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2019 DIGILAW 921 (ALL)

RAJESH KUMAR v. DISTT JUDGE SHRAWASTI

2019-04-12

RAJAN ROY

body2019
JUDGMENT : Rajan Roy, J. Heard Sri M.A. Khan learned Senior Advocate Assisted by Sri Nagendra Kumar Khare for the petitioner and Sri Asit Chaturvedi learned Senior Advocate assisted by Sri Shrawan Kumar Pandey counsel for opposite parties 3. 2. This is a writ petition under Article 226 of the Constitution of India. The petitioner was the runner up in the election to the office of Gram Pradhan whereas the opposite party no.3 was elected as Gram Pradhan and it is his election which was challenged by the petitioner before the Prescribed Authority through an Election Petition. The opposite parties 4 to 10 are the other contestants who have not challenged the election nor the order of the Prescribed nor the Revisional authority's order, therefore, before the writ Court they are proforma parties. 3. The petitioner herein filed the election petition with the prayer that the election result declared on 13.12.2015 be declared as void ab-initio and a nullity and an order of recounting be passed and the petitioner be declared elected. 4. As per the order of the Prescribed Authority two issues were framed; one was as to whether it was necessary to get re-counting of votes done, the other was as to whether the election petition as amended on 23.03.2017 was time barred. This apart a plea based on Order VII Rule 11 of the Code of Civil Procedure 1908 (hereinafter referred to as 'the CPC') was also raised. 5. By an order dated 02.01.2018 the Prescribed Authority, on being satisfied regarding the necessity of re-counting ordered the same thereby deciding issue no.1. The second issue as to whether the election petition was time barred was also decided by the Prescribed Authority. The plea based on Order VII Rule 11 of the CPC was also decided. 6. A Revision was filed before the District Judge under Section 12-c(6) by the opposite party no.3 which was firstly held to be maintainable against the order dated 02.01.2018 of the Prescribed Authority and then was decided on merits. 7. The case of the counsel for the petitioner Sri M.A. Khan was that the Revision itself was not maintainable in view of a Division Bench judgment of this Court report in (Mohd. Mustafa vs. Up Ziladhikari, Phoolpur, Azamgar & others), therefore, the order of the Revisional Authority dated 08.02.2018 is not sustainable and is liable to be quashed. 7. The case of the counsel for the petitioner Sri M.A. Khan was that the Revision itself was not maintainable in view of a Division Bench judgment of this Court report in (Mohd. Mustafa vs. Up Ziladhikari, Phoolpur, Azamgar & others), therefore, the order of the Revisional Authority dated 08.02.2018 is not sustainable and is liable to be quashed. He also addressed the Court on the merits of order of re-counting and the merit of the order of Revisional Authority to contend that there was difference of five votes poled in favour of the petitioner and opposite party no.3 whereas there was a discrepancy in the number of votes polled mentioned in the number of votes mentioned in various Forms justifying re-counting. 8. Sri Asit Chaturvedi on his part relied upon a Single Judge decision of this Court dated 27.02.2017 passed in Writ Petition No. 1158 (MS) of 2017 (Athar Hussain vs. Smt. Razda Begum and others) to contend that after considering the judgment of Mohd. Mustafa (supra) the learned Single Judge opined in the said case that if all the issues are decided then the order of re-counting was a final order and what follows is a as mere consequence, therefore, in the facts of the said case the Single Judge judgment held the Revision to be maintainable. It was his contention that in the facts of the present case it is the same thing which has occurred and Mohd. Mustafa (supra) does not come in the way of the maintainability of the Revision, therefore, the Revisional Authority has rightly decided. 9. In this context it was pointed out that when the order by which the amendment was allowed on 23.03.2017 was put to challenge, the Revision of opposite party no.3 was dismissed on the ground that it was an interlocutory order, therefore, the Revision was not maintainable and according to Sri Asit Chaturvedi this issue was ultimately decided vide order 2.01.2018, therefore, he says that as all the relevant issues were decided as such the order dated 02.01.2018 was a final order against which a Revision under Section 12-C(6)) was maintainable that is why the Revisional Authority held it is so and thereafter proceeded to decide the Revision on merits. 10. 