JUDGMENT AND ORDER : Both these writ petitions have arisen from the judgment and order dated 13.11.2016 passed by the learned District Judge, Dhemaji in Misc. (Election) Case No. 8/2013. While WP(C) No. 7966/2015 is filed for setting aside the aforesaid judgment dated 13.11.2013, WP(C) No. 234/2016 is filed praying for modification of the aforesaid judgment dated 13.11.2015 by recording a finding in respect of issue No. 4. 2. Respondent No. 1, namely, Deben Dutta, in WP(C) No. 7966/2015, is the writ petitioner in WP(C) No. 234/2016 and the petitioner in WP(C) No. 7966/2015, Bipul Dutta, is the respondent No. 2 in WP(C) No. 234/2016. The Returning Officer-cum-Deputy Commissioner, Dhemaji is arrayed as respondent No. 3 and 1 in WP(C) No. 7966/2015 and WP(C) No. 236/2016, respectively. Respondent No. 2, Jugal Buragohain in WP(C) No. 7966/2015 is impleaded as respondent No. 3 in WP(C) No. 234/2016. 3. Dasti service on respondent No. 3 was accepted by order dated 22.4.2016. Affidavit of dasti service on respondent No. 2 is also filed in WP(C) NO. 7966/2015. None appears for Jugal Buragohain. 4. The dispute in the writ petitions is regarding the election to the post of Member of Dhemaji Zilla Parishad from No. 2, Machkhowa Constituency. 5. The State Election Commission had issued a Notification on 17.12.2012 notifying elections in Panchayat institutions in three phases. The election to Dhemaji Zilla Parishad was held on 30.1.2013. The petitioner in WP(C) No. 7966/2015, petitioner in WP(C) No. 234/2016 and Jugal Buragohain were candidates for the election for the post of Member from No. 2 Machkhowa Constituency and they contested as candidates of Asom Gana Parishad (AGP), Indian National Congress (Congress) and Bharatiya Janata Party (BJP), respectively. The Deputy Commissioner, Dhemaji declared that Bipul Dutta had won the election by a margin of eight votes. Being aggrieved, Deben Dutta filed Election Petition before the Election Tribunal, Dhemaji, which was registered as Misc. Election Case No. 8/2013, praying for, setting aside the election of Bipul Dutta and for a declaration that he is elected on correction of final result sheet in Form No. XXX(D) after recalculating the results as were recorded in Form No. XXVIII(D) after each round of counting and/or by way of recounting. 6. The case projected in the election petition, in short, is that there are 10 counting tables for 10 wards. 6. The case projected in the election petition, in short, is that there are 10 counting tables for 10 wards. There are 9 Gaon Panchayats and the counting, held Gaon Panchayat-wise, was completed in nine rounds for each Gaon Panchayat. After completion of counting in each of the Gaon Panchayat areas, the counting officials declared the number of votes polled by each of the three candidates which were recorded in Form No. XXVIII(D) and had obtained the signature of the agents or the candidates present in each table. The counting was completed on 15.2.2013 itself at mid-night and the final result sheet was also prepared wherefrom it appeared that the election petitioner had defeated his nearest rival Bipul Dutta by a margin of 12 votes and an oral declaration was made to that effect by the Returning Officer indicating that declaration in writing would be made the following day as it was quite late in the night. On the next day when the written declaration was made, it transpired that the petitioner had been shown to have been defeated by a margin of 8 votes. Immediately, the election petitioner and his election agent and others belonging to his party suspected adoption of unfair means and submitted an application, copy whereof was not retained due to hurriedness in which it had been presented before the Returning Officer, demanding recounting of votes of all the constituencies. The Returning Officer opined that votes of all the nine constituencies will not be recounted and that the petitioner may choose any four Gaon Panchayats out of 9 Gaon Panchayats and accordingly, he chose Sissimukh Gaon Panchayat, Jorkata Gaon Panchayat, Batghoria Gaon Panchayat and Ghuguha Gaon Panchayat and the Returning Officer directed recounting of the said four Gaon Panchayats by passing an order on the body of the application. On such recounting of votes of Jorkata Gaon Panchayat, in respect of No. 1 Solmara Polling Station, it was found that 1 ballot was wrongly counted in favour of