JUDGMENT K. S. Varma, J. -The petitioner Kali Prasad and opposite party No. 2 Sukh Ram contested the election for the office of Pradhan of Gaon Sabha, Khampur of Pergana and Tahsil Sadar, District Pratapgarh for the term 1972-1977. The polling took place on 26th May, 1972 and counting of votes took place on 4-6-1972. After counting of votes the Returning Officer declared the petitioner as having been elected Pradhan of the Gaon Sabha, Khampur. According to counting, he had received 132 valid votes in his favour and Sukh Ram received 130 valid votes. Sukh Ram filed an election petition and challenged the election of the petitioner under S. 12-C of the U. P. Panchayat Raj Act on a number of grounds and prayed that the election be set aside, A copy of the election petition is Annexure I to the writ petition. On 20-3-1974 sukh Ram moved an application that the election petition may be decided on recounting only and that he would not lead any evidence in the case. Kali Prasad did not oppose the application dated 20-3-1974 and agreed to the case being decided on counting of votes. Ultimately, the Election Tribunal fixed 14-1- 1976 for recounting. The recounting was done on that date and as a result of the recounting Sukh Ram received 122 valid votes while Kali Prasad secured 116 valid votes. Opposite party No. 1 by order dated 29-8- 1977 declared Sukh Ram successful. The order passed by the Election Tribunal, opposite party No. 1 declaring Sukh Ram successful is filed as Annexure 5 to the writ petition. Kali Prasad has challenged the order Annexure 5 by means of this writ petition. 2. The writ petition is opposed by Sukh Ram, opposite party No. 2 who has filed a counter-affidavit in which he has stated that the petitioner did not oppose the application for recounting and if on recounting the opposite party No. 2 has been declared successful, there is no illegality in the order passed by the opposite party No. 1. By and large the case of opposite party No. 2 is that he had applied for recounting of votes and the petitioner did not object to the recounting and the election records were made part and parcel of the record of the Election Petition. By and large the case of opposite party No. 2 is that he had applied for recounting of votes and the petitioner did not object to the recounting and the election records were made part and parcel of the record of the Election Petition. The case of opposite party No. 2 is that since the petitioner had agreed to the recounting he cannot be permitted to challenge the legality of recounting. 3. From a perusal of the order passed by opposite party No. 1, dated 29-8-1977 it appears that before the Tribunal an application was moved on behalf of opposite party No. 2 that he will not produce any evidence and the case be decided on recounting. On this application the petitioner raised no objection. Tribunal, accordingly, took the view that since recounting was not objected to by the petitioner, the other issues earlier framed were unnecessary and the case had to be decided on recounting. 4. During the course of arguments in this writ petition our attention was drawn to a decision rendered by the Supreme Court reported in Ram Autar Singh Bhadauria v. Chaudhari Ram Gopal Singh ( (1976) 1 SCC 43 ). In the said case the Supreme Court held that a general scrutiny and recount of the ballot papers is not to be lightly ordered. According to the Hon'ble Judges before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interests of justice. In the instant case, as observed earlier, the election petitioner Sukh Ram moved an application that the petition be decided on recounting only and that he would not lead any evidence in the case. The Election Tribunal allowed the application on the ground that such a prayer was not opposed by the petitioner Kali Prasad and that he agreed that the case be decided on recounting of votes. In the light of the observations made by the Supreme Court in the aforesaid decision, it was not proper for the Election Tribunal to have ordered the recount of votes merely because the opposite party had agreed to that procedure. As held by the Supreme Court it was the duty of the Election Tribunal to have ascertained whether in the election petition foundation had been laid for ordering a general recount. As held by the Supreme Court it was the duty of the Election Tribunal to have ascertained whether in the election petition foundation had been laid for ordering a general recount. The procedure adopted by the Election Tribunal was, therefore, illegal and he should not have proceeded to decide the election petition merely because the petitioner Kali Prasad agreed to the case being decided on recounting. If the Election Tribunal had no jurisdiction to direct recount unless necessary facts had been pleaded and proved, the consent of the petitioner would not confer jurisdiction on the Election Tribunal to order recount. 5. For the reasons stated above, the writ petition is allowed, the order passed by opposite party No. 1 is set aside and the election petition filed by opposite party No. 2 is dismissed.