Athar Hussain vs Smt. Razda Begum

Manoj Misra, J.—Heard Sri Irshad Ali for the petitioner; Sri M. Islam for the respondent No. 1; learned Standing Counsel for the respondents 5, 6 and 7 and perused the record.

An election petition was filed by the petitioner under Section 12-C of the U.P. Panchayat Raj Act, 1947 challenging the election of the respondent No. 1. One of the alternative reliefs claimed in the election petition was that the Court should call for the record and direct for recount of the votes. It appears that on the basis of the pleadings exchanged between the parties as many as 12 issues were framed for determination. By order dated 19th January, 2017, the Prescribed Authority decided all 12 issues in favour of the election petitioner and directed the Assistant Election Officer (Panchasthani), Amroha to produce the sealed votes and recount the same on a particular date. Against the order dated 19th January, 2017, the returned candidate filed a revision under Section 12-C (6) of the Act in the Court of District Judge, Amroha. By the impugned order dated 3rd February, 2017, the District Judge, Amroha entertained the revision and stayed the operation of the order dated 19th January, 2017.

Challenging the order dated 3rd February, 2017 the present petition has been filed. The main ground on which the impugned order has been challenged is that revision against the order of recount was not maintainable because the same is an interlocutory order against which no revision was maintainable and, therefore, the order passed by the District Judge, Amroha is liable to be set aside. In support of the aforesaid contention, learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court in the case of Mohd. Mustafa v. Up - Ziladhikari, Phoolpur, Azamgarh and others : (2007) 3 UPLBEC 2636, wherein it has been held that a revision under Section 12-C (6) of the U.P. Panchayat Raj Act, 1947 shall lie only against a final order passed by the Prescribed Authority deciding the election petition and not against any interlocutory order or order of recount of votes passed by the Prescribed Authority. Learned counsel for the petitioner has also placed reliance on a decision of this Court in Writ C No.12408 of 2006, dated 29th April, 2016, which followed the judgement of Division Bench in Mohd. Mustafa (supra).

Sri M. Islam, learned counsel for the respondent No. 1, submitted that by order dated 19th January, 2017, the Prescribed Authority had finally decided the election petition by deciding all issues and the order of recount was granted by way of final relief therefore revision against the said order was maintainable.

I have considered the submissions of learned counsel for the parties and have perused the authority cited.

The judgement in Mohd. Mustafa''s case (supra) proceeded on the premise that the Election Tribunal while passing the order of recount had not adjudicated the issues framed and, therefore, the order of recount was interlocutory in nature. The above position becomes clear from a bare reading of paragraphs 24 and 25 of the judgement which is extracted herein below :

"24. The order impugned in the writ petition cannot be held to have disposed of the election application for the reason that the Election Tribunal framed following three issues :

(1) Whether the counting in the election on the post of Pradhan of village Handia was conducted in accordance with law ?

(2) Whether the agents of the applicant in election application, were forcibly removed from the place of counting and the votes cast in favour of the election applicant had been mixed up with the votes of the returned candidate (present petitioner) and on the basis of which opposite party No.1 (present petitioner) was declared elected ? And

(3) Whether on the facts and circumstances of the case, the recounting of votes is permissible and the election had been held in accordance with law ?

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 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."

In the instant case, the Prescribed Authority (Sub-Divisional Magistrate) had framed as many as 12 issues for adjudication in the election petition. By the order dated 19th January, 2017 he proceeded to decide all the 12 issues in favour of the election petitioner as would be apparent from the second last paragraph of the order dated 19th January, 2017. Thereafter, the Prescribed Authority proceeded to order as follows : ''Uprokt wad binduon ki vivechna evam nistaran ke uprant mai is niskarsh par pahunchti hun ki yachi ki yachika anshik rup se swikar ki jane yogya hai''. In the operative portion, the Prescribed Authority directed as follows ''Astu yachi ki yachika anshik rup se swikar ki jati hai. Sahayak Nirvachan Adhikar (Panchasthani), Amroha ko nirdesit kiya jata hai ki wah dinank 04.02.2017 ko gram pachayat Sinaura Jalalabad, Nyay Panchayat Patei Khalsa, Vikas Khand Joya tehsil, Amroha ke sealed mat patra, maton ki punargadna hetu adhohastachhri ke nyayalaya me pratah 10.00 beje prastut kere tatha is hetu samuchit matgadna staff ki tainati bhi sunischit kere. Prabhari Nirikshak, Kotwali Amroha Nagar ko ukt dinank ko kanun evam shanti vyawastha banaye rakhne hetu samuchit police bal ki tainati hetu patra bhi presit kiya jaye. Aadesh ki prati krinyawayan hetu sahayak jila nirvachan adhikar (Panchasthani), Amroha tatha prabhai nirikshak, Kotwali Amroha Nagar ko bheji jae''.

From the aforesaid portion of the order it is clear that the Prescribed Authority (Sub-Divisional Magistrate) had decided all the issues arising in the election petition, after considering all the evidence led by the parties, in favour of the election petitioner and has partly allowed the election petition. Under the circumstances, it could not be said that the order dated 19th January, 2017 was an interlocutory order. Once the Election Tribunal decides all the issues and declares election petition as partly allowed and as a consequence thereof directs for recount, the order of recount does not remain an interlocutory order and, therefore is amenable to the revisional jurisdiction.

In view of the discussion made above, this Court finds that in the facts of the case, the order of the Election Tribunal was not an interlocutory order therefore revision against the same is maintainable. Accordingly, there is no good reason to interfere with the order passed by the Court below. However, considering that election petition and the revision emanating therefrom must be decided with utmost expedition, this petition is disposed of with an observation that the learned District Judge, Amroha will proceed with the revision expeditiously and would endeavour to decide the same, in accordance with law, preferably within a period of three months from the date of filing certified copy of this order.