# Parshuram v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Matters Under Article 227 No. 31424 of 2021
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parshuram-v-state-of-u-p-ors-49297
- **Pages:** 14

## Headnote

104 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law - Constitution of India, 1950Article 243-O & 227-U.P. Panchayat Act,
1947-Section 12-C-U.P. Panchayat Raj
(Settlement of Election Disputes) Rules,
1994-Rule 3(1)- Election petition-Order
for recounting of votes-Petitioner is an
elected
Gram
Pradhan-Order
for
recounting
of
votes
directed
by
respondent no. 2-Once election petition
has been finally decided, consequently the
Prescribed
Authority
became
'functus
officio'-Impugned order as passed by
Prescribed Authority would not be in
consonance
with
Article
243-O
and
Section 12-C of Act of 1947- As such
Prescribed Authority cannot pass any
order subsequent to disposal of election
petition-Matter
remitted
back
to
Prescribed Authority for passing order
afresh-Impugned order set aside.(Para 1
to 42)

The writ petition is disposed of. (E-6)

List of Cases cited:

## Text

_Characters 0–39,968 of 46,265. This is a partial read: ask again with offset=39968 for what follows._

1 All. Parshuram Vs. State of U.P. & Ors.
103
committed the murder of Nageshwar Chaubey.
Accused persons were armed with deadly
weapons. It is further submitted that surviving
accused, Budhiram took out of bomb from his
bag and threw towards the deceased at the
time of occurrence which created a lot of noise
and smoke after that the accused-Budhiram
picked up the rifle of the deceased and fled
away. Another surviving accused- Kamla
Lohar was armed with Lathi and he also
attacked on the deceased.

23. It is next submitted by learned AGA
that both the surviving accused persons played
active role in the commission of offence but
the learned Trial Court did not appreciate the
evidence in right perspective and mainly held
that at the time of occurrence, co-accused-
Krishnadeo alias Jhala was sitting in the
chamber of District Government Counsel for
preparation of his another case. The District
Government Counsel is examined before the
Trial Court and on the basis of the aforesaid
plea of alibi, all the accused persons were
convicted by Trial Court. While the plea of
alibi was taken only in respect of co-accused
Krishnadeo alias Jhala, hence, there is inherent
error in the impugned judgment, the appeal is
liable to be allowed.

24. Learned counsel for the accused-
Budhiram and Kamla Lohar submitted that in
the antimortem injuries and in the postmortem
report, there is no injury of bomb and lathi. It
goes to show that Budhiram and Kamla Lohar
were not present at the time of occurrence and
they were falsely implicated in this case on the
basis of village party and enmity.

25. This is the occurrence of the year
1982. Perusal of postmortem report goes to
show that there are several ante-mortem of
punchered wound which were caused by the
pellets of gunshot. Hence, mainly there are
injury of gunshot wound and there is no
injuries which could be caused either by the
throwing of bomb or by lathi danda.

26. Hence, the presence of surviving
accused persons is found doubtful by the
learned trial court and it is the settled
principles of law that if the two views of
possible, one favouring to the prosecution
and other favouring to the accused, the
view favouring to the accused should be
adopted.

27. The place of occurrence, the
testimony of the witnesses and the ultimate
analysis will not permit us to take a different
view than that taken by the learned Judge.

28. Hence, in view of the matter & on
the contours of the judgment of the Apex
Court, we concur with the learned Sessions
Judge. The appeal sans merits and is
dismissed. The record and proceedings be sent
back to the Court below. The bail and bail
bonds are cancelled.
----------
(2023) 1 ILRA 103
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.12.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Matters Under Article 227 No. 31424 of 2021

Parshuram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amrendra Nath Tripathi, Alok Kumar, Raj
Kumar Vishwakarma

