The main legal point established in the judgment is that the election petitioner must provide material particulars for recounting of votes, the power for recounting cannot be delegated, and the burden of proof lies on the election petitioner.

The petitioner has filed the present writ petition challenging the orders dated 26/04/2016 and 22/10/2016 passed by respondents No.3 and 4.

2. The election was held for the post of Sarpanch at Gram Panchayat, Rehli, Tah.Udaypura, Distt. Raisen on 05/02/2015. The petitioner and respondents No.5 to 11 have filed their nomination papers for the said post. On the same date counting of votes has been made and the petitioner secured 280 votes and respondent No.5 has also secured 280 votes. Since the petitioner as well as respondent No.5 secured the same number of votes, therefore, the Presiding Officer has decided to declare the result of election on the basis of lottery basis. On that basis the petitioner won the election and declared Sarpanch of Gram Panchayat, Rehli. Respondent No.5 on 07/02/2015 has raised an objection for the first time about two votes wrongly counted. Respondent No.5 participated in the draw of lots without any objection or reserving right to challenge outcome. Respondent No.5 thereafter filed an election petition under Section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam') on 28/02/2015 and prayed for recounting of the votes.

3. On 28/02/2015 the petitioner has raised a preliminary objection that proper party was not impleaded by respondent No.5, so the election petition should be dismissed on that ground. The petitioner has also filed parawise reply to the election petition filed by respondent No.5 and denied the contentions raised by respondent No.5. Respondent No.3 after receiving the reply of the petitioner has recorded the evidence of both the parties and thereafter passed an order dated 26/04/2016 for recounting of votes. Copy of the said order was not supplied to the petitioner, however, certified copy of the order was supplied by friend of the petitioner who sent copy of the order on Mail to the petitioner. Being aggrieved by the order dated 26/04/2016, the petitioner has filed the present writ petition.

4. Vide order dated 30/04/2016 this Court has passed an interim order in which it has been directed that the proceedings for recounting may go on but result thereof may not be declared. Thereafter the interim order was vacated on 19/10/2016 and the result of the recounting has been declared in which respondent No.5 has been declared as elected candidate vide order dated 22/10/2016. From perusal of the result of the counted votes, it is seen that respondent No.5 has earlier secured 25 votes and the present petitioner has secured 238 votes. From perusal of the order of recounting dated 26/04/2016, the order is only being passed for the election booth Rehli. The petitioner submits that the said order is cryptic in nature as no such objection has been taken by respondent No.5 at the time of counting which led to file election petition. Thus, respondent No.5 has no ground to file the election petition. By the impugned order dated 26/04/2016, the SDO has only directed for recounting of Polling Booth, Rehli, but so far as other polling booths are concerned, as respondent No.5 has not taken any objection, therefore, the recounting of other polling booths is illegal. The order of recounting dated 26/04/2016 also makes it clear that the prescribed authority has not undertaken the exercise of recounting of votes, itself, which is mandatory. The prescribed authority has delegated the powers of recounting to the Tahsildar and the recounting of votes was done by the Tahsildar who was assisted by other staff which vitiated the entire exercise of recounting of the votes.

5. The election petitioner did not make proper application for recounting of votes as it requires under Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995. From perusal of the application, it is clear that the election petitioner did not satisfy any ground whatsoever while asking for recount and only stated that some of the votes were rejected and the election petitioner was not satisfied, t