefore, clear that in case of breach of rule 3 (1) of the Rules of 1995 election petition is liable to be dismissed. The original records received from the specified officer indicate that the election petition was presented before him by Shri C.S. Gupta, Advocate on 7.2.2005. Endorsemet is made in the original election petition at page 17 and in the first page, it is indicated that the election petition has been presented by Shri C.S. Gupta, Advocate. Thereafter, the order-sheet is prepared and the order-sheet dated 7.2.2005 indicates that the election petition on behalf of Dwarikabai w/o Girraj under section 122 is presented by Advocate Shri C.S. Gupta. Thereafter, in column No.3 signature of Shri C.S. Gupta, Advocate, is available and the next date of hearing, i.e., 10.2.2005 is noted by the said Advocate. In column No.3 of the order-sheet, so also in the endorsement .made at page 17, i.e., first page of the election petition except signature of the specified officer and endorsement with regard to presentation of the election petition and deposit of security, there is no indication to show that the election petition was presented by respondent No.2 Dwarikabai herself. Even in the return, it is not the case of the respondent No. 2 that she had herself presented the election petition before the specified officer on 7.2.2005. On the contrary, the election petition is presented by her counsel Shri C.S. Gupta on the basis of vakalatnama given by the respondent No. 2. Even in the return, it is not the case of the respondent No. 2 that she had herself presented the election petition before the specified officer on 7.2.2005. On the contrary, the election petition is presented by her counsel Shri C.S. Gupta on the basis of vakalatnama given by the respondent No. 2. The vakalatnama is available on page No.22 of the records and in the vakalatnama, which is general in nature, there is no specific authorization in writing authorizing Shri C.S. Gupta to file the election petition under section 122 of the Adhiniyam of 1993 before the specified officer. 10. The question of presentation of the election petition personally by the election petitioner and the fact of presentation of the election petition by a counsel authorized by a vakalatnama has been considered by this Court in Uday Singh (supra) and Suman Patel (supra). In the case of Uday Singh (supra), the provisions of rule 3 (1) of the Election Rules of 1991, which are identical to the Rules of 1995, were considered and after considering the vakalatnama presented by the counsel in the matter, it was observed by the Court that in the vakalatnama, there is no authorization authorizing Advocate concerned in writing to present the election petition before the Sub-Divisional Officer. After considering this fact, it has been held that the election petition presented by the Advocate is not maintainable and the election petition is liable to be dismissed on the said ground alone. 11. Following the aforesaid judgment, in the case of Suman Patel (supra) the same question was again considered and in the said case also the question of presentation of election petition by the Advocate was taken not of and it has been held by this Court that if breach of rule 3 (1) is established then the election petition has to be dismissed summarily in view of the provisions of rule 8 of the Rules of 1995. Taking note of the facts in the present case and considering the law laid down by this Court in the case of Uday Singh (supra) and Smt. Suman Patel (supra), it is clear that in the present case also the election petition was not presented by the petitioner herself before the specified officer as required under the statutory rules and therefore the election petition was liable to be dismissed on this ground alone. 12. 12. In the present case also, the specified officer has registered the election petition and proceeded to decide the same without taking note of the aforesaid illegality in the matter of presentation of election petition. 13. Following the judgment in the case of Smt. Suman Patel (supra) in another case. i.e. Tara v. Dabla alias Lalita and others [2002 (2) Vidhi Bhasvar 157 = 2002 (2) MPHT 554 ] has been decided by the Bench of this Court. In the aforesaid case also, after taking note of the provision of rule 3 (1) of the Rules of 1995 read with rule 8, it has been held that without proper authorization in writing authorizing a counsel to present the election petition before the specified officer the election petition is not maintainable. It is therefore clear from a combined reading of the aforesaid three judgments that the election petition in the present petition was not maintainable and the learned specified officer has committed grave error of law in accepting the election petition which was not presented before him in accordance with the requirement of law. 14. Even though Shri J.P. Mishra learned counsel, argued that this objection was not raised by the petitioner in her written statement the aforesaid objection is a question of aw and it can be considered and decided by this Court even in this petition. I may now proceed to analyze the question on merit as serious arguments were advanced with regard to the question of ordering recount in the matter of election bb the Election Tribunal. 