Hon’ble B. Amit Sthalekar, J.—Heard Sri Rakesh Pande, learned counsel for the petitioner, Sri Ajay Shankar, learned counsel for the respondent No. 5 and the learned Standing Counsel for the State-respondents.

Sri Ajay Shankar states that he does not want to file any counter-affidavit.

2. The petitioner in the writ petition is seeking quashing of the order dated 15.2.2018 passed by the Sub-Divisional Magistrate, Baberu, District Banda whereby he has ordered recounting of votes.

Briefly stated the facts of the case are that the elections were notified of the Gram Panchayat-Bagehta, Block and Tehsil Baberu, District Banda for the post of Gram Pradhan and elections were held on 9.12.2015. The result was declared on 13.12.2015. The petitioner was declared elected as Gram Pradhan. The respondent No. 5 alongwith respondent No. 6 to 25 were also candidates for the post of Pradhan of the said election but they lost the election. The respondent No. 5-Smt. Jurun Nisha challenged the election result by filing Election Petition No. 488 of 2015 (Smt. Jurun Nisha v. District Magistrate, Banda and 20 others) on 25.1.2016 and prayed that recounting of the votes be done and the election of the petitioner be set aside. The allegation in the election petition was that certain persons who had died, their names were also shown in the electoral list and on their names votes were cast. The petitioner contested the election petition and filed her written statement denying the allegations in the election petition. The prescribed authority, however, by the impugned order dated 15.2.2018 has ordered recounting of the votes.

3. The submission of the learned counsel for the petitioner is that before passing the impugned order no issues were framed by the prescribed authority and, therefore, the petitioner did not know what was exactly being decided by the prescribed authority and what points were to be decided by the prescribed authority on which she might have led evidence. It is stated that in the election petition, the allegation of the respondent No. 5 was that the total electorate was 2905 out of which 1902 cast their votes, 1861 votes were declared to be valid and 41 votes were declared to be invalid. The respondent No. 5 received 296 votes whereas the petitioner herein received 297 votes. It was also alleged in the election petition that at the election center at the time of recounting, Akbar Husain, husband of the election petitioner was present and one vote bearing number 786 was cast in favour of the respondent No. 5 but in recounting it was not shown cast in her favour against which she also protested but the result was declared and she lost the election by just one vote. The petitioner in her written statement denied the allegations of the election petitioner and also denied that there was any fraud or misrepresentation during recounting.

4. The submission of Sri Rakesh Pande on behalf of the petitioner is that the prescribed authority did not frame any issues and without the parties leading any evidence straightaway ordered recounting of the votes. He further submitted that Rule 4 (1) of Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the Rules, 1994) clearly provides that every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits.

5. Rule 4 Clause (1) and the proviso thereto of the Rules, 1994 read as under :

“4. Hearing of the petition.—(1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits :

Provided that—

(i) the Sub-Divisional Officer may hear the petitioner or his counsel and if he finds that the petition has no substance, reject the same wit