ORDER 1. Petitioner, who was a returned candidate in the election of Sarpanch, Gram Panchayat Pachokhar, Janpad Panchayat Rampurnaikin, District Sidhi, in the election held on 27.1.2005, is aggrieved by an order dated 12.12.2005 Annexure P-3 passed by the respondent No. 11 the election tribunal, in the election petition filed by respondent No.1 Smt. Sushila Singh under section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the "Act") by which the election tribunal has directed for the recounting of the votes. 2. This petition was filed on 14.12.2005. On 16.12.2005, this matter was listed for hearing and this Court directed that till 19.12.2005 status quo as on 16.12.2005 be maintained. The case was listed on 19.12.2005 on which date this Court directed that the authority shall proceed to recount of the votes but result shall not be declared and the order dated 16.12.2005 was modified accordingly. 3. It will be pertinent to mention that in view of the order dated 19.12.2005, the recounting has been conducted in the presence of the parties and it is stated at the Bar by the learned counsel for the respondent No.1 that after recounting, though the result has not been declared but the respondent No.1 has achieved 24 votes more in comparison to the petitioner. 4. The petitioner has assailed the order Annexure P-3 on following grounds : (i) That, there are no grounds for recounting, in absence of pleadings and evidence, recounting ought not to have been directed by the Sub-Divisional Officer. In absence of specific allegations in respect of the counting, counting could not be challenged by the petitioner. (ii) That, the respondent No.1, if was aggrieved, ought to have filed an application after announcement in respect of total number of votes polled by each candidate under sub-rule (2) of rule 77 of the M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as "Nirvachan Niyam") but the application was filed after the declaration of the result of the election and completion of the result-sheet under sub-rule (2) of rule 77 of the Nirvachan Niyam. Once the result of election was declared, the application itself was not entertain able before the authority and the election tribunal erred in allowing the prayer of the respondent No.1 for the recounting. Once the result of election was declared, the application itself was not entertain able before the authority and the election tribunal erred in allowing the prayer of the respondent No.1 for the recounting. (iii) That the petitioner has referred various paragraphs of election petition filed before the election tribunal and submitted that in view of the pleadings and evidence adduced before the election tribunal, no case is made out for the recounting. (iv) That on the basis of the vague evidence produced before the election tribunal, the election tribunal erroneously directed for the recounting. Petitioner has placed reliance to the apex court judgments in Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964 se 1249], Mahendra Pal v. Ram Dass Malanger and others [ (2000)1 SCC 261 ], Vadivelu v. Sundaram and others [ (2000)8 SCC 355 ], P.H. Pujar v. Kanthi Rajashekhar Kidiyappa [ (2002)3 SCC 742 ], and judgment of this Court in Chandrawati (Smt.) v. Smt. Vijay Rajkumari and others [ 2003(2) JLJ 232 ], and submitted that no case for recounting is made out. 5. Shri Rajendra Tiwari, learned senior counsel for respondent No.1 submitted: (i) That, the Sub-Divisional Officer by the impugned order has rightly directed for the recounting. The respondent No.1 was apprehending serious irregularities and illegalities during the polling and on 16.1.2005 before the polling moved an application Annexure R-l-l. During recounting, respondent No.1 was again apprehending serious irregularities and ill-legalities, so moved an application on 19.1.2005 Annexure R-I-2 before counting to the Presiding Officer. Again after counting, respondent No.1 moved an application to the Presiding Officers of polling booth Nos. 129, 130, 131 and 132 Annexure R-I-3 for the recounting. Aforesaid applications were filed immediately with promptness by the respondent No.1. (ii) That, once the application is filed for the recounting under rule 80 of Nirvachan Niyam, aforesaid applicatiofl ought to have been considered and decided on the basis of the grounds enumerated in the application and until and unless, the application is found frivolous or unreasonable, it ought to have been allowed on the basis of grounds stated for the recounting. (iii) The applications were filed within time but were not decided by the authorities without considering it on merits, only on the ground that it was not possible to consider and decide. (iii) The applications were filed within time but were not decided by the authorities without considering it on merits, only on the ground that it was not possible to consider and decide. If the authorities could have decided the applications, then before the election tribunal, the grounds on which applications were rejected or allowed, may be seen. At the time of recounting the Presiding Officer or Returning Officers were having fresh memory about the facts on the spot but non-decision on the application has caused serious prejudice to the petitioner. Now prayer of the election petitioner may be seen in light of sub-rule (2) of rule 80 of Nirvachan Niyam that the application could have been rejected only on the ground that it was frivolous or unreasonable and not on the other grounds. The grounds stated in the applications were sufficient for recounting of the votes. (iv) That, in the election petition no bald statements have been made by the respondent No.1 but specific grounds have been pleaded. Respondent No.1 has referred paras 8, 9 and 10 of the election petition and submitted that grounds are pleaded on the basis of which the election tribunal found that the evidence produced by the respondent No.1 is satisfactory and rightly allowed the prayer of the respondent No.1 for recounting. Shri Tiwari, learned senior counsel has placed reliance to the judgments of the apex Court in Sohan Lai v. Babu Gandhi and others [2002(2) Vidhi Bhasvar 3OO= AIR 2003 SC 320 ], Jibontara Ghatowar v. Sarbananda Sonowai and others [ (2003)6 SCC 452 ] and judgment of this Court in Ramrati v. SDO Sidhi [ 2005(3) JLJ 48 ]. 