# Kusum Mishra v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-21
- **Case number:** Writ C No. 4999 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusum-mishra-v-state-of-u-p-ors-50493
- **Pages:** 17

## Headnote

Civil Law-The Constitution of India-1950Article 226 - The Uttar Pradesh Panchayat
Raj
Act,
1947-Section
12-C---
The
Prescribed Authority has passed the 'final order',
which is impugned in this petition, whereby, he
allowed the election petition and directed for recounting of votes with a further direction to the
effect that after necessary action, the matter be
consigned to record--- The order, in issue, is
covered under the expression 'final order' and
being so revision would be maintainable
under Section 12-C(6) of the Act--- Liberty
granted
to
the
petitioner
to
approach
Revisional
Authority,
as
provided
under
Section 12-C(6) of the Act--- If the petitioner
prefers the revision within a period of 30
days, which is the limitation prescribed for
preferring the revision assailing the order
passed by Prescribed Authority, the same
shall be decided on merits. (Para 29-31)

Petition disposed of. (E-15)

List of Cases cited:

## Text

_Characters 0–39,919 of 59,119. This is a partial read: ask again with offset=39919 for what follows._

1032 INDIAN LAW REPORTS ALLAHABAD SERIES
those pertaining to insufficiency of stamp
duty and decree pertaining to movable
property by the award.

22. In view of aforesaid, the Petition
is partly allowed to aforesaid extent. The
parties to bear their own costs.

23. The executing court is also
directed to expedite hearing of the
execution application in conformity with
directions issued by Hon'ble the Supreme
Court with regard to expeditious disposal
of
proceedings
for
enforcement
of
arbitration awards.
----------
(2023) 7 ILRA 1032
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ C No. 4999 of 2023

Kusum Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manoj Kumar Mishra, Prabhat Kumar Ojha,
Vinay Kumar

Counsel for the Respondents:
C.S.C., Atul Kumar Dubey, Dr. Pooja Singh,
Jay Prakash Singh Vats

Civil Law-The Constitution of India-1950Article 226 - The Uttar Pradesh Panchayat
Raj
Act,
1947-Section
12-C---
The
Prescribed Authority has passed the 'final order',
which is impugned in this petition, whereby, he
allowed the election petition and directed for recounting of votes with a further direction to the
effect that after necessary action, the matter be
consigned to record--- The order, in issue, is
covered under the expression 'final order' and
being so revision would be maintainable
under Section 12-C(6) of the Act--- Liberty
granted
to
the
petitioner
to
approach
Revisional
Authority,
as
provided
under
Section 12-C(6) of the Act--- If the petitioner
prefers the revision within a period of 30
days, which is the limitation prescribed for
preferring the revision assailing the order
passed by Prescribed Authority, the same
shall be decided on merits. (Para 29-31)

Petition disposed of. (E-15)

List of Cases cited:

1. Dori Lal Vs St. of U.P. & ors. 2017 SCC
OnLine All 3220

2. (Rajesh Kumar Vs Distt Judge Shrawasti &
ors.) 2019 SCC OnLine All 4851

3. Writ Petition No.18420 (M/S) of 2019 (Kamal
Kumar Dhuriya Vs Prescribed Authority, S.D.M.,
Lalganj, Dist.- Paratapgarh And Ors.)

4. Matters Under Article 227 No.31424 of 2021
(Parshuram Vs St. of U.P. & Others)

5. Writ - C No.33777 of 2022 Manoj Devi Vs St.
of U.P. & ors.

6. Sajida Vs Sub Divisional Magistrate & Others;
reported in 2023 SCC OnLine All 11

7. Mohd. Mustafa Vs Up Ziladhikari; 2007 SCC
OnLine All 1564

8. Orissa Administrative Tribunal Bar Association
Vs U.O.I. & ors.; 2023 SCC OnLine SC 309

9. Hari Vishnu Kamath Vs Syed Ahmad Ishaque
& ors. AIR 1955 SC 233,

10.
Dana
Rajeshwari
Vs
Bodavula
Hanumayamma & ors.; AIR 1997 SC 1541

11. Virender Kumar Rai & ors. Vs U.O.I. & ors.;
(2004) 13 SCC 463

12. Trai Foods Ltd. Vs National Insurance Co. &
ors.; (2004) 13 SCC 656
7 All. Kusum Mishra Vs. State of U.P. & Ors.
1033
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard.

