Judgment (Per: Hon'ble B.S. Verma, J.) Since both these appeals arise out of the same judgment and order dated 19-9-2005 passed by the District Judge, Dehradun, in Election Petition No. 18 of 2003, Smt. Vinod Uniyal Vs. Smt. Manorama Dobriyal Sharma and others, whereby the election petition has been partly allowed and as common questions are involved for determination in both the appeals, therefore, for the sake of convenience, they are being decided by this common judgment. By the impugned order, the election of Smt. Manorama Dobriyal to the office of Nagar Pramukh, Nagar Nigam Dehradun was declared void. However, the petition to declare Smt. Vinod Uniyal as elected Nagar Pramukh was dismissed. 2. Relevant facts giving rise to the present appeals are that elections to the office of Nagar Pramukh and Sabhasads of Nagar Nigam, Dehradun were held on 1-2-2003. Besides the two petitioners respondent nos. 2 to 5 contested the election of Nagar Pramukh. The counting of votes was done on 3-2-2003 and 4-2-2003 and, ultimately, Smt. Manorama Dobriyal, who secured 51,165 votes, was declared elected by a margin of 4,706 votes to the office of Nagar Pramukh followed by Smt. Vinod Uniyal at the second place with 46,459 votes by the' Returning Officer / District Magistrate, Dehradun. 3. Dissatisfied by the result, Smt. Vinod Uniyal challenged the election of Smt. Manorama Dobriyal Sharma before the District Judge under Section 61 of the U.P. Nagar Mahapalika Adhiniyam, 1959 with the allegations that the elections were not conducted in accordance with the provisions of the UP. Nagar Mahapalika, Nagar Pramukh or Up-Pramukh Ke Nirvachan Sanchalan Agya 1959 (for short 1959 Agya) as well as the Rules framed there under. The Returning Officer was required to count number of ballot papers, which were taken out of the ballot boxes and to record them in the statement per Order 25 and he was further required to scrutinize the ballot papers and to place the invalid ballot papers separately. It was also alleged that the counting of votes was not done in presence of candidates and no pass was issued to the candidates or their agents for R.O. tables. The passes were issued to the agents for Ward Tables only, where ballots papers were separated. It was also alleged that the counting of votes was not done in presence of candidates and no pass was issued to the candidates or their agents for R.O. tables. The passes were issued to the agents for Ward Tables only, where ballots papers were separated. The counting of all the ballot papers of Nagar Pramukh was required to have been done on one R.O. table or at least in one room and that too in presence of the candidates. It was also alleged that the procedure as prescribed under Order 25(1) and 25(2) of the said 1959 Agya was not followed which required that rejection ballot papers will be done under the signatures of the Returning Officer and the same shall mention the ground for rejection. No opportunity was given to the candidates or their agents at the time of rejection of ballot papers. It was also alleged that more than 4.30% polled votes were rejected, which was not possible in the city like Dehradun where the voters are educated. It was also alleged by the election petitioner that she had raised a protest in writing against 6398 rejected votes on 3/4-2-2003 before declaration of results, but no decision was taken. It was further alleged that in Ward No.8 seals of all the ballot boxes were found broken against which most of the candidates lodged their protest with the Election Commission. Plea of irregularities in the counting of votes was raised in the election petition, hence the election petition was filed for declaration the said election to be void and a prayer was also made to declare the petitioner Smt. Vinod Uniyal as elected to the office of Nagar Pramukh. 4. The election petition was resisted by the respondent no.1 Smt. Manorama Dobriyal Sharma, who filed her written statement asserting that she was rightly declared elected as Nagar Pramukh. She also asserted that the election was conducted in accordance with the 74th amendment of the Constitution and under the superintendence, directions and guidance of the State Election Commission. It was also asserted that the counting was –done in presence of agents of the candidates and the candidates themselves and the respondent no.1 was rightly declared as winning candidate. The petition has been filed with ulterior motive against the law and Rules, which is barred by the principles of estoppel and acquiescence. It was also asserted that the counting was –done in presence of agents of the candidates and the candidates themselves and the respondent no.1 was rightly declared as winning candidate. The petition has been filed with ulterior motive against the law and Rules, which is barred by the principles of estoppel and acquiescence. The petition was not properly presented, therefore, the same is not legally maintainable. The petitioner has not paid sufficient court fee. The petition is bad for want of legal notice under Section 80 C.P.C. and defective for non-joinder of State Election Commission. The petition is also bad for non-joinder of Smt. Seem a Bhatia, who also filed her nomination and that the petition is defective for non-joinder of Additional District Magistrate (Executive), who was the Returning Officer. 5. The State-respondent nos. 6 and 7 filed their written statement, denied the allegations made by the election petitioner and pleaded that the A.D.M.