JUDGEMENT Dipak Misra, J. 1. Questioning the legal acceptability and defensibility of the order dated 23.12.2009 passed by the learned Single Judge in C.W.J.C. No. 5126 of 2009, the present intra-Court appeal has been preferred by the 4th respondent to the writ petition. 2. The election for the post of Mukhiya, Gram Panchayat-Raj-Dhokraha, Block-Majhaulia, District-West Champaran was held on 27.5.2006 and votes were counted on 15.6.2006. The appellant secured 1392 valid votes and the respondent no.4-writ petitioner (hereinafter referred to as the 4th respondent) secured 1210 valid votes. The respondent no. 5 secured 151 valid votes. The appellant was declared elected as she had secured the highest number of votes and a certificate in the prescribed proforma was issued in her favour. At the time of announcement of the result, no applications were made seeking recount of votes as provided under Rule 79 of the Bihar Panchayat Election Rules, 2006 (for short the 2006 Rules). At the time of recounting, as set forth by the appellant, the Returning Officer had not counted the votes which did not have the distinguishing mark, namely, Swastika Mark in favour of any candidate, keeping in view the guidelines issued by the State Election Commission. 3. The 4th respondent filed Election Petition No. 25/06 before the learned Munsif, West Champaran at Bettiah, the Election Tribunal under the Bihar Panchayat Raj Act, 2006 (for brevity the Act), assailing the election of the appellant on the ground that illegalities and irregularities had been committed by the Returning Officer at the time of counting of ballot papers. It was contended that the votes polled in her favour without Swastika Mark had illegally been rejected by the Returning Officer. The Returning Officer filed a written statement before the Tribunal that as per the 2006 Rules and the guidelines issued by the State Election Commission, the votes were rejected as there was faulty mark and, hence, it cannot be construed that there had been improper rejection of votes by the Returning Officer. 4. The Returning Officer filed a written statement before the Tribunal that as per the 2006 Rules and the guidelines issued by the State Election Commission, the votes were rejected as there was faulty mark and, hence, it cannot be construed that there had been improper rejection of votes by the Returning Officer. 4. The learned Munsif appreciating the material brought on record came to hold that the election petitioner had failed to prove the rejected votes in exact number; that no application was filed under Rule 79 of the 2006 Rules; that no illegality was committed in the counting of votes; that no valid votes were improperly rejected and, hence, there was no warrant or justification to interfere with the election of the elected candidate. Being of this view, the Election Tribunal dismissed the election petition. 5. Being dissatisfied with the aforesaid order, the election petitioner assailed it invoking the extraordinary jurisdiction of this Court. The learned Single Judge after referring to the decisions rendered in T.H. Musthaffa V/s. M.P. Varghese & Ors., AIR 2000 SC 153 , Era Sezhiyan V/s. T.R. Baly & Ors., AIR 1990 SC 838 , Hari Shankar Prasad V/s. Shahid Ali Khan & Ors., AIR 2003 SC 1302 and Babita Devi & Ors. The learned Single Judge after referring to the decisions rendered in T.H. Musthaffa V/s. M.P. Varghese & Ors., AIR 2000 SC 153 , Era Sezhiyan V/s. T.R. Baly & Ors., AIR 1990 SC 838 , Hari Shankar Prasad V/s. Shahid Ali Khan & Ors., AIR 2003 SC 1302 and Babita Devi & Ors. V/s. The State of Bihar & Ors., 2006(3) PLJR 382 came to opine that the fact that the Swastika Mark was defaced is not in dispute; that it was because of the poor quality of markers supplied for which the Election Commission itself had taken serious action; that if on the said ground without counting such votes a candidate is allowed to be defeated, it would be adding insult to the injury; that the observations in L.P.A. No. 164 of 2008 would go a long way to show that material evidence is to be led in course of trial of the election petition and the decision does not say or cannot be treated to have held that such evidence cannot be led or considered in an election petition; that though, the question was raised before the Tribunal and the Tribunal had taken note of it in paragraph 20 of the order, yet the same has not been accepted by it by holding that the election petitioner had failed to prove the number of such invalid votes; that once the Election Tribunal recorded a finding that the votes were indeed declared as invalid on the ground of defective "Swastika Mark due to defective markers supplied by the Election Commission which compelled the voters to use the defective markers, then those votes could not have been declared invalid; that it was incumbent upon the Election Tribunal to get the invalid votes scrutinized and, if they were declared invalid solely because of defective markers being used, that had to be declared valid in whose favour they were cast; that regard being had to the factual matrix and the scrutiny that is required to be done, the order passed by the learned Munsif deserved to be lan- ceted and the matter was to be remanded for recount and be decided on the basis of recount. 