KEHKASHAN (SMT.) Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard Mr. Siddharth Nandan, learned Counsel assisted by Mr. Imtiaz Husain, learned counsel for the petitioner, Mr. Ashok Khare, learned senior counsel assisted by Mr. Siddharth Khare, learned counsel for the respondent No. 4 and learned standing counsel for the Staterespondents.

(2.) Brief facts of the case are that petitioner was elected as Gram Pradhan of Gram Mohammadpur Kashi, Tehsil Chandausi, DistrictSambhal in the election held on 29/4/2021. Petitioner has secured 664 votes. Respondent No. 4 filed one election petition under Sec. 12C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "the Act") which was registered as Election Petition No. 04085 of 2021 (Computerized Case No. T202113740404085). Petitioner filed his written statement in the election petition. Issues were framed in the election petition. Respondent No. 2 vide impugned order dtd. 9/9/2024, allowed the election petition and order for recounting. Hence, this writ petition for following relief:

(3.) Learned counsel for the petitioner submitted that the impugned order dtd. 9/9/2024 has been passed in illegal and arbitrary manner. He further submitted that the impugned order is without jurisdiction coupled with the fact that the impugned order is self contradictory. He submitted that the election petition has been allowed and recounting is yet to take place, indicating that the election petition and the issues involved, have been prejudged without there being any material on record. He further submitted that the order for recounting cannot be passed unless there is any evidence which requires recounting. He also submitted that the order for recounting has been passed on conjecture and surmises, as such, the impugned order for recounting cannot be sustained. He submitted that after passing the impugned order, allowing the election petition, respondent No. 2/Prescribed Authority became functus officio, as such, the recounting is only a formality as after passing the impugned order, the Prescribed Authority cannot pass any order further. He submitted that order of recounting has been done even without ballet paper having been produced or seen by the Court. He placed reliance on the decisions of this Court in Matters Under Article 227 No. 31424 of 2024 (Parshuram v. State of U.P. and others), decided on 23/12/2022; in Writ C No. 14461 of 2024 (Smt. Asha Devi v. Prescribed Authority/Sub Divisional Magistrate and others), decided on 8/7/2024 and the case Athar Hussain v. Smt. Razda Begum and others 2017(135) RD 128 in support of his argument. Learned Counsel for petitioner further relied upon the judgments of Hon'ble Apex Court Udai Chand v. Surat Singh 2009 (1) SCC 170 as well as in Vadivelu v. Sunder Ram and others 2000 (8) SCC 355 on the point of recounting of the votes.