(E) was appointed as Returning Officer, who declared the results. The District Magistrate was appointed as District Election Officer. It was asserted that election including the counting of votes was conducted in accordance with the directions contained in aforesaid 1959 Agya and the• Rules framed there under. It was also asserted that counting of votes was done in presence of the candidates and their agents right from the beginning till the end. Necessary passes were issued to all the candidates and their agents. It was also asserted that the re-counting application was rejected as the same was moved without legal justification. It was contended that the respondent no.1 was rightly declared elected as Nagar Pramukh. 6. The election petitioner filed replication and denied the assertions made in the amended written statement of respondent no. 1. 7. On the pleadings of the parties, the following Issues were framed by the trial court ISSUES 1. Whether there is a violation of the provisions of Nirvachan of Nagar Mahapalika Nagar Pramukh Sanchalan Agya, 1959 ? 2. Whether the votes were rejected during the counting without adopting prescribed procedure? 3. Whether the application of the petitioner for recounting was rejected against law? 4. Whether the ADM (E) was the Returning Officer for the election of Nagar Pramukh and the petition is bad for his non-joinder? 5. Whether the petition is bad on account of non-presentation of the petitioner herself and presentation through Advocate? If so, its effect? 6. 3. Whether the application of the petitioner for recounting was rejected against law? 4. Whether the ADM (E) was the Returning Officer for the election of Nagar Pramukh and the petition is bad for his non-joinder? 5. Whether the petition is bad on account of non-presentation of the petitioner herself and presentation through Advocate? If so, its effect? 6. Whether the petition is bad for non-joinder and mis-joinder of parties? If so, its effect? 7. Whether the election petition is barred by the principles of estoppel and acquiescence? If so, its effect? 8. Whether the court fee paid is insufficient and security amount was not deposited? If so, its effect? 9. Whether the petition is bad for want of notice under section 80 CPC ? 10. Whether the petitioner is liable to be declared as Nagar Pramukh ? 11. Whether the declaration of respondent no. 1 as Nagar Pramukh in the election is void under section 71 of U.P. Nagar MahapalikaAdhiniyam, 1959? If so, its effect? 12. Whether the petition is liable to be rejected under Order 7 Rule 11 CPC ? 13. Whether the petition is liable to be stayed under section 10 and 151 CPC? If so, its effect? 14. Whether the election of Nagar Pramukh has to be conducted in accordance with the procedure, prescribed in the directions, given in the Booklet of State Election Commission as mentioned in para 4 of the written statement of respondent no. 1? 8. The learned trial court recorded the evidence led by the parties, heard them and thereafter took Issue Nos. 1,2,3 and 14 for decision. After perusing the entire evidence, it was held that the irregularities have been committed in the counting and results were affected by it and the votes were rejected without adopting the prescribed procedure. It was also held that the application for recounting was rejected without any reason. Accordingly, it was held on Issue No.1 that there was violation of the provision of 1959 Agya, issued by the State Election Commission regarding the counting as mentioned in Booklets paper nos. 41-B and 42-B. All the four Issues were decided accordingly. The learned District Judge took up Issue No.4 and 6 together for decision and held that the petition is not bad for non-joinder and mis-joinder of parties. 41-B and 42-B. All the four Issues were decided accordingly. The learned District Judge took up Issue No.4 and 6 together for decision and held that the petition is not bad for non-joinder and mis-joinder of parties. On Issue No.5, it was held that the petition was signed by the petitioner and it was not necessary to present the petition in person by the petitioner. On Issue No.7, it was held that the petition is not barred by the principle of estoppel and acquiescence. On Issue No.8 it was held that the court fee paid is sufficient. On Issue No.9, it was held that the petition is not bad for want of legal notice under Section 80 C.P.C. The learned District Judge on Issue No. 10 came to the conclusion that there is no evidence on record that the petitioner has secured more valid votes than the respondent no. 1 and decided the issue against the petitioner. On Issue No. 11, it was concluded that the election of respondent no. 1 can be declared void and it is void. On issue No. 12, it was concluded that the petition cannot be rejected under Order 7 Rule 11 C.PC. for alleged non-disclosure of cause of action in the petition. Accordingly, the election petition has been partly allowed declaring the election of respondent no. 1 as Nagar Pramukh is void under Section 71 of the Uttar Pradesh Nagar Nigam Adhiniyam, 1959, by the judgment and order dated 19-9-2005. . 