Bipul Dutta and accordingly, Form XXVIII(D) was corrected by adding one vote in favour of the election petitioner and subtracting one vote from the total of Bipul Dutta and in respect of No. 3 Jorporta Nahoroni Police Station, mistake was corrected in form No. XXVIII(D) by increasing the tally of votes from 186 to 187 in favour of the election petitioner. When the difference of three votes in favour of the election petitioner was detected, members of the Congress Party created unruly situation urging the Returning Officer not to permit rechecking of the ballot papers and only to count the ballots keeping them inside the bundles of 25 numbers of ballots. In the meantime, the Returning Officer received a telephone call in his cell phone and immediately there was a perceptible change in the attitude of the Returning Officer as he started taking a hostile attitude against the election petitioner. At the same time, recounting of Sissimukh Gaon Panchayat had taken place without affording any opportunity to the petitioner to check whether there was any error as was found in Jorkata Gaon Panchayat. As the election petitioner did not agree to such half-hearted recounting, no recounting had taken place in respect of the other two Gaon Panchayats. It is also pleaded that there was gross anomaly in respect of No. 18 Bengenagora Polling Station at No. 69 Fatia Nepalibari LP School. The election petitioner polled 91 votes as against 83 votes polled by Bipul Dutta and the same was accordingly recorded in Form XXVIII(D) on 15.2.2013 but when the consolidated result sheet was prepared from all the Form XXVIII(D)s in Form XXIX(D), the election petitioner was shown to have polled 83 votes and Bipul Dutta was shown to have polled 91 votes and thus, the votes polled by the election petitioner was wrongly shown to have been cast in favour of the returned candidate and vice-versa. 7. The returned candidate in his written statement, while denying the allegations made by the election petitioner, had stated that the election petitioner had sought for recounting only in four Gaon Panchayats and that there was a mistake in Form No. XXIX(D) for No. 18 Bengenagora constituency counting table No. 9 in relation to eight votes. 8. In the written statement of the Returning Officer, he had stated that no oral declaration was made on 15.2.2013. Describing the counting procedure, it is stated that after actual counting of votes is over in the counting tables, details of votes secured by each candidate recorded in Form XXVIII(D) is to be submitted to the Assistant Returning Officer for compilation in Form XXIX(D), which is a round-wise reflection of the number of votes secured by each candidate. Describing the counting procedure, it is stated that after actual counting of votes is over in the counting tables, details of votes secured by each candidate recorded in Form XXVIII(D) is to be submitted to the Assistant Returning Officer for compilation in Form XXIX(D), which is a round-wise reflection of the number of votes secured by each candidate. After compilation of all the ten rounds, the final result of election is made in Form XXX(D) which is required to be announced. A written objection was submitted by the election petitioner for recounting of votes in respect of Sissimukh, Jorkata, Batghoria and Guguha Anchalik Panchayat and the same was allowed on due consideration and the final result of election was declared after the process of recounting was completed and Form XXX(D) was signed by the Returning Officer. The Returning Officer admitted that during recounting of votes, some discrepancies were detected in filling up of the Form XXVIII(D) in some counting tables. It is stated that as per the State Election Commission Guidelines, the sequence of names of the candidates in Form XXVIII(D), Form XXIX(D) and XXX(D) should be same as the sequence of names of candidates appearing in the ballot paper and though same was followed in all polling stations, save and except in polling station No. 69, Fatia Nepalibari L.P. School under Bengenagora Gaon Panchayat, where names of the petitioner and the returned candidate were erroneously inter-changed and instead of the election petitioner being shown at serial No. 1 and returned candidate at serial No. 2, their names were shown at serial No. 2 and 1, respectively. But though such mistake had taken place, the recording of votes were correctly done in a proper sequence. With regard to discrepancy of the total number of valid votes polled, it is stated that addition of postal votes in column No. 11 was not necessary as such votes were included in figures at column Nos. 3, 4 and 5 and therefore, total valid votes shown in Form XXX(D) should be corrected as 28233 by deducting the number of total postal ballots received, which is 61 in number. It is acknowledged that total number of votes recorded in Form XXX(D) as 7453 in respect of Jugal Buragohain, should have been recorded as 7455. 