( 1. ) CHALLENGING the order dated 3-4-2007 Annexure P/1 passed by the Upper Commissioner, Bhopal and Hoshangabad Division exercising powers of an Election Tribunal under section 122 of the M. P. Panchayat Raj avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam, 1993) and seeking quashment of the directions issued by the aforesaid order for recounting of 2173 invalid votes, petitioner has filed this petition.

( 2. ) PETITIONER is an elected representatives having been elected in the election to District Panchayat, Vidisha from ward No. 19. Election to the aforesaid post were held on 16. 01. 05 and it is stated that she was declared elected in the aforesaid election by a margin of 46 votes. Challenging the election of petitioner on various grounds, respondent No. 2 - Alpana Saxena filed a election petition under section 122 of the Adhiniyam, 1993 and rules framed thereunder, on the basis of pleadings of the parties six issues were framed. For the purpose of deciding this petition, only issue No. 6 is relevant. Issue No. 6 pertains to the question of recounting prayed for by the respondent No. 2 in the election petition. The election petition was put to trial and has been decided by the impugned order. All the irregularities alleged by the respondent No. 2 in the election petition which were framed vide issues No. 1 to 5, were negated and rejected. As far as the issue No. 6 with regard to recounting of votes is concerned, learned tribunal has rejected the prayer for recounting of all the votes but had ordered recounting of votes limited to the extent of 2173 votes that were declared as invalid and has directed for recounting of these votes.

( 3. ) SHRI Pratip Visoria, learned counsel representing the petitioner submitted that while directing for recounting of the invalid votes numbering 2173, learned tribunal has committed grave error in directing for recounting of votes in a very casual manner without following the principles of law applicable in this regard. Inviting my attention to the pleadings available, the grounds made by respondent no. 2 seeking recounting of the votes, reasons given by the tribunal in paras 6 and 7 directing for recounting, it was emphasised by Shri Visoria that grounds and reasons for recounting are not tenable under the law. Placing reliance on the following two judgments of the Supreme Court in the cases of Shri Satyanarain dudhani vs. Uday Kumar Singh and others, AIR 1993 SC 367 and Chandrika prasad Yadav vs. State of Bihar and others, 2004 (6) SCC 331, Shri Visoria argued that without any basis and cogent material being available for directing recounting, order passed by the tribunal for recounting of votes is unsustainable and he prays for interference into the matter.

( 4. ) REFUTING the aforesaid contention and submitting that recounting order is proper, does not warrant any interference, Shri Deepak Shrivastava, learned counsel representing the respondent No. 2 prays for dismissal of this petition. Inviting my attention to the averments made by the respondent No. 2 in the election petition as contained in para 6, the application filed in the said election petition for recounting of votes as contained in Annexure R/2, learned counsel for the respondent No. 2 submitted that as the order is only a order of remand to the Returning Officer for recounting of the invalid votes considering the margin of votes between the elected body and the defeated candidates being only 46, no case is made out for interference in the matter exercising discretionary relief. Accordingly, he prays for dismissal of this petition.

( 5. ) I have heard learned counsel for the parties at length and perused the record.

( 6. ) BEFORE adverting to consider the dispute involved in this petition, it would be appropriate to take note of the legal principles laid down by the supreme Court in the matter of direction for recounting of votes in a election petition.

( 7. ) WHILE considering the question of reco