The burden of proof rests on the election petitioner to establish irregularities in the counting of votes, and the order of recounting cannot be passed solely based on vague allegations without specific irregularities and supporting evidence.

JUDGMENT :

1. Heard Sri Sharad Sharma, learned counsel for the petitioner, Sri Santosh Kumar Shukla, learned counsel appearing for contesting respondents and learned Standing Counsel for the State respondents.

2. The petitioner is the winning candidate for election of Gram Pradhan whereas respondent no. 2 (election petitioner) remained runner up. The margin of victory was 37 votes.

3. The election petitioner filed an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 mainly on ground that Election Officer has illegally declared valid votes cast in favour of the election petitioner as invalid as well as there was discrepancy between total valid votes and number of total votes cast after taking note of declared invalid votes.

4. After the exchange of pleadings, learned Tribunal by impugned order dated 31.10.2022, passed interim order for recounting deciding issue nos. 6, 7 and 8 mainly on ground that number of votes shown by the Election Officer in Proforma No. 46 were different from number of votes declared at the time of counting and specific objection was taken by the election petitioner in this regard during counting. However, without considering it, the petitioner was declared elected by 37 votes as well as few voters have cast their votes at two places as well as to maintain fairness in the election and also took note that despite service no reply was filed on behalf of the Election Officer.

5. Sri Sharad Sharma, learned counsel for the petitioner submitted that averments made by the election petitioner were vague and were not supported by any materials or any documents to disturb the secrecy of ballots.

6. In order to buttress to his argument, learned counsel for the petitioner has placed reliance on the judgement passed by Full Bench of this Court in Ram Adhar Singh vs. District Judge and others, 1985 AWC 246. Paragraph 19 of the said judgement is reproduced as under:

“Applying the principle with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must co-exist:

(1) that the petition for setting aside an election contains the grounds on which the election of the Respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground; and

(2) the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties.

It, therefore follows that in the absence of any specification with regard to the ground on which the election of the Respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on I such ground, it is not open to the authority dealing with an application under Section 12-C of the U.P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie satisfy the authority about the existence of the ground on which the election is sought.”

7. learned counsel for the petitioner also placed reliance upon a judgement passed by Co-ordinate Bench of this Court in Writ-C No. 2951 of 2022, decided on 29.7.2022. Paragraph 12 and 13 are as under:

“12. Plainly, the only issue raised