( 1. ) THE petitioner in the instant writ petition challenges the dismissal of election petition by the S. D. O. as per Order (P-7 ).

( 2. ) PETITIONER preferred election petition under Section 122 of the MP. Panchayat and Gram Swaraj Adhiniyam, 1993 on the ground of irregularity in the counting and the recounting was held in illegal manner by the Presiding Officer. Respondent Nos. 3, 5 and 7 in the reply before SDO contended that counting was properly held. No written application was filed by the petitioner for recounting. On the prayer made by the petitioner recounting was done, still no change was found. SDO as per order (P-4) in spite of giving finding that no written application was filed before the Presiding Officer seeking recount, ordered the recount as per order dated 4-7-2001 and appointed a Committee of three persons. Recounting has been held and report (P-5) was submitted before the SDO. SDO has dismissed the election petition holding that counting was held properly and result remains the same.

( 3. ) SHRI Vivek Rusia, learned Counsel appearing for the petitioner, submits that from the report (P-5) of recounting it is clear that on 24 ballot papers out of 28 some other marks were also found by the lead pen. As such these 24 votes ought to have been discarded and could not be counted in favour of respondent No. 4 Teerat Prasad. He further submitted that double standard has been applied inasmuch as similar votes found in favour of the election petitioner were rejected. ( 4. ) SHRI R. L. Ariha, learned Counsel appearing for respondent No. 4, contended that initial order directing recount is without jurisdiction as no application was filed before the Presiding Officer seeking recount by the election petitioner. As such it was not open to file election petition and maintain it on the ground of recount. Shri Ariha has relied on Rule 80 of the M. P. Gram Panchayat Election Rules. He has also submitted that no case was made out for recount and SDO erred in law in directing the recount to be made.

( 5. ) FIRST submission is that 24 votes which have been counted in favour of elected candidate ought to have been rejected, be examined. On recount it has been found that out of 28 votes which were questioned, on 4 there were signature of the voters. These ballot papers have been rejected and on other 24 the mark of lead pen exist from which it is not possible to identify the voter is the finding recorded by the SDO. As per Rule 76 (1) (a) of the M. P. Panchayat Nirvachan Niyam, 1995 only if a ballot paper contained mark or writing by which voter can be identified shall be rejected not otherwise. The finding of fact has been recorded that on 24 ballot papers mark in question was found by lead pen from which it was not possible to make identification of the voter. It is purely finding of fact. No interference is called for. It is also submitted that counting could not be ordered to be done by a committee comprising of 3 persons, in my opinion, no illegality has been done, counting was directed at the prayer of petitioner and he has lost on recounting.

( 6. ) NEXT question raised by Counsel for respondent No. 4 is that the election petition ought to have been dismissed only on the ground that application seeking recount was not presented before the Presiding Officer. Hence, election petition ought to have been dismissed and no recounting could be held.

( 7. ) THE Supreme Court recently in Sohan Lal Vs. Babu Gandhi and others, 2002 AIR SCW 4803, has overruled its decision in Ram Rati Vs. Saroj Devi, AIR 1997 SC 3072, wherein Rule 76 of the M. P. Panchayat Election Rules, 1994, came for consideration, which is pari materia to Rule 80 of M. P. Panchayat Election Rules, 1995. On consideration of Rule 80, the Apex Court has held that it is not necessary to file application seeking recount before Presiding Officer and Court or Tribunal can see even if application was not filed praying for recount; whether counting was held properly or