B.L.Loomba, J. - (1.) ELECTION for the office of Pradhan of Gaon Sabha, Sharanpur, district Rae Bareli was held on 5-6-88. Petitioner Ram Pratap Singh and respondent no. 2 Surya Baran Misra were contesting parties. Counting of votes was done on 7-6-88 and out of the total number of votes of 291, it was found that 148 votes were in favour of the petitioner while 139 in favour of respondent no. 2. Petitioner was declared elected. ELECTION petition under section 12-C of U. P. Panchayat Raj Act was filed on 12-6-88 by the respondent in the court of Sub-Divisional Officer Lai Ganj respondent no. 1 and the same is pending consideration.
(2.) RESPONDENT no. 1 moved an application on 18-9-89 (Annexure-3) praying for inspection of the ballot papers and re-counting thereof. Therein it was stated, inter alia, that 20 votes had been illegally cast in favour of the petitioner Ram Pratap Singh which vitiated the result of election and it was necessary in the interest of justice to inspect the ballot papers and have the re-counting of the ballot papers done. Sub-Divisional Officer, Lalganj, respondent no. 1 took up the application on the same day and allowed the same with the direction that the inspection of the ballot papers and re-counting shall be done on 25-9-89 in a presence of the parties. It was mentioned that the evidence of the applicant-petitioner in the election petition bad been closed. No reasoning was given out for allowing the application for inspection and repcounting ,- it is in that way a non-speaking order. Aggrieved by the said order of the Sub-Divisional Officer dated 18-9-89 Ram Pratap Singh filed the present writ petition on 25-9-89 have quashed the said order. The ground of challenge mainly raised is that the application for inspection and re-counting was made on wholly vague grounds and the Sub-Divisional Officer without allowing an opportunity to the petitioner to file his objections and hearing the arguments on behalf of the petitioner as to the maintainability of re-counting application passed the impugned order. In the short counter affidavit filed by the respondent to contest this wr|t petition it has been submitted that the impugned order was passed by the Sub-Divisional Officers on the basis of merit of the case and the same was fully justified to-do complete justice between the parties. Another submission raised is that the petitioner had filed a revision against the impugned order of the Sub-Divisional Officer and the said revision was dismissed by the District Judge Rae Bareli on 22-9-89 and this fact was concealed by the? petitioner and on that ground alone his writ petition merits to be dismissed From copy of the order of the District Judge, it appears that the revision was rejected as not maintainable against an interim order passed in proceedings of election petition.
(3.) IN Ram Adhar Singh v. District Judge, Ghazipur (198J UP LB EC 317). Law on the subject was discussed in great details. It was held that an application under section 12 (c) (1) of the U. P. Panchayat Raj Act must specify the ground on which the election is questioned as also a summary of circumstances alleged to justify the election being questioned on such grounds. It was also held that there should be material in support of the grounds to be disclosed and laid in the matter. It was further held that the following two conditions must co-exist before an authority hearing the election petition under this Act can be permitted to look into or to direct inspection of the ballot papers 5- "1. that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also summary of the circumstances alleged to justify the election being questioned on such grounds ; and 2. the authority's, 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.". The above decision was followed in Banarsi Lai v. Sub-Division Officer (Selected Civil Decisions 1988 (II) 279). IN Suresh Prasad Yadav v. Jai Prakash Mishra (AIR 1975 SC 376) it was held with reference to Rules 53, 63 and 93 of (Representation of People) Conduct of Elections Rules (1961) that an order for inspection and recount of ballot papers cannot be made as a matter of course and the court would be justified in ordering recount of the ballot papers, only when the election petition contains an adequate statement of all the material facts and 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. Similar view was held in an earlier decision of the Honourable Supreme Court in N. Narayanan v. S. Semmalai (AIR 1980 SC 206) wherein it was observed that the relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. In Charan Singh v. District Judge Meerut 1983 ALR Vol. 9 page 431, the order of the Sub-Divisional Officer directing recount merely on the asking of the respondent as a matter of course was quashed and the case was remanded for reconsidering the question of recounting in accordance with law;