Judgment ( 1. ) THE petitioner has filed this petition being aggrieved by order dated 12-1-2007 passed by respondent No. 2 in the Election Petition No. 5 (89)A-21 (2004-2005) filed by the respondent No. 1 against the election of the petitioner as Sarpanch of Gram panchayat, Chhanta, Janpad Panchayat Samnapur, District Dindori. ( 2. ) THE brief facts of the case leading to the filing of the present petition are that the petitioner along with other non-official respondents contested the election for the post of sarpanch, Gram Panchayat, Chhanta, Janpad Panchayat Samnapur, District Dindori. The election was held on 19-1-2005. On 28-1-2005 the petitioner was declared elected, being aggrieved by which respondent No. 1 filed an election petition before the S. D. O. , dindori on 9-2-2005. The S. D. O. on account of repeated a1382bsence of the petitioner proceeded ex parte against him and allowed the petition by order passed in Election case No. [89-A-21]04-05 on 24-6-2005. The petitioner being aggrieved filed W. P. No. 6038/2005 before this Court which was disposed of with a direction to the respondent/election Tribunal on 5-10-2005 to proceed with the election petition in accordance with law from the stage on which the case was on 24-6-2005 and the order dated 24-6-2005 ordering recounting was quashed. Subsequently, the authority, after giving due opportunity for hearing to all the parties concerned, has passed the impugned order dated 12- 1-2007 ordering recounting of Booth Nos. 74, 75 and 76. ( 3. ) THE petitioner being aggrieved by the aforesaid order has filed this petition contending that the impugned order passed by the S. D. O. deserves to be set aside as the s. D. O. has failed to take into consideration the contentions of the petitioner to the effect that the election petition itself was not maintainable in view of the fact that the respondent No. 1 has not filed an application for recount under Rule 80 of M. P. Panchayat Election Rules, 1995 at the time of counting and declaration of the result itself. It is further submitted that the authority did not permit the petitioner to cross examine the officials i. e. the returning officer and others who conducted the election and, therefore, the impugned order deserves to be quashed. ( 4. ) THE learned counsel appearing for the respondent submits that the order passed by Shri Sanjay Patel, counsel for the petitioner. It is further submitted that the authority did not permit the petitioner to cross examine the officials i. e. the returning officer and others who conducted the election and, therefore, the impugned order deserves to be quashed. ( 4. ) THE learned counsel appearing for the respondent submits that the order passed by Shri Sanjay Patel, counsel for the petitioner. Shri A. D. Mishra, counsel for the respondent No. 1. The petitioner has filed this petition being aggrieved by order dated 12-1-2007 passed by respondent No. 2 in the Election Petition No. 5 (89)A-21 (2004-2005) filed by the respondent No. 1 against the election of the petitioner as Sarpanch of Gram panchayat, Chhanta, Janpad Panchayat Samnapur, District Dindori. 2. The brief facts of the case leading to the filing of the present petition are that the petitioner along with other non-official respondents contested the election for the post of sarpanch, Gram Panchayat, Chhanta, Janpad Panchayat Samnapur, District Dindori. The election was held on 19-1-2005. On 28-1-2005 the petitioner was declared elected, being aggrieved by which respondent No. 1 filed an election petition before the S. D. O. , dindori on 9-2-2005. The S. D. O. on account of repeated a1382bsence of the petitioner proceeded ex parte against him and allowed the petition by order passed in Election case No. [89-A-21]04-05 on 24-6-2005. The petitioner being aggrieved filed W. P. No. 6038/2005 before this Court which was disposed of with a direction to the respondent/election Tribunal on 5-10-2005 to proceed with the election petition in accordance with law from the stage on which the case was on 24-6-2005 and the order dated 24-6-2005 ordering recounting was quashed. Subsequently, the authority, after giving due opportunity for hearing to all the parties concerned, has passed the impugned order dated 12-1-2007 ordering recounting of Booth Nos. 74, 75 and 76. 3. The petitioner being aggrieved by the aforesaid order has filed this petition contending that the impugned order passed by the S. D. O. deserves to be set aside as the s. D. O. has failed to take into consideration the contentions of the petitioner to the effect that the election petition itself was not maintainable in view of the fact that the respondent No. 1 has not filed an application for recount under Rule 80 of M. P. Panchayat Election Rules, 1995 at the time of counting and declaration of the result itself. It is further submitted that the authority did not permit the petitioner to cross examine the officials i. e. the returning officer and others who conducted the election and, therefore, the impugned order deserves to be quashed. 