JUDGMENT : PRAKASH PADIA, J. 1. Heard Shri Siddharth Nandan, learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1, 16 & 17 and Shri Rakesh Kumar, learned counsel for the contesting-respondent no. 2. 2. The present petition under Article 227 has been filed by the petitioner, challenging the order dated 4.11.2022 passed by the Sub-Divisional Magistrate, Amroha and the order dated 21.1.2023 passed by the Additional District & Session Judge/Fast Track Court No. 1, Amroha in Civil Revision No. 85 of 2022. 3. The facts as stated in the petition are that the State Government has notified the election of Gram Panchayat in different phase, according to which, the date of nomination in respect of the petitioner's Gram Panchayat, namely, Saintli was fixed as 7.4.2021. Total 15 candidates have submitted their nomination for the post of Gram Pradhan. After finalizing the nomination, symbols were allotted to them on 11.4.2021. The election of aforesaid Gram Panchayat was held on 19.4.2021. 4. It is further stated that the polling was conducted on three booths, i.e. Booth Nos. 323, 324 & 325. In all the aforesaid three booths, total voters were 1724 and 1439 votes were polled. 5. After counting, the result was declared on 4.5.2021 by the Assistant Election Officer. The petitioner obtained 374 votes and respondent no. 2 obtained 372 votes. The Assistant Election Officer, prepared Form-46, according to which, the petitioner was declared elected. The photocopy of certified copy of Form 46 has been annexed as annexure-1 to the petition. 6. In paragraph 7 of the petition, it is further stated that on the basis of the report submitted by the Assistant Election Officer, the District Election Officer/District Magistrate, Amroha declared the final result, in which the petitioner was declared as elected Gram Pradhan. Copy of the result declared by the Election Commission has been annexed as annexure-2 to the petition. 7. It is further stated that the respondent no. 2, did not raise any written objection against the final round of counting and after declaring the result, on 8.6.2021 the respondent no. 2 filed election petition under section 12-C(6) of the UP. Panchayat Raj Act, 1947 before the Sub-Divisional Magistrate, Amroha, which was registered as Case No. 05506 of 2021, Computerized Case No. T202113380105506 (Munsab vs. Qamar Alam and Others). 2 filed election petition under section 12-C(6) of the UP. Panchayat Raj Act, 1947 before the Sub-Divisional Magistrate, Amroha, which was registered as Case No. 05506 of 2021, Computerized Case No. T202113380105506 (Munsab vs. Qamar Alam and Others). Copy of the plaint of election petition dated 8.6.2021 has been annexed as annexure-3 to the petition. 8. The petitioner, in response to the notice issued in the said election petition appeared and filed his written objection on 15.11.2021. Copy of the written objection filed by the petitioner has been annexed as annexure-4 to the petition. 9. It is further stated that the respondent no. 2 has filed his own affidavit being witness and affidavit of Munasib. 10. The petitioner filed an application on 25.2.2022 under Order 19 Rule 2 of Code of Civil Procedure, read with Rule 25 of Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up- Pradhans) Rules, 1994 for granting opportunity to cross- examine the witnesses, who have filed affidavit in support of the election petition. The said application was rejected by an order dated 7.3.2022 passed by the Prescribed Authority/Sub- Divisional Officer. Being aggrieved with the aforesaid order dated 7.3.2022, the petitioner filed Civil Revision No. 14 of 2022 before the District Judge, Amroha, but the same was rejected on the ground that the order dated 7.3.2022 is an interlocutory order, as such, the revision is not maintainable. 11. It is also stated in the petition that the respondent no. 2 has preferred election petition mainly on two grounds i.e. there is no compliance of the Rules 101 & 103 of Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up- Pradhans) Rules, 1994 and on the ground that the Assistant Election Officer prepared two Form-46 under Rule 104 & 107 of 1994 Rules, in which there is an over writing and cutting. Copy of non-certified Form-46 which was filed by the respondent no. 2 has been annexed as annexure-9 to the petition. 12. It is further case of the petitioner that the election petition had been decided by an order dated 4.11.2022 without calling for the Assistant District Election Officer and without calling for clarification or documents from the Assistant District Election Officer, who was engaged to conduct the election and an order for recount of votes has been passed. 