JUDGMENT : RAJAN ROY, J. (C.M. Application No. Nil of 2019) Heard on the application for amendment filed by the petitioner today. 2. By means of this application various facts and grounds are sought to be added in the writ petition primarily contending that the Election Petition was not presented by the election petitioner herself but through her Advocate, therefore, it was not maintainable being in violation of Section 12-C(3) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ''the Act, 1947') and Section 81(1) of the Representation of People's Act, 1951 (hereinafter referred to as ''the to the applicant No.2Act, 1951' ), secondly, the Election petitioner had herself obtained a fraudulent caste certificate in the earlier election of the office of Gaon Sabha. 3. Sri M.A. Khan learned Senior Advocate assisted by Sri Mohdammad Aslam Khan on behalf of opposite party no.3 has raised an objection to the acceptance of this amendment application as according to him these facts cannot be asserted before the writ Court for the first time when the same have not been raised before the Prescribed Authority. Moreover, he says that even otherwise the assertions sought to be added are factual and are belied from the documents which are annexed with the amendment application, which show that the election petition was presented on 11.01.2015 by the election petitioner in person and there is an order of the Sub Divisional Officer of the same date on the first page of Election Petition written by hand, recording her presence. Moreover he says that the affidavit as also the verification of Election Petition bear the thumb impression of the Election Petitioner of the date on which the election petition was presented and at the bottom it is mentioned ''through Sri Rajendra Prasad Misra Advocate' which is only an endorsement of the fact that the said Advocate was to do pairvi of the case and not that the petition was being presented by Sri Rajendra Prasad Misra Advocate in the absence of the election petitioner. As regards para 44 (L) of the amendment petition he says that allegation pertains to the earlier election to the office of Gram Pradhan when the office was reserved for Other Backward Class (OBC) and proceedings had taken place upto the State level and the opposite party no.3 was deprived from performing the duties of the office of the Gram Pradhan based on the cancellation of (OBC) caste certificate which has no bearing on the subsequent election in which the office was not reserved for (OBC) but was for general category. 4. Having heard the learned counsel for the parties and perused the record, this Court is of the view that new facts cannot be raised for the first time before the writ Court. This Court does not want to make any observations with regard to the merits of the assertions sought to be added in the writ petition as it might prejudice the rights of the applicant, suffice it to say that, it has taken note of the reply of Sri M.A. Khan the learned Senior Advocate. The amendment application is not maintainable at this stage in the writ petition where the order under challenge is of recounting. The application for amendment is rejected. 5. Heard Sri M.A. Khan learned Senior Advocate assisted by Sri Bagesh Shukla and Sri Asit Chaturvedi learned Senior Advocate for the petitioner assisted by Sri Mohd. Aslam Khan and Sri Mohd. Sadab Khan and Sri Praveen Kumar Singh for the opposite party no.6 on the main writ petition. 6. This writ petition has been filed by the petitioner under Article 226 of the Constitution challenging two orders one dated 16.05.2018 passed by the Prescribed Authority deciding issues nos. 1,2 and 3 and ordering recount of votes while by keeping the election petition pending for final orders and other order is the revisional order passed on the Revision filed by the petitioner against the aforesaid order of the Prescribed Authority. 7. The Revision of the petitioner has been dismissed on the ground of being non-maintainable as according to the revisional authority the order of recount is an interlocutory order against which no Revision would lie under Section 12-C(6) of the Act, 1947. 8. 7. The Revision of the petitioner has been dismissed on the ground of being non-maintainable as according to the revisional authority the order of recount is an interlocutory order against which no Revision would lie under Section 12-C(6) of the Act, 1947. 