6. We have heard Mr. Y.V. Giri, learned senior counsel alongwith Mr. Birendra Kumar for the appellant, Mr. S.B.K. Mangalam, learned counsel alongwith Miss Anamika Dubey for the 4th respondent and Mr. 6. We have heard Mr. Y.V. Giri, learned senior counsel alongwith Mr. Birendra Kumar for the appellant, Mr. S.B.K. Mangalam, learned counsel alongwith Miss Anamika Dubey for the 4th respondent and Mr. R.S. Pradhan, learned senior counsel alongwith Mr. Sanjeev Nikesh for the State Election Commission. 7. Mr. Giri, learned senior counsel, has raised the following contentions: (a) It is not disputed that when the counting was over, an application under Rule 79 of the Bihar Panchayat Election Rules, 2006 was not filed and, therefore, the principle laid down in Hoshila Tiwari V/s. State of Bihar & Ors., 2008(4) PLJR (SC)62 would squarely get attracted and it would defeat the prayer for recounting, inasmuch as, no acceptable explanation was offered in the election petition for not filing the application as postulated in the Rules. (b) The explanation which is required to be given as per the decision rendered in Hoshila Tiwari (supra) cannot be vague but has to be concrete as has been enunciated in Anita Devi V/s. State of Bihar & Ors., 2010(1) PLJR 93 . (c) The election petitioner in paragraph no. 19 had only stated that he had made a request for recount of votes which was rejected but that would not suffice. That apart, an application was filed after expiry of sixteen days which is an afterthought. Thereafter, an application was filed by the father-in-law of the election petitioner, stating, inter alia, that he is a social activist though he has no authority in law to file such an application. (d) The finding that has been recorded by the Tribunal in paragraph nos. 15 and 16 has not been dealt with by the learned Single Judge as a result of which the order passed by him for recount is indefensible. (e) The pleadings in paragraph nos. 9 to 12 of the election petition do not specifically state with material particulars that the election petitioners votes were rejected despite the intention of the voter being clear. Quite apart from above, there is no pleading with regard to the exact number of ballot papers on which mark was affixed on the symbol allotted to the petitioner. What has been stated therein is that so many ballot papers were rejected and, therefore, the election is vitiated. Quite apart from above, there is no pleading with regard to the exact number of ballot papers on which mark was affixed on the symbol allotted to the petitioner. What has been stated therein is that so many ballot papers were rejected and, therefore, the election is vitiated. (f) If the recount is allowed, there would be a roving enquiry which is impermissible in law regard being had to the well settled proposition of law pertaining to recount of votes. 8. Mr. Mangalam, learned counsel for the respondents, per contra, contended that when there is an instruction from the Election Commission not to count the votes where the Swastika Mark was not clear, filing of an application under Rule 79 would have been an exercise in futility. The non-filing of application cannot be an impediment for recount of votes to the case at hand as the voters had not cast their votes with any other instrument but with the one supplied by the Returning Officer and hence, Rule 75 does not get attracted. In support of the said proposition, he has commended us to Sashi Bhushan V/s. Prof. Balraj Madhok & Ors., AIR 1972 SC 1251 , Sohan Lal V/s. Babu Gandhi and Ors., (2003)1 SCC 108 and Hari Shankar Prasad V/s. Shahid Ali Khan and Others, (2003)10 SCC 101 . 9. In Babita Devi V/s. State of Bihar & Ors. and Other connected matters, 2006 (3) PLJR 382, a batch of writ petitions were filed raising the issue whether the ballot papers marked with only the wooden portion of the instrument (commonly called a stamp) were rightly rejected by the authorities concerned while counting the votes cast by the voters. The learned Single Judge took note of the fact that the wooden stamps with rubber Swastik Marks on the ends were supplied by the State Election Commission to all the booths for the use of voters for marking the ballots, but at many booths, the rubber containing the Swastik Mark got detached and the Polling Officers of such booths allowed the voters to use the wooden portion of the said stamps for marking their ballots. It was contended before the learned Single Judge that the voters and the candidates raised their objections immediately before the authorities concerned, but no heed was paid to it by the Commission. It was contended before the learned Single Judge that the voters and the candidates raised their objections immediately before the authorities concerned, but no heed was paid to it by the Commission. The learned Single Judge, after referring to the amenability of such an issue