10. Having heard the learned counsel for the parties and perused the record, this Court finds that a Single Judge Bench of this Court at Allahabad noticing a judgment by a co-ordinate Bench in the case of (Abrar vs. State of U.P. & others, (2004) 5 AWC 4088) reported in taking a contrary view in the matter referred the following questions for consideration by a Larger Bench. "(I) Whether the revision under section 12-C(6) shall lie only against a final order passed by Prescribed Authority deciding the election petition under Section 12-C(1) or a writ petition can be filed against an order of recount, which has been passed after deciding certain issues raised in the election petition? (II) Whether the judgment of learned Single Judge in Abrar v. State of U.P. and others, lays down correct law?" 11. Consequently the matter was placed before a Division Bench for consideration of the reference. The Division Bench in the case of Mohd. Mustafa (supra) considered the issues referred to it threadbare and came to the conclusion as under:- "23. We answer the questions referred to by the learned Single 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, 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." 12. As would be evident from the above extracted paragraph of the Division Bench Judgment, it was held that a Revision under12-C(6) of the Act, 1947 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. The decision of the Division Bench is so clear that it does not require any further elaboration or explanation. 13. Furthermore, the Division Bench held that the learned Single Judge in Abrar Hussain (supra) while holding that a Revision is maintainable against an order of re-counting, did not lay down the law correctly. 14. Thirdly, as a natural corollary to the above, it was held by the Division Bench that instead of a Revision under Section 12-C(6) 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 Act, 1947. This conclusion was arrived at, obviously, as an order of recount has an important consequence to the parties concerned which could not be left remedy-less as an order of recounting cannot be passed as a matter of corce but can only be passed keeping in mind the pre-requisites laid down by the Supreme Court in a catena of decisions and the Full Bench decision of this Court in the case of Ram Adhar Singh vs. District Judge, 1986 (2) RevDec 151 ; Kattinokkula Murali Krishna vs. Veeramalla Kotewara Rao & others, (2010) 1 SCC 466 ; M. Chinnasamy vs. K.C. Palanisamy & others, (2004) 6 SCC 341 , Mahendra Pratap vs. Krishn Pal and others, (2003) 1 SCC 390 ; according to which firstly there has to be specific pleading making out a case for recounting and secondly there has to be proof of it, thirdly the degree of proof required is very high as the secrecy of ballots is to be maintained. 15. In support of the aforesaid conclusions the Division Bench gave cogent reasons in its judgment which need not be elaborated by this Court, but, suffice it to say that it considered the language used in Section 12-C(6) and the earlier precedents all of which took the same view as was taken by the Division Bench. One of the reasons given by the Division Bench requires mention by this Court. It opined that an order of recount is an order in aid of final determination which has to be made in respect of the election which have been made the basis for claiming such re-count. One of the reasons given by the Division Bench requires mention by this Court. It opined that an order of recount is an order in aid of final determination which has to be made in respect of the election which have been made the basis for claiming such re-count. The disposal of such an application by itself does not finally touch upon the result of the election and is not a final decision on the relief claimed in an election application. The ultimate relief claimed in an election application is to set aside the election of a successful candidate. Unless and until such an order is passed, finally determining the fate of the election, it cannot be said that an order passed for mere re-count attaches finality to the proceedings. The order of re-count by itself does not dispose of the election application finally and something more remains to be done thereafter, namely, the final decision on the basis of the evidence led on the subject of re-count. There is very possibility of the election application being allowed after the Tribunal comes to the conclusion that the recount has materially affected the result and has tilted the balance in favour of the election petitioner. It is, therefore, obvious, that the final disposal will occur only after a decision is rendered upon the out come of the recount. The Court further opined that mere reasons given or the mere passing of an order for re-count does not attach finality to the proceedings arising out of an election application under Section 12-C of the Act. It is the declaration of either the ultimate success or failure of the election application that attached finality to the proceedings. 