3, 4 and 5 and therefore, total valid votes shown in Form XXX(D) should be corrected as 28233 by deducting the number of total postal ballots received, which is 61 in number. It is acknowledged that total number of votes recorded in Form XXX(D) as 7453 in respect of Jugal Buragohain, should have been recorded as 7455. It is also admitted that final return of election was declared on 16.2.2013 and the date 15.2.2013 is a clerical mistake in Form XXX(D). 9. The learned Tribunal, on the basis of the pleadings, had framed the following issues: “1. Whether any error has been occurred in calculation and compilation in the result-sheet of votes as averred by the petitioner? 2. Whether illegality has been done by the Returning Officer at the time of counting of votes in respect of Sissimukh Gaon Panchayat, Guguha Gaon Panchayat, Jorkata Gaon Panchayat and Batghoria Gaon Panchayat as alleged by the petitioner? 3. Whether the suit is bad for non-joinder of necessary parties? 4. To what relief/reliefs the parties are entitled to?” 10. The learned Tribunal decided all the issues in favour of the election petitioner and accordingly, at paragraph 25 of the judgment, it is recorded as follows: “25. In result, the petition is allowed on contest. It is ordered that the certificate issued in favour of the respondent No. 1 Shri Bipul Dutta declaring him as Member from No. 2 Machkhowa Zilla Parishad under Dhemaji Zilla Parishad is illegal and bad in law and is therefore set aside. It is further directed that votes polled for Sissimukh G.P., Ghuguha G.P., Jorkata G.P., and Batgharia G.P. be re-counted in presence of all the parties and a fresh certificate be issued to the winning candidate as per result of the re-counting. The process of re-counting shall be completed within 2 months from the date of this order. If after re-counting, the petitioner is found unsuccessful, the security deposited in the court at the time of filing of the petitioner be forfeited in favour of the State. The election petition is disposed of accordingly.” 11. Mr. P. J. Saikia, learned counsel for the petitioner in WP(C) 7966/2015, has submitted that the learned tribunal was wholly not justified in setting aside the election of the returned candidate even before recounting of votes, as ordered by the learned tribunal, had taken place. Mr. The election petition is disposed of accordingly.” 11. Mr. P. J. Saikia, learned counsel for the petitioner in WP(C) 7966/2015, has submitted that the learned tribunal was wholly not justified in setting aside the election of the returned candidate even before recounting of votes, as ordered by the learned tribunal, had taken place. Mr. Saikia further submitted that the learned tribunal was not justified in directing recounting of votes polled in respect of Sissimukh Gaon Panchayat, Ghuguha Gaon Panchayat, Jorkata Gaon Panchayat and Batgharia Gaon Panchayat as the election petitioner had failed to state material facts in the election petition to enable the tribunal to direct recount in respect of those Gaon Panchayats. He has contended that secrecy of the ballot is paramount and direction in the instant case for recounting, in absence of material facts, will only result in a roving enquiry which is not permissible in law. He has also submitted that a mountain of a molehill is sought to be made out by the election petitioner in WP(C) No. 234/2016 in respect of alleged irregularity in No. 18 Bengenagora polling station, in No. 69 Fatia Nepalibari L.P. School in as much as, name of the election petitioner was wrongly placed at serial No. 2 instead of serial No. 1 and accordingly, votes polled by the returned candidate was wrongly shown to have been cast in favour of the election petitioner and such apparent mistake was corrected subsequently in the final result sheet and the same, in no way, amounts to irregularity and therefore, the learned Tribunal rightly did not interfere with the same. In support of his submissions, learned counsel has placed reliance in the cases of Mahendar Pratap vs. Krishan Pal, reported in (2003) 1 SCC 392, Kattinokkula Muralikrishna vs. Veeramalla Koteswara Rao and Ors., reported in (2010) 1 SCC 466 , Chandrika Prasad Yadav vs. State of Bihar and Ors., reported in (2004) 6 SCC 331 , Markio Tado vs. Takam Sorang, reported in (2012) 3 SCC 236 and Jahanara Begum vs. Layla Begum, reported in 2014 (2) GLR 393. 