2. Present petition has been filed for
the following main reliefs:-

"(i) Issue a writ, order or
direction in the nature of Certiorari
quashing
the
impugned
order
dated
05.06.2023 by opposite party No.2 i.e.
Prescribed
Authority/Sub
Divisional
Officer, Lalganj, District-Pratapgarh in
Case No.3146/2021 (Computerized Case
No.T2021102570203146), as Contained as
Annexure No.1, in the interest of justice.

(ii) Issue a writ, order or
direction in the nature of Mandamus
commanding and directing the opposite
parties not to interfere in the functioning of
the Petitioner as validly elected Gram
Pradhan of Gram Panchayat-Naubasta,
Block Lakshmanpur, District-Pratapgarh,
in the interest of justice."

3. At the very outset, learned counsel
appearing for the side opposite stated that the
present petition, challenging the order dated
05.06.2023 passed by the opposite party No.2Prescribed Authority/Sub Divisional Officer,
Lalganj,
District-Pratapgarh,
in
the
proceedings instituted under Section 12-C of
U.P. Panchayat Raj Act, 1947 (in short "Act of
1947"), registered as Case No.3146 of 2021,
Computerized Case No.T2021102570203146,
whereby, the proceedings instituted under
Section 12-C of the Act of 1947 have been
finally concluded with a direction for
recounting of votes, is not maintainable in
view of statutory remedy available to the
petitioner under Section 12-C of the Act of
1947. In other words, by the impugned order
dated 05.06.2023 the opposite party No.2 has
finally decided the case instituted under
Section 12-C of the Act of 1947, as such, the
statutory remedy by way of filing of revision,
as provided under Section 12-C(6) of the Act
of 1947, would lie against the impugned
order dated 05.06.2023.

4. Being relevant, operative portion of
the order impugned dated 05.06.2023 is
extracted herein:-

"उपिोक्त कववेचिा एवं याकचकाकती द्वािा प्रस्तुत कवकि
व्यवस्था के आिोक में याचीकती द्वािा प्रस्तुत याकचका स्वीकाि की
जाती है। याकचका में वकर्सत तथ्यों के आिाि पि पुिमसतगर्िा ककये
जािे का आदेश पारित ककया जाता है। पिसमतगर्िा कदिांक
21.06.2023 को धयायािय उपकजिाकिकािी िािगंज में सम्पधि
हो। आदेश की प्रकत मुख्य कवकास अकिकािी प्रतापगढ को प्रभािी
अकिकािी पंच स्थािीय चुिाव प्रतापगढ सहायक कजिा किवासचि
अकिकािी पंच स्थािीय चुिाव प्रतापगढ को पुिमसतगर्िा हेतु वांकछत
अकभिेखों को उपिब्ि किािे एवं कजिा पंचायत िाज अकिकािी
प्रतापगढ को सूचिाथस हेतु प्रेकित ककया जाय। आदेश की एक प्रकत
खण्ड कवकास अकिकािी िक्ष्मर्पुि को अपिे साथ पांच गर्क के साथ
उपकस्थत िहकि पुिमसतगर्िा में सहयोग कििे एवं प्रभािी कििीक्षक
िािगंज को उक्त समय आवश्यक सुिक्षा व्यवस्था सुकिकित कििे हेतु
प्रेकित। वाद आवश्यक कायसवाही पत्राविी दाकखि दफ्ति हो। "

5. It appears from the operative portion
of the impugned order dated 05.06.2023,
quoted above, that the Prescribed Authority
vide order 05.06.2023 allowed the election
petition and directed for recounting of votes
and also directed that after necessary action
the matter be consigned to record.

6. Whereas the final relief which can
be granted in election petition filed under
Section 12-C of the Act of 1947, reflects
from Section 12-C(4)(ii) which indicates
that the Prescribed Authority can set aside
the election or declare the election to be
void or declare the applicant to be duly
elected or any other relief can be granted to
the petitioner.

7. In the instant case, a perusal of the
order impugned dated 05.06.2023 would
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
indicate that the Prescribed Authority, while
passing the order has neither set aside the
election nor declared the election to be void
nor declared the concerned to be duly
elected rather has directed for re-counting
of votes and allowed the election petition.

8. In response to the objection
regarding maintainability of the present
petition, Sri Manoj Kumar Mishra, learned
counsel for the petitioner alongwith Sri
Prabhat Kumar Ojha, Advocate and Sri
Vinay Kumar, Advocate, submitted that the
order of recounting of votes is an order of
interlocutory in nature, as such, the present
petition would be maintainable.

