Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 737 (ALL)

Abrar, Rahat v. State of U. P.

2004-04-05

S.N.SRIVASTAVA

body2004
S. N. SRIVASTAVA, J. ( 1 ) THE dispute in the instant petition has its genesis in the election held for electing Gram pradhan of Village Nanak Nangalli Tahsil Amroha District J. P. Nagar. Respondent no. 5 being close runner to the petitioner instituted election petition before the Election Tribunal presided over by the Addl. Sub Divisional Officer Amroha who in turn, passed the impugned order dated 24:9. 2002 directing recounting of votes. This order led to filing of revision and the revisional court upheld the impugned order terming it as interlocutory order and consequently dismissed the revision by means of order-dated 17. 2. 2004. It is in the above perspective that the instant petition has been preferred under Article 226 of the Const. Of India. ( 2 ) IN the election, the petitioner and respondent No. 5 according to declaration made by the returning officer polled 309 and 308 votes respectively and consequently, the petitioner was declared elected by one vote. The respondent No. 5 preferred the election petition before the election Tribunal on various grounds and one of the ground was misfeasance in counting which turned the scale in favour of petitioner who was declared elected. ( 3 ) I have heard learned counsel for the parties and perused the papers on record. The learned counsel for the petitioner canvassed that the impugned order passed by the election Tribunal decided the election petition and consequently directed recounting of votes and therefore, revision under Section 12c (6) lay and revisional authority erred in law in dismissing the revision as not maintainable and consequently the same cannot be sustained in law. Assailing the order passed by the Election Tribun, the learned counsel further submitted that as a matter of fact, no valid ground was made. out for ordering recounting either in the pleading or on the basis of materials forthcoming on record and the learned Tribunal drew on presumption too much in order to arrive at conclusion for ordering recounting. He further canvassed that grounds for accounting must be proved beyond reasonable doubt and not on the basis of preponderance of probabilities. It was further canvassed that mere fact that the petitioner was declared elected by a slender margin of one vote does not constitute sufficient ground for order of recounting unless it is supported by cogent evidence to establish that there were various factors warranting recounting. It was further canvassed that mere fact that the petitioner was declared elected by a slender margin of one vote does not constitute sufficient ground for order of recounting unless it is supported by cogent evidence to establish that there were various factors warranting recounting. Since there i$ no valid justification for recounting in the present case, proceeds the submission, the orders passed by the authorities are impaired and cannot be sustained in law. Per contra, Sri P. C. Srivastava, assisted by Sri K. A. Ansari, appearing for the respondents propped up the impugned orders urging that there were specific pleading and evidence that there was irregularity in the counting and recounting was rightly ordered which is supported by materials on record. They further submitted that there was margin of one vote between the petitioner and respondent No. 5 and in view of cumulative effect of various factors cited in vindication of his stand by the respondent No. 4, it leads to the irresistible conclusion that various irregularities were committed and things were so contrived that the petitioner was illegally declared elected. ( 4 ) IN the case in hand, the respondent No. 5 aggrieved by the declaration made by the Returning officer preferred election petition enumerating various irregularities and illegalities. The election Tribunal, in its discretion, passed the impugned order directing recounting. From a perusal of the impugned order it does not transpire that the Election Tribunal passed any interlocutory order pending decision of the election petitions Rather, it would appear that the election Tribunal finally disposed of petition, which is borne out from the very expression in the decision the quintessence of which is that the petition is allowed at its face value attended with the direction for recounting. It would further appear that in making order of recounting, the election tribunal scanned various materials including pleading, evidence and the affidavits adduced in the case and reckoned with various factors which according to the learned Tribunal warranted recounting. It would thus be obvious that it was an order having all the indicia of a final order involving final adjudication of the matter before it on the aspect of recounting. It would thus be obvious that it was an order having all the indicia of a final order involving final adjudication of the matter before it on the aspect of recounting. The learned Tribunal recorded full-dressed finding by framing in all 10 issues and dealing and answering each issue on merits and in consequence, the election petition was allowed attended with direction to complete recounting and therefore it leaves no manner of doubt that the election Tribunal (decided the matter finally on the aspect of recounting. What is interlocutory