under Article 226 of the Constitution, has opined thus: "7. Furthermore, Rule 75(1)(chh) of the Rules prescribes that ballot papers in the ballot box will be rejected if the mark put thereon is by an instrument other than the instrument provided, but in the instant cases, the marks put on the ballot papers are not by any other instrument rather they are by the same instrument provided by the Commission, although the rubber marks were detached. Hence, the Commission should have come out with a specific stand with respect to the matter and if they have not yet taken any stand thereon, it is high time that they realize the gravity of the situation and take a final decision in respect thereof without any further delay so that such matter can be validly and uniformly decided by the authorities concerned. 8. In any view of the matter, Section 137 of the Act and Rule 106 of the Rules specifically provide that no election shall be called in question except by an election petition as prescribed under the said Section and Rule whereas Section 139 of the Act provides the grounds for declaring election to be void in which sub-section (1)(d)(iii) provides that if the result of the election insofar as it concerns as returned candidate has been materially affected by improper reception, refusal or rejection of any vote, which is void, the prescribed authority shall declare the election of the returned candidate to be void. In the aforesaid circumstances, the grievance of the petitioners mentioned above as well as other grievance can very well be redressed under the said provisions of law as the authorities provided under the said provisions are fully competent to decide such matters in accordance with law after considering the pleadings and evidence of the parties as well as specific provisions of law including case laws." 10. In Meera Devi V/s. The Bihar State Election Commission & Ors., 2008(2) PLJR 530 , the learned Single Bench referred to the decision in Suresh Kumar (supra) and many other decisions and eventually held thus: "19. In Meera Devi V/s. The Bihar State Election Commission & Ors., 2008(2) PLJR 530 , the learned Single Bench referred to the decision in Suresh Kumar (supra) and many other decisions and eventually held thus: "19. In my view, as the voting pattern noted above, would show in the present case, because of the wrong stand generally taken by the State Election Commission and held to be wrong by this Court herein one cannot say with any amount of certainty as to whether the result reflect the true will of the people. The margin of the defeat is only 67 votes whereas over 1800 votes were declared invalid. Such situations in large number of constituencies where such a defect has taken place cannot but be ruled out. If by virtue of a wrong decision of the State Election Commission, the election process does not reflect the true will of the people then what good is the election for are we to be governed by people whom we have not been elected but got elected because of default of the Election Commission. I do not think this can be countenanced in any society, which has faith in democratic values and is based on democratic principle. 20. In my view, justice would be done if wherever the policy decision of the Election Commission or the principle contained therein has been applied and the same is questioned, then the authority would act holding the views of Election Commission, as impugned, to be wrong and the correct view to be taken as enunciated by the Apex Court as this Court noticed above and act accordingly. The Election Commission would be well advised to withdraw its decision and direct that wherever votes have been rejected consistent with the view of the State Election Commission or the principle contained therein, which has been held to be erroneous by this Court, the action have to be reversed after scrutiny. 21. In other words the State Election Commission would be obliged to undo the effects of its wrong decision." 11. The said decision came to be challenged in appeal in Bihar State Election Commission & Ors. V/s. Meera Devi & Ors., 2008(4) PLJR 114, in which the Division Bench set aside the order passed by the learned Single Judge and held as follows: "8. The said decision came to be challenged in appeal in Bihar State Election Commission & Ors. V/s. Meera Devi & Ors., 2008(4) PLJR 114, in which the Division Bench set aside the order passed by the learned Single Judge and held as follows: "8. In so far as election matters are concerned, there is an appropriate forum authorized by law to go into all questions relating to election. The violation alleged to have been committed by the Commission by supplying defective stamps does not violate any constitutional provision or law. Furthermore, it has not come on record in the form of evidence that the voters used stamps supplied by the Commission which were incapable of producing appropriate marks. 