JUDGMENT S.K. Sen, C.J.
1. We have heard Shri Avanish Mishra, learned counsel for the appellant-writ petitioner, Shri S.P. Singh, learned counsel for the respondent No. 5 and Shri Ran Vijay Singh, learned standing counsel for the other respondents.
2. This Special Appeal is directed against the Judgment and order dated 21.1.2002 passed by the learned single Judge dismissing the writ petition. In the writ petition, the writ petitioner-appellant has challenged the order of the Sub-Divisional Magistrate directing for recounting of the votes.
3. It is the contention of the writ petitioner that he has won by eight votes whereas the dispute raised by the respondent No. 5 herein, is with regard to two votes. The contention of Mr. S.P. Singh. learned counsel for the respondent No. 5 is that there was inaccuracy in mathematical calculation, which resulted in apparent error of two votes, inasmuch as, in all, 1166 number of votes were shown to be polled whereas actually 1168 number of votes were polled.
4. We have considered this aspect of the matter. Even assuming the contention of Mr. S.P. Singh to be correct, if the two votes are taken into account, the result of the election will not materially be affected. It is well-settled proposition of election law that recounting, as a matter of course, should not be directed. Recounting can only be directed where the alleged material irregularity affects the result if recounting is done. From the perusal of the irregularity, which has been alleged in the petition, it can be seen that the result of the election shall not materially be affected. In fact, Section 12C (1) (b) of U.P. Panchayat Raj Act, 1947, incorporated the relevant provision of the Representation of the People Act, 1951. Section 12C (1) (b) of the U.P. Panchayat Raj Act, 1947, is given below :
"12C. Application for question the elections.--(1) The election of a person as Pradhan or as member of Gram Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that :
(a) ........................................
(b) that the result of the election has been materially affected :
(i) by the Improper acceptance or rejection of any.
nomination ; or
(ii) by gross failure to comply with the provisions of this Act or the Rules framed thereunder."
The aforesaid provision is in part materia with the provision of Section 100(1)(d) of the Representation of the People Act, 1951. which is given below :
"100. Grounds Jor declaring election to be void.--(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion :
(a) ........................................
(b) ........................................
(c) ........................................
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected :
(i) by the improper acceptance of any nomination ; or
(ii) by any correct practice committed in the interest of the returned candidate by an agent other than his election agent ; or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void ; or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
the High Court shall declare the election of the returned candidate to be void.
5. It is well-settled on the basis of several decisions of the Apex Court unless the result of election is affected, there is no scope for recounting. The same view should also be made applicable in the case, in hand, while interpreting the provisions of Section 12C (1)(b), and it is apparently clear that even assuming that two votes which has been alleged by the respondent No. 5 should have been included in the number of votes, and both the votes have gone in favour of the respondent No. 5, even then, the same would not have materially affected the result of the election since the writ petitioner had won by eight votes. In that view of the matter, we are of the view that the Sub-Divisional Magistrate has committed apparent error in directing for the recounting of votes.
6. In view of the foregoing discussions, the judgment and order dated 21.1.2002 passed by the learned single Judge is hereby set aside and the order dated 26.12.2001 passed by the Sub-Divisional Magistrate is hereby quashed. The writ petition as well as the Special Appeal are allowed. However, there shall be no order as to costs.