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2017 DIGILAW 136 (ALL)

DORI LAL v. STATE OF U. P.

2017-01-11

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. The petitioner had filed Election Petition No. 05 of 2016 on 21.1.2016 under Section 12-C of the U.P. Panchayat Raj Act, 1947 (hereinafter to be referred as the ‘Act’) for declaring invalid the election of the respondent No. 4 as Pradhan of village Panchayat Bada Gaon Bhikkhi, Vikas Khand and Tehsil Derapur, District Kanpur Dehat. Prior to filing of the aforesaid election petition, the petitioner had filed a writ petition being Writ-C No. 69793 of 2015 for recounting of votes. The writ petition was disposed of by the Division Bench by order dated 5.1.2016 on the ground of alternative remedy of filing an election petition under Section 12-C of the Act, with the direction that the competent authority shall make endeavour for expeditious disposal of the election petition preferably within a period of six months from the date on which election petition is filed in accordance with the procedure prescribed. 3. It appears that since the election petition filed by the petitioner was not being decided by the Prescribed Authority and as such the petitioner filed Contempt Application (Civil) No. 4216 of 2016 in which an order was passed on 26.8.2016 directing to file counter-affidavit or else the charges may be framed after summoning the noticee. 4. On 17.12.2016 the Prescribed Authority passed an order for recounting of votes and directed the Block Development Officer, Derapur, District Kanpur Dehat to produce the ballet papers on 21.12.2016, so that the recounting may be carried. 5. Against the aforesaid order dated 17.12.2016, the respondent No. 4 filed a revision on 19.12.2016 under Section 12-C(6) of the Act before the District Judge, Kanpur Dehat in which records have been summoned fixing the date 21.12.2016 for hearing on the point of admission. The case was adjourned on the request of petition on 21.12.2016 for 6.1.2017. 6. Learned counsel for the petitioner states that on 6.1.2017 the case was adjourned for today i.e. 11.1.2017. He further states that he is not aware of the order passed today by the learned revisional Court. 7. The case was adjourned on the request of petition on 21.12.2016 for 6.1.2017. 6. Learned counsel for the petitioner states that on 6.1.2017 the case was adjourned for today i.e. 11.1.2017. He further states that he is not aware of the order passed today by the learned revisional Court. 7. He submits that order for recounting of votes is not an order on merit and therefore, revision under Section 12-C(6) of the Act filed by the respondent No. 4 is not maintainable and therefore, the revisional Court has committed manifest error of law in entertaining the revision and to call for records of the case due to which the proceeding of recounting could not be proceeded and thus the order passed by the revisional Court amounted to an interim order which could not have been passed, inasmuch as, the revision itself is not maintainable. 8. Learned Standing Counsel supports the impugned order. 9. I find that sub-Section (1) of Section 12-C of the Act prescribes the grounds on which an application may be presented before the Prescribed Authority within the prescribed time to question the election of a person as Pradhan or as a member of Gram Panchayat including the election of a person appointed as Panch of Nyaya Panchayat under Section 43 of the Act. Sub-section (3) of Section 12-C of the Act provides the manner of presentation of application under sub-section (1). Sub-section (6) provides for remedy of revision to a party aggrieved by the order of Prescribed Authority passed under sub-section (1) of Section 12-C of the Act. 10. The question as to whether the revision sub-section (6) of Section 12-C of the Act shall lie only against a final order passed by Prescribed Authority deciding the election petition under sub-section (1) of Section 12-C of the Act or a writ petition can be filed against an order of recounting, came for consideration before a Division Bench of this Court in the case of Mohd. Mustafa v. Up-Ziladhikari, Phoolpur, Azamgarh (Civil Misc. Mustafa v. Up-Ziladhikari, Phoolpur, Azamgarh (Civil Misc. Writ Petition No. 8290 of 2007 decided on 11.7.2007 and it answered the question as under: “We answer the questions referred to by the learned Single Judge as follows: (I) A revision under Section 12-C (6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C (1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority. (ii) The judgment of the learned Single Judge in the case of Abrar v. State of U.P. and others, (2004) 5 AWC 4088 does not lay down the law correctly and is, therefore, overruled to the extent of the question of maintainability of a revision petition, as indicated hereinabove. (III) As a natural corollary to the above, we also hold that a writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the U.P. Panchayat Raj Act, 1947.” (Emphasis supplied by me) 11. The Division Bench also overruled the judgment of learned Single Judge in the case of Abrar v. State of U.P. and others, (2004) 5 AWC 4088, to the extent it held that revision is maintainable. The Division Bench further held that a writ petition could be maintainable against an order of recount passed by Prescribed Authority. 12. Thus, a revision under Section 12-C (6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C (1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority. A writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the U.P. Panchayat Raj Act, 1947. 13. Since today is the date fixed in the aforesaid revision filed by the respondent No. 4 before the District Judge, Kanpur Dehat and as such this writ petition is disposed of giving liberty to the petitioner to raise objection as to maintainability of the revision in the light of the Division Bench judgment dated 11.7.2007 in the case of Mohd. Since today is the date fixed in the aforesaid revision filed by the respondent No. 4 before the District Judge, Kanpur Dehat and as such this writ petition is disposed of giving liberty to the petitioner to raise objection as to maintainability of the revision in the light of the Division Bench judgment dated 11.7.2007 in the case of Mohd. Mustafa v. Up-Ziladhikari, Phoolpur, Azamgarh and others (supra) and if such an objection is raised, the same shall be decided by the revisional authority within four weeks after hearing the parties on day-to-day basis.