9. In the first mentioned appeal, it was the contention of the respondents- writ petitioners that out of 3375 votes cast in the constituency, 1850 had been rejected and the difference between the winning candidate and the respondent- writ petitioner was 67 votes. It was well within the competence of the respondent-writ petitioner to prove before the prescribed authority on an election petition that rejection of 1850 votes in the facts and circumstances of the case was improper. Only upon obtaining such a favourable adjudication on the election petition, the writ petitioner could avoid the lost election." 12. After so holding, the Division Bench referred to Section 139 of the Act and thereafter proceeded to state as follows: "11. Learned counsel for the respondents-writ petitioners submitted that in relation to the subject matter in dispute we must pronounce something so that on the basis thereof the election petitions pending before the Election Tribunals may be decided. In absence of evidence that stamps supplied by the Commission were faulty, and it is the Commission who compelled the voters to vote in the manner they voted in the rejected ballots, we can only say that the Commission was right while holding out repeatedly that in view of the law made by the State, a ballot without the mark made by the election stamp should be rejected." 13. The Apex Court in Hari Shankar Prasad V/s. Shahid Ali Khan & Ors., 2003(2) PLJR 152 was considering the direction issued by the Election Commission to the effect that if the Presiding Officer or the polling staff has, by mistake, supplied the distinguishing mark stamp to the voters for marking the ballot papers, the ballot papers so marked should not be rejected. The Returning Officer rejected the same. The High Court while dealing with the election petition opined that the allegations had neither been proved nor any such allegation was ever made before at any point of time. The Apex Court, after referring to the instructions issued by the Election Commission, took note of the statement of the Returning Officer in evidence wherein he had stated that the distinguishing marks and the seals in those ballots had not been enquired and verified specifically from the polling staff. After analyzing the said factual scenario, their Lordships have opined that the High Court had clearly erred in placing reliance upon the order of the Returning Officer which was based on no enquiry much less from the concerned persons who could throw light on the fact. It is worth noting that their Lordships took note of the decisions rendered in Shri Manni Lal V/s. Shri Parmai Lal and Ors., (1970)2 SCC p. 462, and T.H. Musthaffa V/s. M.P. Varghese & Ors., (1999)8 SCC p. 692 and expressed the view as follows: "17. On consideration of all the material available on the record, we find that the wrong stamp was made available to the voters by the Polling Officer. That being the position, such of the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they are to be counted in favour of the petitioner-appellant also as per the directions of the Election Commission. The margin of vote between two contenders is only 35 votes, counting 90 votes in favour of the appellant would provide a lead of 55 votes to the petitioner-appellant who would be entitled for being declared elected." 14. Be it noted, 90 ballot papers polled in favour of the appellant were rejected because of wrong rubber seal meant for putting distinguishing mark provided by the polling staff to the voters and the same continued to be used while casting their votes during the first one and a half hours. 15. Be it noted, 90 ballot papers polled in favour of the appellant were rejected because of wrong rubber seal meant for putting distinguishing mark provided by the polling staff to the voters and the same continued to be used while casting their votes during the first one and a half hours. 15. We have referred to the aforesaid decisions only to highlight what has been stated by this Court and the Apex Court with regard to the instructions given by the Election Commission. 16. The fulcrum of the matter is whether in the obtaining factual matrix, a recount could have been directed. Rule 75 of the Rules which deals with the scrutiny of the ballot papers and their rejection reads as under: 75. Scrutiny of the ballot papers and their rejection. (1) At any ballot paper contained in the ballot box shall be rejected on the following grounds, if (a) it bears any mark or writing by which the elector can be identified; or (b) the ballot paper is fictitious; or (c) it has been so damaged or mutilated that its identity cannot be established; or (d) it does not bear the distinguishing mark or the signature of the Presiding Officer; or (e) no vote is recorded on the ballot paper; or (f) voting marks have been put in the column of more than one candidate; or (g) the mark on the ballot paper has been made by an instrument other than the prescribed one; or (h) the ballot papers are not printed in accordance with the name of the candidate or candidates, serial number and symbol allotted to a candidate as recorded in Form 9; or (i) other grounds prescribed by a general or special direction of the Commission: Provided that, where the