ORDER N.K. Mody, J. 1. Being aggrieved by order dated 18-9-2010 passed by learned Additional District Judge, Susner in Election Petition No. 2/2010, whereby petition filed by Respondent No. 1 under Section 20 of the Madhya Pradesh Nagar Palika Adhiniyam, 1961 (hereinafter referred to as "the Act") was allowed and the election of the Petitioner for the post of Vice President was set aside, present petition has been filed. 2. Short facts of the case are that Respondent No. 1 filed an election petition on 15-2-2010 under Section 20 of the Act wherein it was alleged that election of Nagar Panchayat, Soyatkala for the post of Vice President took place on 16-1-2010 wherein 16 voters casted their votes. It was alleged that said election was contested by the Petitioner and Respondent No. 1. It was alleged that in the said election all the voters casted their votes out of which two ballots were rejected as invalid. After counting it was found that Petitioner and Respondent No. 1 both has got 7 votes. It was alleged that since both the candidates got equal number of votes, therefore, the Presiding Officer followed the procedure to decide the election by lot in which the Petitioner was declared elected. It was alleged that the entire process which was followed was illegal. It was prayed that election of the Petitioner for the post of Vice President be declared as invalid. The election petition was contested by the Petitioner by filing reply wherein the allegations made in the petition were denied. It was prayed that petition be dismissed. After framing of issues and recording of evidence and also after examining the rejected ballot papers the petition filed by the Respondent No. 1 was allowed and election of the Petitioner for the post of Vice President was declared illegal against which present petition has been filed. 3. Mr. C. L. Yadav, Senior Advocate appearing for the Petitioner submits that the impugned order passed by the trial Court is illegal, incorrect and deserves to be set aside. Learned Counsel submits that election of the Petitioner for the post of Vice President took place on 16-1-2010 and the election petition was filed on 15-2-2010. 3. Mr. C. L. Yadav, Senior Advocate appearing for the Petitioner submits that the impugned order passed by the trial Court is illegal, incorrect and deserves to be set aside. Learned Counsel submits that election of the Petitioner for the post of Vice President took place on 16-1-2010 and the election petition was filed on 15-2-2010. Learned Counsel submits that the election petition is required to be filed under Section 20 (3) of the Act within a period of 30 days which was also filed in time but after expiry of the period of limitation an application for amendment was filed on 18-8-2010 wherein for the first time validity of the meeting itself wherein the election took place was challenged. Learned Counsel submits the election petition cannot be allowed to amend after expiry of limitation prescribed for filing the election petition. Learned Counsel submits that since the prescribed period of limitation is 30 days, therefore, after expiry of limitation Respondent No. 1 cannot be allowed to amend the election petition. For this contention reliance is placed on a decision in the matter of Ganpat Lal Sharma v. Surya Prasad and Ors. 1972 MPLJ 743 : 1972 JLJ 658 , wherein this Court has held that: Objection which has been raised in the election petition after expiry of limitation by amendment objection cannot be considered even if amendment allowed. 4. In view of the aforesaid position of law, learned Counsel submits that learned Court below committed error in holding that the meeting itself which was held for conducting the election, was illegal. Learned Counsel further submits that the procedure followed by the Presiding Officers for the election for the post of Vice President can be challenged on the grounds mentioned under Section 22 of the Act. It is submitted that the meeting itself, held for conduction of the election, was illegal, cannot be a ground for declaring the election to be void. Learned Counsel submits that even if it is assumed that the ground validity of the meeting can be taken into consideration as ground, then too, since there was no pleadings which are necessary as per law, therefore, election should not have been set aside on that ground. Learned Counsel further submits that learned Court below has held that the meeting was not valid as there was no notice of clear 7 days. Learned Counsel further submits that learned Court below has held that the meeting was not valid as there was no notice of clear 7 days. It is submitted that since notice was dated 8-1-2010 and the meeting was held on 16-1-2010, therefore, observation made by the Court below is not correct. Learned Counsel submits that learned Court below committed error in recounting of ballots without passing any order. Learned Counsel placed reliance on a decision in the matter of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao : AIR 2010 SC 24 , wherein Hon'ble Apex Court held that an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. Before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements, viz-, (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. Hon'ble Apex Court has further held that similarly the fact that there was a narrow margin of votes between the returned candidate and the election petition would not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. Even the fact that Election Officer has failed to explain the corrections and overwritings in Form No. 26 were irrelevant. On the strength of aforesaid position of law and in the facts and circumstances of the case, learned Counsel submits that the petition filed by the Petitioner be allowed and the impugned order passed by the learned Court below whereby election of the Petitioner as Vice-President is declared void, be set aside. 