Allahabad High Court
Parshuram vs State Of U.P. Thru. Addl.Chief Secy. ... on 23 December, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A. F. R Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 31424 of 2021 Petitioner :- Parshuram Respondent :- State Of U.P. Thru. Addl.Chief Secy. Panchayati Raj Lko.Andors Counsel for Petitioner :- Amrendra Nath Tripathi,Alok Kumar,Raj Kumar Vishwakarma Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Rakesh Kumar Chaudhary,Sanjay Kumar Yadav 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 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 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 ex-communication 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 sub-section (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 summary hearing and disposal of an application under sub-section (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 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 sub-section (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 re-counting of votes and the election petition has been allowed.
13. If for the sake of argument the re-counting 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 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 re-counting 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 sub-section (4) (ii) of Section 12-C of the Act, 1947, has passed-on the mantle, after allowing the election petition, for re-counting 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 re-counting 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 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 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 conducted in accordance with law?
(2) Whether the agents of the applicant in election application, were forcibly removed from the place of counting and the votes cast in favour of the election applicant had been mixed up with the votes of the returned candidate (present petitioner) and on the basis of which opposite party No. 1 (present petitioner) was declared elected? And (3) Whether on the facts and circumstances of the case, the recounting of votes is permissible and the election had been held in accordance with law?
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 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 12-C(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 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 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 over-emphasised 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 Re-Dawson'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 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 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 interfere with the order impugned?
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.
40. Even though the powers of this Court under Article 227 of the Constitution of India have been indicated by the Apex Court in the case of Hari Vishnu Kamath (supra) yet it would also be apt to indicate what the Hon'ble Apex Court in the case of Waryam Singh and another vs Amarnath and another reported in AIR 1954 SC 215 as reiterated by Hon'ble the Apex Court in the case of Shalini Shyam Shetti vs Rajendra Shankar Patil reported in (2010) 8 SCC 329 has held, which for the sake of convenience is reproduced below:-
"(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it,`within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised."
41. Accordingly, keeping in view the aforesaid discussion while exercising power under Article 227 of the Constitution of India the Court holds that the impugned order dated 21.12.2021 is patently perverse to the provisions of the Act, 1947 and the Prescribed Authority has failed to exercise jurisdiction vested upon the Election Tribunal under the provisions of the Act, 1947. Consequently the order impugned dated 21.12.2021 is set aside. The matter is remitted to the Prescribed Authority for passing a fresh order in accordance with law keeping in view the powers under sub-section (4)(ii) of Section 12-C of the Act, 1947. Let a fresh order in this regard be passed expeditiously after hearing all the parties concerned in accordance with law.
42. The petition stands disposed of.
Order Date :- 23.12.2022 (Abdul Moin,J.)
Rajneesh JR-PS)