8. In this regard the reliance placed by Sri Asit Chauturvedi upon a Single Judge decision in the case of Abrar vs. State of U.P. and others, (2004) 5 AWC 4088 does not help him as the legal position in this regard has been settled by Division Bench of this Court in the case of Mohd. Mustafa which has been relied recently in another case in which Sri Asit Chaturvedi has appeared i.e. Writ Petition No. 9609 (MS) of 2018 (Rajesh Kumar vs. District Judge, Shravasti & others), therefore, the revisional authority's order so far as it says that the Revision was not maintainable, does not require any interference. However, having said so, it has rightly been submitted by Sri Chaturvedi that the said Division Bench judgment in the case of Mohd. Mustafa as also in the recent judgment, as referred hereinabove, it has also been held that though Revision is not maintainable under Section 12C(6) of the Act, 1947, the aggrieved party cannot be left remedy-less, therefore, a writ petition would be maintainable in the given facts and circumstances of a case, as such, this petition is maintainable against the order of the Prescribed Authority dated 16.05.2018, even if, the Revision was not maintainable and even if the revisional Court's order does not require interference, as, the order of Prescribed Authority dated 16.05.2018 is also under challenge before this Court. 9. Now, this Court proceeds to consider the validity the order of the Prescribed Authority dated 16.05.2018 ordering recount of votes, on the parameters laid down by Full Bench of this Court in the case of Ram Adhar vs. District Judge, Ghazipur,1985 AllLJ 85 as also the Supreme Court decision on the issue in the case of Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao, (2010) 1 SCC 466 as also, the other decisions on the subject. The legal position is very well settled that an order of recount is not to be passed in a casual manner. The legal position is very well settled that an order of recount is not to be passed in a casual manner. It requires the satisfaction of certain pre-requisites which are (i) the election petition seeking recount of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularities or illegalities in recounting are found and (ii) on the basis of evidence adduced in support of the allegations the Tribunal must be, prima-facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties making of such an order is imperatively, necessary. 10. In the aforesaid decision of the Supreme Court it was also held that the settled position of law is that the justification of an order for examination of ballot papers and recount of vote is not to be derived from hind sight by the result of the recount of the votes. On the contrary the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutatary rule is that the preservation of secrecy of the ballot is a sacrosanct principle. In this regard the court held as under:- "13. Thus, the settled position of law is that the justification for an order for examination of ballot papers and re-count of votes is not to be derived from hindsight and by the result of the re-count of votes. On the contrary, the justification for an order of re-count of votes should be provided by the material placed by an election petitioner on the threshold before an order for re-count of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek re-counting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the re-count of votes." 11. It is also the settled law that the degree of proof required for ordering a recount of votes is of a very high standard and is required to be discharged by the Election Petitioner. Reference may be made in this regard to the decision in the case of in the case of M. Chinnasamy v. K.C. Palanisamy & Others, (2004) 6 SCC 341 , Mahendra Pratap vs. Krishna Pal and others, (2003) 1 SCC 390 and M. Chinnasamy vs. K.C. Palanisamy & others, 2004 10 SCC 479. 