6. To appreciate rival contentions of the parties, it is necessary to look into the facts of the present case as pleaded by election petitioner: Petitioner and respondents were rival contestants for the office of Sarpanch, Gram Panchayat Pachokhar. The election was held on 27.1.2005 and it was notified on 2.2.2005. The election was contested by the respondents No.2, 3, 4 and 5 also. There were four polling booths No.129, 130, 131 and 132. The Presiding Officer at polling both No.129 was Shri lawaharlal Pandey (Respondent No.6), at polling booth No.130 Shri Rammilan Prasad Panika (Respondent No.7), at polling booth No. 131 Shri Heeramani Panika (Respondent No.8) and at polling booth No.132 Shri G.P. Mishra (Respondent No.9) was the Presiding Officer. There were four polling booths No.129, 130, 131 and 132. The Presiding Officer at polling both No.129 was Shri lawaharlal Pandey (Respondent No.6), at polling booth No.130 Shri Rammilan Prasad Panika (Respondent No.7), at polling booth No. 131 Shri Heeramani Panika (Respondent No.8) and at polling booth No.132 Shri G.P. Mishra (Respondent No.9) was the Presiding Officer. There was some disturbance at the time of polling and the respondent No.1 was also apprehending booth capturing as a huge crowd was created by the rival of the respondent No.1, the petitioner. All the four polling booths were sensitive and in the election of 2000 also, there was disturbance at these polling booths and counting could not be held. Same situation was prevailing at all the polling centers in this election. The respondent No.1 made a request to the Presiding Officers for not counting the votes at the polling centres. All the Presiding Officers agreeing with the application of election petitioner, assured that at the polling centres, they will not conduct the counting. At the polling centres, there was no proper arrangement of the light and for maintaining law and order situation. Adequate police force was also not available while as per allegation of respondent No.1, petitioner's men armed with lathis had surrounded the polling centres and they had also encircled the polling booths and the polling officers. When the counting employees had agreed that counting will not be made at the polling centres, the elements threatened that they will not permit counting officers to go without counting. Under the pressure of petitioner and his persons, employees were compelled to commence the counting. In the mid night one Bhola Prasad Pandey informed the election petitioner that at the polling centres counting work has commenced and the votes which were casted in favour of petitioner are being included in the ballot papers of petitioner Ramavtar, because terror and fear has been created by the petitioner Ramavtar. Apart from this, no proper arrangement of light was there and there was frequent failure of the electricity with certain breaks resulting darkness. The unsocial elements were creating hurdle and terror in the counting and because of this counting employees were trying to conclude the counting hurriedly. That respondent No.1 Smt. Sushilabai submitted applications to all the counting officers separately to recount the ballot papers after due examination of it. The unsocial elements were creating hurdle and terror in the counting and because of this counting employees were trying to conclude the counting hurriedly. That respondent No.1 Smt. Sushilabai submitted applications to all the counting officers separately to recount the ballot papers after due examination of it. All the four counting officers received the application and issued receipt on the carbon copy but not passed any order on the applications because of terror and tense atmosphere created. That neither the polling nor the counting was impartial and counting was done under the fear and pressure of petitioner and by a margin of one vote, petitioner was declared as a returned candidate. As declared, petitioner Ramavtar got 691 votes while respondent No.1 Smt. Susheela Singh got 690 votes and the certificate was issued in favour of the petitioner. Thereafter on 2.2.2005, election was notified and the election petition was filed on 14.2.2005 on the aforesaid grounds. In the election petition, respondent No.1 prayed for the recounting of the votes, and that she may be declared as returned candidate. 7. The petitioner filed the reply, in which he has denied the allegations made in the election petition. 8. Defendants No.6 to 9, Presiding Officers at the polling booth-cum-counting centres admitted that petitioner filed an application for not counting the ballot papers at the polling centres. They have also stated that at the polling centres, there was not an atmosphere to count the votes because the circumstances were adverse and in the adverse circumstances, they were pressurised for the counting. After the counting, respondent No.1 filed an application for the recounting but the recounting was not possible, so it was not done. No order on the applications for recounting was passed by any of the Presiding Officer. 9. After filing of the reply, three issues were framed by the election tribunal and both parties were permitted to lead evidence. The election petitioner examined AW1 Bhola Prasad Pandey, AW2 Murti Prasad Patel and election petitioner herself appeared in the witness box. Respondent No.1 appeared in the witness box and also examined witnesses Sheshmani Patel, Ram Singh Patel and Arun. 10. The election petitioner examined AW1 Bhola Prasad Pandey, AW2 Murti Prasad Patel and election petitioner herself appeared in the witness box. Respondent No.1 appeared in the witness box and also examined witnesses Sheshmani Patel, Ram Singh Patel and Arun. 10. The election tribunal on the basis of the evidence produced by the parties recorded following findings : (i) That, at the polling centres, there was no proper police arrangement for maintaining law and order situation and only one Home-guard personnel was deputed at each polling centre. (ii) That, at the time of the counting, there was no atmosphere of the counting but under the pressure of petitioner, counting was done. Though there is conflicting evidence in respect of the aforesaid allegations but the election tribunal relied on reply filed by the Presiding Officers in the case in Which they have admitted the aforesaid fact. (iii) That, the Presiding Officers admitted that the respondent No.1 filed an application for the recounting but it was not considered without any reason while aforesaid application ought to have been considered and decided in accordance with sub-rule (1) of rule 80. (iv) That, during counting atmosphere was tense and counting officers were doing the work under fear and terror. The allegation in respect of inclusion of election petitioner's votes in the bundle of votes of petitioner Ramavtar also found proved. (v) That, there is a difference of only one vote between election petitioner and the returned candidate and on the basis of evidence, it is apparent that 124 ballot papers were rejected in the counting and there is evidence that the ballot papers which were in favour of respondent No.1 were either rejected or were included with ballot bundle of the petitioner. 