Ram Kali vs District Judge, Hardoi And 10 ...
2023 Latest Caselaw 21285 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:53074
 
Court No. - 6
 

 
Case :- WRIT - C No. - 6852 of 2023
 
Petitioner :- Ram Kali
 
Respondent :- District Judge, Hardoi And 10 Others
 
Counsel for Petitioner :- A.Z. Siddiqui
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

1. Vakalatnama filed by Shri Pankaj Gupta, Advocate on behalf of the opposite party no.5 is taken on record.

2. Heard Shri A.Z. Siddiqui, learned counsel for the petitioner, Shri H.K. Bhatt, learned Additional Chief Standing Counsel and Shri Pankaj Gupta, learned counsel for the respondent no.5.

3. This petition has been filed challenging the order dated 07.08.2023 passed by the revisional court in Civil Revision No.33 of 2023 by means of which the revision filed by the petitioner has been dismissed at the admission stage as not maintainable and the order dated 01.08.2023 passed by the Sub-Divisional Magistrate / Election Tribunal/ prescribed authority, Tehsil- Sawayajpur, District- Hardoi (here-in-after referred as the Tribunal) in Election Petition No.02151 of 2021 by means of which election petition has been partly allowed and a direction has been issued for recounting of votes fixing 10.08.2023 for recounting and further directing to consign the case to records.

4. Learned counsel for the petitioner submits that the election petition filed by the opposite party no.5 was partly allowed by means of the order dated 01.08.2023. The order allowing the election petition is final because after allowing the petition and consigning to record, the Tribunal became functus officio, therefore merely because the direction has been issued for recounting without any further direction it can not be said that it is an interlocutory order. But without considering it, the revision has been dismissed as not maintainable. The issue has already been settled by this Court in the case of Matter Under Article 227 No.31424 of 2021; Parsuram Vs. State of U.P. and Others, passed by a coordinate Bench of this Court after considering the Division Bench judgement, relied by the revisional authority on the basis of which the revision has been dismissed as not maintainable, and other judgments of this Court and Hon'ble Supreme Court. Therefore the petitioner is constrained to approach this Court.

5. Shri Pankaj Gupta, learned counsel for the respondent no.5 submits that the Tribunal has not decided the election petition finally because there were two prayers in the petition and only one has been allowed. The prayer which has been allowed was for recounting, therefore, the petition has not been finally decided. However, he does not dispute the legal position as settled by the coordinate Bench of this Court and submits that the case may be remanded to the revisional authority to reconsider a fresh.

6. Having considered the submissions of learned counsel for the parties, I have perused the records.

7. The opposite party no.5 had filed the election petition challenging the election of the petitioner on the post of Pradhan of Gram Panchayat- Karta Adaramau, Vikas Khand- Sandi, District- Hardoi. The case was proceeded ex-party on 23.05.2022 because none had appeared despite notice. Subsequently, the petitioner appeared and filed an application for recall of the order, on which the order was recalled. Thereafter after filing of the written statement, framing issues and evidence adduced by the parties, the election petition has been decided by means of the judgment and order dated 01.08.2023. The petition has been allowed partly and a direction has been issued for recounting of votes on 10.08.2023. Lastly, it has been ordered that the file be consigned to record. Feeling aggrieved by the same, the petitioner filed Civil Revision No.33 of 2023 before the District Judge, Hardoi. The District Judge, Hardoi dismissed the revision  at the admission stage as not maintainable on the ground that it is an interlocutory order, against which a revision under Section 12C(6) is not maintainable, whereas once the petition has been allowed partly and the file has been consigned to records, it is apparent that the election petition has been decided finally. Merely because a direction has been issued for recounting, it can not be said that the order is interlocutory.

8. The controversy has been considered by a coordinate Bench of this Court in the case of Matter Under Article 227 No.31424 of 2021; Parsuram Vs. State of U.P. and Others decided on 23.12.2022 after considering the Division Bench judgments in the case of Mohd. Mustufa Vs. Up Zila Adhikari, Phulpur, Azamgarh; 2007 SCC OnLine All 1562 and other judgments and relying on judgment of Hon'ble Supreme Court and held that after allowing the petition the authority becomes functus officio, therefore no further direction can be issued by him. The relevant portion of the said judgment is extracted below:-

"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'.

