Navin Sinha, J.

1. The petitioner successfully contested for the post of Mukhiya from Gram Panchayat, Raj Haradiya, under the Bhore Block, District Gopalganj. The rival candidate, respondent no. 7, questioned his election in Election Petition No. 8 of 2006, under Sec. 137 of the Bihar Panchayat Raj Act (hereinafter referred to as the Act) before the Munsif, Gopalganj. The relief sought was for recount of ballots and thereafter set aside the election of the petitioner and declare the plaintiff/ respondent no. 7 as having been elected.

2. By order dated 30.4.2007 the Court held that it was prima facie satisfied that a case had been made out for calling the ballot papers and recounting of votes. The consequential orders dated 6.6.2007 and 17.7.2007 came to be passed after recount on an equality of votes that the petitioner and respondent no. 7 had secured 906 votes each and 253 ballots were found invalid from the total of 3409 ballots counted when respondent no. 7 was declared elected as the Mukhiya and the petitioner was unseated. I.A. No. 3487 of 2007 was then filed assailing the orders dated 6.6.2007 and 17.7.2007. The I.A. application is allowed.

3. Learned Senior Counsel Shri Y.V. Giri for the petitioner, submitted that in the original count the petitioner secured 911 votes whereas respondent no. 7 secured only 896 votes. There was thus a difference of fifteen votes. The Election Petition was incompetent, and lacking in allegations of material facts with regard to illegality during counting and did not disclose how the result was materially affected. The recount of ballots was a serious matter affecting the sanctity of the election process and could not be ordered for the mere asking. Sec. 140 of the Act vested power in the Election Court only to declare which candidate received majority of the valid votes. There was no provision for a draw of lots by lottery in an election petition under Sec. 137 of the Act read with Rule 106, if on recount there was equality of votes. Rule 80 of the Bihar Panchayat Election Rules (hereinafter called the Election Rules) dealing with draw of lots was available only at the time of counting of the votes before the Election Officer. The powers of the Election Court are limited to examining the grounds in Sec. 139 of the Act for declaration of invalidity. Rule 80 of the Rules was akin to Sec. 65 of the Representation of Peoples Act (hereinafter referred to as "the R.P. Act"). There is no provision under the present Act or Rules for recount in an election petition as provided for in Sec. 102 of the R.P. Act. The legislature in its wisdom having not done so the Court was required to interpret the law as it stood.

4. In the event of equality of votes during counting of an election petition under the Bihar Panchayat Act, the Election Petition must fail. Alternatively it was urged that if the ballots be equal then the election itself has to be declared void. The petitioner originally got 911 votes which was reduced to 906 in Court in recount. If these five votes be added to the 869 votes originally secured by respondent no. 7 he gets a total of 901 votes only. The grant of 906 votes to him without a discussion from where the balance five votes came makes the order impugned unsustainable.

5. The Court, for the recount was required to call for the Returning Officer and other Government functionaries. The counting of the votes in Court by the Peon of the Court was an incurable illegality. Reliance was placed upon 2005(7) SCC 494, 2007(3) SCC 617, 2004(6) SCC 331, AIR 2003 SC 2271 and AIR 1964 SC 1249 in support of the propositions.

6. Shri Basant Kumar Choudhary appearing on behalf of respondent no. 7 submitted that the present controversy related to recounting of votes for which the determining provision was Sec. 140 of the Act as distinct from Sec. 139, which deals with the issue of disqualification to set aside an election. The words "in fact" in Sec. 140(1) (a) was wide enough to take within