11. After appreciating the evidence, the election tribunal recorded following findings in respect of the issues framed by the tribunal : Issues Conclusion 1. Whether the counting was affected Counting was affected because of non-availability of light of pressure created from outside or for some other reasons 2. Whether the election petitioner demanded Recounting was not done recounting but inspite of this the recounting was not done. 3. Whether because of difference by a minor Recounting is justified. margin of the votes or for some other circumstances, recounting should be directed. On the aforesaid ground, recounting has been directed, by the order impugned in this petition. Whether the election petitioner demanded Recounting was not done recounting but inspite of this the recounting was not done. 3. Whether because of difference by a minor Recounting is justified. margin of the votes or for some other circumstances, recounting should be directed. On the aforesaid ground, recounting has been directed, by the order impugned in this petition. Now in the light of the arguments raised by the learned counsel for the parties, matter may be considered on merits. In view of the arguments raised by the learned counsel for the parties, following questions emerge in this petition: (i) Whether the respondent No.1 Smt. Susheela Singh could make out a case for recounting? (ii) Whether pleadings in the election petition are in accordance with law and on the basis of the pleadings, respondent Smt. Susheela Singh proved her case for the recounting? (iii) What is effect of non-consideration of the application filed by Smt. Susheela Singh before and after counting before the authorities? (iv) What is the effect of admission made by defendants No.6 to 9 who were Presiding Officers at the counting booths admitting the claim of the petitioner for the recounting. 12. Before considering merits, it will be appropriate to refer M.P. Panchayat Nirvachan Niyam, 1995. Rules 77, 78 and 80 are relevant in the present case : Rule 77, Counting of votes -- (1) Every ballot paper which is not rejected under rule 76 shall be counted: Provided that no cover containing tender ballot papers shall be opened and no such ballot paper shall be counted. (2) After the counting of votes in respect of a polling station has been completed, the Returning Officer or such other officer authorised by him shall make the entries in result sheet in Form 16 for Panchas and in part one of the result sheet in Form 17, 18 and 19 for sarpanch, members and Janpad Panchayat and Zila Panchayat respectively and announce the total number of votes polled by each candidate. (3) All valid ballot papers shall be bundled together and kept along with the bundle of rejected ballot papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely: (a) the number of the ward and name of Gram Panchayat in case of election of Panch, the name of Gram Panchayat in case of election of Sarpanch, the number of constituency of Janpad Panchayat or Zila Panchayat as the case may be, in case of election of member of Janpad Panchayat or Zila Panchayat; (b) the number and name of the polling station where the ballot papers have been used; and (c) the date of counting. Rule 78. Counting to be continuous -- The Returning Officer or such other officer authorised by him, shall as far as practicable, proceed continuously with the counting of votes and shall, during any intervals when the counting has to be suspended, keep the ballot papers, packets and other papers relating to the election sealed with his own seal and the seals of such candidates or their election or counting agents as may be desirous of affixing their seals and shall cause adequate precautions to be taken for their safe custody during such intervals. Rule 80. Recount of votes -- (1) After an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under subrule (2) of rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him, for a recount of all or any of the votes already counted, stating the grounds on which he demands such recount. (2) On such an application being made the Returning Officer or such other officer authorised by him shall decide the matter and may allow the application in whole or in part or may reject it in to if it appears to him to be frivolous or unreasonable. (3) Every decision of the Returning Officer or such other officer authorised by him under sub-rule (2) shall be in writing and contain the reasons therefor. (3) Every decision of the Returning Officer or such other officer authorised by him under sub-rule (2) shall be in writing and contain the reasons therefor. (4) If the Returning Officer or such other officer authorised by him, decides under sub-rule (2) to allow an application either in whole or in part, he shall : (a) count the ballot papers again in accordance with his decision; (b) amend the result sheet to the extent necessary after such recount and (c) announce the amendment so made by him; (5) After the total number of votes polled by each candidate has been announced under sub-rule (2) of rule 77 or sub-rule (4) the Returning Officer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter: Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1). (6) The counted ballot papers shall be bundles and kept in the manner mentioned in sub-rule (3) of rule 77. (7) Result sheets in Form 16, 17, 18 and 19 for Panch, Sarpanch, Member of Janpad Panchayat and Member of Zila Panchayat respectively, prepared by such other officers as are authorised by the Returning Officer, shall be submitted by them, in separate envelops to the Returning Officer for compilation and tabulation of votes polled by each candidate. (8) The Returning Officer on receipt of result sheets under subrule (7) shall enter or cause to be entered the total number of votes polled by each candidate contesting for a seat of Sarpanch, Member of Janpad Panchayat or Member of Zila Panchayat at each polling station of the concerned constituency in subsequent part or parts of Form 17, 18 and 19 respectively and complete and sign the result sheet." 13. Rules, 3,5,12,21 and 23 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the 'Election Petition Rules') are relevant, which reads thus : Rule 3. Rules, 3,5,12,21 and 23 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the 'Election Petition Rules') are relevant, which reads thus : Rule 3. Presentation of election petition -- (1) An election petition shall be presented to 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. (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Rule 5. Contents of the petition -- An election petition shall -(a) contain a concise statement of all material facts on which the petitioner relies; (b) set forth with sufficient particulars, the grounds on which the election is called in question. (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings. Rule 12. Parties to produce their witnesses -- It shall be the duty of the parties to produce their witnesses on the date fixed for evidence and they shall not be entitled to an adjournment for non-attendance of their witnesses Provided that the specified officer may, at his discretion, order the issue of summons to any witness on the necessary process fee and costs being deposited by the party concerned. Rule 21. Rule 