28. Further, the Constitution Bench has also laid down the law with respect to the powers of the High Court under Articles 226 and 227 of the Constitution of India. For the sake of convenience, the relevant observations of the Constitution Bench are reproduced below:-

"We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh and another v. Amarnath and another(2), where it was observed that in this respect article 227 went further than section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under article 226 the High Court can only annul the decision of the Tribunal, it can, under article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under articles 226 and 227 of the Constitution." (emphasis by the Court)

29. From a perusal of the aforesaid, it is apparent that the Constitution Bench has held that the High Court under Article 226 can not only annul the decision of the Tribunal but the High Court under Article 227 can also do that and also issue further directions in the matter.

30. Accordingly, when the Division Bench judgment in the case of Mohd. Mustafa (supra) is seen in the light of the Constitution Bench judgment in the case of Hari Vishnu Kamath (supra) it emerges that the Division Bench of this Court has not considered the aforesaid Constitution Bench judgment wherein it has been held that the Election Tribunal after pronouncing its decision becomes 'functus officio' and consequently this Court while exercising power under Articles 226 and 227 of the Constitution of India can not only annul the decision of the Tribunal but can also issue further directions in the matter.

31. At this stage, it would also be relevant to deal with issue as to whether the law laid down by the Division Bench of this Court in the case of Mohd. Mustafa (supra) would be a binding precedent when the Division Bench has not considered the judgment of the Apex Court in the case of Hari Vishnu Kamath (supra).

32. In this regard, this Court may need not look further than the judgment of the Supreme Court in the case of Sundeep Kumar Bafna vs. State of Maharashtra - (2014) 16 SCC 623, wherein the Apex Court has held as under:-

"19. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam." (Emphasis by the Court)

33. Likewise, the Apex Court in the case of Punjab Land Development and Reclamation Corporation Limited vs. Labour Court - (1990) 3 SCC 682 has held as under:-

"40. We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It can not be doubted that Art. 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd. v. State of Bihar, [1955] 2 SCR 603, it was held that the words of Art. 141, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords in Re-Dawson's Settlement Lloyds Bank Ltd. v. Dawson and Ors., [1966] 1 WLR 1234, on July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:

"Their Lordships regard the use of precedent as an indis- pensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law."

34. From the aforesaid judgments in the case of Sundeep Kumar Bafna (supra) and Punjab Land Development and Reclamation Corporation Limited (supra), it emerges that the Apex Court has categorically held that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation which was not brought to the notice of the Court or a decision or judgment can also be per incuriam if the decision of a High Court is not in consonance with the view of the Apex Court.

35. Accordingly, keeping in view the aforesaid judgments, the Division Bench judgment of this Court in the case of Mohd. Mustafa (supra) would run against the law laid down by the Constitution Bench judgment of the Apex Court in the case of Hari Vishnu Kamath (supra) the Division Bench having not considered that the Election Tribunal becomes functus officio after finally deciding the election petition and thus it is the judgment of the Constitution Bench which would have to be followed by this Court.

36. As already indicated above, the Apex Court in the case of Hari Vishnu Kamath (supra) has held that after the Election Tribunal finally pronounces its decision, it becomes 'functus officio' meaning thereby that it would not have any power to pass any order in the election petition after it pronounces its order. In the instant case what the Election Tribunal headed by the Prescribed Authority has done is that it has finally allowed the election petition and has directed for a recounting. Even if the result of recounting of the votes is to be either way, the Election Tribunal having become 'functus officio' after pronouncement of its decision/allowing the petition, it would not be able to pass any further orders. As such keeping in view the settled proposition of law, Article 243-O of the Constitution of India categorically providing that only by means of an election petition the election to the Panchayat can be called in question and the election petition having been finally decided, the Prescribed Authority/Election Tribunal, thus became functus officio and cannot pass any further orders in the matter. As such, the impugned order has to be treated as a final order in all respects and accordingly it is apparent that the Prescribed Authority has passed a patently perverse order and has failed to exercise jurisdiction vested in him i.e. of finally deciding an election petition either way.

37 Keeping in view the aforesaid discussion, the legal question which has arisen in the instant petition is answered below:-

The Prescribed Authority on finally deciding an election petition becomes functus officio and can not pass any order subsequent thereto even if the election petition has been decided finally calling for the re-counting of votes.."

9. Similar view has been taken by a coordinate Bench of this Court in the case of Kusum Mishra Vs. State of U.P. and Others; Writ-C No.4999 of 2023 decided by judgment and order dated 21.07.2023, the relevant portions are extracted here-in-below:-

"Thus, a conjoint reading of aforesaid would show that if the Prescribed Authority keeping the election petition pending directs for recounting of votes, then it would be an interlocutory order and against this order writ petition would be maintainable. If election petition is disposed of by the Prescribed Authority directing for recounting of votes, then it would be a 'final order' and against this order, the revision under Section 12-C(6) of the Act of 1947 would be maintainable.

