JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner has challenged the order dated 30.8.2008 passed by the Additional District Judge, Court No. 2, Deoria in election petition No. 6 of 2006, whereby a preliminary issue has been decided and a direction has been issued to the District Magistrate for the recounting of the votes. The facts leading to the filing of the writ petition is, that the petitioner was declared elected as the President of Nagar Palika Parishad, Gaura Barhaj, Deoria by a margin of 188 votes in the election that was held on 31.10.2006. The petitioner secured 6422 votes in contrast to his nearest rival Ajit Kumar Jaiswal, respondent No. 3, who secured 6234 votes. The respondent No. 3, being aggrieved by the declaration of the result, filed an election petition under Section 20 of the U.P. Municipalities Act, 1916 challenging the election of the petitioner. The election was challenged on various grounds and one of the ground was, that there was an irregularity in the counting of votes on the basis of which, an issue was framed by the Court below. It is alleged that the respondent No. 3 filed an amendment application incorporating certain other facts with regard to recounting of votes which was allowed, against which, the petitioner filed a writ petition which was dismissed by the High Court. It has also been stated that the respondent No. 3 filed an application for bringing on record, a compact disc which contained a videography of the counting of the votes, this application was allowed by an order dated 30.10.2007 directing that the compact disc be taken on record and that the admissibility of the compact disc would be subject to the evidence that would be led by the parties. It also transpires that the petitioner filed an application for summoning of the official videography recording of the counting of votes which application was rejected by an order dated 25.3.2008. Based on the evidence led by the parties, the election petition was heard and finally decided by an order dated 14.5.2008 allowing the election petition and declaring the election of the petitioner as the President of the Nagar Palika Parishad to be void and illegal and further directed the authorities to recount the votes. Based on the evidence led by the parties, the election petition was heard and finally decided by an order dated 14.5.2008 allowing the election petition and declaring the election of the petitioner as the President of the Nagar Palika Parishad to be void and illegal and further directed the authorities to recount the votes. The petitioner, being aggrieved by the said order, filed writ petition No. 25082 of 2008 which was allowed by a judgment dated 22.5.08 and the matter was remitted again to the Additional District Judge, Court No. 2, Deoria to decide the election petition afresh. The Court observed : “I find that the election tribunal has committed an illegality in firstly declaring the election result to be illegal and void, and thereafter directed recount of votes. The order of recount is not a final order. It is a step-in-aid to the final decision of the election petition. Even after the actual recount, the objections may be taken to the procedure and validity of the votes which are counted either way.” 2. It transpires that upon remand, the petitioner moved an application raising certain objections against the compact disc vis-a-vis the admissibility of the compact disc. This application was rejected by the Court below by an order dated 14.7.2008, against which, writ petition No. 35971 of 2008 was filed which was dismissed by a judgment dated 29.7.2008. It has also come on record that the petitioner also moved a transfer application under Section 24 of the Code of Civil Procedure which was also rejected. 3. The Additional District Judge eventually passed the impugned order on 30.8.08 deciding issue No. 2 directing the District Magistrate to recount the ballot papers with regard to the election held on 31.10.2006. The petitioner, being aggrieved, has filed the present writ petition. 4. Heard Sri Ashok Khare, the learned senior Counsel assisted by Sri Siddharth Khare, the learned Counsel for the petitioner and Sri Kesri Nath Tripathi, the learned Senior Counsel assisted by Sri Ved Byas Mishra, the learned Counsel for the contesting respondent No. 3. 5. The petitioner, being aggrieved, has filed the present writ petition. 4. Heard Sri Ashok Khare, the learned senior Counsel assisted by Sri Siddharth Khare, the learned Counsel for the petitioner and Sri Kesri Nath Tripathi, the learned Senior Counsel assisted by Sri Ved Byas Mishra, the learned Counsel for the contesting respondent No. 3. 5. The Court below has directed the recounting of the votes on the ground that the Returning Officer in his statement had mentioned that for the purpose of counting of the ballot papers he had divided the said ballot papers into lots of 50 and that equal number of ballot papers was distributed for the purpose of counting. The Court below on the basis of the statement of the Returning Officer compared the election sheet issued by the Returning Officer and has drawn adverse inference holding that some bungling may have taken place in the counting of votes and, on that basis directed the recounting of the votes. The Court below also considered the compact disc which allegedly indicated the destruction of ballot papers being torn after the completion of the counting of the votes and drew an adverse inference directing recounting of the votes. 6. Sri Ashok Khare, the learned senior Counsel submitted that with regard to the distribution of the ballot papers, there was no irregularity and the result sheet indicated more or less equal distribution of the ballot papers and that the fact that table No. 1 received 805 ballot papers does not indicate any irregularity but could only indicate that the remaining ballot papers were given to table No. 1. The learned Counsel submitted that the distribution of the ballot papers was for the purpose of counting at different tables were almost equal and minor discrepancy would not create any adverse inference of any bungling in the counting of the votes especially when there was no discrepancy in the total number of votes polled. The learned Counsel further submitted that the consideration of the compact disc without giving a finding on the admissibility of the compact disc under Section 65-B of the Evidence Act was erroneous and that the Court below did not consider its earlier order of 30.10.2007. 7. The learned Counsel further submitted that the consideration of the compact disc without giving a finding on the admissibility of the compact disc under Section 65-B of the Evidence Act was erroneous and that the Court below did not consider its earlier order of 30.10.2007. 7. On the other hand, Sri Keshri Nath Tripathi, the learned senior Counsel for the respondent No. 3 submitted that the Court below after considering all aspect of the matter has given a prima facie finding that some bungling in the counting of votes has occurred and therefore, the Court had rightly passed an order for the recounting of the votes. The learned Counsel submitted that the Court below has only directed recounting of the votes as per the earlier direction of the Court dated 22.5.2008 and that the validity of the recounting of the votes could be gone into after recounting is done. The learned Counsel submitted that the final result sheet issued by the Returning Officer and the statement of the Returning Officer indicates that there was certain discrepancy in the issuance of ballot papers which was sufficient for the Court below to issue a direction for recounting since it created a doubt upon the fairness in the counting procedure. The learned Counsel submitted that a prima facie case was made out which was sufficient for the Court to order recounting of the votes that was polled in the election. The learned Counsel further submitted that as per clause 54 of the U.P. Municipality (Conduct of Election of President and Election Petitioner) Order, 1983 read with clause 63 of the U.P. Municipalities (Conduct of Election of Members) Order, 1964 which provides for the procedure for the counting of the votes read with Form No. 12 and Form No. 15 prescribed therein, it is clear that the counting of votes was required to be done ward-wise, whereas in the present case, all the ballot papers were mixed and distributed to each table and that the counting was not done ward wise which by itself was sufficient to annul the election. In the light of the aforesaid, the learned Counsel submitted that no case is made out for interference of the case in a writ jurisdiction. 8. Our Constitution provides every citizen of India for a free, fair and peaceful election. In the light of the aforesaid, the learned Counsel submitted that no case is made out for interference of the case in a writ jurisdiction. 8. Our Constitution provides every citizen of India for a free, fair and peaceful election. The purity of election and the secrecy of ballot are two central pillars which supports our democracy, which at times, are complimentary to each other and at another point of time, stand in confrontation of each other. 9. In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others, AIR 1980 SC 1362 , the Supreme Court held : “nothing can diminish the overwhelming importance of that cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution, in him is that he will act as a responsible citizen choosing his masters for governing the country for the period prescribed by it.” The Supreme Court in the aforesaid case further held : “Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips.” and at another piace held : “But this basic postulate of constitutional democracy, namely, secrecy of ballot was formulated not in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining constitutional democracy, viz., free and fair election” and “If free and fair election is the life-blood of constitutional democracy and if secrecy of ballot was ensured to achieve the larger public purpose of free and fair elections either moth must be complimentary to each other and co-exist or one must yield to the other to/serve the larger public interest.” At yet another place, the Supreme Court held : “If free and fair election is the life-blood of constitutional democracy and if secrecy of ballot was ensured to achieve the larger public purpose of free and fair elections either both must be complimentary to each other and co-exist or one must yield to the other to serve the larger public interest.” 10. On the question of recounting of votes, the position of law has now been crystallised by a large number of decisions. The Supreme Court in the case of Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117 held as under : “(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.” 11. In view of the aforesaid, the principle of secrecy of ballot cannot stand in isolation and in confrontation to the foundation of free and fair elections, namely, purity of election. The secrecy of ballot is a privilege of the voters and cannot be destroyed its secrecy for the purpose of recounting of the votes. 