21. Grounds for declaring election to be void -- (1) Subject to the provisions of sub-rule (2) if the specified officer is of opinion (a) that on the date of his election the returned candidate who was not qualified or was disqualified to be chosen to fill the seat under the Act or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election in so far as it concerns returned candidate has been matepally affected (i) by the improper acceptance of any nomination; or (ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Act or any rules or orders made there under: the specified officer shall declare the election of the returned candidate to be void. (2) If in the opinion of the prescribed authority a returned candidate has been guilty by an agent of any corrupt practice, but the prescribed authority is satisfied (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the instructions and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the commission of corrupt practice at the election; and (c) that in all other respect the election was free from any corrupt practice on the part of the candidate or any of his agent: then the prescribed authority may decide that the election of the returned candidate is not void. Rule 23. Decision -- (1) At the conclusion of the enquiry the specified officer shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidate to be void and the petitioner or any other candidate to have been duly elected. (2) If any person who has filed an election petition has in addition to calling in question the election of the returned candidate, claimed declaration that he himself or any other candidate has been duly elected and the specified officer is of opinion (a) that in fact the petition or such other candidate received a majority of valid votes, or (b) that but for the votes obtained by the returned candidate the petitioner or such other candidate would have obtained a majority of valid votes: the specified officer shall, after declating the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. (3) At the time of making order under this rule, the specified officer shall also make an order (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice, and (ii) the name of all person, if any, who have been proved to have been guilty of any corrupt practice and the nature of that practice; and (b) fixing the total amount of costs payable and specifying the persons by whom the costs shall be paid: Provided that a person who is not party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless (a) he has been given notice to appear before him and show cause why he should not be so named; and (b) if he ilPpears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the specified officer and had given evidence against, of calling evidence in his defence and of being heard." 14. Firstly, in this case, that question may be seen that what is the effect of non-consideration of the application filed by Smt. Susheela Singh for recounting immediately after declaration by the counting officer in respect of the number of votes polled by each candidate. Firstly, in this case, that question may be seen that what is the effect of non-consideration of the application filed by Smt. Susheela Singh for recounting immediately after declaration by the counting officer in respect of the number of votes polled by each candidate. In this case petitioner contended that in fact applications Anneuxre R-1-2 and R-1-3 were filed after declaration of the result of the election while contention of the respondent Smt. Susheela Singh is that the applications were filed before declaration of the result and signing the result sheet by the authorised officer. To substantiate the contntion, learned counsel for the petitioner submitted that the application Annexure R-1-3 was filed at 3:50 a.m. in the morning while the counting was complete much before it. In this regard, he has drawn attention to the statements of various witnesses in which there is conflicting evidence in this regard. The Sub-Divisional Officer in the impugned order found that the aforesaid application was filed immediately after the counting was completed. The Sub-Divisional Officer has also considered the admission of defendants No.6 to 9 in this regard who have admitted that the circumstances were not warranting for the recounting as the atmosphere was tense and of terror, so the applications were not considered. Though on the basis of the oral evidence, the Sub Divisional Officer recorded a finding that the aforesaid applications were filed before the declaration of the result and signing of the result-sheet by the authorised officer while the aforesaid factual position is controverter by the petitioner. But in this case if petitioner raised the aforesaid contention, he ought to have brought on record the result sheet signed by the authorised officer. Under rule 80(5) of the Nirvachan Niyam, after declaration of result under sub-rule (2) of rule 77 or sub-rule (4) the authorised officer shall complete and sign the result sheet, hence the best evidence was of filing of the result-sheet duly signed by the authorised officer, but there is no such evidence that the applications Annexure Rl-2 and Rl-3 were filed after signing of the result-sheet by the authorised officer. In these circumstances, the conclusion of the Sub-Divisional Officer that the aforesaid applications were filed before the declaration of the result and signing of the result-sheet by the authorised officer, appears to be correct. 15. In these circumstances, the conclusion of the Sub-Divisional Officer that the aforesaid applications were filed before the declaration of the result and signing of the result-sheet by the authorised officer, appears to be correct. 15. Though much emphasis has been given by the petitioner that the admissions made by defendants No.6 to 9 in the reply ought not to have been considered against the petitioners who happen to be co-respondents in the matter. Aforesaid contention appears to be correct as it is the settled law that the admissions of co-defendant are not admissible against the defendant but admissions duly proved are admissible irrespective of fact that persons making admission appear in the witness box or when appear as witness may be confronted with those statements, in case made a statement contrary to those admissions. Apart from this, Smt. Susheela Singh can very well use aforesaid admission in her favour. In this case aforesaid admissions have been duly proved by the respondent Smt. Susheela Singh. Merely defendants No.6 to 9 have not appeared in the witness box will not affect the case on merits of Smt. Susheela Singh. The petitioner after the evidence of election petitioner was over, he was free to call aforesaid respondents for the cross-examination. But the petitioner has never made any such prayer before the election tribunal and for the first time in this writ petition aforesaid contention