Recounting of votes can be ordered only in exceptional cases when there is sufficient material for justifying such an order.

Palok Basu, J.

1. Shamsher Siagh has filed Writ Petition No. 11258 of 1990 challenging the order of the S.D.M. and that of the revisional court setting aside his election as Pradhan. He alleges that he is still holding the charge of the office of Pradhan. Radhey Shyam has filed writ petition No. 11786 of 1990 challenging the alleged interference of Shamsher Singh and others in the discharge of his functioning as Pradhan having taken over charge in due course after Shamsher Singh's election was set aside.

2. Shamsher Singh was declared elected Gram Pradhan of village Khurukhunja Chandauli, Varanasi, by the Returning Officer on 6-6-1988 in the elections for the said post held under the U. P. Panchayat Raj Act, 1947 (for short the Act) having polled 498 votes defeating his nearest rival Radhey Shyam polling 493 votes. Radhey Shyam filed election petition on 10-6-1988 (Ejection Petition No. 9 of 1988) before the S D.M. Chandauli East, who is the Prescribed Tribunal/Authority under the Act, By the judgment and order dated 31-1-1989 the S.D.M. found Radhey Shyam having polled 11 votes more than Shamsher Singh and consequently allowed the election petition and held, that the result declared by the Returning Officer was materially affected and that Radhey Shyam stood elected having defeated Shamsher Singh by 11 votes. A revision by Shamsher Singh was taken to the District Judge. Varanasi, under section 12 of the Act which was cumbered as Revision No. 13 of 1982 which ultimately came to be decided by the Vlth Additional District Judge, Varanasi, who dismissed it on 12-4-1990.

Shamsher Singh's writ petition has been admitted by this court on 30-4-1990 and on the application for interim prayer it was said that in the meantime operation of the orders dated 12-4-1990 and 31-1-1990 (correct date 31-1-1989) shall remain stayed. In Radhey Shyam's writ petition it was directed that it should be listed for admission along with writ petition of Shamsher Singh. In the meantime affidavits between Shamsher Singh and Radhey Shyam were exchanged. No counter affidavit has been filed on behalf of the State of U. P. or the Returing Officer or the Additional District Judge or any other official impleaded in either of the writ petitions in spite of time having been granted for the said purpose to the Standing Counsel. These two petitions were heard together and are being disposed of by this judgment

3. It may be stated that if Shamsher Singh's writ petition is dismissed in toto then this Court will be called upon to decide the writ petition of Radhey Shyam as the assertion of Radhey Shyam about having taken charge of the office of Pradhan would mature into conferring rights on Radhey Shyam only when Shamsher Singh fails. If Shamsher Singh succeeds even partly, Radhey Shyam's writ petition dies a natural death.

4. Sri Devendra Pratap Singh and Sri R. N. Singh, learned counsel for the petitioners Shamsher Singh and Radhey Shyam respectively have been heard at sufficient length. They have also fled written arguments in this Court.

Two basic questions have been argued. Firstly, there was no justification for the S.D.M. to order recounting of votes. Secondly, the actual recounting was not legally done inasmuch as it appears to have been done stealthily without prior information to the petitioner Shamsher Singh. In reply it was stated that both the arguments were baseless inasmuch as the materials placed before this Court indicates beyond doubt that Radhey Shyam pressed his election petition on the ground of recounting and, therefore, the said prayer was rightly allowed by a specific order, which order has not been interfered with by this Court on two earlier occasions once by a single Judge and then by a Division Bench. The said order having thus been upheld does not require interference. The recounting was properly done and, therefore there is no merit in the said argument either.

5. Sri Devendra Pratap Singh has said that the election petition itself f