Allahabad High Court
Mohd. Mustafa Son Of Gaffoor vs Up Ziladhikari And Ors. on 11 July, 2007
Author: B.S. Chauhan
Bench: B.S. Chauhan, Rakesh Sharma
JUDGMENT B.S. Chauhan, J.
1. This reference has been placed before us under orders of Hon'ble the Chief Justice arising out of a writ petition assailing an order of recount of votes passed by the Prescribed Authority while hearing an election application under Section 12-C of the U.P. Panchayat Raj Act, 1947 (hereinafter called the 'Act'). The objection raised by the respondents in the writ petition was to the effect that the petitioner had a remedy of tiling a revision under Sub-section (6) of Section 12-C of the Act against the impugned order and, therefore, the petition was not maintainable under Article 226 of the Constitution of India. The respondents relied on the decision of Abrar. v. State of U.P. and Ors. (2004) 5 AWC 4088 to contend that the nature of the order Impugned amounted to disposing of the matter which is final in nature and, therefore, a revision would lie under Sub-section (6) or Section 12-C of the Act. The petitioner before us contended that in view of the tour decisions-relied on by them, a revision would not be maintainable and the objection raised by the respondents deserved to be overruled and the writ petition be entertained.
2. The learned Single Judge hearing the writ petition pointed out the conflict in the view taken by the learned Single Judge in Abrar's case (supra) with that of the decisions relied on by the learned Counsel for the petitioner and framed the following questions to be answered 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 or learned Single Judge in 2004 (5) AWC 4088; Abrar v. State of U.P. and Ors. lays down correct law?
3. The answer of question No. 1 would, therefore, consequently be an answer to the question No. 2 as well In order to appreciate the issue of reference, we would like to refer to the genesis of the dispute as contained in the order impugned in the writ petition dated 29.01.2007. The petitioner is the elected candidate to the office of Gram Pradhan having defeated the respondent No. 4 Ashok Kumar and other contestants. The margin of votes between the petitioner and respondent No. 4 was only 8 votes. The respondent No. 4 questioned the election under Section 12-C of the Act by filing an election application primarily on, the allegations that there was a material irregularity in the counting of votes materially affecting the result of the election, For this purpose and for the purposes of questions raised in the present writ petition, suffice is to mention that the allegations were to the effect that the candidates had been orally informed at the time of election by the Returning Officer that 1261 votes had been polled whereas ac the time of counting, only 1249 ballots were found and secondly during the counting, five invalid votes have been illegally counted in favour of the elected candidate, i.e. petitioner and three valid votes of the respondent No. 4 had been wrongly counted in favour of the petitioner. The said application has been disposed of by the impugned order by recording certain reasons which, according to the petitioner, cannot form the basis of recounting.
4. The learned Single Judge while making the reference, has opined that the question raised are serious issues pertaining to the jurisdiction and powers exercisable by the Prescribed Authority as well as by the Revisional Authority under the Act and noticing the conflict, as pointed out hereinabove, the reference has been made for resolving the same.
5. The provisions of Section 12-C(1) and (6) of the Act are quoted below for ready reference:
12-C. Application for questioning the election.- (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 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 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.
12-C (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 of 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.
6. A perusal of the aforesaid provisions indicate that an election dispute can only be raised by filing of an election application and it shall not be questioned except otherwise than in accordance with the provisions of the Act and the Rules framed there under. Thus, the nature of the language employed clearly indicates that all the issues have to be raised, decided and answered only through an election application. These necessarily include the question as to whether the results of the election have been materially affected for such reasons Including the reason of gross failure to comply with the provisions of the Act and Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 read with the Uttar Pradesh Panchayat Raj Rules, 1947. The procedure of counting, therefore, is also an integral part of the process of election and any error in counting, which materially affects the result of the election, can also be questioned through an election application. The process of counting, therefore, if pointed out to be erroneous, can be a ground for questioning the election and for that purpose, an application for recounting is maintainable in the proceedings when an election dispute is raised under Section 12-C of the Act. The Prescribed Authority is empowered to pass such orders in accordance with the law as may be necessary for disposing of an application for recounting. The order passed by the. Prescribed Authority, therefore, is an order in aid of the final determination which has to be made in respect of the election which have been made the basis for claiming a 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 reliefs claimed in an election application. The ultimate relief claimed in an election application ,s 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 recount attaches finality to the proceedings. The order of recount 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 question of recount. There is every possibility of the election application being dismissed in case it is ultimately found upon a recount that there is no material irregularity and conversely an election application can only be allowed after the Tribunal comes to the conclusion that the recount has materially affected the results 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 outcome of the recount. As indicated above, the mere reasons given or the mere passing of an order for recount 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 attaches finality to the proceedings.
