ORDER 1. Both the petitions are arising out of the order dated 31.1.2006 passed by the Sub-Divisional Officer-cum-Election Tribunal, Damoh in Panchayat Election Petition No.7 N89/04-05 by which the election petition filed by Smt. Vidhya Rani, respondent No.3 has been allowed and the election of petitioner Smt. Rooprani has been set aside. For the convenience, facts are taken from WP No.2421 of 2006 (Smt. Rooprani v. SDO). 2. The petitioner Smt. Rooprani and Smt. Vidyarani, respondent No.3 and other private respondents contested the election for the office of Sarpanch, Gram Panchayat Imlai, Janpad Panchayat, Damoh. The election was held on 16.1.2005 and counting of votes took place on 27.1.2005. After counting, an announcement was made about the total number of votes polled by the candidates. Respondent Smt. Vidyarani got one vote more than petitioner Rooprani. Thereafter, petitioner Rooprani filed an application under rule 80 of M.P. Panchayat Nirvachan Rules, 1995 for recounting. The officers, who were counting the votes at Booth No.28 and Booth No.30 rejected the application of the petitioner on the ground that "no factual reason exists, hence, rejected". The applications are on record as Annexures R3-5 and R3-6. Thereafter, the petitioner Rooprani approached the Returning Officer by filing an application for recounting. The Returning Officer allowed the application and directed recounting of votes of Booths No.28 and 30 of Gram Panchayat Imlai. The Returning Officer also constituted a group for recounting. This order is on record (Annexure R3-7). Thereafter, recounting was done in which petitioner Smt. Rooprani was declared as returned candidate by a margin of three votes. This election was challenged by Smt. Vidyarani by filing of the aforesaid election petition. 3. The Election Tribunal, after receiving the reply, framed issues, received evidence and recorded following findings: (i) that Smt. Vidyarani in the first round of counting was declared as returned candidate by a margin of one vote. This election was challenged by Smt. Vidyarani by filing of the aforesaid election petition. 3. The Election Tribunal, after receiving the reply, framed issues, received evidence and recorded following findings: (i) that Smt. Vidyarani in the first round of counting was declared as returned candidate by a margin of one vote. This finding has been recorded on the basis of admission in the reply of Returning Officer and the admission of Smt. Rooprani in her cross-examination; (ii) applications EX.D-1 and D-3 were rejected by the prescribed authority but the Returning Officer allowed the application; (iii) the Tribunal also recorded a finding that after the counting when the application was filed then on the application filed by Smt. Rooprani itself, the words "factual reason not present -- rejected" were mentioned and prescribed authority rejected the application; (iv) the recounting was done with the consent of respondent Smt. Vidyarani; (v) that as per rule 80 of the Rules, 1995, it was necessary on the part of the petitioner Rooprani to show the reason for the recounting; (vi) after declaration of the result of the election, the returning officer was not empowered to direct recounting nor he should have changed the result. Once the result was declared, then the aggrieved party was having remedy only under section 122 of the Act by filing an election petition. The reliance is placed by the Tribunal to the apex Court judgment in Sohan Lal v. Babu Gandhi and others [2002(2) Vidhi Bhasvar 300= (2003)1 SCC 108 ]; (vii) recording aforesaid finding, the Tribunal found that the recounting was directed contrary to the provisions of rule 80, which was not permissible under the law nor on the basis of the consent, the recounting could have been directed; (viii) the Tribunal found that during recounting, rules were not followed, so the entire process vitiates and declared the election of Sarpanch Smt. Rooprani as void. 4. This order has been assailed by both the parties. Smt. Rooprani, petitioner, whose election has been set aside, she has assailed the order on various grounds. Smt. Vidyarani has also assailed it on the ground that once recounting was found to be illegal and contrary to the Rules and there is finding of the Election Tribunal that Smt. Vidyarani was declared as a returned candidate, the Tribunal erred in not declaring her as a returned candidate for the office of Sarpanch. 5. Smt. Vidyarani has also assailed it on the ground that once recounting was found to be illegal and contrary to the Rules and there is finding of the Election Tribunal that Smt. Vidyarani was declared as a returned candidate, the Tribunal erred in not declaring her as a returned candidate for the office of Sarpanch. 