The secrecy of the ballot is sacrosanct and a recount of ballot papers can be ordered only if the election petitioner makes a prima facie case for recount by pleading and substantiating that the result of the election was materially affected by any irregularity or illegality in the process of counting.

D. P. S. CHAUHAN, J.

( 1 ) THESE are two writ petitions i. e. W. P. No. 350/97 and W. P. No. 3350/97. Writ petition No. 350/97 is filed by Bahoran Lal, who was elcted as Sarpanch of Gram Panchayat Banda and his election was set aside by the Election Tribunal vide order dated 15-1-1997 after recounting of ballot papers on the basis of the impugned order dated 27-7-96 passed in Election Petition No. 40c/144/93-94. Writ Petition No. 3530/97 is filed by one Ganesh Prasad who was also one of the candidates in the contest and in the petition the prayer is for linking the writ petition with W. P. No. 350 of 1997 and for setting the finding against him and for maintaining the order dated 15-1-1997.

( 2 ) HEARD the learned counsel for the petitioner, Shri G. S. Baghel, learned counsel for the respondent No. 1, Shri Rakesh Jain and the learned State counsel, Shri Vivekanand Awasthy.

( 3 ) THE brief facts are that the election for the office of the Sarpanch of Gram Panchayat Banda took place on 30th May, 1994 wherein the petitioner was declared as elected for the office of the Sarpanch. In the election, respondent No. 1 Ganesh Prasad was also one of the candidates. In the said contest there were three candidates, i. e. petitioner Bahoran Lal, respondent No. 1 Ganesh Prasad and respondent No. 2 Jagdish. It was a triangular contest. Petitioner Bahoran Lal having found to have received highest number of votes in the counting was declared as elected by the Returning Officer. This declaration of the petitioner as Sarpanch of Gram Panchayat Banda was challenged by means of an election petition under Section 122 of the M. P. Panchayat Raj Adhiniyam, 1993 (for brevity, hereinafter referred to as 'the Act'), the procedure regarding which is provided in the rules known as "the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 (for brevity, hereinafter referred to as 'the Rules' ). Copy of the election so filed is on the record of the Writ Petition 350/97 as Annexure-P/5.

( 4 ) THE Election Tribunal on 27-7-1996 passed an order recording the finding that he comes to the conclusion that the election petitioner failed to substantiate the allegations levelled against the respondent No. 1 in the election petition and passed an order allowing the application of the election petitioner dated 29-9-94 made in the said election petition and directed the B. D. O.-cum-Election Officer Katni to appear before the Sub-Divisional Officer-cum-Prescribed Authority, Katni along with necessary record for the purpose of the ballot papers on 9-8-96 and thereafter on 15-1-97 after recounting of the ballot papers he declared the election petitioner as elected to the office of the Sarpanch as during the process of recounting he received 217 valid votes whereas respondent No. 1 in the election petition i. e. successful candidate received 207 valid votes and respondent No. 2 in the election petition i. e. Jagdish received 202 valid votes.

( 5 ) LEARNED counsel for the petitioner made two-fold submissions. Firstly, that in the election petition no foundation was made in regard to the recount of the ballot papers and no finding was recorded by the Election Tribunal under the order dt. 27-7-96 in regard to any irregularity in the process of counting of the votes about the improper acceptance, refusal or rejection of any vote or the reception of any vote which was void, and as such the Election Tribunal has committed manifest error in interfering with the election which has violated the secrecy of the ballot papers. Secondly, recounting should not have been ordered as before the Returning Officer no application for recount of the ballot papers was made disclosing the ground regarding any illegality or irregularity in the process of counting by improper acceptance, improper refusal or improper rejection of any vote or the reception of any vote which was void.

( 6 ) SO far as the election petition is concerned, copy o

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