Vijay Gupta vs State Of U.P. And 12 Others
2023 Latest Caselaw 2948 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 9.1.2023
 
Delivered on 28.1.2023
 

 
Court No. - 34 
 

 
Case :- WRIT - C No. - 24348 of 2022 
 
Petitioner :- Vijay Gupta 
 
Respondent :- State Of U.P. And 12 Others 
 
Counsel for Petitioner :- Ashish Kumar Singh,Prashant Kumar Tripathi 
 
Counsel for Respondent :- C.S.C.,Ravi Anand Agarwal,Shreya Gupta 
 
Hon'ble Saurabh Shyam Shamshery,J. 

1. Heard Sri Ashish Kumar Singh, Advocate assisted by Sri Prashant Kumar Tripathi, Advocate for petitioner and Sri Rakesh Pande, learned Senior Advocate assisted by Ms. Shreya Gupta, Advocate for Respondent-5.

2. Before adverting to rival submissions to decide whether Election Tribunal was legally correct to pass an order for recounting, a preliminary submission is that while passing the order of recounting since election petition was disposed of, therefore, in light of judgment of co-ordinate Bench in Parshuram Vs. State of U.P. & Ors in Matter under Article 227 No.31424 of 2021 decided on 23.12.2022, Prescribed Authority becomes functus officio and cannot pass any order subsequent thereto i.e. no order can be passed on the outcome of recounting.

3. In Parshuram (Supra) co-ordinate Bench has framed issue in paragraph no.6 and decided in paragraph 37 which are reproduced hereinafter:

"6. The legal question which has arisen in the instant petition is whether the Prescribed Authority has erred in law in directing for re-counting of votes while finally deciding the election petition inasmuch as to whether the Prescribed Authority could pass any further order on receipt of the result of the re-counting of votes once the election petition had been finally decided and consequently the Prescribed Authority became ''functus officio'?

X x x

37. 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."

4. Learned counsel for respondents has tried to state that the order impugned is passed on basis of material available which prima-facie shows irregularity in recounting. However, he is not able to make any legal submission contrary to Parshuram (Supra).

5. In view of above discussions, impugned orders dated 8.6.2022 and 10.8.2022 are set-aside and the matter is remanded back to the authority concerned for passing a fresh order in accordance with law keeping in view the provisions of sub-section 4 (ii) of Section 12 (C) of U.P. Panchayat Act, 1947 after hearing the parties expeditiously, preferably within a period of three months from today in accordance with law.

6. With the aforesaid direction, this writ petition is disposed of.

Order Date:28.1.2023

SB