Judgment ( 1. ) This petition is directed against order dated 15-9-2005 by Sub-Divisional Officer (Election Tribunal), Multai in Revenue Case No. 2A/89/2004-05, by which the election petition filed by respondent Smt. Urmila Badre has been allowed and election of petitioner Shivan Lal has been set aside. ( 2. ) Facts necessary for the decision of present case are as under :- That petitioner Shivan Lal, respondent-Smt. Urmila Badre and other private respondents were rival contestants for election of Gram Panchayat, Amla, District Betul. The election was held on 19-1-2005 and in the counting both the petitioner and Smt. Urmila Badre got equal votes. The respondent Smt. Urmila Badre immediately moved two applications for recounting of votes, but the aforesaid prayer was not accepted and thereafter by drawing lot petitioner Shivan Lal was declared as returned candidate. This election was challenged by Smt. Urmila Badre before the Election Tribunal on various grounds including the ground that there was no proper counting and the application of election petitioner for recounting was not considered by the Sub-Divisional Officer. The Tribunal issued notice to the respondents, initially petitioner Shivan Lal and Bhagwandeen appeared, but others have not appeared. Thereafter on 25-5-2005, petitioner and respondent No. 6 Bhagwandeen also remained absent and the matter was proceeded ex parte. The Election Tribunal on 22-6-2005 recorded evidence of election petitioner Smt. Urmila Badre. The witness Jayant Gohe and Vijay Badre were produced. The aforesaid witnesses stated before the Tribunal in respect of irregularities during the counting. Thereafter the Tribunal considered the entire evidence and vide order dated 5-8-2005 found that the election petitioner has made out a case for recounting and directed recounting. This order was not challenged by the petitioner. Thereafter on 6-9-2005 recounting was done and in the recounting, petitioner Shivan Lal got 184 votes and respondent Smt. Urmila Badre got 193 votes. As there was difference of 9 votes between the petitioner and respondent Smt. Urmila Badre, the Tribunal after recounting declared Smt. Urmila Badre as returned candidate. This order has been assailed by the petitioner on following grounds :- (i) That the Tribunal erred in directing recounting of votes without framing issues and recording evidence in the matter. (ii) That the election petitioner failed to make out a case for recounting. (iii) There was no pleading or evidence warranting recounting of votes. This order has been assailed by the petitioner on following grounds :- (i) That the Tribunal erred in directing recounting of votes without framing issues and recording evidence in the matter. (ii) That the election petitioner failed to make out a case for recounting. (iii) There was no pleading or evidence warranting recounting of votes. Reliance is placed to a Single Bench judgment of this Court in Sushila Dixit Vs. Ram Prakash and others [ 2001(2) MPLJ 622 ] and submitted that the impugned order be quashed. ( 3. ) Learned Counsel for respondents supported the order and submitted that respondent No. 2 immediately after the counting of votes and before declaration of result approached to the Presiding Officer by filing two applications for recounting. No order was passed on the aforesaid applications and by drawing lot petitioner Shivan Lal was declared as returned candidate, while there were serious irregularities in respect of counting. It is also submitted by Shri Chakravarthy that in the recounting result has substantially changed. The respondent Smt. Urmila Badre has been declared as returned candidate by a margin of 9 votes. This difference shows that counting was not done properly and respondent No. 2 who is in fact returned candidate was wrongly not declared as returned candidate because of drawing lots. He supports his contention by placing reliance on a judgment of this Court in Ram Rati Vs. Sub-Divisional Officer, Sidhi and others [ 2005(3) MPLJ 101 ]. To appreciate rival contention of the parties the first contention raised by the petitioner may be seen. The petitioner has stated that in the case the Tribunal without framing issue and recording evidence has decided the matter which procedure was not available to the Election Tribunal. The Tribunal before deciding the case ought to have framed issues and thereafter should have recorded evidence. ( 4. ) In this case, it is not in dispute that the petitioner after service remained ex parte and had not filed any reply in the matter. Apart from the petitioner no other opposed the election petition by filing reply. When no reply was filed to the election petition, it was not necessary for the Election Tribunal to frame issue, as there were no contesting questions before the Tribunal. Thereafter the election petitioner produced her evidence, and aforesaid evidence has been considered by the Election Tribunal in the order dated 5-8-2005. When no reply was filed to the election petition, it was not necessary for the Election Tribunal to frame issue, as there were no contesting questions before the Tribunal. Thereafter the election petitioner produced her evidence, and aforesaid evidence has been considered by the Election Tribunal in the order dated 5-8-2005. In these circumstances, if