Anil Kumar, J.;- Heard Sri S.K. Singh, learned counsel for the petitioner and learned Standing Counsel for opposite party no.1 as well as Dr. R.S. Pande for opposite party no.2. 2. By means of present writ petition, the petitioner has challenged the order dated 25.06.2011 passed by opposite party no.1 for recounting of the votes. 3. The facts in brief of the present case to the effect is that the election for Gram Pradhan of Gram Panchayat, Rajapur Rani, Block, Hariharpur Rani, Pargana and Tehsil, Bhinga District Sharawastil held on 22.10.2011 in which petitioner elected as a successful candidate. 4. Aggrieved by the same, opposite party no.2 filed Election Petition registered as Election Petition No. 4 of 2010. 5. Thereafter, in the said matter, by means of impugned order dated 25.06.2011, opposite party no.1 passed an order for recounting of votes. Hence, the writ petition has been filed thereby challenging the said order. 6. Sri R.S Pandey, learned counsel for the opposite party 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 U.P. Panchayat Raj Act 1947, as such present writ petition filed by him is not maintainable, liable to be dismissed on the said ground. 7. 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." 8. So, the present writ petition filed by petitioner challenging order for recounting of Votes by respondent no. 1 is maintainable. 9. After hearing learned counsel for parties 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. 3 to writ petition) passed by respondent no. 1 for re-election maintainable. 10. 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. 3 to writ petition) passed by respondent no. 1 for re-election maintainable. 10. After hearing counsel for the parties, in regard as the matter for grant of interim relief and going through the record, the order dated 25.06.2011 passed by opposite party no.1 for recounting of votes is a non speaking and no valid reason has been assigned for passing of the said order as well as the same is not based on any cogent evidence so, in view of the following judicial pronouncement. 11. In the 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, 1975 SCR 202 , to which one of us (Fazal Ali, J.) was a party and which may be extracted thus :- 12. 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." 13. In the case of M.R. Gopalakrishnan Vs. 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." 14. Hon'ble Apex Court in the case of Baldev Singh Vs Shinder Pal Singh and another 2007(1) SCC 341 after placing reliance on the earlier judgment in the case of Jagjit Singh(Dr.) Vs. Giani Kartar Singh AIR 1966 SC 773 ], and M. Chinnasamy Vs. K.C. Palanisamy (2004) 6 SCC 341 in paragraph 31 observed as under:- (M. Chinnaswamy Case, SCC pp. 352-53, para 30) "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. 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. 15. In the case of Smt. Sushma Devi Vs. 15. 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." 16. 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 andothers (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 theapplication for recounting of votes cannot be allowed. 17. 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. 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. 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." 18. I am of the opinion that order passed by Prescribed Authority dated 25.06.2011for recounting of Votes is contrary to law, as such further proceeding of Election Petition No. 4/2010 (Chinkoo Vs. Ram Abhilakh & others) and order dated 25.06.2011 passed by respondent no. 1 are stayed till the next date of listing. 19. Learned Counsel for respondents prays for and are granted two weeks' time to file counter affidavit. Rejoinder affidavit be filed within a week thereafter. 20. List and connect along with Writ Petition No. 3719 (MS) of 2011 on 25.07.2011 peremptorily. 21. As agreed between the parties, on the said date, writ petition may be heard finally and disposed of. Order Date :- 29.6.2011 Shahnaz Note:- Learned counsel for petitioner is directed to file an affidavit before respondent no. 1 informing him about the order passed today. Further, learned Standing Counsel as well as Sri R.S. Pande, learned counsel for respondent no. 2 are also directed to inform the order passed by this Court today to respondent no. 1 for necessary compliance.