Honble Sunil Ambwani, J.—Heard Shri B.D. Mandhyan, Senior Advocate assisted by Shri Santosh Kumar Srivastava for the petitioner, and Shri Ashok Khare, Senior Advocate assisted by Shri Hari Om Khare for respondent No. 3. The respondent Nos. 4 and 5 were the other contesting parties in the election petition. Learned Standing Counsel represents respondent Nos. 1 and 2. With the consent of the parties, the writ petition was finally heard and is being decided.

2. The elections, on the post of Pradhan of Gram Panchayat Sisana Pargana, Tehsil and District Baghpat, were held on 25.8.2005. The respondent No. 3-Paramjeet was declared elected with 1100 votes as against Shri Pratap Singh-writ petitioner with 1099 votes, with a margin of only one vote. Shri Pratap Singh filed an Election Petition No. 2:3 4/5 under Section 12-C of U.P. Panchayat Raj Act, 1947 (in short the Act), alleging corrupt practices and gross irregularities in counting of votes. It was stated in the election petition that Shri Nrapjeet Singh, real brother of Shri Paramjeet Singh, returned candidate is working in Baghpat Sugar Mill, where the counting took place, and the returning officer and the other employees on the election duties were the employees of Ganna Vikas Samiti. They caused undue influence in the elections. The counting rooms were changed. In substance, it was contended that according to the statements of presiding officer, a total number of 3303 votes were cast out of 3735 electors in the electoral list at the time of counting. However 3292 votes were found out of which election petitioner secured 1099, Shri Paramjeet Singh-opposite party No. 1, 1100 votes; Shri Jagdish-opposite party No. 2, 925 and Shri Paresh-opposite party No. 3, 40 votes, and 129 votes were declared invalid. Initially election petitioner was declared elected with 26 votes but the results were not declared. Then he was declared to be elected with 16 votes. Once again the election results were stopped. On the third occasion, he was declared to be elected with 10 votes and once again the results were not declared and thereafter the opposite party No. 1 was declared to be elected with one vote. In paragraph-7 of the election petition, it was stated that there was a difference of 10 votes.

3. In the written statement, Shri Paramjeet-the opposite party No. 1 denied the allegations. He denied that his brother has influenced the elections. The election was held strictly in accordance with the election rules. There is no evidence of any illegality in the election process. The Sub Divisional Officer, Baghpat, was the incharge of the elections and that the counting took place in his supervision. All other allegations with regard to irregularities and undue influence were denied.

4. By an order dated 15.1.2008, the Sub Divisional Magistrate, Baghpat, after taking evidence, decided issue Nos. 1 and 3, with the finding that there was no denial of the fact that in the elections 3303 votes were cast in the ballot box, whereas 3293 were counted, including 3164 valid votes with 129 invalid votes. On issue No. 2, she held that according to the election results in Schedule-6, election petitioner was found to have secured 1100 votes and opposite party No. 1-Paramjeet 925 votes; 40 votes were cast in favour of Paresh and 129 votes were declared invalid.

5. While deciding issue Nos. 4, 5, 6, 8, 9 and 10, the Prescribed Authority held that Shri Nrapjeet Singh, brother of returned candidate was present at the time of counting. His staffs was involved in the counting. It shows that the counting was affected and was not fair. The number of votes cast and those which were counted with a difference of only one vote, and the statement of opposite party No. 1 Shri Paramjeet, that he does not know about the number of votes which were taken out as ballot box, as he was ill, and further his admission in the written statement, would show that all the votes were not counted. She thereafter, while deciding is