JUDGMENT : R.N. Biswal, J. - The Petitioner has filed this Writ Petition challenging the Judgment & Order Dated 5.1.2009 passed by the Learned District Judge, Cuttack, in Election Appeal No. 15 of 2008 wherein he allowed the appeal & set aside the Judgment & Order Dated 22.2.2008 passed by Learned civil Judge (Sr. Division) 2nd Court, Cuttack In Election Misc. Case No. 2 of 2007 filed by Opp. Party No. 1, & declared the election of the present Petitioner to the seat of Panchayat Samiti Member of Salipur Panchayat Samiti under Raisunguda constituency as void & further declared that Opp. Party No. 1 was duly elected for the said seat. 2. As per the case of Opp. Party No. 1 (election Petitioner), he along with three others including the Petitioner contested for the seat of member of Salipur Panchayat Samiti from Raisunguda constituency. Polling was held on 17.2.2007. On counting, Petitioner was found to have secured 1753 votes & opp. Party No. 1, 1773 votes. The result of the election was declared by the Election Officer (Opp. Party No. 2) on 24.2.2007, declaring Opp. Party No. 1 as elected, but a few minutes thereafter the Election Officer proceeded to recount the votes, without any formal application on behalf of the Petitioner & despite objection raised by the polling agent of Opp. Party No. 1. At the time of recording, some ballot papers cast in favour of the Opp. Party No. 1 were found missing & some fictitious ballot papers found in unsealed packets were illegally counted in favour of the Petitioner. After such recounting, the Election Officer declared Opp. Party No. 1 to have secured 1757 valid votes as against 1763 votes polled by the Petitioner. Thereafter, the Election Officer declared the Petitioner as elected Samitl member of Raisunguda constituency. 3. The Petitioner in his written statement filed before the election tribunal denied the allegations made against him & the Election Officer & contended that there were 23 election booths in Salipur Panchayat Samiti. After the election was over on 24.2.2007, the Presiding Officers of all the 23 booths sent their respective documents, including the ballot; papers under sealed packets to the Election Officer. All the sealed packets were opened in presence of the candidates & their agents. No packet was found in unsealed condition. After the election was over on 24.2.2007, the Presiding Officers of all the 23 booths sent their respective documents, including the ballot; papers under sealed packets to the Election Officer. All the sealed packets were opened in presence of the candidates & their agents. No packet was found in unsealed condition. After declaration of the result, since counting of votes at the suspicious instance was made in a manner, the first Petitioner demanded recounting of votes by filing an application. There was no objection from the side of Opp. Party No. 1. So, the votes were recounted, & as it was found that the Petitioner polled more votes than Opp. Party No. 1, the Election Officer rightly declared him as the elected Samiti member. 4. The Election Officer, Opp. Party No. 2 filed a separate written statement denying the averments made in the election petition. He pleaded that the polling agent of Petitioner made a written application for recounting of votes & accordingly the ballot papers were recounted. It is his further case that all the documents, including the ballot papers were received from the concerned presiding officers in sealed condition & the same were opened in presence of the candidates at the time of recounting. No objection was raised by Opp. Party No. 1 or his agent. After recounting, it was found that Opp. Party No. 1 had polled 1757 valid votes & the Petitioner 1763 votes. Accordingly, the Petitioner was rightly declared elected. 5. To establish his case before the Learned Civil Judge (Sr. Division) 2nd Court, Cuttack, the election Petitioner examined 3 witnesses & the Opp. Party No. 1 therein also examined equal number of witnesses. Besides adducing oral evidence, they also filed some documentary evidence. After assessing the evidence on record, the Trial Court dismissed the election Misc. case holding that there was no allegation of improper acceptance or rejection of votes during recounting & that the Petitioner therein did not make out a, ground for recounting of ballot papers. 6. Being dissatisfied with the said Judgment & order, the election Petitioner preferred election appeal No. 15 of 2008. case holding that there was no allegation of improper acceptance or rejection of votes during recounting & that the Petitioner therein did not make out a, ground for recounting of ballot papers. 