5. The learned counsel appearing for the petitioner submitted that: (i) the finding recorded by the Election Tribunal is contrary to the law. The recounting was permissible until and unless a candidate is declared as a return candidate. Rule 80 of the Rules provides that after an announcement has been made by the Returning Officer or such officer authorised by him of the total number of votes polled by each candidate under sub-rule (2) of rule 77, the petitioner was entitled to file an application for recounting. Only after the result sheet is completed and signed by the Returning Officer or such officer authorised by him, the recounting was not permissible, but in this case no such result sheet was signed and the announcement was only in respect of declaration of the fact that how much number of votes has been received by each candidate. (ii) That sub-rule (5) of rule 80 specifically provides that an opportunity should be extended to the candidate for making a prayer for recounting under sub-rule (1) of rule 80 and only thereafter the result sheet is to be signed. The aforesaid formality is not a mere formality, but in fact this right is extended by the statute and the Election Tribunal erred in not considering the matter in proper perspective. (iii) That, in fact, the application for recounting was submitted to the Returning Officer, who was entitled to receive and decide the aforesaid application. The previous applications which were presented to the counting assistants and rejected, were incompetent to decide the application. As those officers were not empowered to consider and reject the application and only the Returning Officer or some other officer authorised by him in this regard was empowered to consider the prayer of recounting of the votes. The previous applications which were presented to the counting assistants and rejected, were incompetent to decide the application. As those officers were not empowered to consider and reject the application and only the Returning Officer or some other officer authorised by him in this regard was empowered to consider the prayer of recounting of the votes. In this case, though the previous application were rejected for counting, but the aforesaid orders were non-est and the application filed by the petitioner after announcement about the votes polled by each candidate but before declaration of the result and preparation of the result sheet as required under sub-rule (5) of rule 80, the application was duly entertained by the Returning Officer and the recounting was just and proper. (iv) The husband of respondent Smt. Vidyarani was an Election Agent of Smt. Vidyarani and consented for recounting. In the matter, the grounds for recounting existed which were duly considered by the Returning Officer. On being convinced with the grounds enumerated in the application and looking to the fact that husband of Smt. Vidyarani had not objected to the recounting, the prayer of recounting was rightly allowed. (v) The right of recounting is envisaged under sub-rule (1) of rule 80. Until and unless the application is found frivolous or unreasonable, it was liable to be allowed. (vi) In the present case, there was serious dispute in respect of manner of counting of votes. The petitioner's votes were wrongly rejected, there was manipulation by the counting assistant and on these allegations, the prayer for recounting was made. As the prayer was made before the declaration of the result and before signing of result sheet, the returning officer has rightly allowed the application. The aforesaid right has been duly exercised by the petitioner. The application of the petitioner was neither frivolous nor unreasonable and the Election Tribunal erred in rejecting the aforesaid application on unsustainable ground. (vii) The petitioner has placed his reliance to the judgment of the apex Court in Mahendra Pal v. Ram Das Malanger [(2000)1 see 261], and Sohanlal v. Babu Gandhi and others [2002(2) Vidhi Bhasvar 300= (2003) 1 SCC 108 ], and submitted that the impugned order passed by the Election Tribunal be set aside and the election petition filed by the respondent No.3 Vidyarani be also dismissed. 6. 6. Shri Mohammad Ali, the learned counsel appearing for respondent No.3 Smt. Vidyarani supported the order passed by the Election Tribunal on following grounds: (i) That it is an admitted fact that Smt. Vidyarani was declared as returned candidate. This fact has been admitted by Smt. Rooprani not only in the reply but also in her statement before the Election Tribunal. (ii) that the applications filed by the petitioner for recounting of the votes at polling booth Nos.28 and 30 were rejected by the authorised officer. Thus, there was no question of entertaining second application by the Returning Officer. (iii) The persons, who were authorised by the Returning Officer had rejected the application of the petitioner, then the only remedy to the petitioner was to file an election petition under section 122 of the Act. The Returning Officer erred jurisdictionally in entertaining the application and directing the recounting. (iv) That the petitioner neither before the Election Tribunal nor in the writ petition has made averment that initially applications which were rejected by the counting assistants, were not authorised to do so. So this point cannot be entertained in this petition during the course of the argument. (v) That the Election Tribunal has rightly held that the counting cannot be directed with the consent of the parties. For recounting, it was necessary for the petitioner Smt. Rooprani to state the grounds on which she demanded recounting. Until and unless the grounds are enumerated in the application, no recounting could have been directed merely on the basis of asking for recounting. Reliance is placed to judgment of this Court in the case of Gayatribai (Smt.) v. Alka Sharma [1997(2) MPWN 98]. (vi) That Smt. Vidyarani immediately objected recounting. This fact reflects from Annexures P-8 and P-18 filed by the petitioner. There is no provision for constituting any team for recounting, the Returning Officer erred in holding recounting by constituting a new team. The entire action of Returning Officer was without jurisdiction. 