cannot be accepted. The election tribunal while considering the case on merits has considered the aforesaid admissions in favour of the election petitioner and found that in view of the specific admissions made by the Government officials in favour of election petitioner, a case is made out for recounting. The aforesaid admissions have not been admitted against the petitioner but aforesaid admissions have been taken into consideration by the election tribunal while considering the case of election petitioner on merits. Apart from this, all the defendants No.6 to 9 are Government officials. They have supported the case of election petitioner before the election tribunal. Not only defendants No.6 to 9 but other defendants, except defendant No.1 who is petitioner herein have supported the case of the election petitioner before the election tribunal, which finds place in the impugned order. Apart from this, all the defendants No.6 to 9 are Government officials. They have supported the case of election petitioner before the election tribunal. Not only defendants No.6 to 9 but other defendants, except defendant No.1 who is petitioner herein have supported the case of the election petitioner before the election tribunal, which finds place in the impugned order. Admission of Government officials-defendants No.6 to 9 has to be given some weight and their admission cannot be thrown merely on the ground that it is not admissible against the petitioner. Petitioner ought to have made a prayer before the election tribunal for their cross-examination and without taking recourse of it, election petitioner cannot be deprived with the admissions which 3!e in her favour. 16. Now another question may be seen whether in this case, election petitioner has pleaded her case for the recounting before the election tribunal. Petitioner has drawn attention of this Court to the judgment in Vadivelu (supra) wherein the apex Court considering the question held that the pleadings should contain material facts or particulars about the allegations made seeking recounting and the election petition should contain details regarding illegalities and irregularities alleged to have been committed. The election petitioner who is seeking recounting should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes and the Court can recount only if it is satisfied about the truthfulness of the allegations in the pleadings. Relevant paras of the aforesaid judgment read thus:. "17. In the instant case, the appellant in his election petition alleged in paragraphs 5 and 6 of the election petition as under: "..... The wrong electoral roll was utilized by the Presiding Officer. The appellant and his agents strongly protested against the wrong electoral roll. The dead persons names were not deleted from the electoral roll, and other Panchayat Villager's names were in the electoral roll. The 1st respondent utilized the same. The appellant and his agent strongly objected but the Presiding Officer, has not taken. any care about the electoral roll and impersonation. The said votes polled in favour of the 1st respondent are void and therefore has to be excluded. While counting of votes, the appellants and his agents represented these facts and requested the counting officers and the Returning Officers both orally and in writing to reject these votes polled by these persons. any care about the electoral roll and impersonation. The said votes polled in favour of the 1st respondent are void and therefore has to be excluded. While counting of votes, the appellants and his agents represented these facts and requested the counting officers and the Returning Officers both orally and in writing to reject these votes polled by these persons. But they refused to consider the said objections. Their such, acts are illegal.........The counting officers want only put the appellant's valid votes to invalid vote box. The appellant's valid votes were added in the invalid votes. The appellant and his agents strongly objected but the counting officers and Returning Officers did not care about the objections. The counting officers counted the votes in favour of 1st respondent. Furthermore, the counting officers did not know which is valid vote and which is invalid vote. During the polling votes, the Booth Officers received the thumb impression from some voters and gave the ballot papers. The thumb impression ink marks available in the ballot papers. The same votes were rejected and put into the invalid votes. The counting officers were newly appointed. They were not properly counting the votes. The counting officers were counting the votes very fast and they had not shown the ballots to the agents, even when they raised objection. The counting officers threatened the appellant's agent and told him that they are supreme authority for counting votes...... Finally, the Returning Officer announced that the 1st respondent had secured 1011 votes. Appellant secured 1010 votes. The difference is only one vote. More than 100 votes were added in the invalid votes by the counting officers. Some invalid votes were included to the 1st respondent which were void and which ought to have been rejected. The counting officers and the Returning Officers had not seen the intention of the voters in the ballot." 18. From the above pleadings, it is evident that the appellant has' not set forth material facts or particulars required for recount of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. From the above pleadings, it is evident that the appellant has' not set forth material facts or particulars required for recount of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the counting officers. How and in what manner there was improper acceptance of invalid votes 'and improper rejection of valid votes, also is not explained by the appellant. In short, the election petition is bereft of all details and the appellant, while examined as PW1, could not supplement anything by way of evidence. 20. The appellant election petitioner in this case has not stated as to when did he file the application for recount. He has stated that he had given an application to the Returning Officer for recounting of votes and the request for recounting was not accepted. At the time of the evidence also, the appellant has not stated as to when did he file the application. In cross-examination, he stated that at about 10:00 p.m. on 14.10.1996, it was announced through loudspeaker that the 1st respondent was elected and he denied the allegation that the application for recount was made at 11:45 p.m. The 1st respondent was examined as RWI. He deposed that the result of the election was declared at 10:30 p.m. and in all probability, the appellant filed an application for recount after the result of the election was declared. Therefore, the application for recount was not filed in accordance with rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995. 