12. Now, when viewed against the aforesaid back ground, the Court finds that the allegation in the election petition as noticed by the Prescribed Authority was that out of total 2561 voters 1524 cast their votes, but, only 1520 votes were found i.e. 4 votes were not found. Moreover, 200 votes which had been cast in favour of the election petitioner i.e. opposite party no.3 herein were kept aside and invalid ballot papers were kept in the bundle of votes cast in favour of Gram Pradhan resulting in his election with material irregularity. Now this assertion was required to be proved by the Election Petitioner in the light of the law on the subject as already discussed hereinabove. As per Sri M.A. Khan certain affidavits were filed in support of the assertions. However, on a reading of the order of the Prescribed Authority the Court finds reference to only one affidavit. Now this assertion was required to be proved by the Election Petitioner in the light of the law on the subject as already discussed hereinabove. As per Sri M.A. Khan certain affidavits were filed in support of the assertions. However, on a reading of the order of the Prescribed Authority the Court finds reference to only one affidavit. This apart, even if, there were other affidavits, though, it could not be shown by the learned counsel for the opposite party no.3, there is absolutely no discussion of any evidence what to say of the affidavits while recording a findings in respect of issue no.1 regarding recounting. As regards findings on issue nos 2 and 3 there is no reason for this Court to interfere with the same as no illegality could be pointed out in this regard. As regards findings on issue nos 2 and 3 there is no reason for this Court to interfere with the same as no illegality could be pointed out in this regard. However, with regard to issue no.1 relating to irregularity in the counting, the findings recorded by the Prescribed Authority which are the basis for ordering recount the same are required to be extracted and they read as under:- ßokn fcUnq la[;k&1 D;k erx.kuk esa ?kksj vfu;ferrk gq;h gS \ xzke iapk;r& dVo<+ yksgaxjk; fodkl [k.M y{e.kiqj rglhy ykyxat] tuin izrkix<+ dh iapk;r ukekoyh ds vuqlkj dqy 2561 ernkrk iathd`r gSa ftuesa ls 1524 ernkrkvksa us lu~ 2015 iapk;r pquko esa iz/kku in gsrq ernku fd;kA erx.kuk pquko vk;ksx ds vkns'kkuqlkj fnukad 13-12-2015 ftlesa erx.kuk ds vuqlkj dqy 1520 eri=ksa dh x.kuk dh x;h tcfd 1524 ernkrkvksa us ernku fd;k gSA bl izdkj 4 eri= xk;c gS rFkk ;kph ds i{k esa iM+s 200 eri=ksa dks fudky fy;k x;k gS rFkk xyr eri= feykdj izfri{kh la0 1 ds eri=ksa dh xM~Mh esa feykdj fuokZpu vf/kdkjh y{e.kiqj o lgk;d fuokZpu vf/kdkjh y{e.kiqj rFkk erx.kuk dfeZ;ksa dh feyhHkxr ls ;kph dks 422 er rFkk izfri{kh la0 1 ds i{k esa 586 eri= dh fxurh fd;k tcfd izfri{kh la0 2 dks 287 er rFkk izfri{kh la0 3 dks 120 er rFkk izfri{kh la0 4 dks 36 er rFkk izfri{kh la0 5 dks 2 er ,oa izfri{kh la0 6 dks 1 er izkIr gq;s ,oa 66 er voS/k ?kksf"kr gq, ;g fl) djrk gS fd erx.kuk esa /kka/kyh gbZ gSA ftldh iquZerx.kuk djuk U;k;kFkZ vko';d gSA ;kfpuh ds fo}ku vf/koDrk }kjk iquZerx.kuk ds leFkZu esa mRrj izns'k iapk;r jkt ¼fuokZpu fooknksa dk fuiVkjk½ fu;ekoyh 1994 i`"B 298&299 izLrqr fd;k x;k gS] tks iquZerx.kuk gsrq izLrqr ;kfpdk esa ykxw gksrk gSA bl izdkj bl okn fcUnq dk fuLrkj.k ;kfpuh ds i{k esa fd;k tkrk gSA mijksDr of.kZr rF;ksa ds vk/kkj ij pquko ;kfpdk Lohdkj gksus ;ksX; izrhr gksrh gSA lkFk gh iquZerx.kuk djk;k tkuk Hkh U;k;ksfpr izrhr gksrk gSAß 13. On a bare reading of these findings one does not need to work very hard to say that there is absolutely no justification mentioned therein for recounting. All that has been mentioned is that 2561 voters were registered out of which 1524 voters cast their votes against which only 1520 ballots were counted. Thus, 4 votes were missing. On a bare reading of these findings one does not need to work very hard to say that there is absolutely no justification mentioned therein for recounting. All that has been mentioned is that 2561 voters were registered out of which 1524 voters cast their votes against which only 1520 ballots were counted. Thus, 4 votes were missing. It has also been mentioned that 200 votes cast in favour of the Election-petitioner were taken out and invalid ballot papers were mixed in the bundle of votes cast in favour of respondent no.1 i.e the elected Gram Pradhan and in connivance with the Election Officer 422 votes were counted in favour of the Election-petitioner and 586 in favour of the defendant in the Election Petition whereas defendant no.2 got 287 votes, defendant no.3 got 120 votes, defendant no.4 got 36 votes, defendant no. 5 got 2 votes and defendant no.6 got 1 vote. 66 Votes were declared illegal. After merely mentioning these facts which were mentioned in the Election Petition and as was the case of the Election-petitioner, straight away a conclusion has been recorded that these facts prove that there has been irregularity in counting and it is necessary to get recounting done. Furthermore, the