5. Mr. On the strength of aforesaid position of law and in the facts and circumstances of the case, learned Counsel submits that the petition filed by the Petitioner be allowed and the impugned order passed by the learned Court below whereby election of the Petitioner as Vice-President is declared void, be set aside. 5. Mr. Vivek Sharan, learned Counsel for Respondent No. 1 submits that no illegality has been committed by the learned Court below in passing the impugned order, which can be corrected by this Court while exercising revisional jurisdiction. It is submitted that the learned Court below has allowed the petition filed by Respondent No. 1 and declared the election petition illegal on the ground that because of not following the Statutory Rules and also one vote was wrongly rejected by the Election Officer. It is submitted that since the meeting in which the election took place was not called in accordance with law, therefore, election petition was amended by moving an amendment application, which was duly allowed. It is submitted that otherwise also sufficient pleadings are in the election petition itself, which goes to show that the calling of the meeting was not in accordance with law, as seven days clear notice was not given. Learned Counsel further submits that since Section 56 (3) of M.P. Municipalities Act, 1961 was not followed for convening of meeting, therefore, the meeting itself was illegal, which is one of the ground for declaring the election invalid. It is submitted that so far as recounting of votes is concerned, interim order dated 7-4-2010 and 29-4-2010 were not challenged by the Petitioner and also there is no findings of the learned trial Court and the election was not declared illegal on the basis of recounting of votes, therefore, validity of that part of the order is not required to be seen. It is submitted that the petition filed by the Petitioner is without any merits and the same be dismissed. 6. Before dealing with the facts of the case, it is necessary to deal with some important provisions of law. Section 56 of M.P. Municipalities Act, 1961deals with convening of meeting. It is submitted that the petition filed by the Petitioner is without any merits and the same be dismissed. 6. Before dealing with the facts of the case, it is necessary to deal with some important provisions of law. Section 56 of M.P. Municipalities Act, 1961deals with convening of meeting. Sub-section (3) of Section 56 of M.P. Municipalities Act lays down that notice of every meeting specifying the time and place thereof and the business to be transacted thereat shall be despatched to every Councillor and exhibited at the Municipal Office seven clear days before an ordinary meeting and three clear days before a special meeting. In exercise of powers conferred by Section 355 read with Section 43 of M.P. Municipalities Act State Government framed the Rules for the purpose of election of Vice President which are known as M.P. Municipality (Election of Vice President) Rules, 1998. Rule 11 of Rules deals with the procedure upon opening each ballot box and counting of votes, according to which the Presiding Authority shall open the ballot box and proceed to scrutinise the ballot papers. If on any ballot paper there is "X" mark against more than one name or there is any mark or sign on a ballot paper by which the voter can be identified, such ballot papers shall be considered invalid and shall not be counted. The decision of the Presiding Authority shall be final in that respect. The valid votes shall then be counted by the Presiding Authority and the ballot paper arranged in respect of each candidate. Rule 14 of the Rules deals with maintenance of secrecy of voting, according to which every person who performs any duty in connection with the recording or counting of votes at any election shall maintain and aid in maintaining the secrecy of voting and shall not (except for some purpose authorised by or under any Law) communicate to any person any information calculated to violate such secrecy. 7. From plain reading of Rule 11 of the Rules it is evident that a ballot paper can be declared as invalid by which the voter can be identified and on the ballot paper there is "X" mark against more than one name. 8. 7. From plain reading of Rule 11 of the Rules it is evident that a ballot paper can be declared as invalid by which the voter can be identified and on the ballot paper there is "X" mark against more than one name. 8. Election petition is being filed under Section 20 of Municipalities Act, according to which petition can be filed on one or more of the grounds specified in Section 22 of the Act. Section 22(1)(d) (iii) of Municipalities Act empowers the Court to declare the election to be void if because of non-compliance with the provisions of this Act or of any Rules or Orders made thereunder. In the light of aforesaid provisions of law the facts of the case has to be examined. 9. In the election petition which was filed on 15-2-2010 it is nowhere stated that any provision of law or the rules was violated. On the contrary in Para 1 of the petition it is alleged that the meeting was convene for election of which intimation was given to all the Councillors. Vide order dated 18-8-2010 additional ground was added which was to the effect that the notice issued to the Councillors were not served in time and also were not issued in time. This ground was not taken by the Respondent within 30 days from the date of election of the Petitioner. In view of law laid down by this Court in the matter of Ganpat Lal Sharma (supra), objection can be considered even though the amendment was allowed. Apart from this in the present case notices were issued on 8-1-2010, while election took place 16-1-2010, therefore, on the face of it there was seven days clear notice which is necessary for calling of ordinary meeting. It was not the case of Respondent No. 1 that any of the Councillor was unserved with the notice. Moreover, there is nothing on record on the basis of which it can be said that the notice was not pasted on the notice board. As per Section 56(3) of the Act notices are required to be dispatched to the Councillors and exhibited before any ordinary meeting. Since it was not the case of Respondent No. 1 that the notice was not exhibited, therefore, findings of the learned trial Court that pasting of the notice on the notice board is doubtful, is without any basis. 