the Tribunal has not framed the issue, no fault is found. However, the Tribunal has recorded the evidence in the case and has duly recorded its satisfaction for recounting, vide order dated 5-8-2005. ( 5. ) Now another question may be seen whether the applications filed by the election petitioner, Annexure P-3 and Annexure P-5, were duly considered by the Returning Officer or the petitioner has pleaded a case for recounting in the election petition. ( 6. ) From the perusal of Para 3 of the election petition it appears that the election petitioner has specifically stated that the election petitioner was not satisfied with the counting and immediately filed an application for recounting on all 3 polling booths, but this prayer was not accepted by the Presiding Officer. Thereafter on 20-1-2005 petitioner again made a prayer for recounting to the Returning Officer, but no recounting was directed. From the perusal of Annexure P-3 and Annexure P-5, it is apparent that the petitioner immediately after conclusion of counting made a prayer to the Presiding Officer for recounting on 19-1-2005 itself, but there is no evidence on record showing that any order was passed on these applications. Rule 80 of M.P. Panchayat Nirvachan Niyam, 1995 provides recounting of votes. For ready reference Rule 80 reads thus :- "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 sub-rule (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 other 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 toto 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. (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 entered 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 bundled and kept in the manner mentioned in sub-rule (3) of Rule 77. (7) Result sheets in Forms 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 sub- rule (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 Forms 17, 18 and 19 respectively and complete and sign the result sheet." ( 7. ) Rule 80 (1) provides that after an announcement has been made by the Returning Officer of the total number of votes polled by each candidate under sub-rule (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. Sub-rule (2) provides that if any such an application is 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 toto, if it appears to be frivolous or unreasonable. Apart from this, sub-rule (5) provides that after announcement of result in respect of number of votes polled by each candidate, the Authorised Officer or Returning Officer shall give a reasonable opportunity to the candidate or his election agent to exercise the right conferred by sub-rule (1). Under sub-rule (5), the right of recount has been recognised by the Legislation. Until and unless the application is found frivolous or unreasonable it is to be allowed by the Returning Officer or by the Authorised Officer, but in this case, though immediately after announcement of votes polled by each of the candidate the respondent No. 2 moved two applications to the Presiding Officer and to the Returning Officer which are available on pages 34-36 of the paper book, but no order was passed by both the officers. These applications could have been considered by the aforesaid officers, so that the Election Tribunal would have advantage to see the grounds on which the aforesaid applications were rejected or allowed. Such an order is very material as these officers were present on the spot and were having advantage to know the facts very closely. In absence of such an order, if the Tribunal after considering the evidence on record has allowed the application, no fault is found. Such an order is very material as these officers were present on the spot and were having advantage to know the facts very closely. In absence of such an order, if the Tribunal after considering the evidence on record has allowed the application, no fault is found. Apart from this, when after counting it revealed that both the petitioner and respondent No. 2 had received equal number of votes and the matter was decided by drawing lot, in such circumstances, when the allegations were made in respect of counting, it was the duty of Presiding Officer or the Returning Officer to consider the prayer of election petitioner for recounting. The aforesaid both the officers committed a grave error in not considering the application and not passing an order immediately. In these circumstances, the Election Tribunal has rightly directed for recounting. While affirming the order of Election Tribunal dated 5-8-2005, at this juncture, it would be proper to refer the glaring fact that respondent No. 2 has been declared winner by 9 votes and this recounting shows that in fact there were some error or illegality in the counting. In the democratic process, a person who has received higher number of votes is entitled to assume the office and not a person who has not received the mandate of public. In this case, undoubtedly respondent No. 2 has received higher number of votes, but she was deprived with the benefit, because of irregularities in the counting. The aforesaid injustice has been set at right by directing recounting. ( 8. ) In the impugned order, there is no error warranting interference by this Court. This petition is dismissed with no order as to costs. Writ Petition dismissed.RAJENDRA