The threshold for ordering a recount of votes should be based on material facts and a prima facie genuine need, ensuring the preservation of the secrecy of the ballot.

R. K. Agrawal, J.—By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Bhagauti, seeks a writ, order or direction in the nature of certiorari quashing the order dated 25th August, 2003, passed by the Sub-Divisional Magistrate, Fatehpur, respondent No. 4, filed as Annexure-3 to the writ petition and other consequential reliefs. Vide order dated 25th August, 2003, the respondent No. 4 had directed for recounting of the ballot papers in the election held for the post of the Pradhan, Gram Panchayat Ganeshpur, Vikas Khand, Bhitaura, tehsil and district Fatehpur.

2. Briefly stated, the facts giving rise to the present writ petition are as follows :

Election for the post of the Pradhan, Gram Panchayat Ganeshpur, Vikas Khand Bhitaura, tehsil and district Fatehpur, was notified. The petitioner, Kali Charan, respondent Nos. 5 and 16 other persons filed their nomination forms. Election was held on 20th June, 2000. Counting was held on 26th June, 2000. In the first round of counting, both the petitioner and the respondent No. 5, polled 145 votes each. On a request being made by the petitioner, recounting was done on the next day and the petitioner was declared elected by one vote. The respondent No. 5 challenged the election by filing an election petition under Section 12C of the U. P. Panchayat Raj Act before the prescribed authority respondent No. 4. A plea was raised in the election petition that irregularity had been committed in the counting of ballot papers and recounting should be done. The prescribed authority after considering the pleadings of the parties and the material and evidence on record, had come to the conclusion that in the present case the difference is only of one vote and that too as a result of recounting. The irregularity has been established and, therefore, recounting should be done.

3. I have heard Sri Gulab Chandra, the learned counsel for the petitioner, and Sri R. K. Srivastava, the learned counsel appearing for the respondent.

4. The learned counsel for the petitioner submitted that recounting cannot be directed as a matter of course. He relied upon the following decisions :

(1) Ram Adhar Singh v. District, Judge, Ghazipur and others, 1985 UPLBEC 317 ;

(2) Dr. Jagjit Singh v. Giani Kartar Singh and others, AIR 1966 SC 773 ;

(3) P. K. K. Shamsudeen v. K. A. M. Mappillai Mohindeen and others, AIR 1989 SC 640 ;

(4) Anwar Ali v. Prescribed Authority/Sub-Divisional Magistrate, Chunar, district Mirzapur and others, 2002 (2) AWC 954 : (2002) 1 SAC 610 ;

(5) Radha Krishna v. Pargana Adhikari, Tehsil Kal, Aligarh and others, 1996 (2) AWC 873 : (1996) 2 UPLBEC 1016 ;

(6) Ram Pher v. State Election Commission, U. P., Lucknow and others, (1999) 3 UPLBEC 2089.

5. According to him, the prescribed authority ought to have decided the election petition as a whole and should not have passed an interim order for recounting of the votes.

6. Sri R. K. Srivastava, the learned counsel appearing for the contesting respondent, however, submitted that the petitioner has been declared elected by a margin of one vote and that too as a result of recounting and, therefore, it was in the fitness of thing that the prescribed authority after having been satisfied with the irregularity in the counting of the ballot papers, had directed for the recounting. He relied upon the case of Shobh Nath v. State of U. P. and others, 1999 (1) AWC 451.

7. In the case of Dr. Jagjit Singh (supra), the Hon’ble Supreme Court has held as under :

“Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83 (1) (a) of the Act requires that an election petition shall contain a concise statement of the material facts on w