JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard Mr. S.K. Ghosh, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned State Counsel, appearing for the respondent no. 1 and Mr. F.U. Borbhuiya, learned counsel, appearing for the respondent no. 2. 2. Notice to respondent Nos. 3, 4 and 5 were sent by registered post with A/D on 22.12.2015. Having regard to the period of time that has elapsed, notice on the aforesaid respondents is deemed to be served. None appears for the said respondents. 3. Records from the Panchayat Election Tribunal, Karimganj had been received. 4. The writ petition is filed assailing the orders dated 13.07.2015 and 17.10.2015 passed by the learned Judge, Panchayat Election Tribunal, Karimganj in Misc. (Election) Case No. 31/2013. By order dated 13.07.2015, prayer for recounting of votes was allowed through the learned Munsiff No. 2, Karimganj and by the order dated 17.10.2015, accepting the report of recounting, the election of the writ petitioner to the post of Ward Member for Ward No. 8, Kamarbond under no. 22 Asimganj Gaon Panchayat was declared null and void and the respondent no. 2/election petitioner was declared elected. 5. By an order dated 02.12.2015 passed by this Court, the order dated 17.10.2015 was suspended. An application for vacating the aforesaid interim order was filed by the respondent no. 2 being I.A. (Civil) No. 88/2016 and the said application was rejected vide order dated 01.11.2016. However, it was observed in the said order that an endeavour shall be made to dispose of the writ petition. 6. Election to post of President, Anchalik Panchayat Members and Ward Members of Gaon Panchayats in Karimganj District was held on 12.02.2013. The petitioner, the respondent Nos. 2, 3, 4 and 5 were the contesting candidates for the post of Ward Member in No. 8 Kamarbond of no. 22 Asimganj Gaon Panchayat. The counting was over on 14.02.2013 and the petitioner herein was declared elected and accordingly, he was issued the winning certificate on 15.02.2013. 7. Challenging the election of the petitioner, the respondent no. 2 filed an election petition under Section 129 of the Assam Panchayat Act, 1994 (for short, “Act”) before the Panchayat Election Tribunal, Karimganj and the said petition was registered as Misc. (Election) Case No. 31/2013. 8. 7. Challenging the election of the petitioner, the respondent no. 2 filed an election petition under Section 129 of the Assam Panchayat Act, 1994 (for short, “Act”) before the Panchayat Election Tribunal, Karimganj and the said petition was registered as Misc. (Election) Case No. 31/2013. 8. In the election petition, it was stated that in the result-sheet, i.e. “Return of Election” which was disputed, the election petitioner was shown to have secured 117 votes and the present writ petitioner 119 votes. The respondent Nos. 3, 4 and 5 herein were shown to have polled 115, 60 and 86 votes, respectively. Prayer was made for passing an order for cancellation of result-sheet dated 14.02.2013 as void, for passing an order for recounting of ballots including Postal Ballots, for passing an order for issuance of fresh result-sheet after recounting, etc. 9. In the context of the adjudication that has to be undertaken by this Court, it will be necessary to take note of the grounds on which the election petitioner structured his case for recounting. The averments in this connection are made in Paragraph-4 of the election petition, which reads as under:- “4. That at the time of counting of votes by counting staffs who intentionally and wilfully avoided count Postal Ballots inspite of objection and request made by the constituting Candidate that is the petitioner ‘Chafia Begum’ and as a result of which the petitioner lost the election by two votes. Which arose the cause of action for the instant election petition.” 10. In Paragraph-5 of the election petition, it is stated that after completion of counting, the counting staff assured the petitioner that the petitioner had secured highest votes and that she was asked to leave the Counting Centre without giving any result-sheet with mala-fide motive and intention and accordingly, she had left and when on the next day, the election petitioner came to meet the Returning Officer, he gave her a result-sheet showing that the election petitioner had lost the election by a margin of 2(two) votes. 11. In the verification attached to the election petition, the statements were stated to be to the best of knowledge of the election petitioner. 12. The writ petitioner filed written statement denying the allegations and asserting that the counting was conducted peacefully and there was no illegality in such counting and accordingly, prayed for dismissal of the election petition. 11. In the verification attached to the election petition, the statements were stated to be to the best of knowledge of the election petitioner. 12. The writ petitioner filed written statement denying the allegations and asserting that the counting was conducted peacefully and there was no illegality in such counting and accordingly, prayed for dismissal of the election petition. The Returning Officer for himself and on behalf of the State of Assam had also filed written statement denying the allegations and stating that counting of votes was done as per prescription of Rule 44 of the Assam Panchayat (Constitution) Rules, 1995 (for short “Rules”) and accordingly, Return of Election in Form XXX-A was issued. 13. The election petitioner adduced her evidence as PW-1 and that of her husband, who was her counting agent as PW-2. In her evidence, she stated that due to political considerations, Postal Ballots were not counted and that it was the cause of her defeat. It was also stated that her counting agent had protested against non-counting of Postal Ballots. In her cross-examination, she had, however, stated that she was not present at the time of counting and that she was reported by her counting agent that she had won the election by a margin of 2(two) votes. 