10. Since it was not the case of Respondent No. 1 that the notice was not exhibited, therefore, findings of the learned trial Court that pasting of the notice on the notice board is doubtful, is without any basis. 10. Apart from this it has to be presumed that notice must have been accepted as per Section 56(3) of the Act unless it is rebutted, for which no case was made out by the Respondent. So far as finding of the learned Court below that notice the was not served before seven days to the Councillors is concerned as per Section 56(3) of the Act requirement of law is that the notices are required to be dispatched before seven days. Moreover, in the present case since all the voters were present and also casted their votes, therefore, there was no justification on the part of learned Court below in holding that the meeting itself was invalid as the voters were not served in time. 11. In view of this, the findings recorded by the learned trial Court for declaring the election invalid on the ground that the notice was not exhibited and was not served in time to the Councillors cannot be allowed to sustain because the ground was not raised by the Respondent No. 1 in time and also the ground was not taken in the amendment petition that the notices were not exhibited and also on the ground that all any of the voters was not served as the persons were required to cast their votes were present. 12. So far as other ground is concerned, whereby the learned Court below allowed the recounting of votes is concerned, Hon'ble Apex Court in the matter of Kattinokkula Murali Krishna (supra), in Para 12 has observed as under The Court would be justified in ordering a recount of the ballot papers only where: (1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 13. 13. From the aforesaid position of law it is clear that the Court is not powerless in ordering of recounting of ballot papers. However, the justification for an order of recounting of votes should be by placing material by an election Petitioner on the threshold before an order for re-count of votes is actually made. The reason is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes. 14. In view of the aforesaid position of law, this Court has to examine the facts stated in the petition. In Para 5 of Election Petition the facts stated by Respondent No. 1 are as under: HINDI ?? ?? ?????? ?? ??-?? ???? ?? ?? ?? ??????? ?????? ?? ?? ????? ????? ??-?? ???? -?? ?? ????? ????? ???? ?? ??? ???-?? ??? ?? ?????????? ?? ???- ??? ?? | ???? ?? ??? ??????????? ?? ??? ?? ?? ????? ?? ??-?? '-? ??? ?? ???? ?? ??????? ?-? ????? '-?? ??'? '??? ??? ??? ?? ????? ?? ??-?? ?? ?? ?? ?? ??????? ??-?? ?? | 15. Vide order dated 7-4-2010 upon the application filed by Respondent No. 1 record was called along with the ballot papers. On 29-4-2010 Smt. Usha Singh, Tehsildar who was Election Officer was examined. During course of examination in Chief Counsel for the Respondent prayed that he be permitted to open the envelop in which ballots were kept to prove that the ballot paper is not on the Form B as per Rule (iii) of Rule 10 of the Rules, therefore, entire procedure is illegal. This prayer was opposed by the Counsel for the Petitioner. The prayer was rejected and witness was directed to open the envelop wherein ballot papers were kept. This prayer was opposed by the Counsel for the Petitioner. The prayer was rejected and witness was directed to open the envelop wherein ballot papers were kept. 16. From the aforesaid fact it is evident that the prayer was made for opening the envelop wherein the ballot papers were kept, to verify whether the ballot papers were on Form B as per Rule 10 (iii) or not. This was not the case of Respondent No. 1 in the petition. The case of the Respondent was that two ballot papers have wrongly been rejected. Since it was not the case of Respondent No. 1 in the election petition that the ballot paper is not on Form B as prescribed in Sub-rule (iii) of Rule 10 of the Rules and also it was not materially affecting the election, therefore, there was no justification on the part of learned Trial Court to allow the witness to open the sealed cover in which ballot papers were kept. However, the election petition filed by Respondent No. 1 has not been allowed on that count. In the facts and circumstances of the case, petition filed by the Petitioner is allowed and the impugned order whereby election of Respondent No. 1 is declared as void, is set aside and also the order which was passed on 29-4-2010 in the order-sheet and also in the deposition of Smt. Usha Singh is set aside and the case is remanded to the learned trial Court to redecide the petition on the ground stated in Para 5 of Election Petition, which has been quoted hereinabove. Learned trial Court is directed to pass the order regarding necessity of opening of sealed cover to examine the validity of two invalid votes. Parties are directed to remain present before the learned Court below on 3-12-2010. Leaned trial Court is directed to redecide the petition within a period of three weeks. 17. With the aforesaid observations, petition stands disposed of. No order as to costs.