- (1.) S. R. Singh, J. Present petition has its genesis in the order, dated 12-7-1995 passed by Subjdivisional Officer Handia, district Allahabad directing second bout of counting of ballot papers in an election petition under Section 12-C of the U. P. Panchayat Raj Act, 1947 (hereinafter referred to as Act' ).
(2.) HEARD Sri H. N, Shukla, counsel appearing for the petitioner and Sri R. C. Singh, appearing for the election petitioner arrayed as respondent No. 3 in the instant petition. At the very outset, it is necessary to delineate that Sri R. C. Singh, learned counsel appearing for the respondent no. 3 does not propose to file counter affidavit and has assented to the petition being disposed of finally at this stage. Sri R. C. Singh has further stated at the bar that other respondents are mere pro forma respondents inasmuch as the impugned order dated 12-7-1995 was passed on the application filed by the third respondent, who happens to be the election petitioner before the Prescribed Authority namely, the Sub-Divisional Officer, Handia. The order for recounting passed by the Sub-Divisional Officer, Handia is abstracted below : The law on the question of recounting of ballots is fairly well settled. In Bhabhi v. Sheo Gov'md and others, AIR 1975 SC 2117 the Supreme Court has laid down the following postulates for lending validity to an order of recounting of the ballots : " (1) that it is important to maintain the secrecy of the ballot which is sacrosanct 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 clear and specific and must be supported by adequate statements of material facts ; (3) 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) 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 out materials for declaring the election to be void ; and (6) that on the special facts of a given case simple 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. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of discretion would undoubtedly be proper. " 6. In Suresh Prasad Yadav v. Jai Prakash Misra, AIR 1975 SC 376, while summarising the principles laid down by it, from time to time, in granting prayer for inspection of ballot papers, the Apex Court adumberated circumstances in which the prayer for inspection of ballot papers could be considered. It was observed that inspection or recount of ballot would be justified only where :- " (1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, (2) on the basis of evidence adduced such allegations are prima facie established affording a good ground for believing that there has been a mistake in counting ; and (3) the Court trying the petition is prima facie satisfied that the making of such an order js imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. " 7. the principles aforestated have been reiterated by the Apex Court in N. Narayanan v. Semhalai and others, AIR 1980 SC 206. The Full Bench of this Court in Ram Adhar Singh v. District Judge, 1985 UPLEBC 317 at p. 326 has held that before an Authority hearing the election petition under U. P. Panchayat Raj Act, can be permitted to look into or to direct inspection of ballot papers, following two conditions must co-exist : " (1) that the petition for setting aside an election contains the grounds on which the election on the respondent is 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. " 8. The order of recounting passed by the Prescribed Authority in the instant case does not conform to the test laid down by the Supreme Court and the Full Bench of this Court in order to lend veneer of validity to the order of recounting. It is evident from the order allowing recounting, as extracted hereinabove, that the Prescribed Authority has not adverted itself to the relevant circumstances on which an inspection could have been allowed by it. The impugned order does not be speak that the relevant circumstances on which an inspection could have been allowed, entered the considerations of the Prescribed Authority and satisfaction as to the existence of conditions sine qua non for ordering inspection would degenerate into a farce sans proper self-direction to these circumstances. It was not enough to quip that allegations regarding irregularities in counting have been made and that the successful candidate had romped home in election by a slender margin. The order for recounting must encapsulate, for its sustenance, that the election petition contains an adequate and plausible statement of all the material facts on which the allegations of irregularity or illegality in counting are founded and must also contain a finding that "on the basis of evidence adduced, such allegations are prima facie established" besides that finding on prima facie satisfaction "that the making of. such an order is imperatively necessary to decide the dispute. " 9. It is admitted that the parties have not yet led evidence in the case. The Sub-Divisional Officer has not recorded his prima facie satisfaction traceable to any evidence or material on record and all that the order impugned laconically refers to, is that there are allegations as to mistakes in the counting without adverting to relevant allegations in the election petition and the materials on which the allegations of irregularities or illegality in counting are said to be prima facie founded except some undisclosed circumsta nces obtaining at that time. In my opinion, the order of recounting passed by the Sub- Divisional Officer, Handia, cannot be allowed to sustain. It is rooted in surmises, conjectures and undisclosed circumstances. 10. Sri R. C. Singh, Counsel appearing for the 3rd respondent urged that the petitioner has an alternative remedy by way of review as contemplated under proviso (vii) to Rule 4 (1) of the U. P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994. Having regard to the context in which the proviso (vii) to Rule 4 (1) has occurred, it appears that the word 'decision' which could be reviewed by the Sub-Divisional Officer, is the final decision under sub-rule (1 ). In any case, even if it be held that the order of recounting also falls within the purview of 'decision', under proviso (vii), such an alternative remedy is not an absolute bar to entertaining a petition under Article 226 of the Constitution. In the circumstances of the case, therefore, I am not inclined to dismiss the petition on the ground that the petitioner has a remedy of review under proviso (vii), Rule 4 (1) of the Rules. 11. In the result, the petition succeeds and is allowed. The impugned order, dated 12-7-1995 is quashed with liberty reserved to the Sub-Divisional Officer to pass a fresh order in accordance with law. Petition allowed. .;