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2013 DIGILAW 1137 (ALL)

Srichand v. District Judge, Lakhimpur Kheri

2013-04-15

RITU RAJ AWASTHI

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JUDGMENT Ritu Raj Awasthi,J. Notice on behalf of opposite party no. 1 has been accepted by Mr. Manish Kumar, Advocate whereas notice for opposite party nos. 2 & 7 has been accepted by the learned Chief Standing Counsel. 2. Mr. S.C. Yadav, Advocate has put in appearance on behalf of opposite party no. 3 and files Vakalatnama, the same is taken on record. 3. Learned counsel for petitioner submits that by the impugned order dated 01.04.2013 the Prescribed Authority has allowed the election petition and has ordered for recounting by fixing date. The revision preferred against the said order has been rejected vide order dated 10.4.2013 on the ground that the order impugned dated 01.04.2013 is an interlocutory order and the revision is not maintainable against the same. 4. Submission is that the election petition was filed seeking final relief of recounting and declaration of petitioner as elected. The said petition was allowed vide order dated 01.04.2013 directing recounting of votes. The prayer so far as declaring the petitioner as elected is a consequential relief which depends on the recounting. 5. It is submitted that the prescribed authority has decided all the issues framed in the election petition and there was nothing left to be decided, as such, the order impugned dated 01.04.2013 is a final order. The revisional Court has held that the order dated 01.04.2013 was an interlocutory order, which is not correct. 6. Mr. S.C. Yadav, learned counsel for opposite party no.3 submits that the prescribed authority has merely ordered for recounting of votes and it has not interfered with the result declared. It has not ordered for any certificate to be issued in favour of winning candidate and the result declared earlier is still operative, as such, the order dated 01.04.2013 is an interlocutory order. 7. Mr. Sameer Kalia, learned Additional Chief Standing Counsel submitted that the question as to whether the revision under 12-C (6) of U.P. Panchayat Raj Act shall lie against the order of recounting, has been considered by the Division Bench in the case of Mohd. Mustafa Vs. Up-Ziladhikari, Phoolpur, Azamgarh & others, 2007 (103) RD 282 and the Division Bench on a reference being made to it has held that the revision against the order of recount of votes passed by the prescribed authority is not maintainable. 8. Mr. Mustafa Vs. Up-Ziladhikari, Phoolpur, Azamgarh & others, 2007 (103) RD 282 and the Division Bench on a reference being made to it has held that the revision against the order of recount of votes passed by the prescribed authority is not maintainable. 8. Mr. H.G.S.Parihar, learned counsel for petitioner, in reply, submitted that in the case of Mohd. Mustafa (Supra), the prescribed authoirty while hearing the election petition had passed an interlocutory order of recount of votes. The Division Bench in its judgment has held that revision under Section 12-C(6) of the Act shall lie only against a final order passed by the prescribed authority and not against any interlocutory order or order of recount of votes passed by the prescribed authority. 9. I have considered the submissions made by the parties' counsel. 10. There is no dispute to the legal proposition that the revision under Section 12-C (6) of the Act is not maintainable against an interlocutory order including the order of recounting. However, in the present case the prescribed authority by the impugned order dated 1.4.2013 has returned his findings on all the issues framed in the case and has thereafter allowed the election petition by ordering for recounting of votes, as such for all practical purposes it appears to be prima facie a final order. 11. The relief relating to declaration of petitioner as elected in case he is found winner in the recounting is a consequence to the recounting and would depend upon the result of the recounting, as such I am prima facie satisfied that the order of the revisional court rejecting the revision on the ground that it is not maintainable does not appear to be correct. For that purpose the judgment in the case of Mohd. Mustafa (Supra) also does not help the cause of opposite parties. 12. At this stage Mr. S.C. Yadav, learned counsel for opposite party no.3 as well as learned Additional Chief Standing Counsel submitted that since the dispute relates to the election on the post of Pradhan, which is tenure post of five years and two and half years have already passed, no fruitful purpose would be served in case the writ petition is kept pending here. It would be better that the revisional court may be directed to decide the revision preferred against the impugned order dated 1.4.2013 afresh on merits within the time frame. 13. It would be better that the revisional court may be directed to decide the revision preferred against the impugned order dated 1.4.2013 afresh on merits within the time frame. 13. Since parties to the case agree as such without giving any final verdict on the issue raised in the present writ petition, the writ petition is partly allowed with the consent of parties' counsel on the submissions made by them at the admission stage. 14. The order impugned dated 10.4.2013 is set aside. The opposite party no.1/revisional authority is directed to decide the revision No.70 of 2013 (Srichand Vs. Arvind Kumar Singh & others) afresh on merits after giving opportunity of hearing to the parties concerned in accordance with law, expeditiously, say, within a period of three months from the date a certified copy of this order is produced before him. 15. Till the disposal of the revision the impugned order dated 1.4.2013 (Annexure No.1 to the writ petition) shall remain in abeyance. 16. Learned counsel for petitioner as well as counsel for opposite party no. 3 have agreed before the Court that their clients would cooperate in early disposal of the aforesaid revision without seeking unnecessary adjournments. 17. This order has been passed in the presence of counsel for parties. They shall communicate this order to the authorities concerned without waiting for certified copy of this order.