7. The learned counsel appearing for State supported the order and submitted that the election petition has rightly been decided by the SDO. 8. There is no provision for constituting any team for recounting, the Returning Officer erred in holding recounting by constituting a new team. The entire action of Returning Officer was without jurisdiction. 7. The learned counsel appearing for State supported the order and submitted that the election petition has rightly been decided by the SDO. 8. Shri Ashish Shroti, the learned counsel for petitioner in reply to the arguments raised by Shri Mohammad Ali submitted that the objection of the petitioner in respect of first application by the counting officer is not a new ground, but in fact this ground has been stated in para 3 of the election petition. As per Annexure R3-1, the Returning Officer appointed authorised officer to Khuman Lal Prajapati and other persons were the counting assistants. The application was rejected by the Counting Assistants who were not empowered to decide the applications. Though the application was submitted to the Counting Assistant but it was addressed to the Returning Officer and the Counting Assistants ought to have referred the aforesaid application for decision to the Returning Officer or to the prescribed authority, but they were having no jurisdiction to reject the application for any reason. Their rejection of the application was non-est and rightly ignored in the matter, when the Returning Officer allowed the application filed by the petitioner Smt. Rooprani to the Returning Officer. The Returning Officer was the competent person for directing recounting of the votes as provided in rule 80 and the counting assistants were having no jurisdiction to decide the aforesaid application. 9. To consider rival contentions of the parties, relevant provisions of the Rules may be seen. For ready reference, rules 24, 27 and 80 of the Rules are reproduced as under : "24. Appointment of Presiding and Polling Officer. -- (1) The Returning Officer shall with the prior approval of the District Election Officer, appoint a presiding officer for each polling station and such polling officer or officers to assist the presiding officer, as he thinks necessary : Provided that no person who is not a Government servant or a servant of any authority under the Municipal Law or any public undertaking under the State Government shall be appointed as presiding officer. Provided further that if a polling officer is absent from the polling station, the presiding officer may appoint any person, who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election, to be the polling officer during the absence of the former officer, and inform the Returning Officer accordingly. (2) A polling officer shall subject to the directions of the commission if so, authorised by the presiding officer, perform all or any of the functions of presiding officer under these rules. (3) If the presiding officer, owing to illness or any other unavoidable cause, is obliged to absent himself from the polling station, his functions shall be performed by such polling officer as has been previously authorised by the Returning Officer to perform such functions during any such absence. (4) Reference in these rules to the presiding officer shall, unless the context otherwise requires, be deemed to include any person performing any function which he is authorised to perform under sub-rule (2) or as the case may be, under sub-rule (3). 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 of 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 or 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. 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. 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 officer authoriscd 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. (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 bundled 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 sub-rule (7) shall enter or cause to be entered the total number of votes polled by each candidate contsting 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." 10. Now the crucial question may be examined whether after rejection of applications for recounting Annexures R3-5 and R3-6, the Returning Officer rightly entertained the application (Annexure P-7) for recounting or not? In this regard, an important document, which has been produced by the respondent No.3 may be looked into. Respondent along with return has filed an order dated 10th January, 2005 Annexure R3-1 issued by the Returning Officer (Panchayat) Damoh. In this regard, an important document, which has been produced by the respondent No.3 may be looked into. Respondent along with return has filed an order dated 10th January, 2005 Annexure R3-1 issued by the Returning Officer (Panchayat) Damoh. By this order, the Returning Officer appointed various officials. For ready reference, these are referred as under: (1) The