JUDGMENT : Hon'ble Surya Prakash Kesarwani,J. 1. Heard Sri Deepak Kumar Jaiswal, learned counsel for the petitioner and Sri K.R. Singh, learned counsel for the Election petitioner/respondent no.1. 2. The petitioner is the winning candidate in the Election of Village Pradhan of Village - Partapur, Block Patiyali, Tehsil - Patiyali, District - Kasganj, held on 5.12.2015. The counting was done on 13.12.2015 and the result was declared on the same day. 3. There were total 7 candidates who were contesting for the post of Village Pradhan of the aforesaid Village. Number of total votes casted were 1242 out of which 55 votes were declared invalid at the time of counting. Thus there remained 1187 valid votes. The petitioner herein secured 472 votes while the election-petitioner secured 456 votes. One Smt. Somvati secured 238 votes. Other candidates secured insignificant number of votes. Twenty three votes of the election-petitioner were cancelled at the time of counting on the ground that they are invalid inasmuch as it bears thumb impression. 4. The election-petitioner filed the election-petition under Section 12 C(1) of the U.P. Panchayat Raj Act, 1947 on the grounds mainly that some illiterate voters whose thumb impression were taken at the time of issuing ballot papers, took the ballot papers in their hand without removing the ink of the thumb which resulted in some thumb impression at some place on the ballot paper which cannot be said to be a ground for rejection of ballot under Rule 50 of the U.P. Panchayat Raj (Election of Pradhans and Up Pradhans) Rules 1994, names of 18 dead persons were included in the electoral list in whose name the votes appears to have been casted and there are several voters whose names are recorded twice in the voter list. Specific pleadings in this regard were made in paragraph 11 and 12 of the Election Petition. A reply dated 16.9.2016 to the election-petition was filed by the petitioner in which she has not offered any specific denial to the specific averments made in paragraphs 11 and 12 of the election-petition. Evidences led by the parties clearly reveal that names of the several dead persons were included in the electoral list and names of several persons were included twice in the electoral list. On these facts the Election Tribunal found the recounting of votes to be necessary. Evidences led by the parties clearly reveal that names of the several dead persons were included in the electoral list and names of several persons were included twice in the electoral list. On these facts the Election Tribunal found the recounting of votes to be necessary. Therefore, he passed the impugned order dated 28.5.2018, fixing the date for 9.6.2018 for recounting. 5. Learned counsel for the petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Vadivelu Vs. Sundaram and Others, 2000 (8) 355 (para 16 and 18). He also relied upon a judgment dated 20.4.2018, passed by this Court in Writ C No. 32569 of 2017 (Smt. Sadhna Vs. Nirmala Devi & others) and submits that the impugned order of recounting is wholly arbitrary and illegal. 6. Sri K.R. Singh, learned counsel for the Election-petitioner/respondent No.1 submits that every mark or writing does not result in invalidation of a vote. The election-petitioner made specific pleadings in this regard in paragraph 12 of the election-petition which fact has not been specifically denied by the petitioner herein. Evidences were led before the Election Tribunal which revealed invalidation of 23 votes on the ground of thumb impression. He submits that the inclusion of names of dead persons in the electoral roll and inclusion of names of certain persons twice in the electoral roll have not been denied by the petitioner herein although specific averments with full particulars of voters in this regard were specifically made in paragraph 11(l) and 11(n) of the Election petition. Evidences were also led by the election petitioner in this regard. He, therefore, submits that there was sufficient material before the election Tribunal to direct for recounting on the ground of improper acceptance of invalid votes, improper rejection of valid votes and utilisation of wrong electoral roll by the Presiding Officer. 7. I have carefully considered the submissions of learned counsels for the parties and with their consent this writ petition is being finally heard without calling for a counter affidavit. 8. The Election petitioner/respondent no.1, made specific averments in paragraph 11(l) and 11(n) of the Election Petition that names of certain dead persons were included in the electoral roll and names of several persons were mentioned twice in the electoral roll in whose names votes were casted. 8. The Election petitioner/respondent no.1, made specific averments in paragraph 11(l) and 11(n) of the Election Petition that names of certain dead persons were included in the electoral roll and names of several persons were mentioned twice in the electoral roll in whose names votes were casted. He also made specific averments in paragraph 12 of the Election Petition with regard to rejection of 23 votes on the ground that it bears thumb impression. These, facts stated in the election petition have not been specifically denied by the petitioner herein in her reply filed before the Election Tribunal. She merely made vague denial. The evidences led by the parties were considered by the Election Tribunal who found names of 18 dead persons in the electoral roll. He also found several persons whose names were mentioned twice in the electoral roll. On these facts the Election Tribunal found recounting of the votes to be appropriate in the facts and circumstances of the case. 9. In Vadivelu (supra) Hon'ble Supreme Court held, as under: "16. 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 or irregularity was committed while counting. The petitioner who seeks re-count 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. 17................. 18. From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for re-count of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. 17................. 18. From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for re-count of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the counting officers. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes also is not explained by the appellant. In short, the Election Petition is bereft of all details and the appellant, while examined as PW 1, could not supplement anything by way of evidence." 