JUDGMENT Dev Darshan Sud, J. The petitioner has challenged the orders Annexure:P6 and Annexure:P8 passed in the election petition preferred by respondent No.3-Dinesh Kumar who was elected as Up-Pradhan of Gram Panchayat, Dehlan. 2. The order Annexure:P6 was passed by the Sub Divisional Officer (Civil) on 28.9.2012 after hearing the parties and screening the rejected ballot papers on the allegation that Counting official and A.R.O. had rejected validly polled votes and received those which were invalid. In these circumstances it was considered necessary to recount the votes polled in favour of each candidate so that valid votes may not be taken as rejected and invalid votes be not taken as accepted in favour of one or other candidate(s). The Sub Divisional Officer (Civil) directed that the recount and scrutiny of all votes for the post of Up-Pradhan would be carried out in his presence in Court on 18.10.2012 at 11 A.M. and in the presence of the contesting candidates and their counsel. The order (Annexure:P6) reads: “28.9.2011 Case called. The petitioner and the respondent are present alongwith their counsels. After careful hearing of the parties and the facts of screening of the rejected ballots paper, it is evident that the counting official and ARO have rejected validly polled votes. It is, therefore, necessary to carry out the counting of votes, again in respect of each candidate so that the issue regarding wrong rejection of valid votes and acceptance of invalid votes could be set to rest. It is therefore ordered that recount of all ballots in respect of post of Up-Pradhan shall be done in my court on 18.10.2011 at 11.00 A.M. in the presence of all contesting candidates and their learned counsels. Kanungo (Consolidation), Reader to my court and Alhmad shall assist me in recount of all votes on this day. Requisitioned the relevant record from B.D.O. Una for the same date and time. To come up on 18.10.2011. Sd/-S.D.O.(C)” 3. Vide Annexure:P8 dated 16.11.2011, the Deputy Commissioner rejected the appeal against this order filed by Dinesh Kumar respondent No.3 herein. 4. Now I proceed to the order passed by this Court before I advert to the submissions made by the learned counsel appearing for the parties. By order dated 7.12.2012, this Court directed: “..............However, the final order in the matter based on such re-counting, shall not be passed without further orders from this Court. 4. Now I proceed to the order passed by this Court before I advert to the submissions made by the learned counsel appearing for the parties. By order dated 7.12.2012, this Court directed: “..............However, the final order in the matter based on such re-counting, shall not be passed without further orders from this Court. The report of recounting shall be submitted to this Court in a sealed cover.....” Thereafter on 29.12.2012, it was directed: “...The Returning Officer shall make available report of recounting. The counsel for both sides agreed that the matter can be finally heard...” 5. The case was thereafter kept pending on the request of learned counsel appearing for the parties. I find from the record that the sealed cover containing a detailed report of recounting and its result on form No.34 has actually been placed on the record at pages 49 to 53. 6. The result shows that they were four candidates, namely, Dinesh Kumar, Rajiv Kumar, Ramesh Chand and Sarwan Singh. Out of these, Sh.Dinesh Kumar has polled 597 votes, Rajiv Kumar 302, Ramesh Chand 569 and Sarwan Singh 593. The counting procedure has also been detailed at pages 51,52 and 53 of the petition. The recount proceedings state that by order dated 29.12.2011and subsequent orders passed by the Court in CMP. No. 12920 of 2011, recounting of votes for the post of Up-pradhan, Gram Panchayat, Lower Dehlan, Tehsil and District Una was conducted in the presence of Sh. Dinesh Kumar and his counsel, nobody appeared for the respondents despite the fact that the case was called out repeatedly during the Court hours in order to enable the other parties to participate in the recount. The orders then proceeds that nine ballot papers as detailed therein found in favour of Sh. Dinesh Kumar were invalid as they were not marked properly. For Rajiv Kumar, three ballot papers were found to be invalid and for Sh. Ramesh Chand one invalid vote was wrongly accepted in his account. The petitioner had 12 invalid votes counted in his favour. The reason for rejection of these votes by the Officer was “use of multiple marking” for 12 ballots and one without any valid marking. 7. 130 votes, which were rejected, were then taken up for screening. Out of these, as many as nine ballots were found to have been rejected without any valid reason. The reason for rejection of these votes by the Officer was “use of multiple marking” for 12 ballots and one without any valid marking. 7. 130 votes, which were rejected, were then taken up for screening. Out of these, as many as nine ballots were found to have been rejected without any valid reason. Of these, two had been polled in favour of petitioner Sarwan Singh and seven in favour of respondent No.3-Dinesh Kumar. As a net result, Dinesh Kumar respondent, who is a net gainer by two votes i.e. out of 599 votes in his favour, nine had been wrongly counted against him and seven wrongly rejected. In all, after the final count he was shown having secured 597 votes. Rajiv Kumar was loser by three votes and secured 302 votes. Sh. Ramesh Chand had one invalid vote in his favour which brought down his tally from 570 to 569. The petitioner Sarwan Singh, who has shown to have secured 603 in the first count, had 12 invalid votes in his favour and two valid votes which have been wrongly rejected and the net result was that he was loser by ten votes. In the ultimate analysis, Sh. Sarwan Singh polled 593 valid votes. This is the factual matrix after the recount of votes. 