12. In Vadivelu v. Sundaram and others, 2000(8) SCC 355 , the Supreme Court after analysing various judgments, held that a recount of votes could be ordered only on rarely occasions and on specific allegation, in the pleadings in the election petition that illegality or irregularity was committed while counting and that the election petitioner who seeks recounting of the votes should allege and prove that there was improper acceptance of the invalid votes or improper rejection of the valid votes and if the Court was satisfied about these allegations only then the Court could order recounting of the votes. The Supreme Court observed that the secrecy of the ballot was sacrosanct in a democratic process of the election and that it cannot be disturbed on mere allegation of illegality or irregularity in the counting of votes. The Supreme Court further observed that the election petitioner must prove that the purity of elections was tarnished and that the result of the election was materially affected which could only be cured by the recounting of the votes. 13. Similarly, the Supreme Court in Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, 2006 A.C.J. 707 held that an order for recounting should not be made as a matter of course, unless there was clinching evidence to support the case set up by the election petitioner. 14. In the light of the aforesaid, the recounting of votes has been done on the ground that there is a variation in the statement made by the Election Officer and the election sheets prepared by the Returning Officer. The Court finds that the Returning Officer had made a statement that for the purpose-of counting the ballot papers, the same was divided into lots of 50 and then distributed to each table. The election sheet shows that table No. 1 had received 805 ballot papers, table No. 4 received 1261 ballot papers, table No. 8 received 1000 ballot papers and the table No. 14 received 1199 ballot papers and that the remaining table received 1200 ballot papers. On this basis, the Court below observed the distribution of ballot papers was not done evenly by the Returning Officer which led to a presumption that there has been a bungling in the counting of votes, and on this basis, directed the recounting of the votes. 15. In my opinion, this presumption cannot be made a prima facie ground for the recounting of the votes. Such presumption cannot amount to clinching evidence. In my opinion, prima facie opinion should be supported by some clinching evidence which is not apparent in the present case. Further the distribution of ballot papers was done for the convenience of counting of votes and, merely because one table received more ballot papers than another table can at best be a mere irregularity but no adverse inference could be drawn. Further the distribution of ballot papers was done for the convenience of counting of votes and, merely because one table received more ballot papers than another table can at best be a mere irregularity but no adverse inference could be drawn. However, the question, whether, such inference could be drawn or not or whether this would amount to a clinching evidence indicating a bungling in the counting of votes, is a question to be adjudicated and decided by the Court. 16. At present moment this Court finds that there is no clinching evidence to disturb the secrecy of ballot. The finding that compact disc indicates ballot papers were torn after the counting of the votes does not in my opinion justify recounting of the votes. Recounting of the votes can be ordered for irregularity committed during the course of counting and not for any incidence that took place after the counting was over. This question also needs to be adjudicated. 17. Arguments were raised on the admissibility of the compact disc vis­a-vis the order of the Court below dated 30.11.2007. From a perusal of the impugned order, I find that no finding has been given by the Court below with regard to the admissibility of the compact disc in view of the provision of Section 65-B of the Evidence Act. 18. A submission was made that under the U.P. Municipalities (Conduct of Election of Members) Order, 1964, the counting of votes is required to be done ward wise which in the present case was not done, and therefore, there was an infraction of the Rules which was mandatory in nature, which was a clinching evidence, and therefore, the recounting of votes was justified. In my opinion, if the counting of votes ward wise was not in accordance with the rules or order could be ground to anull the election but cannot be made a ground for the recounting of the votes. 19. In view of the aforesaid, this Court prima facie finds that a case is made out by the petitioner for a grant of an interim relief. Since voting is to take place on 13.9.08 and the matter requires further adjudication, consequently, a week’s time is allowed to Sri Ved Byas Mishra, the learned Counsel for the respondent No. 3 to file a counter affidavit. A week’s time thereafter to the petitioner to file a rejoinder affidavit. 20. Since voting is to take place on 13.9.08 and the matter requires further adjudication, consequently, a week’s time is allowed to Sri Ved Byas Mishra, the learned Counsel for the respondent No. 3 to file a counter affidavit. A week’s time thereafter to the petitioner to file a rejoinder affidavit. 20. List this matter for the admission and for the final disposal on 29.9.2008. 21. Till the next date of listing, the effect and operation of the impugned order dated 30.8.08 passed by the Additional District Judge, Court No. 2, Deoria in Election Petition No. 6 of 2006 shall remain stayed. 22. A certified copy of this order shall be made available to the learned Counsels for the parties today. Further, I direct the Standing Counsel to intimate the District Magistrate, Deoria not to recount the votes pursuant to the order of the Additional District Judge dated 30.8.2008. 23. A certified copy of this order shall also be made available to Sri Prashant Mathur, the learned Standing Counsel free of cost today for necessary action. ————