Presiding Officer: Khuman Lal Prajapati, Revenue Inspector Office of Collector, Land Records and Land Management. (2) Polling Officers / : 1. Bali Ram Kurmi, Assistant Teacher Counting Assistant 2. Gyani Prasad Ahirwar, (Para 4 of the order Shiksha Karmi Class 3 3. Rajendra Patel, Contract Teacher Class 2. The name of polling officer, who will discharge the duties of Presiding Officer in his absence, Bali Ram Kurmi, Assistant Teacher. Para 3 of this order specifically shows that under rule 73 of M.P. Panchayat Nirvachan Niyam, 1995, the officer specified in column No.1 was authorised to count votes in his supervision and the names of polling officers shown in column No.2 of the order were appointed as counting assistants to help polling officer under rules 74, 75, 76, 77, 78, 79 and 80. This authorisation is very important. By this authorisation, the Returning Officer had authorised the aforesaid officers under rule 24 of the Niyam, 1995. Rule 24 provides that the Returning Officer shall with the prior approval of the District Election Officer appoint a presiding officer for each polling station and such polling officer or officers to assist the presiding officer, as he thinks necessary. 11. Rule 73 provides that the counting of votes shall be under the supervision and direction of either Returning Officer or such other officer as may be authorised by him in this behalf. The aforesaid provision specifically provides that at the time of polling, the returning officer shall appoint a presiding officer, and at the time of counting, the returning officer shall appoint an authorised officer in this behalf. In this case, it is not in dispute that the person shown in column No.1 was appointed as authorised officer by the Returning Officer by order of authorisation Annexure R3-1. 12. The recounting of the votes is provided under rule 80. In this case, it is not in dispute that the person shown in column No.1 was appointed as authorised officer by the Returning Officer by order of authorisation Annexure R3-1. 12. The recounting of the votes is provided under rule 80. The rule 80 specifically provides that 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, the candidate, or in his absence, his election agent or his counting agent, may apply in writing to the Returning or such officer authorised by him for a recounting of all or any of the votes already counted, stating the grounds on which he demands such recount. 13. The aforesaid provision specifically provides that the application has to be made either to the Returning Officer or such authorised officer as authorised by the Returning Officer and none other. On the aforesaid application, a decision has to be taken under sub-rule (2) of rule 80 which provides that the Returning Officer or such authorised officer on such an application being made shall decide the matter and may allow the application in whole or in part or may reject in toto. Sub-rule (2) specifically provides that the decision on the aforesaid applications is to be taken only by the Returning Officer or by the authorised officer. 14. In the light of the above specific provision, the contentions of the parties may be seen. The appliations R3-5 and R3-6 were filed addressing to the returning officer by the petitioner Rooprani. The applications were received and decided by the officers, who were the counting assistants of Booth Nos.28 and 30 and not by the returning officer or the authorised officer. When the applications were addressed to the returning officer which is apparent from Annexures R3-5 and R3-6, the aforesaid applications ought to have been transmitted by the aforesaid counting assistants, either to the authorised officer or to the returning officer for a decision under sub-rule (2) of rule 80. The aforesaid counting assistants, though they were authorised for counting but were not empowered or having jurisdiction to deal and decide the aforesaid applications. The jurisdiction was vested with either to the returning officer or to the authorised officer to take a decision on the aforesaid application. The decisions taken by the counting assistants on the applications were without jurisdiction. The aforesaid counting assistants, though they were authorised for counting but were not empowered or having jurisdiction to deal and decide the aforesaid applications. The jurisdiction was vested with either to the returning officer or to the authorised officer to take a decision on the aforesaid application. The decisions taken by the counting assistants on the applications were without jurisdiction. Thereafter, the Returning Officer was moved by the petitioner Smt. Rooprani and he on the basis of the reason assigned in the order (Annexure P-1) (equivalent R3-9) allowed the application for recounting. The aforesaid application was not rejected by the Returning Officer on the ground that it was moved as upreasonable or on frivolous ground. Under sub-rule (2) of rule 80, the application was liable to be rejected only on the ground that it is frivolous or unreasonable. The Returning Officer in the order has mentioned the fact that Mahadeo Kurmi, husband of Smt. Vidyarani, had also consented to recounting and allowed the application. The jurisdiction was vested with the returning officer to decide the aforesaid application. The