High Court
Case Details
Neutral Citation No. - 2023:AHC:161015 Court No. - 6 Case :- WRIT - C No. - 23275 of 2023 Petitioner :- Pramod Shankar Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Shiv Sagar Singh Counsel for Respondent :- C.S.C.,Om Prakash Mishra With Case :- WRIT - C No. - 17577 of 2023 Petitioner :- Pramod Shankar Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Shiv Sagar Singh Counsel for Respondent :- C.S.C.,Lokesh Kumar Dwivedi,Rajneesh Tiwari Hon'ble Mrs. Manju Rani Chauhan,J.
Legal Reasoning
These two petitions have been filed arising out of same election proceedings whereby an election petition was filed by the petitioner on taking several grounds with respect to faulty and malicious favoritism to return candidate declaring the result accordingly in his favour. Therefore, to avoid multiplicity of proceedings, both these petitions are being decided by the common order.
Decision
With the consent of learned counsel for the parties, this writ petition is being finally disposed of at this stage without calling for a counter affidavit. Heard Mr. Shiv Sagar Singh, learned counsel for the petitioner, Mr. Om Prakash Mishra and Mr. Lokesh Kumar Dwivedi, learned counsel for the respondent no.3 and Mr. Rishi Kumar, learned Standing Counsel for the respondent-State. The writ petition being WRIT - C No. - 23275 of 2023 has been filed interalia for the following relief:- "(i) Issue a writ, order or direction in the nature of certiorari calling of the record and quash the order dated 31.05.2023 passed by the Additional Session Judge. (ii) Issue a writ, order or direction in the nature of Mandamus directing the revisional court to release lower court record forthwith; (iii) ......" The writ petition being WRIT - C No. - 17577 of 2023 has been filed interalia for the following relief:- "(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 01.04.2023 passed by Additional Session Judge, Court No.09, Allahabad. (ii) Issue a writ, order or direction in the nature of Mandamus commanding the Additional Session Judge, Court No.09, Allahabad to decide the election petition within the stipulated period on day to day basis hearing so that the justice may be done with the petitioner. (iii) ..........." Brief facts of the case are that the petitioner was one of the contestant in the election of Gram Pradhan, gram panchayat Saidabad, but he was defeated by the returned candidate- respondent no.3 by one vote. Thereafter, an election petition was filed by the petitioner taking several grounds with respect to faulty and malicious favoritism to return candidate declaring the result accordingly in his favour. The court below issued the notice to the returned candidate and other candidates, who had contested the election for the post of Gram Pradhan, Village-Saidabad, in which respondent no.3 was declared the winning candidate by one vote as against the defeated candidate, namely, Pramod Shankar (petitioner herein). 14 issues were framed on the basis of claimants and pleadings of the parties, thereafter, evidence was adduced and the presiding officer decided the issues 1 to 11 in favour of the petitioner (election petitioner) directing the Returning Officer to complete recounting in order to ascertain whether the calculation mistake as established by the evidence furnished by the petitioner was correct or not, hence directed for recounting vide order dated 30.09.2022. Out of 14 issues, remaining three issues were pending for consideration as those issues were to be decided after the result of recounting. Feeling aggrieved by the order dated 30.09.2022, the returned candidate, respondent no.3 approached District Court under Section 12 (c) and preferred the Revision no.132 of 2022. The petitioner put in appearance and objected as regards the maintainability of the revision on the ground that the order under challenged was not a final order. Without considering the objections of the petitioner, the revisional court vide order dated 06.10.2022 admitted the revision and passed the interim order staying the effect and operation of the order passed by the court below dated 30.09.2022. Aggrieved by the order dated 06.10.2022, the petitioner approached this Court by means of filing a Writ-C No.31464 of 2022, wherein the Co- ordinate Bench of this Court allowed the petition by order dated 3.12.2022 and after setting aside the order dated 06.10.2022, the matter was remitted back to the revisional court to pass fresh order strictly in accordance with law, after providing opportunity of hearing to all the parties concerned. Subsequently, the petitioner filed an application before the revisional court alongwith certified copy of the order dated 03.12.2022 mentioning therein that no revision under Section 12 (6)(c) is maintainable against the order directing for recounting of votes as the issue has not been finally decided. Therefore, in view of the Division Bench of this Court in the case of Mohd. Mustafa vs. Up-Zila Adhikari, Phulpur, Azamgarh and another reported in 2007 (6) AWC 5536, the revision could not be entertained. On the aforesaid application, the court below passed order dated 01.04.2023 staying the recount of votes, hence Writ-C No.17577 of 2023 was filed by the petitioner challenging the aforesaid order wherein the Co-ordinate Bench of this Court vide order dated 23.05.2023 called for a counter affidavit and directed that the order impugned therein dated 01.04.2023 shall be kept in abeyance. Subsequently, the present petition was filed with a prayer to quash the order dated 31.05.2023 calling for the records of the election petition and a direction to the revisional court to release the lower court record forthwith. Learned counsel for the petitioner submits that the order dated 01.04.2023 was passed illegally as the Revisional Court completely failed to exercise power to decide the issue regarding maintainability of revision, despite the observations of the Court in the order dated 03.12.2022 passed in Writ-C No.31464 of 2022 that the order dated 06.10.2022 was non-speaking order and had remitted the matter for reconsideration in view of Mohd Mustafa (supra). On the other hand, learned counsel for the respondent no.3 submits that in view of the order wherein 11 issues have been finally decided, three pending consideration, the issues have been finally decided after following a proper procedure as provided under the relevant Act, therefore, the same amounts to final order being passed, thus instead of lingering the matter, it would be appropriate to direct that the revision may be decided finally. At this stage, learned counsel for the petitioner has confined his relief to the extent that a direction may be issued to the concerned court to decide the revision filed by respondent no.3 within stipulated period. In view of the aforesaid, no useful purpose will be served to keep this writ petition pending and calling for a counter affidavit. Considering the facts and circumstances of the case, without expressing any opinion on the merits of the case, these writ petitions are finally disposed of with a direction to the court below to decide the revision filed by respondent no.3 on its own merit, after hearing all the parties, in accordance with the relevant Act, 1947 read with the Rules, 1997, by a reasoned and speaking order, preferably within a period of three months from the date of production of certified copy of this order without granting any unnecessary adjournment to either of the parties. It is made clear that this Court has not examined the merits of the case and the authority concerned shall apply its own mind strictly in accordance with law. It is also made clear that as the order for recounting has already been stayed by the revisional court, the winning candidate shall continue with the functioning till final decision taken in the revision. Order Date :- 9.8.2023 Jitendra/- Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad