JUDGMENT Hon’ble Vineet Saran, J.—Election for the post of Pradhan of village Chandauri Khaas, Vikas Khand Rohta, Tehsil and District Meerut was held on 17.8.2005. Besides other candidates, the writ petitioner and the respondent No. 2 had also contested the election and since both of them had secured equal number of votes, the declaration of election result was made by draw (toss), in which the petitioner was declared elected. The Respondent No. 2 (Mahak Singh) thereafter filed Election Petition No. 8 of 2005 before the Sub Divisional Officer (S.D.O.), Respondent No. 1 with the prayer for directing recounting of ballots and declare him elected. The writ petitioner (who was arrayed as opposite party in the Election Petition) filed his reply denying the allegations. An application was thereafter filed by the Respondent No. 2 election petitioner on 19.12.2005 enumerating therein various shortcomings in the counting of votes, and thus prayed that the matter be resolved by directing recounting. In response, the petitioner filed his objections on 22.12.2005 stating therein that the counting of votes was in accordance with law and that no decision could be taken without the parties being permitted to adduce evidence, and prayed that the said application be rejected. Thereafter on 20.4.2006 the S.D.O. passed an order directing recounting of votes. Challenging the said order, the petitioner filed an earlier writ petition No. 22892 of 2006. This Court, vide its judgment and order dated 27.4.2006, allowed the said writ petition and after holding that the petitioner was not heard by the S.D.O. on merits before the passing of the order, thereby affecting his valuable rights, the said order dated 20.4.2006 was set aside and the matter was remanded back to the S.D.O. for fresh decision in accordance with law, after giving an opportunity of hearing to the concerned parties. After remand, parties appeared before the S.D.O. on 8.5.2006 and the arguments of the counsel for the election-petitioner as well as writ-petitioner (Anand) were heard on 11.5.2006 and by order dated 22.6.2006 the S.D.O. has again passed an order for recounting of votes. Aggrieved by the said order the petitioner has filed this writ petition in which an interim order had been passed on 26.6.2006 and the declaration of the result of recounting had been stayed. 2. Aggrieved by the said order the petitioner has filed this writ petition in which an interim order had been passed on 26.6.2006 and the declaration of the result of recounting had been stayed. 2. I have heard Sri Anjani Kumar Misra, learned counsel for the petitioner, as well as Sri Vijendra Singh, learned Chief Standing Counsel on behalf of Respondent No. 1 and Sri K.P.Tiwari, learned counsel appearing for the contesting Respondent No. 2. Counter affidavits on behalf of the said respondents have been filed, to which rejoinder affidavits have also been filed. With the consent of the learned counsel for the said parties, this writ petition is being disposed of at this stage. In view of the fact that other parties i.e. Respondents No. 3 to 9 had not filed their reply before the S.D.O., notices to them have not been issued. However in case the said respondents are so aggrieved, they may file an application for recall/modification/variation of this order. 3. The submission of Sri Misra, learned counsel for the petitioner, is that the impugned order has been passed without the parties being given any opportunity of adducing evidence and without the election-petitioner (Respondent No. 2 herein) having filed any documentary evidence or adduced any oral evidence before the S.D.O. It has further been submitted that no issues were even framed by the S.D.O. before the passing of the impugned order, which has been done merely on the basis of the pleadings which was not permissible under law. Learned counsel has vehemently emphasized that in the impugned order, except for reproducing the pleadings of the parties, the Respondent No. 1 has not given any finding of its own and merely stated that on the basis of the available evidence, it would be necessary to direct for recounting of votes. It has been contended that since the S.D.O. has not discussed as to what evidence was placed before him for coming to that conclusion, the said order would be bad in law, and thus liable to be quashed. In support of his contention, learned counsel for the petitioner has placed reliance on the decisions of this Court rendered in the cases of Amrish v. Up Ziladhikari, Meerut, 2006 (101) RD 23 and Mohammad Husain v. S.D.O. Shahabad, 1983 All.L.J.1193. 4. In support of his contention, learned counsel for the petitioner has placed reliance on the decisions of this Court rendered in the cases of Amrish v. Up Ziladhikari, Meerut, 2006 (101) RD 23 and Mohammad Husain v. S.D.O. Shahabad, 1983 All.L.J.1193. 4. On the other hand, Sri Tiwari, learned counsel for the contesting Respondent No. 2, has submitted that on the averments made in the election petition as well as in the circumstances of the case, since the petitioner as well as the respondent No. 2 had secured equal number of votes, a clear case was made out for directing recounting of votes as in the circumstances of the case as well as in equity, that was the only possible way to resolve the matter. He has further submitted that in every case it would not be necessary for parties to adduce evidence before an order on the application for recounting is passed. In support of his contention, the learned counsel has relied upon a decision of this Court rendered in the case of Shobh Nath v. State of U.P., 1999 (90) RD 50. 