The order for recount must be based on a prima facie case and evidence adduced before the order is made, and not from the results emanating from the recount of votes. Compliance with the legal provisions and established principles of law is essential.

As per Hon'ble Shri L.C. Bhadoo, J. :-

1. By this writ petition under Article 226/227 of the Constitution of India, the petitioner, who had contested election for the post of Sarpanch of Village Panchayat Govindvan, Tehsil Bilaigarh, District Raipur, and was elected as Sarpanch by toss method, as the petitioner and respondent No.1 received equal number of votes in counting, has questioned the legality, propriety and correctness of orders dated 31st March, 200S and 13th April, 2005 passed by the Specified Officer in Revenue Case No. 17-A/151 of 2004-2005, whereby the learned Specified Officer ordered for recount of votes and after recounting, declared respondent No.1 as elected instead .of the petitioner.

2. Brief facts leading to filing of this writ petition are that the petitioner herein along with respondents No.1 to 6 herein contested election for the post of Sarpanch of Village Panchayat : Govindvan, Police Station & Tehsil Bilaigarh, District: Raipur, and for the purpose of casting of votes two polling booths namely, Polling Booth Nos. 114 & 115 were fixed. After counting the Returning Officer reached the conclusion that the petitioner herein and respondent No.1 herein secured 365 votes each, therefore, he decided to declare the result by toss method and in that toss method the petitioner herein was declared elected. Thereafter, respondent No.1 herein questioned the said election of the petitioner herein by an election petition filed on 21-22005 under Section 122 of the Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, on the ground that at the end of counting it was informed that she has won the election by a margin of three votes, and after hearing this, she and her supporters started celebrating victory, however, in the meantime, son of the defeated candidate, the petitioner herein manipulated the counting in connivance with the Presiding Officers of Polling Booth Nos. 114 & 115 that the petitioner and respondent No.1 got equal votes. Thereafter, the learned Specified Officer directed for issuance of notice in the election petition and fixed 9th March, 2005 for hearing. On that day, the petitioner herein was present and the matter was adjourned for 23rd March, 2005 for filing reply. On 23rd March, 2005, the petitioner herein filed reply, but the Specified officer was on tour, therefore, the matter was fixed for hearing on 31st March, 2005. On 31st March 2005 affidavits were filed on behalf of respondent No.1 herein in support of the election petition, and it was ordered that since the petitioner in the election petition has requested for recount, same is accepted and the Tehsildar was directed to bring the ballot boxes. The matter was fixed on 13-4-2005 on that day votes were recounted in which respondent No.1 herein secured nine votes more than the petitioner herein. Thereafter, the petitioner herein preferred a revision before the Additional District Magistrate, who held that revision is not maintainable, as such, the petitioner has approached this Court by filing the instant writ petition No. 3187/2005.

3. The petitioner has questioned the order of recount and also the recount on the ground that the order of the Specified Officer is vague, perverse in law and not supported by the facts, same has been passed without applying the mind and without following the law regarding recounting of votes, without giving proper notice and opportunity of hearing, and disposed of the matter in a summary manner without giving opportunity to the petitioner herein for adducing evidence and presenting her case on law and facts.

4. Return has been filed on behalf of respondent No.1 in which preliminary objection has been raised that the order in question has been challenged without raising the grounds and further that the Specified Officer has rightly ordered for recount same was ordered on the basis of the facts and circumstances enumerated in the election petition.

5. I have heard learned counsel for the parties.

6. M