9. Aggrieved by the said judgment and order, the petitioner Smt. Manorama Dobriyal has preferred the appeal on the ground that the judgment and order impugned is not based on evidence.; that the learned District Judge has not recorded any finding on Issue No. 14; that the State Election Commission was a necessary party to the election petition; that the alleged irregularities in the counting does not warrant declaring the election as void. 10. On the other hand, the election petitioner has assailed the impugned judgment and order on the ground that when it was held that irregularities were committed in counting of votes, then the District Judge should not have rejected the prayer of the election petitioner for recounting of votes and the District Judge has wrongly held that the election petitioner is not liable to be declared as Nagar Pramukh. 11. 11. We have heard learned counsel for the parties and perused record including the impugned judgment and order. 12. Learned Senior Advocates appearing for the appellant Smt. Manorama Dobriyal, have vehemently hammered the findings recorded by the ,learned District Judge on Issue Nos. 1, 2, 3, 11 and 14. It has been contended that the election petition has been filed mainly on the ground that there was violation of the provisions of Nirvachan of Nagar Mahapalika Nagar Pramukh Sanchalan Agya, 1959 and the Rules framed there under and the Returning Officer did not follow the 1959 Agya in counting the votes and the procedure specified in Order 25 of the 1959 Agya which provides that the counting will be done in presence of the candidates and members. Learned counsel further submitted that the learned Election Tribunal has wrongly relied upon the 1959 Agya, because after the amendment of Section 45 of the U.P. Nagar Mahapalika Adhiniyam, 1959, (for short the Adhiniyam) as has been amended w.e.f 30-5-1994 thereby the power to hold the elections rests upon the State Election Commission after 74th amendment of the Constitution of India. Learned coun2el has drawn our attention to the provisions of sections 45 and 46 of the Adhiniyam and urged that the State Election Commission has the power of superintendence, direction and control of conduct of Nagar Pramukh, Up Nagar Pramukh and Sabhasads of the Nagar Nigam. Therefore, in view of the amendment of Article 243-ZA, the election under challenge was conducted in accordance with the directions of the State Election Commission and not in accordance with Agya 25 of 1959 Agya. According to the learned counsel 1959 Agya has not been enforced by the State Election Commission, hence the same has become redundant. It has been submitted that the election was held by the Officers and the counting was done as per directions issued by the State Election Commission. 13. Learned counsel further submitted that although Issue No. 14 was framed to the effect "whether the election of Nagar Pramukh has to be conducted in accordance with the procedure, prescribed in the directions, given in the Booklet of State Election Commission as mentioned in para 4 of the written statement of respondent no. 1?" and the learned District Judge took up this Issue for decision along with Issue Nos. 1?" and the learned District Judge took up this Issue for decision along with Issue Nos. 1,2 and 3 but there is no specific finding on this Issue No. 14, which is still undecided by the court below. It has further been submitted that the respondent-election petitioner failed to establish the case whether the irregularities in counting as alleged in the petition materially affected the election and the finding of the District Judge to the contrary is unsustainable. 14. Learned counsel further argued that the District Judge has no power to order recounting as per Section 69 of the Adhiniyam and Section 71 provides the ground for declaring an election to be void, on which election can be challenged. It was contended that there is no pleading of corrupt practice as provided under Section 78 of the Adhiniyam. 15. On the other hand, it has been submitted by the learned counsel for the appellant (election-petitioner) that the impugned order of the District Judge declaring the election as void on the basis of Irregularities is just and proper and it was rightly concluded by the District Judge that there has been violation of Agya 25 of 1959 Agya. Learned counsel further submitted that the election petitioner has established her case for recounting but the District Judge has erred in rejecting the prayer thereby deciding the Issue No.10 against the petitioner. Learned counsel urged that on the basis of evidence led by the election petitioner, she ought to have been declared elected to the office Nagar Pramukh. 16. It is provided in Section 61 of the Adhiniyam that an election of Nagar Pramukh or Up Nagar Pramukh can be questioned by an unsuccessful candidate or by any person whose nomination paper was rejected or by any member of the Mahapalika by presenting a petition to the District Judge exercising jurisdiction in the city on anyone or more of the grounds mentioned in Section 71. 17. For a just decision of these appeals, it is necessary to make a reference to Section 71 of the Adhiniyam, which provides for grounds for declaring an election to be void. Section 71 reads as under :- '71. 