JUDGMENT : 1. All the three petitions are heard and decided together as the common thread passes through it is about the election of Sarpanch of Gram Panchayat. 2. WPC No.2888 of 2020 is preferred by Smt. Ishwari Surendra Kashyap, the original returned candidate who was declared elected at Panchayat Election as Sarpanch of village Nigarband, Tahsil Takhatpur, Distt. Bilaspur. The said election was challenged by Smt. Ambalika Kashyap, who has filed Writ Petition No. WPC No.3354/ 2020. Another petition bearing WPCR No.651 of 2020 has been filed by Smt. Ishwari Surendra Kashyap, the returned candidate, to take action against Smt. Ambalika Kashyap and Praveen Kashyap on the ground that they have illegally tampered the bundles of valid and invalid ballot papers of Sarpanch election which were kept in separate plastic bags and prayed for a direction to lodge FIR against them. 3. The facts of the case are that the petitioner and Respondent No.5 amongst others have filed nominations to contest the election for the post of Sarpanch of village Nigarband, Tahsil Takhatpur, Distt. Bilaspur. On 03.02.2020 the election was conducted and after the election the result was declared the petitioner had won by a margin of 22 votes. Subsequently, respondent no.5 Smt. Ambalika Kashyap has filed an election petition before the Sub-Divisional Officer, Kota, on the ground that the valid ballot papers were not shown to her agents and the invalid votes were counted in favour of the returned candidate with the help of Presiding Officer. The primary allegation was that the voting was completed in Booth Nos. 69 & 70 and after making the bundles of the ballots, it was not shown to the election agents and the invalid ballets which were having both thumb sign and markings were considered in favour of the returned candidate, which were otherwise invalid. The election petition having been filed, respondent no. 3 the SDO after pleading, has framed the following 3 issues : 1- D;k xzke iapk;r] fuxkjcan ds ljiap in gsrq fuokZpu esa erx.kuk ds le; vH;fFkZ;ksa ,oe~ muds ,ts.Vksa dks eri= fcuk fn[kk;s ;kfpdkdrhZ ds erksa dks vuk-Ø-&5 ds i{k esa x.kuk fd;k x;k \ 2- D;k vaxqBk yxs eri=ksa dks fof/kekU; djrs gq, vuk-Ø-&5 ¼bZ'ojh lqjsUnz d';i½ ds i{k esa x.kuk dh xbZ gS\ 3- D;k fuokZpu dk;Z esa vfu;ferrk ds laca/k esa rr~le; ;kfpdkdrhZ dh vksj ls f'kdk;r dh xbZ Fkh \ 4. The returned candidate filed her reply, denied the allegation by stating that the ballot papers were shown to the agents of Respondent No.5 and the witnesses also contended the same statement regarding showing of the ballot papers to the Agents of loosing candidate. These averments were not contradicted. The SDO after adducing the evidence of both the parties observed that Smt. Ambalika Kashyap who had filed election petition contended that ballot papers were not shown to her agents during the scrutiny and the seal and thumb impression were present on the ballots whereas the returned candidate Smt. Ishwari Kashyap contended that after showing the ballot papers to all the agents, the bundles were prepared, as such, the SDO had arrived at a finding that there were inconsistencies in the evidence of both the parties and in order to test the veracity of ballots, recounting would be necessary and accordingly order was passed on 30.09.2021 for recounting of the ballot papers (Annexure P-2). Against such order, an appeal was filed before the Additional Collector, Bilaspur (R-2) on the ground that secrecy of ballot papers cannot be made open, however, by interim order dated 21.10.2020 (Annexure P-1), the said appeal was dismissed. Therefore, both the orders of Additional Collector and the SDO are under challenge. 5. Shri Rajeev Shrivastava, learned Senior Counsel appearing for the petitioner assisted by Mr. Mirza Hafeez Baig and Ms. Sonam Shukla, Advocates would submit that the election petition filed by respondent no.5 Smt. Ambalika Kashyap under Section 122 of the C.G. Panchayat Raj Adhiniyam 1993 was not maintainable for the reason that recounting of votes in the election petition cannot be prayed for. He would submit that as per the C.G. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 the relief(s) which can be prayed is defined and other than it recounting cannot be claimed, so the entire election petition was not maintainable. He would further submit that the Election Tribunal was duty bound to consider the question of maintainability of the election petition as it goes to the jurisdictional issue. The reliance is placed in B.Y. Narasimha Prasad Versus M. Veerappa and another (2008) 9 SCC 372 to contend that this Court can look into the matter about the very tenability of the election petition. The reliance is placed in B.Y. Narasimha Prasad Versus M. Veerappa and another (2008) 9 SCC 372 to contend that this Court can look into the matter about the very tenability of the election petition. Attacking the finding of the Election Tribunal he submits that the election Tribunal stepped into the shoes of advisory nature and further the material particulars of the election petition, as required under Rule 5 of Rules 1995, were missing. 6. Learned Counsel for the petitioner Smt. Ishwari Kashyap further placed reliance in Dr. Jagjit Singh V. Giani Kartar Singh AIR 1966 S.C. 773 and would submit that on mere asking, recounting of votes cannot be ordered. It is also submitted that the petitioner has failed to justify the order of recounting and reliance is placed in P.K.K. Shamsudeen Versus K.A.M. Mappillai Mohindeen and others (1989) 1 SCC 526 . It is submitted that the application for recounting was not made as per the requirement, therefore, the petitioner who was a returned candidate cannot be disturbed. He further relied on a decision of the Supreme Court in case of Sukhdev Yadav Vs. State of Bihar reported in (2001) 8 SCC 86 and would submit that the witnesses of respondent no.5 Smt. Ambalika Kashyap have elaborated an exaggerated version in their statements and in the instant case there would hardly be a witness of respondent no.5 whose evidence does not contain some amount of exaggeration or embellishment and therefore the order of recounting and the result thereof is without jurisdiction. 7. Per contra, Dr. N.K. Shukla, learned Senior Counsel appearing for respondent no.5 assisted by Ms. Rashika Soni and Ms. Deepa Jha would submit that the petitioner has not taken any ground that the relief claimed in the election petition is not justified. It is submitted that the High Court though can suo moto dismiss the election petition as mandated u/s 86 of the Representation of People Act, 1950 as the statute allows the same but the similar statutory mandate does not exist under the Act of 1993 and the Rules of 1995. It is stated that no identical procedure exists in Rule 2, as such, the procedure to decide the Panchayat election is different from that of Act, 1950 i.e., Representation of People Act, consequently the law of pleading would be applicable. It is stated that no identical procedure exists in Rule 2, as such, the procedure to decide the Panchayat election is different from that of Act, 1950 i.e., Representation of People Act, consequently the law of pleading would be applicable. He would submit that the contention to the effect that relief clause is not happily worded is raised for first time before this Court which was never raised before the Election Tribunal. It is further submitted that had there been a pleading with respect to the defect in relief clause, it could have been corrected. He further submits that this petition has been filed on 28.10.2020 challenging the two orders i.e., the order of Collector and the Order of S.D.O. Thereafter, the recounting was done and Respondent no.5 was declared as elected candidate. It is further submitted that the recounting is not prohibited under the Chhattisgarh Panchayat Nirvachan Niyam 1995 and on recounting of votes the invalid ballot papers having been separated, 124 votes of the returned candidate were cancelled. 8. It is further submitted that the entire counting was done by the Government officials who do not have any prejudice against either party, therefore, if the petitioner Smt. Ishwari Surendra Kashyap was elected on the basis of wrong ballots and if it was subsequently corrected, the petitioner cannot hold the office and the petition filed by her is liable to be dismissed. 9. Heard the learned counsel for the parties and also perused the documents. Petitioner Ishwari Surendra Kashyap contested the election to the post of Sarpanch held on 03.02.2020 of Gram Panchayat Nagarband, Tahsil Takhatpur District Bilaspur and was declared elected with a margin of 22 votes. Subsequently the election petition was filed by R-5 Ambalika Kashyap before the SDO(Revenue) on 12.02.2020 which is evident from the original records of the election petition. 