Returning Officer or the Officer authorised by him/ her is satisfied that any such defect mentioned in clause (d) has been caused by any mistake or failure on the part of a Presiding Officer or the Polling Officer, he may direct that the ballot papers shall not be rejected merely on the ground of such defect under clause (d): Provided further that, if the mark made by the voter extends to two columns of the ballot paper, the same will be counted in favour of the candidate in whose column the major part of such mark falls. (2) The Returning Officer or the Officer authorised by him/her shall, before rejecting the ballot-paper under sub- rule (1), give reasonable opportunity to each Counting Agent present to inspect the ballot paper there, but shall not allow him to handle any ballot paper. (3) The Returning Officer or the Officer authorised by him/her shall endorse the word "rejected" on the ballot paper so rejected and record the grounds of rejection either, by hand or by a rubber stamp. (4) The rejected ballot papers shall be bundled together. 17. Rule 79 of the Rules which provides for recounting of votes is as follows: 79. Recounting of votes. The candidate or in his/her absence his/her election agent or counting agent may make a written application to the Returning Officer or the Officer authorised by him/ her for recounting of votes stating therein the grounds for the same. (2) The Returning Officer or the Officer authorised by him/her may, fully or partially, accept or reject the application stating the reasons for the same. (3) If the Returning Officer or the Officer authorised by him/her accepts fully or partially the application under sub-rule (2), he/she shall get the ballot papers recounted and amend the result of the counting in the form prescribed in sub-rule (2) of Rule 76 and declare the result. (4) After that, any application for further recounting shall not be entertained. 18. The Apex Court in Hoshila Tiwari (suupra), while interpreting Rule 29, has held as follows: "11. From the above it is clear that making of an application under Rule 79 of the Rules is a mandatory requirement. The learned Single Judge of the High Court though correctly understood the law laid down by this Court in regard to the application of Rule 79 still distinguishing the same came to the conclusion that a prayer can be made even before the Election Tribunal provided the required ingredients to establish the course for not making the application by the election petitioner in the election petition is shown. Learned counsel appearing for the respondent referring para 25 of this Courts judgment in Chandrika Prasad Yadav contended that even this Court has accepted the above position in law that making of a request in election petition of recounting is not totally excluded. Learned counsel appearing for the respondent referring para 25 of this Courts judgment in Chandrika Prasad Yadav contended that even this Court has accepted the above position in law that making of a request in election petition of recounting is not totally excluded. As noted above we have no quarrel with this proposition provided in the election petition or in the subsequent prayer made by the aggrieved party produces sufficient explanation or material to show that in fact he was prevented by certain prevailing material situation for not making that application. In the present case we have examined the election petition carefully and we do not find any explanation offered by the election petitioner for not making an application as required under Rule 79 of the Rules. Learned counsel for the respondent points out that at a later stage a fax message sent to Chief Election Commissioner which in fact is disputed by the learned counsel for the appellant. Be that as it may, that fax cannot be treated as an application under Rule 79. Thus though mere may be an opportunity available for the aggrieved party to make a complaint before the Election Tribunal that he was prevented from making an application under Rule 79 for good reasons, in the instant case such a plea has not been raised before the Election Tribunal and the courts below had erred in granting relief made by the respondent." 19. In Anita Devi (supra), a Division Bench of this Court, after referring to the decision rendered in Chandrika Prasad Yadav V/s State of Bihar and Others, (2004)6 SCC 331 [: 2004(3) PLJR (SC)133] and the decision in Hoshila Tiwari (supra), has held thus: "4. On behalf of respondent/writ petitioner it was submitted that there is no quarrel with the aforesaid proposition of law but on perusal of paragraph-5 of the election petition, it would be clear that no specific case has been made out that a petition under Rule 79 of the Rules was prepared and was attempted to be handed over to the Returning Officer but was not accepted by him. It was further pointed out that as per pleadings there was no extra-ordinary situation or material impediment which could prevent the election petitioner from preferring the required application under Rule 79 of the Rules. 