JUDGEMENT : This writ petition under Article 226 of the Constitution of India has been preferred seeking inter alia setting aside and quashing of an order dated 03.10.2020 passed by the learned District Judge, Barpeta in the capacity of Panchayat Election Tribunal in Misc. [Election] Case no. 08/2019. 2. The relevant facts can be briefly stated as follows :-the petitioner in the General Panchayat Election held in the year 2018, submitted her nomination to contest for the post of President of 15 No. Dakhin Pub Sarukhetri Gaon Panchayat under 7 No. Sarukhetri Dakhin Pub Sarukhetri ZPC. The respondent no. 5 and the respondent no. 6 also contested for the same post of President of 15 No. Dakhin Pub Sarukhetri Gaon Panchayat. The Panchayat Election was held on 09.12.2018. After the election was over, the Deputy Commissioner, Barpeta arranged for counting of votes on 12.12.2018. The counting of votes in respect of the election to the post of President to 15 No. Dakhin Pub Sarukhetri Gaon Panchayat was completed on 12.12.2018 itself and the results were declared on the same day after preparing the result sheets. The respondent no. 5 was declared to be elected to the post of President, 15 No. Dakhin Pub Sarukhetri Gaon Panchayat on the strength of her securing 3471 nos. of votes. As per the result sheets, the petitioner secured 3347 nos. of votes whereas the respondent no. 6 secured 1035 nos. of votes. The result sheets also reflected that the total nos. of votes polled were 8141 and in addition, there were 8 nos. of postal votes. 2.1. Aggrieved by and dissatisfied with the results so declared on 12.12.2018, the petitioner preferred an election petition under Clause [b] of Section 129 the Assam Panchayat Act, 1994, as amended, before the Election Tribunal of the learned District Judge, Barpeta, constituted under Section 127 of the Assam Panchayat Act, 1994, as amended. 2.2. In the election petition, the petitioner had pleaded that gross irregularities were committed during sorting of ballots by the counting staff and officials authorized by the Returning Officer of Panchayat Election inasmuch as the ballots containing votes cast in favour of the election petitioner were mixed with the bundle of ballots containing votes cast in favour of the opposite party no. 2 [in the election petition, the respondent no. 5 i.e. the returned candidate was impleaded as the opposite party no. 2]. 2 [in the election petition, the respondent no. 5 i.e. the returned candidate was impleaded as the opposite party no. 2]. It was pleaded that though at the initial phase of counting of votes, probability of the election petitioner’s winning the contest was seemed to be more but during the last hours of counting, the counting agents of the election petitioner informed her that there was discrimination in the counting process. The election petitioner stated that she had informed the Assistant Returning Officer who was In-Charge of the counting process, about the discrimination in the counting and requested for re-counting the votes received by her but the Assistant Returning Officer, In-Charge of the counting process, did not pay any heed to the election petitioner’s request and the results were declared without any re-counting. Alleging that the entire process of counting for the election to the post of President, 15 No. Dakhin Pub Sarukhetri Gaon Panchayat were full of anomalies, illegalities and discriminations, the election petitioner instituted the election petition on the premise that she was confident that she would secure more votes than the opposite party no. 2 [the respondent no. 5 in the writ petition], if re-counting of votes was allowed. 2.3. In the election petition, the election petitioner made a prayer only for re-counting of ballots with the further prayers to set aside the election of the opposite party no. 2 therein i.e. the respondent no. 5 herein and to declare her elected. In the affidavit sworn in support of the election petition, the petitioner stated that the statements made in the election petition were true to her knowledge and belief. 2.4. The election petition preferred by the election petitioner was registered and numbered as Misc. [Election] Case no. 08/2019. Notices were issued to the opposite parties including the opposite party no. 5 for their appearance. After receipt of the notices, written statements were filed both by the opposite party no. 1 as well as by the opposite party no. 2. 3. The learned Tribunal heard the learned counsel for the parties on the issue of recounting of ballots on 15.11.2019. The learned Tribunal noted that the election petition preferred by the election petitioner was only for re-counting of ballots and no other relief was sought for. The learned Tribunal had also noted that there was nothing to prove by way of any additional affidavits. The learned Tribunal noted that the election petition preferred by the election petitioner was only for re-counting of ballots and no other relief was sought for. The learned Tribunal had also noted that there was nothing to prove by way of any additional affidavits. As the learned Government Pleader appearing for the opposite party no. 1 i.e. the Deputy Commissioner, Barpeta and the learned counsel appearing for the opposite party no. 2 i.e. the returned candidate had submitted before the learned Tribunal that they had no objection if the learned Tribunal passed an order for re-counting of ballots. It was on the basis of such submissions and concessions made by the learned counsel for the opposite parties, the