17. For a just decision of these appeals, it is necessary to make a reference to Section 71 of the Adhiniyam, which provides for grounds for declaring an election to be void. Section 71 reads as under :- '71. Grounds for declaring an election to be void- If the District Judge is of opinion- (a) that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under this Act; or (b) that any corrupt practice specified in section 78 has been committed by a returned candidate or his election agent or by other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or (iii) by the improper reception, 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 this Act or of any rules or orders made there under, the District Judge shall declare the election of the returned candidate to be void” 18. From a perusal of Section 71 of the Adhiniyam it is obvious that to declare the result of a returned candidate void, the requirement of sub-clause (i), or (ii) or (iii) or (iv) of clause (d) of Section 71 has to be established. In the background of Section 71, it has to be examined as to what are the main allegations made in the election petition by the election petitioner. 19. In paragraph no. 5 of the election petition, it has been alleged that the Returning Officer did not hold the elections as per U.P. Nagar Mahapalika Nagar Pramukh aur Up Nagar Pramukh Ke Nirvachan Sanchalan Agya 1959 as well as the Rules framed there under. From parapraph no. 6 to 11 there are allegations regarding violation of procedure specified in Order 25 of 1959 Agya and even in the subsequent paragraphs there are allegations of violation of Order 25. From parapraph no. 6 to 11 there are allegations regarding violation of procedure specified in Order 25 of 1959 Agya and even in the subsequent paragraphs there are allegations of violation of Order 25. The election petitioner has no where pleaded that the rejected votes were votes cast in her favour or that if those votes were treated to be valid, the result of the election would have been materially affected inasmuch as that the returned candidate would not have been successful in the election or that if the votes were counted properly, votes which were counted in favour of the returned candidate would not have been counted in her favour. It has nowhere been pleaded specifically that the votes counted in favour of Smt. Manorama Dobriyal, the returned candidate, were not liable to be counted as such in her favour. 20. The election petitioner has not pleaded violation of any directions or instructions issued by the State Election Commission. The contention of the appellant Smt. Manorama Dobriyal is that the Election in question was held under the superintendence, guidance and directions of the State Election Commission after enforcement of Article 243 ZA in consequence of the 74th Amendment of the Constitution of India and the consequential amendment of Sections. 45 and 46 of the Adhiniyam. It is pertinent to mention that prior to amendment it was provided in Section 45 that the Nirvachan Sanchalak (Sthaniya Nikaya) shall directed supervise the conduct of elections of the Nagar Pramukh and of Sabhasads of the Mahapalika. The amended. Section 45 reads as under:- "45. Superintendence etc. of the conduct of elections :- (1) The superintendence, direction and control of the conduct of elections of the Mayor, Deputy Mayor and Corporators of the Corporations shall be vested in the State Election Commission. (2) Subject to Sub-section (1) the Chief Election Officer (Urban Local Bodies), referred to in Sub-section (2) of Section 39, shall supervise the conduct of the elections of the Mayor, Deputy Mayor and Corporators of the Corporation." 21. After amendment of Section 46, it is provided that in so far as provision with respect to any matter is not made by this Act, the State Election Commission may, by order, provide for matters concerning conduct of elections to the Offices of Mayor and Deputy Mayor and to the seat of Corporators. 22. After amendment of Section 46, it is provided that in so far as provision with respect to any matter is not made by this Act, the State Election Commission may, by order, provide for matters concerning conduct of elections to the Offices of Mayor and Deputy Mayor and to the seat of Corporators. 22. Before entering into the discussion on merits of the case, it is pertinent to note that the election petitioner has no where challenged the election on the ground of violation of the directions issued by the State Election Commission of Uttaranchal relating to Nagar Nikay Nirvachan as contained in the Booklet I. On the other hand, it was not the case of the returned candidate-respondent no. 1 before the District Judge that the directions of the State Election Commission were not complied with by the Election Officers. Even then the District Judge has proceeded to examine the non-compliance of directions contained in Booklet 1 issued the State Election Commission. It appears that the District Judge while giving finding on the Issues has gone a bit beyond the scope of the pleadings of the parties. 23. At the outset it may also be noted that though the District Judge has declared the election of the returned candidate to be void by the impugned order, but there is no finding of the District Judge that non-compliance of either Agya 25 of 1959 Agya or that of the directions of the State Election Commission has materially affected the result of the election, in so far as it concerns the returned candidate. Therefore, it has to be examined whether the election petitioner has succeeded in establishing that where there had been non-compliance of the provisions of the Adhiniyam or procedure or any irregularities, which could have materially affected the result of the returned candidate. 24. It is not disputed that the State Election Commission of Uttaranchal has issued the directions regarding the conduct of elections including counting of votes. It is not disputed between the parties that the State Election Commission is the competent authority to control and conduct the elections. It is also not disputed that there are specific directions regarding the procedure of counting of votes issued by the State Election Commission. 