Jagdheer Singh vs State Of U.P. And 7 Others
2016 Latest Caselaw 2070 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- WRIT - C No. - 12408 of 2016
 

 
Petitioner :- Jagdheer Singh
 
Respondent :- State Of U.P. and 7 others
 
Counsel for Petitioner :- Suresh Chandra Pandey, M.D. Singh Shekhar
 
Counsel for Respondent :- C.S.C.,Pankaj Agarwal
 

 
Hon'ble Pankaj Mithal,J.

Heard Sri M.D. Singh Shekhar, Senior Counsel assisted by Sri S.C. Pandey who appears for the petitioner, learned Standing Counsel and Sri Pankaj Agarwal, learned counsel for respondent No.3.

This petition under Article 226 of the Constitution of India has been filed for quashing of the order dated 10.3.2016 passed by the Sub-Divisional Officer, Tehsil Gabhana, district Aligarh in election proceedings initiated in relation to the election of a Gram Pradhan. The other reliefs in the writ petition are for rejecting application dated 10.3.2016 of respondent No.3 and for a direction to the authorities to handover charge of Gram Pradhan to the petitioner.

The order impugned, Annexure - 8 to the writ petition has been passed on the application of respondent No.3. It only directs that the order dated 8.3.2016 passed earlier shall remain stayed till the recall/review application of respondent No.3 is heard for which 28.3.2016 was fixed after directing for issuing notice to the petitioner.

Sri Pankaj Agarwal has raised a preliminary objection that the aforesaid order is revisable under Section 12 - C (6) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act'). Therefore, writ petition is not maintainable and is liable to be dismissed on the ground of alternative remedy.

In response to the above objection, Sri Shekhar relying upon a Division Bench decision of this Court in Mohd. Mustafa Vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others 2007 (7) ADJ 1 (D.B.) submitted that only the final orders deciding election petitions are revisable under Section 12 - C (6) of the Act.

The aforesaid Division Bench has dealt with the aforesaid issue in extenso and after considering the language of Section 12 - C (6) of the Act ruled that a revision under the aforesaid provision shall lie only against a final order passed by the Sub-Divisional Officer deciding the application preferred under Section 12 - C (1) of the Act and not against any interlocutory order or order of recount of votes passed by the Sub-Divisional Officer.

It may not be out of context to mention that the aforesaid Division Bench in laying down the above proposition of law has further observed that as a natural corollary, a writ petition would be maintainable against an order of recount passed by the Sub-Divisional Officer while proceeding in an election petition under Section 12 - C of the Act.

In view of the above ratio of the Division Bench, the order impugned is not revisable and the writ petition appears to be the only remedy.

Sri Pankaj Agarwal, however, submits that the writ petition has been permitted only against an order passed by the Sub-Divisional Officer while proceedings in an election petition which is pending and where the order is passed subsequent to the decision of the election petition.

The distinction so made appears to be impressive but cannot be accepted as the nature of the order is certainly interlocutory and it is an order passed in election proceedings which is not revisable under Section under Section 12 - C (6) of the Act as per the ratio of the above referred decision of the Division Bench. Accordingly, the above argument cannot be accepted.

In view of the above, the objection of learned counsel for respondent No.3 that the order impugned is revisable is not sustainable and is overruled.

Now coming to the merits of the petition, the submission of Sri Shekhar is that the Sub-Divisional Officer under the Act has no power to review its order. The order impugned is in the nature of review and, as such, the order is without jurisdiction and the application on which it has been passed is not maintainable. His further submission is that the order of recount of votes passed by the Sub-Divisional Officer has gone unchallenged and, therefore, respondent No.3 has no case even for review of the order dated 8.3.2016.

Sri Pankaj Agarwal on the other hand, contends that the order is not without jurisdiction and has been passed in the interest of justice. The Sub-Divisional Officer has been vested with the power of review under Rule 4 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994. The application on which the order has been passed is for recall/review of the order dated 8.3.2016 and for submission of forensic report with regard to the ink used on the ballot papers which were rejected. The order of recount can be assailed in appeal along with the final order. Moreover, respondent No.3 had applied for its recall as it was ex-parte in nature but the application was incorrectly rejected by the order dated 8.3.2016 for which the present recall/review application has been filed.

Before I deal with the respective contentions of the parties, I consider it fruitful to narrate some of the facts in brief giving rise to this petition.

The election of the Gram Pradhan of village Chand Ner, Tehsil Gabhana, district Aligarh was held on 5.12.2015. In the said election, petitioner polled 513 valid votes whereas respondent No.3 secured 517 valid votes and was declared elected. The petitioner challenged the election of respondent No.3 under Section 12 - C of the Act by means of an election petition. One of the contentions was that 14 votes caste in his favour were illegally discarded. The Sub-Divisional Officer on 23.2.2016 ordered for recounting of the votes. Respondent No.3 moved for recall of the above order alleging it to be ex-parte in nature. The application of respondent No.3 was rejected on 8.3.2016 and on the same day petitioner was declared elected, on the basis of the recounting wherein petitioner secured 511 votes as against 499 secured by respondent No.3.

At this stage, respondent No.3 moved another application dated 10.3.2016 for recall/review of the order dated 8.3.2016 and for a report of the forensic expert with regard to the ink used on the votes rejected with the prayer for stay of the order dated 8.3.2016. It is on this application that the impugned order has been passed directing for issue of notice to the petitioner fixing a date for hearing of the application and for keeping in abeyance the order dated 8.3.2016.