9. Further submitted that the order of
recounting of votes on merits is completely
mis-conceived, as such, considering the
nature of impugned order dated 05.06.2023
and the observations made in the impugned
order, the present petition is liable to be
entertained.

10. On the issue of maintainability of
present petition, learned counsel for the
petitioner placed reliance on the following
judgments:-

(a) Writ - C No.1223 of 2017
(Dori Lal vs. State of U.P. & 3 Others)
2017 SCC OnLine All 3220;

(b) Writ Petition No.9609 (M/S)
of 2018 (Rajesh Kumar vs. Distt Judge
Shrawasti & Ors.) 2019 SCC OnLine All
4851;

(c)
Writ
Petition
No.18420
(M/S) of 2019 (Kamal Kumar Dhuriya
vs.
Prescribed
Authority,
S.D.M.,
Lalganj, Dist.-Paratapgarh And Ors.);

(d) Matters Under Article 227
No.31424 of 2021 (Parshuram vs. State
of U.P. & Others); Writ - C No.33777 of
2022 (Manoj Devi vs. State of U.P. & 20
Others);

(e) Sajida vs. Sub Divisional
Magistrate & Others; reported in 2023
SCC OnLine All 11.

11. Relevant paras of the judgment
passed by this Court in the case of Sajida
(Supra) on reproduction read as under:-

"13. It is well settled that it is
important to maintain secrecy of ballot
which is sacrosanct and it should not be
allowed to be violated on frivolous, vague
and indefinite allegations and before
inspection is allowed, the allegations made
against elected candidate must be clear
and specific and must be supported by
adequate statements of material facts (See,
Bhabhi v. Sheo Govind, (1976) 1 SCC 687 :
AIR 1975 SC 2117 and Ram Sewak Yadav v.
Hussain Kamil Kidwai, AIR 1964 SC
1249). The discretion conferred on Courts
should be not exercised in such a way so as
to enable election petitioner to indulge in a
roving enquiry in order to fish out
materials for declaring election to be void.

14. Election petitioner has made
a assertion in election petition that vote
given in her favour were placed in the
bundle of votes given in favour of returned
candidate and during counting when
election petitioner came to know that
number of votes given in her favour are 990
and in favour of elected candidate are 993
and number of rejected votes are 157, she
raised an objection and prayed for
recounting but Election Officer has not
paid attention. A further assertion has been
made that bundle of 157 rejected votes
included some valid votes also.

17. It is settled that order of
recounting cannot be passed only for the
sake of it and on the basis of vague
allegation
without
specifying
any
7 All. Kusum Mishra Vs. State of U.P. & Ors.
1035
particular irregularity in counting as well
as how it would affect election result
materially. In the present case in the body
of election petition vague assertions have
been made regarding illegal rejection of
valid votes which are not substantiated
either in examination of election petitioner
or otherwise on the basis of record
available. Parties have to take proper
pleadings by adducing evidence that by
particular irregularity of illegality result of
election has been materially affected. There
is no dispute to the settled legal proposition
that as a rule relief not founded in
pleadings should not be granted [See,
Arikala Narasa Reddy (supra)]."

12. Relevant paras of the judgment
passed by this Court in the case of Manoj
Devi (Supra) on reproduction read as
under:-

"9. Before entering into merit of
case, there is a hurdle which has to be
overcome. The Prescribed Authority while
passing
order
dated
05.11.2022
has
accepted the election petition, i.e., it has
granted final relief even before actual
recounting could take place and, therefore,
it become a functus officio. In this regard
few paragraphs of the judgment passed by
Coordinate
Bench
of
this
Court
in
Parshuram vs. State of U.P. and others
(Matters Under Article 227 No. 31424 of
2021), decided on 23.12.2022 are relevant
and reproduced as under:

"6. The legal question which has
arisen in the instant petition is whether the
Prescribed Authority has erred in law in
directing for re-counting of votes while
finally deciding the election petition
inasmuch as to whether the Prescribed
Authority could pass any further order on
receipt of the result of the re-counting of
votes once the election petition had been
finally decided and consequently the
Prescribed Authority became ''functus
officio'?"