Considered the submissions advanced by the learned counsel for the parties and perused the record as also considered the judgment(s), referred above.

This Court is not inclined to enter into factual matrix including the merits of the case as this Court is considering the issue of maintainability of the present petition only in the light of the operative portion of the impugned order dated 05.06.2023, quoted in earlier part of this judgment, whereby the Prescribed Authority concluded the proceedings of case/election petition instituted under Section 12-C of the Act of 1947 without granting the relief(s) as provided under Section 12-C(4)(ii) of the Act of 1947.

The judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra), which is the basis of judgment(s) passed by the Co-ordinate Bench, referred above, says that a revision under Section 12-C(6) of the Act of 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 Division Bench opined aforesaid, as in the judgment passed in the case of Abrar vs. State of U.P., reported in (2004) 5 AWC 4088, wherein the learned Single Judge was of the view that the disposal of application for recounting of votes would amount to a 'final order' as it disposes of the application for recounting of votes finally. The Division Bench of this Court also observed that 'final order' would be, if the election application is allowed or dismissed, as would appear from the relevant portion of the judgment passed in the case of Mohd. Mustafa (Supra), which on reproduction reads as under:-

"22. We have carefully examined the reasoning given by a learned single Judge in Abrar's case (supra) wherein the learned single Judge opined that the disposal of an application for recount would amount to be a final order as it disposes of the application for recount finally. As explained by us, herein above, 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. The finality comes only after the disposal of the election application as the relief of setting aside an election or dismissing an election application comes at the final stage and not by mere disposal of an application of recount or ordering recount on deciding the issue framed for this purpose.

23. The order impugned in the writ petition cannot be held to have disposed of the election application for the reason that the Election Tribunal framed following three issues:--

(1) Whether the counting in the election on the post of Pradhan of village Handia was conducted in accordance with law?

(2) Whether the agents of the applicant in election application, were forcibly removed from the place of counting and the votes cast in favour of the election applicant had been mixed up with the votes of the returned candidate (present petitioner) and on the basis of which opposite party No. 1 (present petitioner) was declared elected? And

(3) Whether on the facts and circumstances of the case, the recounting of votes is permissible and the election had been held in accordance with law?

24. It is evident from the order impugned that only the order of recount has been passed. However, the other issues are yet to be decided after recount of ballot papers as to whether the election had been held in accordance with law and as to whether the votes cast in favour of the contesting respondent have been mixed up with the votes of the returned candidate and on the basis of which the petitioner has been declared elected. It is further to be decided as to whether the election application is to be allowed or dismissed. Therefore, by no stretch of imagination, it can be held that the order of recount of votes has finally disposed of the election application.

25. We are, therefore, with the utmost respect, not able to circumscribe to the view taken by the learned single Judge in the Abrar's case (supra) for the reasons aforesaid and, therefore, we have no hesitation on in holding that the said decision does not lay down the law correctly on the question of the maintainability of revision under Section 12-C(6) of the Act in respect of an application disposed of by the Prescribed Authority for recount. We further approve the law laid down the cases relied upon by the learned counsel for the petitioner. 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., (2004) 5 AWC 4088 : (2004 All LJ 2384) 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."

After the judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra), this Court in the judgment(s), referred above, entertained the writ petition(s) challenging the order(s) of recounting of votes considering it to be interlocutory order. In the case of Parshuram (Supra), the Co-ordinate Bench of this Court, after considering the judgment passed in the case of Mohd. Mustafa (Supra) as also the order passed by the Prescribed Authority in a case instituted under Section 12-C of the Act of 1947, whereby the Prescribed Authority while passing the order neither set aside the election nor declared the election to be void nor declared the concerned to be duly elected rather has directed for recounting of votes and allowed the election petition and considering the nature of the order as also the expression 'functus officio' in the light of Constitutional Bench judgment passed in the case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and Others; reported in AIR 1955 SC 233, specifically observed that "after Election Tribunal pronounces its decision, it becomes 'functus officio'". Co-ordinate Bench of this Court, after considering the relevant provisions of the Act of 1947 and the judgment passed by the Division Bench in the case of Mohd. Mustafa (Supra) as also the judgment passed by the Constitutional Bench of the Hon'ble Apex Court also observed in regard to such order that the same should be treated as 'final order' in all respects.

