JUDGMENT : Hon'ble Chandra Kumar Rai, J. 1. Heard Mr. Rakesh Pande, learned Senior Counsel assisted by Sri Shailesh Upadhyay, learned counsel for the petitioner, Sri G.K. Singh, learned Senior Counsel assisted by Sri Awanish Kumar Rai, learned counsel for respondent no.1 and the learned standing counsel for the state-respondents. 2. Brief facts of the case are that petitioner was elected as Gram Pradhan of Gram Panchayat Shivhad, Pargana & Tehsil-Atarra, Block- Mahuwa, District Banda in the election held in the year 2021. Respondent no.1 had contested the election and stood 2nd, filed the election petition under Section-12-C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “the Act”) before respondent no.2 which was registered as Election Petition No.2 of 2021. By way of amendment in the aforementioned election petition, the relief for cancelling the result of the counting and for recounting was added vide order dated 7.6.2024. Against the order dated 7.6.2024, the revision was filed by the petitioner before the District Judge, Banda which is pending as Revision No. 1 of 2024. In the aforementioned election petition, written statement was filed by the petitioner on 23.12.2021. Respondent no.2 vide order dated 2.2.2022 proceeded to order for recounting. The order dated 2.2.2022 was challenged in revision by the petitioner and the revision was allowed vide order dated 23.3.2022, setting aside the order dated 2.2.2022. The issues were framed and parties have adduced evidence in support of their cases. Respondent no.2 vide impugned order dated 28.8.2024 has allowed the election petition and order for recounting as well as fixed 30th August, 2024 for further proceeding. Hence, this writ petition for the following relief:- “(i) Kindly, set aside/quash to stay the effect and operation of the impugned order dated 21.8.2024 (Annexure No.1 to this writ petition) passed by the Sub Divisional Magistrate/Competent Authority, Atarra, District – Banda, i.e. the respondent no.2 in Case No.RST/761/2022 (Computerized Case No.T-202207110300761) (Madhuri vs. Priyanka and Others)” 3. This Court on 30.8.2024 passed the following order:- “1. Heard Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Shailesh Upadhyay, learned counsel for the petitioner, Mr. G.K. Singh, learned Senior Counsel assisted by Mr. Birendra Singh, learned counsel for the respondent no.1 and learned Standing Counsel for the State-respondents. 2. This Court on 30.8.2024 passed the following order:- “1. Heard Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Shailesh Upadhyay, learned counsel for the petitioner, Mr. G.K. Singh, learned Senior Counsel assisted by Mr. Birendra Singh, learned counsel for the respondent no.1 and learned Standing Counsel for the State-respondents. 2. Learned Senior Counsel for the petitioner submitted that in view of the ratio of law laid down by Lucknow Bench in the Matters Under Article 227 No.31424 of 2021, Parshuram vs. State of U.P., the impugned judgment passed by the prescribed authority cannot be sustained in the eye of law. 3. On the other hand, Mr. G.K. Singh, learned Senior Counsel for respondent no.1 submitted that the writ petition is not maintainable against the order passed by the prescribed authority if the argument of the petitioner is accepted that order of the prescribed authority is final order. He further submitted that against the final order, the revision will lie under Section 12 (C) (6) of the Panchayat Raj Act, 1947. 4. Put up this case as fresh on 2.9.2024 at 2:00 P.M. and learned counsel for the parties shall address the Court as to whether revision will lie against the impugned order of prescribed authority dated 21.8.2024.” 4. On 2.9.2024, following order was passed by this Court:- “1. Heard Sri Rakesh Pande, learned Senior Counsel assisted by Sri Shailesh Upadhyay, learned counsel for the petitioner, Sri G.K. Singh, learned Senior Counsel assisted by Sri Awanish Kumar Rai, learned counsel for the respondent no.1 and the learned standing counsel for respondent nos. 2 & 3. 2. Judgment reserved. 3. Put up for delivery of judgment on 18.9.2024. 4. Till the date of delivery of judgment, the effect and operation of the order dated 21.8.2024, passed by respondent no.2 shall remain stayed.” 5. Learned counsel for the petitioner submitted that the impugned order dated 21.8.2024 has been passed in illegal and arbitrary manner. He further submitted that the impugned order is without jurisdiction coupled with the fact that the impugned order is self-contradictory. He submitted that the election petition has been allowed and recounting is yet to take place, indicating that the election petition and the issues involved, have been pre-judged without there being any material on record. He further submitted that the order for recounting cannot be passed unless there is any evidence which requires recounting. He submitted that the election petition has been allowed and recounting is yet to take place, indicating that the election petition and the issues involved, have been pre-judged without there being any material on record. He further submitted that the order for recounting cannot be passed unless there is any evidence which requires recounting. He also submitted that the order for recounting has been passed on conjecture and surmises, as such, the impugned order for recounting cannot be sustained. He submitted that respondent no.2 has failed to consider paragraph no.12 of the election petition which was added by an amendment dated 25.4.2022. He submitted that after passing the impugned order, allowing the election petition, respondent no.2/Prescribed Authority became functus officio, as such, the recounting is only a formality as after passing the impugned order, the Prescribed Authority cannot pass any order further. He submitted that order of recounting has been done even without ballet paper having been produced or seen by the Court. He placed reliance on the decisions of this Court in Matters Under Article 227 No. 31424 of 2024 (Parshuram vs. State of U.P. and Others), decided on 23.12.2022; in Writ C No.14461 of 2024 (Smt. Asha Devi vs. Prescribed Authority/Sub Divisional Magistrate and Others), decided on 8.7.2024 and the case reported in 2017(135) RD 128, Athar Hussain vs. Smt. Razda Begum and Others in support of his argument. 