"36. As already indicated above,
the Apex Court in the case of Hari Vishnu
Kamath (supra) has held that after the
Election Tribunal finally pronounces its
decision, it becomes 'functus officio'
meaning thereby that it would not have any
power to pass any order in the election
petition after it pronounces its order. In the
instant case what the Election Tribunal
headed by the Prescribed Authority has
done is that it has finally allowed the
election petition and has directed for a
recounting. Even if the result of recounting
of the votes is to be either way, the Election
Tribunal having become 'functus officio'
after
pronouncement
of
its
decision/allowing the petition, it would not
be able to pass any further orders. As such
keeping in view the settled proposition of
law, Article 243-O of the Constitution of
India categorically providing that only by
means of an election petition the election to
the Panchayat can be called in question
and the election petition having been
finally
decided,
the
Prescribed
Authority/Election Tribunal, thus became
functus officio and cannot pass any further
orders in the matter. As such, the impugned
order has to be treated as a final order in
all respects and accordingly it is apparent
that the Prescribed Authority has passed a
patently perverse order and has failed to
exercise jurisdiction vested in him i.e. of
finally deciding an election petition either
way.

37 Keeping in view the aforesaid
discussion, the legal question which has
arisen in the instant petition is answered
below:-

The Prescribed Authority on
finally
deciding
an
election
petition
becomes functus officio and can not pass
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
any order subsequent thereto even if the
election petition has been decided finally
calling for the re-counting of votes."

13. In the case of Kamal Kumar
Dhuriya (Supra), the Prescribed Authority
passed the order of recounting of electoral
colleges/votes and disposed of the election
petition without setting aside the election or
declaring the election to be void or
declaring the election petitioner to be duly
elected and after considering the same the
preliminary
objection
regarding
maintainability of the petition was decided
by the Co-ordinate Bench of this Court in
following paragraphs:-

"As regards the preliminary
objection of Shri Pathak this issue has
been settled by a Division Bench of this
Court in the case of Mohd. Mustafa Vs.
Up Ziladhikari, Phoolpur, Azamgarh and
Ors. reported in 2007 (103) RD 282. The
said decision has also been followed
recently by this very Bench while
rendering a judgment on 12.04.2019 in
Writ Petition No. 9609(M/S) of 2018.
According to the said decision an order
of recount being an interlocutory order
which
does
not
dispose
of
the
proceedings finally no revision lies
under Section 12-C(6) of the Act, 1947.
The preliminary objection of Shri Pathak
is, thus, rejected."

14. In the case of Rajesh Kumar
(Supra), Co-ordinate Bench of this Court
dealt with the petition which was filed with
the prayer that the election result declared
on 13.12.2015 be declared as void ab-initio
and a nullity and an order of recounting be
passed and the petitioner be declared
elected. In this case, the revision was filed
challenging the order of recounting of votes
during pendency of the election petition.
Relevant paras of the same on reproduction
reads as under:-

"Having
heard
the
learned
counsel for the parties and perused the
record, this Court finds that a Single Judge
Bench of this Court at Allahabad noticing a
judgment by a co-ordinate Bench in the
case of (Abrar vs. State of U.P. & others)
reported in 2004 (5) AWC 4088 taking a
contrary view in the matter referred the the
following questions for consideration by a
Larger Bench.

"(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?

(II)Whether
the
judgment
of
learned Single Judge in Abrar v. State of
U.P. and others, lays down correct law?"

Consequently the matter was
placed before a Division Bench for
consideration of the reference. The Division
Bench in the case of Mohd. Mustafa
(supra) considered the issues referred to it
threadbare and came to the conclusion as
under:-

"23. We answer the questions
referred to by the learned Single as
follows:-

(I) A revision under Section 12C(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 v. State of
U.P. and others, does not lay down the law
correctly and is, therefore, overruled to the
7 All. Kusum Mishra Vs. State of U.P. & Ors.
1037
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."

As would be evident from the
above extracted paragraph of the Division
Bench Judgment, it was held that a
Revision under12-C(6) of the Act, 1947
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. The
decision of the Division Bench is so clear
that it does not require any further
elaboration or explanation.

Furthermore, the Division Bench
held that the learned Single Judge in Abrar
Hussain (supra) while holding that a
Revision is maintainable against an order
of re-counting, did not lay down the law
correctly.

Thirdly, as a natural corollary to
the above, it was held by the Division
Bench that instead of a Revision under
Section 12-C(6) 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 Act, 1947. This
conclusion was arrived at, obviously, as an
order
of
recount
has
an
important
consequence to the parties concerned
which could not be left remedy-less as an
order of recounting cannot be passed as a
matter of corce but can only be passed
keeping in mind the pre-requisites laid
down by the Supreme Court in a catena of
decisions and the Full Bench decision of
this Court in the case of Ram Adhar Singh
vs. District Judge reported in 1986 (2) RD
151; Kattinokkula Murali Krishna vs.
Veeramalla
Kotewara
Rao
& others
reported in (2010) 1 SCC 466; M.
Chinnasamy vs. K.C. Palanisamy & others
reported in (2004) 6 SCC 341, Mahendra
Pratap vs. Krishn Pal and others reported
in (2003) 1 SCC 390; according to which
firstly there has to be specific pleading
making out a case for recounting and
secondly there has to be proof of it, thirdly
the degree of proof required is very high as
the secrecy of ballots is to be maintained.