previous two applications though were addressed to the returning officer but were decided by the counting assistants. It is not the case of the respondent that the aforesaid applications were decided by the authorised officer. If the previous applications could have been considered by the authorised officer then, the Returning Officer would not be having jurisdiction to entertain the subsequent appliation after the rejection of the previous applications by the authorised officer, as authorised officer was acting on his behalf and under the authority" given by the Returning Officer. But in the present case, the entire situation is different. The matter has been considered by the Returning Officer himself on an application filed by the petitioner Smt. Rooprani. Previous two applications though were addressed to the Returning Officer, but were rejected by the counting assistants who were having no jurisdiction to deal and decide the aforesaid applications. 15. The learned counsel appearing for respondents, Smt. Vidyarani contended that this ground was not raised before the SDO-cum-prescribed authority (Election Tribunal) and for the first time, this ground cannot be permitted to be raised in this writ petition. The learned counsel appearing for petitioner submits that this ground has been raised in the election petition itself in para 3. The respondent Vidyarani herself has pleaded that the aforesaid applications were filed. The learned counsel appearing for petitioner submits that this ground has been raised in the election petition itself in para 3. The respondent Vidyarani herself has pleaded that the aforesaid applications were filed. which were rejected by the counting officers and this fact was not disputed by the Smt. Rooprani. Before the Election Tribunal this fact was on record and on the basis of this, the question may be decided. Apart from this, this question has been considered by the SDO, while deciding the election petition. In these circumstances, it cannot be said that for the first time, this question has been raised by the petitioner before this Court. This question existed in the election petition. A decision has been given by Election Tribunal in this regard. The aforesaid question is going to the root of the case and it relates to the subject-matter and can be decided in the writ petition itself. 16. Now, another question is whether the Returning Officer has properly considered the application or not? In the aforesaid applications, it appears that the husband of respondent. Smt. Vidyarani consenteq to the recounting. He was the election agent as appears from Annexure P-7, the statement of Mahadeo Prasad, who has specifically stated that he was election agent of his wife Smt. Vidyarani and consented to the recounting. There is specific provision for appointment of election agent and in the capacity of election agent, if he had consented to the application, respondent Smt. Vidyarani cannot change her stand. Now the question remains whether the Returning Officer has rightly considered the application or not. Rule 80 of the Rules provides that the application shall be filed for recounting stating the ground on which the recounting is demanded. In view of the specific provision in sub-rule (1) of rule 80 of the Rules, the existence of ground for recounting in the application is sine qua non and in absence of the ground, the application itself is not maintainable. However, sub-rule (2) specifically provides that the aforesaid application shall be rejected by the Returning Officer if it appears to him to be frivolous or unreasonable. The aforesaid provision makes it clear that only when the application or grounds stated therein are frivolous or unreasonable, it may be rejected. However, sub-rule (2) specifically provides that the aforesaid application shall be rejected by the Returning Officer if it appears to him to be frivolous or unreasonable. The aforesaid provision makes it clear that only when the application or grounds stated therein are frivolous or unreasonable, it may be rejected. If the Returning Officer found that the grounds stated in the application are not frivolous or unreasonable, the prayer for recounting may be allowed. The right of recounting has been given under sub-rule (5) of rule 80. The said sub-rule (5) of rule 80 provides that after the total number of votes polled by each candidate has been announced under sub-rule (2) of rule 77 of 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. The proviso creates a bar that no step under the sub-rule shall be taken on the completion of the counting until the candidates and election agents present are given a reasonable opportunity to exercise the right conferred by sub-rule (1). In view of the specific provision, it is apparent that right is conferred on a candidate or his election agent to move such an application for the recounting. In aforesaid circumstances, if the application was neither frivolous nor unreasonable, the Returning Officer was well within its jurisdiction to allow the aforesaid application. 