Counsel for the Respondents:
C.S.C., Anurag Kumar Singh, Rakesh Kumar
Chaudhary, Sanjay Kumar Yadav
104 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law - Constitution of India, 1950Article 243-O & 227-U.P. Panchayat Act,
1947-Section 12-C-U.P. Panchayat Raj
(Settlement of Election Disputes) Rules,
1994-Rule 3(1)- Election petition-Order
for recounting of votes-Petitioner is an
elected
Gram
Pradhan-Order
for
recounting
of
votes
directed
by
respondent no. 2-Once election petition
has been finally decided, consequently the
Prescribed
Authority
became
'functus
officio'-Impugned order as passed by
Prescribed Authority would not be in
consonance
with
Article
243-O
and
Section 12-C of Act of 1947- As such
Prescribed Authority cannot pass any
order subsequent to disposal of election
petition-Matter
remitted
back
to
Prescribed Authority for passing order
afresh-Impugned order set aside.(Para 1
to 42)

The writ petition is disposed of. (E-6)

List of Cases cited:
1. Smt. Ram Kanti Vs DM & ors. (1995) AWC 1465

2. Shambhu Singh Vs St. E.C, U.P & ors. (2000)
4 AWC 2777

3.
N.P.
Ponnuswami
Vs
R.O.,
Namakkal
Constituency (1952) AIR SC 64

4. Krishnamoorthy Vs Sivakumar & ors. (2015)
AIR Vol. 3 SCC 467

5. Mohd. Mustafa Vs U.P. Ziladhikari (2007) SCC
OnLine All 1564

6. Abrar Vs St. of U.P.(2004) 5 AWC 4088

7. Hari Vishnu Kamath Vs Syed Ahmad Ishaque
& ors. (1955) SC 233

8. P.C Basappa Vs T.Nagappa-AIR 1954 SC 440,

9. Sundeep Kumar Bafna Vs St. of Mah. (2014)
16 SCC 623

10. Punjab Land Development & Reclamation
Corp. Ltd Vs Labour Court (1990) 3 SCC 682
11. Waryam Singh & anr. Vs Amarnath & anr.
(1954) AIR SC 215

12. Shalini Shyam Shetti Vs Rajendra Shankar
Patil (2010) 8 SCC 329

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Anas Shervani holding
brief of Sri Amrendra Nath Tripathi learned
counsel appearing for the petitioner, Sri
Vikram Soni learned Standing Counsel
appearing for the respondents No.1 and 2,
Sri Maninder Singh holding brief of Sri
Anurag Kumar Singh learned counsel
appearing for respondents No.3, 4, 5 and 9,
Sri Rakesh Chaudhary assisted by Sri
Ayush
Chaudhary
learned
counsel
appearing for respondent No.6 and Sri
Sanjay Kumar Yadav learned counsel
appearing for the respondent No.7 and 8.

2. Instant petition has been filed
praying for the following reliefs:-

(i) To set aside the impugned
order passed by the Respondent No.2 in
Case No.01473 of 2021 (Computerized
Case
No.T202110640501473)
dated
21.12.2021
(Annexure
No.1)
whereby
Respondent No.2 direct for recounting of
the votes and further prayed to dismiss the
election petition.

(ii)
To,
issue
direction
the
Respondents not to interfere in functioning
of the Petitioner as validity elected Gram
Pradhan of Gram Panchayat Murhadeeh,
Block-Sidhauli, District-Sitapur."

3. The case as set forth by the
petitioner is that the State Government had
notified the Panchayat Elections in the year
2020-2021. So far as the instant case is
concerned, the notification was issued for
election to the post of Gram Pradhan, Gram
1 All. Parshuram Vs. State of U.P. & Ors.
105
Panchayat Murhadeeh, Block Sidhauli,
district Sitapur.

4. It is contended that in the election the
petitioner was declared successful and a
returned candidate on 30.5.2021. It is
submitted that the respondent No.6 namely,
Raj Kishor, filed an election petition bearing
Case No.01473 of 2021 in re Raj Kishore Vs.
Parashuram and others under Section 12-C of
the U. P. Panchayat Act, 1947 (hereinafter
referred to as the "Act, 1947") before the
Prescribed
Authority/Sub-Divisional
Magistrate, Tehsil Sidhauli, district Sitapur,
challenging the election of the petitioner. It is
contended that the petitioner was arrayed as
respondents No.1 in the election petition. The
petitioner filed written statement and after
consideration of the material on record, the
Prescribed Authority, vide impugned order
dated 21.12.2021 a copy of which is
Annexure No.1 to the petition, allowed the
petition and directed for recounting of votes.
Being aggrieved, instant petition has been
filed.

