Shantanu Kemkar, J. –

1. This intra Court appeal under section 2 of the Madhya Pradesh Uchch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed challenging the order dated 26.7.2010 passed by learned Single Judge of this Court in WP No. 6598/2010.

2. Briefly stated the appellant and the first respondent contested election for the post of Sarpanch of Gram Panchayat Multhan, Tehsil Kasrawad, District Khargone. In the said election the first respondent was declared elected as Sarpanch. Challenging his election the appellant preferred election petition under section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 before the Sub- Divisional Officer (Revenue) Tehsil, Kasrawad. In the said election petition the appellant/election petitioner prayed for recounting of the votes. The Sub-Divisional Officer without framing issues and recording evidence by a non-speaking order dated 20.4.2010 allowed the said prayer made by the appellant and directed recounting of votes. In terms of the said order the recounting of the votes was done and election of first respondent was set aside by the Sub-Divisional Officer vide order dated 25.5.2010 and the appellant was declared elected having found to have secured one vote more than the first respondent.

3. Aggrieved by the order dated 20.4.2010 by which recounting of the votes was ordered as also the result of recounting dated 25.5.2010 declaring the appellant to be elected on the post of Sarpanch, the first respondent tiled a Writ Petition No. 6598/10 before this Court. The said writ petition was allowed by learned Single Judge vide order dated 26.7.2010. The writ Court set aside both orders, restored the status of the petitioner to the post of Sarpanch and directed the Sub-Divisional Officer to decide the election petition in accordance with law preferably within three months. Aggrieved the appellants has filed this appeal.

4. Shri Vivek Dalal learned counsel for the appellant argued that the order of recounting passed by the Sub-Divisional Officer on 20.4.2010 having been carried out and the appellant having been declared elected vide order dated 25.5.2010, the learned Single Judge could not have restored the status of the petitioner (first respondent herein) ignoring the result of the recounting in which the appellant secured more votes and declared elected.

5. Shri A.S. Garg, learned Single counsel for the first respondent on the other hand argued that the procedure adopted by the Sub-Divisional Officer in deciding the election petition being contrary to law laid down by this Court as also by the Supreme Court, the writ petition was rightly allowed the matter has rightly been remanded to the Sub-Divisional Officer for fresh decision in accordance with law. He also argued that in view of the judgment of Supreme Court m the case of Udey Chand v. Surat Singh and another: (2009) 10 SCC 170 and by this Court in the case of Kailash Singh v. Narayan Singh and others, 1999 (1) JLJ 342 as also in the case Uday Singh v. Himmat Singh and others, 1999 (1) JLJ 200, the orders impugned the writ petition could not have been sustained and as such they have rightly been quashed by the learned Single Judge and the first respondent's status has rightly been restored till fresh adjudication of the election petition.

6. Having heard learned counsel for the parties, we find no merit in this writ appeal.

7. On going through the order dated 20.4.2010 by which recounting has been ordered by the Sub-Divisional Officer we find that the recounting has been ordered by a cryptic order, in violation of the law laid down by the Supreme Court in the case of Udey Chand v. Surat Singh (supra) as also by this Court in the cases of Kailash Singh v. Narayan Singh (supra) and Udey Singh v. Himmat Singh (supra). The Supreme Court in the case of Udey Chand v. Surat Singh (supra) has held that since an order for inspection and re-count the ballot papers affects the secrecy of ballot, and as in