10. The Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 govern the election petition of the Sarpanch. Rule 6 of Rules, 1995 specifically says about the relief that may be claimed by the petitioner in an election petition. Rule 6 is reproduced here-in-below : Relief that may be claimed by the petitioner. A petitioner may claim- (a) a declaration that the election of all or any of the returned candidates is void; and (b) in addition thereto, a further declaration that he himself or any other candidate has been duly elected. Rule 6 is reproduced here-in-below : Relief that may be claimed by the petitioner. A petitioner may claim- (a) a declaration that the election of all or any of the returned candidates is void; and (b) in addition thereto, a further declaration that he himself or any other candidate has been duly elected. 11. Now comparing it to the relief(s) claimed by respondent no.5, it reads as under: 17- ;g fd vkosfndk@;kfpdkdrhZ ftu nLrkostksa ij fo'okl djrh gS] mls lwph vuqlkj ÁLrqr dj jgh gS rFkk vU; vko';d nLrkost ÁLrqr djus dk viuk vf/kdkj lqjf{kr j[krh gSA vr% ekuuh; U;k;ky; ls ÁkFkZuk gS fd vkosfndk }kjk ÁLrqr ;kfpdk Lohdkj fd;k tkdj xzke iapk;r fuxkjcan esa fnukad 03@02@2020 dks gq;s ljiap in gsrq fuokZpu dh iquZerx.kuk djkus dk vkns'k Ánku djus dh d`ik djsaA lgh@& vEckfydk vkosfndk@;kfpdkdrhZ 12. The election petition only calls for recounting of the votes not the relief which is prescribed under Rule 6 of Rules 1995, therefore, the relief which was claimed apparently appears to be not in consonance with the prescribed Rules which is mandated for maintenance of election petition. 13. The Supreme Court in B.Y. Narasimha Prasad Versus M. Veerappa (2008) 9 SCC 372 while dealing with the jurisdictional issue has observed that when the question of maintainability of the proceeding becomes a jurisdictional issue, the Court was legally bound to address it regardless of whether or not any objection was raised by the other side. Therefore, in the instant case, the relief which was claimed by respondent no.5, was not within the ambit of Rule 6 of an election petition which draws a boundary of claiming relief. Consequently if such relief other than it has been claimed then the question of jurisdiction and maintainability of election petition would certainly arise whether the Election Tribunal was vested with the jurisdiction to entertain it or not. Comparing the relief sought before the Election Tribunal along with the mandate of Rule 6 of Rules 1995, in the opinion of this Court, the election petition itself was not maintainable for the jurisdictional issue as the prayer could not have been granted by the Tribunal and the Election Petition itself was not maintainable. 14. Comparing the relief sought before the Election Tribunal along with the mandate of Rule 6 of Rules 1995, in the opinion of this Court, the election petition itself was not maintainable for the jurisdictional issue as the prayer could not have been granted by the Tribunal and the Election Petition itself was not maintainable. 14. In respect of issue no.1, the Election Tribunal has recorded in its order dated 30.09.2020 that Narendra Kumar Sahu, witness of Election Petitioner Smt. Ambalika Kashyap has stated himself in his cross examination that ballots were not shown to the agents during scrutiny and seal was put in some invalid ballot papers and some of the ballots were having personal markings and few of the ballots were having both seal and markings whereas the witnesses of Ishwari Surendra Kashyap have stated in their cross examination that the ballot papers were shown to every agent and the bundles were prepared, as such, the Tribunal has arrived at a finding that since there are inconsistencies in the version of witnesses of both the parties, the recounting would be necessary in order to avoid the ambiguity. The Chhattisgarh Panchayat Nirvachan Niyam 1995 governs the procedure of election, counting votes etc. Rule 80 Sub-rule (5) of Rules 1995 postulates that after the total number of votes polled by each candidate has been announced and when the election result is declared, no application for recount shall be entertained thereafter. For the sake of convenience, Sub-rule (5) of Rule 80 of Rules 1995 is reproduced herein : “80. Recount of votes. (1) to (4) …..................... (5) After the total number of votes polled by each candidate has been announced under sub-rule (2) of Rule 77 or sub-rule (4) the Returning Officer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter; Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1)”. 