JUDGMENT M.P. Singh 1. The respondent no. 2 was elected as Pradhan of Gaon Sabba Badauli, District Varanasi in the year 1988. 2. The petitioner challenged the said election under section 12-C of the U. P. Panchayat Raj Act (hereinafter referred to as the Act). The ground taken in the election petition was that the Election Officer and his staff were in collusion with the respondent no 2. Counting of the ballot papers was not fair, an objection was raised on behalf of the petitioner at the time of counting but the petitioner and his agents were forced to leave the place where the counting was going on. The petitioner led some evidence in support of his petition and filed an application for recounting. 3. On 29-3-1990 the Sub-Divisional Officer allowed the said application though the election petition is still pending. 4. Now the question is whether this order of recounting was proper on the Sub Divisional Officer has acted in the exercise of jurisdiction with material irregularity and illegality. Against the said order of recounting the respondent no. 2 filed a revision before the learned District Judge. The revisional court by means of the impugned order dated 18-8-1990 set aside the order of recounting. He issued a further direction that the election petition may be disposed of in accordance with law. The present writ petition is directed against this order. 5. Heard Sri Namwar Singh, learned counsel for the petitioner. 6. The learned counsel for the petitioner contended that the order dated 20-3-1990 was interlocutory in nature. No revision lay against the said order. Even if the revision was maintainable, the revisional court could have exercised the power only as contemplated under section 12-C (6) of the Act. Now I consider the question whether the order passed by the Sub- Divisional Officer on 29-3-1990 was in accordance with law or not. A reading of the said order shows that there is no discussion of any evidence before reaching the conclusion that there was a prima facie case for recounting. The order exhibits arbitrariness. It has been passed without following the procedure of law. 7. A similar question was under consideration before the Supreme Court in the case Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 . The order exhibits arbitrariness. It has been passed without following the procedure of law. 7. A similar question was under consideration before the Supreme Court in the case Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 . Although this case was under Representation of People Act, in that case the Court took a view that before an authority or Court dealing with an election petition can look into or direct inspection of ballot papers, the following two conditions must co-exist : (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner reliefs in support of his case (the petition meets the requirement of section 83 (1) of the Representation of the People Act regarding contents of the election Petition), and (ii) the Tribunal is prima facie satisfied that In order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. The Court further observed :- "But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with provision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." 8. In another case Bhabhi v. Sheo Govind. AIR 1975 SC 2117 while considering the scope of section 100 (1) (d). But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." 8. In another case Bhabhi v. Sheo Govind. AIR 1975 SC 2117 while considering the scope of section 100 (1) (d). 101, 102, 92 and the conduct of election rules 1963 the Court has laid down certain guidelines which were Imperative 3 (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) 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 crucial facts of a 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. In the case D. Prasad v. Sub-Divisional Officer, Mr. Justice K. N. Singh, 1974 ALJ 371, while considering the question of inspection in an election petition under section 12-C of the U. P. Panchayat Raj Act, held :- "Once a ballot paper is accepted by the Returning Officer containing the valid vote in favour of the returned candidate there is a presumption that the ballot paper contained valid vote. Justice K. N. Singh, 1974 ALJ 371, while considering the question of inspection in an election petition under section 12-C of the U. P. Panchayat Raj Act, held :- "Once a ballot paper is accepted by the Returning Officer containing the valid vote in favour of the returned candidate there is a presumption that the ballot paper contained valid vote. The Election Tribunal is not entitled to interfere with the decision of the Returning Officer unless evidence is produced before it to show that the Returning Officer failed to comply with the provisions of Rule 21 (m) of the U. P. Panchayat Raj Act Presumption of correctness of acceptance or rejection of ballot paper by the Returning Officer cannot be questioned unless evidence is produced that the Tribunal is satisfied that the Returning Officer failed to comply with the provisions of the Act and the Rules in counting the ballot papers. The Election Tribunal has no jurisdiction to order recount or general scrutiny of the entire ballot papers on mere general aliegations. An election petitioner is required to make out a prima facie case leading evidence and the Tribunal has to satisfy itself on the evidence produced before it that a prima facie case is made out for inspection or general scrutiny of the ballot papers. In the absence of any such evidence or satisfaction by the Tribunal no order for general inspection or scrutiny of the ballot paper is permissible under law". The Court has relied upon the earlier decisions of the Supreme Court Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 , Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 , Jitendra Bahadur Singh v. Krishna Bihari, AIR 1970 SC 276 , Sumitra Devi v. Shri Sheo Shanker Prasad Yadav, AIR 1973 SC 215 . 9. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 , Jitendra Bahadur Singh v. Krishna Bihari, AIR 1970 SC 276 , Sumitra Devi v. Shri Sheo Shanker Prasad Yadav, AIR 1973 SC 215 . 9. This controversy now stands finally settled by a judgment of Full Bench of this Court Ram Adhar Singh v. District Judge, Ghazlpur, 1985 UP LB EC 317, wherein it has been held :- "Before an authority bearing the election under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two condition must co-exist : (1) that the petition for setting aside an election contains the ground 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." 10. Applying the principle of law enuciated in the case of Ram Adhar Singh (supra), In the instant case it can easily be held that the Sub-Divisional Officer while recording a finding on the question of prima facie case for recounting without discussing the evidence has committed an illegality in the exercise of Jurisdiction with material illegality and irregularity. In case if the parties have led oral evidence and filed documentary evidence, then it was mandatory on his part to disenss the same before com ins to the conclusion on the question of prima facie case. Non consideration of the same has vitiated the entire order Now I come to the second contention raised by the learned counsel for the petitioner that the revision was not maintainable as the impugned order was interlocutory in nature. In support of his contention he has relied upon the decision Bhagwat Prasad Misra v. Sub-Divisional Officer Salon, District Rae Bareilly. 1985 UP LB EC 115. Even if I agree that the revision was not maintainable. I am not inclined to interfere with the said order as substantial justice has been done between the parties and the order of the Sub-Divisional Officer dated 29-3-1990 which was wholly illegal has been set aside by the impugned order. 1985 UP LB EC 115. Even if I agree that the revision was not maintainable. I am not inclined to interfere with the said order as substantial justice has been done between the parties and the order of the Sub-Divisional Officer dated 29-3-1990 which was wholly illegal has been set aside by the impugned order. In case if this Court interferes with the order on the ground that the revision was not maintainable, then in order to correct one mistake, this Court will be permitting another mistake to be prepetuated resulting into grave miscarriage of justice. 11. A Division Bench of this Court in the case Banarasi Ral v. D. Ahir, 1964 ALJ 239, relying upon a decision of the Supreme Court in the case Neerappa Pillai v. Raman and Raman, AIR 1952 SCR 583 , held- "We have already come to the conclusion that the Dv. Director of Consolidation in allowing the revision acted in excess of jurisdiction vested in him under section 48 of the Act, we have, however, yet to see whether the exercise of jurisdiction has also resulted in manifest injustice. The writ jurisdiction of this court is an equitable jurisdiction which is to be exercised in the interest of justice and not merely for the purpose of enforcing the technicalities of law." Since the substantial justice has been done, this Court refuses to interfere with the impugned order though the same was without jurisdiction. 12. In another case B. A. H. Khan v. R. T. A. 1963 ALJ 909, the court took the view :- "where the applicant wants to invoke the writ jurisdiction for the purposes of obtaining unfair advantage, the writ petition would be thrown out on this ground alone as the writ jurisdiction is only meant to be exercised in the interest of equity and justice " In another case Bux Singh v. Joint Director of Consolidation, AIR 1966 Alld 156, this Court held :- "Where orders impugned are equitable and substantial justice seems to have been done to the parties, High Court would not be inclined to interfere in its writ jurisdiction merely on the ground that such orders were wrong in law." 13. In the instant case the petitioner wants to take advantage of a wrong order passed in his favour by the Sub-Divisional Officer which has been set aside by means of the impugned order. In the instant case the petitioner wants to take advantage of a wrong order passed in his favour by the Sub-Divisional Officer which has been set aside by means of the impugned order. If the learned District Judge has committed some error but since substantial justice has been done and no prejudice has been caused to the petitioner as yet, I refuse to interfere under the enquity jurisdiction. 14. The last submission made by the learned counsel for the petitioner was that if the Sub-Divisional Officer has committed any mistake by not considering the evidence before passing the order of inspection, then why should the petitioner suffer. In my opinion the submission is devoid of merit. This Court has to look into whether the order of recounting was passed in accordance with law or not. If it is not so, then it has to be held as illegal. I do not find any merit in this writ petition. It is accordingly dismissed in limine. However, it is expected that the Sub-Divisional Officer will dispose of the election petition expeditiously. Petition dismissed.