JUDGMENT
R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Bhagauti, seeks a writ, order or direction in the nature of certiorari quashing the order dated 25th August, 2003 passed by the Sub-Divisional Magistrate, Fatehpur, respondent No. 4, filed as Annexure-3 to the writ petition and other consequential reliefs. Vide order dated 25th August, 2003, the respondent No. 4 had directed for recounting of the ballot papers in the election held for the post of the Pradhan, Gram Panchayat Ganeshpur, Vikas Khand Bhitaura, Tehsil and District Fatehpur.
2. Briefly stated, the facts giving rise to the present writ petition are as follows :–
Election for the post of the Pradhan, Gram Panchayat Ganeshpur, Vikas Khand Bhitaura, Tehsil and District Fatehpur was notified. The petitioner, Kali Charan, respondent No. 5, and 16 other persons filed their nomination forms. Election was held on 20th June, 2000. Counting was held on 26th June, 2000. In the first round of counting, both, the petitioner and the respondent No. 5, polled 145 votes each. On a request being made by the petitioner, recounting was done on the next day and the petitioner was declared elected by one vote. The respondent No. 5 challenged the election by filing an election petition under Section 12-C of the U.P. Panchayat Raj Act, before the Prescribed Authority, respondent No. 4. A plea was raised in the election petition that irregularity had been committed in the counting of ballot papers and recounting should be done. The Prescribed Authority after considering the pleadings of the parties and the material and evidence on record, had come to the conclusion that in the present case, the difference is only of one vote and that too as a result of recounting. The irregularity has been established and therefore, recounting should be done.
3. I have heard Sri Gulab Chandra, the learned Counsel for the petitioner and Sri R.K. Srivastava, the learned Counsel appearing for the respondent.
4. The learned Counsel for the petitioner submitted that recounting cannot be directed as a matter of course. He relied upon the following decisions :–
(1) Ram Adhar Singh v. District Judge, Ghazipur and Ors., 1985 UPLBEC 317;
(2) Dr. Jagjit Singh v. Giani Kartar Singh and Ors., AIR 1966 SC 773;
(3) P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors., AIR 1989 SC 640;
(4) Anwar Ali v. Prescribed Authority/Sub-Divisional Magistrate, Chunar, District Mirzapur and Ors., (2002) 1 SAC 610 : (2000) 2 UPLBEC 1197;
(5) Radha Krishan v. Pargana Adhikari, Tehsil Kal, Aligarh and Ors., (1996) 2 UPLBEC 1016;
(6) Ram Pher v. State Election Commission, U.P., Lucknow and Ors., (1999) 3 UPLBEC 2089.
5. According to him, the Prescribed Authority ought to have decided the election petition as a whole and should not have passed an interim order for recounting of the votes.
6. Sri R.K. Srivastava, the learned Counsel appearing for the contesting ‘ respondent, however, submitted that the petitioner has been declared elected by a margin of one vote and that to as a result of recounting and therefore, it was in the fitness of thing that the Prescribed Authority after having been satisfied with the irregularity in the counting of the ballot papers, had directed for the recounting. He relied upon the case of Shobh Nath v. State of U.P. and Ors., 1999 (1) AWC 451.
7. In the case of Dr. Jagjit Singh (supra), the Hon’ble Supreme Court has held as under :–
“Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1)(a) of the Act, requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void.”
8. In the case of P.K.K. Shamsudeen (supra), the Hon’ble Supreme Court has held as follows :–
“13. Thus, the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order for recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes.”
9. In the case of Ram Adhar Singh (supra), a Full Bench of this Court has held as follows :–
“19. Applying the principle with regard to inspection of ballot paper enunciated by the Supreme Court in cases arising under the Representation of People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election under the said Act, can be permitted to look into or to direct inspection of the ballot papers, following two condition must the Consolidation Officer exist:–
(1) that the petition for setting aside an election contains the grounds on which the election of the respondent its being questioned as also summary of the circumstances alleged to justify the election being questioned on such ground; and
(2) the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute for doing complete justice between the parties.
It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with ;summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application sunder Section 12-C of the U.P. Panchayat Raj Act, either to look into or direction inspection of ballot papers merely on ;the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned.”
10. In the case of Radha Krishan (supra), this Court has held that the Prescribed Authority has no power to pass interlocutory order or grant interim relief while trying the election petition under Section 12-C of the U.P. Panchayat Raj Act, and the only remedy open is to challenge the order of recounting by means of a writ petition ;before this Court.
11. Similar view was taken by this Court in the case of Ram Pher (supra), wherein this Court has followed the Full Bench decision in the case of Ram Adhar Singh (supra). Full Bench decision of this Court has also been followed in the case of Smt. Jaya Raji v. Smt. Jinnatunnisha and Ors., (1997) 1 UPLBEC 97 and Ramesh Chandra v. Election Tribunal/Deputy Collector, Sikandarabad, District Bulandshahr and Ors., (1997) 1 UPLBEC 90.
12. In the case of Anwar Ali (supra), this Court has held that recounting counter affidavit only be directed where the alleged material irregularity affect the result if recounting is done.
13. In the case of Shobh Nath (supra), this Court has held that where the difference is of only one vote, order of recounting is justified.
14. Applying the principles laid down in the aforesaid cases to the facts of the present case, I find that not only there is a narrow margin of one vote but it is also coupled with the fact that earlier both, the petitioner and the respondent No. 5, had secured equal number of votes, i.e., 145 and only as a result of recounting the petitioner was declared elected. There is sufficient pleading in this behalf for coming to the conclusion regarding irregularity having been committed in the counting of the ballot papers. Hence both these facts together justify the order of recount. In view of the aforesaid discussions, the order does not suffer from legal infirmity.
15. The writ petition fails and is dismissed.