13. 12. It is further case of the petitioner that the election petition had been decided by an order dated 4.11.2022 without calling for the Assistant District Election Officer and without calling for clarification or documents from the Assistant District Election Officer, who was engaged to conduct the election and an order for recount of votes has been passed. 13. By the order dated 4.11.2022, the Prescribed Authority/Sub- Divisional Officer, Amroha has ordered for recount of the vote and the said order has been affirmed by the Additional District Judge, Amroha in revision. 14. Being aggrieved with the aforesaid order dated 4.11.2022, the petitioner filed Civil Revision No. 85 of 2022. The aforesaid civil revision has been rejected by the Additional Distict & Session Judge, Court No. 1, Amroha by on order dated 21.1.2023. 15. Challenging the aforesaid orders, the present petition has bean filed. 16. The learned counsel for the petitioner Shri Siddharth Nandan has argued that: (I) The Prescribed Authority has even partly allowed the election petition and directed for recounting of votes, then after disposal of the election petition, the election Tribunal becomes functuous officio and no subsequent order can be passed by the Election Tribunal, even after recount of votes. (II) The pleadings of election petition are vague and order of recount, violating the secrecy of the ballot to enable the election petitioner to manufacture the evidence by way of roving and fishing enquiry is not permissible under the law. (III) The order dated 7.3.2022 rejecting the application dated 25.2.2022 is not final and as no opportunity to cross-examine has been provided to the petitioner, the orders impugned are illegal. (IV) The argument of respondent regarding admission of certain facts cannot be considered to support the impugned orders dated 4.11.2022 & 21.1.2023. 17. The counsel for the respondent no. 2 had filed his counter offfidavit, denying the petition's averment and has stated that the respondent no. 2 has filed the election petition with a prayer that the declaration of the petitioner as Gram Pradhan of Gram Panchayat, Saintli be declared void and after recount of the votes, the respondent no. 2 be declared as elected Gram Pradhan. 18. It is argued by the counsel for the respondent no. 2 that total cast votes were 1445, valid votes were 1402 and invalid votes were 43. The respondent no. 2 be declared as elected Gram Pradhan. 18. It is argued by the counsel for the respondent no. 2 that total cast votes were 1445, valid votes were 1402 and invalid votes were 43. The respondent no. 2 has obtained 377 votes and the petitioner has obtained 375 votes. Subsequently, by making cutting in Form 46, votes obtained by the petitioner were minus 5 and thus total votes of the respondent no. 2 were recorded as 372 and 1 vote of the petitioner was reduced and total votes obtained by the petitioner were mentioned as 374. 19. In Form-46 (annexure-9 to the petition), the number of total invalid votes are still mentioned as 43. The authority has also reduced the number of valid votes from 1402 to 1396 and the total votes cast is reduced to 1439. By making cutting in the said form, the name of respondent no. 2 was cut and the name of the petitioner was mentioned as elected. The said form was also signed by the Election Officer/Assistant Election Officer. The aforesaid form has been reproduced by the learned trial Court in its order. 20. The result of election has also been uploaded in the website of State Election Officer, U.P. Lucknow, which has been annexed as annexure-2 to the petition, the total votes cast are mentioned as 1439, total valid votes are mentioned as 1396 and total invalid votes are mentioned as 43. 21. Those documents annexed as annexure-9 & 2 of the petition contains the figure that the total votes cast is 1439. Invalid votes is 43 and valid votes is 1396. 22. Subsequent form-46, annexed as annexure-1 to the petition, the number of valid votes is mentioned as 1396, the number of rejected votes is mentioned as 49 and total votes cast is mentioned as 1445. Based on the aforesaid figure, the petitioner was declared elected. 23. The petitioner in para 9 of his written statement has also admitted that total votes cast is 1439, invalid votes is 43 and valid votes is 1396. 24. In paragraph 5 of the writ petition, the petitioner has again mentioned that out of total 1724 voters 1439 voters have polled their votes. Thus it is admitted by the petitioner that the total votes cast were 1439, out of which 43 votes were declared invalid. 