Sunil Ambwani, J. - (1.) HEARD Shri R.R. Singh, learned Counsel for the petitioner. Shri B.R. Singh appears for Shri Omkar -respondent No. 3. Learned Standing Counsel appears for respondent Nos. 1 and 2. The respondent Nos. 4 and 5 are proforma respondents. With the consent of parties, the writ petition was heard and is being finally decided.
(2.) THE petitioner contested the elections and was elected as Pradhan of Gaon Sabha Yurajpur, Pargana & Tehsil Zamania. Distt. Ghazipur of which the result was declared on 28.8.2005. Shri Omkar, respondent No. 3 filed an election petition under Section 12 -C of the U.P. Panchayat Raj Act, 1947 on the grounds of material irregularities in the counting of votes. He alleged that at the end of the counting of the votes in the elections in which 2221 electors exercised their right to vote, the election petitioner was found to have secured 587 votes. Shri Ravindra, opposite party No. 1 secured 584 votes; opposite party No. 2 secured 540 votes and opposite party No. 3 secured 430 votes. There were 80 invalid votes. In this manner Shri Omkar, the election petitioner was declared to be winner. When he demanded the certificate, he was told that the result is to be sent to the Asstt. Election Officer and that he will get his certificate from him. The election petitioner kept on waiting. He, however, was later on surprised to learn that Shri Ravindra Singh, opposite party No. 1 was declared as elected with margin of one vote. The petitioner gave the details of the irregularities in paras 5, 6, 7 and 8 and prayed for cancelling the elections or to examine the electoral list, which was marked and the number of ballots, which were issued and if they were found to be 2221 in number, they should be recounted and he should be declared as elected. The Sub Divisional Officer/ Election Tribunal by his order dated 19.3.2008 has directed recount of votes and has summoned the entire records by 28.3.2005 and to hold recounting on 31.3.2008 giving rise to this writ petition. Learned Counsel for the petitioner submits that the Prescribed Authority has misread the evidence on record. He has not given any reason to discard the 'Garna Parishishth' 2GA, which is an authentic paper signed by the Election Officer and has chosen very flimsy grounds for recounting the ballot papers, which will disturb the secrecy of votes. He further submits that the prayer in the writ petition that if the election result be summoned and if 2221 ballots were found to be issued, only then the recount be made, was not considered by the Prescribed Authority.
(3.) THE law with regard to recount of votes is fairly well settled. In Beli Ram Bhalaik v. : AIR1975SC283 the Supreme Court cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yet, from a bedroll of the decisions of this Court, two broad guidelines are discernible; that the court would be justified in ordering a recount or permitting inspection of the ballot papers only where (I) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. In Suresh Prasad Yadav v. : [1975]3SCR21 , Chanda Singh v. : AIR1975SC403 , Manphul Singh v. : [1975]2SCR680 , same principles were upheld. These principles were reiterated in Bhabhi v. : AIR1975SC2117 as follows: (1) That it is important to maintain the secrecy of the ballot which is acrosant and should not be allowed to be violated on frivolous, vague and indefinite allegations: (2) That before inspection is allowed, the allegations made against the elected candidate must be supported by adequate statements of material facts; (3) That the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void and (6) That on the special facts of the given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.;