JUDGMENT Devendra Kumar Upadhyaya, J. Heard, Sri Anil Tiwari, learned Senior Advocate assisted by Sri Raj Kumar Singh, learned counsel for the petitioner, learned Standing Counsel appearing for the respondent nos. 1 and 2 and Sri Ram Swaroop, who has put in his appearance on behalf of respondent no.3. 2. Under challenge in this petition is the order dated 13.10.2014 passed by the Sub-Divisional Officer/Prescribed Authority, Kunda, Pratapgarh whereby recounting of the ballot papers pertaining to the election to the office of gram pradhan of gram pachayat, Bachhraulli, Development Block and Tehsil Kunda, Pratapgarh has been ordered. 3. Submission of learned counsel for the petitioner is that the discretion for passing an order for recounting of ballot papers is to be exercised only in case the person seeking to challenge the election is able to establish from the pleadings that prima facie grounds to set aside the election as envisaged in Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as 'Act') exist. In support of his submission, he has heavily relied upon the Full Bench decision of this Court in the case of Ram Adhar Singh vs District Judge, Ghazipur and others, reported in 1985 ALL. L.J. 615. 4. He submitted that on the basis of pleadings available on record, the respondent no.3 has completely failed to establish that any prima facie ground as contemplated in Section 12-C of Act to set aside an election exists and hence, in absence of any such prima facie ground, the order under challenge could not have been passed. It has further been argued by learned counsel for the petitioner that the fact as to whether prima facie ground for setting-aside the election exists, has to be inferred and satisfaction to the said effect has to be recorded on the basis of pleadings put forth by the person challenging the election. 5. It has further been argued by learned counsel for the petitioner that the fact as to whether prima facie ground for setting-aside the election exists, has to be inferred and satisfaction to the said effect has to be recorded on the basis of pleadings put forth by the person challenging the election. 5. Drawing attention of the Court to the averments made in the election petition preferred by the respondent no.3, it has been submitted by learned counsel for the petitioner that in para 2 of the election petition, it has been averred that the election to the office of gram pradhan was held on 25.10.2010 in a free and impartial manner and thus, in view of the said admission, the ground as available to set aside the election under Section 12-C of the Act does not exist in the instant case and the finding, thus, recorded by the court below while passing the order for recounting is liable to be set-aside. 6. Sri Tiwari, learned Senior Advocate, has further stated that about the irregularities or illegalities, which are said to have materially affected the election and which allegedly occurred during the course of polling as well as during the course of counting, since no protest at the relevant point of time was lodged by the respondent no.3, hence, it would be presumed, prima facie, that no illegality or irregularity so as to affect the election had occurred and thus, the very election petition looses its ground for setting aside the election in view of the provisions contained in Section 12-C of the Act. 7. Relying on another judgement of this Court in the case of Surendra Singh vs State of U.P and others, reported in 2011 (29) LCD 1064 , learned Senior Advocate has submitted that necessity of maintaining the secrecy of ballot papers should be borne in mind before recounting is directed to be made and that direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow. 8. 8. In sum and substance, argument on behalf of the petitioner is that the respondent no.3 has utterly failed, before the Prescribed Authority, to establish prima facie ground for setting aside the election as contemplated in Section 12-C of the Act and the satisfaction so recorded by the Prescribed Authority is not based on the pleadings and material available on record, hence, only because the margin between the petitioner, who is the returned candidate and the respondent no.3, is that of only four votes, the impugned order could not have been passed for recounting the ballots. 9. On the other hand, learned Standing Counsel appearing for the respondent nos. 1 and 2 has opposed the very maintainability of the writ petition on the ground that the order under challenge is revisable under Section 12-C (6) of the Act. 10. Learned counsel appearing for the respondent no.3 has submitted that in the facts and circumstances of the case, since no prejudice is going to be caused to the petitioner by the impugned order for recounting, the petition may not be entertained. 11. Taking up the issue raised by learned Standing Counsel as regards the maintainability of the writ petition, I may observe that the revision petition challenging the impugned order has been preferred by the petitioner, however, an application has been moved for getting the same dismissed as not pressed which is listed for orders today before the learned District Judge. An averment has been made in this petition that the said revision petition was filed on wrong advised tendered to the petitioner and hence, because of the pendency of the revision petition, the instant petition should not be dismissed. 