25. 24. In paragraph 5 of the writ petition, the petitioner has again mentioned that out of total 1724 voters 1439 voters have polled their votes. Thus it is admitted by the petitioner that the total votes cast were 1439, out of which 43 votes were declared invalid. 25. This fact is also admitted by the petitioner in paragraph 5 of the affidavit of evidence, which is as under: ^^;g fd xzke iapk;r lSryh dh erx.kuk lwph ds vuqlkj dqy ernkrk 1724 gS ,oa dqy cwFkksa ij iM+s er 1439 gS rFkk [k+kfjt gq, er 43 ,oa oS/k er i= 1396 gSA** 26. The above averments of the petitioner made in written statement and the affidavit had been recorded by the Sub- Divisional Magistrate in its order dated 4.11.2022. 27. The Sub-Divisional Magistrate has framed as many as 18 issues. 28. While deciding the issue nos. 2, 5, 6, 14 & 15, the Sub Divisional Magistrate has referred the document adduced by the petitioner and has recorded a clear finding that there is difference in three documents, namely: (A) Form 46, document no. 9/16 (which is certified copy of form 46, annexed as annexure-1 to the petition) 6 of 13. (B) Information available in the website (annexed as annexure-2 to the petition). (C) Form 46, Document No. 9/12 which is annexed as annexure-9 to the petition. 29. Since there is difference of total number of votes and invalid votes in various documents available on record and pleading of parties, the Sub-Divisional Magistrate has ordered for recount of the votes. 30. Thus, the Sub-Divisional Magistrate has not finally decided the election petition as the decision on the issues, referred above will depend upon decision of recount. 31. In this view of the matter, the election petition has not finally been decided and the Sub-Divisional Magistrate will not become functious officio as argued by the petitioner. 32. The Revisional Court, while deciding the revision, has recorded its finding in paragraphs 25, 26, 27, 28 & 29. The Revisional Court, while affirming the order of Sub-Divisional Magistrate has reconsidered the every documents and has recorded a finding that different number of valid votes and invalid votes are mentioned in various documents. The admission regarding total 1439 votes cast, total invalid votes 43 and valid votes 1396 has also been referred and considered by the Revisional Court in paragraph 17 of its judgment. The admission regarding total 1439 votes cast, total invalid votes 43 and valid votes 1396 has also been referred and considered by the Revisional Court in paragraph 17 of its judgment. Thus the argument has been considered by the Revisional Court in paragraphs 25 & 26 of its judgment. 33. So far as the argument of the petitioner that the finding of different number of different type of votes should not have been recorded without seeking clarification from the Assistant Election Officer is concerned, once the petitioner in his written statement and the affidavit filed as evidence himself has admitted the figure which is contrary to the figure mentioned in the certified copy of Form 45. (annexed as annexure-1 to the petition), no further enquiry was required. 34. In paragraph 5 of the counter affidavit, the respondent no. 2 has reproduced paragraph 9 of the written statement filed by the petitioner. Averments made in paragraph 5 of the counter affidavit has been replied by the petitioner in paragraph 4 of the rejoinder affidavit. In paragraph 4 of the rejoinder affidavit it is nowhere stated that the averments reproduced in paragraph S of the counter affidavit are incorrect. Only this much was stated that the plaintiff has to proceed his case independently and not on the basis of the pleadings of the defendant/respondent. Since the averments made by the respondent no. 2 in his election petition regarding total number of valid and invalid votes has been admitted by the petitioner in his written statement, no further evidence was required, as the number of valid and invalid votes was admitted by the petitioner. Moreover, para 4 of the rejoinder affidavit has been shown on the basis of the information received. 35. It is further argued that in view of facts stated above, it is clear that the order passed for recounting of the votes is lawful order and did not call for any interference. 36. Learned counsel for the respondent no. 2 based on the aforesaid facts has stated that the Election Tribunal did not becomes functuous officio as the final decision has to be taken by the Election Tribunal after recounting of the votes. The word ^^;kfpdk vkaf'kd :i ls Lohdkj dh tkrh gS** did not mean that the election petition has finally been decided. 