order? As a matter of fact, it is a term of well-known legal significance inasmuch as it has been employed in various statutes including the Code of Civil Procedure, Letters Patent of the High courts and other like statutes. The dictionary meaning of interlocutory has been defined as an order other than final decision. From a perusal of the impugned orders, it is explicit and discernible that the learned Tribunal ordered recounting not pending final adjudication in the matter and by this reckoning, the order had all the complexion and indicia of a final order and was thus revisable under Section 12c (6) of the Act. ( 5 ) THE moot question that puts forth itself in the forefront is whether any revision was maintainable or not. In connection with this proposition, section 12 C (6) needs to be analysed. Section 12 C (1) contemplates the questioning of an election by means of an application. It is the disposal of this application by a specific order, which has been made revisable under Section 12 c (6) of the Act. A similar dispute arose before the learned Single Judge of this Court in bhagwat Prasad Misra v. S. D. O. Salon, 1985 UPLBEC 115, and the Court observed as under: "section 12 C (1) contemplates the questioning of an election by means of an application. It is the disposal of this application by a specific order, which has been made revisable under section 12 C (6) of the Act. The order impugned in the writ petition is an interlocutory order by which the application for recounting of votes has been allowed by the Sub Divisional Officer. This order cannot be said to be an order disposing of the election petition filed under section 12 C (1)of the Act. The order impugned in the writ petition is an interlocutory order by which the application for recounting of votes has been allowed by the Sub Divisional Officer. This order cannot be said to be an order disposing of the election petition filed under section 12 C (1)of the Act. Consequently, the order impugned in the petition would not be covered by the provisions of Sub Section (6) of Section 12 C of. the Act. . . . " ( 6 ) IN connection with the issue subjudice before the Court, it would be useful to examine the provisions of section 12 C (6) of the U. P. Panchayat Raj Act, 1947. Section 12 C (6) is quoted below. "any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more of the following grounds, namely,- (a) that the prescribed authority has exercised a jurisdiction not vested in it by law; (b) that the prescribed authority has failed to exercise a jurisdiction so vested ; (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity. " ( 7 ) I am fully in agreement with the view taken by the learned- Single Judge that section 12 C (1)contemplates the questioning of an election by-means of an application and therefore, the specific order so passed has been made revisable. Considering the provisions of section 12 C (6)and receiving reinforcement from the aforestated decision, it would not be difficult to hold that the revision against the impugned order which was a specific order deciding on merit various issues formulated by it including direction for recounting was maintainable inasmuch as the election Tribunal allowed the application thereby disposing it of by a specific order directing recounting of votes and therefore it would, be an order finally disposing of the application so to warrant invocation of the provisions of section 12 C (6) of the Act. ( 8 ) COMING to. the order passed by revisional authority, I am of the view that the revisional authority merely confined itself to the question of maintainability of revision and did not delve into the contentions of the parties on merits at all. ( 8 ) COMING to. the order passed by revisional authority, I am of the view that the revisional authority merely confined itself to the question of maintainability of revision and did not delve into the contentions of the parties on merits at all. It is implicit that the learned revisional authority misread the order and was swayed on consideration by mistaking the order to be an interlocutory order and in consequence, dismissed the revision on ground of being not maintainable holding that the remedy lay in filing writ petition. It would be eloquent from a bare reading of the order that revisional authority erred in dismissing the revision without delving deep into the matter that the order passed by the Prescribed authority was final adjudication of the controversy on the aspect of recounting and nothing was left pending for final adjudication. In my considered view, the revisional authority erred in law in not entertaining the contentions of parties on merits and dismissed the revision ostensibly on the fallacy that the order of election tribunal was of interlocutory nature. ( 9 ) IN the result, the petition succeeds and is allowed and the impugned order passed by the revisional authority is quashed, in consequence, the matter is relegated to the revisional authority attended with the direction that it would decide the revision afresh on merits in accordance with law within a period of one month from the date of production of a certified copy of this order. ( 10 ) BEFORE parting with the case, I would like to observe that the revisional authority shall proceed in the matter on merit untrammeled by any of the observations made in the body of this judgment. . .