5. It was further pointed out that as per pleadings there was no extra-ordinary situation or material impediment which could prevent the election petitioner from preferring the required application under Rule 79 of the Rules. 5. We have considered the averments made in paragraph-5 of the election petition with care and find that only general and vague allegations have been made that the Returning Officer, respondent no. 6 was in collusion with the successful candidate, respondent no. 1 and as a result of such collusion the Returning Officer did not listen to protest by the agents of the election petitioner and no action was taken by him. 6. The law is well settled by the Apex Court in the case of Chandrika Prasad Yadav (supra) that ordinarily, the statutory remedy to seek recounting provided under the Rules shall be availed of. If it is not done by the election petitioner, he has to state the reasons and furnish sufficient explanation as to why such statutory remedy was not availed, of. The explanation furnished in the present case as noticed above does not give particulars of the facts and circumstances which could show that the election petitioner was in fact prevented by those prevailing material situation from making the required application under Rule 79 of the Rules." 20. In the case at hand, the only explanation that has been offered is though a request was made, yet no action was taken. 21. Mr. Mangalam, learned counsel for the respondent, submitted that when the Election Commission had already issued instructions that the said votes would not be counted, filing of an application under Rule 79 cannot be regarded as prerequisite and, in fact, the same would have been an exercise in futility. It is urged by him that the voters were voting with the instrument that. had been provided by the Returning Officer. It is his further submission that an oral request was made which was not accepted. Regard being had to the pronouncement of law in Chandrika Prasad Yadav (supra), Hoshila Tiwari (supra) and Anita Devi (supra), there can be no shadow of doubt that the explanation that has been offered for not filing an application under Rule 79 is totally vague and by no stretch of imagination can be regarded as a proper explanation. Regard being had to the pronouncement of law in Chandrika Prasad Yadav (supra), Hoshila Tiwari (supra) and Anita Devi (supra), there can be no shadow of doubt that the explanation that has been offered for not filing an application under Rule 79 is totally vague and by no stretch of imagination can be regarded as a proper explanation. The submission that it would have been an exercise in futility is also unacceptable as the election petitioner had the real intention to raise a cavil over the same. That apart, it is noticed, two applications for recount were filed after 16 days which have no meaning in the eye of law. The complaint that was lodged by the father-in-law is unacceptable. Therefore, we have no hesitation in holding that no proper explanation was given for not filing an application under Rule 79 and, therefore, there could not have been a prayer for recount before the Tribunal. 22. Though we have held that the prayer for recount was not entertainable in the absence of a proper explanation for not filing an application under Rule 79 immediately and the applications filed after the expiration of the stipulated period which has no meaning in the eye of law, yet we also think it apposite to dwell upon whether a case was made out for recount of votes. On a perusal of paragraphs 9 to 12 of the election petition, it is perceivable that there is no specific allegation that the instrument of distinguishing mark was on the symbol allotted to the election petitioner. To have a complete picture of the factual scenario, we think it is seemly to reproduce the said paragraphs: "9. That the counting of the votes of this Gram Panchayat was started on 15.6.2006 and counting was made during the night also against the directions of the State Election Commission and on any times during the night the electricity failure and start of generator made possible for counting personnels to add the ballot papers of the plaintiff with the ballot papers of defendant, no. I and got her defeated by a margin of 183 votes. Not only that a large number of votes of plaintiff/petitioner are rejected during the counting for example at Booth No. 61 of Ward No. 1. The total number of votes polled was 210 and number of rejected votes are 62. I and got her defeated by a margin of 183 votes. Not only that a large number of votes of plaintiff/petitioner are rejected during the counting for example at Booth No. 61 of Ward No. 1. The total number of votes polled was 210 and number of rejected votes are 62. Similarly on Booth No. 62 the total number of votes polled is 277 out of which 135 had been rejected and on Booth No. 63 the total votes polled is 385 and the numbers of rejected votes are 175. Besides on Booth No. 66 the Total No. of votes polled is 317 and the rejected number of votes are 165. 