7. The statutory provisions, therefore, do not indicate attaching finality to such orders of recount.
8. The question, therefore, is as to whether such an order of recount can be made the subject matter of a revision under Sub-section (6) of Section 12-C of the Act.
9. The said provision makes it clear that a revision can be filed against an order of the Prescribed Authority passed under Sub-section (1) of Section 12-C of the Act within thirty days from the date of the order, Sub-section (1) of Section 12-C clearly recites that the election shall not be called in question except by "an" application presented to such authority within such time and, in the manner as may be prescribed. The Rules clearly provide for the manner of presentation of an election application. It is the disposal of such an election application which would be an order passed by the Prescribed Authority, as referred to in Sub-section (6) and the revision would be maintainable only against such an order. It is well settled by now that a right to challenge election is a statutory right and not a common law right. The statutory provisions, referred to herein above, allow the maintaining of a revision petition only against a final order passed by a Prescribed Authority on an election application presented in the manner prescribed. It is, therefore, clear that a revision would not lie against an interlocutory order passed ordering a recount. The aforesaid position has been consistently explained in the decisions relied upon by the learned Counsel for the petitioner in the following cases:
1. Bhagwat Prasad Misra v. Sub Divisional Officer, Salon, District Rai Bareilly and Ors. 1985 UPLBEC 115;
2. Radha krishan v. Pargna Adhikari, Tahsil Kal, Aligarh and Ors. (1996) 2 UPLBEC 1016;
3. Dulhey Khan v. District Judge, Budun and Ors. 1997 (88) RD 17; and
4. Ram Pher v. State Election Commission, U.P., Lucknow and Ors. (1999) 3 UPLBEC 2089.
10. The aforesaid views have been affirmed and reiterated in a later decision of this Court by a learned Single Judge in the case of Rahmat Khan v. District Judge, Bareilly and Ors. (2001) 3 AWC 1982.
11. In Bhagwat Prasad Misra's case (supra), the Court held as under:
9. Section 12-C(1) contemplates the questioning of an election by means of an application. It is the disposal of this application by a specific order which has been made revisable under Section 12-C(6) of the Act. The order impugned in the writ petition is an interlocutory order by which the application for recounting of votes has been allowed by the Sub-Divisional Officer. This order cannot be said to be an order disposing of the election petition filed under Section 12-C(1) of the Act. Consequently, the order impugned in the petition would not be covered by the provisions of sub-section (6) of Section 12-C of the Act. The petitioner, in the circumstances, cannot be said to have had an alternative remedy.
(Emphasis added).
12. While dealing with the similar issue in Dulhey Khan (supra), this Court held as under:
Sub-section (6) provides revision against the order of the prescribed authority upon an application under Sub-section (1). The legislature has used expression 'an order' and it could have used 'any order', if it had intended that interlocutory order can also be intended to be revised. When the legislature has chosen to use the expression 'an order', it has clearly expressed its intention to make 'an order' passed on the application under Sub-section (1) revisable. But the reference to the phrase "upon an application under Sub-section (1) clearly indicates that 'an order' on the application under Sub-section (1) is revisable, it does not say that any other order passed on any other application in connection with the application under Sub-section (1) instead, of-using the phrase an application under Sub-section (1), the legislature could have used the expression "in the proceeding". The very use of the expression as laid down in the said sub-section clearly indicates the intention of the legislature only to the order passed on the application under Sub-section (1), means final order.
