Judgment ( 1. ) PETITIONER has filed this petition being aggrieved by a order dated 23rd March 2006 passed by the Sub Divisional Officer, Sheopur, competent authority under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. By the aforesaid order, election of the petitioner to the post of Sarpanch, Gram Panchayat, Zaida, thesil Sheopur has been quashed and directions have been given for taking further action in the matter. ( 2. ) FACTS in brief are that elections to the office of Sarpanch of the Gram Panchayat, Zaida tehsil Sheopur took place on 16th January 2005. Counting of votes was held on 28th January 2005 and after counting petitioner and the respondent No. 1, Smt. Bharosi Bai received equal number of votes, i. e. , 244 (two hundred and forty four) votes each. Two applications were filed on behalf of the petitioner and the respondent No. 1 before the Returning Officer, On behalf of the petitioner, application was filed vide Annexure P/2 for counting of certain votes in booth. , No. 170 and on behalf of the respondent No. 1, application Annexure P/3 was filed for recounting of votes in booth Nos. 168, 169, 170 and 171 and also for opening of one tendered vote kept in a sealed cover. On the same date, the Returning Officer passed an order rejecting the application filed by the respondent No. 1, but allowed the application for recounting filed by the petitioner. It is the case of the petitioner that on recounting of votes he has secured two more votes and was declared elected by two votes. ( 3. ) AFTER declaration of the result, respondent No. 1 filed an application under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Various issues were framed and on the basis of the material that came on record, election tribunal held that the direction given for recounting of votes is illegal, the same was therefore, quashed and after quashing of the direction for recounting, it was held that as both the petitioner and the respondent No. 1 have received equal number of votes, the tendered vote be opened and the result of the election be declared. It was also held that in case the tendered vote cannot yield any result then the procedure contemplated under Rule 82 of the Madhya Pradesh Panchayut Nirvachan Niyam 1995, be followed for declaration of the result. ( 4. ) SHRI R. D. Jain, learned senior counsel raised three grounds in support of the contentions advanced in the petition. His first ground of attack was that the election petition is not filed as per the requirement of Rule 3 (1) of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the Rules of 1995) inasmuch as the election petitioner, i. e. , respondent No. 1 has not presented the election petition herself but the same was presented by her counsel, Shri N. K. Gupta, Advocate. Placing reliance on a judgment rendered by this Court in the case of Mahavecr Singh and Ors. v. State of M. P. 1987 JLJ 644, Shri Jain argued that the election petition is liable to be dismissed on this count alone. Thereafter, referring to the material available on record and the process of recounting held, Shri Jain argued that the direction for recounting was rightly given by the Returning Officer and after recounting as petitioner was found to be elected by two votes, the said action did not warrant any interference by the election tribunal. The third ground of attack by Shri Jain, learned senior counsel is that the direction given by the election tribunal to count the tendered vote is unsustainable. Referring to the first proviso to Sub-rule (1) of Rule 77 of the Nirvachan Niyam, 1995, Shri Jain, learned senior counsel argued that no tendered vote can be counted and the direction given for opening and counting of tendered vote in the impugned order is unsustainable. Accordingly, it was the case of the petitioner that the order passed by the election tribunal in the matter is unsustainable. In support of the contentions advanced, Shri Jain has placed reliance on the following judgments. (i) T. A. Ahammed Kabeer v. A. A. Azez and Ors. 2003 Vol. SCC 650 (ii) Tara v. Dabla alias Lalita and Ors. 2002 Vol. 2 MPHT 554. ( 5. In support of the contentions advanced, Shri Jain has placed reliance on the following judgments. (i) T. A. Ahammed Kabeer v. A. A. Azez and Ors. 2003 Vol. SCC 650 (ii) Tara v. Dabla alias Lalita and Ors. 2002 Vol. 2 MPHT 554. ( 5. ) REFUTING the aforesaid, Shri N. K. Gupta, learned Counsel for the respondent No. 1 submitted that when the election petition was presented before the prescribed authority, respondent No. 1/ Smt. Bharosi Bai was present along with her counsel and by filing the certified copy of order sheet dated 10th February 2005 with regard to presentation of election petition, Shri N. K. Gupta submitted that as thumb impression of the election petitioner is available in the order sheet at the time of presentation, compliance of Rule 3 (1) of the Rules of 1995 is made, and therefore, on this ground election petition could not be dismissed. ( 6. ) THEREAFTER, taking me through the statements of the Returning Officer, application filed by the petitioner as contained in Annexure P/2 and the nothings made by the Returning Officer and the Presiding Officer in the portions marked as "a to A" and "b to B" on the application, Annexure P/2 Shri Gupta argued that the only direction given was to verify the votes of booth No. 170 and there was no direction for recounting of all the votes. That being so, the election tribunal has rightly passed the order holding the recounting ordered by the Returning Officer to be illegal. Accordingly, Shri N. K. Gupta argued that this finding does not call for any interference. As far as opening of the sealed cover and counting of the tendered vote is concerned, Shri N. K. Gupta submitted that the general principle of law permits counting of tendered vote, and therefore, there is no illegality in the same. In support thereof, he has placed reliance on a judgment of the Supreme