17. Now in light of the aforesaid, law of the land, pleadings in this case may be seen. Therefore, the application for recount was not filed in accordance with rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995. 17. Now in light of the aforesaid, law of the land, pleadings in this case may be seen. Election petitioner in the election petition, Annexure P-1 has very specifically stated in paras 7, 8, 9, 10 and 11 in respect of the serious irregularities and illegalities committed during course of polling and counting. It is stated by the election petitioner that initially the counting was deferred as the counting officers were not in a position to convene the counting because of the fear and terror create~ by the petitioner and his unsocial elements. But subsequently, because of the pressure of the petitioner and his companions, the counting officers were compelled to start the counting in the night itself. She has also stated that all the four polling booth were sensitive since last election and because of the terror and fear of the petitioner, situation was not such as to permit the counting at the aforesaid polling centres. There was no proper arrangement of the light. Aprt from this, all the counting officers were terrorised. The petitioner who was apprehending such eventualities, on 16.1.2005 informed the District Election Officer in respect of the aforesaid situation and in-spite of this, no proper arrangement was made for maintaining law and order, by deploying adequate police force. At the polling station, defendants No.6 to 9 started counting in the night itself. This fact came to the notice of the election petitioner in the midnight when AW1 Bhola Prasad intimated her that the counting is going on. Thereafter, the' election petitioner reached the counting centres, she found that the counting was going on and her valid votes were included either in the rejected votes or in the votes of the petitioner. No proper arrangement of light was there. There was frequent obstruction in the supply of electricity and unsocial elements were creating hurdle in counting. Defendant No.6 to 9 under the pressure concluded counting anyhow, hurriedly. In para 10 of election petition, it .is stated by the election petitioner that the unsocial elements surrounded the entire counting centres. They abused the election petitioner and pressurised presiding officer to reject the valid votes though cast in favour of the election petitioner. The counting officers under the pressure and terror were compelled to do so. In para 10 of election petition, it .is stated by the election petitioner that the unsocial elements surrounded the entire counting centres. They abused the election petitioner and pressurised presiding officer to reject the valid votes though cast in favour of the election petitioner. The counting officers under the pressure and terror were compelled to do so. The election petitioner immediately made an application to defendants No.6 to 9 for the recounting, making allegations that her valid votes have. been rejected while the invalid votes have been counted in favour of the petitioner herein. No proper arrangement of the light was there. So recounting be done. Though aforesaid officers received the" aforesaid application and receipt was also issued but because of the terror, they had not agreed with the prayer of recounting nor any order was passed on the aforesaid applications. Defendant No.9 refused to accept the application. Aforesaid allegations has, been specifically made in the election petition and evidence has also been produced in this regard by the petitioner. 18. Now in the light of the decision in Vadivelu (supra), it may be seen whether aforesaid pleadings are sufficient for directing recounting. In Vadivelu (supra), the apex Court in para 16 held that the election petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot 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 recount of votes under such circumstances to do justice between the parties. 19. Recently, the apex Court in Harkirat Singh v. Amarinder Singh [2006 AIR SCW 4], considering the scope of pie dings in election petition held thus : "47. The expression 'material fact' has neither been defined in the Act nor in the Code. According to the dictionary meaning 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus', (Third Edn.); p.349]. The expression 'material fact' has neither been defined in the Act nor in the Code. According to the dictionary meaning 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus', (Third Edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of univeral application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. 50. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise. 51. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to• enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial. " 20. In view of the aforesaid pronouncements of the apex Court, the legal position is settled. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial. " 20. In view of the aforesaid pronouncements of the apex Court, the legal position is settled. Under rule 5 of the Election Petition Rules, the election petition requires a concise statement of all material facts on which the petitioner relies, and sets forth with sufficient particulars, the grounds on which the election is called in question. In Harkirat Singh (supra), distinction between material facts and particulars has been given. The material facts are facts upon which election petitioner files an election petition showing cause of action. What particulars could be material facts would depend upon the facts of each case and no universal rule can be laid down. It is however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the case are material facts and must be stated in the pleading by the party. Material facts are primary or basic facts which must be pleaded by the election petitioner in support of the case set up by petitioner to prove the cause of action. Particulars on the other hand are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basis contours of a picture already drawn so as to make it full, more clear and more informative. 21. In this case, election petitioner has stated material facts and has also furnished particulars in the matter which were essential for directing recounting in the matter, as held by the apex Court in Vadivelu (supra) and Harkirat Singh (supra), so the contention of the petitioner has no merit. ' 22. Now next question arises what is the effect of non-consideration of the application filed by the election petitioner before counting officer/ authorised officer praying for the recounting of votes. In this regard provision is very clear. Recounting of votes is envisaged under rule 80 of Nirvachan Niyam which provides that election petitioner shall have a right to move an application for the recounting. In the application, the candidate has to show the grounds on which, the candidate demands such recount. In this regard provision is very clear. Recounting of votes is envisaged under rule 80 of Nirvachan Niyam which provides that election petitioner shall have a right to move an application for the recounting. In the application, the candidate has to show the grounds on which, the candidate demands such recount. Sub-rule (2) of the 80 provides that if such an application is made, Returning Officer or such other officer authorised by him shall decide the application and may allow the application in whole or in part, or may reject it, if it appears to him to be frivolous or unreasonable. 