16. The Division Bench also considered the phraseology used in sub section 6 of Section 12-C to the effect - ''aggrieved by an order' of the Prescribed Authority and came to the conclusion that the word 'an' refers to a specific order/incident/happening. It is equivalent to one as the term seldom refers to plurality of the intention of the legislature was that any order including an order of re-count could be challenged by filing a Revision under the said provision then the term used would have been 'any order'. It is equivalent to one as the term seldom refers to plurality of the intention of the legislature was that any order including an order of re-count could be challenged by filing a Revision under the said provision then the term used would have been 'any order'. The Division Bench further justified the view which was taken it by holding that the intention of the legislature while not providing the remedy of Revision against any order passed during the pendency of the election application seems to be to avoid prolonged litigation ad infinitum as it would not be in the interest of justice to allow a party to obtain a decision at primary point, challenge the same before the superior Courts upto the Hon'ble Supreme Court to disadvantage to the other side. Thus, the intention of the legislature according to it was that the Revision would not be maintainable against an order passed by the Prescribed Authority unless the election application itself, stands finally disposed of. 17. In this context the reliance placed by learned Senior Advocate Sri Asit Chaturvedi upon the decision of learned Single Judge in Athar Hussain (supra) requires consideration in this case. In the said case twelve issues were framed, all of which were decided. However, it was not all that was done. What was further done was to allow the election petition partially with specific observations in this regard which have been quoted in the judgment of Athar Hussain (supra). Now in the context of law as discussed hereinabove, when this Court considers the order of the Prescribed Authority passed in the case no doubt two issues were framed and decided and the plea under Order VII Rule 11 of the CPC was also decided, but, what has yet not been decided is as to whether the election petition is to be allowed or is to be rejected. In fact while framing the issues a third issue as to whether the relief prayed for the Election Petition is liable to be granted or not was also required to be framed by the Prescribed Authority. Even if, it has not been framed, this will have to be decided after the recount takes place. Based on this recount the election petition could be dismissed or could be allowed. Even if, it has not been framed, this will have to be decided after the recount takes place. Based on this recount the election petition could be dismissed or could be allowed. The fact of the matter is that as per the categorical enunciation of the law by the Division Bench and the answer given by it on the questions referred to it the election petition at hand has not been finally disposed of as yet and in view of the categorical enunciation of law by the Division Bench as quoted hereinabove, it is not possible for this Court to take any other view of the matter. 18. One additional reason which persuades the Court to take this view is that the law is very well settled that an order of recounting can be challenged even after final disposal of the election petition by filing a Revision and such challenge would be implicit in a challenge to the final order if requisite grounds are taken in this regard and also that an order of recounting cannot be justified by the result of the recounting. Relevant decisions of the Supreme Court have already been referred earlier, therefore, the opposite party no.3 is not left remedy less, firstly, in view of the judgment of the Division Bench in the case of Mohd. Mustafa (supra) he can file a writ petition before this Court under Article 226 of the Constitution India secondly, he can also challenge the said order if he so choses after the final disposal of the election petition in the revision proceedings while challenging the final order. 19. In view of the above, even if, most of the issues or all of the issues which had been framed have been decided the Prescribed Authority is yet to decide the issue as to whether, the result of the Election declared on 13.02.2015, by which the opposite party no.3 who was elected, is required to be declared as void ab-initio and a nullity and whether the election petition is liable to be allowed or is to be rejected. 20. In view of the above the Revisional Authority proceeded on a misreading and misconstruction of the judgment rendered by a Division Bench in Mohd. Mustafa (supra). 20. In view of the above the Revisional Authority proceeded on a misreading and misconstruction of the judgment rendered by a Division Bench in Mohd. Mustafa (supra). It was not open for the Revisional Authority to have taken such a view on the categorical conclusion arrived at by the Division Bench as contained in para 23 quoted hereinabove wherein it has been held in so many words that against an order of recounting a Revision would not lie. The fact that the Division Bench in para 21 of the said report also considered an additional reason that is the non disposal of all the issues framed it was only an additional factor in the said case and no such conclusion was arrived at that any exception could be carved out of three conclusions drawn by it, in this regard. 21. In view of the above, that the Revision filed by the opposite party no.3 itself was not maintainable under Section 12-C(6), therefore, it is not necessary for this Court to interfere with the merits of the order of recounting passed by the Prescribed Authority which is open for consideration in appropriate proceedings as already observed hereinabove. 22. The writ petition stands allowed in the aforesaid terms.