JUDGMENT : D.P.S. Chauhan, J. The Petitioner, who is an elected Pradhan of Gaon Sabha Rasulpur Sed, Development Block Nazibabad, District Bijnor (for brevity, hereinafter referred to as 'the Gaon Sabha') has approached this Court under Article 226 of the Constitution impeaching the order passed by the Sub Divisional Officer, Nazibabad, in the capacity as Election Tribunal under the Uttar Pradesh Panchayat Raj Act, 1947 (for brevity, hereinafter referred to as 'the Act') whereby recount of ballot papers was ordered, and has sought the relief for quashing the same. 2. The brief facts are that one Ikrar Husain, who was one of the candidates at the election for the office of Pradhan of the Gaon Sabha, on having lost the election against the present Petitioner, challenged the election by means of an election petition u/s 12-C of the Act. On the basis of the pleadings of the parties' the Tribunal framed the following issues: 1. Kiya Gaon Sabha Rasulpur said ke mat patra ganana me ganana sthal par dhandli bazi ke gaye 2. Kiya ganana ke samay yachak ko andar jane nahi diya gaya tatha matra aek agent ko prabesh diya gaya. Yadi ho to iska prabhaw. 3. Kiya Yachak ave uske abhibakta ko ginti ke samay maton ko dekhne ka absar pradan nahi kiya gaya. 4. Kiya ganana staff ne abaidh matpatra ko baidh karar dekar prati-badi ke paksh me gin diye tatha abaidh mat patra pratibadi no 1 ke hak me gin diye gaye. Yadi hai to Iska pabhaw. 5. Yachak kis anutosh. pane ka adhikari hai. 3. From the side of the election Petitioner, he and his election agent were examined and, from the side of the returned candidate, Respondent No. 1 in the election petition, and his election agent were examined, before the Tribunal, on 21-9-1988, the election Petitioner moved an application for summoning of the ballot papers and inspection thereof, The Tribunal proceeded to decide the issues on the basis of the evidence led in the election petition but, as is evident from the impugned order, the issues were not decided and no finding on those issues were recorded, instead the Tribunal passed an order for inspection of the ballot papers by saying that prima facie there is nothing regarding commission of irregularities and in such a situation, to know the irregularities, inspection of the record is necessary, and accordingly, record was summoned for 24-1-1990. Before the record could be summoned and recount could be done, this Court passed an interim order on 23-1-1990 staying further proceedings in the election petition. 4. The matter after exchange of the counter and rejoinder affidavits came up before the Court for consideration of an application for vacation of ex parte interim order but, with the consent of the parties, the case itself was beard on merits. 5. Heard learned Counsel for the Petitioner and learned Counsel for the Respondent No. 2 and also the learned Standing Counsel. 6. Learned Counsel for the Petitioner made following two fold submissions: (i) that the impugned order directing inspection of ballot pepers is bad as no inspection could have been directed far fishing out the material on the ground that the Petitioner was not allowed access to the counting pandal: and (ii) that the conclusions arrived at by the Tribunal are 'not based on reasons and. on such conclusions, the order allowing inspection of ballot papers is bad. 7. From the side of the election Petitioner, he and his election agent were examined and, from the side of the returned candidate, he and his election agent were examined. From the order, it is clear that 'the Tribunal, in the impugned order, was not considering the application made for inspection of ballot papers but proceeded for deciding the issues on merits. The Tribunal has not recovered finding on the issues so framed by it. It has not recorded any finding that there has been any DHANDHALEBAJI, i.e. irregularity in the counting at the counting place. It has not recorded the finding as to whether the Petitioner, or his counting agent, was not allowed entry to the counting place by the Election Officer and as to what was the effect, if the allegations were correct. The Tribunal has not recorded any finding that the Petitioner, or his counting agent, was not provided any opportunity at the time of counting of ballot papers and to see them and whether the counting staff treated the invalid ballot papers as valid in favour of the returned candidate and invalid ballot papers were counted in his favour and, if it was so, then to what effect. None of the issues has been decided and no finding has been recorded. None of the issues has been decided and no finding has been recorded. The Tribunal has merely set out the statements made by the witnesses and has not given any reason and has not discussed the evidence while arriving at the conclusion for directing the inspection of the ballot papers. Merits and de-merits of the evidence have not been considered. 8. In the petition, it has been stated that Rules 19-A and 19-B were violated. The Tribunal has not even taken care to look into the provisions. Rule 19-A and Rule 19-B relate to election of members of Gaon Panchayat. Rule 10-A deals with the admission to the poling place and Rule 19-B deals with the procedure for voting. These rules have nothing to do with the controversy so far in the present petition is concerned. The controversy in the present petition is regarding failure to comply with the provisions of the Act and the Rules. 