10. In Bhabhi Vs. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes also is not explained by the appellant. In short, the Election Petition is bereft of all details and the appellant, while examined as PW 1, could not supplement anything by way of evidence." 10. In Bhabhi Vs. Sheo Govind and Others, (1976) 1 SCC 687 , Hon'ble Supreme Court laid down certain guidelines for grant of inspection of valid papers, 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 Satyanarain Dudhani Vs. Uday Kumar Singh, 1993 suppl. 2 SCC 82, the principles laid down by Hon'ble Supreme Court in the case of Bhabhi (supra) were reiterated by Hon'ble Supreme Court and it was observed that the the secrecy of the ballot papers cannot be permitted to be tinkered with lightly and an order of recount cannot be granted as a matter of course. It is only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered. It is only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered. When there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition. 12. In T.A. Ahammed Kabeer Vs. A.A. Azeez and Others, (2003) 5 SCC 650 , Hon'ble Supreme Court held as under: "28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to." 13. In N. Narayanan v. S. Semalai, AIR 1980 SC 206 , Hon'ble Supreme Court observed that the Court would be justified in ordering a recount of the ballot papers only where; (i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (ii) 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 (iii) 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. 14. In Ram Adhar Singh Vs. The District Judge, Ghazipur and others, 1985 AWC 246 full Bench of this Court held, as under: "19. 14. In Ram Adhar Singh Vs. The District Judge, Ghazipur and others, 1985 AWC 246 full Bench of this Court held, as under: "19. Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the representation of the People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must co-exist: (1) 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 (2) 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. It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application under Section 12-C of the U.P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie, satisfy the authority about the existence of the ground on which the election is sought, to be questioned." 15. In Shradha Devi Vs. Krishna Chandra, AIR 1982 SC 1569 (para 14 & 15) Hon'ble Supreme Court considered that which mark would invalidate a ballot paper and held as under: "14. We may now turn to remaining nine ballot papers. Remaining nine ballot papers have been rejected on the ground that by some mark on the ballot paper itself the voter can be identified. Krishna Chandra, AIR 1982 SC 1569 (para 14 & 15) Hon'ble Supreme Court considered that which mark would invalidate a ballot paper and held as under: "14. We may now turn to remaining nine ballot papers. Remaining nine ballot papers have been rejected on the ground that by some mark on the ballot paper itself the voter can be identified. There is a specific allegation to that effect in para 18 of the election petition. Before we examine each individual ballot paper, let the full import of the provision be made clear. Rule 73(2)(d) provides that a ballot paper shall be invalid on which there is any mark or writing by which the elector can be identified. Section 94 of the 1951 Act ensures secrecy of ballot and it cannot be infringed because no witness or other person shall be required to state for whom he has voted at an election. Section 94 was interpreted by this Court in Raghubir Singh Gill v. Gurcharan Singh Tohra, (1980) 3 SCR 1302 : AIR 1980 SC 1362 , to confer a privilege upon the voter not to be compelled to disclose how and for whom he voted. To ensure free and fair election which is pivotal for setting up a parliamentary democracy, this vital principle was enacted in Section 94 to ensure that a voter would be able to vote uninhibited by any fear or any undesirable consequence of disclosure of how he voted. As a corollary it is provided that if there is any mark or writing on the ballot paper which enables the elector to be identified the ballot paper would be rejected as invalid. But the mark or writing must be such as would unerringly lead to the identity of the voter. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. But the mark or writing must be such as would unerringly lead to the identity of the voter. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. In Woodward v. Sarsons, (1874-75) LR 10 CP 733 interpreting an identical provision it was observed as under: "It is not every writing or every mark besides the number on the back which is to make the paper void, but only such a writing or mark as is one by which the voter can be identified." It would imply that there must be some causal connection between the mark and the identity of the voter that looking at one the other becomes revealed. Therefore, the mark or a writing itself must reasonably give indication of the voter's identity. It may be that there must be extrinsic evidence from which it can be inferred that the mark was placed by the voter by some arrangement. In this context one can advantageously refer to the statement of law in Halsbury's Laws of England, 4th Edn., Vol.15, para 634. It may be extracted : "634. Ballot papers rejected for marks of identification-Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back, is void and must not be counted. It may be extracted : "634. Ballot papers rejected for marks of identification-Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back, is void and must not be counted. The writing or mark must be such that the voter can be, and not merely might possibly be, identified." "As respects ballot papers which have names, initials, figures or other possible marks of identification on them by which it might be suggested that the voter could be identified, it has been said that the court should look at the paper and form its own opinion whether what is there has been put there by the voter for the purpose of indicating for whom he votes; if the voter has not voted in the proper way (if for example he has made two crosses, or some other such marks which might have been intended for purposes of identification), but the Court comes to the conclusion on looking at the paper that the real thing