ORDER : Parth Prateem Sahu, J. 1. The petitioner has filed this writ petition seeking following reliefs:- “10.1 That, the Hon’ble Court may kindly be pleased to call for the entire records of the case pertaining to the present case. 10.2 That, the Hon’ble Court may kindly be pleased to issue appropriate direction/writ/order setting-aside the order dated 25.03.2022 (Annexure P/1) passed by the Election Tribunal presided by the Respondent No. 3 in Case No. 48/B-121/2019-20 and further, be pleased to set-aside all the subsequent proceedings thereto. 10.3 That, this Hon’ble Court may kindly be pleased to grant any other relief, as it may deem fit and appropriate.” 2. The petitioner has filed this writ petition challenging the legality and sustainability of the order dated 25.03.2022 (Annexure P/1) passed by the Respondent No. 3/Sub-Divisional Officer (R), Rajnandgaon in an election petition filed by the Respondent No. 5 under Section 122 of the Chhattisgarh Panchayati Raj Adhiniyam, 1993 (hereinafter for brevity referred to as the Adhiniyam, 1993). 3. The facts relevant for disposal of this writ petition are that the petitioner and the Respondents No. 5 to 10 contested the election of Sarpanch of Village Panchayat Torankatta, Tehsil and District – Rajnandgaon, Chhattisgarh. Polling of election of Sarpanch, Village Torankatta was held on 28.01.2020. After completion of polling, votes casted were counted on the same day, after polling hours, which continued till late night. After completion of counting of votes, petitioner was declared elected. The Respondent No. 5 filed an election petition under Section 122 of the Adhiniyam, 1993 pleading therein that, at the time of counting of votes at Booth No. 205 & 206 at Village Manki (dependent village of Village Panchayat Torankatta) there was electricity failure twice. There was no proper light at the time of counting of votes. Votes were not properly shown to the election agent present in the counting centre. The election agent of the Respondent No. 5 (election petitioner) submitted written objection, however, it was rejected mentioning that they can file an application to the appellate authority and get the votes recounted there. 4. Election petition was replied by the petitioner and disputed the grounds pleaded therein. The Election Tribunal vide its order dated 22.02.2021 (Annexure P/3) directed for recounting of votes and fixed the date for recounting on 18.03.2021. 4. Election petition was replied by the petitioner and disputed the grounds pleaded therein. The Election Tribunal vide its order dated 22.02.2021 (Annexure P/3) directed for recounting of votes and fixed the date for recounting on 18.03.2021. The order of the Election Tribunal was put to challenge in writ petition bearing WP(C) No. 1919/2021 which was allowed observing that under Rule 11 and 12 of the Chhattisgarh Panchayat Election Petition (Corrupt Practices and Disqualification from Membership) Rules, 1995 (hereinafter for brevity referred to as the Rules, 1995) was not followed. Order of recount was set-aside and the case was remitted back to the Election Tribunal to decide afresh after following the mandate of Rule 11 and Rule 12 of the Rules, 1995. After receiving the case back in remand, the Election Tribunal has passed impugned order, allowed the election petition and further directed for recount of votes. The date fixed for recounting of votes was 28.04.2022. This order of the Election Tribunal-cum-prescribed authority is under challenge in this writ petition. 5. Before proceeding further, it is relevant to point out that the writ petition was filed on 13.04.2022 and on 19.04.2022, this Court passed an interim order staying the effect and operation of the impugned order dated 25.03.2022 till the next date of hearing. 6. Learned counsel for the petitioner submits that the election petitioner failed to make out the case for recounting of the votes. There are some pleadings in the election petition that, twice there was electricity failure, however, it is not proved by placing admissible and cogent piece of evidence. She further contended that merely difference of one vote between two candidates would not be a ground for directing recounting of votes. The ground pleaded in the election petition has to be proved by cogent and reliable piece of evidence. She further contended that the election petitioner has not submitted an application before the presiding officer immediately, after completion of the counting of votes, asking for recounting and therefore, the election petition filed for recounting is not maintainable. It is contended that immediately after counting of votes application for recounting was not made and hence, the relief of recounting granted by Tribunal is erroneous. In support of her contention, she placed reliance upon the decision of the Hon’ble Supreme Court in the case of Smt. Ramrati Vs. Saroj Devi, AIR (1997) SC 3072. 