15. A perusal of the election petition as contained in page 17 indicates that it is a small petition consisting of five paragraphs and two pages. In para 1 of the petition, factual assertion is made with regard to votes received by the petitioner the respondent and the number of invalid votes. Thereafter, in para 2 it is stated that petitioner is declared elected and the difference of votes is only 13. In para 3, it is stated that at the time of counting of votes certain votes which were cast in favour of the respondent No.2 were counted in favour of the petitioner in this case and certain votes which were cast in favour of the respondent No.2 were declared invalid. 16. In para 3, it is stated that at the time of counting of votes certain votes which were cast in favour of the respondent No.2 were counted in favour of the petitioner in this case and certain votes which were cast in favour of the respondent No.2 were declared invalid. 16. In this manner, as proper counting was not done and therefore on behalf of the election petitioner an application was submitted for recounting of votes, even though the application was submitted, for about three hours, no action was taken on the application. It is submitted that the counting has not been properly done, thereafter, in para 4, it is submitted that as there is manipulation in the counting of votes, as recounting has not been ordered, the election petition is filed. 17. It is therefore, clear that in the entire election petition only some allegation of improper counting of votes is alleged. However, from the material available on record it is seen that two applications were filed by the election petitioner Smt. Dwarikabai on 27.1.2005 before the Tahsildar and the Returning Officer, Panchayat Elections, Tahsil and Distt. Sheopur (M.P.). In this application, prayer made is that as she has lost election by 13 votes and as she feels that counting has not properly been done she has prayed for recounting of votes. This application has been allowed and the polling officers of booths No. 165, 166 and 167 have been directed to recount the votes in accordance with the rules. The records indicate that on receipt of this order, the polling officers have called the election petitioner Smt. Dwarikabai and her representative to come for the purpose of recounting however, they did not come for recounting and as they did not appear when called for, no recounting was done. The aforesaid fact is established from the statements of Shri Murarilal Shakya and Smt. Ramesh Shakya, these witnesses have categorically stated that after they had received orders for recounting in polling booths No. 165, 166 and 167, they made announcement for recounting 1 to 3 times but as none appeared on behalf of the applicant who had made request for recounting the recounting could not take place. The aforesaid facts are clear on a perusal of pages No. 40 and 57 of the record of the Election Tribunal and the statements of witnesses available in pages No. 51 and 52 of the same record. While considering the matter, the specified officer has held that once recounting was ordered the authorities concerned were duty bound to conduct recounting of votes and for the said purpose, it was not necessary for the polling officers to wait for the applicant or the polling agent to be present. It is held that recounting of votes could be done even without the presence of the applicant or the agent of the applicant seeking recounting votes. It is after recording such a finding that the specified officer has directed for recounting on 2.6.2005. This direction and finding recorded by the specified officer is clearly contrary to the statutory provision. The procedure for counting of votes and recounting of votes is contemplated in the M.P. Panchayat Nirvachan Niyam, 1995. Chapter 10 of the aforesaid Rules pertains to counting of votes. The entire procedure for counting of votes is contemplated in the aforesaid chapter and rule 76 thereof deals with scrutiny and rejection of ballot paper Sub-rule (2) of rule 76 contemplates that before rejecting any ballot paper under sub-rule (1), the returning officer or such other officer authorized by him shall allow each counting agent or a reasonable person to inspect the ballot paper. Thereafter the procedure for counting of votes, which are not rejected under rule 76 is prescribed in rule 77. A detailed procedure for recounting of votes is provided in rule 80. The aforesaid rule contemplates that after announcement has been made by the returning officer or such other officer authorized by him, a candidate or in the absence of the candidate the election agent or the counting agent may apply in writing to the returning officer for recounting stating the grounds on which demands for recounting is made. Sub-rule (2) contemplates that on such an application being made, the returning officer or such other officer authorized by the returning officer shall decide the matter and allow the application in whole or in part. Sub-rule (3) contemplates that the decision of the returning officer or the officer authorized by him shall be in writing and shall contain reasons for recounting. Sub-rule (3) contemplates that the decision of the returning officer or the officer authorized by him shall be in writing and shall contain reasons for recounting. Sub-rule (4), however, contemplates that if the returning officer or such other officer authorized by him decides to allow the application for recounting either in whole or in part he shall count the ballot papers again in accordance with his decision and announce the result by amending the result sheet. A combined reading of rule 80 and rule 77 indicates that recounting of votes has to be done in the presence of the candidate or the candidates or the election agents in the same manner as prescribed for counting of votes, i.e., recounting is also required to be done in accordance with the provisions of rule 77. A Bench of this Court in the case of Ramkumar Lodhi v. Smt. Biniya [1996 (II) MPWN 167] has laid down the aforesaid principle. It is therefore clear that in the present case, the learned specified officer has directed for recounting of votes only on the ground that recounting can be done even when the candidate or her agents were not present. 