that the voter has been doing is to try, badly or mistakenly, to give his vote, and make it clear for whom he voted, then these marks should not be considered to be marks of identification unless there is positive evidence of some agreement to show that it was so." In Woodward's case the Court came to the conclusion that the placing of two crosses or three crosses or a single stroke in line of a cross or a straight line or a mark like imperfect letter 'P' in addition to the cross or star instead of a cross or a cross blurred or marked with a tremulous hand, or a cross placed on the left side of the ballot paper, or a pencil line drawn through the name of the candidate not voted for, or a ballot paper torn longitudinally through the center, are not marks which would invalidate the votes on the ground that the mark was such that the voter can be identified. Similarly, Election Tribunal in Sohan Lal v. Abinash Chander, (1953) 4 ELR 55 held that the addition of a horizontal line after figure 1 indicating first preference vote would not invalidate the ballot paper, unless there was evidence that the horizontal line was drawn so as to reveal the identity of the voter. Similarly, Election Tribunal in Sohan Lal v. Abinash Chander, (1953) 4 ELR 55 held that the addition of a horizontal line after figure 1 indicating first preference vote would not invalidate the ballot paper, unless there was evidence that the horizontal line was drawn so as to reveal the identity of the voter. In the absence of any such evidence the ballot paper was held valid. It would, therefore, follow that the mark or writing which would invalidate the ballot paper must be such as to unerringly point in the direction of identity of the voter. In the absence of such suggested mark or writing the ballot paper cannot be rejected merely because there is some mark or writing on the ground that by the mark or writing the voter may be identified. One has to bear in mind the difference between 'can be identified' and 'might possibly be identified'. 15. The High Court did not examine the other 9 ballot papers on the erroneous view that only two were correlated to the averments in the plaint. There was specific averment in para 18 of the petition that the marks were not such as to lead to identity of the elector and that the ballot papers could not be rejected as invalid under Rule 73 (2) (d). This allegation is wholly substantiated by a casual look at the remaining nine ballot papers. The error is apparent. Once the error has been established the scrutiny and recount had to be ordered as a Prima facie case of miscount is made out and, therefore, the decision of the High Court is liable to be set aside. At one stage we were inclined to examine the validity of each ballot paper. But as the High court has not undertaken that exercise it would not be proper for us to undertake the same for the first time here. The position of law having been made very clear, namely, that once an error is established it is not necessary that the pleadings must show error in respect of each individual invalid ballot paper. Prima facie proof of error resulting in miscount having been established, a scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede the recount. Prima facie proof of error resulting in miscount having been established, a scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede the recount. It is further made clear that where voting is in accordance with the proportional representation by the single transferable vote a ballot paper can be valid in part. And it must be remembered that every mark or writing does not result in invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available. There is no such evidence. Therefore, the ballot papers could not have been rejected on the ground mentioned in Rule 73(2)(d), such marks being in this case some erasures or a bracket." 16. The settled position of law on 'Recounting of Votes" and "marks which would invalidate a ballot paper" can, thus, be summarised as under: (a) 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. (b) The Court would be justified to order for recount of the ballot papers only where:- (i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (ii) 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; (iii) 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; (iv) 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; (v) 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. (c) When a mark would invalidate ballot paper :- (i) The mark or writing which would invalidate the ballot paper must be such as to unerringly point in the direction of identity of the voter. In the absence of such suggested mark or writing the ballot paper cannot be rejected merely because there is some mark or writing on the ground that by the mark or writing the voter may be identified; (ii) But every mark or writing does not result in invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available; (iii) Once an error is established it is not necessary that the pleadings must show error in respect of each individual invalid ballot paper. Prima facie proof of error resulting in miscount having been established, a scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede the recount. (d) Once a recount has been allowed, the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. 17. The facts as discussed above and also briefly noted in the impugned order leaves no manner of doubt that the election petition contains an adequate statement of all material facts on which the allegations of irregularity or illegality in counting are founded. The specific averments made in this regard in paragraphs 11 and 12 of the election petition have not been specifically denied by the petitioner herein in the reply filed by her before the Election Tribunal. Evidences were adduced by the parties which supports the averments made in the election petition and prima facie establishes a good ground to believe that there has been illegality or irregularity in counting and, therefore, to decide the dispute and to do complete and effectual justice between the parties, the order of recounting by the Election Tribunal on its prima facie satisfaction, cannot be said to suffer from any illegality. 18. 18. In view of the above discussion, I do not find any illegality in the impugned order of the Tribunal. Consequently, this writ petition fails and is hereby dismissed.