25. It is not disputed between the parties that the State Election Commission is the competent authority to control and conduct the elections. It is also not disputed that there are specific directions regarding the procedure of counting of votes issued by the State Election Commission. 25. Before the District Judge, the election petitioner has examined herself as P.W.1, Vinay Gopal as P.W.2 and P.W. 3 Sri Vinod Sharma for cross-examination, while the appellant Manorama Sharma has got herself cross-examined as D.W.1 in the election petition. 26. The election petitioner has challenged the election on the ground that the procedure of counting of votes as laid down under Agya 25 of 1959 Agya was not followed. The same reads as under :- 25. Procedure at the counting:- (1)As soon as the poll is closed the Nirvachan Adhikari shall, in the presence of candidates and members who may be present, proceed to count the votes. (2) The Nirvachan Adhikari shall open the ballot box and shall- (a) count the number of ballot papers taken out there from and record it in a statement. (b) scrutinize the ballot papers and separate those which in his opinion are valid from those which in his opinion are invalid endorsing on the latter the work "rejected" and the ground of rejection: and (c) arrange all the valid ballot papers in parcels according to the first preferences record for each candidate. 27. Even if it may be taken that the election petitioner had a right to invoke the provisions of Agya 25 of the U.P. Nagar Mahapalika (Nagar Pramukh Aur Up Nagar Pramukh Ke Nirvachan Ka Sanchalan) Agya, 1959, it is not established that the State Election Commission ever enforced the said Agya for the purposes of conducting of elections. Therefore, the contention of the learned counsel for the returned candidate Smt. Manorama Dobriyal has some force that 1959 Agya has no bearing after the amendment of Section 45 and 46 of the Adhiniyam read with Article 243-ZA of the Constitution of India, as indicated earlier. 28. It is pertinent to note that the election of the returned candidate Smt. Manorama Dobriyal has been declared void by the trial court on the strength of finding on Issue No. 11, which was the ultimate result of the findings recorded on Issue Nos. 1,2 and 3. 28. It is pertinent to note that the election of the returned candidate Smt. Manorama Dobriyal has been declared void by the trial court on the strength of finding on Issue No. 11, which was the ultimate result of the findings recorded on Issue Nos. 1,2 and 3. We are of the consistent view that the 1959 Agya has no bearing on the procedural part of the elections including counting of votes for the simple reason that the State Election Commission has its own specific procedure with regard to counting of votes. Therefore, we hold that the election petitioner has no right to take recourse to the provisions of 1959 Agya so as to challenge the election in question. Issue Nos. 1 and 14 are answered accordingly. 29. Now it has to be examined whether there was such non-compliance of the provisions of the said Adhiniyam or of any rules or orders made there under which could have materially affected the result of the election in so far as it concerns the returned candidate. If the answer to this question is yes, then and then only there could have been a valid ground for declaring the election in question to be void. 30. Though the election petitioner has not at all pleaded that there was non-compliance of the counting procedure as laid down by the State Election Commission, we are addressing ourselves to find out whether the election petitioner has been able to establish a case in her favour to declare the election in question to be void on the basis of the material available on record. The election petitioner has placed reliance upon the certified copies documents paper no. 9-C to 13-C. The District Judge has examined the veracity of paper no. 11-C/2, which is chart relating to first round of counting of Table No. 16 to 30. It is not disputed that there were 30 counting Tables and the total votes counted by them were 29045. The objection of the petitioner is that the procedure was not properly adopted which required that there will be bundles of 1000 votes each in the counting tables. As mentioned above the votes were in 29045, therefore, it was incumbent to make use of 30 tables and naturally one 'of the tables would have friction of 1000 votes. The objection of the petitioner is that the procedure was not properly adopted which required that there will be bundles of 1000 votes each in the counting tables. As mentioned above the votes were in 29045, therefore, it was incumbent to make use of 30 tables and naturally one 'of the tables would have friction of 1000 votes. The election petitioner has not questioned the total number of votes of the first round as well as total number of votes polled in other three rounds. 31. The finding of the District Judge on Issue Nos. 1 to 3 was that the ballot papers were not mixed in a big box and bundles of 1000 were not prepared and the votes were not given table wise for counting and that the counting did not take place at one Pandal. We have perused the documents relied upon by the election petitioner. The discrepancy of allocation of less than 1000 votes is at few places, but there is no specific allegation or pleading of the election petitioner that these discrepancies were made in order to given undue favour to the returned candidate. At the most these are minor discrepancies. It may be noted here that the margin of defeat of the election petitioner is by 4706 votes. It is not the case of the election petitioner that any illegality was committed in the actual counting of the votes. 