Quashed

Yogendra Yadav v. State of U.P. Thru. Its Prin. Secy. Panchayti Raj Lko. and 7 Others

Allahabad HC14 Jun 2022/3674/2022

Case brief

AI extract

What is this about?

The High Court held that a writ petition is maintainable against an interim order directing vote recount, as the statutory revision remedy applies only to final decisions. It quashed the order for recounting passed without evidence and directed expeditious adjudication with opportunity for both parties to lead evidence.

What did the court decide?

Impugned order dated 02.06.2022 directing recount of votes was quashed. Sub-Divisional Magistrate directed to decide the election petition expeditiously after giving parties opportunity to lead eviden

Yogendra Yadav Vs State of U.P. Thru. Its Prin. Secy… — Election Law | Allahabad HC (2022)

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Court No. - 7

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Case :- WRIT - C No. - 3674 of 2022

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Petitioner :- Yogendra Yadav

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Respondent :- State Of U.P. Thru. Its Prin. Secy. Panchayti Raj Lko. And 7 Others Counsel for Petitioner :- J.B. Singh Counsel for Respondent :- C.S.C.,Anupam Bajpai,Pawan Kumar Dwivedi

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri J. B. Singh, learned counsel for the petitioner, Sri Indrajeet Shukla, learned Additional Chief Standing Counsel for the opposite party nos. 1 and 3 and Sri Virendra Misra, Advocate, who has filed caveat on behalf of opposite party no.5.

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The rest of the opposite parties have been impleaded as proforma respondents and there is no need to issue notice to them and notices to the remaining opposite parties is dispensed with.

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By means of the instant writ petition filed under Article 226 of Constitution of India, the petitioner has challenged the order dated 02.06.2022 passed by the Sub-Divisional Officer, Raibareli in Case No. 1617 of 2021, under Section 12-C of U.P. Panchayat Raj Act 1947, which was an election petition filed by the opposite party no.5.

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As per the narration made in the aforesaid order dated 02.06.2022, after filing of the Election Petition, notices were issued and the defendants nos. 1, 2 and 4 in the election petition filed their objections against the same and thereafter, the matter was posted for hearing and arguments.

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Without any evidence having been led in support of the

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Election Petition, the Sub Divisional Officer has proceeded to pass an order directing recounting of the ballot papers on 16.06.2022.

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The learned counsel for the opposite party no.5 has raised a preliminary objection against the maintainability of the writ petition on the ground that petitioner has got a statutory remedy if filing an Election Petition under Section 12-C (6) of the U.P. Panchayat Raj Act and, therefore, the writ petition is not maintainable and the petitioner should be relegated to the statutory alternative remedy.

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Replying to the aforesaid preliminary objection, the learned counsel for the petitioner has submitted that the remedy under Section 12-C (6) can be availed only against a final order deciding the Election Petition and it does not lie against an order for recounting of ballot papers. He has placed reliance on the judgements of this Court in Mohd. Mustafa Vs. U.P.Ziladhikari, Phoolpur Azamgarh and others [(20070 3 UPLBEC 2636], Amit Narain Rai Vs. State of U.P. and others [ (2012) 2 UPLBEC 1582] and Nirdosh Tyagi Vs. State of U.P. and others [ 2017 (136) RD 136].

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In the case of Mohd. Mustafa (supra), a Division Bench of this Court was deciding the following question:-

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"(I) Whether the revision under Section 12-C(6) shall lie only against a final order passed by Prescribed Authority deciding the election petition under Section 12-C(1) or a writ petition can be filed against an order of recount, which has been passed after deciding certain issues raised in the election petition?"

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The Division Bench gave the following answer to the aforesaid question:-

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" 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

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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 has 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."

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(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.

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(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. "

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Relying upon the decision in the case of Mohd. Mustafa (supra), in Nirdosh Tyagi (supra) this Court has held that:-

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" 6. In view of the fact that the final decision after recount is yet to be passed in the election petition by the Prescribed Authority/Sub Divisional Officer Syana, this Court is of the view that the writ petition against the order of recount would be maintainable and the petitioner is not to be relegated to avail the remedy of revision."

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Keeping in view the law laid down in the aforesaid cases, I find that revision under Section 12-C (6) can only be filed against final order passed in the Election Petition. In the present case, final relief prayed in the Election Petition is that recounting of votes be conducted and the petitioner (in the Election Petition) be declared as an elected on the post of Pradhan of Gram Panchayat Vijhlamau, the claim to which relief is yet to be finally adjudicated.

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Since, the final relief sought in the petition is for declaration of the election petitioner as having been elected, which relief yet to be granted and, therefore, the order passed for recounting of ballot papers is not a final order and the remedy for filing a revision under Section 12-C (6) of U.P. Panchayat Raj Act is not available to the petitioner at this stage. Therefore, the

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preliminary objection raised by learned counsel for the opposite party no.5 cannot be accepted and I proceed to consider the submissions made by learned counsel for the parties on merits of the case.

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The petitioner has submitted that polling for electing the Gram Pradhan of Gram Panchayat Vijhlamau, Block Dalmau, District Raibareli was held on 15.04.2021, votes were counted on 02.05.2021 and the petitioner was declared as elected and as such a certificate was issued to him.

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The opposite party no.5 challenged the election by filing an Election Petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 before the Sub Divisional Magistrate, Dalmau on 02.06.2022. The Sub Divisional Magistrate has passed the impugned order for recounting of votes. The aforesaid order has been passed only on the basis of the averments made in the petition and in the objections, without the parties having led evidence in support of their respective pleadings. The submission of the learned counsel for the petitioner is that recounting cannot be ordered on mere asking, without recording a finding that any irregularity had been committed during counting of the ballot papers.

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The learned counsel for the opposite party no.5 has opposed the prayer made in the writ petition but he could not raise any submission in response to the submission made by the learned counsel for the petitioner that recounting has been ordered without recording any finding.

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Keeping in view the aforesaid discussion, the impugned order dated 02.06.2022 passed by the Sub Divisional Magistrate Dalmau in Case No. 1617 of 2021, under Section 12-C of U.P. Panchayat Raj Act, 1947 is not sustainable in law and is,

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accordingly quashed.

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The Sub Divisional Magistrate, Dalmau is directed to proceed to decide the aforesaid petition under Section 12-C of U.P. Panchayat Raj Act expeditiously in accordance with law after giving opportunity to the respective parties to lead evidence in support their respective case.

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Order Date :- 14.6.2022/A.K.T.

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Digitally signed by ASHOK KUMAR TRIPATHI Date: 2022.06.14 19:33:37 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Yogendra Yadav v. State of U.P. Thru. Its Prin. Secy. Panchayti Raj Lko. and 7 Others

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Yogendra Yadav v. State of U.P. Thru. Its Prin. Secy. Panchayti Raj Lko. and 7 Others

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