5. Sri Vijendra Singh, learned Chief Standing Counsel appearing for the Respondent No. 1, on whose behalf a counter affidavit has also been filed, has submitted that under the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (in short “Rules of 1994”), the S.D.O. was not required to strictly follow the provisions of the Code of Civil Procedure while deciding an election petition and thus it was also not necessary to take evidence before passing the impugned order. He also submitted that it is only before passing of the final order that, if necessary, evidence could have been called for, but since by the impugned order, only direction for recounting had been issued and the election petition itself had not been decided, the impugned order has rightly been passed on the basis of the pleadings of the contesting parties. 6. Having heard learned counsel for the parties and on perusal of the record, in my view, the impugned order whereby direction for recounting of votes has been made, was not justified and as such the same deserves to be quashed. It is not the case of the respondent No. 2-election petitioner that he, or his counting agents, had ever raised any objection with regard to any alleged lapses or short comings during the counting process. It is not the case of the respondent No. 2-election petitioner that he, or his counting agents, had ever raised any objection with regard to any alleged lapses or short comings during the counting process. On the contrary, it is the specific case of the writ petitioner that no such objection had ever been raised by the election petitioner during the course of counting of votes. 7. It may be true that technically, by directing recounting of votes, the election petition itself is not finally decided and the same would be only after the results of recounting is declared and final orders are passed, but in a case where the prayer is solely for recounting of ballots, once an order for recounting is passed, nothing remains thereafter, as after the result of recounting is declared, the S.D.O. has to do nothing except to pass final orders on the basis of the said recounting. As such, the submission of the learned counsel for the respondents that the said order could have been passed without taking evidence, as the election petition itself was not being disposed of, does not appear to be correct. 8. A perusal of the impugned order would reveal that except for narrating the facts as had been stated in the election petition and in the reply filed by the writ petitioner (opposite party in the election petition), the S.D.O. has not given any finding of his own or set out the basis for passing the said order. The English translation of the operative portion of the order is reproduced below : “In compliance of the directions given in the order dated 27.4.2006 passed by the Hon’ble High Court, I patiently heard the arguments of the learned counsel for both sides and perused the evidence available on record, which reveals that the petitioner has submitted that in the instant petition, until the recounting of ballot papers is carried out, it cannot be presumed whether or not irregularity has been committed in the counting of ballot papers. Secondly, now at this stage only recounting of ballot papers is to be made and not that the petition is to be finally decided. If ballot papers are recounted in the presence of opposite party, it will not prejudice the interest of opposite party as well. Hence it appears to be proper in the interest of justice to hold recounting.” 9. If ballot papers are recounted in the presence of opposite party, it will not prejudice the interest of opposite party as well. Hence it appears to be proper in the interest of justice to hold recounting.” 9. This is the only passage in the entire order which, if at all, can be said to be the finding of the S.D.O. In the paragraphs preceding this paragraph, only facts as narrated in the election petition or in the written statement or the filing of the earlier writ petition and the order passed therein, have been stated. Even though the writ-petitioner disputes that he was given full opportunity of hearing and had also filed an application on the date of the order i.e. 22.6.2006 that fresh opportunity of hearing may be given to him, but still if it is taken to be correct that the writ-petitioner was given adequate opportunity of hearing, then too it is not understood as to what evidence was available on record which prompted the S.D.O. to come to the conclusion that there were lapses in the counting of votes. Sri Vijendra Singh, learned Chief Standing Counsel has also produced the original records for perusal of this Court but could not point out any such document (except for certain affidavits) which could be said to be evidence in support of the conclusion arrived at by the S.D.O. It is true that the evidence may be documentary, oral or circumstantial, but there has to be some kind of evidence to prove the case of the election petitioner before the prayer is allowed. In the case of Shobh Nath (supra), which has been relied upon by the learned counsel for the Respondent No. 2, it has been held that “the expression ‘evidence’ does not necessarily mean oral evidence. It may also be documentary or circumstantial.” While upholding the order for recounting, this Court had also observed that “In support of the allegations contained in the petition, the election petitioner brought on record certain documents to indicate the number of ballot papers received, actually used and those counted. He has also elicited a very weighty circumstance which also forms part of the evidence on behalf of the election petitioner.” In the said case the writ-petitioner Shobh Nath had examined himself and four other witnesses. He has also elicited a very weighty circumstance which also forms part of the evidence on behalf of the election petitioner.” In the said case the writ-petitioner Shobh Nath had examined himself and four other witnesses. Even though the election-petitioner therein may not have examined himself but still on some oral evidence as well as documentary