learned Tribunal by its order dated 15.11.2019, had allowed the prayer for re-counting of ballots. It was ordered that the re-counting of ballots would take place in the office of the District and Sessions Judge, Barpeta at 02-00 p.m. on 12.12.2019. It was also ordered that the re-counting would be conducted by two officials from the office of the District and Sessions Judge, Barpeta and they would be assisted by required nos. of Jarikaraks for smooth counting of ballots. The learned Tribunal had also appointed the learned Civil Judge, Barpeta and the learned Munsiff No. 2, Barpeta as observers with the further direction to them to be present during the re-counting of ballots. The learned Tribunal had also permitted the learned Government Pleader, Barpeta and the learned counsel for the opposite parties along with the election petitioner and the opposite parties to be present at the time of re-counting of ballots. 4. Accordingly, in terms of the order dated 15.11.2019 of the learned Tribunal, the recounting of ballots took place on 12.12.2019 under the supervision of the learned Civil Judge, Barpeta and the learned Munsiff No. 2, Barpeta as observers. In the re-counting of ballots, the total nos. of ballots found were 8184. Out of those 8184 ballots, 354 nos. of ballots were found rejected. The votes cast in favour of the 3 [three] contesting candidates to the post of President, 15 No. Dakhin Pub Sarukhetri Gaon Panchayat during the re-counting ballots were as follows : Result Sheets Election Case no. 08/2019 Total ballots found 8148 Total rejected : 354 Total valid votes secured by the contensting candidates 1. Apsara Begum [the writ petitioner herein] 3334 nos. 2. 08/2019 Total ballots found 8148 Total rejected : 354 Total valid votes secured by the contensting candidates 1. Apsara Begum [the writ petitioner herein] 3334 nos. 2. Jasmina Sultana [the respondent no. 5 herein] 3435 nos. 3. Sashima Begum [the respondent no. 6 herein] 1025 nos. 5. The learned Tribunal after receipt of the result sheets of re-counting had, in its order dated 03.01.2020, recorded the total ballot papers found being polled as well as the valid votes in favour of the contesting parties in the election petition. As the result sheets of recounting recorded higher number of votes in favour of the respondent no. 5, the learned Tribunal had accepted the same and observed that the respondent no. 5 had won the election to the post of President, 15 No. Dakhin Pub Sarukhetri Gaon Panchayat. Having observed that it had no reasons to interfere with the results declared on 12.12.2018, the learned Tribunal dismissed the election petition on contest by upholding the results declared on 12.12.2018 relating to the election held for the post of President, 15 No. Daksin Pub Sarukhetri Gaon Panchayat. 6. I have heard Mr. P. Mahanta, learned counsel for the petitioner; Mr. A. Roy, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1 and 4; Mr. B. Deori, learned Junior Government Advocate, Assam for the respondent no. 2; Mr. R. Dubey, learned Standing Counsel, Assam State Election Commission [ASEC] for the respondent no. 3; and Mr. R. Ali, learned counsel for the respondent no. 5. None has appeared for the respondent no. 6 despite service of notice. 7. Mr. Mahanta, learned counsel for the petitioner has submitted that after the process of re-counting was over, the learned Tribunal ought to have fixed the matter for hearing on the process of re-counting of ballots. It is his contention that the result sheets of re-counting of ballots had to be treated as a valid piece of material which is required to be laid as evidence at the stage of evidence at a later point of time in the proceedings. Since the learned Tribunal did not allow the petitioner to lead evidence, the impugned order dated 03.01.2020 is liable to be interfered with. Since the learned Tribunal did not allow the petitioner to lead evidence, the impugned order dated 03.01.2020 is liable to be interfered with. He has further submitted that the entrustment of the task by the learned Tribunal for re-counting of the ballots amounted to appointment of Commission and as per notification dated 30.09.2020, the learned Election Tribunal for the purpose of disposal of the election petition, is required to follow the procedure of the civil court while deciding an election petition under the Panchayat Act. On that count also, the order dated 03.01.2020 is liable to be interfered with and the matter should be remanded back to the learned Tribunal for deciding the election petition of the election petitioner from the stage subsequent to the re-counting of ballots. 8. Mr. Ali, learned counsel appearing for the respondent no. 5 has submitted that the petitioner in her election petition, had made a prayer only for re-counting of ballots. The election petition was not supported by the necessary pleadings required in respect of an election petition. It is his contention that an election petition is filed under Section 129[b] read with Section 127 of the Panchayat Act read with Rule 54 of the Assam Panchayat [Constitution] Rules, 1955. It is contended by him that an order for re-counting is not ordinarily passed as a matter of course. If after the re-counting of ballots, the inter se positions of the contesting parties remain the same then no further action is required to be taken in an election petition when the election petition is preferred only for re-counting simpliciter. 