In support of the aforesaid
conclusions the Division Bench gave
cogent reasons in its judgment which need
not be elaborated by this Court, but, suffice
it to say that it considered the language
used in Section 12-C(6) and the earlier
precedents all of which took the same view
as was taken by the Division Bench. One of
the reasons given by the Division Bench
requires mention by this Court. It opined
that an order of recount is an order in aid
of final determination which has to be
made in respect of the election which have
been made the basis for claiming such recount. The disposal of such an application
by itself does not finally touch upon the
result of the election and is not a final
decision on the relief claimed in an election
application. The ultimate relief claimed in
an election application is to set aside the
election of a successful candidate. Unless
and until such an order is passed, finally
determining the fate of the election, it
cannot be said that an order passed for
mere re-count attaches finality to the
proceedings. The order of re-count by itself
does not dispose of the election application
finally and something more remains to be
done thereafter, namely, the final decision
on the basis of the evidence led on the
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
subject of re-count. There is very possibility
of the election application being allowed
after the Tribunal comes to the conclusion
that the recount has materially affected the
result and has tilted the balance in favour
of the election petitioner. It is, therefore,
obvious, that the final disposal will occur
only after a decision is rendered upon the
out come of the recount. The Court further
opined that mere reasons given or the mere
passing of an order for re-count does not
attach finality to the proceedings arising
out of an election application under Section
12-C of the Act. It is the declaration of
either the ultimate success or failure of the
election application that attached finality to
the proceedings.

The
Division
Bench
also
considered the phraseology used in sub
section 6 of Section 12-C to the effect -
''aggrieved by an order' of the Prescribed
Authority and came to the conclusion that
the
word
'an'
refers
to
a
specific
order/incident/happening. It is equivalent
to one as the term seldom refers to plurality
of the intention of the legislature was that
any order including an order of re-count
could be challenged by filing a Revision
under the said provision then the term used
would have been 'any order'. The Division
Bench further justified the view which was
taken it by holding that the intention of the
legislature while not providing the remedy
of Revision against any order passed
during the pendency of the election
application seems to be to avoid prolonged
litigation ad infinitum as it would not be in
the interest of justice to allow a party to
obtain a decision at primary point,
challenge the same before the superior
Courts upto the Hon'ble Supreme Court to
disadvantage to the other side. Thus, the
intention of the legislature according to it
was that the Revision would not be
maintainable against an order passed by
the Prescribed Authority unless the election
application ,itself, stands finally disposed
of.

In this context the reliance placed
by learned Senior Advocate Sri Asit
Chaturvedi upon the decision of learned
Single Judge in Athar Hussain (supra)
requires consideration in this case. In the
said case twelve issues were framed, all of
which were decided. However, it was not all
that was done. What was further done was
to allow the election petition partially with
specific observations in this regard which
have been quoted in the judgment of Athar
Hussain (supra). Now in the context of law
as discussed hereinabove, when this Court
considers the order of the Prescribed
Authority passed in the case no doubt two
issues were framed and decided and the
plea under Order VII Rule 11 of the CPC
was also decided, but, what has yet not
been decided is as to whether the election
petition is to be allowed or is to be rejected.
In fact while framing the issues a third
issue as to whether the relief prayed for the
Election Petition is liable to be granted or
not was also required to be framed by the
Prescribed Authority. Even if, it has not
been framed, this will have to be decided
after the recount takes place. Based on this
recount the election petition could be
dismissed or could be allowed. The fact of
the matter is that as per the categorical
enunciation of the law by the Division
Bench and the answer given by it on the
questions referred to it the election petition
at hand has not been finally disposed of as
yet and in view of the categorical
enunciation of law by the Division Bench
as quoted hereinabove, it is not possible for
this Court to take any other view of the
matter.