evidence, which were placed before the S.D.O., there were sufficient circumstances to make out a case for recounting. It was on such basis that this Court refused to interfere with the order directing recounting of votes. In the present case, admittedly no oral or documentary evidence was adduced nor even any opportunity was given to the parties to adduce such evidence. The S.D.O. has also not given any reasons for not doing so. Surprisingly, it is only in the counter affidavit filed on behalf of Respondent No. 1 that some justification is sought to be given for not having done so. Normally an authority passing an order would be required to justify the same in the order itself and not subsequently by filing a counter affidavit, when the order is challenged in Court. However, even the justification given in the counter affidavit is not sufficient. What has been stated is that Rule 4 of the Rules of 1994 does not require that the provisions of the Code of Civil Procedure be followed and that it is the discretion of the S.D.O. to take or not to take evidence. The relevant extract of Rule 4 is quoted below : “4. Hearing of the petition.—(1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits : Provided that – (i) ..... (ii) it shall not be necessary for the Sub Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him; (iii) ........ (iv) the Sub-Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition;” 10. In the said Rule itself it has been mentioned that the S.D.O. shall try the election petition as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure. (iv) the Sub-Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition;” 10. In the said Rule itself it has been mentioned that the S.D.O. shall try the election petition as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure. The proviso states that it shall not be necessary for the S.D.O. to record evidence in full and may maintain only a memorandum of evidence produced by the parties before him. Before proceeding to decide the case without taking evidence, it would thus be obligatory for the S.D.O. to record some reason, even if not in full detail, that why it would not be necessary to record evidence in full. However, it would be mandatory for him to maintain the memorandum of evidence adduced by the parties. Clause (iv) of the proviso gives the discretion to the S.D.O. to allow only such evidence to be produced as he may deem relevant, which cannot mean that no evidence is to be recorded before coming to a conclusion. In the present case, no evidence whatsoever has been adduced by either of the parties nor any time was even granted to the parties to adduce evidence, although in his objection dated 22.12.2005 the writ-petitioner (opposite party in the election petition) had stated that issues be framed and opportunity to adduce evidence be given before deciding the application for recounting. 11. Much emphasis has been laid on the fact that since in the initial counting of votes the writ-petitioner and the Respondent No. 2 (election-petitioner) had polled equal number of votes, thus it was appropriate for recounting to have been directed. Election petitions are to be decided strictly as per the provision of law and equity has very little role to play. The law provides for resolving the situation where such contingency arises that two candidates poll equal number of votes. The decision had been taken and result declared in accordance with such law. Had it been the intention of the Legislature that in case where two parties poll equal number of votes, then the matter should first be resolved by recounting, such procedure should have been laid down in the Act or the Rules. The decision had been taken and result declared in accordance with such law. Had it been the intention of the Legislature that in case where two parties poll equal number of votes, then the matter should first be resolved by recounting, such procedure should have been laid down in the Act or the Rules. In the absence of there being any such provision, the law as it is for taking a decision in such contingency has to be followed. Polling of equal number of votes may be a very strong circumstance for directing recounting of votes but that alone cannot be a ground for passing such order. In the present case, in the absence of there being any other evidence whatsoever in support of the case of the election-petitioner for recounting of votes, this solitary ground, in the absence of there being any such provision in the law, cannot form basis for passing of the impugned order and directing recounting of votes. This Court in the case of Amrish (supra) has held that “it is settled law that recounting of votes should not be directed merely for the sake of asking but only in cases where there are materials on record for issuing such direction.” It has also been held in the said case that “An order of recounting touches upon the secrecy of ballots which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations and such discretion should not be exercised by the Courts to indulge in roving and fishing enquiry.” In the present case, the order for recounting has been passed only on the allegations made in the election petition, without there being any evidence to support the same or any finding of his own recorded by the S.D.O. In such circumstances, direction of recounting of votes would be nothing but a roving and fishing enquiry and thus cannot be justified in law. Mere allegation made by the election-petitioner cannot be the basis for the S.D.O. to make an order in pursuance of which the votes polled at the election are to be recounted. 12. For the foregoing reasons, the impugned order is liable to be quashed. Accordingly, this writ petition stands allowed and the order dated 22.6.2006 passed by the respondent No. 1 is quashed. No order as to cost. Petition Allowed. ———