JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri M.D. Singh Sekhar, Senior Advocate assisted by Shri Arun Kumar Misra, learned Counsel for the petitioner and learned Standing Counsel. Shri A.P. Singh appears for respondent No. 4. 2. The petitioner contested the election on the post of Pradhan of Gram Panchayat, Handia, Tehsil Phoolpur, Distt. Azamgarh. The elections were held on 23.8.2005. The result was declared on 9.9.2005. The petitioner was declared elected with a margin of 8 votes as against Shri Ashok Kumar at the second position. The petitioner secured 354 and Shri Ashok Kumar 346 votes, out of 1199 valid votes. Fifty votes were declared as invalid. 3. Shri Ashok Kumar filed election petition No. 2 of 2005 under Section 12-C of the U.P. Panchayat Raj Act. He prayed for summoning the record and recount of votes and to declare him elected. He impleaded all the other candidates as respondents. By the impugned order the application of recount of votes was allowed on 29.1.2007, giving rise to this writ petition. 4. A preliminary objection was raised on the basis of the judgment in Abrar v. State of U.P. and others, (2004) 5 AWC 4088 that the order of recount is revisable under Section 12-C (6) of the Panchayat Raj Act. Learned Judge hearing the matter referred following questions on 20.2.2007 to be considered by the Division Bench : “(i) Whether the revision under Section 12-C (6) shall lie only against a final order passed by Prescribed Authority deciding the election petition under Section 12-C (1) or a writ petition can be filed against an order of recount, which has been passed after deciding certain issues raised in the election petition. (ii) Whether the judgment of learned Single Judge in 2004 (5) AWC 4088; Abrar v. State of U.P. and others, lays down correct law.” 5. The Division Bench upon hearing the parties, by its judgment dated 11.7.2007, returned the questions as follows : “(I) A revision under Section 12-C (6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C (1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority. (II) The judgment of the learned Single Judge in the case of Abrar v. State of U.P. and others, (2004) 5 AWC 4088 does not lay down the law correctly and is, therefore, overruled to the extent of the question of maintainability of a revision petition, as indicated hereinabove. (III) As a natural corollary to the above, we also hold that a writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the U.P. Panchayat Raj Act, 1947.” 6. The parties agree that since the revision is not maintainable and that the writ petition challenges the order of recount, the matter may be heard. 7. In the election petition it is stated in para 4 that none of the parties was given the ‘ballot paper account’ in writing. They were orally told that a total number of 1261 ballots were issued. The district was affected by floods, on which the dates of counting of votes were postponed twice and that the counting was held on 8.9.2005. The counting started on 9.9.2005 at 4.00 a.m. in the morning. After the bundles of 50 votes each was prepared, it was found that instead of 1261 votes only 1249 votes were available in the ballot box. The petitioner objected but still the counting proceeded. It was shown that the petitioner has secured 346 votes and Shri Mustafa 354 votes. The nine candidates in fray had secured a total of 1199 votes. There were 50 invalid votes and thus in all 1249 votes were found. Twelve ballots were found missing. It is also averred in para 11 that apart from this 3 valid votes of the election petitioner were added in the tally of Shri Mustafa, the returned candidate, and similarly 5 invalid votes of elected candidate Mustafa were also added in his tally, and thus he was declared elected with 8 votes. On the objections raised by all the other candidates the Presiding Officer told them that he cannot produce the lost 12 votes and declared the result. He did not accept the request for recount and did not pass any orders on the written application dated 9.9.2005. 8. The averments made in the election petition were supported by statement of election petitioner Shri Ashok Kumar and Shri Ram Boojh, one of the other candidates. He did not accept the request for recount and did not pass any orders on the written application dated 9.9.2005. 8. The averments made in the election petition were supported by statement of election petitioner Shri Ashok Kumar and Shri Ram Boojh, one of the other candidates. Shri Mustafa examined himself and his witness Shri Indra Singh. The copy of the application for recount dated 9.9.2005 was filed along with notary affidavit. 9. The Prescribed Authority framed issues namely whether the counting was invalid; whether the petitioner and his agent were forcibly removed at the time of counting, and that the votes cast in favour of the petitioner were added in the bundle of defendant No. 1 on which the defendant No. 1 was declared elected; whether it is necessary to hold recount and that the election on the basis of the counting is invalid, and the relief to which the petitioner is entitled. The Prescribed Authority held that the election petitioner and Shri Ram Boojh have proved the allegations made in the election petition. Mohd. Mustafa, the returned candidate-the petitioner in this writ petition had also accepted in his statement that the Presiding Officer did not give them any ‘ballot paper account’ in writing. All the parties agreed that 12 ballot papers were missing. There was no proof that application for recount was accepted and that votes were recounted. With regard to issue Nos. 1 and 3, regarding 3 valid votes of the election petitioner counted in the bundle of returned candidate and 5 invalid votes counted in favour of the returned candidate, the Prescribed Authority found that the returned candidate Mohd. Mustafa has admitted that when Shri Ashok and others