4. The learned counsel appearing for the respondent submits that the order passed by the Election Tribunal does not suffer from any infirmity or illegality as the authority has passed the order taking into consideration the entire record as well as the submissions of the petitioner and all other parties to the election petition and that after giving due opportunity to each and every person the order of recount has been passed. ( 5. ) I have heard the learned counsel for the parties at length and gone through the record. ( 6. ) FROM a perusal of the record it is clear that the authority has ordered recount as it has found that the counting was conducted in gross violation of the rules as well as the rights of the respondent No. 1 and other contesting respondents inasmuch as while the election was held on 19-1-2005 and the counting of the votes in accordance with the rules was required to be held on the same day at the same place but the respondent/authority did not undertake recount on 19-1-2005 but did so only on 28-1-2005 at the office of Janpad Panchayat, Samnapur and not in the office of Gram panchayat, Chhanta and that to in the absence of respondent No. 1 and other contesting parties and without notice to them. ( 7. ) FROM a perusal of Rule 73 of the M. P. Panchayat Nirvachan Niyam, 1995 it is clear that at every election after polling is over, votes shall be counted under the supervision and direction of either the Returning Officer or such other officer as may be authorised by him in this behalf and each contesting candidate, or his election agent and his counting agents shall have a right to be present at the time of counting. Rule 74 requires certain persons including all the candidates or their election agents and counting agents to remain present at the place fixed for counting and Rule 75 permits such persons to scrutinize and inspect each ballot paper at the time of counting before accepting or rejecting the same. Rule 74 requires certain persons including all the candidates or their election agents and counting agents to remain present at the place fixed for counting and Rule 75 permits such persons to scrutinize and inspect each ballot paper at the time of counting before accepting or rejecting the same. Rule 77 (4) requires the Returning Officer or the officer authorized by him to furnish to each and every candidate or his counting agent present at the place of the counting, a copy of the relevant result sheet prepared under sub rule (2)of Rule 77 and to attest the same. Rule 78 lays down that the counting has to be a continuous process. Rule 80 lays down that the candidate or in his absence, his election agent or counting agent is entitled to file an application for recount on announcement, by the Returning Officer or the officer authorized by him, of the total number of votes polled by each candidate under Rule 77 (2) and sub rule (5) of Rule 80 prescribes that such an application for a recount can be filed prior to the Returning Officer or the officer authorized by him completes and signs the result sheet and that no application for a recount can be entertained thereafter. ( 8. ) IN the instant case, while the election and poling took place on 19-1-2005 the procedure as prescribed in Chapter X, Rule 73 onwards of the M. P. Panchayat nirvachan Niyam, 1995 was not followed as the counting did not take place immediately after voting was complete. Admittedly, the counting of votes took place on 28-1-2005 and that also in the office of Janpad Panchayat, Samnapur, District Dindori. It is also apparent that at the time of counting the respondent No. 1 and other contesting candidates were not present or noticed nor even they notified about the same and without following the procedure prescribed by law and the rules the petitioner was declared elected on 28-1-2005. ( 9. ) THE aforesaid facts are undisputed and in such circumstances, I do not find any patent irregularity or manifest illegality in the impugned order passed by the Election tribunal dated 12-1-2007 ordering a recount. ( 10. ( 9. ) THE aforesaid facts are undisputed and in such circumstances, I do not find any patent irregularity or manifest illegality in the impugned order passed by the Election tribunal dated 12-1-2007 ordering a recount. ( 10. ) I also do not find any substance in the submission of the learned counsel for the petitioner that the petition filed by respondent No. 1 for recounting of votes was not maintainable on account of the fact that he had failed to file an application seeking recount under Rule 80 (1) of the M. P. Panchayat Nirvachan Niyam, 1995, specifically in view of the provisions of sub rule (5) of Rule 80 wherein it is prescribed that an application for a recount can be filed only in case it is presented before the completion and signing of the result sheet as prescribed under Rule 77 (2) and (4) which was not done in the present case. Quite apart from the above an election petition filed by an aggrieved candidate seeking recounting of votes cannot be dismissed only on account of the fact that he has failed to file an application for recount under Rule 80 as has been held by the Supreme Court in Sohanlal v. Babu Gandhi and others, (2003) 1 SCC 108 . ( 11. ) IN view of the aforesaid facts and circumstances of the case, I do not find any merit in the petition which is accordingly dismissed. The S. D. O. shall proceed to undertake recounting expeditiously. A copy of the order passed today be furnished upon him by either of the parties to enable him to do so. In the peculiar facts and circumstances of the case there shall be no order as to costs.