ORDER : Sanjay Yadav, J. Before dwelling on the matter on merits it is worth taking note of the fact that the matter was initially listed on 31.05.2016 when the notice was accepted on behalf of respondent No.1 by Shri Diwakar. On 06.06.2016, when the matter was next posted, learned counsel for respondent No.1 again took notice and was granted time to file reply to the stay application. On other respondents, notices were directed to be issued. On 24.06.2016, respondent No.6, 7, 9 and 11 were represented. Whereas, permission was granted to learned counsel for respondent No.1 to file his reply during course of day. With taking note of appearance of Shri B.R. Koshta for certain respondents, the matter was directed to be posted on 27.06.2016. When the matter is taken up today and is to be heard on the application for stay, learned counsel for contesting parties expressed that it may be finally heard as all the contentions are raised in reply to stay application. It is in these circumstances the matter is finally heard. 2. Challenge in this petition is to an order dated 07.04.2016 and 24.05.2016 and consequential relief of quashment of election certificate issued by the Sub- Divisional Officer under Rule 83 of the M.P. Panchayat Election Rules 1995, in favour of respondent No.1. 3. Petitioner with 156 votes was declared elected as Sarpanch, Gram Panchayat Devarigarhi, Janpad Panchayat Panna. Respondent No.1 having lost the election getting 154 votes filed an election petition under Section 122 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 for recounting of votes and declaration of petitioner's election as null and void and for declaring her as Sarpanch. The election Tribunal in the said proceedings on the basis of pleadings and counter pleadings but without recording any evidence, recorded a prima facie finding on 23.11.2015. The election Tribunal in the said proceedings on the basis of pleadings and counter pleadings but without recording any evidence, recorded a prima facie finding on 23.11.2015. ^;kfpdkdrkZ }kjk izLrqr ;kfpdk ,oa nLrkostksa dk voyksdu fd;k tkdj izfr;kph }kjk izLrqr ;kfpdk ds tcko dk ifj'khyu fd;k x;kA ftlls izdV gksrk gS fd ;kph us fjVfuZax vkWQhlj ds le{k iquxZ.kuk djkus gsrq vkosnu izLrqr fd;k gS vkSj bl laca/k esa mlus 'kiFki= Hkh izLrqr fd;k gSA urhts esa gkj&thr dk varj ek= 2 erksa dk gSA izFke n`"V;k e0iz0 fuokZpu fu;e 76 dk ikyu u gksuk izdV gks jgk gSA izkd`frd U;k; fl)kar dk vuqlj.k djrs gq;s ,oa e0iz0 iapk;r fuokZpu vf/kfu;e dh /kkjk 80 dk voyksdu djrs gq;s fnukad 22-02-2015 dks gq;s ernku dh erx.kuk fnukad 26-02-2015 dks xbZ gS] tks xzke iapk;r nsojhx<+h tuin iapk;r iUuk ftGk iUuk ls lacaf/kr gS] dk fjdkMZ fnyk;k tkuk U;k;laxr izrhr gksrk gSA vr% mDr lacaf/kr lqlaxr fjdkMZ lacaf/kr izkf/kdkjh ls cqyk;k tk;sA----* 4. Apparently, only because the Election Tribunal was prima facie convinced that Rule 76 of Rules 1995 was not followed and taking into consideration Rule 80 summoned the record. Evidently, Rule 76 of 1995 Rules provides for scrutiny and rejection of ballot papers by the Returning Officer, whose evidence became inevitable in case of any doubt being there in respect of scrutiny and rejection of ballot paper. It is beyond any comprehension as to how the Election Tribunal on the basis of pleadings and counter pleadings can formulate an opinion, though prima facie that, there has been the violation of Rule 76 of 1995 Rules, merely because the difference of margin are two votes. Be that as it may. 5. The Election Tribunal though summoned the Returning Officer, but without examining him or any other witness to justify non-observation of Rules and more particularly Rule 76 of 1995 Rules passed an order on 07.04.2016 directing for recounting only the basis of scrutiny of record. The order is self explanatory that it is passed only on the basis of perusal of pleadings. The order is self explanatory that it is passed only on the basis of perusal of pleadings. ^izdj.k o layxu nLrkostkas dk voyksdu fd;k x;k rFkk lHkh laca) i{kksa dks lquokbZ dk volj fn;k tkdj fu.kZ; fy;k x;k gS fd fuokZpu dh iquZx.kuk djkbZ tk;sA mDr laca/k esa rglhynkj ,oa fjVfuZax vkWfQlj iUuk dks funsZf'kr fd;k tkrk gS fd jkT; fuokZpu vk;ksx ds erx.kuklaca/kh izko/kkuksa dk ikyu djrs gq;s iquZx.kuk dk dk;Z djkdj fnukad 18-05-2016 ds iwoZ iquZx.kuk ifj.kke bl U;k;ky; esa lhycUn fyQkQs esa izLrqr djsaA mDr dk;Z gsrq fjVfuZax vkWfQlj }kjk ernku dsUnz dzekad 182 ,oa 183 xzke iapk;r nsojhx<+h ds lhYM eri= ds nks fyQkQs vkidks iznk; dj fofgr izfdz;k ds rgr [kksyk tkdj lacaf/kr i{kdkjksa dh mifLFkfr esa iquZx.kuk dk dk;Z djkdj erx.kuk ifj.kke bl U;k;ky; esa rFkk lhYM eri= dks"kky; esa tek djus gsrq i= tkjh gksA* 6. Recounting of votes was carried out by Tehsildar/Returning Officer on 20.05.2016 on the basis whereof the impugned order came to passed on 24.05.2016 declaring respondent No.1 securing 154 votes and the petitioner 141 votes. Respondent No.1 was accordingly declared elected and a certificate was issued on 25.05.2016 on the basis whereof the respondent No.1 is now discharging as Sarpanch. 