1. In this petition filed under Article 226 of the Constitution, challenge is made to the order dated 24.2.2012 (Annexure P-1) passed under section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (‘Adhiniyam’). The petitioner is an elected Sarpanch of Gram Panchayat, Bhadera. The election in question was held on 21.1.2010 and the counting took place on 30.1.2010. The petitioner was declared elected with the margin of 22 votes over respondents No. 3. The respondent No. 3 filed an election petition under Section 122 of the Adhiniyam before the S.D.O. (Revenue) (Prescribed Authority) to try the election petition as per the Madhya Pradesh Panchayat (Election Petition Corrupt Practices and Disqualification for Membership), Rules, 1995 (hereinafter refferred to as ‘1995 Rules’). The said authority is hereinafter called as ‘Election Tribunal’. The Election Tribunal by its order dated 24.2.2012 annulled the election aforesaid and directed recounting of the votes and further directed to declare the result of election on the basis of the outcome of recounting. This order is under challenge in the present petition.

2. Shri S.S. Raghuvanshi, learned counsel for the petitioner assailed the said order and submits that as per Rule 3 of the said Rules, the security amount is required to be paid on the same date when election petition is filed. By drawing attention of this Court on the statement of the petitioner (Annexure P-10) at page 52, the reply filed by respondent No. 3 before the Tribunal that the election petition is actullay filed on 3.3.2010 by the election petitioner along with his Advocate. It is stated in the said reply Annexure P-10 that the date is erroneously mentioned as 4.3.2010 whereas the election petition is actually filed on 3.3.2010. Shri Raghuvanshi by drawing attention of this Court on Annexure P-12, again submits that the election petitioner has taken this stand on the document dated 25.1.2010 also that election petition is actually filed on 3.3.2010.

3. By placing reliance on the receipt Annexure P-11, Shri Raghuvanshi submits that the requisite amount/security amount is deposited on 4.3.2010. Thus, Shri Raghuvanshi submits that as per the own stand of respondent No. 2, it is clear that the election petition was filed on 3.3.2010, whereas the requisite amount of security was deposited a day later on 4.3.2010 and, therefore, as per Rule 7 of the said rules, the election petition is liable to be dismissed and such a defect was not a curable defect.

4. The next contention of Shri Raghuvanshi is that page 52 Annexure P-10 further shows that the respondent No. 3 herein admitted that he engaged one Shri Santosh Mittra, Advocate to appear in the election petition but erroneously the petitioner did not put his signature in the Vakalatnama of Shri Santosh Mittra. Shri Raghuvanshi submits that the said Vakalatnama is of no use unless it gives authorization by the election petitioner. Thus, the next argument is that as per the stand of petitioner, the election petition was filed by the counsel, who did not have any valid authorization on the date of presentation of election petition and, therefore, the said petition ought to have been dismissed by the Tribunal.

5. The next contention of Shri Raghuvanshi is that it is settled in law that recounting cannot be directed by the Tribunal in a routine and mechnical manner. The secrecy of the vote is utmost important. By placing reliance on series of judgments of this Court and Supreme Court, Shri Raghuvanshi submits that the Tribunal has mechanically directed to recounting of the votes. The learned counsel placed reliance on the statement of Shri R.V. Shidorkar, the Returning Officer (Annexure P-18) in this regard to submit that the said authority has stated that there was no irregularity in the matter of counting of the votes and, therefore, there is no question of consideration of recounting. Shri Raghuvanshi also relied on the statements of the election pe