9. Mr. Roy, learned Standing Counsel, Panchayat P&RD Mr. Deori, learned Junior Government Advocate, Assam; and Mr. Dubey, learned Standing Counsel, Assam State Election Commission [ASEC] have all stressed on the requirement of keeping the sanctity of election process intact. All of them have submitted that an election petition has to be treated on the basis of the case pleaded by the election petitioner. They have endorsed the submissions made by the learned counsel for the respondent no. 5. 10. I have considered the submissions of the learned counsel for the parties and have also gone through the pleadings of the election petitioner as well as the materials available in the case records of Misc. [Election] Case no. 08/2019 in original, which were called for by order dated 14.02.2020. 11. 5. 10. I have considered the submissions of the learned counsel for the parties and have also gone through the pleadings of the election petitioner as well as the materials available in the case records of Misc. [Election] Case no. 08/2019 in original, which were called for by order dated 14.02.2020. 11. The case pleaded by the petitioner in the election petition has already been mentioned above. The prayer made in the election petition is only for the purpose of recounting of ballots. There is no prayer on behalf of the petitioner in the election petition preferred before the learned Tribunal to adjudicate on the issues regarding improper reception or refusal or rejection of any vote or reception of any invalid vote, etc. Having regard to the pleaded case of the petitioner, it has clearly emerged that the learned Tribunal was not called upon to adjudicate upon the issues as to whether any ballot papers were improperly received, refused or rejected or whether any votes received was void. 12. In Udey Chand vs. Surat Singh and another, reported in [2009] 10 SCC 170, the Hon’ble Supreme Court of India has considered as to when an order for re-counting is to be passed. In the said case, in the election for the post of a Sarpanch of Gram Panchayat under the Haryana Panchayati Raj Act, 1994, the appellant [‘the returned candidate’, for short] was declared elected by a margin of 4 [four] votes, having secured 881 votes as against 877 votes secured by his nearest rival, the respondent no. 1 [‘the election petitioner’, for short]. The election petitioner filed an election petition before the Election Tribunal with the prayer that the election of the returned candidate be set aside; re-counting of votes be ordered; and the election petitioner be declared as elected for the post of Sarpanch. The pleaded case of the election petitioner was that the Returning Officer, on account of political pressure and ill will, wrongly recorded a number of votes secured by the election petitioner and the returned candidate and declared the returned candidate as elected while wrongly cancelling a number of votes cast in favour of the election petitioner. The Election Tribunal directed re-counting of votes cast in the election for the post of Sarpanch. The High Court affirmed the said order for re-counting passed by the Election Tribunal. The Election Tribunal directed re-counting of votes cast in the election for the post of Sarpanch. The High Court affirmed the said order for re-counting passed by the Election Tribunal. On an appeal being preferred before the Hon’ble Supreme Court against the order directing re-counting of votes, the appeal was allowed; the election petition, lacking material facts, was rejected; and consequently, the order passed by the Election Tribunal directing re-counting of votes was set aside. 12.1. In Udey Chand [supra], it has been observed that the salutary principles in the election law are that since an order for inspection and re-count of the ballot papers affects the secrecy of ballots, such an order cannot be made as a matter of course. In the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the propriety and legality in the counting are made out. Before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. :-[i] the election petition seeking re-count 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 to be satisfied. In Udey Chand[supra], a re-counting of ballot papers took place pursuant to the order of the Election Tribunal wherein the election petitioner was found to have secured 878 votes as against 873 votes secured by the returned candidate and as a consequence, the election petitioner was declared elected as the Sarpanch. In that context, the Hon’ble Supreme Court has held that there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding as to how a prima facie case had been made out to order a re-count of the ballot papers and the order was held to be passed mechanically without any application of mind. It has been held that an order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of recount is made and not from the result emanating from the re-count of votes. 12.2. In a three-Judge Bench decision in V.S. Achuthanandan v. P.J. Francis, reported in [2001] 3 SCC 81, it has been observed that if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a re-count is brought in issue before the Supreme Court, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count. 12.3 In Suresh Prasad Yadav v. Jai Prakash Mishra, reported in [1975] 4 SCC 822, the Hon’ble Supreme Court while dealing with the principles of granting prayer for inspection of ballot papers and/or re-counting, has observed as under :- “5…. this Court has repeatedly said, that an order for inspection and re-count of the ballot papers cannot be made as a matter of the course. The reason is twofold. Firstly, such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof. Although no hard-and-fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus. 6. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof. Although no hard-and-fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus. 6. The court would be justified in ordering a re-count of the ballot papers only where : [1] the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; [2] on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and [3] the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.” 12.4. In Satyanarain Dudhnai v. Uday Kumar Singh, reported in [1993] Supp [2] SC 82, the Hon’ble Supreme Court of India observing that re-count of votes should not be ordered as a matter of course, has observed as under:- “10. … A cryptic application claiming re-count was made by the respondent-petitioner before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting ordinarily, it would not be proper to order re-count on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering re-count and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of re-count cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the re-count can be ordered.” 13. An order of re-count cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the re-count can be ordered.” 13. The provisions contained in the Assam Panchayat [Constitution] Rules, 1995, which are framed under the provisions of the Assam Panchayat Act, 1994, more particularly, Rule 44 thereof, have laid down the detailed procedure of counting of votes and declaration of results of Panchayat Election. Sub-rule [1] of Rule 44 has prescribed that the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, shall arrange counting of votes on such day and at such hours and place as he may consider necessary for the purpose in respect of every election. He has to authorize one officer for counting the votes in respect of election of Gaon Panchayat President separately and such officer is to be assisted by such other officers as may be appointed by the Deputy Commissioner or the Sub-Divisional Officer, as the case may be. As per sub-rule [2], on the date, hours and place fixed under sub-rule [1], the officer authorized for counting of votes in respect of the Gaon Panchayat collects the ballot box or boxes as per the procedure prescribed therein and thereafter, has to open the ballot boxes, take out the ballot papers, sort them out against each candidate and count the same in presence of the candidate or their agents, duly appointed by the candidates for the purpose. The conditions for rejection of a ballot paper have been outlined in sub-rule [2] and before such rejection, the authorized officer has to allow inspection of such ballot papers by the candidates or by their agents. 14. It is not the case of the election petitioner in the election petition that any kind of complaint/objection in writing was made by her or on her behalf at the time or at the end of counting of votes regarding any irregularities or anomalies occurred in the counting of votes before the authorized officer. Be that as it may. 14. It is not the case of the election petitioner in the election petition that any kind of complaint/objection in writing was made by her or on her behalf at the time or at the end of counting of votes regarding any irregularities or anomalies occurred in the counting of votes before the authorized officer. Be that as it may. In the case in hand, an order of re-counting of the ballots was made by the learned Tribunal on 15.11.2019 on the basis of the submissions made on behalf of the election petitioner, even in absence of any evidence being led by the petitioner till that stage, and also on the basis of the concessions made by the learned counsel for the opposite parties including the returned candidate. The re-counting was done under the supervision of the learned Civil Judge, Barpeta and the learned Munsiff No. 2, Barpeta on 12.12.2019. The records of the re-counting process reflect that during the re-counting held on 12.12.2019, the petitioner was present in the entire duration of the recounting process which is evident from the result sheets prepared immediately thereafter at the end of re-counting on that day [12.12.2019] itself wherein the nos. of votes cast in favour of each of the contesting candidates figured along with total nos. of votes and the total nos. of rejected votes, as the election petitioner had subscribed her signature on the said result sheets. The learned counsel for the election petitioner had also subscribed his signature in the said result sheets dated 12.12.2019. It is reiterated that as per the result sheets, the nos. of ballot papers/votes cast in favour of the election petitioner was 3334 and the nos. of ballot papers/votes cast in favour of the respondent no. 5 i.e. the returned candidate was 3435. 1025 nos. of ballot papers/votes were found to have been cast in favour of the respondent no. 6. Out of the total votes/ballot papers of 8148, the total number of votes/ballot papers rejected were 354. 15. Rule 54 of the Assam Panchayat [Constitution] Rules, 1995 has provided that other matters not provided in the Assam Panchayat Act, 1995, shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951. 16. 6. Out of the total votes/ballot papers of 8148, the total number of votes/ballot papers rejected were 354. 15. Rule 54 of the Assam Panchayat [Constitution] Rules, 1995 has provided that other matters not provided in the Assam Panchayat Act, 1995, shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951. 