Court in the case of T. A. Ahammed Kabeer v. A. A. Azeez and Ors. AIR2003 SC 2271 , JT2003 (4 )SC 110 , 2003 (2 )KLT472 (SC ), 2003 (3 )SCALE757 , (2003 )5 SCC650 , [2003 ]3 SCR511. ( 7. ) I have heard learned Counsel for the parties at length and perused the record. ( 8. AIR2003 SC 2271 , JT2003 (4 )SC 110 , 2003 (2 )KLT472 (SC ), 2003 (3 )SCALE757 , (2003 )5 SCC650 , [2003 ]3 SCR511. ( 7. ) I have heard learned Counsel for the parties at length and perused the record. ( 8. ) AS far as ground No. 1 with regard to presentation of the election petition by the counsel of respondent No. 1 is concerned, Rule 3 (1) of the Rules of 1995 contemplates that an election petition shall be presentation of the specified officer during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition. A perusal of the certified copy of the order sheet, Annexure R/11 dated 10th February 2005 indicates that the election petition under Section 122 of the Adhiniyam 1993 was presented on 10th February 2005 and when the election petition was presented, the election petitioner herself was present before the specified officer and her thumb impression has been taken in the right hand side corner of the order sheet. Merely because endorsement made in the order sheet is that the petition was presented by Shri N. K. Gupta, counsel, it cannot be construed that the election petitioner was not present at the time of presentation of the election petition and that she has not presented the election petition. In fact, the election petitioner was present before the specified officer along with her counsel when the election petition was presented on 10th February 2005. That being so, compliance of Rule 3 (1) of the Rules of 1995 having been made, on this ground the election petition cannot be rejected. ( 9. ) AS fas as quashing the recounting done is concerned, records indicate that two applications were filed; one application, Annexure P/2 was filed by the petitioner seeking verification of certain votes in booth No. 170 and the second application, Annexure P/3 was tiled by respondent No. 1 for recounting of votes in booth Nos. 168, 169,170 and 171, so also, for opening of the tendered vote. On the application, Annexure P/2 submitted by the petitioner an endorsement was made by the Returning Officer to the Chief Executive Officer to take action for verifying the votes of booth No. 170. 168, 169,170 and 171, so also, for opening of the tendered vote. On the application, Annexure P/2 submitted by the petitioner an endorsement was made by the Returning Officer to the Chief Executive Officer to take action for verifying the votes of booth No. 170. Thereafter, further endorsement is made by the Chief Executive Officer of the Janpad Panchayat to whom directions were issued that he got verified the votes and there is no change in the votes of Kailashi Bai, in this regard the endorsements made by the Returning Officer and the Chief Executive Officer are contained in portion marked as "a to A" and "b to B" of Annexure P/2 which is exhibit P/10 in the records of the election tribunal. In his statement, the Chief Executive Officer, Shri R. S. Sharma has confirmed the aforesaid position, Annexure P/7 is the statement of Shri R. S. Sharma. However, at the back of the application, Annexure P/2, a further direction was issued for recounting of votes. The election tribunal held that this direction contained in the back of Annexure P/2 is incorporated afterwards and is a fabricated entry. This finding is based on the statements of Shri R. S. Sharma and Shri Rajesh Chandra Sharma, so also, other witnesses who had appeared before the election tribunal to give evidence and who were presiding officers at the time of recounting. ( 10. ) WHILE considering the issue No. 1 framed in this regard a specific finding is recorded by the election tribunal to the effect that without there being any order of the Returning Officer, recounting of votes in booth Nos. 168, 169,170 and 171 have been resorted to and the entire votes of these booths have been counted even though there is no application for recounting of votes in those booths by the petitioner and there is no direction by the Returning Officer for recounting of votes in these booths. It was argued on behalf of the petitioner that even though initially, application Annexure P/3 submitted by respondent No. 1 was rejected but subsequently this application was allowed and the recounting of votes in booth Nos. 168, 169, 170 and 171 was done. It was argued on behalf of the petitioner that even though initially, application Annexure P/3 submitted by respondent No. 1 was rejected but subsequently this application was allowed and the recounting of votes in booth Nos. 168, 169, 170 and 171 was done. This contention is found to be false and after going through the evidence that has come on record finding given by the election tribunal is that after the application, Annexure P/3 submitted by the respondent No. 1 was rejected, she and her election agents were informed that as on verification of votes in booth No. 170, both the candidates (petitioner and respondent No. 1) have received equal number of votes, there will be decision on the election by draw of lots under Rule 82 of the Nirvachan Niyam, 1995. It is established from the records that respondent No. 1 and her agents left the counting premises and it is thereafter that recounting of votes had taken place. Election tribunal has held that the recounting of votes had been conducted without proper order of the Returning Officer and without notice to the respondent No. 1, Smt. Bharosi Bat or her agent. On these grounds, recounting of votes is held to be illegal and the grant of two votes in favor of the petitioner is found unsustainable. This finding of the election tribunal is based on due appreciation of the evidence available on record and the original documents, the same cannot be termed as perverse or illegal in any manner