An order for recount does not dispose of the election application finally, and the burden of proof rests on the election petitioner to establish irregularity or illegality in the original counting of votes.

JUDGMENT :

1. Heard Sri G.K. Singh, learned Senior Advocate, assisted by Sri H.P. Sahi, learned counsel for the petitioner; Sri Udai Chandani, learned counsel appearing for private respondents and learned Standing Counsel for the State-respondents.

2. Present writ petition has been filed to challenge the order dated 12.01.2022 passed by the Sub-Divisional Magistrate, Handia, District -Prayagraj in Case No. 02002 of 2021 (Smt. Soni Vs. Rukhsani & Ors.) being proceedings in the nature of election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act'). By that order, the election tribunal has directed for recount of votes cast at the election for gram panchayat -Baraut.

3. Preliminary objection has been raised by Sri Udai Chandani, learned counsel appearing for the private respondents, as to maintainability of the present writ petition. Referring to the impugned order, he would submit, the election tribunal has determined issue nos. 1 to 5 framed in the election petition and thereafter proceeded to pass an order of recount. Relying on a decision of a learned Single Judge of this Court in Athar Hussain Vs. Razda Begum & Ors., 2017 (1) 35 RD 128 as followed in Smt. Maneeta Devi Vs. State of U.P. & Ors. in Writ -C No. 10442 of 2022, decided on 13.04.2022, it has been submitted, the only remedy available to the petitioner is to file a revision.

4. On the other hand, learned Senior Advocate appearing for the petitioner would submit, the order dated 12.01.2022 is only an interlocutory order. He would refer to the five issues framed by the election tribunal and submit, of that four issues pertain only to the recount of votes. No final finding could have been returned on that without first seeking a report of recount. Therefore, in face of issues framed in the present case, it may never be asserted, the order of recount is a final order as may allow the petitioner to maintain the revision proceedings.

5. Referring to the discussion and finding recorded in the impugned order, it has been then asserted, in the first place, no evidence was led as may have resulted in the satisfaction that there was any material defect or irregularity in the original counting of votes. Then, it has been submitted, no reasoning has been offered and no satisfaction has been drawn on appraisal of material and evidence on record that the original counting of votes suffered from any error or defect as may have justified a recount. Third, emphasis has been laid to the fact, upon recall application and further application filed in the same proceedings, the election tribunal has itself described the order dated 12.01.2022 as an interlocutory order.

6. In that regard, heavily relying on the division bench decision of this Court in Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur, Azamgarh & Ors., 2007 (6) AWC 5536, it has been submitted, the impugned order is only an interlocutory order.

7. On merits, Sri Udai Chandani would submit, after hearing the parties, the election tribunal has reached a conclusion that recount of votes has become necessary. He has heavily relied on Smt. Maneeta (supra).

8. Having heard learned counsel for the parties and having perused the record, the law on the issue is clearly laid down in the division bench decision of this Court in Mohd. Mustafa (supra). In paragraph no. 6 of that report, it was observed as below:

"The procedure of counting, therefore, is also an integral part of the process of election and any error in counting, which materially affects the result of the election, can also be questioned through an election application. The process of counting, therefore, if pointed out to be erroneous, can be a ground for questioning the election and for that purpose, an application for recounting is maintainable in the proceedings when an election dispute is raised under Section 12-C of the Act. The Prescribed Authority is empowered to pass such orders in accordance with the law as may be necessary for d