7. In the backdrop of these facts, the question which arises for consideration is whether the Election Tribunal was justified in directing for recount of votes and whether such a recounting can be delegated. And in case if the answer is in negative whether respondent who is declared elected can hold the post. 8. In Birjha Bai v. State of M.P. 2008 (2) MPLJ 591 a Division Bench of this Court while dwelling on the aspect as to whether a small margin of victory by itself could be a ground for ordering recounting held : “8. ... An election petition seeking a recount must contain a concise statement of material facts and clear evidence in support of the facts pleaded. Small margin of victory by itself is not a ground for ordering recount. A roving and fishing inquiry is not permissible while directing recount of votes. ...” 9. Observing further that the requirement of maintaining secrecy of ballot papers has to be kept in mind, the Division Bench held : “... The requirement of maintaining secrecy of ballot papers has to be kept in mind before directing a recount. A roving and fishing inquiry is not permissible while directing recount of votes. ...” 9. Observing further that the requirement of maintaining secrecy of ballot papers has to be kept in mind, the Division Bench held : “... The requirement of maintaining secrecy of ballot papers has to be kept in mind before directing a recount. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes.” 10. In Smt. Sampat Devi v. Sub-Divisional Officer-cum- Prescribed Authority Niwadi, Tikamgarh 2007 (3) MPHT 462 a Division Bench of this Court while observing that it is illegal and impermissible to delegate the power of recounting in absence of any such provision, held : “16. We cannot be oblivious of an another interesting aspect that has cropped up in this case. The Election Tribunal has innovated a new procedure by constituting a committee of persons, namely, Tehsildar, Niwadi; Revenue Inspector, Niwadi; Senior Agricultural Expansion Officer and Rural Agricultural Expansion Officer. There is no provision for constitution of such kind of a committee. There is nothing on record to say that the Election Tribunal had seen the ballot papers. Mr. K.N. Agrawal, learned Counsel appearing for the appellant has commended us to the decision rendered in Asim Saha v. Collector, Kanker and Ors. 2001 (1) M.P.H.T. 6 (CG), wherein it has been held that it is paramount duty rather pious duty of the Tribunal to itself count and recount the votes and it cannot delegate the power to the third party as it is the duty of the Tribunal, which it must discharge in accordance with law. We concur with the view expressed in the aforesaid decision, for in the absence of any such provision we are of the considered opinion that delegation of such power of recount to a committee and non-verification of the ballot papers by the Tribunal itself is unmistakably illegal and impermissible.” 11. In Chandrawati v. Vijay Rajkumari 2002 (4) MPLJ 74 , while observing that filing of an application for recount does not necessarily mean that the election petitioner can ask for recount of votes on the ground that his application was not entertained and that there has to be an imperative necessity and a foundation has to be made by bringing adequate material on record and adducing cogent evidence, it has been held : “25. ... ... that under the present rules also prescribed for the filing of an application are it is mandatory but that does not necessarily mean that the election petitioner can ask for recount of votes before the Tribunal on the ground that his application for recount was not entertained. As has been indicated hereinbefore there has to be an imperative necessity and a foundation has to be made by bringing adequate material on record and adducing cogent evidence. In the instant case the pleadings, as has been scrutinised by me, do not show the nature of irregularities that had crept in while the counting had taken place. It is not the case of the election petitioner that counting had taken place when there was no electricity supply. The recount could not take place because of non-supply of electricity. The filing of an application for recount is not disbelieved but mere filing of an application does not ipso facto entitle the election petitioner to obtain an order from the Tribunal for recount or the Tribunal shall, in a routine matter direct for recount of votes. There is nothing in evidence to show what were the irregularities or illegalities committed by the Returning Officer so that recount of votes was warranted. In absence of such a base or foundation, I am of the considered view that the Election Tribunal has fallen into gross error by directing recount of votes.” 12. Rule 21 of for Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 lays down the grounds for declaring election to be void, these are : “21. In absence of such a base or foundation, I am of the considered view that the Election Tribunal has fallen into gross error by directing recount of votes.” 12. Rule 21 of for Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 lays down the grounds for declaring election to be void, these are : “21. Grounds for declaring election to be void- (1) Subject to the provisions of sub-rule (2) if the specified officer is of opinion- (a) that on the date of his election the returned candidate who was not qualified or was disqualified to be chosen to fill the seat under the Act; or (b) that any corrupt practise has been committed by a returned candidate or his election agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election in so far as it concerns returned candidate has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by a corrupt practise having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) any non-compliance with the provisions of the Act or of any rules or orders made thereunder.” 