23. Aforesaid sub-rule (2) gives a wide power to the Returning Officer or authorised officer that in case the grounds stated in the application are not frivolous or unreasonable, the application has to be allowed. In this case it is not in dispute that the applications were filed to the authorised officer who in place of deciding it found it appropriate not to pass any order on it. This course was not available to the aforesaid officers, they were duty bound to pass an order on the aforesaid application. If they were apprehending or were not in a position to decide it, the matter ought to have been referred to the Returning Officer. Sub-rule (5) of rule 80 provides that it is the right available to the cahdidate to seek recounting. Sub-rule (5) further provides that after announcement of the total votes polled by each candidate under. sub-rule (2) of rule 77 or sub-rule (4) of rule 80, the' Returning Officer or authorised officer shall complete and sign the result sheet and thereafter' no application for recount shall be entertained but the proviso to sub-rule (5) specifically provides that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been giv'en a reasonable opportunity to exercise the right conferred by sub-rule (1) (emphasis supplied). Sub-rule (5) gives a right to a candidate to demand recounting in writing on the grounds enumerated in the application and the Returning Officer or authorised officer are under an obligation to see that a reasonable opportunity has been extended to the candidate to exercise such a right and until and unless aforesaid opportunity is extended, result-sheet should not be signed. Once legislature has extended the right to demand recount under rule 80, the authorised officers to whom the applications were filed, were under an obligation to pass an order on the aforesaid application. Another aspect of the matter is that when recounting is demanded by the candidate immediately after announcement of the votes polled by each candidate, the memory in the minds of the presiding officers and counting officers is fresh and if any error has occurred and on being shown or pointing out it by a candidate by filing an application for recounting, they are in a better position to deal and decide the aforesaid application. In case any such mistake is pointed out or in the opinion of the presiding officer or returning officer, grounds stated in the application are neither frivolous or unreasonable, recount may be directed by the aforesaid officer. If, application is rejected stating grounds and treating it frivolous or unreasonable, then during the hearing of election petition, the election tribunal has to consider the reasons which were stated then and there. Even otherwise if application is allowed or rejected, and election is challenged, election tribunal is able to see the grounds on which application was decided. But in absence of this, election tribunal has to see whether the circumstances existed for recounting of votes. In these circumstances, decision on the application by the prescribed authority or the returning officer is very important and in case of filing of such application, aforesaid application should be decided by the aforesaid officer as enumerated in sub-rule (2) of rule 80. 24. Now the position of this case may be seen. Recounting was demanded on the ground that there was no sufficient arrangement of the light and electricity was often unavailable or there was continuously break down in the electricity supply creating darkness. The allegations are that the valid votes were kept in the rejected votes and some invalid votes or votes cast in favour of respondent No.1 were kept in the bundle of votes of the petitioner. Aforesaid allegations have been proved by the election petitioner by evidence which has been relied on by the election tribunal. The allegations are that the valid votes were kept in the rejected votes and some invalid votes or votes cast in favour of respondent No.1 were kept in the bundle of votes of the petitioner. Aforesaid allegations have been proved by the election petitioner by evidence which has been relied on by the election tribunal. Now in the case, as per order passed by this Court dated 19.12.2005, recounting has been done and as stated at the Bar by the respondents and not disputed by the petitioner, that after the recounting result has changed and respondent Smt. Susheela Singh has got 24 more votes in comparison to the petitioner. Aforesaid result of the recounting shows that the grounds for recounting as alleged by the election petitioner were justified and the satisfaction of the SDO in this regard is on sound reasoning. Recently, the apex Court in T.A. Ahammed Kabeer v. A.A. Azeez and others [ AIR 2003 SC 2271 ], considering the law, held thus: "28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found• is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. 29. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. 29. So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under section 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to section 97 of the Act consistently with its (sic.) cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and. proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to. . 30. In N.E. Horo's case (supra), the High Court reached and recorded a finding as to the availability of a prima facie case calling for inspection of ballot papers having been made out on consideration of relevant evidence produced by the parties. It was held that thereafter the scope of inspection could not be kept confined to the pleadings alone. In the course of such inspection, if the ballot papers which ought not to have been accepted have, in fact been counted in favour of a candidate, such votes must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot papers but the absence of specific averments in the pleadings is no bar to inspect such ballot papers. "When illegality is noticed by the inspection, it must be corrected. Invalid votes, if any, should be excluded. That is, precisely the purpose of inspection of ballot papers." In S. Raghbit Singh Gill v. Gurcharan Singh Tohar [(1980) Supp. "When illegality is noticed by the inspection, it must be corrected. Invalid votes, if any, should be excluded. That is, precisely the purpose of inspection of