32. The Counting Proforma No.8 of the election petition has been questioned by the election petitioner and it has been submitted that the proforma does not disclose the total. number of ballot papers. We have given our thoughts to this submission but the contention of the election petitioner is not tenable. The grand total of the ballot papers has been given in the last column on the right hand side and it has been mentioned as 1,48,655. It is admitted to the election petitioner that the returned candidate secured in all 51 ,165 votes to her credit and the petitioner secured 46,459 votes and 6,398 votes were shown as rejected. The election petitioner has not challenged that the figures worked out by the Returning Officer are not correct. Moreover, Counting Proforma No.9 gives the details of total number of votes polled, total number of rejected votes, total number of valid votes and total number of votes secured by each of the candidates. The election petitioner has not challenged that the figures worked out by the Returning Officer are not correct. Moreover, Counting Proforma No.9 gives the details of total number of votes polled, total number of rejected votes, total number of valid votes and total number of votes secured by each of the candidates. It is not the case of the election petition that the statement prepared in Proforma NO.9 is a manipulated document or that it does not contain the correct figures of polls. Therefore, it does not lie in the mouth of the election petitioner to challenge that due to procedural irregularities the result of the election was materially affected. 33. The most important aspect of the case, which goes to the root of the matter is that in the election petition, the petitioner has alleged in paragraph no. 14 that the petitioner had lodged the protest against 6398 rejected votes in writing on 3/4-2-2003 before declaration of results in which protest for recounting of votes was also made but no decision was taken. But strangely enough, when the election petitioner was put to cross-examination, she has admitted at page no. 27 of her cross-examination that no objection was raised by her regarding non-issuance of pass to the agents in writing. She has admitted that she herself and her chief counting agent Sri Vijay Snehi were present throughout at the time and place of counting and her counting agent lodged a protest, a copy of which was filed by her on record but at the same time, she stated that no such copy of protest had been filed on record regarding non-issuance of counting pass. This admission on the part of the election petitioner makes it crystal clear that allegation of paragraph no. 10 of the petition that there was no occasion for the deponent to see the counting of votes stands falsified and there is no truth in the allegation that counting of votes was done on the back of the election petitioner or her counting agent. Further, at page no. 28, the election petitioner has clearly admitted that she had not made any written protest at the time of counting of votes. She herself stated that only oral complaint was made. At the close of her cross-examination she went on admitting to the extent that the protest as alleged in para no. Further, at page no. 28, the election petitioner has clearly admitted that she had not made any written protest at the time of counting of votes. She herself stated that only oral complaint was made. At the close of her cross-examination she went on admitting to the extent that the protest as alleged in para no. 14 of the petition was made when all the ballot papers had been counted and no protest whatsoever was made by her earlier to that. This admission of the election petitioner throws her entire case to the ground because she and her counting agent were very much present at the time of counting of votes; that she had no grievance until the close of counting and she raised no objection regarding any irregularity in the counting of votes. The petitioner in paragraph no. 14 of the election petition had mentioned the number of total rejected votes i.e. 6,398. It is thus clear that when the election petitioner got the information of total number of rejected votes after the closure of counting and when she came to know that she had lost the election, only then she had raised the protest for recounting of votes. Had there been any material irregularity at the time of counting of votes especially in respect of rejection of ballot papers, the election petitioner would not have kept mum till the closure of counting. It is further significant to mention that the election petitioner has not pleaded that the Returning Officer was at all guilty of rejecting any of the valid vote polled in favour of the election petitioner so as to give way to materially affect the result of the returned candidate, who won the election by a huge margin of 4706 votes. 