12. So far as the maintainability of the writ petition is concerned, regard may be had to a judgment of a Division Bench of this Court in the case of Mohd. Mustafa vs Up-Zilaadhikari, Phoolpur, Azamgarh and others, reported in 2007 (103) RD 282 wherein it has clearly been held that the writ petition would be maintainable against an order of recounting passed by the Prescribed Authority while proceeding in an election petition under Section 12-C of the Act. Mustafa vs Up-Zilaadhikari, Phoolpur, Azamgarh and others, reported in 2007 (103) RD 282 wherein it has clearly been held that the writ petition would be maintainable against an order of recounting passed by the Prescribed Authority while proceeding in an election petition under Section 12-C of the Act. Further, the revision petition filed by the petitioner, as has been averred, is the result of wrong advised for dismissal which as not pressed, an application has been moved by the petitioner before the District Judge which is listed today and this fact has been disclosed in the writ petition. Thus, in view of the aforesaid judgement of this Court in the case of Mohd. Mustafa (supra) and also in view of the fact that the application for dismissal of the revision petition as not pressed is listed today for orders before the District Judge, I hereby hold the writ petition to be maintainable. 13. Coming to the arguments urged on behalf of the petitioner, it is to be seen as to whether the averments made in para 2 of the election petition will amount to an admission on behalf of the respondent no.3 that elections were held in a free and impartial manner and hence, the very ground available for challenging the election will wither away: I may only observe at this juncture that the purport of the election petition has to be gathered and inferred from a reading of the entire petition and not one or two paragraphs alone. 14. It is true that in para 2 of the election petition, it has been stated by the respondent no.3 that the election to the office of gram pradhan was held on 25.10.2010 in a free and impartial manner, however, averments made in the subsequent paragraphs of the election petition make it abundantly clear that the election petition contains assertions relating to not only one or two but various irregularities which have allegedly been committed during the course of the polling and counting of the votes. In the election petition grounds of existence of corrupt practice and gross failure of the procedure have been taken while seeking the election to be set aside. In the election petition grounds of existence of corrupt practice and gross failure of the procedure have been taken while seeking the election to be set aside. Paragraphs subsequent to paragraph 2 of the election petition clearly state that certain ballots which contain the votes in favour of the respondent no.3 were not counted or illegally rejected and further that certain other ballots which ought to have been counted in her favour were not accepted. Similarly, the other paragraphs of the election petition contain allegations of corrupt practices and connivance of the officers/officials entrusted with the conduct of election and counting. 15. In view of the averments made in subsequent paragraphs of the election petition, I am unable to agree with the contention of learned counsel for the petitioner that the averments made in para 2 of the election petition will amount to an admission on the part of the respondent no.3 that election to the office of pradhan was held in a free and impartial manner which will dis-entitle her to challenge the same. 16. Now coming to the other argument raised by learned Senior Advocate as regards the presumption of the election and counting having been conducted lawfully and in regular manner for the reason that no protest either at the time of casting of votes or at the time of counting was raised by the respondent no.3, I may only refer to the contents of paragraph 10 of the election petition where it has categorically been stated by the respondent no.3 that the counting agent of the petitioner, during the course of counting, had lodged the objection with the Presiding Officer and had requested for recounting which was refused. Thus, it cannot be said that no protest at all by and on behalf of the respondent no.3 was lodged during the course of counting of votes. Accordingly, the aforesaid argument does not hold good and is, thus, rejected. 17. As regards the submission of learned counsel for the petitioner based on the law declared by the Full Bench of this Court in the case of Ram Adhar Singh (supra), it may be stated that so far as the proposition of law laid down in the said case is concerned, there is no ambiguity or doubt. 18. 17. As regards the submission of learned counsel for the petitioner based on the law declared by the Full Bench of this Court in the case of Ram Adhar Singh (supra), it may be stated that so far as the proposition of law laid down in the said case is concerned, there is no ambiguity or doubt. 18. In paragraph 18 of the aforesaid case of Ram Adhar Singh (supra), it has been held that the following two conditions should coexist before an authority hearing the election petition under U.P. Panchayat Raj Act can pass an order for inspection of the ballot papers (i) that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground; and (ii) that the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties. Thus, the impugned order passed by the Prescribed Authority has to be tested on touchstones laid down by the Full Bench of this Court in the case of Ram Adhar Singh (supra). 