Point of Law: Although no cast iron rule of universal application can be or has been laid down, yet, from a bedroll decision of this Court, two broad guidelines are discernible; that the court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity, or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition in prima facie satisfied that the making of such an order is imperatively necessary to do complete and effectual justice between the parties

JUDGMENT :

1. Upon an application filed by respondent no.1 under Section 12-C of the U.P. Panchayat Raj Act, 1947, the prescribed authority has directed for recount of votes on 9.3.2018 vide order impugned dated 28.2.2018. Aggrieved by this order the petitioner, who is elected Pradhan, has filed the present petition.

2. Elections were notified for the office of Pradhan of Gram Sabha Sarisawan, Nyay pachayat Koriyan Khiriyan, Block Dudahi, Tahsil Tamkuhiraj, District Kushinagar. Petitioner as also respondent nos.1, 2 and 3 contested the election for which voting took place on 9.12.2015. Votes were counted on 13.2.2018 at Adarsh Anglo Inter College, Dudahi, Block Dudahi, Tahsil Tamkuhiraj, District Kushinagar in Room No.1. Booth Nos.49Ka and 50kha were set up. 1626 voters were registered. Petitioner was allotted symbal of 'Imli' whereas respondent no.1 was assigned 'Kanni' as the election symbol. Respondent no.2 was assigned election symbol of 'Anaj Ugata Hua Kisan' while respondent no.3 has 'Car' as her election symbol. According to the election petitioner, a total number of 1139 votes were cast whereas at the time of counting only 1129 votes were found available. As per the election petitioner ballots from serial no.9181001 to 9181623 were cast on booth no.49Ka while on other booth ballots from serial no.9180401 to 9180916 numbering 516 votes were cast. Total of the above number reportedly works out to 1139 votes but at the time of counting only 1129 votes were found. 37 votes were declared invalid. Petitioner with 546 votes was declared elected while the election petitioner secured 544 votes. The victory margin was for 2 votes. The other two contestant secured 1 vote each. An application for recount of votes was moved on 13.12.2015 itself. The Returning Officer, however, rejected the application by observing that results have already been declared and it is no longer possible to direct recounting of votes. It is in this background that election petition came to be filed under Section 12C of the Act of 1947. In para 9 it is averred that the election petitioner had nominated two counting agents but the Returning Officer and Assistant Returning Officer were in the influence of present petitioner so as to ensure her success. In para 10 it is stated that at the time of counting of votes on 13.12.2015 the election agents were required to stand at a long distance from the place of counting and as the ballots could not been seen and they raised an objection but the respondents removed them from the counting site. In para 11 it is averred that the Returning Officer in collusion with the elected Pradhan surreptitiously removed 10 ballots notwithstanding strong protest by her. It is further alleged that 37 votes cast in favour of petitioner were declared invalid arbitrarily. In para 16 it is stated that in the event all votes casted were counted then election petitioner would have won the election. An objection has been filed by the returned candidate denying the averments made in the election petition.

3. An objection to the maintainability of the election petition was filed by the petitioner. This objection was considered on 9.8.2017 vide annexure-1 to the counter affidavit. The prescribed authority has observed that election petition has been filed by the petitioner in accordance with law and all relevant parties have been impleaded as defendants. Initially, an order was passed on 26.10.2018 to proceed exparte but later on objections were filed by the petitioner on 12.5.2017. The prescribed authority has therefore observed that there is no further requirement of passing any order and that the election petition has been entertained subject to final orders passed therein.

4. After considering the respective pleadings and evidences led the prescribed authority has directed for recounting of votes vide order impugned.

5. Law relating to recount of votes has been examined in a larger number of decisions of this Court, relying upon the adjudica