13. Similar view has been reiterated in Radha Krishan (supra) wherein this Court after examining the statutory provisions involved herein, reiterated the similar view, observing as under:
25. Sub-section (6) of the Act, as quoted above, uses the expression in the phrases "aggrieved by an order of the prescribed authority". The Legislature has not used, "any". Instead it has used 'an' in order to clarify the order of the prescribed authority. By using the article "an", the Legislature had clearly indicated its intention that all or any order passed by the prescribed authority is not revisable. The expression 'an order' read with Sub-section (4)(ii) means the order enumerated in the said clause. Therefore, the other order passed in the hearing of the application particularly with regard to the procedure followed by such hearing were not intended to be subject to revision. The entire Scheme with regard to the challenge of election is based on the consideration that same should be expedited and should not be imprisoned with technicalities of the procedure inasmuch as if the procedure is delayed then the purpose of the challenge of election would be frustrated because of the limited time during which the effect of the election survived. That is the reason which weighed with the Legislature to circumscribe the procedural aspects to such extent so as to minimize the time in disposal of an election petition.
14. Shri M.D. Singn "Shekhar", learned Senior Counsel appearing for the petitioner and Shri Ram Niwas Singh, learned Senior Counsel appearing for the contesting respondent, canvassed the averments which had been advanced before the learned Single Judge. Shri Shekhar has submitted that unless the order of disposal of election application is passed, the revision is not maintainable. On the contrary, Shri Singh submitted that as the order impugned has been passed on [he main election application for recount of votes, the revision is maintainable.
15. Much has been argued by both the learned Counsel on the terminology used in Section 12-C and particularly the word "an" and not "any". The 'submission has been advanced at the behest of the petitioner that if it was the intention of the Legislature that the revision is maintainable against the order passed by the Tribunal prior to final disposal of the election application, the term "any" ought to have been used and as the Legislature in its wisdom, has used the word "an", it means that the revision is maintainable only against the order finally disposing of the election application and not against any other order.
16. The distinction in terms "an" and "any" is clear. When the Legislature uses the term "an", it refers to a specific order/incident/happening. It is equivalent to one as the term seldom refers to plurality. The term "any" refers to all or every, some or more and, therefore, it has to be given the meaning depending-upon the context and the subject matter of the Statute.
17. The word "any" has the following meaning:
Some; one of many; an indefinite number. One indiscriminately of whatever kind or quantity. Word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given Statute depends upon the context and the subject matter or the Statute. It is often synonymous with "either", "every" or "all". Its generality may be restricted by the context. (Black's Law Dictionary, 5th Edn.).
18. The Concise Oxford Dictionary gives the meaning of word "any" as one or another, some (no matter wnich).
19. The Court has to examine and give the meaning to the said term in view of the Statute considering the context and the subject of the Statute, Vide Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. ; Lucknow Development Authority v. M.K. Gupta ; Sahakari Sakhar KarKhana Ltd. v. Collector of Central Excise Pune ; Union of India v. A.R. Shah ; and Regional Provident Fund Commissioner v. Shiv Kumar Joshi .
20. If we refer to the context of the Statute, it is evident from the judgments, referred to hereinabove, that not providing the remedy of revision against any order during the pendency of the election application may be to avoid delay for the purpose that the trail of the election application may be concluded at the earliest and in case the remedy of revision was made available against any order passed during the pendancy of the election application, it may become difficult for concluding the trail, as the returned candidate may file a revision against the orders passed by the Prescribed Authority from time to time and take up the issue up to the Hon'ble Supreme Court and defeat the very purpose of filing the election application. Thus, the Legislature in its wisdom restrained the parties to raise the issues in piecemeal and file a revision, if so advised, only against the final disposal of the election application.
21. In S.K. Verma v. Mahesh Chandra and Anr. , while dealing with a case under the provisions of the Industrial Disputes Act, 1947, the Supreme Court observed that the employer may indulge in luxurious litigation and drag the workmen from Court to Court merely to vindicate, any justice, for some rigid technical stand taken up by him.
22. 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 Court up to the Hon'ble Supreme Court to great disadvantage to the other side. Thus, the intention of the Legislature seems to be that no revision would be maintainable against an order passed by the Prescribed Authority unless the election application itself stands disposed of finally.
23. 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, hereinabove, a mere order for recount does not finally alter the status of the contesting parties and it does not, in any way, finally determines the status of an elected candidate. The finality comes only after the disposal of the ejection 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.
24. 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 Praonan 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?
25. 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 lavour of the contesting respondent has 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.
26. 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 nave no hesitation 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 in the cases relied upon by the learned Counsel for the petitioner.
27. 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. and Ors. (2004) 5 AWC 4088 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.
28. Let the papers be placed before the learned Single Judge for proceeding to decide the matter on merit.