started exercising pressure that they may be declared as elected, the Returning Officer declared the election result and left the place. There is no explanation as to why the Returning Officer left the place, when it is not clear that the counting of other Gram Sabhas were complete. The application for recounting dated 9.9.2005 did not bear the signature of any receiving official but there does not appear to be any doubt on the presentation of this application as it is filed along with an affidavit. DW-2 Ram Boojh has accepted in his statement that there is some difference between tally of votes. The application for recounting dated 9.9.2005 did not bear the signature of any receiving official but there does not appear to be any doubt on the presentation of this application as it is filed along with an affidavit. DW-2 Ram Boojh has accepted in his statement that there is some difference between tally of votes. The total number of invalid votes is accepted by both the parties to be 50 and in the circumstances the allegations made in the election petition with regard to irregularities in counting have been established. 10. Shri M.D. Singh Sekhar, learned Counsel for the petitioner states that the allegations made in the election petition were not proved. The statement of Shri Ram Boojh did not support the averments in the election petition. There was no request for recount on 9.9.2005 and that the Election Tribunal was not required to make a fishing and roving enquiry to find out the lost ballots. He submits that there is difference of 12 votes and that even if the allegations with regard to 8 votes is accepted, the election result would not be affected. 11. The law with regard to recount of votes is fairly well settled in a number of decisions. In Beli Ram Bhalaik v. Jai Behari Lal Kachi, AIR 1975 SC 283 , the Supreme Court cautioned that since an order for a recount touches upon the secrecy of ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yet, from a bedroll of the decisions of this Court, two broad guidelines are discernible; that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. In Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376 ; Chanda Singh v. Ch. Shiv Ram, AIR 1975 SC 403 ; Manphul Singh v. Surinder Singh, AIR 1975 SC 502 ; same principles were upheld. In Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376 ; Chanda Singh v. Ch. Shiv Ram, AIR 1975 SC 403 ; Manphul Singh v. Surinder Singh, AIR 1975 SC 502 ; same principles were upheld. These principles were reiterated in Bhabhi v. Sheo Govind, AIR 1975 SC 2117 as follows : “(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 supported by adequate statements of material facts; (3) That 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 the given case simple 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.” 12. In S. Raghubir Singh Gill v. S. Gurucharan Singh Tohra, (1980) Supp. SCC 53, it was held as under : “True, re-count cannot be ordered just for the asking. A petition for re-count cannot be ordered after inspection of ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void.” 13. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void.” 13. In M.R. Gopalakrishanan v. Thachady Prabhakaran, 1995 Supp.(2) SCC 101, it was held that the demand of defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy, and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for re-count, no Tribunal or Court would be justified in directing a re-count. 14. In Vadivelu v. Sundaram, 2000 (8) SCC 355 , same principle was reiterated with emphasis in paragraph 16 quoted as below : “The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality/irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties.” 15. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties.” 15. In V.S. Achuthanandan v. P.J. Francis, (2001) 3 SCC 81 , Supreme Court went to the extent of holding that once a re-count is validly ordered and the statistics revealed by the re-count are available to be used for deciding election dispute, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count. 16. In the present case there is clear allegation that the ‘account of votes’ was not given to the parties. The Returning Officer left the place after declaring the election. He did not make any orders on the application for recount of votes. There was no explanation to the 12 lost votes on record. The returned candidate himself admitted that the election petitioner was creating some pressure on which threats were given and that the ‘ballot paper account’ was not given to any party. The Returning Officer made no efforts to find out the lost 12 votes. 17. In this case the ballot boxes were retained for a long period and the counting was postponed twice on account of floods. The counting of the concerned Gaon Sabha started in the early morning at about 4 a.m. The Returning Officer neither made an attempt to find out the lost votes, which could be ascertained by recounting nor made any order on the application for recount and left the place. In the circumstances, I find that the allegations, which are specific and are based on material facts and particulars were proved by evidence, and that good and sufficient case was made out for recount of votes. The Prescribed Authority did not make the order of recount for any fishing or roving enquiry. He has considered the facts and circumstances and prima facie found that the recount of votes is necessary to decide the dispute and to do complete justice between the parties. 18. The order of recount as such does not require any interference from this Court. He has considered the facts and circumstances and prima facie found that the recount of votes is necessary to decide the dispute and to do complete justice between the parties. 18. The order of recount as such does not require any interference from this Court. 19. The writ petition is dismissed. ————