5. Various grounds have been taken by
the petitioner to challenge the order
impugned in the petition. However, the legal
question which arose on hearing all the
learned counsel for the parties, with the
consent of the parties, is being decided first.

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'?

7. From the admitted facts, it emerges
that after the petitioner had been declared
elected as Gram Pradhan, an election
petition was filed under Section 12-C of the
Act, 1947 by the respondent No.6 which
has resulted in the impugned order dated
21.12.2021 by which the petition has been
allowed and a re-counting of votes has been
directed.

8. The Act, 1947 is a complete act
pertaining to the Panchayat Raj. Section
12-C of the Act, 1947 deals with the
procedure for questioning the elections.

For the sake of convenience,
Section 12-C of the Act, 1947 is
reproduced as under:-

"12-C.
Application
for
questioning the elections - (1) The election
of a person as Pradhan [* * *] or as
member of a Gram Panchayat including
the election of a person appointed as the
Panch of the Nyaya Panchayat under
Section 43 shall not be called in question
except by an application presented to such
authority within such time and in such
manner as may be prescribed on the
ground that -

(a) the election has not been a
free election by reason that the corrupt
practice of bribery or undue influence has
extensively prevailed at the election, or

(b) that the result of the election
has been materially affected -

i- by the improper acceptance or
rejection of any nomination or;

ii- by gross failure to comply with
the provisions of this Act or the rules
framed thereunder.

(2) The following shall be deemed
to be corrupt practices of bribery or undue
influence for the purposes of this Act.

(A) Bribery, that is to say, any
gift, offer or promise by a candidate or by
106 INDIAN LAW REPORTS ALLAHABAD SERIES
any other person with the connivance of a
candidate of any gratification of any
person whomsoever, with the object,
directly, or indirectly of including -

(a) a person to stand or not to
stand as, or withdraw from being, a
candidate at any election; or

(b) an elector to vote or refrain
from voting at an election; or as a reward
to -

i- a person for having so stood or
not stood or having withdrawn his
candidature; or

ii- an elector for having voted or
refrained from voting.

(B) Undue influence, that is to
say, any direct or indirect interference or
attempt to interfere on the part of a
candidate or of any other person with the
connivance of the candidate with the free
exercise of any electoral right;

Provided that without prejudice
to the generality of the provisions of this
clause any such person as is referred to
therein who -

i- threatens any candidate, or any
elector, or any person in whom a candidate
or any elector is interested, with injury of
any kind including social ostracism and excommunication or expulsion from any caste
or community; or

ii- induces or attempts to induce a
candidate or an elector to believe that he
or any person in whom he is interested will
become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning of
this clause.

(3) This application under subsection (1) may be presented by any
candidate at the election or any elector and
shall contain such particulars as may be
prescribed.

Explanation - Any person who
filed a nomination paper at the election
whether such nomination paper was
accepted or rejected, shall be deemed to be
a candidates at the election.

(4) The authority to whom the
application under sub-section (1) is made
shall in the matter of -

i- hearing of the application and
the procedure to be followed at such
hearing;

ii- setting aside the election, or
declaring the election to be void or
declaring the applicant to be duly elected
or any other relief that may be granted to
the petitioner,

have such powers and authority
as may be prescribed.

(5)
Without
prejudice
to
generality of the powers to be prescribed
under subsection (4) the rules may provide
for
su''functus
officio'''functus
officio'''functus officio'mmary hearing and
disposal of an application under subsection (1).

[(6) Any party aggrieved by an
order of the prescribed authority upon an
application under sub-section (1) may,
within thirty days from the date of the
order, apply to the District Judge for
revision of such order on any one or more
the following grounds, namely -

(a) that the prescribed authority
has exercised a jurisdiction not vested in it
by law;

(b) that the prescribed authority
has failed to exercise a jurisdiction so
vested;

(c) that the prescribed authority
has acted in the exercise of its jurisdiction
illegally or with material irregularity.