A conjoint reading of the judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra) and the judgment passed by the Co-ordinate Bench of this Court in the case of Parshuram (Supra), would make the point crystal clear that the revision under Section 12-C(6) of the Act of 1947 would be maintainable against the 'final order' passed in the election petition and not against an interlocutory order which includes the order passed for recounting of votes without concluding the proceedings instituted under Section 12-C(1) of the Act of 1947.

This Court has already observed that a conjoint reading of aforesaid would show that if the Prescribed Authority keeping the election petition pending directs for recounting of votes then it would be an interlocutory order and against this order writ petition would be maintainable. If election petition is disposed of by the Prescribed Authority directing for recounting of votes, then it would be a 'final order' and against this order, the revision under Section 12-C(6) of the Act of 1947 would be maintainable.

The word 'functus officio' has already been taken note of in earlier part of this judgment, as per which, once a judge or a quasi-judicial authority has rendered a decision, it is not open to revisit the decision and amend, correct, clarify, or reverse it, except in the exercise of the power of review, conferred by the law and once a judicial or quasi-judicial decision attains finality, it is subject to change only in proceedings before the appellate authority and in this case, as per statutory provision i.e. Section 12-C(6) of the Act of 1947, the District Judge is the Revisional Authority.

In the instant case, the Prescribed Authority has passed the 'final order', which is impugned in this petition, whereby, he allowed the election petition and directed for re-counting of votes with a further direction to the effect that after necessary action, the matter be consigned to record. As such, the order, in issue, is covered under the expression 'final order' and being so, this Court is of the view that the revision would be maintainable under Section 12-C(6) of the Act of 1947.

Accordingly, considering the statutory remedy available to the petitioner, this Court is not inclined to entertain this petition assailing the order dated 05.06.2023 passed by the Prescribed Authority. Accordingly, the present petition is finally disposed of with liberty to the petitioner to approach Revisional Authority, as provided under Section 12-C(6) of the Act of 1947.

In view of the aforesaid as also taking note of the observations made by the Hon'ble Apex Court in the judgment(s) passed in the case of Dana Rajeshwari vs. Bodavula Hanumayamma and Others; reported in AIR 1997 SC 1541; Virender Kumar Rai And Others vs. Union of India And Others; reported in (2004) 13 SCC 463 and Trai Foods Ltd. vs. National Insurance Co. And Others; reported in (2004) 13 SCC 656, it is provided that if the petitioner prefers the revision within a period of 30 days, which is the limitation prescribed for preferring the revision assailing the order passed by Prescribed Authority, the same shall be decided on merits.

Till expiry of 30 days' period from today, the Authority concerned shall not proceed in the case as per the directions of Prescribed Authority."

10. In view of above, since the election petition filed by the respondent no.5 has been finally disposed of by means of the judgment and order dated 01.08.2023 and merely because a direction has been issued for recounting after allowing the petition without any further direction to place the result of counting before him for further order, it can not be said that it is an interlocutory order and revision against the same is not maintainable.

11. In view of above and consensus among learned counsel for the parties present, the impugned order dated 07.08.2023 passed by the revisional authority is not sustainable in the eyes of law and liable to be quashed. Since the other respondents had not appeared before the election tribunal and they will have opportunity before the revisional authority in accordance with law as the revision was dismissed at the admission stage, the notice to them is hereby dispensed with.

12. The petition is partly allowed. The order dated 07.08.2023 is hereby quashed. The matter is remitted back to the opposite party no.1 to reconsider a fresh in accordance with law and in the light of observations made here-in-above on admission as well as the application for interim relief expeditiously and preferably within a period of two weeks from the date of production of certified copy of this order without granting unnecessary adjournment to either of the parties. The parties shall appear before the opposite party no.1/ District Judge, Hardoi on 16.08.2023.

13. Since under the order passed by the Tribunal dated 01.08.2023 recounting is fixed on 10.08.2023, therefore it is provided that the order passed by the Tribunal in Election Petition No.02151 of 2021; Vidyavati Vs. Ram Kali shall remain stayed for a period of three weeks or order passed on admission of revision and application for interim relief by the opposite party no.1, which ever is earlier.

14. Learned Additional Chief Standing Counsel shall communicate this order to the authority concerned forthwith without waiting for copy of this order.

15. Certified/authenticated copy of this order shall be issued to learned counsel for the parties on payment of usual charges today.

...................................................................(Rajnish Kumar, J.)

Order Date :- 9.8.2023

Haseen U.