6. Being dissatisfied with the said Judgment & order, the election Petitioner preferred election appeal No. 15 of 2008. After hearing Learned Counsel for the petites, the Appellate Court allowed the appeal & set aside the Judgment & order of the Trial Court, inter alia, holding that Rule 31(7) of the Panchayat Samiti Election Rules 1991 (here-in-after referred to as 'the Rules') envisages that any application to recount must disclose the ground for such recounting, but Ext. 4, the application filed by O.P.W. No. 2 does not contain any such ground that Sub-rule (8) & (9) of Rule 31 of the Rules require the Election Officer to allow or reject any application for recounting in writing with reason therefore, but the Election Officer has not assigned any reason in allowing the application of O.P.W. No. 2 for recounting of votes & that the breach of the aforesaid rules materially affected the result of the election & further declared the Appellant to have been duly elected to the office of Samiti member of Salipur Panchayat Samiti vide Order Dated 5.1.2009. Being aggrieved with the said order, Respondent No. 1 has preferred this Writ Petition. 7. As per Sub-rule (7) of Rule 31 of the Rules, if declaration under Sub-rule-(4) has been made, a candidate or, in his absence, his polling agent may apply in writing to the Election Officer to recount the votes either wholly or in part, stating the grounds for such recounting. Sub-rule (4) of the said Rule postulates that the candidate securing maximum number of votes in a samiti constituency shall be declared as duly elected. A combined reading of both the provisions connotes that after the result of election is declared, a candidate, or in his absence, his polling agent may apply to the election officer in writing with reasons to recount the votes. "Polling Agent" as defined under Rule 2(1) (j) means a person duly authorized by a contesting candidate to attend on his behalf the polling of votes at one or more polling stations or places specified for counting of votes. "Polling Agent" as defined under Rule 2(1) (j) means a person duly authorized by a contesting candidate to attend on his behalf the polling of votes at one or more polling stations or places specified for counting of votes. As per this definition, a polling agent :an be engaged either to attend the polling of votes in the polling station/stations or the counting of votes in the centre/centres specified, on behalf of the candidate engaging him. In the case at hand, as borne out from the evidence on record, O. P.W. No. 2 admitted that on the date of election, there was no agent of the present Petitioner. On the date of declaration of election result at 7.30 A.M., he met the Petitioner in his residence. The latter told him that he would send authorization letter to the election officer authorizing him to remain present on the recounting table. Ext.5 is the letter addressed by the Petitioner to the Election Officer authorizing O.P.W. No. 2 to remain present on the recounting table. As stated earlier on the date of declaration of the result of the election, he met the Petitioner, meaning thereby that the polling had already been completed by that time. But, he can remain present in the counting centre while counting or recounting the votes. So, the fining of the Appellate Court that the polling agent can only attend polling station/stations on behalf of the contesting candidate during polling of votes, but not the places specified for counting of votes cannot be accepted. But, in the present case since O.P.W. No. 2 was not present at the time of polling of votes nor he was present at the time of counting, there was no occasion ? for him to be aware of any mischief, if any, committed at the time of counting. In Ext. 4, O.P.W. No. 2 applied to the Election Officer for recounting of votes as he was not satisfied with the result declared. He did not give the ground of his dissatisfaction. 8. As required under Sub-rules (7) (8) & (9) of Rule 31 of the Rules, the Election Officer must give reasons in writing while allowing or rejecting an application for recounting of votes. But, in the instant case the Election officer has not assigned any reason, while allowing the application for recounting. 8. As required under Sub-rules (7) (8) & (9) of Rule 31 of the Rules, the Election Officer must give reasons in writing while allowing or rejecting an application for recounting of votes. But, in the instant case the Election officer has not assigned any reason, while allowing the application for recounting. So, there was complete violation of Sub-rules (7), (8) & (9) of Rule 31 of the Rules. 