( 1 ) THIS Letters Patent Appeal is filed against an order passed by the learned single Judge in Special Civil Application No. 160 of 1997. By the said order, the learned single Judge dismissed the petition filed by the petitioner for recounting of votes.

( 2 ) IT is the case of the appellant that election of Sarpanch of Lodarani Panchayat was held on June 21, 1995. It was reserved for Scheduled Caste. Over and above the appellant, nomination of Respondent Nos. 1 and 2 were also accepted by the election Officer. The polling took place on June 21, 1995. Votes were counted on june 24, 1995 wherein 1st respondent was found to have got largest number of votes to get elected candidate. Recounting was demanded by the appellant which was granted. On recount, the appellant was found to have polled maximum number of votes and was declared as elected candidate. In these circumstances, first respondent filed Election Petition No. 2 of 1995 in the Court of the Civil Judge (J. D.), Tharad under S. 31 of the Gujarat panchayats Act, 1993 on July 5, 1995. On the same day, he filed an application exh. 5 for recounting of votes on which notice was issued by the Election Tribunal and hearing was fixed on July 17, 1995. The appellant filed his reply to Election petition as well as to application for recounting. On December 18, 1996, the Tribunal allowed application Exh. 5 for recounting filed by the first respondent. At the request of the appellant, however, the order was stayed upto January 18, 1997. The appellant approached this Court by filing Special Civil Application No. 160 of 1997 on January 8, 1997. On January 17, 1997, the learned single Judge dismissed the petition. It is against that order that the present appeal is filed.

( 3 ) MR. Zaveri, learned Counsel for the appellant mainly raised three contentions. Firstly, the learned single Judge has committed an error of law in observing that the petition was filed under Art. 227 of the Constitution of India and not under art. 226 thereof. Secondly, the learned single Judge should not have granted recounting after the appellant was declared as returned candidate by the Election authority. In any case, such an action could not have been taken at interim stage, virtually allowing the Election Petition filed by the first respondent. Finally, the learned single Judge has committed an error of law apparent on the face of the record in not following two decisions of this Court, in Kakvani Hasumal Lilaram v. Bhakhrani Gafar Alimohmad and Ors. , (1972) XIII GLR 624 and Mansukhlal punjalal v. Assistant Collector, Jamnagar, [1996 (2)] XXXVII (2) GLR 442. The learned single Judge has not even referred to those two decisions even though cited at the Bar.

( 4 ) IN the facts and circumstances of the case, we are of the view that the order passed by the learned single Judge does not call for any interference.

( 5 ) WITHOUT expressing final opinion as to maintainability or otherwise of the letters Patent Appeal, we proceed to consider the merits of the matter. The first contention, therefore, does not survive.

( 6 ) REGARDING the remaining two contentions, from the facts of the case, it is clear that the question is of recount of votes. At the counting, the first respondent secured 186 votes, i. e. , one vote more than the appellant, who had secured 185 votes. The appellant demanded recounting, which was granted. At the recounting, the appellant secured 184 votes as against first respondent who secured 183 votes. In these circumstances, the first respondent filed Election Petition and alongwith the petition, he filed an application Exh. 5 praying for recounting, which was granted by the Tribunal. From the facts stated above, the position appears as under : first Count. Second Count Invalid votes first Respondent 186 = 183 + 3 appellant 185 = 184 + 1 second Respondent 67 Not taken in second count. Invalid. 11 Not taken in second count. 449

( 7 ) THUS, lead of one vote has tilted the balance. As