16. The Hon’ble Supreme Court of India in T.A. Ahmmed Kabeer vs. A.A. Azeez and others, reported in [2003] 5 SCC 650, after referring to the decisions in Anirudh Prasad v. Rajeshwari Saroj Das, reported in 1980 Supp SCC 53 and Janardan Dattuappa Bondre v. Govind Prasad Shivprasad Choudhury, reported in [1979] 4 SCC 516, had drawn a distinction between two situations : [i] when during the inspection or consequent upon inspection, the Court is called upon to adjudicate upon the issue as to whether any vote or votes were improperly received, refused or rejected or whether any vote received was void, and [ii] a case where no such adjudication is involved but all that is needed is to perform the mechanical process of counting the valid and invalid votes or just placing the votes admittedly cast in favour of a candidate in his box or bundle by removing the same from where they were wrongly placed, or, to put it in other words, where all that is needed to be done is to perform a mere mechanical process of re-counting the votes without any adjudication of validity or invalidity of votes. In T.A. Ahammed Kabeer [supra], it has been held that in case of simple re-counting, the Court is to treat the votes as valid or invalid consistently with the decision of the Returning Officer at the counting or validity or invalidity of votes and without embarking upon the testing the correctness of such decision. The learned Tribunal is simply required to correct the error in counting at the re-count. 17. After the re-counting of ballot papers was completed on 12.12.2019 with the result sheets, the election petition, Misc. [Election] Case no. 08/2019 was taken up by the learned Tribunal on that day itself, that is, on 12.12.2019 where the learned counsel for all the contesting parties were present. The learned Tribunal after having noted the fact that recounting of ballot papers had been completed, posted the election petition on 03.01.2020 for passing necessary order. [Election] Case no. 08/2019 was taken up by the learned Tribunal on that day itself, that is, on 12.12.2019 where the learned counsel for all the contesting parties were present. The learned Tribunal after having noted the fact that recounting of ballot papers had been completed, posted the election petition on 03.01.2020 for passing necessary order. On 03.01.2020, the learned counsel for both the sides were heard by the learned Tribunal apart from perusing the materials on record as a whole including the order dated 12.12.2019 regarding re-counting of ballot papers. Neither from the order date 12.12.2019 nor from the order date 03.01.2020, it is demonstrated that the election petitioner had raised any objection in respect of the results arrived at after the process of recounting of votes completed as per the result sheets dated 12.12.2019. Thereafter, the learned Tribunal had dismissed the election petition on contest by upholding the declaration of the results dated 12.12.2018 for the post of President, 15 No. Dakhin Pub Sarukhetri Gaon Panchayat as in the re-counting of votes also, undertaken on 12.12.2019, the votes cast in favour of the election petitioner were found lesser than the votes secured by the returned candidate. 18. From the pleadings in the election petition, it has already been seen that the election petitioner had set up only the case that the ballot papers containing votes cast in favour of the election petitioner were mixed with the bundle of ballots containing votes for the returned candidate. In the case in hand, even after re-counting of votes, without going into the validity or otherwise of the order of the Election Tribunal directing re-count of votes, the nos. of votes secured by the election petitioner i.e. the writ petitioner was found lesser than the votes secured by the returned candidate i.e. the respondent no. 5 herein and thus, such results of re-counting were not at variance with the results declared on 12.12.2018 after the General Panchayat Election, counted in terms of the provisions of the Assam Panchayat Act, 1994, as amended, read with the Assam Panchayat [Constitution] Rules, 1995. The re-counting of votes which was ordered by the learned Tribunal by its order dated 15.11.2019 was only for the mechanical process of re-counting of votes and in the said process of re-counting the votes also, the results were not favourable for the election petitioner. 19. The re-counting of votes which was ordered by the learned Tribunal by its order dated 15.11.2019 was only for the mechanical process of re-counting of votes and in the said process of re-counting the votes also, the results were not favourable for the election petitioner. 19. Having considered the matter in its entirety and having regard to the law relating to re-counting of votes, this Court is of the considered view that the writ petitioner is not permitted to urge any new grounds in the writ petition which the writ petitioner as the election petitioner, has not pleaded in the election petition filed before the learned Election Tribunal. Thus, in view of the discussion made above and for the reasons assigned hereinabove, the writ petition filed against the impugned order dated 03.01.2020 by the learned Election Tribunal, Nagaon in the election petition, Misc. [Election] Case no. 08/2019 which was preferred only with the prayer for re-counting of votes, is found not merited and consequently, the same is liable to be dismissed. It is accordingly dismissed. There shall, however, be no order as to cost.