9. Chapter I-E of the Uttar Pradesh Panchayat Raj Rules, 1947, contains the rules regarding the elections of Pradhan and Up Pradhan. The relevant rule regarding persons who may be present at the counting is Rule 21-K, which is as extracted below: 21-K. Person who may be present at the counting. (1) The Nirvachan Adhikari shall not allow any person to be present at the counting of votes except such persons as he may appoint to assist him in counting and every contesting candidate, his Nirvachan Abhikarta and his Ganana Abhikarta. (2) No person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election shall be appointed to assist the Nirvachan Adhikari on counting the votes. (2) No person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election shall be appointed to assist the Nirvachan Adhikari on counting the votes. The rule providing for grounds for rejection of ballot papers is Rule 21-M, which is as extracted below: 21-M. Ground for rejection of ballot papers- (1) The Nirvachan Adhikari shall reject a ballot paper.- (a) if it bears any mar or writing by which an elector can be identified; or (b) if it is spurious ballot paper; or (c) if it has been so damaged or mutilated that its identity as genuine ballot paper cannot be established; or (d) if it bears a serial number or a design different from the serial number or design, as the case may be, of the ballot papers authorized for use at the particular polling place; or (e) if votes are given on it in favour of more candidates than the number of seats required to be filled in a constituency; or (f) if no vote is recorded thereon. (2) A vote recorded on a ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given: Provided that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once against the name of a particular candidate if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (3) The decision of the Nirvachan Adhikari as to the validity of a ballot paper or of a vote given on any such ballot paper shall be final subject, however, to any decision to the contrary given on the trial of an election petition calling in question the election. 10. (3) The decision of the Nirvachan Adhikari as to the validity of a ballot paper or of a vote given on any such ballot paper shall be final subject, however, to any decision to the contrary given on the trial of an election petition calling in question the election. 10. According to Section 12-C of the Act, the election of a Pradhan of a Gaon Sabha can be challenged on the following grounds: (a) the election has not been a free election by reasons that the corrupt practice of bribery or undue influence has extensively prevailed at the election; (b) the result of the election has been materially affected- (i) by the improper acceptance or rejection of any nomination; or (ii) by gross failure to comply with the provisions of this Act or the rules framed there under. 11. The provisions regarding the challenge of the election of pradhan under the Act and the provisions relating to challenge of the elections of the Members to the Legislative Assembly or the Parliament under the Representation of Peoples Act, 1951 slightly differ: u/s 100 of the Representation of Peoples Act, the election could be challenged on the grounds that- (a) on the date of his election the returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution, or this Act, or the Government of Union Territories Act, 1963; or (b) any corrupt practice has been committed by the returned, candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) any nomination has been improperly rejected; or (d)(i) the result of the election in so far as it concerns the returned candidate has been materially affected by improper acceptance of any nomination ; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than an election agent; or (iii) by improper reception, refusal or rejection of any vote or reception of any vote, which is void ; or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act. Thus, u/s 100 of the Representation of Peoples Act, improper reception, refusal or rejection of any vote or reception of any vote, which is void, is an independent ground on establishment of which the election can be set aside if it is found that the result of the election was materially affected in so far as the returned candidate was concerned. In the Act, there is no such independent ground that improper reception, refusal or rejection of any vote or reception of any vote, which is void, is an independent ground for challenge of election. The unsuccessful candidate while challenging the election of Pradhan under the Act has to establish by laying foundation in the election petition that the result of the election has been materially affected by gross failure to comply with the provisions of the Act and the Rules and noncompliance of the provisions under the Act and the Rules has to be established and on establishment of the non-compliance of the provisions of the Act and the Rules, it has further to be established that the result of the election was materially affected by non-compliance of the Act and the rules. In the present case, it has not been considered as to which of the provisions under the Act and the Rules was not complied with and no finding has been recorded for non-compliance. The position under the Representation of Peoples Act is on different footing. There one need not establish non-compliance of any provisions while questioning on the ground of improper rejection, refusal or reception of any vote or receipt on of any vote, which is voiding this view of the matter, the inspection of the ballot paper cannot be directed unless the gross failure to comply with the provisions of the Act and the rules has been prima facie established by evidence by the election Petitioner has