Anil Kumar,J.:- Heard Sri Mohd. Arif Khan, Senior Advocate assisted by Sri Mohd. Adil Khan, learned counsel for petitioner, Sri M.B. Singh and Sri Ram Kewal Tripathi, learned counsel for respondents. 2. Facts in brief as submitted by learned counsel for petitioner are that an election for the office of Pradhan of Gram Panchayat, Bankatwa Kalan held on 25.10.2011. In the said election petitioner declared as successful candidate. 3. Aggrieved by election of petitioner as successful candidate in election in question, respondent no. 2 (Smt. Saroj Pandey) filed an Election Petition under the provision of U.P. Panchayat Raj Act (hereinafter referred to as an 'Act'). A copy of same alongwith an affidavit, annexed as Annexure no. 1 to the writ petition, registered as Election Petition No. 2/2010 (Smt. Saroj Pandey Vs. Smt. Zahoora & others) in which petitioner who is defendant, filed written statement. 4. Learned counsel for petitioner further submits that as on behalf respondent no. 2 affidavits were filed to prove her case, so an application dated 23rd May, 2011 has been moved by petitioner for cross-examination of the persons who filed affidavits, rejected vide order dated 23.06.2011 passed by respondent no.1. 5. Aggrieved by same, petitioner filed a revision under Section 12-C 6 of the Act before the District Judge/Revisional Authority, postponed for hearing due to summer vacation and the matter is fixed on 04.07.2011. Thereafter, on the oral prayer made on behalf respondent no. 2 who filed Election Petition, respondent no. 1 passed impugned order dated 25.06.2011 (Annexure no. 13 to writ petition) for recounting of Votes. 6. Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioner submits that only reasons given by the Prescribed Authority/respondent no. 1 for recounting of Votes is that as the difference of Votes obtained between petitioner and respondents are very less, so recounting is necessary and in this regard, respondent no. 1 given finding to the effect :- 7. Hence, present writ petition filed thereby challenging order dated 25.06.2011. 8. Sri Ram Kewal Tripathi, learned counsel for respondent no. 2 raised a preliminary objection that against the order dated 25.06.2011, petitioner got statutory remedy by way of revision under Section 12-C 6 of the Act, as such present writ petition filed by him is not maintainable, liable to be dismissed on the said ground. 9. Sri Mohd. 8. Sri Ram Kewal Tripathi, learned counsel for respondent no. 2 raised a preliminary objection that against the order dated 25.06.2011, petitioner got statutory remedy by way of revision under Section 12-C 6 of the Act, as such present writ petition filed by him is not maintainable, liable to be dismissed on the said ground. 9. Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioner in rebuttal submits that in view of the law as laid down by this Court in the case of Mohd. Mustafa Vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others [(2008) 2 UPLBEC 170] wherein in Paragraph 5 (III) held as under :- "(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." 10. The present writ petition filed by petitioner challenging order for recounting of Votes by respondent no. 1 is maintainable. 11. After hearing learned counsel for parties and going through the record as well as law laid down by this Court in the case of Mohd. Mustafa (supra) preliminary objection raised by learned counsel for respondent no. 2 has got no merit, accordingly rejected, present writ petition filed by petitioner under Article 226 of the Constitution of India thereby challenging the order dated 25.06.2011(Annexure no. 13 to writ petition) passed by respondent no. 1 for recounting of Votes is maintainable. 12. Further, Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioner while assailing the impugned order for the purpose of interim relief submits that Prescribed Authority without any evidence, whatsoever passed order for recounting of Votes. Accordingly, the said action on the part of respondent no.1 is illegal and contrary to law as laid down by this Court as well as by the Hon'ble Apex Court wherein it is held that only on the basis of evidence adduced, if allegations are prima facie established and good ground for believing that there has been a mistake in counting, order for recounting of Votes should be passed, he submits that said position does not exist in present case. 13. Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioner also submits that in the present case only affidavit has been filed on behalf of respondent no. 13. Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioner also submits that in the present case only affidavit has been filed on behalf of respondent no. 2, in support of her Election Petition in the matter in question to substantiate her allegation. However, the said affidavits cannot be taken as evidence by respondent no. 1 as per provisions as provided under order XIX Rule 1 C.P.C. 14. He further submits that even otherwise the affidavits can be taken as evidence only if the petitioner be provided an opportunity to cross-examine the persons who filed affidavits and in the present case as a matter of fact on record, cross-examination of the persons who filed affidavits is still subjudice before the Competent Authority in revision, so on the basis of affidavits filed on behalf respondent no. 2 in support of her case taking them as evidence, the order of recounting should not be passed, as such impugned order dated 25.06.2011 passed by Prescribed Authority is without jurisdiction and contrary to law. 15. In order to support of his argument, Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioner placed reliance on the following judgments : 1. Ram Adhar Singh Vs. District Judge, Ghazipur and others [1985, UPLBEC 317] 2. M.R. Gopalkrishnan Vs. Thachady Prabhakaran and others [1995 Sup. (2) SCC 101] 3. Smt. Sushma Devi Vs. State of U.P. and others [2008 (26) LCD 919] 16. Accordingly, it is requested by Sri Mohd. Arif Khan, Senior Advocate that operation of impugned order for recounting of Votes shall be stayed in the present case. 17. Sri Ram Kewal Tripathi, learned counsel for respondent no. 2 submits that respondent no. 1/Prescribed Authority after considered the material on record, passed the order of recounting, as such there is no illegality in the said order, needs no interference by this Court while exercising the judicial power of review under Article 226 of the Constitution of India, writ petition lacks merit, liable to be dismissed. 18. Sri M.B. Singh, learned counsel for respondent no. 2 submits that in view of the Rules 4(ii) & (vii) framed under the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, present writ petition filed by petitioner lacks merit, liable to be dismissed. 19. I have heard learned counsel for parties and gone through the record. 20. 18. Sri M.B. Singh, learned counsel for respondent no. 2 submits that in view of the Rules 4(ii) & (vii) framed under the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, present writ petition filed by petitioner lacks merit, liable to be dismissed. 19. I have heard learned counsel for parties and gone through the record. 20. So far as the facts which are not in dispute between the parties are that election for the office of Pradhan of Gram Panchayat, Bankatwa Kalan held on 25.10.2011 in which petitioner elected as 'Pradhan' and thereafter respondent no.2/Smt. Saroj Pandey, unsuccessful candidate filed an Election Petition No. 2/2010 (Smt. Saroj Pandey Vs. Smt. Zahoora & others). In the said matter, in support of her case respondent no. 2 filed affidavits as evidence. Thereafter, petitioner moved an application for cross-examination of other persons who filed affidavits, rejected by respondent no. 1 and the matter is still subjudice in revision under Section 12-C-6 of the Act before the revisional authority/District Judge, Shravasti. 21. Thereafter, on oral request of respondent no. 2, respondent no. 1 passed order dated 25.06.2011 for recounting the Votes and the reasoning given in said order is to the effect that there is no necessary to take "Gavahi" and "evidence" while deciding the Election Petition as the victory margin between petitioner and respondent no. 2 is less. 22. In view of the above said facts, the core question which is arises before this Court for the purpose of interim relief is that what principle should be taken by the Competent Authority/Prescribed Authority for order of recounting. 23. Answer to the above said question lies in the following judicial pronouncement in the Full Bench decisions of this Court namely Ram Adhar Singh Vs. District Judge, Ghazipur and others [1985, UPLBEC 317] after taking into consideration the law as laid down by Hon'ble Apex Court in the case of Bhabhi Vs. Sheo Govind and others, AIR 1975 SC 2117 and in the case of N. Narayanan Vs. Semhalai and others [ AIR 1980 SC 206 ] held as under :- "Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catelogued by this Court in the case of Bhabhi Vs. Sheo Govind and others, AIR 1975 SC 2117 and in the case of N. Narayanan Vs. Semhalai and others [ AIR 1980 SC 206 ] held as under :- "Finally, the entire case law on the subject regarding the circumstances under which recount could be ordered was fully summarised and catelogued by this Court in the case of Bhabhi Vs. Sheo Govind, 1975 SCR 202 , to which one of us (Fazal Ali, J.) was a party and which may be extracted thus :- 24. The Court would be justified in ordering a recount of the ballot papers only where ; (1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded ; (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting, and (3) the court 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." 