7. It is contended that immediately after counting of votes application for recounting was not made and hence, the relief of recounting granted by Tribunal is erroneous. In support of her contention, she placed reliance upon the decision of the Hon’ble Supreme Court in the case of Smt. Ramrati Vs. Saroj Devi, AIR (1997) SC 3072. 7. On the other hand, learned counsel for the Respondents/State supports the impugned order and submits that pursuant to the interim order passed by this Court, staying the effect and operation of the order dated 25.03.2022 recounting has not been done. 8. Learned counsel for the Respondent No. 5 opposes the submission of the counsel for the petitioner and would submit that the Respondent No. 5 have submitted an application for recounting before the Presiding Officer immediately, after completion of counting of votes and therefore, the submission of counsel for petitioner that election petition filed for recounting of votes is not maintainable, is not sustainable. He submits that the decision upon which learned counsel for the petitioner has placed reliance, has been over-ruled by the Hon’ble Supreme Court in the case of Sohan Lal Vs. Babu Gandhi (2003) 1 SCC 108 . He further contended that the Election Tribunal considering the pleadings made in the election petition, reply to the election petition as also, evidence brought on record by both the sides have passed the impugned order, hence, it does not call for any interference. 9. I have heard learned counsel for the respective parties and also perused the records of the Election Tribunal placed before this Court for perusal. 10. Along with the writ petition, petitioner has submitted copy of the order dated 22.02.2021 (Annexure P/3) which is an order of recount votes. In the said order, Election Tribunal has only considered that the election petitioner in the election petition has pleaded of submissions of written and oral objection. Presiding Officer of Booth No. 206 stated that the written objection was submitted at the time of returning of the polling team and further that they have stated recounting can be done next day. In the order, Election Tribunal has not recorded specific finding of the other reasons for directing re-counting of votes. 11. The order of recounting passed on 22.02.2021 (Annexure P/3) was challenged in WP (C) No. 1919/2021, which was allowed on 05.10.2021 and case was remitted back. In the order, Election Tribunal has not recorded specific finding of the other reasons for directing re-counting of votes. 11. The order of recounting passed on 22.02.2021 (Annexure P/3) was challenged in WP (C) No. 1919/2021, which was allowed on 05.10.2021 and case was remitted back. After receipt of the case in remand, Election Tribunal formulated issues, election petitioner and her witnesses were examined on 21.01.2022. In evidence, 02 witnesses have been examined on behalf of the election petitioner i.e. the election petitioner herself and her election agent, Nares Kumar Sahu. Election agent AW-2 in his evidence stated that the counting of votes for the post of Sarpanch was completed at about 09-09:30 P.M. he further contended that there was twice electricity failure and further stated that after completion of counting of votes, some dispute took place with the Presiding Officer, he was ousted from the counting room. He also gave written application for recounting. He denied the suggesttion that there was no electricity failure. Election petitioner i.e. Yogeshwari Sahu, AW-1 in her statement stated that she was informed by her election agent (AW-2) that at the time of recounting of votes, there was electricity failure due to which, the votes counted were not been seen clearly, each votes have not been shown. Perusal of the election petition would show that in the election petition, there is no pleading that each votes have not been shown, however, there is only pleading that the ballot papers have not been counted clearly, ballot papers were torn and large number of ballot papers have also been declared invalid and on objection made at the time of counting, it was stated that it will be looked into at the last. 12. It is settled law that relief of recounting of votes is not to be granted merely on asking. The pleadings made in the election petition and the grounds raised are required to be proved by the election petitioner by producing admissible and cogent piece of evidence. 13. Election Tribunal in the impugned order dated 25.03.20222 (Annexure P/1) though recorded that the recounting based on the order of recounting of votes dated 22.02.2021 (Annexure P/3) cannot be made basis for deciding election petition as the said order was set-aside. 