SUNIL AMBWANI, J. - (1.) AN order dated 23.9.2002 passed by the Prescribed Authority/Sub -Divisional Magistrate, Baberu in election petition No, 14 of 2000 under Section 12C of the U. P. Panchayat Raj Act, 1947 directing recount of votes has been challenged by the winning candidate, who was declared elected as Pradhan of Gram Panchayat, Lahureta, Tehsil and Pargana Naraini, district Banda.
(2.) I have heard Sri Shashi Nandan learned counsel for petitioner and Sri B.D. Mandhyan and W.H. Khan for contesting respondents. The facts in brief are that Smt. Zummi Khatoori, respondent No. 2 filed the above election petition for declaring the election of Smt. Hazzee, petitioner as Pradhan of Gram Panchayat, Lahureta. The issue with regard to the jurisdiction of the Court to decide the matter and the payment of requisite fees was decided in favour of e'lection petitioner. The District Judge allowed the Revision No. 45 of 2001 on 15.5.2001 and directed the issue to be decided as fresh once again. The application of the winning candidate was rejected on 11.7.2001, against which the revision was dismissed by the District Judge, Banda and a Writ Petition No. 30837 of 2001, was also dismissed. The election petitioner thereafter filed an application for recount of votes on 24.7.2001, which was directed to be decided after the evidence was recorded. Both the parties adduced oral and documentary evidence on which, prima facie, by an order dated 23.4.2002, Prescribed Authority passed orders for recount, which was challenged in Writ Petition No. 17641 of 2002. This Court set aside the order of recount on 24.7.2002 and directed Prescribed Authority to decide the matter afresh. By the impugned order dated 23.9.2002, Prescribed Authority has directed recount on following grounds : (1) The counting of votes was over by evening of 26.6.2000, whereas the results were declared on the next day on 27.6.2000. (2) From the statement of Santoo, it is found that election petitioner's husband was shouting at the time of counting that manipulations are being made. The complaints and Fax Message were sent at the time of counting to the Administration and Election Officer, which prima facie shows that some manipulation was made. These factors also supported by the persons present in the panda! where the counting was held. (3) Witnesses of the election petitioner as well as the affidavits were filed by her stating that about 50 -60 votes were taken out from the bundle of invalid votes and were added to the valid votes of Smt. Hazzee whereby it was increased from 787 to 846. In case these votes were not added, the election petitioner could have secured 846 instead of 787. Petitioner's husband deposed that there was manipulation of 50 -55 votes. (4) It was stated that 1,808 votes were found to have polled in the ballot box whereas at the time of counting 1,809 votes were counted and entered in Schedule 4K which was prima facie proved that there was irregularities in counting.
(3.) SRI Shashi Nandan appearing for petitioner submits that material particulars with regard to irregularity or malpractices in counting were lacking in election petition and that the evidence led by election petitioner was not sufficient to support the conclusion of the Prescribed Authority with regard to his prima facie satisfaction for recount. The election petitioner wanted a roving inquiry to fish out material for declaring the election to be void. He has relied upon the judgments of Supreme Court in Bhabhi v. Sheo Govind, AIR 1975 SC 2117 and Vadivelu v. Sunderam and Ors., (2000) 8 SCC 355.;