17. From the perusal of application R3-6, it is apparent that the recounting was sought on the ground that Rooprani was not satisfied with the counting. Her votes were wrongly counted and during counting there was some manipulation in the votes and on these grounds recounting was prayed. From the perusal of Annexure R3-7, it is apparent that the Returning Officer considering the application, consent of Mahadeo, Election Agent of Vidyarani, and grounds stated in the application allowed the application and, directed recounting. 18. Now the last question may be seen, the Election Tribunal found that the result of the election was declared and thereafter the application for recounting was not entertainable. For this purpose, sub-rule (5) of rule 80 of the Rules is very specific. Until and unless the aforesaid result sheet is completed and signed, the application for recounting was entertainble. 18. Now the last question may be seen, the Election Tribunal found that the result of the election was declared and thereafter the application for recounting was not entertainable. For this purpose, sub-rule (5) of rule 80 of the Rules is very specific. Until and unless the aforesaid result sheet is completed and signed, the application for recounting was entertainble. Though in this case, there is serious dispute whether the result of the election was declared or not as envisaged under sub-rule (2) of rule 77 of the Rules. But it is provided that after counting of the ballot papers, the Returning Officer shall announce the total number of votes polled by each candidate. It appears that at the time of directing recounting, the Returning Officer or authorised officer had completed and signed the result sheet is neither pleaded, nor proved. No such document has been produced before the Election Tribunal showing the aforesaid fact. A right has been given under sub-rule (5), rule 80 of the Rules that before completion of the result sheet, opportunity should be extended to the candidate or his election agent for invoking right conferred by sub-rule (1) of rule 80, for recount. In aforesaid circumstances, the Election Tribunal on the wrong premises has decided the matter, that the result of election was declared and thereafter the application for recounting was filed. In this regard, the finding of the Tribunal in para 5 may be seen in which the Election Tribunal has recorded the finding that after counting, Smt. Vidyarani got 593 votes and Rooprani 592 and the Returning Officer declared Vidyarani as a returned candidate by a margin of one vote. But in this case, neither it is a case nor form No.17 has been filed which was completed and signed before filing of the application for recount. In absence of the aforesaid findings recorded by the Election Tribunal in para 5 of the order is perverse and not sustainable under the law. 19. In this case, the initial announcement in respect of votes polled in the election was that respondent Smt. Vidyarani got 593 votes while Smt. Rooprani got 592 votes. After recounting the Returning Officer found that Smt. Vidyarani got 587 votes while Smt. Rooprani 590 votes. No allegation has been made in respect of recounting of votes that the recounting was not done according to law. After recounting the Returning Officer found that Smt. Vidyarani got 587 votes while Smt. Rooprani 590 votes. No allegation has been made in respect of recounting of votes that the recounting was not done according to law. Though there is challenge of the order by the Returning Officer in respect of the recounting. But after recounting the result is changed in which there are no allegations of the parties that in the recounting there was any irregularity or illegality, but the result of recounting reflects that in fact there was some mistake or irregularity in counting of the votes and after recounting, the mistake was rectified. The petitioner Smt. Rooprani who got 592 votes, got 590 votes while Smt. Vidyarani who initially got 593 votes after the recounting got 587 votes which shows that the initial counting was incorrectly done. The democratic process provides that a person in whose favour the public have polled and who has got maximum vote should be declared as a returned candidate. The democratic mandate has to be respected. Once it is found that in the election the candidate who got maximum vote has been declared returned candidate (though after recounting) the mandate of public has to be respected. If by some manipulation or irregularity or illegality, in the initial counting, Smt. Vidyarani got one more vote, which has been corrected after recounting, the Returning Officer did the justice in the matter by directing recounting of the votes. The order of recounting by the Returning Officer by appointing another team for counting deserves approval of this Court. Consequently, the writ petition filed by Smt. Rooprani is allowed and the order passed by the Election Tribunal is set aside and she is declared as returned candidate for the office of Sarpanch, Gram Panchayat Imlai. 20. As this Court has allowed the writ petition filed by Smt. Rooprani and she has been declared as returned candidate, prayer of Smt. Vidyarani by filing another petition for the relief that after setting aside the election of Smt. Rooprani by the Election Tribunal, she is entitled to be declared as returned candidate, such relief has rendered redundant and cannot be granted. Consequently, the writ petition of Smt. Rooprani is allowed with costs and writ petition filed by Smt. Vidyarani is dismissed with no order as to costs.