12. While otherwise supporting the impugned judgment, Mr. Mazumdar has submitted that the learned Tribunal, in spite of the plea taken in the written statement by the Returning Officer and after noticing the admission of the Additional Deputy Commissioner, in his cross-examination, that in Ext. 12. While otherwise supporting the impugned judgment, Mr. Mazumdar has submitted that the learned Tribunal, in spite of the plea taken in the written statement by the Returning Officer and after noticing the admission of the Additional Deputy Commissioner, in his cross-examination, that in Ext. 11, Form No. XXVIII(D) in No. 69 Fatia Nepalibari L.P. School polling station the election petitioner was shown to have secured 91 votes and the returned candidate 83 votes, which was inter-changed in Ext. 14(7), Form XXIX(D), committed grave error of law in not directing recount of votes in respect of the aforesaid polling centre. 13. Before proceeding further, it will be apposite to take note of the judgments cited by Mr. Saikia in order to understand when a direction for recounting can be issued. 14. In Mahendar Pratap (supra), the Supreme Court had observed that in an election petition filed with a prayer for recount 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. It is only after the election petitioner is able to demonstrate before the court by leading satisfactory evidence that there was serious flaw in the counting procedure which have materially affected the result of the election that the prayer for recount is generally allowed. 15. In Kattinokkula Muralikrishna (supra), the Supreme Court had laid down that 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. It was also laid down that the two basic requirements are to be fulfilled before an election tribunal can permit recount. The requirements are : (1) 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 (2) 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 necessary. In the aforesaid context, it was also laid down that the doctrine of prejudice is an irrelevant factor for ordering recount and 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. 16. In Chandrika Prasad Yadav (supra), the Supreme Court observed that 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, (3) an objection to the said effect had been taken recourse to. It is also laid down that a roving and fishing enquiry shall not be made while directing recounting of votes. 17. In Markio Tado (supra), the Supreme Court had stated that in an election petition, one has to plead material facts at the outset and the failure to plead the same is fatal to the election petition as no amount of evidence can cure the defect in the pleadings. 18. In Jahanara Begum (supra), this Court had also emphasized the importance of disclosure of material facts in the election petition. 19. The position that emerges is that secrecy of ballot has always been treated as sacrosanct and indispensible part of a free and fair election. 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 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. 20. In Ext.-15, which is Form No. XXX(D), which is return of election, it is recorded that Bipul Dutta polled 10393 votes and Deben Dutta polled 10385 votes. Jugal Buragohain, who was the other contesting candidate, was shown to have received 7453 valid votes. But from Ext.-14 (10) [Form No. XXIX(D)] it is manifest that Jugal Buragohain had polled 7455 votes and, therefore, the votes polled by Jugal Buragohain were not correctly reflected in Ext.-15: his total number of votes polled is shown less by 2 votes. Jugal Buragohain, who was the other contesting candidate, was shown to have received 7453 valid votes. But from Ext.-14 (10) [Form No. XXIX(D)] it is manifest that Jugal Buragohain had polled 7455 votes and, therefore, the votes polled by Jugal Buragohain were not correctly reflected in Ext.