Hon’ble Sunil Ambwani, J.—Heard Shri P.C. Pathak, learned Counsel for the petitioner. Shri Shashi Nandan, Senior Advocate assisted by Shri M.C. Mishra appears for the respondent No. 4. Learned Standing Counsel appears for State respondents. With the consent of parties, this writ petition was heard and is finally decided at the admission stage.

2. The petitioner-Om Prakash Upadhyay was elected as Gram Pradhan of Gram Panchayat Patahana, Block Sujanganj, District Jaunpur in the elections held on 23-8-2005. The results were declared on 28-8-2005. Both the petitioner as well as Shri Shobh Nath Pandey-respondent No. 4 secured 219 votes each. The result was thereafter declared, with the consent of both the parties, by draw of lots in which the petitioner was luckier than the respondent No. 4 and was declared elected.

3. Shri Shobh Nath Pandey filed an election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 (in short the Act) and also filed a Writ Petition No. 1751 of 2006, which was dismissed on the ground that the election petition has been filed, with a direction that the election petition be decided within one year. A written statement was filed on 7-4-2006. Four issues were framed on 18-4-2006 by the Sub Divisional Magistrate, Machhalishahar, District Jaunpur/Prescribed Authority. A transfer application filed by the petitioner before the District Magistrate, Jaunpur was rejected on 8-6-2006. The petitioner preferred a Writ Petition No. 32654 of 2006. The writ petition was dismissed on 20-6-2006.

4. The Sub Divisional Magistrate summoned the records and ballot papers and directed for recount on 11-7-2006. A revision filed against the order under Section 12-C of the Act was dismissed on the ground that it was not maintainable against the interlocutory order. A Writ Petition No. 38138 of 2006, challenging both the order of recount and order in revision, was allowed by this Court on 24-7-2006 on the ground that no reasons were given in the order of the Prescribed Authority. The order of recount dated 7-7-2006 was quashed with a direction to the Prescribed Authority to pass a fresh order in the matter of recount without granting unnecessary adjournments.

5. The Prescribed Authority considered the matter afresh and directed recount of votes by order dated 10-10-2006 on the grounds that out of 595 ballot papers, 423 ballot papers were used at the polling station No. 85 Primary School Allaiya Part I and 275 ballot papers were used at the polling station No. 86 Primary School Allaiya Part II. In this manner a total of 423 + 275 i.e. 698 ballots were put in the ballot box whereas according to Schedule 4A of the year 2005 of Gram Panchayat Patahana, a total number of 736 valid votes were cast as against the used 747 votes. The Prescribed Authority found that at two polling stations, total 698 ballots were cast whereas 747 ballots were counted in which 736 ballot papers were found to be valid. The difference of 49 votes could affect the result of election. It was found that the counting was not done properly and that it will be in the interest of justice that the recount be directed. The recount took place on 11-10-2006. The entire process of recount was photographed with video camera.

6. In the recount of total number of 696 ballot papers were found and as against 11 invalid votes, it was found that a total number of 16 votes were invalid. A total number of 698 votes were found to be used by the electors. It was found that as against 747 votes in Schedule 4-A, only 696 votes were present in the ballot box. In Schedule 4A the candidate with election symbol ‘Anaj Osata Kisan’ was found to have polled 50 votes, whereas in the recount not a single vote was found in his favour. The Presiding Officer had wrongly mentioned that 698 votes were cast whereas actually 696 votes were present in the ballot box. Shri Shobh Nath Pandey-respondent No. 4 was found to have secured 217 votes as against 216 votes secured by Shri Om Prakash