8. On 2.5.2012, this Court directed the Sub Divisional Officer (Civil), Una to be present in the Court along with the records including the ballot papers. On 10.5.2012, learned counsel for the parties were granted access to the entire records as also the ballot papers so that the parties can lodge their objections on any aspect. They were satisfied with the recount. 9. The grievance of the petitioner in this writ petition is that the orders which have been passed by the Sub Divisional Officer (Civil) and the appellate order by the Deputy Commissioner are ultra vires the ‘Act’. The grounds urged on behalf of the petitioner are that the order is without jurisdiction, there is no power vested in the officer for ordering recount and that the result of recount itself was illegal. A number of submissions have been made by the learned counsel appearing for the parties in support of their respective contentions. 10. The grounds urged on behalf of the petitioner are that the order is without jurisdiction, there is no power vested in the officer for ordering recount and that the result of recount itself was illegal. A number of submissions have been made by the learned counsel appearing for the parties in support of their respective contentions. 10. Under the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred as to ‘Act’), grounds for declaring elections to be void have been set out in Section 175 which, inter alia, provides that there has been improper reception, refusal or rejection of any vote or the reception of any vote which is void. The election can be voided: “175. Grounds for declaring elections to be void (1) If the authorized officer is of the opinion: (a) ……………………………… (b)………………………………. (c)…………………………..…. (d) that the result of the election, in so far as it concerns the elected person, has been materially affected: (i) By the improper acceptance of any nomination, or (ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iii) by any non-compliance with the provisions of this act or of any rule made under this Act, the authorized officer shall declare the election of the elected persons to be void….” 11. Section 175-A provides that: “If any person, who has lodged a petition has, in addition to calling in question the election of the elected person, claimed a declaration that he himself or any other candidate has been duly elected and the authorized officer is of opinion: (a) that in fact the petitioner or such other candidate received a majority of valid votes or (b) that but for the votes obtained by the elected person by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes.” 12. In this eventuality, the Authorized Officer is vested with the powers of declaring the election of the elected persons to be void and declare the petitioner or any other candidate to have been duly elected. 13. Learned counsel appearing for the petitioner submits that not only was there improper pleadings before the Officer not stating the exact number of votes polled rejected/accepted but there was no averment in the election petition that such wrong reception of votes etc. would have made a material difference to the election. 14. 13. Learned counsel appearing for the petitioner submits that not only was there improper pleadings before the Officer not stating the exact number of votes polled rejected/accepted but there was no averment in the election petition that such wrong reception of votes etc. would have made a material difference to the election. 14. Annexure: P1, petition instituted under Section 163 of the ‘Act’ by the third respondent states that the votes polled in favour of the third respondent were 610, two votes had not been counted and it was not clear as to where these ballot papers were misplaced. An objection had been raised before the Returning Officer by Sh. Rajiv Kumar that recount be taken, where after at about 9 p.m. recounting started but the electricity supply failed due to heavy rain and light was restored by alternative means. Again, the Returning Officer rejected 12 votes of the petitioner and he was declared as a defeated candidate. The rejection/cancellation of 118 votes was neither fair nor in accordance with law. These averments, of course, were denied in terse one line reply(s). The issues settled were: (a) Whether the parties is bad for non-joinder and necessary parties?. (b) Whether the outcome of the result has been materially affected by wrongly rejecting the votes polled in favour of the respondent No.3 or occupying the invalid votes polled in favour of the respondent (petitioner herein). 15. Learned counsel appearing for the petitioner places reliance on the judgment of the Supreme Court in Baldev Singh Vs. Shinder Pal Singh and another (2007) 1 SCC 341 holding that recount should not ordinarily be directed. There are limitations which are placed by law in that behalf. Considering the precedent in M.Chinnasamy Vs. K.C. Palanisamy, (2004) 6 SCC 341 , the Court in Baldev Singh’s case holds: 26...........The question as to what would constitute material facts would, however, depend upon the facts and circumstances of each case. It is trite that an order of re-counting of votes can be passed when the following ingredients are satisfied: (1) if there is a prima facie case; (2) material facts therefor are pleaded; (3) the court shall not direct re-counting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to. The necessity of "maintaining the secrecy of ballot papers" should be kept in view before a re-counting is directed to be made. The necessity of "maintaining the secrecy of