whatsoever warranting interference in the matter. ( 11. ) THAT being so, it is to be held that the findings recorded by the election tribunal and the direction for quashing the result of recounting is proper and in this regard, no interference is called for. ( 12. ) HOWEVER, after quashing the recounting conducted, the Specified Officer has held that now as both; petitioner and respondent No. 1 have received equal number of votes, i. e. , 244 (two hundred and forty four) each, applying the general principle of law applicable in such proceedings, tendered vote be opened and in case after opening of the tendered vote, the result of the election be declared. If the tendered vote is rejected or cannot be counted then it is directed to proceed to decide the matter by draw of lots as per Rule 82 of the Nirvachan Niyam, 1995, The question now is as to whether the direction given for opening of the tendered vote by the election tribunal is legal or not. ( 13. ) IN the Nirvachan Niyam, 1995, the procedure for counting of votes is contemplated in Rule 77, Recount of votes is contemplated in Rule 80 and procedure to be followed in case of equality of votes is contemplated in Rule 82. ( 14. ) FIRST proviso to Sub-rule 77 of Nirvachan Niyam, 1995 contemplates that no cover containing tender ballot papers shall be opened and no such ballot paper shall be counted. This proviso is Para Material to Rule 56 (6) of the Conduct of Election Rules, 1961, first proviso to Sub-rule (6) of Rule 56 therein provides that no cover containing tendered ballot papers shall be opened and no such paper shall be counted. ( 15. ) THE question as to whether tendered ballot paper could be opened and counted was considered by the Supreme Court in the case of Dr. Wilfred D Souza v. Francis Menno Jesus Ferro, AIR1977 SC 286 , (1977 )1 SCC396 , [1977 ]1 SCR942 , 1976 (8 )UJ999 (SC ). In the aforesaid case, after considering the provisions of Rule 42 of the Conduct of Elections Rules, 1961 pertaining to tendered votes and the procedure to be followed hereunder, it has been so observed in paragraphs 14 and 15 by the Supreme Court as under: learned Counsel for the parties are, however, agreed that such tendered ballot papers, even though excluded from consideration at the time of counting of votes after the poll can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled. We agree with the learned Counsel For the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews, 4 Smelly and Hard castle 32 and Stepney, Division of the Borough of Tower Hamlets. We agree with the learned Counsel For the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews, 4 Smelly and Hard castle 32 and Stepney, Division of the Borough of Tower Hamlets. 4 Smelly and Hard castle 34 as also by two Indian decisions, Kalicharan Singh v. Rarncharitar Rai Yadava, 5 ELR 98 (Election Tribunal Patna) and A. K. Subbarava Gounder v. G. Palanisami Gounder, 11 ELR 251 (Election Tribunal, Coimbatore ). Before, however, a tendered ballot paper can be taken into account during _the proceedings of election petition, evidence would have to led on the following two points: (1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number. (2) It was such genuine voter who marked the tendered ballot paper. So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient. Once the above two points are proved, the following consequences would follow: (a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and (b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked, It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters . (Emphasis is supplied) ( 16. ) IT is, therefore, clear from the aforesaid principle laid down by the Supreme Court that tendered votes can be opened and subjected to counting only if it is established on evidence that the person casting the tendered vote was genuine voter. (Emphasis is supplied) ( 16. ) IT is, therefore, clear from the aforesaid principle laid down by the Supreme Court that tendered votes can be opened and subjected to counting only if it is established on evidence that the person casting the tendered vote was genuine voter. In the present case, no evidence is led to establish the fact as to whether the tendered vote is cast by the genuine voter or not, therefore, the direction given by the election tribunal for counting of tendered vote without following the procedure laid down by the Supreme Court in the case of Dr. Wilfred Dsouza (supra) is unsustainable. To that effect, the order passed by the election tribunal is illegal and has to be quashed. ( 17. ) ACCORDINGLY, this petition is allowed in part. direction given by the election tribunal quashing the recounting of votes ordered by the Returning Officer is upheld as the same does not call for any interference. However, the direction given for opening the tendered vote for counting is quashed. The matter is remanded back to the election tribunal for deciding the issue No. 2 with regard to opening of the tendered vote afresh after giving opportunity of leading evidence to the parties and after following the procedure laid down by the Supreme Court in the case of Dr. Wilfred D Souza (supra ). ( 18. ) ACCORDINGLY, this petition is allowed in part and the matter is remanded back to the election tribunal for deciding issue No. 2 afresh and thereafter giving further direction in ho matter in accordance with law. ( 19. ) FOR the sake of repetition, it is made clear that except the direction given with regard to tendered vote which is to be reconsidered, all other observations, directions given and findings recorded by the election tribunal in the impugned order, Annexure P/1 dated 23rd March 2006 are upheld by this Court. ( 20. ) THE election tribunal is directed to decide the matter as per the aforesaid direction within a period of two months from the date of receipt of a certified copy of this order. ( 21. ) PETITION stands allowed in part and disposed of with the aforesaid.