Smt. Jahida Begam vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 9248 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- WRIT - C No. - 2432 of 2023
 

 
Petitioner :- Smt. Jahida Begam
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Panchayati Raj, Lko. And 8 Others
 
Counsel for Petitioner :- Amrendra Nath Tripathi,Ashish Raman Mishra
 
Counsel for Respondent :- C.S.C.,Atul Kumar Dubey,Sachin Srivastava,Sanjay Kumar Srivastava
 

 
Hon'ble Jaspreet Singh,J.

1. Heard Shri Amrendra Nath Tripathi, learned counsel for the petitioner along with Shri Ashish Raman Mishra, Advocate. Notice on behalf of the respondents No.1 and 2 has been accepted by the office of Chief Standing Counsel. Shri Atul Kumar Dubey, learned counsel has accepted notice for the respondents No.3 and 4. Shri Sachin Srivastava, learned counsel has put in appearance on behalf of the respondent No.5.

2. The instant petition has been preferred by the petitioner under Article 226 of the Constitution of India assailing the order dated 24.03.2023 passed by the Prescribed Authority/Sub Divisional Magistrate, Sadar, District Bahraich in Election Petition bearing Case No.3608/2021 (Computerized Case No.T202108150103608), whereby the Prescribed Authority while allowing the election petition has simultaneously passed an order of recounting to be held on 31.03.2023 at 11:00 AM and the petition has been consigned to record.

3. At the very outset, the learned counsel for the respondent No.5 has raised an objection regarding maintainability of the petition and it is submitted that in light of the provisions contained under Section 12-C(6) of the U.P. Panchayati Raj Act, 1947, the petitioner has an adequate and statutory remedy of filing a revision and for the aforesaid reasons, the instant petition is not maintainable.

4. It has further been submitted that the Prescribed Authority has taken note of the evidence and the material which was available on record and has recorded a finding that there are certain discrepancies and the same can only be resolved by taking recourse to recounting as such there can be no error found in the said order. Since, the election petition has been consigned to record, it would amount to final order and in the aforesaid circumstances, the petitioner has adequate and statutory remedy of filing a revision and for the aforesaid reasons, the writ petition may not be entertained.

5. Learned counsel for the petitioner while responding to the preliminary objection submits that the order of recounting is an interlocutory order by its nature and it can only be passed in aid of a final order. The Prescribed Authority has erred in exercise of its jurisdiction by passing the impugned order, the effect of which is that the recounting is to be held on 31.03.2023 and without even declaring the result of the election petition in the sense whether the election petition would stand allowed or dismissed, which has been postponed and the recounting has been ordered and once the petition has been consigned, the Prescribed Authority would become functus officio and the effect of the recounting shall also be futile as no order thereafter can be passed by the Prescribed Authority as he has consigned the file rendering him functus officio. Thus the order of recounting being interlocutory in nature, it is always assailable in exercise of writ jurisdiction before this Court and in support of his submissions, he placed the reliance of the decision of Division Bench of this Court in the case of Mohd. Mustafa v. U.P. Ziladhikari and others, 2007 SCC OnLine All 1564.

6. Learned counsel for the petitioner has also drawn attention of the Court to the decision of another Coordinate Bench of this Court in Rajesh Kumar v. District Judge, Shrawasti and others, in Writ Petition No.9609 (M/S) of 2018, decided on 12.04.2019. Another later decision of this Court in the case of Parshuram v. State of U.P. and others, 2023 (1) ADJ 693 [LB] has also been relied upon by the learned counsel for the petitioner and the thrust of the submission is that in all the aforesaid decisions, it has categorically been held that an order of recounting is interlocutory in nature and against such an order, the only remedy is of a writ petition.

7. It has also been urged by the learned counsel for the petitioner that the Prescribed Authority has exceeded its jurisdiction inasmuch as while passing the impugned order dated 24.03.2023, the election petition has been consigned to record, however, the date for recounting has been fixed for 31.03.2023 while the statutory provisions of filing a revision has limitation of 30 days as prescribed. If even prior to the expiry of the period of limitation, the recounting is to be held which in any case will make the remedy of revision redundant. Moreover, the petitioner cannot approach the revisional Court in light of the decision of the Division Bench in Mohd. Mustafa (supra) Rajesh Kumar (supra) and accordingly in the given circumstances, the petitioner has no other option but to file the instant writ petition.