failed to establish non-compliance of any provisions of the Act and the rules and no finding has been recorded about non-completive of any provisions of the Act and the rules The Supreme Court in P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, (1989) 1 SCC 526 in para 13 observed as follows: 13. K.A.M. Mappillai Mohindeen and Others, (1989) 1 SCC 526 in para 13 observed as follows: 13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election Petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a seorosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail recounting or votes has to be subject to the basic principle that the secrecy of the Ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes. 12. In the case of Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, AIR 1966 SC 773 , the Supreme Court observed at page 783 as under: Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the Petitioner relies; and in every case, where a prayer is made by a Petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the Petitioner in that behalf contains a concise statement of the material facts on which he relies Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of Justice the ballot boxes should be inspected or not. In dealing with this questions, the importance of the secrecy of the ballot paper cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting It may be that in some cases the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objection about the improper acceptance or improper rejection of votes rendered by voters at any given election, but in considering the requirements of justice, case must be taken to see that election Petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. In this case, the Supreme Court emphasized the need to enquire whether the application made by the Petitioner contains a concise statement of material fact on which he relies, vague or general allegations that valid votes were improperly rejected or valid votes were improperly accepted would not serve the purpose, which Section 83(1)(a) has in mind The use of word "Ballot Boxes" seems to be to topographical error for words "Ballot Papers". 13. In Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, AIR 1964 SC 1249 the Supreme Court observed as under: An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the Petitioner relies in support of his case; 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. 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 fish out evidence to support such pleas. The case of the Petitioner must be set out with precision 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. In this case, the Supreme Court again emphasized that the order for inspection of ballot papers cannot be granted to support vague plea made in the petition not supported by material fact or to fish out evidence to support such plea. It was also observed that mere allegations that the Petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes, will not be sufficient to support the order for inspection 14. Further, it is settled view that the order of recounting of votes must stand or fall on the nature of averments made and the evidence adduced before the order of recounting is made and not from the result emanating from the recount of votes. Recount cannot be directed as a matter of course or as of right but can be granted on the evidence of good ground as provided u/s 12-C of the Act for believing that there has been a gross failure to comply with the provisions of the Act and the Rules affecting the election materially and a strong case must be made out for obtaining inspection of ballot papers. 15. In Chanda Singh Vs. Choudhary Shiv Ram Verma and Others, (1975) 4 SCC 393 , the Supreme Court observed that: A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the election process is essential. 15. In Chanda Singh Vs. Choudhary Shiv Ram Verma and Others, (1975) 4 SCC 393 , the Supreme Court observed that: A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the election process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument Moreover, the secrecy of the ballot, which is sacrosanct become exposed to deleterious prying if recount of votes made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. 16. Learned Counsel for the Petitioner relied on a case of the Supreme Court in the case of Bhabhi Vs. 16. Learned Counsel for the Petitioner relied on a case of the Supreme Court in the case of Bhabhi Vs. Sheo Govind and Others, (1976) 1 SCC 687 , wherein the Supreme Court laid down that before the Court can order inspection of ballot papers in an election petition, the following conditions are imperative: (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 special 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. One of the conditions is that the court must be prima facie satisfied, on the materials produced before the court, regarding the truth of the allegations made for recounting Here, the Tribunal has not recorded any such satisfaction regarding the truth of the allegations made for recount, i.e. regarding non-compliance of the provisions of the Act and the rules. In this case, it has not been established as to which of the provisions of the Act and the Rules was not complied with and failure to comply with the provisions of the Act and the rules was gross failure or without jurisdiction. The Tribunal can not allow under the Act, the election Petitioner to indulge in a roving inquiry with a view to fish out material for declaring the election to be void. 17. The Tribunal can not allow under the Act, the election Petitioner to indulge