Hon’ble Tarun Agarwala, J.—The petitioner is the elected candidate who is aggrieved by the order of the Election Tribunal allowing recounting of the votes. The defeated candidate being aggrieved filed an election petition.

2. In paragraph 4, 5 and 6 of the election petition, the candidate has given various irregularities committed in the reception of the votes and in the recounting of the votes, namely, that the seal of the ballot boxes was found to be broken and that invalid votes were counted in favour of the elected candidate and that 20 votes of the defeated candidates were added in the valid votes of the elected candidate and that there were irregular counting of the ballot papers which resulted in the declaration of the result in favour of the petitioner. It was alleged that the defeated candidate had secured 950 votes but was only shown to have secured 458 votes whereas if the votes were recounted, the defeated candidate would have secured 40 more votes than the petitioner.

3. The elected candidate denied the allegations. Evidence was led and the witnesses were duly examined and cross-examined.

4. The Election Tribunal, after considering the material evidence on record found that there was no irregularity in the reception of the votes or in the counting of the votes but held that in order to remove the doubts and give substantial justice to the parties, recounting should be done so that the matter is resolved once and for all. The petitioner, being aggrieved by this order of recounting, has filed the present writ petition.

5. Heard Sri Keshari Nath Tripathi, the learned Senior Counsel assisted by Sri Tripathi B.G. Bhai, the learned counsel for the petitioner and Sri M.D. Singh Shekhar, the learned Senior Counsel assisted by Sri Ganesh Shankar Srivastava for the contesting respondent.

6. The learned counsel for the petitioner contended that a roving and fishing inquiry had been made and in the absence of any prima facie case being made out, no order for recounting of the votes could be done. The learned Senior Counsel contended that in the facts and circumstances of the case, the allegations made by the defeated candidate in his election petition had not been proved nor any prima facie case was made out warranting the recounting of the votes. The learned counsel submitted that an order for recounting cannot be passed on the mere “ipse dixie” of the Tribunal and on the ground that an order of recount would do substantial justice to the parties especially in the absence of any cogent evidence or prima facie case being made out.

7. On the other hand, the learned Senior Counsel Mr. M.D. Singh Shekhar, vehemently contended that the entire assertion made by the election petitioner was duly proved and supported by evidence and the order of the Tribunal consequently did not suffer from any error of law. The learned Senior Counsel went on to suggest that this was a fit case where an order of recounting was rightly ordered and if the order was set aside, then in no case, an order of recount could be justified. In support of his submission, the learned counsel placed reliance upon a decision of this Court in Narendra v. Prescribed Authority, S.D.M. Dadri, Gautambudh Nagar and others, 2010(1) ADJ 146, wherein the Court held that even though the Election Tribunal did not record its prima facie satisfaction but in the opinion of the Court there was sufficient material to arrive at a prima facie opinion regarding irregularity or illegality while counting of votes and, therefore, the writ Court directed recounting of the votes in the given circumstances.

8. Having heard the learned counsels for the parties, the Court is of the opinion that the decision cited by the learned counsel for the respondents is not applicable and was passed in the given facts and circumstances of that case. It is settled principles of law that secrecy of the ballot papers is sacrosanct and is required to be maintained at all cost and that recounting sho