JUDGMENT Vineet Saran, J.
1. The dispute in the present case is with regard to the election of the Gram Pradhan of Gram Panchayat Narangpur Damgadhi, Block Rohta, Tahsil and District Meerut.
2. In the elections held in August, 2005 the petitioner was declared elected as Gram Pradhan, Respondent Nos. 2 to 5 were the other candidates. An election petition No. 5 of 2005 was filed by the Respondent No. 2 challenging the election of the petitioner as Gram Pradhan. In the said election petition, on 14.12.2005 the Respondent No. 2 filed an application praying for recounting of votes. By the impugned order dated 27.4.2006 the Respondent No. 1 Up-Ziladhari, Meerut has allowed the application of the Respondent No. 2 with the direction for re-counting of votes on 29.4.2006. Aggrieved by the said order the petitioner has filed this writ petition.
3. I have heard Sri Siddhartha, learned Counsel for the petitioner as well as learned Standing counsel appearing for Respondent No. 1 and Sri V.P. Shukla, learned Counsel appearing for the contesting Respondent No. 2. Counter and rejoinder affidavits between the contesting parties have been exchanged, and with the consent of the learned Counsel for the parties this writ petition is being disposed of at this stage.
4. It is well settled law that re-counting of votes should not be directed merely for the sake of asking but only in cases where there are materials on record for issuing such directions. The Apex Court in the case of Chandrika Prasad Yadav v. State of Bihar 2004 AIR SCW 2163 has held as follows:
It is well settled that an order of recounting of votes can be passed when the following conditions are fulfilled:
(i) A prima fade case;
(ii) Pleading of material facts stating irregularities in counting of votes;
(iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and
(iv) An objection to the said effect has been taken recourse to.
5. In the present case, the application of the Respondent No. 2 has been allowed merely on the basis of averments made in the affidavit accompanying such application. No evidence, oral or documentary, was called for before passing the impugned order. On a bare perusal of the application as well as the affidavit filed by the Respondent No. 2, it is clear that averments made for recounting are totally vague and general in nature. No instance of any specific irregularity has been mentioned, except for the general averments that ballot papers of the election-petitioner (Respondent No. 2 herein) were counted with the votes of other candidates and that some valid votes of the election-petitioner (Respondent No. 2) were declared as invalid. Such allegations do not make out a prima facie case for grant of the prayer made in the application as they do not constitute material facts stating irregularities in counting of votes. It is also not the case of the respondent No. 2 that any such objections had been raised by him at the time of counting.
6. A Full Bench of this Court in the case of Ram Adhar Singh v. District Judge, Ghazipur 1985 UPLBEC 317 has held as under:
...vague and indefinite allegation could, therefore, not provide any basis for the Sub-Divisional Officer to make the order in pursuance of which the votes polled at the election were recounted on 2nd of August, 1982. It is not disputed that the only material available to the Sub Divisional Officer uptil that date was the mere bald allegation made by the petitioner about wrong counting in the election petition. It was not open to the Sub Divisional Officer to direct recounting of votes merely on the basis of such allegation and to justify his wrong action by subsequently mentioning in the order that he believed what was stated in the election petition and, therefore, he directed recounting of votes.
7. In the present case, although it may be true that the difference between the elected candidate (Petitioner) and the election-petitioner (Respondent No. 2) was of only three votes but in the absence of the Prescribed Authority having carefully scrutinized the allegations made in the affidavit and without there being cogent reason supported by sufficient evidence, in my view, the direction for recounting could not be made. The Prescribed Authority, Respondent No. 1, has reproduced certain paragraphs of the application on the basis of which the direction for recounting has been made. On perusal of the same, it is clear that the Respondent No. 2 has merely made vague and general averments with regard to the irregularities committed during the course of counting, which can be made in each and every election petition. Even if no reply may have been filed to the affidavit filed in support of the application for recounting, then too the Prescribed Authority would be duty bound to examine as to whether, even if the averments are correct, it would make out a case for direction of recounting of votes. In my view, the averments made by the election-petitioner were so vague and of general nature that no order for recounting could have been passed on such basis.
8. Learned Counsel for the Respondent No. 2 has placed reliance on a decision of Division Bench of this Court rendered in the case of Nihal Ahmad v. District Judge, Siddharth Nagar 2004 All. C.J. 2268 wherein the order, directing recounting of votes was upheld by this Court. In the said case a direction had been issued by the writ court to conclude the hearing of the election petition within a time bound period but the elected candidate, instead of cooperating in the hearing and filing his written statement and adducing evidence, had deliberately tried to delay the hearing of the case and had also filed a transfer petition. In such circumstances, after closing the evidence of the parties, the Prescribed Authority recorded a categorical finding that the elected candidate had deliberately avoided hearing of the election petition, and decided the application for recounting on merits. Even on merits, the material facts on the basis of which such order had been passed by the Division Bench have been noted in the said judgment, which are reproduced below:
In the present case, there are specific allegations of irregularities in counting of votes. 399 votes were polled which were shown to be 394 at booth No. 69. At booth No. 60, 462 votes were potted out of which only 453 votes were counted. At booth No. 71 in all 1325 votes were potted but counting were made for 1311 votes. Written complaints were made by the election petitioner but no action was taken, it is stated that 22 invalid votes at booth No. 69 were actually found to have been stamped with petitioner symbol. The Prescribed Authority has discussed the pleadings and has prima fade found gross irregularities in counting of votes in his order. It is significant to note that petitioner has won by difference of only 8 votes.
9. Thus the ratio of the said decision of the Division Bench, as has been relied upon by the learned Counsel for the respondent No. 2, would not apply to the facts of the present case where there are no specific allegations of the type as had been made in the aforesaid case before the Division Bench. It is a settled law that an order of recounting touches upon the secrecy of ballots which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations and such discretion should not be exercised by the Courts to indulge in roving and fishing enquiry. In the present case the direction for recounting of votes is nothing but a roving and fishing inquiry, as the order for recounting is not based on any specific ground.
10. Learned Counsel for the Respondent No. 2 has also relied upon a decision of this Court in the case of Anuradhika v. Additional District Judge, Azamgarh 2002 All.C.J. 360. In my view, the said case is also distinguishable on facts and the ratio of the same would not apply to the facts of this case.
11. Besides this, what is surprising is that when the election petition was filed in September, 2005, the application for recounting was filed only on 14.12.2005 i.e. after more than six months. The order of recounting had been passed on 27.4.2006, with the direction that recounting may commence from 29.4.2006. This conduct also casts a doubt on the fairness of the Prescribed Authority that why the order was to be implemented in such extraordinary haste, specially when such application had been pending for more than six months.
12. For the foregoing reasons, the order impugned in this writ petition deserves to be set aside and is accordingly set aside. This writ petition stands allowed. No order as to cost.