13. Election Tribunal in the impugned order dated 25.03.20222 (Annexure P/1) though recorded that the recounting based on the order of recounting of votes dated 22.02.2021 (Annexure P/3) cannot be made basis for deciding election petition as the said order was set-aside. It further observed that in the count of votes after polling, and the recounting of votes, the election petitioner and the return candidate have secured different votes, there is change in the number of invalid votes, which creates suspicion on authenticity and veracity of the first counting and observed that the first counting of votes to be suspicious and therefore, it would not be appropriate to held the first counting to be the final counting of votes. The Election Tribunal further considered the difference of votes secured by the election petitioner and the return candidate in first counting and the recounting of votes pursuant to the first order of recounting. The first order directing recounting was set-aside. Tribunal further took into consideration that there is difference of one vote between the election petitioner and the return candidate and concluded that it will be appropriate to direct recount of votes. 14. The difference of one vote only will not be a ground to come to the conclusion that there was some error in counting of votes and issuing direction for recount of votes. In the case at hand, election petitioner stated that failure of electricity during counting, it was denied by the respondents and her witness. In the above facts of the case, to make out a case of electricity failure, some more evidence ought to have produced, official of Electricity Department, evidence of presiding officer etc. No such evidence is produced by election petitioner. Even, the Election Tribunal has not given specific finding on failure of electricity during counting and to be one of the ground to direct recount of votes. In case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen & Ors. reported in (1989) 1 SCC 526 considering the identical situation wherein pursuant to an order of recount of votes, recounting was done and election petitioner therein has been declared to have secure more votes then the returned candidate, Hon'ble Supreme Court has observed thus:- “15. Mr. In case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen & Ors. reported in (1989) 1 SCC 526 considering the identical situation wherein pursuant to an order of recount of votes, recounting was done and election petitioner therein has been declared to have secure more votes then the returned candidate, Hon'ble Supreme Court has observed thus:- “15. Mr. Padamanabhan 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 order reference of the case of N. Gopal Reddy v. Bonala Krishnamurty (1987) 2 SCC 58 and hence it would be a travesty of justice and opposed to all democratic canons to allow respondent 1 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 to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.” In the case at hand, learned Election Tribunal has only considered that at the time of counting and recounting of the votes, there appears to be variation of votes. Learned Tribunal has not come to the conclusion upon appreciation of evidence that some irregularity has been committed while counting of votes. 15. In case of Chandrika Prasad Yadav Vs. State of Bihar & Ors. reported in (2004) 6 SCC 331 the Hon'ble Supreme Court while dealing with the extent of jurisdiction of Election Tribunal to direct re-counting of votes has held thus;- “17. The learned Munsif in his order dated 20.10.2001 failed to analyse the evidences adduced by the parties. He also did not state as to what materials were brought on record to show that there had been illegal reception of votes in favour of the opposite party. Reference to Ex. 4/12 only shows certain interpolation but whether the same had materially affected the result or not had not been taken into consideration. 19. He also did not state as to what materials were brought on record to show that there had been illegal reception of votes in favour of the opposite party. Reference to Ex. 4/12 only shows certain interpolation but whether the same had materially affected the result or not had not been taken into consideration. 19. The learned Munsif despite having opined that an order for inspection of ballot papers cannot be granted to support vague pleas and not supported by material facts but failed to point out as to which averments made by the appellant could be accepted as disclosing material facts, on the basis whereof an order for recounting could be passed. The said order dated 20.10.2001 being not supported by any cogent or valid reasons could not have been sustained.” 