One additional reason which
persuades the Court to take this view is that
the law is very well settled that an order of
7 All. Kusum Mishra Vs. State of U.P. & Ors.
1039
recounting can be challenged even after
final disposal of the election petition by
filing a Revision and such challenge would
be implicit in a challenge to the final order
if requisite grounds are taken in this regard
and also that an order of recounting cannot
be justified by the result of the recounting.
Relevant decisions of the Supreme Court
have
already
been
referred
earlier,
therefore, the opposite party no.3 is not left
remedy less, firstly, in view of the judgment
of the Division Bench in the case of Mohd.
Mustafa (supra) he can file a writ petition
before this Court under Article 226 of the
Constitution India secondly, he can also
challenge the said order if he so choses
after the final disposal of the election
petition in the revision proceedings while
challenging the final order."

15. Relevant paras of the judgment
passed by this Court in the case of Dori Lal
(Supra), on reproduction read as under:-

"11. Thus, revision under section
12-C (6) of the Act shall lie only against
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.
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. Since today is the date fixed in the
aforesaid revision filed by the respondent
No. before the District Judge, Kanpur
Dehat and as such this writ petition is
disposed of giving liberty to the petitioner
to raise objection as to maintainability of
the revision in the light of the Division
Bench judgment dated 11.7.2007 in the
case of Mohd. Mustafa v. Up-Ziladhikari,
Phoolpur, Azamgarh (supra) and if such an
objection is raised, the same shall be
decided by the revisional authority within
four weeks after hearing the parties on dayto-day basis."

16. In the case of Parshuram
(Supra), the Prescribed Authority disposed
of the election petition with the direction
for recounting of votes vide order dated
21.12.2021 and being aggrieved, a petition
was filed which was entertained after
taking note of the judgment passed by the
Division Bench of this Court in the case of
Mohd. Mustafa vs. Up Ziladhikari;
reported in 2007 SCC OnLine All 1564
and at the stage of final disposal, the Coordinate Bench of this Court considered the
impugned order dated 21.12.2021 in the
light of the expression 'functus officio' and
also considered Section 12-C of the Act of
1947 and various judgments of this Court
as also of the Hon'ble Apex Court including
the judgment passed by the Division Bench
of this Court in the case of Mohd. Mustafa
(Supra) and held that after the Election
Tribunal
pronounces
its
decision,
it
becomes 'functus officio'. Relevant portion
of the judgment passed in the case of
Parshuram (Supra), on reproduction reads
as under:-

"25. However, the legal issue
which arises in the instant case is that
when the Prescribed Authority has finally
allowed the election petition by means of
impugned order dated 21.12.2021 and has
directed for recounting then after disposal
of the election petition, the Election
Tribunal would become 'functus officio' and
no subsequent order can be passed in this
regard by the Election Tribunal.

26. This aspect of the matter has
been considered by a seven Judges
Constitution Bench of Hon'ble Supreme
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in the case of Hari Vishnu Kamath
vs. Syed Ahmad Ishaque and others - AIR
1955 SC 233 wherein the Constitution
Bench has held as under:-

"19. Looking at the substance of
the matter, when once, it is held that the
intention of the Constitution was to vest in
the High Court a power to supervise
decisions of Tribunals by the issue of
appropriate
writ
and
directions,
the
exercise of that power cannot be defeated
by technical -considerations of form and
procedure. In P. C. Basappa v. T. Nagappa
-AIR 1954 SC 440, this Court observed:

"In view of the express provisions
in our Constitution we need not now look
back to the early history or the procedural
technicalities of these writs in English law,
nor feel oppressed by any difference or
change of opinion expressed in particular
cases by English Judges. We can make an
order or issue a writ in the nature of
'certiorari' in all appropriate cases and in
appropriate manner, so long as we keep to
the broad and fundamental principles that
regulate the exercise of jurisdiction in the
matter of granting such writs in English
law"

It will be in consonance with
these principles to hold that the High
Courts have power under article 226 to
issue writs of certiorari for quashing the
decisions
of
Election
Tribunals,
notwithstanding that they become functus
officio after pronouncing the decisions."
(emphasis by the Court)

27. From a perusal of the
aforesaid judgment, it is apparent that after
the Election Tribunal pronounces its
decision, it becomes 'functus officio'.