13. Similarly, Rule 22 of the Election Petition Rules 1995 "22. Corrupt Practices.- The following shall be deemed to be corrupt practices for the purposes of these rules :- (i) Bribery as defined and explained in clause (1) of Section 123 of the Representation of the People Act, 1951 (No.43 of 1951). (ii) Undue influence as defined in clause (2) of Section 123 of the Representation of the People Act, 1951. (iii) The systematic appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting on grounds of caste, race, community or religion or the use of or appeal to, religious symbols or, the use of or appeal to national symbol such as the national emblem, for national flag, for the furtherance of the prospects of that candidate's election. (iv) The publication by a candidate or his agent or by any other person with the consent whether direct, indirect or implied of the candidate or his election agent of any statement of fact in relation to the personnel character or conduct of any candidate, or in relation to the candidature, or withdrawal from contest of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election. (v) The hiring or procuring whether on payment or otherwise of any vehicle or vessel by a candidate or his agent or any other person with the consent of the candidate or his election agent for the conveyance of any elector other than the candidate himself, and the members of his family or his agent, to or from any polling station provided in accordance with the rules made under the Act : Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to or from any such polling station, shall not be deemed to be a corrupt practise under this clause and if the vehicle or vessel so hired is a vehicle or vessel not propelled by a mechanical power : Provided further that the use of any public transport vehicle by an elector at his own cost for the purpose of going to or coming from, any such polling station shall not be deemed to be a corrupt practise under this clause. Explanation.- In this clause the expression 'vehicle' means any vehicle used or capable or being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise. (vi) The holding of any meeting in which intoxicating liquors are served. (vii) The issuing of any circular, placard or poster having a reference to the election which does not bear the name and address of the printer and publisher thereof. (viii) Personation at election as defined in Section 171-D of the Indian Penal Code, 1860. (ix) The employment or connivance at the employment of any Panchayat officer or servant or an employee as mentioned in sub- clause (d) of clause (1) of Section 36 of the Act as an agent for canvassing. (viii) Personation at election as defined in Section 171-D of the Indian Penal Code, 1860. (ix) The employment or connivance at the employment of any Panchayat officer or servant or an employee as mentioned in sub- clause (d) of clause (1) of Section 36 of the Act as an agent for canvassing. (x) Acting of any Panchayat Officer or servant of an employee as mentioned in sub-clause (d) of clause (1) of Section 36 of the Act as an agent in connection with the election of the candidate." 14. In the case at hand, the sole ground for declaring the election to be void is under clause (d) (iii) & (iv) of sub-rule (1) of Rule 21. And, for proving the same evidence has to be led by the election petitioner to bring home the challenge enabling the Election Tribunal to arrive at a definite conclusion on the basis of such material evidence that the election stood vitiated on the grounds raised. However, no such evidence has been led by the Election Petitioner in the present case as would justify the order for recounting. 15. Taking into consideration the facts on record, the principle of law laid down in the cases of Birjha Bai, Smt. Sampat Devi and Chandrawati (supra), the inevitable conclusion is that the impugned order directing for recounting cannot be sustained and, therefore, quashed. 16. The question which next arises for consideration is as to what relief can be now granted in the wake of the fact that on recounting the petitioner is found to have secured 141 votes and respondent No.1, 154 votes, the said issue is no more res integra and has been settled at rest by the Supreme Court in P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen AIR 1989 SC 640 wherein it is held : "15. Mr. Mr. Padmanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in their orders of reference of the case of N. Gopal Reddy v. Bonala Krishnamurthy C.A. No. 3730 (NCE) of 1986 reported in 1987 JT 406 : AIR 1987 SC 831 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President, of the Panchayat when the recount disclosed that he had secured, 28 votes less than the petitioner. We are unable 19 sustain this contention because as we have stated earlier an order of recount of votes must stand and or fail 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." 17. In view whereof, while setting aside the orders-dated 07.04.2016 and 24.05.2016 and certificate of election issued in favour of respondent No.1, the election of petitioner as Sarpanch is maintained. 18. In the result, petition is allowed to the extent allowed. No costs.