34. Paper No. 9-C is the Counting Proforma NO.8 whereby the result of the election of Nagar Pramukh was declared. This chart also gives all relevant information as to total number of votes polled, the total number of rejected votes and total number of valid votes including total number of votes secured by each candidate. Similarly, there is no discrepancy in Counting Proforma No.9, wherein total number of votes secured by the candidates in first, second, third and fourth round of voting are given with other necessary details. 35. Similarly, there is no discrepancy in Counting Proforma No.9, wherein total number of votes secured by the candidates in first, second, third and fourth round of voting are given with other necessary details. 35. The District Judge while recording his finding on Issue No.1, 2, 3 and 14 has observed that "prima facie from the documents as mentioned above it appears that the counting did not take place in accordance with the directions issued by the State Election Commission. The ballot papers were not mixed and all the ballot papers were not included in bundles of 1000 each. Moreover, it is not clear how many votes were polled as per the statement of the ballot papers accounts submitted the Presiding Officer of each ward." This finding recorded by the District Judge is not correct on the face of record as indicated above. Even if it may be presumed for the sake of argument that the procedure as laid down for counting of votes was not strictly followed in letter and spirit in accordance with the directions issued by the State Election Commission, such an irregularity cannot be said to have materially affected the result of the returned candidate, in view of the fact that the election petitioner had been present at the time of counting of votes and she or her counting agent found nothing objectionable to file any protest then and there. Accordingly, we find that the election petitioner has utterly failed to establish that votes were rejected during the counting without adopting prescribed procedure. There is no pleading supported by any such evidence on record to establish that there was any procedural irregularity in rejection of votes so as to materially affect the result of returned candidate. The District Judge has not discussed as to how the votes were rejected without adopting the prescribed procedure. Issue No.2 is answered in the negative against the election petitioner. 36. As has been stated earlier, the election petitioner had made the protest for recounting in respect of rejected votes only after the entire process of counting was completed and she had got the information that in all 6398 votes were found to be invalid and they were rejected. Issue No.2 is answered in the negative against the election petitioner. 36. As has been stated earlier, the election petitioner had made the protest for recounting in respect of rejected votes only after the entire process of counting was completed and she had got the information that in all 6398 votes were found to be invalid and they were rejected. We have held above that the election petitioner and her chief counting agent were present at the time of counting of votes and it is also evident that counting of ballot papers was done on 3'd and 4th February, 2003, but she did not find any occasion to raise any objection against any of the rejected ballot papers ,in the course of counting. The petitioner has not alleged any specific instance of illegal rejection of any valid ballot paper and has not alleged anywhere in the petition that any of the valid votes polled in her favour had been wrongly rejected and due to wrongful rejection of valid votes polled in her favour, the returned candidate was declared successful. According to her own admission, referred to earlier; she never raised any objection either oral or in writing prior to the close of counting. All the facts and circumstances would lead to no other inference that there had been no violation of any rule or order or provision of the Adhiniyam, which would entitle the election petitioner for recounting of votes. The respondents nos. 6 and 7 in their written statement have asserted that at all steps of counting, the compliance of directions of the State Election Commission had been done. Since the averments made by the petitioner made in para 10 and 14 of the election petition were found to be falsified and since there is no specific pleading of non-compliance of any direction of the State Election Commission on the point of rejection of ballot papers, therefore, the election petitioner was not entitled to claim recounting of votes as pleaded by her. Issue no. 3 is decided accordingly against the election petitioner. Ultimately, the Issue No. 11 is decided in the negative against the election petitioner. 37. Issue no. 3 is decided accordingly against the election petitioner. Ultimately, the Issue No. 11 is decided in the negative against the election petitioner. 37. For the reasons and discussion aforesaid, we hold that there was no such noncompliance with the provisions of the Adhiniyam or of any rules or orders made there under which could have materially affected the result of the election in so far as it concerns the returned candidate. 38. Now, the only question, which remains for determination, is whether the appellant in First Appeal No. 91 of 2005 (election petitioner) is entitled to recounting of votes. 