ballot papers." In S. Raghbit Singh Gill v. Gurcharan Singh Tohar [(1980) Supp. SCC 53], it was held that a petition for a recount on the allegation of miscount or error in counting is based not upon specific allegation of miscounting but errors which may indicate a misconduct and recount becomes necessary. When it is alleged that posta) ballot papers were tampered with, the implication in law is that those ballot papers have been wrongly received in favour of a candidate not entitled to the same, and improperly refused in favour of the candidate entitled to the same, and this is miscount and recount is necessary. In the very nature of things the allegation can be not on each specific instance of any error of counting' or miscount. but broad allegations indicating error in counting or miscount necessitating a recount (para 32, ibid). On a pure grammatical constructi9n of the relevant clause it cannot be gain said that an improper reception of any vote or an improper refusal of any vote implies not only reception or refusal of a vote contended to be invalid or valid, as the case may be, but consequent reception in favour of any contesting candidate at the election which would simultaneously show the vote being refused in counting to any other candidate at the election. The expression 'refusal' implies 'refuse to accept' and the expression 'reception' implies 'refuse to reject'. Apart from the setting and the context in which the clause finds it place, in its interpretation it is to be borne in mind that it seeks to specify one of the grounds for declaring an election to be void. In this situation the expressions 'improper reception' and 'improper refusal' have to be interpreted as would carry out the purpose underlying the provision contained in section 100." (para 46, ibid). Similar view has been taken by the apex Court in Jibontara Ghatowar v. Sarbananda Sonowal and others [ (2003)6 SCC 452 ], it is held thus: "16. The High Court in its judgment has referred to the decisions of this Court in Bhabhi v. Sheo Govind [197 6(1) SCC 687], Satyanarain Dudhani v. Uday Kumar Singh (1993 Supp. Similar view has been taken by the apex Court in Jibontara Ghatowar v. Sarbananda Sonowal and others [ (2003)6 SCC 452 ], it is held thus: "16. The High Court in its judgment has referred to the decisions of this Court in Bhabhi v. Sheo Govind [197 6(1) SCC 687], Satyanarain Dudhani v. Uday Kumar Singh (1993 Supp. 2 SCC 82] and M.R. Gopalakrishnan v. Thachady Prabhakaran and others [1995 Supp. 2 SCC 10 1], to read the law that the secrecy of ballot papers cannot be permitted to be tinkered with lightly, that an order for recount is not to be granted as a matter of course; and that the secrecy of ballot 'papers has to be maintained. In other words, a recount has to be ordered only when on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence a case for recount is made out. A similar view has been taken in a host of other decisions. It is not necessary to burden this judgment by cataloguing all the decisions relevant to the point. Suffice it to refer to a recent decision of this Court in T.A. Ahammed Kabeer v. A.A. Azeez and others [JT 2003(4) SC 110]. This Court noted the observation made earlier in Bhag Mal v. Ch. Prabhu Ram and others [ (1985)1 SCC 61 ], that the constitution and connected laws aim at ensuring true democracy functioning in the country, and the will of the people to prevail. 'that can be achieved by allowing the one to represent the consultancy who has obtained the majority of valid votes by proper and due process of law. It would really be a mockery of the procedure of law in a situation where it is demonstrated duly in the Court that a person who obtained four votes less than the other next candidate should be declared elected in preference to the other and allowed to represent the constituency. 17. This Court further held in T.A. Ahammed Kabeer (supra), [SCC p.663 paras 26-27): "26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. 17. This Court further held in T.A. Ahammed Kabeer (supra), [SCC p.663 paras 26-27): "26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election Courts are inclided to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of the election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be pres.erved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. . 27. Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such paper were vague or too generalized to deserve any cognizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice. 28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes to the result of recount on the ground that the result of recount as found is at variance with the pleadings. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes to the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. 29. So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under section 100(d)(iii), as also as to the result of the election of any other candidate by reference to section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out. the true result of the recount though the actual finding as to the validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to." 25. Article 243B of the Constitution provdes for the Constitution of Panchayat. Three tier system has been provided under Article 243B of the Constitution at village level, district level and intermediate panchayat between village and district panchayat. The Constitution has imposed a duty on the legislature of the State to make provisions with respect of the composition of the Panchayat. A democratic process has been set up for the constitution of the Panchayat. In the democratic process, a person is to be elected by the villagers of the Panchayat and person who gets higher votes has to be declared as a returned candidate. A democratic process has been set up for the constitution of the Panchayat. In the democratic process, a person is to be elected by the villagers of the Panchayat and person who gets higher votes has to be declared as a returned candidate. It would really be a mockery of the democratic process if a person who achieves less votes is declared as a returned candidate while a person who in fact achieves higher votes has to remain outside of the office, merely because there was some high-handedness or illegality during the counting. If after recounting, the result of initial counting is changed or election petitioner is found to be achiever of higher votes, this by itself is a ground to assume justification for the recounting, provided, the election tribunal before directing recounting has considered the case on merits on appreciation of evidence and material produced before it and found a case for recount after objective satisfaction. 26. In view of the aforesaid discussion, I do not find any merit in this petition. It is dismissed with costs. The election tribunal is directed to declare the result of the recounting in accordance with law.