in a roving inquiry with a view to fish out material for declaring the election to be void. 17. It has become evident that the position of the provisions of law regarding the challenge of the election on the grounds under the Act and under the Representation of Peoples Act are not identical Under the Representation of Peoples Act, inspection could be directed on establishment of prima facie case regarding improper reception, refusal or rejection of any votes or reception of any vote, which is void and on the establishment that the result of the election, so far as the returned candidate was concerned, was materially affected, but, under the Act. The position is different One has to establish that there has been gross failure to comply with the provisions of the Act and the Rules and the same has affected the result of the election materially. In Ram Adhar Singh v. The District Judge Ghazipur 1985 AWC 246 , the Full Bench, in para 8, observed that- where an application for questioning the election has been presented before a competent authority in accordance with the provisions contained in Rule 24, the authority undoubtedly gets, in appropriate cases and where the interest of justice so requires, a jurisdiction to permit inspection of ballot papers and marked copy of electoral roll. As a matter of fact, such power is implicit in Rule 24-T, but in the context such power has necessarily to be exercised keeping in view the statutory provisions relating to the insistence on secrecy of ballot, it would not be apt for the concerned authority either to look into or permit inspection of, ballot papers, as of course. 18. According to it the power for inspection of ballot paper has been said to be implicit in Rule 24-T. It is not for me to probe in this matter. Taking to be the power regarding directing for inspection of ballot papers to be there implicitly in Rule 24-T, that rule has to be complied with the requirement of Section 12-C of the Act, which requires for establishment of gross failure to comply with the provisions of the Act and the Rules. Taking to be the power regarding directing for inspection of ballot papers to be there implicitly in Rule 24-T, that rule has to be complied with the requirement of Section 12-C of the Act, which requires for establishment of gross failure to comply with the provisions of the Act and the Rules. Therefore, no inspection can be allowed under the Act unless the election Petitioner has established the gross failure to comply with the provisions of the Act or the Rules, which has effected the result of the election materially and the Election Tribunal, on evidence, comes to the conclusion that prima facie case of high degree of probability existed for recounting of votes being ordered by the Tribunal in the interest of justice on account of gross failure to comply with the provisions of the Act and the Rules, only then the Tribunal should order recount of votes. 19. Learned Counsel for the Respondent relied upon para 14 of a decision of the Supreme Court in the case of N.E. Horo v. Leander Tiru AIR 1989 SC 2023 , which is as extracted below: 14, Here again we cannot help the Appellant. It may be noted that the High Court while allowing inspection had not restricted the operation to specified ballot papers. The inspection was permitted in respect of all ballot papers to the credit of the Appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted, has, in fact, been counted in favour of the Appellant, it must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot paper. But the absence of specific averments in the pleading is no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. That is precisely the purpose of inspection of ballot papers. The observations, as relied on by the learned Counsel for Respondent, are not attracted in the present case. They are in different circumstances and the court said that there may not be any specific allegations in the pleading in respect of such ballot papers but absence of specific plea is not bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. They are in different circumstances and the court said that there may not be any specific allegations in the pleading in respect of such ballot papers but absence of specific plea is not bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. That is precisely the purpose of inspection of ballot papers. In that case, the High Court while allowing the inspection, did not restrict itself to the specific ballot papers. Here there is no such controversy at present before me and no such argument has been advanced having regard to the pleadings. 20. In view of what has been stated above, the impugned order directing inspection of ballot papers cannot be sustained and the same is liable to be set aside The Tribunal could have decided the issue on merits and after finding that there has been failure to comply with the provisions of the Act and the Rules and the result of the election was materially affected on that ground, then the Election Tribunal could have set aside the elections or could have directed for inspection of ballot papers. Further, the second submission as advanced by the learned Counsel for the Petitioner, requires no decision as on the first point the petition succeeds. 21. The writ petition is accordingly allowed The impugned order dated 10-1-1990 is set aside. Interim order dated 23-1-1990 is discharged. The Election Tribunal is directed to proceed with the election petition in an expeditious manner so to decide the same according to law. In the facts and circumstances of the case, there shall be no order as to costs.