6. On the other hand, learned Senior Counsel appearing for respondent no.1 submitted that there is no illegality in the impugned order, as such, the writ petition filed by the petitioner is not maintainable. He also submitted that if the argument of learned counsel for the petitioner is accepted that order impugned is a final order, then the remedy against the same will lie under Section 12-C(6) of the Act, rather the writ petition before this Court. He submitted that in view of the provisions contained under Section 12-C(6) of the Act, the writ petition is liable to be dismissed on the ground of alternative remedy. He submitted that the case for recounting has been made out under the impugned order, as such, the argument on merit advanced by learned Senior Counsel for the petitioner cannot be entertained. He submitted that the case for recounting has been made out under the impugned order, as such, the argument on merit advanced by learned Senior Counsel for the petitioner cannot be entertained. He placed reliance upon the judgments of this Court in Writ C No.10442 of 2022 (Smt. Maneeta Devi vs. State of U.P. and 8 Others), decided on 13.4.2022; in the case reported in 2017(136) RD 136, Nirdosh Tyagi vs. State of U.P. and Others and in Writ C No.2432 of 2023 (Smt. Jahida Begam vs. State of U.P. and Others), decided on 29.3.2023 in order to demonstrate that the remedy against the final order of the election tribunal will lie in revision under Section 12-C(6) of the Act. He submitted that no interference is required against the impugned order and the writ petition is liable to be dismissed. 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that petitioner is an elected Pradhan of the gram panchayat concerned and the election petition filed by respondent no.1, has been decided under the impugned order, allowing the election petition as well as for recounting of the votes. 9. In order to appreciate the controversy involved in the matter, the perusal of Section 12-C of the Act will be relevant which is quoted hereunder:- “12-C. Application for questioning the elections – (1) …….. (2) .…… (3) This application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed. Explanation – Any person who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to be a candidates at the election. (4) The authority to whom the application under sub-section (1) is made shall in the matter of – i- hearing of the application and the procedure to be followed at such hearing; ii- setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed. (5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1). (5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1). (6) 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 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.” 10. The perusal of operative portion of the impugned order dated 21.8.2024, allowing the election petition & ordering for recounting will be necessary which is as under :- 11. This Court in the case of Parshuram (supra) as well as Smt. Asha Devi (supra) has held that after passing the final order in the election petition, the Prescribed Authority/Election Tribunal will become functus officio in the matter. Paragraph Nos. 24, 25, 26 & 27 of the judgment rendered in Parshuram (supra) will be relevant for perusal which is quoted hereunder:- “24. From perusal of the aforesaid judgment it emerges that the Division Bench, upon a reference, did not agree with the view of the Single Judge of this Court in the case of Abrar v. State of U.P. - (2004) 5 AWC 4088 wherein it had been held that as an election petition had been finally decided as such a revision would lie under sub-section (6) of Section 12-C of the Act, 1947. The Division Bench, after considering the judgment in the case of Abrar (supra) was of the view that a mere order for recount does not finally alter the status of the contesting parties and it does not in any way finally determine the status of an elected candidate inasmuch as the finality would only come after the disposal of the election application as the relief of setting aside an election or dismissing an election application comes at a final stage and not by mere disposal of an application of recount or ordering recount on deciding the issue framed for this purpose. 25. 25. However, the legal issue which arises in the instant case is that when the Prescribed Authority has finally allowed the election petition by means of impugned order dated 21.12.2021 and has directed for recounting then after disposal of the election petition, the Election Tribunal would become 'functus officio' and no subsequent order can be passed in this regard by the Election Tribunal. 26. This aspect of the matter has been considered by a seven Judges Constitution Bench of Hon'ble Supreme Court in the case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and others - AIR 1955 SC 233 wherein the Constitution Bench has held as under:- "19. Looking at the substance of the matter, when once, it is held that the intention of the Constitution was to vest in the High Court a power to supervise decisions of Tribunals by the issue of appropriate writ and directions, the exercise of that power cannot be defeated by technical - considerations of form and procedure. In P. C. Basappa v. T. Nagappa - AIR 1954 SC 440 , this Court observed: "In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law" It will be in consonance with these principles to hold that the High Courts have power under article 226 to issue writs of certiorari for quashing the decisions of Election Tribunals, notwithstanding that they become functus officio after pronouncing the decisions." (emphasis by the Court) 27. From a perusal of the aforesaid judgment, it is apparent that after the Election Tribunal pronounces its decision, it becomes 'functus officio'.” 