Judgment : ORAL JUDGEMENT: The matter is finally heard by issuing Rule, making it returnable forthwith by consent of Shri R.L. Khapre, learned Counsel for Petitioner, learned A.G.P. for respondent nos. 1 and 12 and Shri Bobde, learned Counsel for respondent no.11. As only legal question needs to be decided, narration of facts separately is not necessary. 2. Petitioner, a defeated candidate is challenging the judgment dated 09.12.2009 passed by the District Judge, Akola (Division at Washim) in Election Petition No.11/2008, dismissing it. Said Election Petition is under Section 27 of the Maharashtra Zilla Parishads, Panchayat Samitis Act, 1961. 3. Shri Khapre, learned counsel appearing for petitioner has contended that the prayer made by the petitioner for recount on 02.12.2006 was accepted and recount could not be completed as in relation to votes cast at 2 polling centres i.e. Kajleshwar 5 and Kajleshwar- 6, electronic voting machine (EVM) showed memory error. The Returning Officer has overlooked this aspect and has gone by the fact that when votes were cast no objection was raised by any body at those centers. According to the learned counsel, this fact is totally irrelevant, after the request for recount came to be granted. 4. Learned A.G.P. appearing for respondent nos. 1 and 12 and Shri Bobde, learned Counsel for respondent no.11 have urged that the Returning Officer has found that thee was no inconsistency in number of postal ballots and after recount there was no change in the result. This finding is accepted by the learned District Judge-I, Washim while dismissing the Election Petition. 5. Nobody has appeared for respondent nos. 2 to 10, though they are served with notice for final disposal. They did not file any reply opposing the Election Petition before the District Court also. It is not in dispute that the elected candidate i.e. respondent no.2 is already functioning as member. The validity of the order granting recount was and is not questioned by anybody. The perusal of the document filed as Annexure-5 before this Court (Exh.41) shows that on 02.12.2008 the petitioner pointed out that there was difference in the number of votes cast and hence, he sought recount of his votes and votes received by respondent no.2. The said recount was granted. The order passed thereafter shows that at 14 centers the result remained same after recount. No recount could be conducted in relation of Kajleshwar-5 and Kajleshwar-6. The said recount was granted. The order passed thereafter shows that at 14 centers the result remained same after recount. No recount could be conducted in relation of Kajleshwar-5 and Kajleshwar-6. The other reason that there was no inconsistency in postal ballots is totally irrelevant for the purpose of said order. Recount at Kajleshwar-5 and Kajleshwar-6 has not been held as EVM developed some technical snag and was not accessible. 6. In view of this position the votes received at Kajleshar-5 and Kajleshwar-6 by petitioner or by respondent no.6 lost their relevance. Recount of these two centers was must. As it could not be held, it is apparent that there was no complete recount. The learned District Judge-1, Washim has overlooked this aspect of the matter. After recount is undertaken, original counting is meaningless and cannot be used for any purpose whatsoever. Here process of recount is still not complete. 7. Learned District Judge has misdirected the entire inquiry. There was no question of examining the validity or otherwise to the order granting recount. There was no question of parties leading evidence as fact of error in EVM machine was never in dispute. When election petitioner demonstrated that data in EVM for these two centres was destroyed, the learned District Court should have considered its impact on election process. It could not have fallen back on original result which was discarded already by the Returning Officer. Reply filed by respondent nos. 1 and 12 before this Court does not even touch this aspect of the matter. The order granting recount could not have been indirectly set at knot by the District Court. 8. Learned counsel for petitioner has stated that interest of justice can be met with by permitting fresh polling at Kajleshwar-5 and Kajleshwar-6 centres. I, do not find anything wrong in accepting the said request made. Hence, respondent nos. 1 and 12 are directed to hold fresh polling only at two centres i.e. Kajleshwar-5 and Kajleshwar-6 and thereafter to complete the incomplete recount in accordance with the law. The person securing maximum number of votes in such recount shall be declared elected for remainder of the term of the body. 9. In this situation, as respondent no.2 is already functioning as Member, she is permitted to continue as member till the result of such recount is declared. 10. Writ Petition is partly allowed. The person securing maximum number of votes in such recount shall be declared elected for remainder of the term of the body. 9. In this situation, as respondent no.2 is already functioning as Member, she is permitted to continue as member till the result of such recount is declared. 10. Writ Petition is partly allowed. Rule is made absolute in the aforesaid terms, with no order as to costs.