14. PW-2 had deposed that he had protested against non-counting of Postal Ballots in the Centre. In cross-examination made by respondent Nos. 1 and 2 in the election petition, he deposed that he was informed by the authority that Postal Ballots would be counted later on. In cross-examination by the respondent No. 3 of the election petition, he deposed that in the result-sheet number of Postal Ballots were there. He further stated that counting of general ballots were done smoothly and he had no objection with regard to the said counting. He stated that as far as he recollected, there were only 3(three) numbers of Postal Ballots, out of which 2(two) were that of his cousin and 1(one) that of his relative. According to him, total number of votes rejected was 53 and total number of ballots was 554. 15. It appears from the order-sheet of the learned Tribunal that despite repeated opportunities granted, the returned candidate did not adduce any evidence and by an order dated 08.04.2015, prayer for adjournment for the purpose of examination of defence witnesses was rejected and case was, thereafter, listed for hearing. 15. It appears from the order-sheet of the learned Tribunal that despite repeated opportunities granted, the returned candidate did not adduce any evidence and by an order dated 08.04.2015, prayer for adjournment for the purpose of examination of defence witnesses was rejected and case was, thereafter, listed for hearing. 16. In the order dated 13.07.2015, the learned Tribunal noted as follows:- “11. The main issue in question is that the returning officer avoided counting of 2 postal ballots and this resulted in petitioner’s defeat. In his cross-examination the petitioner’s husband mentioned that he was certain that 2 postal ballots who were in favour of his wife and ballots were not counted which resulted in his wife’s defeat. It was well within his knowledge that these 2 postal ballots were his cousin’s votes in favour of his wife. 12. I have perused the result-sheet annexed in this case. The number of postal ballots were indeed mentioned in the result-sheet. As PW 2 was the counting agent, his presence cannot be ignored. His claim that the returning officer avoided counting some postal ballots in a clandestine manner under the influence of political parties cannot be ignored. To unearth the truth the recounting of ballots appears necessary. The pleadings and the evidence ascertained that there may have been laches during the counting of votes. There is every possibility of laches during counting of votes. Thereby, the prayer for recounting is allowed with a direction for recounting of the votes. The recounting of votes will be conducted by ld. Munsiff No. 2 with the help of Sheristadar and submit a report on 30.08.2015.” 17. In the order dated 17.10.2015, the learned Tribunal recorded that the Tribunal had perused the result-sheet annexed in the case. In Paragraphs-13 and 14, it was observed as follows:- “13. The ballots were called for recounting. The Munsiff No. 2 recounted the votes in compliance of the order dated 13.07.2015. The ballots were recounted in presence of advocate Ashok Kr. Chakraborty, representing the petitioner and advocate Mr. D.D. Choudhury, Assistant Govt. Pleader and also advocate Mr. Ranjan Roy, representing the OP No. 3. The Munsiff No. 2 submitted the report on 13.08.2015. Seen the forwarding letter and the separate result sheet prepared by the Munsiff No. 2. The ballots were recounted in presence of advocate Ashok Kr. Chakraborty, representing the petitioner and advocate Mr. D.D. Choudhury, Assistant Govt. Pleader and also advocate Mr. Ranjan Roy, representing the OP No. 3. The Munsiff No. 2 submitted the report on 13.08.2015. Seen the forwarding letter and the separate result sheet prepared by the Munsiff No. 2. The findings of Munsiff No. 2 is as follows: The petitioner Safia Begum with symbol ‘hand’ received 119 valid votes (including 2 postal votes). The OP No. 3 Samsunnessa with symbol ‘Lock & key’ received 117 valid votes. The OP No. 4 Abida Sultana with symbol ‘Spectacles’ received 115 valid votes. The OP No. 5 Jahida Begum with symbol ‘Glass’ received 60 valid votes. The OP No. 6 Hanai Bibi with symbol ‘Tree’ received 86 valid votes (including 1 postal vote). Out of the total votes casted, 60 votes were found rejected. 14. After scrupulously scrutinizing the findings of the Munsiff No. 2 it is held that the petitioner Safia Begum received 119 valid votes while the OP No. 3 Samsunnessa received 117 valid votes. The petitioner Safia Begum contested under the symbol ‘Hand’ while Samsunnessa contested under the symbol lock & key.” 18. It is clear from the orders passed by the learned Tribunal as well as from the evidence adduced that the only document that the election petitioner had produced was the result-sheet which was annexed as Annexure-1 and no other document. The said document was not proved in accordance with law but at the same time it has to be considered that none had disputed Annexure-1. Annexure-1 as contained in the record of the learned Tribunal shows that the election petitioner, the writ petitioner, the respondent Nos. 3, 4 and 5 received 117, 119, 115, 60 and 86 votes, respectively. Total numbers of valid votes including Postal Ballots was shown to be 497 with total number of rejected votes including Postal Ballots as 53. Total votes polled were shown as 550. The observation of the learned Tribunal in the order dated 17.10.2015 at Paragraph-12 that the numbers of Postal Ballots were indeed mentioned in the result-sheet is not borne out of record. There is no reference specifically indicating the number of Postal Ballots in the result-sheet (Annexure-1). 