Mohd. Kamil Khan vs Sub Divisional Magistrate, ...
2022 Latest Caselaw 21952 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- WRIT - C No. - 9298 of 2022
 

 
Petitioner :- Mohd. Kamil Khan
 
Respondent :- Sub Divisional Magistrate, Tehsil Biswa, Distt-Sitapur And 9 Others
 
Counsel for Petitioner :- Desh Raj Singh Yadav,Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Wasim Ahmad
 

 
Hon'ble Manish Kumar,J.

Heard learned counsel for the parties and perused the record.

The counsel for the respective parties have given their consent to decide the matter finally at the admission stage and dispense with the issuance of notices to respondent nos. 3 to 7.

The present writ petition has been preferred for quashing of the impugned order dated 14.12.2022 passed by the Prescribed Authority under Section 12(C) Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act, 1947'), for recounting of the votes.

Learned counsel for the petitioner has submitted that the impugned order of recounting of Votes has been passed without framing issues and hence the order is wholly illegal and unsustainable in the eyes of law. In support of his submission, learned counsel for the petitioner has relied upon the judgement of Hon'ble Supreme Court in the case of Uttamrao Shivdas Jankar Vs. RAmjitshinh Vijaysinh Mohite Patil, (2009) 13 SCC 131 and also a judgment by this Court in the case of Kusum Vs. State of U.P. (2018(36)LCD 1434.

Sri Zibran Akhtar, learned counsel for Respondent No.2 has submitted that the election petition was preferred by the Respondent No.2 against the petitioner and Respondent Nos.3 to 7 were the proforma parties, who had also contested the elections. The Petitioner has been elected as Pradhan.

Learned counsel for the respondents has not disputed the proposition that as per Rule 4(1) of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1997 (hereinafter referred to as ' the Rules 1997') and law settled by the Hon'ble Supreme Court and also by this Court, before passing an order of recounting of votes the issues have to be framed.

Considering the submission of learned counsel for the parties and from the perusal of the impugned order dated 14.12.2022, it has come out that before passing of the order for recounting of the votes on the election petition preferred by the Respondent No.2 challenging the election of the petitioner, who has been elected as Pradhan, the order of recounting of votes has been passed without framing the issues which is required as per Rule 4(1) of the Rules 1997 and as per law settled by Hon'ble Supreme Court in the case of Uttamrao Shivdas Jankar (Supra) and also by this Court in the case of Kusum (Supra).

In view of the law laid down by the Hon'ble Supreme Court and also by this Court, the order passed by the prescribed authority directing for recounting of the votes is wholly illegal and unsustainable and is liable to be quashed.

Accordingly, the writ petition is allowed. The order dated 14.12.2022 passed by the prescribed authority is hereby quashed. The matter is remanded back to the Prescribed Authority for deciding the matter afresh in the light of the law settled by Hon'ble the Supreme Court and also by this Court after giving opportunity of hearing to the parties.

Order Date :- 20.12.2022

S. Kumar