(7) The District Judge may
dispose of the application for revision
himself or may assign it for disposal to any
Additional District Judge, Civil Judge or
1 All. Parshuram Vs. State of U.P. & Ors.
107
Additional
Civil
Judge
under
his
administrative control and may recall it
from any such officer or transfer it to any
other such officer.

(8)
The
revising
authority
mentioned in sub-section (7) shall follow
such procedure as may be prescribed, and
may confirm, vary or rescind the order of
the prescribed authority or remand the case
to the prescribed authority for re-hearing
and pending its decision pass such interim
orders as may appear to it to be just and
convenient.

(9) The decision of the prescribed
authority, subject to any order passed by
the revising authority under this section,
and every decision of the revising authority
passed under this section, shall be final.]"

9. From the perusal of the aforesaid
provision of Section 12-C of Act, 1947 it is
apparent that an application for questioning
the election of a person elected as Gram
Pradhan (as it pertains to the instant case)
shall not be called in question except by an
application presented to such an Authority
within such time and such manner as has
been prescribed. The grounds on which the
election of the elected Pradhan can be
challenged have also been set forth in Section
12-C of the Act, 1947. The relief which can
be granted in the election petition has been
set forth in Section 12-C (4) of the Act 1947 a
perusal of which indicates that the authority
to whom the application under Sub-section
(1) is made shall, in the matter of hearing of
an application and the procedure to be
followed at such hearing, set aside the
election, or declare the election to be void
or declare the applicant to be duly elected
or any other relief that may be granted to
the petitioner.

Thus, from a perusal of subsection (4) (ii) of Section 12-C of the Act,
1947 it emerges that the reliefs the
Prescribed Authority can grant in any
election petition is either to set aside the
election or declare an election to be void or
declare the applicant to be duly elected or
any other relief may be granted to the
petitioner.

10. When sub-section (4) (ii) of
Section 12-C of the Act, 1947 is read in
consonance with sub-section (1) of Section
12-C of the Act, 1947, it clearly emerges
that it is only by means of an application
filed under Section 12-C of the Act, 1947,
that the election of a person, as a Pradhan
(so far as the present case is concerned),
can be set aside by the Prescribed Authority
and by no other mode.

11. Needless to mention that as per
sub-rule (1) of Rule 3 of U.P. Panchayat
Raj (Settlement of Election Disputes)
Rules, 1994 (hereinafter referred to as the
"Rules 1994") the Sub-divisional Officer
within whose jurisdiction the concerned
Gram Panchayat lies is the Authority before
whom an application under sub-section (1)
of Section 12-C of the Act, 1947 has to be
presented.

12. A perusal of the order impugned
dated 21.12.2021 would indicate that the
Prescribed Authority, while passing the
order has not set aside the election of the
petitioner or declared the election to be
void or declared the respondent No.6 to be
duly elected rather has directed for recounting of votes and the election petition
has been allowed.

13. If for the sake of argument the recounting of votes that has been directed by
the Prescribed Authority can be said to be
an order that can validly be passed by the
Prescribed Authority under the provisions
108 INDIAN LAW REPORTS ALLAHABAD SERIES
of sub-section (4) (ii) of Section 12-C of
the Act, 1947, then too, considering that the
election petition had itself been allowed
and the aforesaid order of re-counting of
votes has been passed then nothing further
survives before the Prescribed Authority in
the election petition and even if after the recounting of votes a situation emerges in
which either the petitioner herein or the
applicant who filed the Election Petition,
i.e. respondent No.6 herein are to get more
votes then considering that the election
petition has been decided, it would not lie
within the domain or power of the
Recounting Officer to set aside the election
of the petitioner or declare the respondent
No.6 herein as elected inasmuch as, the
powers under the Act, 1947 have only been
conferred upon the Prescribed Authority
and no one else.