12. In Smt. Asha Devi (supra) also, this Court has held in paragraph no.16 that there is no provision under the Act authorizing the Prescribed Authority to re-entertain the election petition, which has already been decided and modify the previous order passed by him or to pass subsequent order in furtherance of the previous order. In Smt. Asha Devi (supra) also, this Court has held in paragraph no.16 that there is no provision under the Act authorizing the Prescribed Authority to re-entertain the election petition, which has already been decided and modify the previous order passed by him or to pass subsequent order in furtherance of the previous order. Paragraph No.16 of the judgment rendered in Smt. Asha Devi (supra) is extracted hereunder:- “16. In this conspectus, as above, I found substance in the submissions advanced by the learned counsel for the petitioner that in view of allowing the election petition partly, vide order dated 2.3.2024, that too, without fixing any date for the further proceedings in the election petition intending to decide any issue or to take final decision on said election petition, the Prescribed Authority became functus officio and he has an inherent lack of jurisdiction to entertain such election petition again and allowed the same second time declaring respondent No. 3 as a returned candidate. It appears, prima facie, that learned Prescribed Authority has passed order dated 21.3.2024 in zeal, while the revision dated 12.3.2024 was seized with the revisional court to examine the legality and validity of the order dated 2.3.2024. Even assuming that no interim order was passed by the revisional court, the Prescribed Authority has not justified in passing the order dated 21.3.2024 while he had already laid his hands off from the election petition by terminating its proceeding finally vide order dated 2.3.2024. There is no provision under the Act, 1947 authorizing the Prescribed Authority to re-entertain the election petition, which has already been decided, and modify the previous order dated 2.3.2024 passed by him or to pass subsequent fresh order in furtherance of the previous order. The order under challenge, passed by the Prescribed Authority, is patently erroneous and perverse to the provisions of the Act, 1947 and same is liable to be qushed being illegal, unwarranted under the law, cryptic and suffers from infirmity warranting the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The existence of such order beget prejudice and miscarriage of justice to the present petitioner, who is an elected representative in the democratic setup.” 13. The existence of such order beget prejudice and miscarriage of justice to the present petitioner, who is an elected representative in the democratic setup.” 13. The ratio of law laid down by this Court in Parshuram (supra) and Smt. Asha Devi (supra), as quoted above, fully demonstrate that the Election Tribunal/Prescribed Authority under Section 12-C of the Act cannot pass the order for finally allowing the election petition as well as for recounting. 14. In view of the aforementioned facts and circumstances, the impugned order dated 21.8.2024 cannot be sustained in the eye of law. 15. So far as the availability of alternative remedy of revision against the order impugned under Section 12-C(6) of the Act is concerned, the Hon’ble Apex Court in the case of Committee of Management and Another Vs. Vice-Chancellor and Others reported in 2009(1) AWC 437 (SC), has held that the alternative remedy will not be bar if the impugned order has been passed in violation of principal of natural justice or the order impugned is without jurisdiction. Paragraph No.21 of the Committee of Management (supra) will be relevant for perusal which is quoted hereunder:- "21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 : "15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ...." [See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546 ] In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore." 16. ...." [See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546 ] In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore." 16. This Court has repeatedly held that the Election Tribunal cannot pass the order for allowing the election petition as well as for recounting together but in spite of that the impugned order has been passed which cannot be sustained at any ground, as such, in place of relegating the petitioner to file the revision, it will be just and proper to set aside the order of Prescribed Authority dated 21.8.2024 and direct the Election Tribunal/Prescribed Authority to proceed afresh in accordance with law. 17. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court as well as by Hon’ble the Apex Court, the impugned order dated 21.8.2024 is liable to be set aside and the same is hereby set aside. 18. This Court has found that Election Tribunal/Prescribed Authority is passing similar type of orders without considering the ratio of law laid down by this Court in Parshuram (Supra) & Smt Asha Devi (Supra) as three writ-petitions came before this Court within period of one week which is not proper on the part of Election Tribunal/Prescribed Authority of the State who are exercising power under Section 12-C of the Act. 19. The notice has not been issued to respondent Nos. 4 to 10 before setting aside the impugned order as the election-petition filed by respondent No.1 has been allowed under the impugned order and respondent No.1 is represented by learned counsel as well as this Court is remitting back the matter before Election Tribunal/Prescribed Authority where everybody will be heard. 20. The writ petition stands allowed and the matter is remitted back before respondent no.2/ Sub Divisional Magistrate/ Prescribed Authority with a direction to register the election petition on its original number and decide the same afresh on the basis of evidence already adduced by the parties, considering the law laid down by this Court in Parshuram (supra) and Smt. Asha Devi (supra), expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order.