2 based on the aforesaid facts has stated that the Election Tribunal did not becomes functuous officio as the final decision has to be taken by the Election Tribunal after recounting of the votes. The word ^^;kfpdk vkaf'kd :i ls Lohdkj dh tkrh gS** did not mean that the election petition has finally been decided. In deciding the various issues, the Election Tribunal has recorded the finding that the decision on the said issues will be taken after recount of the votes. Thus the Election Tribunal did not becomes functuous officio. 37. It is further argued that the findings of Election Tribunal and Revisional Court are not based on vague pleadings. The findings are based upon documentary evidence adduced by the respondent no. 2 and admission made by the petitioner in his written objection as well as affidavit filed in evidence. 38. Learned counsel for the petitioner has relied upon a judgment of the Coordinate Bench of this Court in the Matter under Article 227 No. 2646 of 2017 (Shami Vs. District Judge, Amroha & 26 others) for the proposition ^^;kfpdk vkaf'kd :i ls Lohdkj dh tkrh gS** means that the Election Tribunal has finally decided the election petition, as such, the Election Tribunal now becomes functuous officio. The petitioner has further relied upon a judgment passed in Matter under Article 227 No. 31424 of 2021 (Parshuram vs. State of U.P. and Others) for the proposition that after disposal of the election petition, the Election Tribunal becomes functuous officio and no subsequent order can be passed in this regard by the Election Tribunal. 39. The petitioner has further relied upon a judgment dated 27.1.2023 passed in Writ-C No. 35734 of 2022 (Sunil Kumar vs. State of U.P. and Others) for the proposition that the order of recount cannot be passed only on the basis of vague and indefinite allegation made in the election petition. 40. For the same proposition, the petitioner has also relied upon a judgment passed in Writ-C No. 33777 of 2022 (Manoj Devi vs. State of U.P. and Others). 41. The respondent no. 2 on the other hand, had relied upon a judgment in the case of Neelalohithadasan Nadar vs. George Mascrene and Others, 1994 Supp. (2) SCC 619 and also relied upon a judgment in the case of Chandreshwar Sad vs. Brij Bhushan Prasad and Others, 2020 (4) Law Digital 487 (SC). 42. 41. The respondent no. 2 on the other hand, had relied upon a judgment in the case of Neelalohithadasan Nadar vs. George Mascrene and Others, 1994 Supp. (2) SCC 619 and also relied upon a judgment in the case of Chandreshwar Sad vs. Brij Bhushan Prasad and Others, 2020 (4) Law Digital 487 (SC). 42. Heard learned counsels for the parties. 43. From perusal of the documents it is clear that in three documents. i.e.. annexure nos. 1. 2 & 9 of the petition, there is difference of number of invalid votes. In annexure-1, 49 invalid votes are mentioned. In annexure-2, which is information available in the website of State Election Commission and number of invalid votes are mentioned as 43 and in copy of Form 46, which contains the signature of Assistant Election Officer but is not the certified copy, the number of invalid votes are mentioned as 43. The petitioner in his written statement and the affidavit filed in evidence has admitted the number of invalid votes as 43. The number of total polled votes as mentioned in annexure-2 & 9 as well as in the written statement filed by the petitioner and the affidavit in evidence as well as in paragraph 9 of the present petition, is mentioned as 1439, whereas in Form 46, the number of total cast votes is mentioned as 1445. Once the petitioner himself has admitted in his written statement and affidavit of evidence, the total number of invalid votes as 43, there was no occasion to adduce any further evidence to establish the total number of invalid votes as 43. The number of total votes cast being admitted by the petitioner in his written statement, affidavit of evidence and even in the present petition clearly established that the correctness of Form 46 (annexure-1 to the petition) is also not admitted to the petitioner. 