Allahabad High Court
Poonam Dwivedi vs Sub Divisional Magistrate, ... on 5 May, 2023
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:31620
Court No. - 6
Case :- WRIT - C No. - 2545 of 2023
Petitioner :- Poonam Dwivedi
Respondent :- Sub Divisional Magistrate, Tehsil Gauriganj, Amethi And Others
Counsel for Petitioner :- Vipul Tripathi,Sharad Pathak
Counsel for Respondent :- C.S.C.,Anand Mani Tripathi
Hon'ble Rajnish Kumar,J.
1. Heard Sri Sharad Pathak, learned counsel for the petitioner and Sri A.M.Tripathi, learned counsel for the respondent no.2. Learned Standing Counsel is present for the respondent nos.1 and 14..
2. This petition has been filed challenging the order dated 10.03.2023 passed in Panchayat Revision No.17/2023 by District Judge, Sultanpur and the consequential order dated 20.03.2023 passed by the respondent no.14.
3. The petitioner alongwith the respondent nos.2 to 11 contested the election for the post of Gram Pradhan of Village Panchayat Kalyanpur, Tehsil Gauriganj, District Amethi. The voting was done on 26.04.2021. The counting of votes was done on 02.05.2021. The result was declared on 03.05.2021, in which the respondent no.2 was declared elected. Being aggrieved with the counting and bungling made in favour of the respondent no.2, the petitioner filed Election Petition No.2203 of 2021. After completion of pleadings and evidence, the order of recounting was passed by the prescribed authority on 02.01.2023. The said order was challenged by the respondent no.2 in revision before the district judge. The revision was dismissed being not maintainable as it was against the interlocutory order. The respondent no.2 challenged the order passed in revision and the order of recounting dated 02.01.2023 in Writ C No.263 of 2023. In the meantime, the recounting was done on 06.01.2023, in which the petitioner got the highest number of votes i.e. 329 and one Deepika Singh got 328 votes and the respondent no.2 got 324 votes, as such, the petitioner came at first position and elected. Based on the recounting, by means of the order dated 09.01.2023, election petition was decided in favour of the petitioner. Thereafter the writ petition filed before this Court was got dismissed by the respondent no.2 by means of the order dated 13.01.2023. Thereafter the revision was filed by the respondent no.2 against the order dated 02.01.2023 and final order dated 09.01.2023. The revision has been allowed by means of the order dated 10.03.2023. In pursuance thereof, the opposite party no.14 has passed an order on 20.03.2023. Hence the present writ petition has been filed challenging both the orders.
4. Learned counsel for the petitioner submits that the petitioner had filed Writ C No.263 of 2023 challenging the order dated 05.01.2023 passed in revision and order of recounting dated 02.01.2023. The writ petition was dismissed on the statement of learned counsel for the respondent no.2 that in view of the subsequent developments no cause of action survives and accordingly the petitioner does not wish to pursue the matter any further but neither the respondent no.2 had sought any liberty nor she was granted liberty to challenge the order dated 02.01.2023 of recounting afresh, therefore the said order could not have been challenged in the revision but without considering it, the order dated 02.01.2023 challenged by the respondent no.2 in revision has been examined and quashed by means of the impugned order dated 13.03.2023, therefore it is not sustainable in the eyes of law and is liable to be quashed. He further submits that the learned District Judge has also not considered that in the recounting, which was made pursuant to the order passed by the prescribed authority, the petitioner has got the maximum number of votes and is at serial no.1 and the respondent no.2 is at serial no.3.
5. Learned counsel for the petitioner further submits that the order of recounting of votes was passed in view of the no objection of the respondent no.2 in his evidence, therefore there was no error in it. He further submits that the respondent no.2 had participated in the recounting without any demur, therefore he cannot challenge the same. He also submits that after the order passed by the prescribed authority on 09.01.2023, the petitioner was declared elected and he also took the oath of Village Pradhan on 23.01.2023.
6. He further submits that the respondent no.2 had filed revision, in which, the office had reported a caveat of the petitioner but under the influence of the respondent no.2 that part in the report was deleted by cutting it, consequently, on the same date i.e. 23.01.2023 an interim order was passed in the revision without affording opportunity to the petitioner, whereas since the caveat of the petitioner was already lodged, the interim order could not have been passed without hearing the petitioner.
7. Learned counsel for the petitioner placed reliance on Kaushlesh Vikram versus IIIrd A.D.J. Allahabad and others;1998 SCC Online All 1396, Shobh Nath versus State of U.P. and others; 1998 SCC Online All 751, Bhagawati versus State of U .P. and others; 2004 SCC Online All 1444, Harmaya versus State of U.P. and others; 2017 SCC Online All 3332, Jaibir Singh Nagar versus Yamuna Express Way Industrial Development Authority; 2016 SCC Online All 3541, Chandra Pal Singh versus State of U.P. and others; 1998 SCC Online 238, Sandhya Educational Society and another versus Union of India and others; (2014) 7 SCC Page 701, Central Bank of India and others versus Dragendra Singh Jadaun;(2022) 8SCC 378 AND judgment and order dated 12.04.2023 passed by this Court in the case of Parmeshwar Prasad versus Incharge District Judge Bahraich and 9 others, Writ C No.2857 of 2023.
8. Learned counsel for the respondent no.2 submits that since final order was passed on 09.01.2023, therefore the writ petition filed by the respondent no.2 was withdrawn, which was dismissed accordingly by this Court, therefore there was no requirement of any liberty and since the order of recounting has merged in the final order passed on 09.01.2023, therefore the respondent no.2 had rightly challenged the order dated 02.01.2023 alongwith the order dated 09.01.2023. He further submits that order of recounting was passed without considering the grounds raised by the parties and without assigning any reasons merely on the ground that there was no objection by the either side, whereas the respondent no 2 had taken specific objection in his written statement and merely because the respondent no.2 had stated in his cross examination that in case recounting is done he has no objection, it cannot be a ground for direction for recounting, particularly, when a specific issue on this point was made i.e. issue no.2. He further submits that respondent no.2 had raised several objections during the time of recounting and also in the revision but the same have not been considered while passing the revisional order. However,he submits that since there is difference in the counting made initially and the second time under the orders passed in revision,therefore to give quietus to the dispute of number of votes polled in favour of candidates, third time recounting may be directed to be made in presence of some independent officers and to settle the controversy finally, for which the respondent no.2 accords her consent.
8. The matter requires consideration.
9. Issue notice to the respondent nos.2 to 13 returnable at an early date.
10. Steps to be taken within a week.
11. List with service report on 04.07.2023.
12. Till the next date of listing, the order dated 10.03.2023 passed in Panchayat Revision No.17/2023 by District Judge, Sultanpur and the consequential order dated 20.03.2023 passed by the respondent no.14 shall remain stayed.
Order Date :- 5.5.2023
Akanksha