18. Apart from the aforesaid irregularity in the matter, it is clear from the averments made in the election petition as indicated hereinabove that election petition had sought for recounting on the basis of certain vague allegations to the effect that certain votes cast in her favour were counted in favour of the winning candidate and counting has not been done properly. It is the settled principle of law that recounting of votes in an election is not permissible until and unless a strong case for recounting is made out. It is held by the Supreme Court in various cases that secrecy of the ballot is sacrosanet in a democracy and until and unless a very strong and prima facie case for recounting is made out no orders for recounting can be made. The procedure for the recouting of votes as contained in Chapter 10 also indicates that the ballot papers are shown to the candidate or his agent and it is only thereafter that they are counted or rejected. The procedure for the recouting of votes as contained in Chapter 10 also indicates that the ballot papers are shown to the candidate or his agent and it is only thereafter that they are counted or rejected. Supreme Court has considered the question of directing for counting/recounting of votes in election petitions in the case of P.K.K. Shamsudeen v. K.A.M. Muppilla Mohindeen and others [ AIR 1989 SC 640 ] and it has been held by the Hon 'ble Supreme Court as under: "The settle position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of votes. On the contrary the justification for an order of recount of votes should he provided by the material placed by an election petitioner Oil the threshold before an order (or recount of votes is actually made. The reason for this salutary rule is that the preservation of secrecy the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless 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 in 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 or probability existed for the recount of votes being ordered by the Election Tribunal in the interest of justice, a Tribunal or Courts should not order the recount of votes." (emphasis supplied) 19. This judgment was considered in the case of Uday Singh (supra) by this Court and thereafter in another case in the matter of recounting, i.e., Ramrati v. Sarojdevi and others [1997 (2) Vidhi Bhasvar 195 = (1997) 6 SCC 66 ] the question is again considered and it has been held by the Supreme Court that recount of ballot papers can be permitted only if the tribunal reaches a prima facie satisfaction that there are adequate material available from deviating with the principle of secrecy of ballot. Recount, it has been held by the Supreme Court, cannot be ordered in a casual manner merely on the basis of asking by a candidate. Recount, it has been held by the Supreme Court, cannot be ordered in a casual manner merely on the basis of asking by a candidate. Adequate material has to be produced by the election petitioner to show that votes have been wrongly received or rejected. The matter of recount was also considered in the case of Smt. Suman Patel (supra) and after considering the law laid down in the matter of recounting in the case of Shri Satyanarayan Dudhani v. Uday Kumar Singh and others [ AIR 1993 SC 367 ], it has been held that when the election petition does not contain proper grounds or material for making out a case for recount, recount cannot be ordered. 20. In the case of Kailash Singh (supra) also the question of recount has been considered and a similar approach as is done by the specified officer in the present case for recount has been taken note of and after considering various judgments in the matter, in paras 5 and 6. it has been held by the learned Judge in the aforesaid case as under: "5, There cannot be any dispute that if the specified officer is of the opinion that the result of the returned candidate is materially affected by improper acceptance, refusal or rejection of any vote, he has the power to declare the election of the returned candidate to be void. What is therefore to be seen is whether merely on the assertion of the election petitioner that there was improper acceptance or rejection of the votes, which fact was denied and without any evidence having been adduced by the parties to substantiate the allegations or there being any other contemporaneous evidence in support thereof, could the specified officer have directed recounting of the votes and if so, could he have done so with a view to verify the truth or otherwise of the allegations made in the election petition. In P.K.K Shamsudeen v. K.A.M.M. Mohindeen (supra), their Lordships have observed that 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 derived from hindsight and by the result of the recount of the votes. The observations contained in paragraph 13 of the said judgment read as follows: 13. The observations contained in paragraph 13 of the said judgment read as follows: 13. 