28. Further, the Constitution
Bench has also laid down the law with
respect to the powers of the High Court
under Articles 226 and 227 of the
Constitution of India. For the sake of
convenience, the relevant observations of
the Constitution Bench are reproduced
below:-

"We are also of opinion that the
Election Tribunals are subject to the
superintendence of the High Courts under
article 227 of the Constitution, and that
superintendence is both judicial and
administrative. That was held by this Court
in Waryam Singh and another v. Amarnath
and another(2), where it was observed that
in this respect article 227 went further than
section 224 of the Government of India Act,
1935, under which the superintendence was
purely administrative, and that it restored
the position under section 107 of the
Government of India Act, 1915. It may also
be noted that while in a certiorari under
article 226 the High Court can only annul
the decision of the Tribunal, it can, under
article 227, do that, and also issue further
directions
in
the
matter.
We
must
accordingly hold that the application of the
appellant for a writ of certiorari and for
other reliefs was maintainable under
articles 226 and 227 of the Constitution."
(emphasis by the Court)

29. From a perusal of the
aforesaid,
it
is
apparent
that
the
Constitution Bench has held that the High
Court under Article 226 can not only annul
the decision of the Tribunal but the High
Court under Article 227 can also do that
and also issue further directions in the
matter.

30.
Accordingly,
when
the
Division Bench judgment in the case of
Mohd. Mustafa (supra) is seen in the light
of the Constitution Bench judgment in the
case of Hari Vishnu Kamath (supra) it
emerges that the Division Bench of this
Court has not considered the aforesaid
Constitution Bench judgment wherein it has
been held that the Election Tribunal after
pronouncing its decision becomes 'functus
7 All. Kusum Mishra Vs. State of U.P. & Ors.
1041
officio' and consequently this Court while
exercising power under Articles 226 and
227 of the Constitution of India can not
only annul the decision of the Tribunal but
can also issue further directions in the
matter.

31. At this stage, it would also be
relevant to deal with issue as to whether the
law laid down by the Division Bench of this
Court in the case of Mohd. Mustafa
(supra) would be a binding precedent when
the Division Bench has not considered the
judgment of the Apex Court in the case of
Hari Vishnu Kamath (supra).

32. In this regard, this Court may
need not look further than the judgment of
the Supreme Court in the case of Sundeep
Kumar Bafna vs. State of Maharashtra -
(2014) 16 SCC 623, wherein the Apex
Court has held as under:-

"19.
It
cannot
be
overemphasised that the discipline demanded
by a precedent or the disqualification or
diminution of a decision on the application
of the per incuriam rule is of great
importance, since without it, certainty of
law, consistency of rulings and comity of
Courts would become a costly casualty. A
decision or judgment can be per incuriam
any provision in a statute, rule or
regulation, which was not brought to the
notice of the Court. A decision or judgment
can also be per incuriam if it is not possible
to reconcile its ratio with that of a
previously pronounced judgment of a Coequal or Larger Bench; or if the decision of
a High Court is not in consonance with the
views of this Court. It must immediately be
clarified that the per incuriam rule is
strictly and correctly applicable to the ratio
decidendi and not to obiter dicta. It is often
encountered in High Courts that two or
more mutually irreconcilable decisions of
the Supreme Court are cited at the Bar. We
think that the inviolable recourse is to
apply the earliest view as the succeeding
ones would fall in the category of per
incuriam."
(Emphasis by the Court)

33. Likewise, the Apex Court in
the case of Punjab Land Development and
Reclamation
Corporation
Limited
vs.
Labour Court - (1990) 3 SCC 682 has held
as under:-

"40. We now deal with the
question of per incuriam by reason of
allegedly not following the Constitution
Bench decisions. The Latin expression per
incuriam means through inadvertence. A
decision can be said generally to be given
per incuriam when this Court has acted in
ignorance of a previous decision of its own
or when a High Court has acted in
ignorance of a decision of this Court. It can
not be doubted that Art. 141 embodies, as a
rule of law, the doctrine of precedents on
which our judicial system is based. In
Bengal Immunity Company Ltd. v. State of
Bihar, [1955] 2 SCR 603, it was held that
the words of Art. 141, "binding on all
courts within the territory of India", though
wide enough to include the Supreme Court,
do not include the Supreme Court itself,
and it is not bound by its own judgments
but
is
free
to
reconsider
them
in
appropriate cases. This is necessary for
proper development of law and justice. May
be for the same reasons before judgments
were given in the House of Lords in ReDawson's Settlement Lloyds Bank Ltd. v.
Dawson and Ors., [1966] 1 WLR 1234, on
July 26, 1966 Lord Gardiner, L.C. made the
following statement on behalf of himself
and the Lords of Appeal in Ordinary:

"Their Lordships regard the use
of precedent as an indis- pensable
foundation upon which to decide what is
the law and its application to individual
cases. It provides at least some degree of
certainty upon which individuals can rely
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
in the conduct of their affairs, as well as a
basis for orderly development of legal
rules.
Their
Lordships
nevertheless
recognise that too rigid adherence to
precedent may lead to injustice in a
particular case and also unduly restrict the
proper development of the law. They
propose, therefore, to modify their present
practice
and,
while
treating
former
decisions of this House as normally
binding, to depart from a previous decision
when it appears right to do so.