44. The Election Tribunal and the Revisional Court have considered the said facts and have rightly ordered for recounting of the votes. The Apex Court in the case of Neelalohithadasan Nadar (supra) has held in paragraph 10 that: “10. The existence of the principle of “secrecy of ballot” cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Apex Court in the case of Neelalohithadasan Nadar (supra) has held in paragraph 10 that: “10. The existence of the principle of “secrecy of ballot” cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill V. Gurcharan Singh Tohral. But this right of the voter is not absolute. It must yield to the principle of “purity of election” in larger public interest. The exercise of extrication of void votes under Section 62 (4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. “Secrecy of ballot” principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the “secrecy of ballot” as an allied vital principle. It was observed by this Court in Raghbir Singh case' as follows (SCR p. 1320: SCC p. 68, para 23) “Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can coexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.” 45. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.” 45. The Coordinate Bench of this Court in Writ-C No. 24519 of 2017 (Nirdosh Tyagi vs. State of U.P. and Others) decided on 19.5.2017, after considering the judgments of Apex Court and this Court has concluded as under: “It, therefore, follows that while passing an order of recount, the election tribunal has to record its prima facie satisfaction based on the averments made in and the materials indicated in the election petition about the existence of the ground on which the election is sought to be questioned. The allegation has to be specific and vague and indefinite allegations could not be ground to direct to recount of votes.” What logically follows is that the material and facts have to be pleaded in the election petition in order to impress upon the election tribunal that recounting of secret ballot papers is required. These pleadings are necessarily to be supported by the evidence of the election petitioner which is generally in the shape of affidavit as the proceedings before the Prescribed Authority are summary in nature. After these two pre-conditions are fulfilled, the Prescribed Authority is under obligation to record its satisfaction on the pleadings and material evidence to hold that the irregularities pointed out during the course of counting are supported by evidence and would require an order of recount.” 46. Thus the order of recounting is just and lawful order and is based on cogent reasons, pleading and documents filed in support of the said pleading. 47. In view of findings and order that various issues will be decided after recounting, the Election Tribunal did not becomes functuous officio as the election petition has not been finally decided and thus the cases relied upon by the petitioner are not applicable. 48. The judgment relied upon by the counsel for the petitioner in Writ-C No. 35734 of 2022 (Sunil Kumar vs. State of U.P. and Others) is not applicable in the facts and circumstances of the present case. In paragraph 15 of the judgment, it is clearly stated that the findings recorded by the Election Tribunal was without inspection of Form 45. The judgment relied upon by the counsel for the petitioner in Writ-C No. 35734 of 2022 (Sunil Kumar vs. State of U.P. and Others) is not applicable in the facts and circumstances of the present case. In paragraph 15 of the judgment, it is clearly stated that the findings recorded by the Election Tribunal was without inspection of Form 45. Further following findings have been recorded: “The petitioner has not submitted any document in support of his assertion made in the election petition though the assertion made in the election petition appears to be sufficient but in absence of any supporting documents are not sufficient to pass any order of recount, as observed above that for purpose of recounting person made in the election petition must have been support from the document is not the case in hand.” 49. In the present case, the averments made by the respondent no. 2 in the election petition are fully supported with the documents, i.e. annexure nos. 1, 2 & 9 of the petition. Moreover, once the assertions made in the election petition are admitted by the petitioner in his written statement, no further evidence was required. Thus the case cited by the petitioner is not applicable in the facts and circumstances of the present case. 50. Moreover, the Apex Court in case of Shalini Shyamm Shetty and Another vs. Rajendra Shanker Patil, 2010 (8) SCC 329 has held that in exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised. 51. In view of the above, the petition under Article 227 lacks merit and is hereby dismissed. The Prescribed Authority/Sub- Divisional Officer, Sadar, Amroha is directed to fix a fresh date for recounting of the vote. 52. The aforesaid exercise be completed within a period of ten days from the date of production of certified copy of this order. 53. No order as to costs.