Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Deepak Kumar Jaiswal, learned counsel for the petitioner and Sri K.R. Singh, learned counsel for the Election petitioner/respondent no.1.

2. The petitioner is the winning candidate in the Election of Village Pradhan of Village - Partapur, Block Patiyali, Tehsil - Patiyali, District - Kasganj, held on 5.12.2015. The counting was done on 13.12.2015 and the result was declared on the same day.

3. There were total 7 candidates who were contesting for the post of Village Pradhan of the aforesaid Village. Number of total votes casted were 1242 out of which 55 votes were declared invalid at the time of counting. Thus there remained 1187 valid votes. The petitioner herein secured 472 votes while the election-petitioner secured 456 votes. One Smt. Somvati secured 238 votes. Other candidates secured insignificant number of votes. Twenty three votes of the election-petitioner were cancelled at the time of counting on the ground that they are invalid inasmuch as it bears thumb impression.

4. The election-petitioner filed the election-petition under Section 12 C(1) of the U.P. Panchayat Raj Act, 1947 on the grounds mainly that some illiterate voters whose thumb impression were taken at the time of issuing ballot papers, took the ballot papers in their hand without removing the ink of the thumb which resulted in some thumb impression at some place on the ballot paper which cannot be said to be a ground for rejection of ballot under Rule 50 of the U.P. Panchayat Raj (Election of Pradhans and Up Pradhans) Rules 1994, names of 18 dead persons were included in the electoral list in whose name the votes appears to have been casted and there are several voters whose names are recorded twice in the voter list. Specific pleadings in this regard were made in paragraph 11 and 12 of the Election Petition. A reply dated 16.9.2016 to the election-petition was filed by the petitioner in which she has not offered any specific denial to the specific averments made in paragraphs 11 and 12 of the election-petition. Evidences led by the parties clearly reveal that names of the several dead persons were included in the electoral list and names of several persons were included twice in the electoral list. On these facts the Election Tribunal found the recounting of votes to be necessary. Therefore, he passed the impugned order dated 28.5.2018, fixing the date for 9.6.2018 for recounting.

5. Learned counsel for the petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Vadivelu Vs. Sundaram and Others, 2000 (8) 355 (para 16 and 18). He also relied upon a judgment dated 20.4.2018, passed by this Court in Writ C No. 32569 of 2017 (Smt. Sadhna Vs. Nirmala Devi & others) and submits that the impugned order of recounting is wholly arbitrary and illegal.

6. Sri K.R. Singh, learned counsel for the Election-petitioner/respondent No.1 submits that every mark or writing does not result in invalidation of a vote. The election-petitioner made specific pleadings in this regard in paragraph 12 of the election-petition which fact has not been specifically denied by the petitioner herein. Evidences were led before the Election Tribunal which revealed invalidation of 23 votes on the ground of thumb impression. He submits that the inclusion of names of dead persons in the electoral roll and inclusion of names of certain persons twice in the electoral roll have not been denied by the petitioner herein although specific averments with full particulars of voters in this regard were specifically made in paragraph 11(l) and 11(n) of the Election petition. Evidences were also led by the election petitioner in this regard. He, therefore, submits that there was sufficient material before the election Tribunal to direct for recounting on the ground of improper acceptance of invalid votes, improper rejection of valid votes and utilisation of wrong electoral roll by the Presiding Officer.

7. I have carefully c