In this connection they will bear
in
mind
the
danger
of
disturbing
retrospectively
the
basis
on
which
contracts, settlements of property and fiscal
arrangements have been entered into and
also the especial need for certainty as to
the criminal law."

34. From the aforesaid judgments
in the case of Sundeep Kumar Bafna
(supra) and Punjab Land Development and
Reclamation Corporation Limited (supra),
it emerges that the Apex Court has
categorically held that discipline demanded
by a precedent or the disqualification or
diminution of a decision on the application
of the per incuriam rule is of great
importance, since without it, certainty of
law, consistency of rulings and comity of
Courts would become a costly casualty. A
decision or judgment can be per incuriam
any provision in a statute, rule or
regulation which was not brought to the
notice of the Court or a decision or
judgment can also be per incuriam if the
decision of a High Court is not in
consonance with the view of the Apex
Court.

35. Accordingly, keeping in view
the aforesaid judgments, the Division
Bench judgment of this Court in the case of
Mohd. Mustafa (supra) would run against
the law laid down by the Constitution
Bench judgment of the Apex Court in the
case of Hari Vishnu Kamath (supra) the
Division Bench having not considered that
the Election Tribunal becomes functus
officio after finally deciding the election
petition and thus it is the judgment of the
Constitution Bench which would have to be
followed by this Court.

36. As already indicated above,
the Apex Court in the case of Hari Vishnu
Kamath (supra) has held that after the
Election Tribunal finally pronounces its
decision, it becomes 'functus officio'
meaning thereby that it would not have any
power to pass any order in the election
petition after it pronounces its order. In the
instant case what the Election Tribunal
headed by the Prescribed Authority has
done is that it has finally allowed the
election petition and has directed for a
recounting. Even if the result of recounting
of the votes is to be either way, the Election
Tribunal having become 'functus officio'
after
pronouncement
of
its
decision/allowing the petition, it would not
be able to pass any further orders. As such
keeping in view the settled proposition of
law, Article 243-O of the Constitution of
India categorically providing that only by
means of an election petition the election to
the Panchayat can be called in question
and the election petition having been
finally
decided,
the
Prescribed
Authority/Election Tribunal, thus became
functus officio and cannot pass any further
orders in the matter. As such, the impugned
order has to be treated as a final order in
all respects and accordingly it is apparent
that the Prescribed Authority has passed a
patently perverse order and has failed to
exercise jurisdiction vested in him i.e. of
finally deciding an election petition either
way.

37. Keeping in view the aforesaid
discussion, the legal question which has
7 All. Kusum Mishra Vs. State of U.P. & Ors.
1043
arisen in the instant petition is answered
below:-

The Prescribed Authority on
finally
deciding
an
election
petition
becomes functus officio and can not pass
any order subsequent thereto even if the
election petition has been decided finally
calling for the re-counting of votes.

38. With the legal question now
stands answered, the next question would
be as to whether this Court while
exercising jurisdiction under Article 227 of
the Constitution of India can

17. Further, after observing as
aforesaid, the Co-ordinate Bench of this
Court in the case of Parshuram (Supra)
declined to relegate the petitioner for filing
the revision challenging the order of
recounting of votes, whereby the election
petition was also disposed of by the
Prescribed Authority on the ground that the
petition was entertained and interim order
was granted as also that the law in this
regard was not settled as to whether the
order impugned would be considered to be
a 'final order' or an interim order, as would
appear from following para of the same:-

"39. Though it has been argued
that the petitioner has a remedy of filing of
a revision against the order impugned
before the learned District Judge under
sub-section (6) of Section 12-C of the Act,
1947 and as such he should be relegated to
filing of a revision but considering that the
petition had been entertained about a year
back and an interim order had already
been passed and the fact that the law in this
regard was not settled as to whether the
order impugned would be considered to be
a final order or an interim order
consequently this Court is exercising its
powers as vested under Article 227 of the
Constitution of India."

18. It also transpires from the
judgment passed in the case of Parshuram
(Supra) that the judgment passed in the
case of Mohd.