8. The Court has heard learned counsel for the parties and also has given anxious consideration to the submissions including the decisions cited by the learned counsel for the petitioner at the bar.

9. At the outset, noticing the decision of the Division Bench of this Court in Mohd. Mustafa (supra), it would indicate that the matter had been referred to the Division Bench of this Court in light of the conflicting decision of the learned Single Judges regarding the maintainability of a writ petition qua order passed for recounting in election petition under Section 12-C of the U.P. Panchayati Raj Act, 1947.

10. Considering provisions of the U.P. Panchayati Raj Act, 1947, the Division Bench noticed that the language used in Section 12-C and Section 12-C(6) of the U.P. Panchayati Raj Act, 1947 would indicate that the revision is maintainable only against an order and not against any order or interlocutory order.

11. Elaborating the discussions on the aforesaid aspect, it was held by the Division Bench that an order would mean an order which is passed finally and in any case an order of recounting is always in aid of passing a final order, hence, it is an interlocutory order and for the said reason only a writ petition is maintainable but against a final order statutory revision is maintainable and is the remedy. For convenience, Paragraph-25 of the aforesaid report of Mohd. Mustafa (supra) is being reproduced hereinafter:-

"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 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 in 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 Vs. State of U.P. & Ors., (2004) 5 AWC 4088 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."

12. Noticing the other decision cited by the learned counsel for the petitioner in the case of Rajesh Kumar (supra), it would indicate that in the said case, the Prescribed Authority had framed certain issues and while passing an order of recounting, it has decided the issue of limitation holding that the election petition was barred. A plea of Order VII Rule 11 CPC was also decided. In the aforesaid backdrop, the revision had been preferred before the District Judge, however, the matter came to be assailed before this Court and taking note of the decision in the case of Mohd. Mustafa (supra), a Coordinate Bench of this Court found that though certain issues had been decided but it was not decided as to whether the election petition is allowed or is it to be rejected and that final outcome could have been the utlimate result which was not present, hence the revision which was preferred was found to be not maintainable and accordingly, the writ petition was allowed.

13. Having taken note of the aforesaid decision of Rajesh Kumar (supra), this Court finds that the same is not applicable in the instant case for the reasons that here all the issues No.1 to 8 have been decided by the Prescribed Authority. A clear finding has been given insofar as the Issues No.2, 3 and 5 that there are discrepancies insofar as the manner in which the authorities have exercised their powers. It is also recorded that the petitioner of the election petition is entitled to the relief claimed and while dealing with the Issue No.3, it has held that the election dated 02.05.2021 is liable to be cancelled. In light of the aforesaid what this Court finds is that the Prescribed Authority has clearly decided all the issues and it has in effect given finality to the outcome of the election petition. Even while passing the operative portion of the order, it opens with the lines "Yachini dwara prastut yachika Tritariya Panchayat Nirvachan Varsh 2021 Gram Pradhan Ped Gram Panchayat Lakauna Vikas Khand Chittora Tehsil Sadar Bahraich Zilla Bahraich Swikar Ki Jaati Hai". It clearly indicates that election petition is allowed and thereafter it has further given certain directions for recounting. Thus, the decision of this Court in Rajesh Kumar (supra) does not aid the petitioner.

14. This Court also takes note of the aforesaid fact that certain issues which have direct bearing on the petition have been decided. It may be one thing that the issues may not have been appropriately dealt with or even as per the learned counsel for the petitioner, the findings may have been recorded erroneously without adequate evidence, but the fact remains that the issues have been finally decided and whether the issues have been correctly or incorrectly decided is a matter of merit which is to be considered by the appropriate authority.

15. It will also be relevant to notice at this stage that the right to challenge the election is not a right available in common law. It is the statutory right which is conferred by a particular statute. The election under challenge has been assailed and in term of Section 12-C of the U.P. Panchayati Raj Act, 1947, the same Act itself provides for a complete remedy of filing a revision against the final order. The provisions of Section 12-C(6) of the U.P. Panchayati Raj Act, 1947 read as under:-

"12-C(6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely-

(a) that the prescribed authority has exercised a jurisdiction not vested in it by law;

(b) that the prescribed authority has failed to exercise a jurisdiction so vested;

(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity."