ballot papers" should be kept in view before a re-counting is directed to be made. A direction for re-counting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow." 27. The Court furthermore emphasized the requirements of pleadings containing material facts which are salutary in nature. In that case also it was found that no material had been brought on record to show that the factual findings of the Returning Officer were incorrect. This Court rejected the 'doctrine of prejudice', in such a matter, as being not a relevant factor, having regard to the constitutional and statutory scheme involving holding of election and the consequences emanating from the direction of recounting which could lead to identification of voters as the same would not be desirable. It was reiterated that pleadings of material fact would include disclosure of all such information which if not rebutted would result in allowing the petition. It was opined : "Had the election petitioner in his pleadings, as noticed hereinbefore, disclosed the details of the names of polling stations, counting centres, tables, particulars of round of the counting of votes in relation whereto alleged irregularities had taken place under all the four categories and basis of material facts and particulars, the High Court, if finds that the election petitioner has made out a prima facie case for scrutiny of ballot papers and re-count, may direct re-count of ballot papers in respect of the said votes only and not the entire votes. The High Court further failed to notice that in para 12 of the election petition it has merely been pointed out that irregularities in respect of counting had materially affected the election and in that view of the matter, the High Court should not have directed re-counting of all the votes which would amount to going beyond the said election.” (P.351) 16. Learned counsel also places reliance on the judgment in Kattinokkula Murali Krishna Vs. Learned counsel also places reliance on the judgment in Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and others, (2010) 1 SCC 466 , the Court holds: “15 Before examining the merits of the issues raised on behalf of the parties, it would be appropriate to bear in mind the salutary principle laid down in the Election Law that since 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. The importance of maintenance of secrecy of ballots and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. 16. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking recount 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. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down.” (Pp.472&473) (Emphasis supplied) 17. The other decision relied upon by learned counsel may be considered. In Chandrika Prasad Yadav Vs. State of Bihar and others (2004) 6 SCC 331 , the court holds: “ 20. The other decision relied upon by learned counsel may be considered. In Chandrika Prasad Yadav Vs. State of Bihar and others (2004) 6 SCC 331 , the court holds: “ 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 must 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” (P.337) 18. The principles do not call for any reiteration as they are well entrenched in the law of election. 19. The submission that no case of recount is made out in the facts of the present case, cannot be accepted. The petition before the Sub Divisional Officer (Civil) was on the ground of the wrong reception of votes and wrong rejection of votes. In these circumstances, recount was taken and it was found by the Sub Divisional Officer (C) that wrong votes had, in fact, been received/accepted in favour of all the four contesting candidates. It was not merely one or the other who was the recipient of such benefit. The benefit of these votes was given to all candidates. The ballot papers have gone through scrutiny twice once before the Sub Divisional Officer (Civil) and second before this Court. It is indeed would have been desirable that such any count be not taken as it compromises the identity of the voter which has to be kept secret. What I find from the pleadings is that in three paragraphs the petitioner in the election petition (respondent No.3 herein) clearly states that he had raised an objection before the ARO and requested for recount the votes at which time the electricity supply failed and when it was restored, the ARO rejected 12 votes from the petitioner’s lot and it was for this reason that he lost by six votes when the final result was declared. He further states that the rejection/cancellation of 118 votes and 12 votes during recount on technicalities not sustainable in law was illegal. The election petitioner resorted with vehemence that 12 votes rejected were actually cast in his favour. In these circumstances, it was submitted by respondent No.3 herein that the result was obviously materially affected since the margin was very close. On the submission made by the learned counsel for the petitioner that merely because there is minor difference no recount can be resorted to in routine, there is no dispute. But, what I find from the present case is that the pleadings are not very precise or clear that 118 votes were wrongly rejected and 12 votes polled in favour of the election petitioner were also illegal. 20. I find from the record that when the case was taken up for recount, the petitioner absented himself and decided not to participate in the process. In this Court, after the result had been opened, I had directed that the parties could once again examine the ballot papers in order to check only for the wrong reception or rejection of votes. That exercise was undertaken and no fault was found. In these circumstances, this writ petition is rejected. No order as to costs.