19. As regards the first condition, existence of which is necessary for passing an order of recounting, the averments made in the election petition are to be examined. In the election petition, it has been averred by the respondent no.3 inter-alia that certain ballot papers which contain votes were improperly or illegally not counted in her favour and similarly certain other ballot papers which should not have been counted in favour of the petitioner, were counted in his favour which has materially affected the election results. It has further been stated that the Presiding Officer in connivance with the petitioner had acted in a manner which has materially affected the result. It has further been stated that the Presiding Officer in connivance with the petitioner had acted in a manner which has materially affected the result. The election petition further states that the officials entrusted with the counting and the Presiding Officer, in connivance, have indulged in irregular and illegal practices at the time of counting, thereby violating the provisions contained in Rules 49, 50, 104 and 107 of the Rules framed under the Panchayat Raj Act known as 'Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994'. The grounds on which election to the office of gram pradhan can be set aside and on the basis of which, the petition for setting aside the election can be preferred are provided in Section 12-C of the Act, according to which, the grounds available for the aforesaid purpose are that the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or that the result of the election has been materially affected (i) by improper acceptance or rejection of any nomination or (ii) by gross failure to comply with the provisions of the Act or the rules framed thereunder. 20. What would amount to corrupt practice of bribery or undue influence has also been provided in sub-section (2) (B) of Section 12-C of the Act. Undue influence has been construed as any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right. 21. So far as the grounds of undue influence is concerned, the election petition does contain the averments that the officials and the Presiding Officer entrusted with the counting of ballots in connivance with the returned candidate had conducted the counting in irregular and illegal manner, thereby violated the provisions contained in Rule 49 of the Rules, 1994. 22. Accordingly, the election petition, in my considered opinion, contains enough and sufficient averments to arrive at a prima facie conclusion about the existence of the grounds for setting aside the election, which is a condition precedent for the Prescribed Authority to pass an order for recounting. 23. 22. Accordingly, the election petition, in my considered opinion, contains enough and sufficient averments to arrive at a prima facie conclusion about the existence of the grounds for setting aside the election, which is a condition precedent for the Prescribed Authority to pass an order for recounting. 23. The Prescribed Authority has discussed the pleadings made by the respondent no.3 in the election petition, the evidence adduced by her and also the evidence led by the returned candidate and has found that prima facie ground for inferring that on account of certain irregularities, the result of election has been materially affected, exists. 24. Yet another ground has been pressed by learned counsel for the petitioner to impeach the impugned order. It has been stated by learned counsel for the petitioner that an application seeking transfer of the proceedings of the election petition was moved before the District Magistrate from the court of present Presiding Officer to some other officer of competent jurisdiction on 26.09.2014, on which a report from the Presiding Officer was called for, who in place of submitting his report fixed the matter for 04.10.2014. The application moved for transfer of the proceedings before the District Magistrate was fixed for 27.10.2014 and thus, during pendency of the said transfer application, the Prescribed Authority proceeded with the matter and passed the impugned order on 13.10.2014. He also stated that the election petition was listed in the court of the Presiding Officer along with various other matters on 04.10.2014 and all cases except the election petition were adjourned for a general date. However, with the mala-fide intentions the Presiding Officer retained the file of the election petition and fixed the matter for 13.10.2014 and passed the impugned order on the said date. 25. My attention has been drawn to the contents of the transfer application preferred by the petitioner before the District Magistrate wherein inter alia it has been stated that the elder brother of husband of respondent no.3 was seen coming out of the residential bungalow of the Presiding Officer and further that he had learnt from some reliable sources that the Presiding Officer is related to the respondent no.3, though no relationship has been disclosed in the application. Without expressing any opinion on the contents of the said application, I may only observe that the assertions made in the said application appear to be vague. Without expressing any opinion on the contents of the said application, I may only observe that the assertions made in the said application appear to be vague. It is also noteworthy that the District Magistrate, who had called the report from the Presiding Officer, had not stayed the proceeding of the election petition. Accordingly, the aforesaid ground taken by the learned counsel for the petitioner also does not come to his rescue. 26. For the discussions made and reasons given above, I do not find any illegality in the impugned order which requires any interference in exercise of jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. 27. However, there will be no order as to costs.