16. The Election Tribunal further directed for recounting of votes of all the booths i.e. Booths No. 203, 204, 205 & 206 whereas, in the election petition, the election petitioner has questioned the manner of counting of Booth No. 205 & 206 only. In the decision on the issue of recounting of votes, Hon’ble Supreme Court in the case of Baldev Singh Vs. Shinder Pal Singh 2007 (1) SCC 341 has observed thus: - “25. The question which, therefore, would arise is "as to whether the learned Tribunal was correct in directing re-counting". The officers had categorically stated that consent paper was torn. The fax message which had been sent immediately to the Collector of the District was a contemporaneous document, the genuineness whereof has not been questioned. Apart from the statutory form, even in the said fax message the Returning Officer was categorical in his statement that both the candidates have received equal number of votes and thus, the result of the election to the post of Sarpanch was declared by draw of lots. It also mentioned about the tearing of the written paper on which consent had been given and only in the aforementioned situation, sought for guidance as to what action should be taken in the matter. The official act should be presumed to have been done in the ordinary course of business. A re-counting, as is well known, should not ordinarily be directed to be made. There exists certain limitation in this behalf. 26. The question came up before this Court in M. Chinnasamy v. K.?. The official act should be presumed to have been done in the ordinary course of business. A re-counting, as is well known, should not ordinarily be directed to be made. There exists certain limitation in this behalf. 26. The question came up before this Court in M. Chinnasamy v. K.?. Palanisamy wherein this Court opined: (SCC p. 349, paras 15-16) "The question as to what would constitute material facts would, however, depend upon the facts and circumstances of each case. It is trite that an order of re-counting of votes can be passed when the following ingredients are satisfied: (1) if there is a prima facie case; (2) material facts therefore are pleaded; (3) the court shall not direct re-counting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to. The necessity of 'maintaining the secrecy of ballot papers' should be kept in view before a re-counting is directed to be made. A direction for re-counting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow." 31. In M. Chinnasamy (Supra) the decision in P.K.K. Shamsudeen v. ?.?.?. Mappillai Mohindeens had been noticed. Referring to Jagjit Singh (Dr.) v. Giani Kartar Singh, it had been observed: (Chinnasamy case (Supra), SCC pp. 352-53, para 30): “30. In Jagjit Singh (Dr.) v. Giani Kartar Singh before a three-Judge Bench of this Court, a contention was raised to the effect that when a Tribunal considering the evidence in the light of the allegations made by the election petitioner was satisfied that inspection should be ordered, the same should not ordinarily be reversed in appeal wherein this Court held: (AIR pp. 784-85, para 35) 35. We are not prepared to accept this contention. The order passed by the Tribunal clearly shows that the Tribunal did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the Tribunal should have first enquired whether the application made by the appellant satisfied the requirements of Section 83(1) of the Act; and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that Respondent 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers contained in it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret." " 17. It is settled law that the justification for an order for recounting of votes is not to be derived by the results of recounting of votes. In the case at hand, Election Tribunal swayed away with the result of recounting earlier order, which was set-aside. When case is remitted back for deciding election petition a fresh after following due procedure as prescribed under Rules, 1994, the Tribunal should not have taken into consideration the result of recounting which was not in existence. The Tribunal should have only considered whether prima facie case is made out, based on pleading material facts and the facts pleaded is proved by cogent and acceptable piece of evidence. The Tribunal should have only considered whether prima facie case is made out, based on pleading material facts and the facts pleaded is proved by cogent and acceptable piece of evidence. There is no such discussion and finding recorded by the Election Tribunal. 18. In the aforementioned facts of the case and the decisions of the Hon’ble Supreme Court, I am of the considered view that the election petitioner failed to make out an appropriate case for recounting of votes. For the foregoing discussions, the writ petition is allowed and the order passed by the Election Tribunal dated 25.03.2022 (Annexure P/1) is set-aside. Certified copy as per rules.