15. The original election petition and the papers filed therein would show that the election was declared on 03.02.2020 wherein Ishwari Surendra Kashyap was declared elected. 15. The original election petition and the papers filed therein would show that the election was declared on 03.02.2020 wherein Ishwari Surendra Kashyap was declared elected. The application for recounting was filed after a day i.e., on 04.02.2020, which was received by the Election Officer Takhatpur at about 5.45 p.m. Therefore, admittedly it was not in compliance of Sub-Rule (5) of Rule 80 of The Chhattisgarh Panchayat Nirvachan Niyam 1995. 16. Further the issue whether the recounting can be ordered at the discretion of the Election Tribunal is considered in view of the decision of the the Supreme court rendered in Dr. Jagjit Singh versus Giani Kartar Singh AIR 1966 SC 773 . The answer is in negative. In the said case, the Supreme Court has held that on mere asking, the ballot papers may not be allowed to be inspected and the order of recounting cannot be ordered. In the instant case, the recounting was not asked for immediately as per the C.G. Panchayat Nirvachan Niyam 1995 within a specified time and the allegations are also vague that certain ballot papers were not shown but some had different marking. The recounting application only purports that certain seal was also kept at the place of voting, therefore, the confusion arose. On this issue the order of recounting can be said to be completely vague and without application of mind. The Supreme Court in Tanaji Ramchandra Nimhan Versus Swati Vinayak Nimhan (2006) 2 SCC page 300 held that a challenge to an election by way of election petition was a statutory right and the Court could not grant relief in such an election petition only when proper and sufficient grounds are pleaded and established and not based on general allegations. Further the Supreme Court in Baldev Singh Vs. Shinder Pal Singh (2007) 1 SCC 341 has observed that while ordering for recounting, the necessity of maintaining secrecy of ballot papers should be kept in tact and the direction for recounting shall not be issued only because the margin between the returned candidate and the election petitioner is narrow. Further the Supreme Court in Baldev Singh Vs. Shinder Pal Singh (2007) 1 SCC 341 has observed that while ordering for recounting, the necessity of maintaining secrecy of ballot papers should be kept in tact and the direction for recounting shall not be issued only because the margin between the returned candidate and the election petitioner is narrow. The Supreme Court further held in (1989) 1 SCC 526 P.K.K. Shamsudeen Versus K.A.M. Mappillai Mohindeen that it is settled position of law that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes. 17. Applying the aforesaid principles in the instant case, it would show that recounting of votes by the Election Tribunal itself was not justified. Further more, the election petition had a jurisdictional error, therefore, the Tribunal was not justified to go into it as the very basis of exercising the jurisdiction was missing. In the result, WPC No.2888 of 2020 filed by Smt. Iswhari Surendra Kashyap is allowed and WPC No.3354 of 2020 filed by Smt. Ambalika Kashyap is dismissed. The order dated 21.10.2020 passed by the Collector (Annexure P-1) and the order dated 30.09.2020 passed by the SDO(Revenue) are set aside. 18. In the result, WPC No.2888 of 2020 filed by Smt. Iswhari Surendra Kashyap is allowed and WPC No.3354 of 2020 filed by Smt. Ambalika Kashyap is dismissed. The order dated 21.10.2020 passed by the Collector (Annexure P-1) and the order dated 30.09.2020 passed by the SDO(Revenue) are set aside. 18. With respect to WPCR No.651 of 2020 filed by Smt. Ishwari Surendra Kashyap, considering the nature of allegation and the prayer made therein, the petitioner may take recourse to the proceedings under the common law inasmuch as no finding can be given on the mere allegation without any substantial proof. Consequently, WPCR is disposed off.