Ashok Bhushan, J. - (1.) HEARD Sri Rajendra Prasad Mishra, counsel for the writ petitioner and Sri R.S. Shukla appearing for respondent Nos. 1 to 4. Counter and rejoinder affidavits have been exchanged and both the parties have prayed that writ petition itself be finally decided. With the consent of the parties, the writ petition is being finally decided. By this writ petition, the writ petitioner has prayed for quashing the order dated 22nd May, 2002 passed by Additional District Judge, Allahabad in Election Revision No. 648 of 2001. By the order dated 22nd May, 2002, the Additional District Judge has set -aside the order of election tribunal dated 20th August, 2001 and has directed the election tribunal to get the recounting held in view of the directions issued in revision order.
(2.) THE facts giving rise to this petition, briefly stated, are; election for the officer of Gram Pradhan of Gram Panchayat Sarai Deshav alias Bagi was held in accordance with provisions of U.P. Panchayat Raj Act, 1947. The votes were polled on 20th June, 2000. The counting for votes took place on 25th June, 2000 in which writ petitioner was declared elected as Pradhan having secured 357 votes. Respondent No. 1 secured 351 votes, respondent No. 2 secured 215 votes, respondent No. 3 secured 243 votes and respondent No. 4 secured 17 votes. 57 votes were declared invalid. After the counting of votes result was declared declaring the writ petitioner elected as Pradhan. Respondent No. 1 filed election petition being Election Petition No. 29 of 2001 under section 12 -C of U.P. Panchayat Raj Act, 1947 challenging the election of the writ petitioner. In the election petition grounds were taken to the effect that there are mistakes and irregularities in the counting. It was stated that several invalid votes have been counted in favour of the writ petitioner who was respondent No. 1 in the election petition. The written statement was filed by the elected candidate and evidence was also lead in the election petition. The husband of election petitioner, namely, Abdul Latif, was examined as P.W. 1 and Nooruddin alias Salim was examined as P.W. - 2. Certain documentary evidences were also filed by the election petitioner. The Prescribed Authority vide its judgment and order dated 20th August, 2001 dismissed the election petition. Relief of recounting as prayed in the election petitioner was denied. The election tribunal held that from the arguments raised by the election petitioner, it is clear that election petition is founded only on the ground of suspicion on the basis of which election petitioner wanted recounting to beheld. Election tribunal held that counting was held in presence of husband of election petitioner and no evidence has been brought on the record to prove that any irregularity was committed in the counting. Revision under section 12 -C(6) of U.P. Panchayat Raj Act, 1947 was filed by election petitioner before the Additional District Judge. The revision has been allowed by Additional District Judge vide its judgment and order dated 22nd May, 2002. Learned Additional District Judge in his order held that for recounting sufficient evidence was on the record. The revisional Court after considering the evidence on the record came to the conclusion that there is some manipulation in counting and the counting has not been done in accordance with counting rules, hence the revision is liable to be allowed. The revisional Court directed the election tribunal to get the recounting held. The said order dated 22nd May, 2002 passed by Additional District Judge has been challenged in this writ petition. The counsel for the writ petitioner, challenging the order of Additional District Judge, made following submissions in support of the writ petition: (i) The election petitioner has not given sufficient material facts in the election petition to enable recounting order passed by the Court. The election petitioner also did not bring any evidence on the record to substantiate claim of recounting of votes. The order of recounting passed by Additional District Judge is clearly against the principles laid down by the Apex Court for ordering recounting of votes. Reliance has been placed on judgments of the Apex Court in Bhabhi v. Sheo Govind : A.I.R. 1975 S.C. 2117, Ashok Jain v. XIII Additional District Judge, Agra and others : 2000 (1) A.W.C. 51, Ram Adhar Singh v. District Judge, Ghazipur and others : 1985 UPLBEC 317 (F.B.), Ram Pal Singh v. Prescribed Authority and others, 1999 (90) RD 432, Ramesh Chandra v. Election Tribunal and others : 1997 (88) RD 144. (ii) The election petitioner did not appear as witness to support the allegation of the election petition, hence no order for recounting could have been passed. Reliance has been placed on Rajankumar Shankarrao Teware and another v. Ajit Anantrao Pawar : J.T. 2002 (3) S.C. 376.
(3.) SRI R.S. Shukla appearing for the respondents vehemently refuted the contentions of the counsel for the writ petitioner. Sri Shukla submitted that for recounting two conditions are required to be fulfilled i.e. statement of material facts and prima facie satisfaction of the Court. Sri Shukla contended that prima facie satisfaction does not mean proving of the case to the hilt. It was submitted that there were sufficient materials in the election petition, which were also proved by the statement of husband of the election petitioner, hence the revisional Court did not commit any error in directing for recounting. On the principles of recounting reliance has been placed on Ram Sewak Yadav v. Hussain Kamil Kidwai and other : AIR 1964 SC 1249, S. Baldev Singh v. Teja Singh Swatantra and others : AIR 1975 SC 693, and Mahendra Pal v. Shri Ram Dass Malanger and others : AIR 2002 SC 1291. For the proposition as to what is prima facie case, reliance has been placed on the judgment of Apex Court in Martin Burn Ltd. v. R.N. Banerjee : A.I.R. 1958 S.C. 79, further decision of this Court Anuradhika v. Additional District Judge, Azamgarh and another : 2002 (46) ALR 808, and Smt. Mayadevi v. Special Judge Kanpur and others : 2002 All. C.J. 562. The Counsel for the Respondents submitted that since the revisional Court has only remanded the case, this Court under Article 226 of the Constitution of India cannot interfere with the order of remand.;