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 derived 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 O 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 in 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 interest of justice, a Tribunal or Court should not order the recount of votes." 6. In the present case, the course adopted by the specified officer is the course which has been strongly deprecated in the above observations of the apex Court. There was nothing beyond the pleadings of the parties on record, to enable the specified officer to from an opinion as required by rule 21 of the Rules that there was in fact an improper acceptance or rejection of the votes or refusal of any vote or reception of any vote which was void. In fact the specified officer has proceeded to order the recount merely to ascertain whether or not the allegations contained in the election petition with regard to the improper rejection or reception of the votes were true or not. This clearly indicates that the specified officer had not formed any opinion about the improper rejection or reception of the votes but only with a view to enable him to form such an opinion, he had proceeded to pass the order directing production of the ballot papers and for recounting of the votes." 21. This clearly indicates that the specified officer had not formed any opinion about the improper rejection or reception of the votes but only with a view to enable him to form such an opinion, he had proceeded to pass the order directing production of the ballot papers and for recounting of the votes." 21. From a combined reading of the various judgments, it is well settled in law that the secrecy of the ballot papers cannot be permitted to be taken lightly. An order of recount should not be granted as a matter of course. Such a procedure is to be resorted to only upon satisfaction with the material facts pleaded in the petition and supported by evidence adduced to justify the recount. A cryptic application made to the authority without any details of any kind or without there being any evidence to show irregularity or illegality in the matter of counting should not be allowed. It is only when the Courts are satisfied on the basis of facts pleaded in the petition and supported by the evidence that the recount can be ordered. In the present case, the scenario is similar to the view expressed in the various judgments on the question of the recount, neither in the application submitted nor in the pleading made in the election petition respondent No.2 has given any cogent material showing irregularity in the matter of counting. She had made certain vague allegations. Specified officer has directed for recounting only because certain orders were passed for recounting which were not carried out. This could not be aground for directing recount. The material available on record in the facts and circumstances of the case does not indicate that recounting was called for. It is seen from the records that after recounting was held on 2.6.2005 respondent No.2 received 529 votes while petitioner received 522 votes and finding 69 votes to be invalid respondent No. 2 has been declared as elected. Shri J.P. Mishra had argued that once the recounting has been held and the petitioner is declared as not elected, no interference is called for in the matter. I am afraid the aforesaid contentions cannot be accepted. Shri J.P. Mishra had argued that once the recounting has been held and the petitioner is declared as not elected, no interference is called for in the matter. I am afraid the aforesaid contentions cannot be accepted. Once it is found by this Court that the order of recounting made was not warranted in the facts and circumstances of the case and is not in accordance with the law governing the concept of recount of the votes, merely on the basis of the result of the subsequent recount, petition cannot be dismissed. These considerations have been made by the Hon'ble Supreme Court and it has been held that merely because recount one of the candidates is elected. petition cannot be dismissed. These Facts have been considered in the case of Kailash Singh (supra), similar, situation was considered in para 12 of the aforesaid judgment and it is held by the court that the various judgments referred to emphasize the sacrosanctia of votes, as such Tribunal cannot be permitted to follow the rule more in its breach then in its observance and as the order passed by the specified officer suffered from the patent illegality, the order was quashed and the result after recount was also quashed. Keeping in view the observation made in para 12 and 13 in the case of Kailash Singh (supra), the aforesaid contention of Shn J.P. Mishra cannot be accepted. Once it is held that specified officer has committed illegality in the matter the order cannot be permitted to stand. 22. Accordingly in the present facts and circumstances of the case it has to be held that the orders passed for recount of the 'votes vide Annexure P-1 dated 31.5.2005 is patently illegal, unsustainable being in contravention of law. Consequently, the action taken and the order passed as Annexure P-1A dated 2.6.2005 is also unsustainable. 23. Accordingly the petition is allowed. Order Annexure P-1 dated 31.5.2005 and the consequential order Annexure P-1A passed on 2.6.2005 respectively are quashed. Authorities are directed to allow the petitioner to resume her duties and permit her to discharge the functions of Sarpanch of Gram Panchayat in accordance with law. 24. Petition stands allowed with the aforesaid without any order as to cost.