39. The learned counsel for the returned candidate Smt. Manorama Dobriyal, while opposing the appeal no. 91 of 2005 of the election petitioner, have urged that the requisite conditions for recounting have not been fulfilled by the election petitioner, therefore, her application for recounting was liable to be rejected and the District Judge has rightly declined to accept the prayer for recounting though on other considerations. Learned counsel have placed reliance in the case of Chandrika Prasad Yadav Vs. State of Bihar and others [(2004) 6 Supreme Court Cases, 331]. In paragraph no. 20 the Apex Court has observed as follows:- "20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled: (i) a prima facie case; (ii) pleading of material facts stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) an objection to the said effect has been taken recourse to." 40. It was observed in para 21 that "the requirement of maintaining the secrecy of ballot papers must also be kept in view before a re-counting can be directed. Narrow margin of votes between the returned candidates and the election petitioner by itself would not be sufficient for issuing a directing for re-counting." 41. In the case of Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan and others [(2006) 2 Supreme Court Cases, 300], the Apex Court has dealt with the matter of recounting of votes in an election petition under the Bombay Provincial Municipal Corporations Act. In the case of Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan and others [(2006) 2 Supreme Court Cases, 300], the Apex Court has dealt with the matter of recounting of votes in an election petition under the Bombay Provincial Municipal Corporations Act. In that case, relying upon the case of Mahendra Pal v. Ram Dass Malanger reported in [(2002) 3 SCC 457], Chandrika Prasad V. State of Bihar [(2004) 6 see 331] and M. Chinnasamy V. K.C. Palanisamy [(2004) 6 see 341] it has been held inter alia in paragraph no. 9 as under :- "9. This Court after referring to a number of prior decisions has held in Mahendra Pal v. Ram Dass Malanger that an order for re-counting cannot be made as a matter of course. Unless the election petition had laid the foundation and there was clinching evidence to support the case set up by the election petitioner, a re-count normally could not be ordered. In Chandrika Prasad Yadav V. State of Bihar, relying on an earlier decision in M. Chinnasamy v. K.C. Palanisamy, a Bench of three Judges (to which one of us S.B. Sinha, J. was a party) held that an election petition seeking a recount must contain a concise statement of material facts and clear evidence in support of the facts pleaded. It was held that a small margin of victory by itself was not a ground for ordering re-count. A roving and fishing inquiry was not permissible while directing re-count of votes. The requirement of maintaining secrecy of ballot papers had also to be kept in mind before directing a re-count. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes. Going by the tests laid down by these decisions, it is clear that the election petitioner in the case on hand has not made out a specific case for re-count. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes. Going by the tests laid down by these decisions, it is clear that the election petitioner in the case on hand has not made out a specific case for re-count. In other words, except generally asserting that the process of counting was undertaken hurriedly and suggesting that mistakes might have occurred because of the haste shown, she has not been able to establish specifically any flaw either in the matter of segregation of votes polled in the ward by colour, segregation of the votes polled by each candidate, or in the matter of bundling of the votes into 25 or in the matter of identification of the invalid votes which were clearly shown to all the counting agents before being deposited in the box kept separately for invalid votes. It is true that there could be a suspicion that in view of the announcement of an award for the Returning Officer who finished the counting process first, there might have been some hurry in the process of counting. But such a general feeling or possibility cannot be a substitute for clear pleading and evidence in support of a prayer for re-counting of the votes." 42. In the case at hand, we have observed above that there is no pleading of any specific irregularity pertaining to counting in the election petition. Moreover there are no material facts in the petition and evidence is also lacking. The facts of case in hand are almost similar regarding the grounds for recounting like that of the case of Tanaji Ramchandra Nlmhan (supra). We are not inclined to accept the prayer for re-counting of votes made by the election petitioner. 43. No other point was argued or urged before us. 44. In the result, the First Appeal No. 85 of 2005 preferred by the returned candidate deserves to be allowed, the impugned judgment and order dated 19-9-2005 under challenge passed by the District Judge Dehradun is liable to be set aside and the Election Petition No.18 of 2003, Smt. Vinod Uniyal Vs. Smt. Manorama Dobriyal Sharma and others, is liable to be dismissed. The First Appeal No. 91 of 2005 is liable to be dismissed. 45. Smt. Manorama Dobriyal Sharma and others, is liable to be dismissed. The First Appeal No. 91 of 2005 is liable to be dismissed. 45. The First Appeal No. 85 of 2005, Smt. Manorama Dobriyal Sharma Vs: Smt. Vinod Uniyal and others is allowed with no order as to costs. The impugned order dated 19-9-2005 is set aside and the Election Petition No. 18 of 2003, preferred by election petitioner is dismissed. 46. First Appeal No. 91 of 2005 Smt. Vinod Uniyal Vs. Smt. Manorama Dobriyal Sharma and others is hereby dismissed. Costs easy.