9. Learned Counsel appearing for the Petitioner submitted that Sub-section (1) of Section 44L of the Act enumerates the grounds on which the election of the returned candidate can be declared void. Clause (e) of Sub-section (1) of Section 44L lays down that if there has been any non-compliance with, or breach of any of the provisions of the Act or the rules made there under, the election can be declared void. Sub-section (2) of Section 44L further lays down that the election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or the officers charged with carrying out the provisions of this Act or of any rules made there under, unless such mistake, error, irregularity or informality has materially affected the result of the election. According to Learned Counsel for the Petitioner, even if it is held that there was violation of Sub-rules (7), (8) & (9) of Rule 31' of the Rules, still then, if the same does not materially affect the result of the election, the election of the returned candidate cannot be declared void. According to him, Sub-section (2) of Section 44L is in the nature of proviso to Clause (e) of Sub-Election (1) of Section 44L. Both the Courts below also held so. Now the question is whether violation of Sub-rules (7), (8) & (9) of Rule 31 of the Rules materially affected the result of the election? The answer would be, due to the violation of those provisions, the ballot papers were illegally recounted & consequentially the result was reversed. So, it cannot be said that the said errors did not materially affect the result of the election. 10. The answer would be, due to the violation of those provisions, the ballot papers were illegally recounted & consequentially the result was reversed. So, it cannot be said that the said errors did not materially affect the result of the election. 10. Learned Counsel for the Petitioner further submitted that there is no pleading in the election petition to show that violation of the aforesaid provisions materially affected the result of the election, so far the returned candidate is concerned. So, according to Learned Counsel for the Petitioner, In view of the decision Ram Sukh Vs. Dinesh Aggarwal the election of the Petitioner cannot be declared void. The aforesaid decision relates to the election to the State Legislative Assembly, & as such, it is a case under the Representation of the People Act. The relevant portion of Section 100 of the said Act which was also quoted in the said decision reads as follows: 100- Grounds for declaring election to be void- (1) subject to the provisions of Sub-section (2), if the High Court is of opinion- Xx x (d) that the result of the election, in so far as it concerns a returned candidate has been materially affected. (emphasis supplied) X xx (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. So as quoted above, as per Clause (d) of Sub-section (1) of Section 100, if the High Court is of opinion that, the result of the election insofar as it concerns a returned candidate has been materially affected, the High Court shall declare the election of the returned candidate as void. But, in Sub-section (2), of Section 44L of the Act, there is no provision like insofar as it concerns a returned candidate. According to Section 44L of the Act the Subordinate Judge shall declare the election of the returned candidate void, if in his opinion, there has been any non-compliance with order, breach of any provision of the Act or the Rules made there under subject to Sub-section (2) of the said Section. So, the decision Ram Sukh (supra) would not be applicable to the present case. 11. So, the decision Ram Sukh (supra) would not be applicable to the present case. 11. Learned Counsel for the Petitioner, furthermore, submitted that when there were more than two candidates in an election fray, the doctrine of thrown away is not applicable, as in the present case. So, the Appellate Court should not have declared Opp. Party No. 1 to have been duly elected as the Samiti member of Salipur Panchayat Samiti representing Raisunguda Gram Panchayat. In support of his submission, he relied on the decision Rupadhar Pujari v. Gangadhar Bhatra 2005 (I) OLR 26. The said decision is not applicable to the present case. In the case at hand, there is no dispute that there were four candidates in the election fray. Admittedly, the Petitioner & Opp. Party No. 1 secured more votes than the other two candidates. In the first round of counting, Opp. Party No. 1 secured the highest number of votes. In recounting which was done illegally, the Petitioner was found to have secured maximum number of votes, & as such, he was declared to have been duly elected. Had there been no such illegal recounting the Petitioner would not have been declared so. As such the Appellate Court rightly declared the Opp. Party No. 1 to have been duly elected as the Samiti Member of Salipur Panchayat Samiti, representing Raisunguda Gram Panchayat. The doctrine of thrown away would not be applicable here. 12. Under such circumstances, I do not find any illegality or impropriety in the Judgment passed by the Appellate Court & as such, the Writ Petition stands dismissed. No cost. Final Result : Dismissed