Allahabad High Court
Anil Kumar vs State Of U.P. And 5 Others on 1 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - C No. - 7108 of 2023
Petitioner :- Anil Kumar
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Manoj Yadav,Rakesh Kumar Tripathi
Counsel for Respondent :- C.S.C,A.B.N.Tripathi
Hon'ble Saurabh Shyam Shamshery,J.
Petitioner is an election petitioner who is aggrieved that Revisional Authority has erroneously allowed the revision filed by returned candidate and set aside an order passed by Prescribed Authority for recounting.
S/Sri Manoj Yadav and Rakesh Kumar Tripathi, learned counsel for petitioner has submitted that Revisional Authority ought to have considered only reasoning given by Prescribed Authority in support of the order of recounting, however, Revisional Authority has exceeded its jurisdiction and considered other arguments also i.e. whether election petition was properly filed or not and whether proper parties were arrayed as respondents.
Sri A.B.N. Tripathi, learned counsel for respondent No.6 has submitted that order passed by Prescribed Authority was in the teeth of judgment passed by coordinate Bench of this Court in Parshuram vs. State of U.P. and others (Matters under Article 227 No. 31424 of 2021) decided on 23.12.2022, followed by this Court in Sabiha Khatoon vs. Prescribed Authority/Upziladhikari and 8 others, Writ C No. 5784 of 2023 decided on 21.02.2023.
Learned counsel further placed reliance on a judgment of this Court in Smt. Sajida Vs. Sub Divisional Magistrate, Kairana, District Shamli and 15 others, Writ C No. 294 of 2023 decided on 11.01.2023 wherein it has been held that order of recounting cannot be passed to conduct a roving inquiry.
Heard learned counsel for parties and perused record.
The Prescribed Authority while passing the order for recounting has not fixed any further date to pass an order on the basis of outcome of recounting and mentioned that outcome of counting be placed on record, therefore, it appears that it was a final order.
Since an error has been erupted and order is in the teeth of judgment of coordinate Bench in Parshuram (supra) and followed by this Court in Sabiha Khatoon (supra), therefore, it could be a sole ground to set aside the order passed by Prescribed Authority.
Revisional Authority has also considered the other issues also, therefore, without disturbing the impugned order passed by Revisional Authority, this writ petition is disposed of with an observation that Prescribed Authority, while considering the matter a fresh, will not be influenced by observations made in the order passed by Revisional Authority and matter will be decided on the basis of evidence and material on record.
Prescribed Authority is directed to decide the election petition strictly in accordance with law expeditiously, preferably within a period of six months from today, after taking note of general mandamus issued by Division Bench of this Court in Writ C No. 14277 of 2016 decided on 31.03.2016 as well as Government Order dated 06.07.2016.
Order Date :- 1.3.2023
Nirmal Sinha