19. Total votes polled were shown as 550. The observation of the learned Tribunal in the order dated 17.10.2015 at Paragraph-12 that the numbers of Postal Ballots were indeed mentioned in the result-sheet is not borne out of record. There is no reference specifically indicating the number of Postal Ballots in the result-sheet (Annexure-1). 19. It is noticed that in the election petition, the election petitioner did not state that her counting agent was present at the time of counting but the projection was as if she had raised objection during the process of counting with regard to non-counting of Postal Ballots. At the cost of repetition, it is to be noted that the election petitioner admitted in cross-examination that she was not present at the time of counting. There is no averment in the election petition that she had deployed a counting agent who was present at the time of counting process was on. However, it is seen that no suggestion was given to PW-2 suggesting that he was not present in the Counting Hall. 20. Secrecy of ballot has always been treated as sacrosanct and indispensible part of a free and fair election. Law is well established that the Court ought not to exercise the power of making an order of recounting of ballots to enable the election petitioner to indulge in a roving enquiry with a view to fish out materials for declaring the election of the returned candidate to be void. Order of recounting can be passed only when the election petitioner sets out his case with material facts supported by requisite evidence showing that because of a particular irregularity or illegality, the result of the election had been materially affected. Failure to plead material facts is fatal to the election petition as no amount of evidence can be looked into on a plea not taken. 21. In an election petition filed with a prayer for recounting of votes, the Court has always insisted upon a high standard of proof of grounds as would impel the Court to direct recount of votes and recheck the election results. Since order for inspection and recount of ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Since order for inspection and recount of ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Order for recounting of votes can be passed only when the conditions, namely, (1) a prima facie case and (2) pleading of material facts stating irregularities in counting of votes are fulfilled. Another established proposition of law is that a narrow margin of votes between the returned candidate and the election petitioner does not, per se, give rise to a presumption that there had been an irregularity or illegality in the counting of votes. 22. Even with regard to the Postal Ballots, the pleading is very sketchy. How many Postal Ballots were received are not indicated in the election petition. It is also not indicated as to whether any Postal Ballot was counted and/or rejected. These are material facts going to the core issue based on which the election petitioner was seeking recount. As noted earlier, no other documents evidencing total number of Postal Ballots have been brought on record. It is also worth recapitulating that the PW-2 had in his cross-examination stated that he had no objection with regard to the counting of general ballots. With such state of materials on record, the learned Tribunal, in the order dated 13.07.2015 opined that there may have been laches during counting of votes and accordingly, directed recounting of votes. In essence, the learned Tribunal set the stage for a roving enquiry, which is not permissible in law. The order dated 17.10.2015 demonstrates that all the Ballot Papers were recounted. In such recounting, 557 votes were shown to have been polled contradicting the Annexure-1, Form XXX-A, which shows that total number of votes polled as 550. Number of votes polled by the writ petitioner was brought down to 117 and that of the election petitioner to 119 and total valid votes received was shown as 497, which is same as in Return of Election. The only conclusion that can be arrived at is that all the valid votes were counted when Return of Election was prepared. It is not the case of the election petitioner that 2(two) Postal Ballots in which votes were cast in her favour were not counted in her favour but were counted in favour of the returned candidate. The specific case was that 2(two) Postal Ballots were not counted. It is not the case of the election petitioner that 2(two) Postal Ballots in which votes were cast in her favour were not counted in her favour but were counted in favour of the returned candidate. The specific case was that 2(two) Postal Ballots were not counted. Be that as it may. The exercise undertaken to recount all votes in absence of any allegation with regard to irregular counting in respect of votes polled other than Postal Ballots cannot be sustained in law. As noted in the earlier part of the judgment, even for Postal Ballots, pleading was wholly inadequate. 23. An order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes. Even if the recount discloses that the elected candidate had not secured the highest number of votes, the result of the election cannot be disturbed if the order of recount is itself invalid. [See P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen & Others, reported in (1989) 1 SCC 526 ]. 24. In view of the above discussions, the writ petition succeeds and the same is allowed by setting aside and quashing the impugned orders dated 13.07.2015 and 17.10.2015 passed by the learned Judge, Panchayat Election Tribunal, Karimganj in Misc. (Election) Case No. 31/2013. No costs. 25. Registry will send back the records.