25. In the case of M.R. Gopalakrishnan Vs. Thachady Prabhakaran and others [1995 Supp (2) SCC 101], the Hon'ble Apex Court in Paragraph 16 (relevant portion) held as under :- "The demand of a defeated candidate for recount 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 the recount, no Tribunal or Court would be justified in directing the recount." 26. In the case of M. Chinnasamy Vs. K.C. Palanisamy (2004) 6 SCC 341 [Jagjit Singh(Dr.) Vs. Giani Kartar Singh AIR 1966 SC 773 ] held as under (M. Chinnasamy Case):- "30. In Jagjit Singh (Dr.) v. Giani Kartar Singh before a three-Judge Bench of this Court, a contention was raised to the effect that when a Tribunal considering the evidence in the light of the allegations made by the election petitioner was satisfied that inspection should be ordered, the same should not ordinarily be reversed in appeal wherein this Court held: (AIR pp. 784-85, para 35) "35. 784-85, para 35) "35. We are not prepared to accept this contention. The order passed by the Tribunal clearly shows that the Tribunal did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. 27. In the case of Smt. Sushma Devi Vs. State of U.P. and others [2008 (26) LCD 919], this Court held as under :- "Unless the defeated candidate is able to substantiate by means of evidence that a prima facie case existed for the inspection of the ballot papers, the ballot papers cannot be summoned merely on the ground that evidence was required to be given and that the production of the documents was necessary for the purpose of evidence." 28. Recently, in the case of Narendra Vs. Prescribed Authority and others [2010(1) ALJ 784] this Court in paragraph 7 & 8 held as under :- 7. In Mahendra Pal Vs. Ram Dass Malanger and others (2002) 3 SCC 457 , the Hon'ble Apex Court while considering the circumstances warranting for recounting of votes in election petition under the provisions of Representation of People Act 1951 observed that it is for the applicant to establish his case of irregularities and illegalities committed in the counting of votes. In absence of any evidence the application for recounting of votes cannot be allowed. In the said case Hon'ble Apex Court has placed reliance upon N. Narayanan vs. S. Semmalai, (1980) 2 SCC 537 = AIR 1980 SC 206 , wherein it was observed that the relief of recounting cannot be granted merely on possibility of there being an error in counting of votes. The allegations must not only be clearly made but also be proved by cogent evidence. In para 12 of Mahendra Pal's case the Apex Court has quoted the observations made by Apex Court in at page 547-48 R. Narayanan Vs. The allegations must not only be clearly made but also be proved by cogent evidence. In para 12 of Mahendra Pal's case the Apex Court has quoted the observations made by Apex Court in at page 547-48 R. Narayanan Vs. S. Semmalai as under:- " The court wold be justified in ordering re-count of the ballot papers only where: (1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The court 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." 8. In S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra & others, AIR 1980 SC 1362 , while dealing with the question of recount of votes, in para 13 of the decision Supreme Court observed as under:- "13. 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." 29. In view of the above said facts and law laid down by the Hon'ble Apex Court and by this Court, order passed by Prescribed Authority dated 25.06.2011for recounting of Votes is contrary to law, as such further proceeding of Election Petition No. 2/2010 (Smt. Saroj Pandey Vs. Smt. Zahoora & others) and order dated 25.06.2011 passed by respondent no. 1 are stayed till the next date of listing. 30. Learned Counsel for respondents prays for and are granted two weeks' time to file counter affidavit. Rejoinder affidavit be filed within a week thereafter. List/put up on 25.07.2011 peremptorily. 31. As agreed between the parties, on the said date, writ petition may be heard finally and disposed of.