14. In this regard it would be apt to
refer to Article 243-O of the Constitution of
India which reads as under:-

"243-O. Bar to interference by
courts
in
electoral
matter--
Notwithstanding
anything
in
this
Constitution, --

(a) the validity of any law
relating
to
the
delimitation
of
constituencies or the allotment of seats to
such constituencies, made or purporting to
be made under Article 243-K, shall not be
called in question in any court;

(b) no election to any Panchayat
shall be called in question except by an
election petition presented to such authority
and in such manner as is provided for by or
under any law made by the Legislature of a
State."

15. From a perusal of Article 243-O
of the Constitution it emerges that the said
constitutional
provision
categorically
provides that notwithstanding anything
contained in the Constitution, no election to
any Panchayat shall be called in question
except by an election petition presented to
such authority and in such manner as is
provided for by or under any law made by
the Legislature of the State.

16. When the aforesaid constitutional
provision is seen in the context of the
action impugned, it emerges that the
respondent No.6 had filed the election
petition for setting aside the election of the
petitioner.
The
Prescribed
Authority,
instead of passing an order in terms of
powers conferred upon him in terms of subsection (4) (ii) of Section 12-C of the Act,
1947, has passed-on the mantle, after
allowing the election petition, for recounting of votes. Once the election
petition has itself been decided the
Prescribed Authority becomes ''functus
officio' and even if after re-counting of
votes either the petitioner or the respondent
No.6 herein receive more or less votes, the
same would be meaningless as the
Authority who has carried out the recounting of votes would be powerless to set
aside the election of the petitioner or to
declare the respondent No.6 as elected
considering that the said power can only be
flow out from the order passed by an
authority in an election petition, who is no
longer having the election petition before it,
the same having been allowed and thus
having become ''functus officio'.

17. When the impugned action of the
Prescribed Authority in terms of the order
dated 21.12.2021 is seen in the context of
Article 243-O of the Constitution of India
read with Section 12-C of the Act, 1947, it
is apparent that the order impugned as
passed by the Prescribed Authority would
not be in consonance to the provisions of
1 All. Parshuram Vs. State of U.P. & Ors.
109
the Constitution as well as the provisions of
the Act, 1947.

18. It would be apt to reproduce the
Division Bench judgment of this Court in
the case of Smt. Ram Kanti. Vs. District
Magistrate and others, reported in 1995
AWC 1465, wherein it has been held as
under:-

"From the above provisions, it is
thus, apparent that the State Election
Commissioner, District Magistrate and the
Election
Officer
are
empowered
to
supervise, control and conduct the election.
After the election is over, they lose all
jurisdiction over the matter and it is the
Election
Tribunal
alone,
which
is
competent to deal with the dispute arising
out of or in connection with the election.
The meaning of the word election and when
does the election process comes to an end
has been considered by the Supreme Court
from time to time while deciding the cases
under the R.P. Act, leading case being N.P.
Punnuswami v. Returning Officer AIR 1952
SC 64, wherein the election was given the
wide meaning so as to connote the entire
process culminating in a candidate being
declared elected. It, thus, includes the
entire procedure to be gone through to
return a candidate to the Legislature. Same
rule was reiterated in Mohinder Singh Gill
v. Chief Election Commissioner AIR 1978
SC 851, wherein it was laid down that the
election
commences
from
the
initial
notification
and
culminates
in
the
declaration of the return of a candidate.
Election process, thus, comes to an end on
the
final
declaration
of
returned
candidates. As the pattern and the
procedure for holding the election under
the Act and the Rules is similar to that
contained in the R.P. Act, the same
definition of election has to be applied to
the election held under the Act and the
Rules. After the election process has come
to
an
end,
the
State
Election
Commissioner, District Magistrate and the
Election Officer lose all their jurisdiction
and the only authority, which can deal
with and decide any complaint regarding
the election is the Election Tribunal..."

 (emphasis by Court)

19. Likewise, a Division Bench of
this Court in the case of Shambhu Singh
Vs. State Election Commission, U.P and
Ors reported in 2000 (4) AWC 2777 has
held as under:-

".....In our view, on proper
interpretation of the Statute, after the
election process has come to an end, the
State
Election
Commissioner,
District
Magistrate and the Election Officer cease
to have any jurisdiction and the only
authority which can deal with and decide
any complaint regarding the election is the
Election Tribunal..."