At the first instance, the order dated 8.3.2016 is not a final order. It does not even disposes of the application of respondent No.3 on merits. It is simply an interlocutory order which neither way adjudicates the substantive rights of the parties which may warrant exercise of extra-ordinary jurisdiction unless it results in miscarriage of justice if it is allowed to stand. The order if allowed to stand for the time being till the application is considered on merits would only delay the operation of the order dated 8.3.2016 but would not occasion failure of justice.

The order dated 8.3.2016 records that in recounting petitioner obtained 511 votes whereas respondent No.3 only 499 votes. Accordingly, it declares petitioner duly elected and directs for consigning the file to the record room. It means that it decided the election petition finally on the basis of the recounting alone without any full fledged trial which probably may not have been necessary in view of the result of the recounting.

Respondent No.3 vide application dated 10.3.2016 alleged that he had received the certified copy of the order dated 8.3.2016 on 10.3.2016 whereupon he had come to know that the number of votes are quite at variance from the actual counting. Therefore, the votes rejected during counting be got examined by the forensic expert before taking any final decision on its basis and, in the meantime, the order dated 8.3.2016 declaring the petitioner to be elected may be kept in abeyance.

The aforesaid application for recall/review, if taken to be an application for review cannot be said to be not maintainable and order passed thereon to be without jurisdiction. Rule 4 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 provides for the procedure of hearing of the election petition. It provides that every election petition shall be decided by the Sub-Divisional Officer as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure and that he may on application of either party made within five days of his decision review his decision.

The relevant portion of Rule 4 of the Rules is reproduced herein-below for the sake of convenience:

"4. Hearing of the petition. - (1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits :

Provided that -

(i) ....

(ii) ....

...............

...............

(vii) the Sub-Divisional Officer may, on an application of either party made within five days after the date of his decision, review his order."

A bare reading of the above Rule establishes beyond doubt that in trying an election petition the Sub-Divisional Officer has been conferred with the power to review its decision/order. This review is of a substantive nature rather than procedural which is inherent to all the courts and quasi judicial authorities.

In view of the above, the argument is the application of the respondent No.3 dated 10.3.2016 for recall/review is not maintainable and, therefore, the order passed thereon is without jurisdiction has no substance and stands rejected. It may, however, be observed that the above application may not be maintainable for some other reason but it cannot be thrown out on the ground that there is no power of review.

Sri Pankaj Agarwal has produced the certified copy of the order-sheet of the election petition which is beyond dispute. As a Court of record accepting the said certified copy, I find that the election petition was presented on 27.1.2016 whereupon the other respondents appeared except respondent No.3. The Sub-Divisional Officer accordingly directed for securing presence of the unrepresented parties fixing a date. On the other two dates fixed thereafter, on the ground of non-availability of Sub-Divisional Officer 23.2.2016 was fixed for presence of respondent No.3. It was on 23.2.2016 that an order of recount was passed which has been annexed as Annexure - 2 to the writ petition. The said order states that as respondent No.3 has not appeared despite publication of notice in Amar Ujala dated 17.2.2016 and as the other respondents have no objection for recounting of votes, a direction was issued for recounting of votes recounting be done.

First of all, the order-sheet does not reflect that there is any order for the publication of the notice of the election petition in the news-paper. There is no endorsement on the order-sheet that any steps for publication of notice was taken and the notice after publication was placed on record. This apart, the order dated 23.2.2016 directs for recounting only for the reason that one of the respondents to the election petition other than respondent No.3 had no objection to recounting.

It is settled in law that in election matters recounting should be ordered in rare cases and that too on giving satisfactory ground. In Smt. Ram Rati (Smt.) Vs. Saroj Devi and others (1997) 6 SCC 66 it has been held that for the purposes of recounting one of the essential conditions precedent is that there must be an application in writing and in the absence of such an application the court or the tribunal is not empowered to direct recounting.

A learned single Judge of this Court in Kamla Devi Vs. State of U.P. and others 2009 (4) AWC 4125 while dealing with issue of recounting of votes in relation to election of Gram Pradhan followed the above decision of the Supreme Court and held that recounting is permissible only when there are specific pleadings in support of the prayer for recounting of votes and the election tribunal is satisfied that there is a strong prima facie case for recounting.

In the instant case, none of the above grounds appears to be satisfied as the order of recounting dated 8.3.2016 is completely silent in this regard and does not record its satisfaction for ordering recounting of the votes.

It is settled by the Division Bench of this Court in Mohd. Mustafa (supra) that the order of recounting is not revisable. It is also not necessary to challenge it by invoking the writ jurisdiction as it can always be assailed, in revision after the final decision, if necessary. The respondent No.3 has not accepted the said order as he had applied for its recall though unfortunately the application was rejected on the pretext that service was sufficient upon him through publication though the order-sheet speaks contrary to it.

In view of the above facts and circumstances, as the order impugned is purely interlocutory in nature and the parties can appear before the Sub-Divisional Officer and get the application of respondent No.3 dated 10.3.2016 decided on merits, I do not consider it to be a fit case for exercising my discretionary jurisdiction. The Sub-Divisional Officer, however, is expected to take a final decision in the matter most expeditiously.

The writ petition is without substance and is dismissed with no order as to costs.

Order Date :- 29.4.2016

Brijesh