16. From a bare perusal of the aforesaid provisions, it would indicate that an aggrieved party has a right of filing a revision before the District Judge pointing out the illegalities committed by the Prescribed Authority.

17. Having taking note of the aforesaid, this Court finds that once the issues No.2, 3 and 5 have been decided which has an effect of allowing the election petition and the petition has been allowed and consigned to record, the validity of the order of recounting if not in accordance with law can also be assailed in revision as it would be implicit in a challenge to the final order if requisite grounds are taken in this regard and established that the order of recounting cannot be justified. Accordingly, in case if the petitioner finds herself aggrieved against such an exercise of jurisdiction, she always has a remedy of filing a revision in terms of Section 12-C(6) of the U.P. Panchayati Raj Act, 1947.

18. Now, considering the decision of this Court in Parshuram (supra), it would be indicate that the issues of alternate remedy was not an issue directly, thus, even though it had been raised in an ancillary fashion, but the Court did not consider the issue for the reason that the said writ petition had been entertained a year ago and an interim order was already subsisting, hence, at the time of final hearing, this Court did not deem fit to consider the plea but decided the petition on merits. This Court finds that the said decision may not be binding authority insofar as the issue of maintainability is concerned. Here, the issue of maintainability has been raised at the preliminary stage of admission itself, hence the case of Parshuram (supra) is also no help to the petitioner.

19. Learned counsel for the petitioner has also relied upon an interim order passed by this Court in Noor Jahan v. Umesh Chandra and 5 others, in WRIT-C No.6272 of 2022, dated 13.09.2022, whereby a Coordinate Bench of this Court has held that a writ petition to be maintainable, however, a bare perusal of the aforesaid order would indicate that the said petition was assailing an order of recounting wherein the entire election petition had not been decided and it was still pending before the Prescribed Authority. For the aforesaid reasons, the said decision also does not have any material bearing to the instant case and in any case in light of the decision of Mohd. Mustafa (supra), the petition was rightly entertained.

20. Another submission of the learned counsel for the petitioner that while dealing with the issues only a prima-facie finding has been recorded and thus the order is not final does not find favour with this Court as upon reading the entire order impugned it would reveal that all issues No.1 to 8 have been decided and finally the petition has been allowed and consigned to record.

21. Having considered the aforesaid aspect in detail and taking a holistic view, this Court is of the clear opinion that since the right to challenge the election is a statutory right and any person aggrieved by final order has a right of filing a revision as also held by the Division Bench of this Court in Mohd. Mustafa (supra) and taking note of the impugned order whereby all issues have been finally decided and the fate of the petition has been sealed and the election petition has been allowed. Consequently, this Court is of the firm opinion that the petitioner has a remedy of filing a statutory revision in terms of Section 12-C(6) of the U.P. Panchayati Raj Act, 1947.

22. However, there is another way to look at the problem inasmuch as on one hand, the petition has been finally decided and the Prescribed Authority has also simultaneously passed an order of recounting which is held on 31.03.2023 at 11:00 AM. The petitioner has a statutory remedy of filing a revision and the period of limitation prescribed is 30 days and even before the expiry of the statutory period, the date for recounting has been fixed.

23. It is in view of the aforesaid, this Court though of the opinion that the writ petition is not maintainable in view of the statutory remedy of a revision, but nevertheless as the impugned order has been passed on 24.03.2023 and the date for recounting has been fixed as 31.03.2023 and in the intervening period, there is also a public holiday on 30.03.2023. Accordingly, the petitioner shall be at liberty to file a revision along with an application for interim relief before the Revisional Authority. In case such a revision is filed within ten days from today, till the time the application for interim relief is considered by the revisional Court, till then, the recounting shall go on on the date and time so fixed by the Prescribed Authority, but the result shall not be declared which shall be subject to the orders passed by the revisional Court on the application for interim relief filed by the petitioner in the said revision.

24. Before parting, it is clarified that the Court has not expressed its opinion on merits of the dispute as the same is yet to be considered by the reivisonal Court and any observation made in this order is only for the purposes of testing the submissions of the parties in context with the availability of the statutory remedy.

25. For the foregoing reason, the petition is dismissed only on the ground of availability of alternate remedy. In the facts and circumstances, there shall be no order as to cost.

Order Date :- 29.03.2023

Rakesh/-