The main legal point established is that under Rule 80 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995, an application in writing for recounting of votes is essential, and the absence of such application renders any recount order unsustainable.

( 1 ) INVOKING the inherent jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashing the order dated 5-8-2000 passed by the sub Divisional officer, Balaghat-cum-specified officer in Revenue Case No. 5-A of 1999-2000.

( 2 ) THE facts as have been unfurled are that the petitioner was elected Sarpanch from Seoni Khurd Gram Panchayat. The election was held on 28-1-2000 and counting of votes was done on the same day. The petitioner secured 170 votes from polling booth No. 81 and 72 votes from polling booth No. 82. In toto the petitioner secured 242 votes. The respondent No. 4 challenged the election of the petitioner in election petition under the Madhya Pradesh Panchayat Raj Adhiniyam, 1995 before the Sub Divisional officer, Balaghat. It was urged in the election petition that due to electricity failure the counting of votes was not done properly, and hence, there should be recounting. The respondent No. 4 further contended that he should be declared as elected in case he secures more votes on recounting. The petitioner resisted the claim of the respondent No. 4 and contended that the allegations made in the election petition were absolutely untrue and the counting has been done in a proper manner. The stand taken by the petitioner was supported by the other officials. The specified officer considering the application of the respondent No. 4 and the reply of the petitioner directed for recounting of votes vide impugned order and eventually held that the respondent No. 4 has secured 243 votes whereas petitioner had secured 242 votes. In view of the aforesaid conclusion he declared respondent No. 4 to be the elected Sarpanch of the concerned Gram Panchayat. It is averred in the writ petition that the order of recounting passed by the specified officer is unsustainable inasmuch as there is no material for rcounting and further no petition was filed before the returning officer seeeking recounting of votes.

( 3 ) A return has been filed by the answering respondent No. 4 supporting the order of the prescribed officer.

( 4 ) I have heard Mr. Pradeep Sharma and Mr. S. K. Tiwari, learned counsel for the petitioner, and Mr. Sanjay Sarvate learned counsel for respondent No. 4. Learned counsel for the petitioner have submitted that as per Rule 80 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as 'the Nirvachan Niyam) there is provision for filing an application for recounting in writing before the returing officer and as the same has not been done the application for recounting before the Election Tribunal is not tenable. In support of their contention they have placed reliance on the decision rendered in the case of Smt. Ram Rati v. Saroj Devi, AIR 1997 SC 3072. Mr. Sarvate, learned counsel for respondent No. 4, has submitted that when recounting has already been done it is found that respondent No. 4 has secured more votes than the petitioner the order of the specified officer should not be disturbed.

( 5 ) TO appreciate the rival submissions raised at the Bar it is apposite to refer to Sub-rule 1 of Rule 80 of the Nirvachan Niyam. It reads as under :-"80. Recount of votes. (1) After an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under sub-rule (2) of Rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning officer or such officer authorised by him, for a recount of all or any of the votes already counted, standing the grounds on which he demands such recount. "on a fair reading of the aforesaid provision it becomes crystal clear that the candidate, or election agent or counting agent has authority to apply in writing to the returning officer or such officer authorised by him for recount of all or any of the votes already counted. The a