-15: his total number of votes polled is shown less by 2 votes. From Ext.-14(10), it appears that total number of postal ballots was 61 and total number of votes rejected was 1355. Thus, the total valid votes polled by the contestants come to 28233 (10385 + 10393 + 7455). However, the figure is wrongly shown as 28294, by, apparently, again counting the postal votes numbering 61. This position is admitted by the Returning Officer in the written statement. These mistakes do not materially affect the result of the election. 21. In paragraph 9 of the election petition, the election petitioner had averred that in No. 18 Bengenagora Polling Station, which was in No. 69 Fatia Nepalibari L.P. School, the election petitioner polled 91 votes as against 83 votes polled by the returned candidate and, accordingly, such entries were made in Form No. XXVIII(D), but, in the consolidated result sheet, the election petitioner was shown to have polled 83 votes from No. 69 Fatia Nepalibari L.P. School and returned candidate was wrongly shown to have been polled 91 votes. The election petitioner had also led evidence to this effect. The election petitioner had proved the certified copy of the result of counting in Form No. XXVIII(D) in respect of No. 69 Fatia Nepalibari L.P. School and proved the signature of the counting observer as Ext.-11(1). In the said Ext.-11, election petitioner was shown to have polled 91 votes as against 83 votes polled in favour of Bipul Dutta, the returned candidate. He has also proved the result sheet (10 numbers) in Form XXIX(D) with signatures of election officials as Ext.-14(1) to 14(10), wherein in Ext. 14(7), Deben Dutta was shown to have polled 83 votes and Bipul Dutta 91 votes. The Additional Deputy Commissioner, Dharma Kumar Mily, examined on behalf of the Returning Officer, in his cross-examination had stated that in Ext. 11 relating to counting of votes at table No. 9 pertaining to 69 Fatia Nepalibari counting centre under No. 18 Bengenagora Gaon Panchayat showed that election petitioner received 91 votes as against 83 votes by the returned candidate and that Ext. 11 relating to counting of votes at table No. 9 pertaining to 69 Fatia Nepalibari counting centre under No. 18 Bengenagora Gaon Panchayat showed that election petitioner received 91 votes as against 83 votes by the returned candidate and that Ext. 11 does not contain any mistake. In Ext. 14(7) {Form No. XXIX(D)} relating to table No. 9 pertaining to 69 Fatia Nepalibari counting centre under No. 18 Bengenagora Gaon Panchayat, the relevant data was not properly recorded. However, he had deposed that it was a mistake as the serial numbers of the candidates were wrongly recorded therein. 22. An issue was framed, being issue No. 1, to decide as to whether any error had occurred in calculation and compilation in the result sheet of votes as averred by the election petitioner. The Tribunal did not record any finding with regard to the discrepancy as noted in Ext.-11 and Ext.-14(7) relating to No. 69 Fatia Nepalibari L.P. School. The election petitioner had made adequate statement of material facts and had also led evidence to demonstrate the apparent contradiction in respect of votes polled by the election petitioner and the returned candidate in Ext.-11 and Ext.-14(7) in relation to No. 69 Fatia Nepalibari L.P. School. The Returning Officer had admitted that there was a mistake but had sought to justify in his evidence that, in reality, it was Bipul Dutta who had secured 91 votes and the election petitioner 83 votes. Such statements cannot be accepted on face value in view of the fact that in his cross-examination he had stated that his evidence on affidavit was not made based on his personal knowledge and that he was not present at the time of counting. Having regard to the materials on record, the Court is of the considered opinion that, prima facie, the election petitioner has been able to establish an irregularity in respect of table No. 9 pertaining to 69 Fatia Nepalibari counting centre under No. 18 Bengenagora Gaon Panchayat to the extent that it materially affected the result of the election as, if the contention of the election petitioner is found to be correct in the recounting, it will be the election petitioner who would have been declared elected on the basis thereof by a margin of 8 votes. In that view of the matter, I am in agreement with the learned counsel for the petitioner in WP(C) 234/2016 that in the attending facts and circumstances, the learned District Judge, Dhemaji, ought to have directed recount in respect of the votes counted in Polling Station No. 69 Fatia Nepalibari L.P. School under Bengenagora Gaon Panchayat. 