20. The Apex Court in the cases of
N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency; AIR 1952 SC
64 and Krishnamoorthy Vs. Sivakumar
and others; (AIR 2015 Vol-3 SCC 467)
have also held likewise.

21. Consequently, when the impugned
order as passed by the Prescribed Authority
is seen in the light of the judgments of the
Apex
Court
in
the
case
of
N.P.
Ponnuswami
(supra)
and
Krishnamoorthy (supra), the Division
Bench judgment of this Court and in the
case of Smt. Ram Kanti (supra) as well as
the judgment of this Court in the case of
Shambhu Singh (supra), it clearly emerges
that the order impugned does not stand the
vigours and rigours as prescribed under
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 12-C of the Act, 1947 read with
Article 247-O (b) of the Constitution of
India.

22. At this stage, all learned counsels
appearing for the respective parties contend
that the order impugned dated 21.12.2021
cannot be considered to be a final order
rather it would only be an interlocutory
order for the purpose of recounting of votes
and consequently, after recounting of votes
takes place in terms of the impugned order,
it is the Prescribed Authority who shall
declare the election petition to have finally
succeeded in favour of respondent no.6
herein or to be dismissed on the basis of the
result of the votes. In this regard, reliance
has been placed on a Division Bench
judgment of this Court in the case of
Mohd. Mustafa vs. U.P. Ziladhikari -
2007 SCC OnLine All.1564.

23. Placing reliance on the aforesaid
judgment the argument is that on a
reference being made arising out of a writ
petition, the Division Bench of this Court
has held as under:-

"22. We have carefully examined
the reasoning given by a learned single
Judge in Abrar's case (supra) wherein the
learned single Judge opined that the
disposal of an application for recount
would amount to be a final order as it
disposes of the application for recount
finally. As explained by us, herein above, a
mere order for recount does not finally
alter the status of the contesting parties and
it does not, in any way, finally determine
the status of an elected candidate. The
finality comes only after the disposal of the
election application as the relief of setting
aside an election or dismissing an election
application comes at the final stage and not
by mere disposal of an application of
recount or ordering recount on deciding the
issue framed for this purpose.

23. 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

(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?

24. 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 have 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.

25. We are, therefore, with the
utmost respect, not able to circumscribe to
the view taken by the learned single Judge
in the Abrar's case (supra) for the reasons
aforesaid and, therefore, we have no
1 All. Parshuram Vs. State of U.P. & Ors.
111
hesitation on in holding that the said
decision does not lay down the law
correctly
on
the
question
of
the
maintainability of revision under Section
12-C(6) of the Act in respect of an
application disposed of by the Prescribed
Authority for recount. We further approve
the law laid down the cases relied upon by
the learned counsel for the petitioner. We
answer the questions referred to by the
learned single Judge 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., (2004) 5 AWC 4088 : (2004 All LJ
2384) does not lay down the law correctly
and is, therefore, overruled to the 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."

24. From perusal of the aforesaid
judgment it emerges that the Division
Bench, upon a reference, did not agree with
the view of the Single Judge of this Court
in the case of Abrar v. State of U.P. -
(2004) 5 AWC 4088 wherein it had been
held that as an election petition had been
finally decided as such a revision would lie
under sub-section (6) of Section 12-C of
the Act, 1947. The Division Bench, after
considering the judgment in the case of
Abrar (supra) was of the view that a mere
order for recount does not finally alter the
status of the contesting parties and it does
not in any way finally determine the status
of an elected candidate inasmuch as the
finality would only come after the disposal
of the election application as the relief of
setting aside an election or dismissing an
election application comes at a final stage
and not by mere disposal of an application
of recount or ordering recount on deciding
the issue framed for this purpose.

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 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
112 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
1 All. Parshuram Vs. State of U.P. & Ors.
113
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
Co-equal 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
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
114 INDIAN LAW REPORTS ALLAHABAD SERIES
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
arisen in the instant petition is answered
below:-

The Prescribed Authority on
finally
deciding
an
election
petition
1 All. Parshuram Vs. State of U.P.