Alok Aradfge, J.

1. Shri K. N. Gupta, learned Senior Counsel with Shri F. A. Shah, learned Counsel for the Petitioner.

Shri V. K. Bharadwaj, learned Senior Counsel with Shri Raja Sharma, learned Counsel for Respondent No. 1.

Ms. Nidhi Patankar, learned Deputy Government Advocate for the State.

Shri Sanjiv Jain, learned Counsel for Respondent No. 8.

With the consent of the parties, the matter is heard finally.

2. In this writ petition preferred under Article 226 of the Constitution of India, the Petitioner has assailed the validity of the order dated 25-5-2010 passed by the Sub-Divisional Officer, Nateran by which election petition preferred by Respondent No. 1 under Section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Act) has been allowed and a direction for recount of the votes has been issued.

3. Facts leading to filing of the petition are that election for the post of Sarpanch of Gram Panchayat, Sangrampur, District Vidisha were held on 21-1-2010. The Petitioner as well as the Respondent No. 1 and Respondent No. 8 contested the aforesaid election. The Petitioner was declared elected. Respondent No. 1 and Respondent No. 8 filed an election petition under Section 122 of the Act inter alia on the ground that vote polled in favour of Respondents No. 1 and 8 have been improperly rejected and the votes have not been properly counted. It was pleaded in the writ petition that though an objection was raised at the time of recounting of the votes, however, no heed was paid to the objection preferred by the election Petitioners. The Petitioner filed written statement in which inter alia averments made in the election petition were denied to the effect that election officer has favoured the Petitioner and has wrongly rejected the votes which were validly polled in favour of election Petitioners. It was further pleaded that no objection at the time of counting of the votes was taken by the election Petitioners. The prescribed authority after recording the evidence of the parties and as stated supra, vide order dated 25-2-2010, directed recount of the votes.

4. Learned senior counsel for the Petitioner while drawing the attention of this Court to para 8 of the order passed by the prescribed authority has submitted that the prescribed authority itself has found that witnesses have not stated anything with regard to the irregularities alleged to be committed at the time of counting. It was further stated that no application under Rule 80 of Madhya Pradesh Nirwachan Niyam, 1995 (hereinafter referred to as the Rules, 1995) was submitted before the returning officer. Therefore, such a prayer cannot be made in the election petition. Learned senior counsel further submitted that order for recount of the votes has been passed on the basis of surmises and conjectures. It has further been submitted that mere narrow margin of votes, is not a ground for recount. There was neither any specific pleading nor any material on record to show that there was any irregularity in counting the ballot papers. The order for recount cannot be passed in a casual manner. In support of his submissions, learned senior counsel has placed reliance on Sohan Lal v. Babu Gandhi and Ors. 2003(2) MPLJ (SC) 215 : (2003) 1 SCC 108, Chandrika Prasad Yadav v. State of Bihar and Ors. (2004) 6 SCC 331, Shriniwas Tiwari v. Rajkumar Urmalia and Ors. 2010(5) MPLJ 1 : (2010) 5 MPHT 212, Kamlesh Bai v. Upper Commissioner, Bhopal and Hoshangabad Division and Ors. 2008(2) MPLJ 558, Rajesh Kumar Banshkar v. Malti Parmar and Ors. 2008(4) MPLJ 375 and Rameshchandra Bhilala v. Bashir and Ors. 2010(4) MPLJ 563 : 2011(1) MPHT 35.

5. On the other hand, learned senior counsel for Respondent No. 1 submitted that under Rule 80 of the Rules, the application for recount is not required to be mandatorily filed before the returning officer and the prayer for recount can as well be made in an election petition. In support of aforesaid submission