23. So far as the direction of learned Tribunal to cancel the certificate issued in favour of the returned candidate even before recounting had taken place, the same is clearly not sustainable in law. There is no basis for doing so. Even if recount in respect of 4 (four) Gaon Panchayats, as ordered by the learned Tribunal is held to be valid, then also one cannot predicate and hazard a guess with regard to result of recounting. Result of the election as declared cannot be set at naught before obtaining the result of recount as it will amount to interfering with the mandate of the people. 24. As regards the direction of the learned Tribunal for recounting of votes polled for Sisimukh Gaon Panchayat, Ghuguha Gaon Panchayat, Jorkata Gaon Panchayat and Batgharia Gaon Panchayat, I am inclined to accept the submission of Mr. P.J. Saikia, learned counsel for the petitioner in WP(C) 7966/2015. Averments made in the election petition go to show that the election petitioner had no issues with counting of votes as he claimed that the Returning Officer had orally declared him to be winner. Only when the Returning Officer made the written declaration at 10:00 AM on 16.02.2013 declaring Bipul Dutta as the winning candidate, the petitioner suspected manipulation and resorting to of unfair means. The election petitioner had not brought on record the application submitted for recount. It does not appear that any prayer was made by the election petitioner to direct the Returning Officer to produce the aforesaid application for recount before the Tribunal. It was all the more relevant in the context of the allegations made by the petitioner that he had prayed for recount in all the constituencies but the Returning Officer had limited it only to four Gaon Panchayats out of nine. What is projected in the election petition is in connection with recounting of ballots of the aforesaid four Gaon Panchayats. What is projected in the election petition is in connection with recounting of ballots of the aforesaid four Gaon Panchayats. Let alone averments regarding irregularities in counting materially affecting the result of the election, even no averments are made in respect of the aforesaid four Gaon Panchayats with regard to anomalies during the process of counting. It is clear that the election petitioner attempted to make a roving enquiry to fish out materials by way of a recount. In absence of any material fact demonstrating irregularity or illegality in counting of votes in the aforesaid four Gaon Panchayats materially affecting the result of the election, the learned Tribunal was not justified in directing recount of votes in the aforesaid four Gaon Panchayats. 25. Accordingly, the judgment of the learned District Judge, Dhemaji dated 13.11.2013 in Misc. (Election) Case No.8/2013, setting aside the election of the returned candidate and directing recount in the four Gaon Panchayats is set aside. However, for the reasons assigned above, it is recorded that the Tribunal committed an error apparent on the face of the record in not directing recount in respect of votes counted in Polling Station No.69 Fatia Nepalibari L.P. School under No. 18 Bengenagora Gaon Panchayat. In view of the above, it is hereby directed that votes polled in Polling Station No.69 Fatia Nepalibari L.P. School under No. 18 Bengenagora Gaon Panchayat shall be recounted by the Returning Officer (Deputy Commissioner, Dhemaji) within a period of 30(thirty) days from the date of appearance of the election petitioner and the returned candidate before him. The election petitioner and the returned candidate shall appear before the Deputy Commissioner, Dhemaji on 05.01.2017. The election petitioner will also furnish a certified copy of this order to the Deputy Commissioner, Dhemaji when he appears on 05.01.2017. Depending on the outcome of the recount as aforesaid, if necessary, the Deputy Commissioner, Dhemaji shall issue a fresh Form No. XXX (D) along with certificate of election. 26. The writ petitions being WP(C) 234/2016 and WP(C) 7966/2015 shall stand disposed of with the aforesaid directions. No cost.