10. That, the total numbers of votes from Booth No. 61 to 66 which fall in Village-Shikarpur of the plaintiffs village and the total numbers of votes rejected are 758 where as in Village- Dhokraha, the village of the defendant no. 1 there were three booths 69 to 71 the number of votes rejected are only 64 and the votes polled are 934. 11. That, this alone indicates that the double standard was adopted by the counting personnels in counting the votes of plaintiff and defendant no. 1. 12. That, the reason of large scale rejection of the votes of the plaintiffs are said to be due to non-marking by rubber Swastik cross-mark which is wrong acts of the defendant no. 3 and his staff this action are wrong and illegal." 23. Relying on the aforesaid pleading, it is submitted by Mr. Mangalam that all the ballot papers that have been rejected should have been counted in favour of the election petitioner. The same is not reflected from the pleadings. It is not asserted that the mark was affixed on the symbol allotted to the respondents and the intention of the voter was clear. It is worth noting that a recount is not directed as a routine manner. In Ku. Shradha Devi V/s. Krishna Chandra Pant and Others, AIR 1982 SC 1569 , it has been held thus: "8. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. Shradha Devi V/s. Krishna Chandra Pant and Others, AIR 1982 SC 1569 , it has been held thus: "8. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error." 24. In A. Younus Kanju V/s. R.S. Unni and Others, AIR 1984 SC 960 , the election petitioner failed to offer prima facie allegation and proof of errors in the counting of ballot papers. In that context, their Lordships held as under: "The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court to justify a direction for recount." 25. In Satyanarain Dudhani V/s. Uday Kumar Singh, AIR 1993 SC 367 , it has been stated as follows: "It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order or recount cannot be granted as a matter of course. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order or recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered." 26. In Vadivelu V/s. Sundaram, and Others, (2000)8 SCC 355 , a three-Judges Bench of the Apex Court, after referring to the decisions rendered in the cases of Satyanarain Dudhani (supra), Jitendra Bahadur Singh V/s. Shri Krishna Behari, (1969)2 SCC 433 ; D.P. Sharma V/s. Commr. and Returning Officer, 1984 Supp. SCC 157; P.K.K. Shamsudeen V/s. K.A.M. Mappillai Mohindeen and Others, AIR 1989 Supreme Court 640, Ram Sweak Yadav V/s. Hussain Kamil Kidwai, AIR 1964 SC 1249 , S. Raghbir Singh Gill V/s. S. Gurucharan Singh Tohra, 1980 Supp. SCC 53; R. Narayan V/s. S. Semmalai, (1980)2 SCC 537 ; and M.R. Gopalkrishnan V/s. Thachady Prabha- karan, (1995) Supp. (2) SCC 101, expressed the view as under: "16. The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the election -petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties." 27. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties." 27. In Chandrika Yadav V/s. State of Bihar, (2004)6 SCC 331 = AIR 2004 SC 2036 [: 2004(3) PLJR (SC)133], the Apex Court has laid down the following norms: "20. It is well settled that an order of recounting 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. 21. The requirement of maintaining the secrecy of ballot papers also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting." 28. If the present factual matrix is tested on the aforesaid anvil of law, it is clear as crystal that nothing has been brought on record to show that there had been illegalities in the recount of votes. It has also not been pleaded as we have stated hereinbefore that the instrument was fixed on the symbol allotted to the election petitioner. In the case of Hari Shankar Prasad (supra), the Apex Court had taken note of the fact that the ballot papers marked by the stamp supplied was rejected by the Returning Officer and 90 votes were in favour of the election petitioner. In the absence of any specific pleading, we are of the considered opinion that a recount cannot be directed as that would tantamount to roving enquiry which is impermissible in law. 29. We will be failing in our duty if we do not refer to the decisions in Sashi Bhushan V/s. Prof. Balraj Madhok & Ors., AIR 1972 SC 1251 , Sohan Lal V/s. Babu Gandhi and Ors., (2003)1 SCC 108 and Hari Shankar Prasad V/s. Shahid Ali Khan and Others, (2003)10 SCC 101 on which Mr. Mangalam has placed heavy reliance. We will be failing in our duty if we do not refer to the decisions in Sashi Bhushan V/s. Prof. Balraj Madhok & Ors., AIR 1972 SC 1251 , Sohan Lal V/s. Babu Gandhi and Ors., (2003)1 SCC 108 and Hari Shankar Prasad V/s. Shahid Ali Khan and Others, (2003)10 SCC 101 on which Mr. Mangalam has placed heavy reliance. On a careful perusal of the said authorities, we are of the considered view that they do not render any assistance to the learned counsel for the respondents. 30. In view of our preceding analysis the appeal is allowed and the order passed by the learned Single Judge directing recount of votes is set aside. In the facts and circumstances there shall be no order as to costs.