Prescribed Authority has simply referred to the Rules 1994 page 298-299 which is obviously a reference to some book containing the aforesaid Rules, to say, that the same are applicable, without recording any finding as to which provision of it has been violated. There is absolutely no discussion of any evidence in the order of the Prescribed Authority nor any valid reason has been given for recounting. All that the order of the Prescribed Authority in respect of issue no.1 contains is a narration of facts followed by conclusions. Even assuming that against 1524 votes polled only 1520 votes were counted, the margin of victory of the petitioner was 164 votes, therefore, the difference was inconsequential. If all the votes polled by the candidates, including the invalid votes are counted the total comes to 1520. In the process of counting, separate forms are prepared on separate sheets. After the polling a Form prepared to show that how many ballots are available and how many were used and this is with reference to Rule 96 of the U.P. Panchayat Raj (Election of Members, Pradhan & Up Pradhan) Rules, 1994 (hereinafter referred to as ''the Rules, 1994'). In the process of counting, separate forms are prepared on separate sheets. After the polling a Form prepared to show that how many ballots are available and how many were used and this is with reference to Rule 96 of the U.P. Panchayat Raj (Election of Members, Pradhan & Up Pradhan) Rules, 1994 (hereinafter referred to as ''the Rules, 1994'). The votes polled are counted as per the procedure of prescribed in aforesaid Rules, 1994 and in this regard Rule 104 is relevant. Now in the process of Rule 104 Form 6 and 7 are prepared. The veracity of these forms has not been doubted by the Election Petitioner in the pleadings in Election Petition nor has any finding been recorded by the Prescribed Authority in this regard, therefore, it cannot be said that the error was during the counting and it is quite possible that the 4 missing votes may have been wrongly mentioned in the earlier Form itself but without drawing any conclusive opinion in this regard the fact of the matter is that it was for Election Petitioner to allege the irregularity and prove it in the light of the law referred hereinabove. The degree of proof was very high. There is no discussion of any evidence in the Prescribed Authority's order nor is there any valid justification for ordering recount. The Prescribed Authority lost sight of the fact that secrecy of ballots is to be maintained and is of paramount importance. The order is so palpably erroneous that it cannot be sustained. It is accordingly quashed. 14. It is also necessary to reiterate in the context of submission of Sri M.A. Khan that recounting has taken place in his presence and he has won, although, the result has not been declared on account of the stay order passed by this Court on 1.06.2018, that the Supreme Court in Kattinokkula Murali Krishna, has held that an order of recount is not to be sustained by hind sight by the result of the recount. The justification for an order of recount should be provided by the material placed by the Election Petitioner on the threshold before an order for recount is actually made, therefore, this submission does not hold ground. The justification for an order of recount should be provided by the material placed by the Election Petitioner on the threshold before an order for recount is actually made, therefore, this submission does not hold ground. The rationale for it is that secrecy of ballots is sacrosanct in a democracy and that unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima-facie case of high degree existed for recount of vote being ordered by the Election Tribunal in the interest of justice, a Tribunal or Court should not order recount of vote. 15. In view of the above, the matter deserves to be remanded back to the Prescribed Authority for consideration afresh in the light of the observations made hereinabove so far as issue no.1 is concerned. Consequences shall follow in accordance with law. The proceedings shall be concluded by him with expedition say, within a period of two months from the date a certified copy of the order is submitted before him. 16. The writ petition is partly allowed as far as the order of the Prescribed Authority is concerned. But so far as the challenge to the order of the revisional authority is concerned the same is rejected.