Allahabad High Court
Kusum Mishra vs State Of U.P. Thru. Addl. Chief Secy. ... on 21 July, 2023
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Neutral Citation No. - 2023:AHC-LKO:47903 Reserved On 16.06.2023 Delivered On 21.07.2023 Court No. - 18 Case :- WRIT - C No. - 4999 of 2023 Petitioner :- Kusum Mishra Respondent :- State Of U.P. Thru. Addl. Chief Secy. Panchayat Raj, Lucknow And Others Counsel for Petitioner :- Manoj Kumar Mishra,Prabhat Kumar Ojha,Vinay Kumar Counsel for Respondent :- C.S.C.,Atul Kumar Dubey,Dr. Pooja Singh,Jay Prakash Singh Vats Hon'ble Saurabh Lavania,J.
Heard.
Present petition has been filed for the following main reliefs:-
"(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 05.06.2023 by opposite party No.2 i.e. Prescribed Authority/Sub Divisional Officer, Lalganj, District-Pratapgarh in Case No.3146/2021 (Computerized Case No.T2021102570203146), as Contained as Annexure No.1, in the interest of justice.
(ii) Issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties not to interfere in the functioning of the Petitioner as validly elected Gram Pradhan of Gram Panchayat-Naubasta, Block Lakshmanpur, District-Pratapgarh, in the interest of justice."
At the very outset, learned counsel appearing for the side opposite stated that the present petition, challenging the order dated 05.06.2023 passed by the opposite party No.2-Prescribed Authority/Sub Divisional Officer, Lalganj, District-Pratapgarh, in the proceedings instituted under Section 12-C of U.P. Panchayat Raj Act, 1947 (in short "Act of 1947"), registered as Case No.3146 of 2021, Computerized Case No.T2021102570203146, whereby, the proceedings instituted under Section 12-C of the Act of 1947 have been finally concluded with a direction for recounting of votes, is not maintainable in view of statutory remedy available to the petitioner under Section 12-C of the Act of 1947. In other words, by the impugned order dated 05.06.2023 the opposite party No.2 has finally decided the case instituted under Section 12-C of the Act of 1947, as such, the statutory remedy by way of filing of revision, as provided under Section 12-C(6) of the Act of 1947, would lie against the impugned order dated 05.06.2023.
Being relevant, operative portion of the order impugned dated 05.06.2023 is extracted herein:-
"उपरोक्त विवेचना एवं याचिकाकर्ती द्वारा प्रस्तुत विधि व्यवस्था के आलोक में याचीकर्ती द्वारा प्रस्तुत याचिका स्वीकार की जाती है। याचिका में वर्णित तथ्यों के आधार पर पुनर्मतगणना किये जाने का आदेश पारित किया जाता है। पर्नमतगणना दिनांक 21.06.2023 को न्यायालय उपजिलाधिकारी लालगंज में सम्पन्न हो। आदेश की प्रति मुख्य विकास अधिकारी प्रतापगढ़ को प्रभारी अधिकारी पंच स्थानीय चुनाव प्रतापगढ़ सहायक जिला निर्वाचन अधिकारी पंच स्थानीय चुनाव प्रतापगढ़ को पुनर्मतगणना हेतु वांछित अभिलेखों को उपलब्ध कराने एवं जिला पंचायत राज अधिकारी प्रतापगढ़ को सूचनार्थ हेतु प्रेषित किया जाय। आदेश की एक प्रति खण्ड विकास अधिकारी लक्ष्मणपुर को अपने साथ पांच गणक के साथ उपस्थित रहकर पुनर्मतगणना में सहयोग करने एवं प्रभारी निरीक्षक लालगंज को उक्त समय आवश्यक सुरक्षा व्यवस्था सुनिश्चित करने हेतु प्रेषित। वाद आवश्यक कार्यवाही पत्रावली दाखिल दफ्तर हो। "
It appears from the operative portion of the impugned order dated 05.06.2023, quoted above, that the Prescribed Authority vide order 05.06.2023 allowed the election petition and directed for recounting of votes and also directed that after necessary action the matter be consigned to record.
Whereas the final relief which can be granted in election petition filed under Section 12-C of the Act of 1947, reflects from Section 12-C(4)(ii) which indicates that the Prescribed Authority can set aside the election or declare the election to be void or declare the applicant to be duly elected or any other relief can be granted to the petitioner.
In the instant case, a perusal of the order impugned dated 05.06.2023 would indicate that the Prescribed Authority, while passing the order has neither set aside the election nor declared the election to be void nor declared the concerned to be duly elected rather has directed for re-counting of votes and allowed the election petition.
In response to the objection regarding maintainability of the present petition, Sri Manoj Kumar Mishra, learned counsel for the petitioner alongwith Sri Prabhat Kumar Ojha, Advocate and Sri Vinay Kumar, Advocate, submitted that the order of recounting of votes is an order of interlocutory in nature, as such, the present petition would be maintainable.
Further submitted that the order of recounting of votes on merits is completely mis-conceived, as such, considering the nature of impugned order dated 05.06.2023 and the observations made in the impugned order, the present petition is liable to be entertained.
On the issue of maintainability of present petition, learned counsel for the petitioner placed reliance on the following judgments:-
(a) Writ - C No.1223 of 2017 (Dori Lal vs. State of U.P. & 3 Others) 2017 SCC OnLine All 3220;
(b) Writ Petition No.9609 (M/S) of 2018 (Rajesh Kumar vs. Distt Judge Shrawasti & Ors.) 2019 SCC OnLine All 4851;
(c) Writ Petition No.18420 (M/S) of 2019 (Kamal Kumar Dhuriya vs. Prescribed Authority, S.D.M., Lalganj, Dist.-Paratapgarh And Ors.);
(d) Matters Under Article 227 No.31424 of 2021 (Parshuram vs. State of U.P. & Others); Writ - C No.33777 of 2022 (Manoj Devi vs. State of U.P. & 20 Others);
(e) Sajida vs. Sub Divisional Magistrate & Others; reported in 2023 SCC OnLine All 11.
Relevant paras of the judgment passed by this Court in the case of Sajida (Supra) on reproduction read as under:-
"13. It is well settled that it is important to maintain secrecy of ballot which is sacrosanct and it should not be allowed to be violated on frivolous, vague and indefinite allegations and before inspection is allowed, the allegations made against elected candidate must be clear and specific and must be supported by adequate statements of material facts (See, Bhabhi v. Sheo Govind, (1976) 1 SCC 687 : AIR 1975 SC 2117 and Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249). The discretion conferred on Courts should be not exercised in such a way so as to enable election petitioner to indulge in a roving enquiry in order to fish out materials for declaring election to be void.
14. Election petitioner has made a assertion in election petition that vote given in her favour were placed in the bundle of votes given in favour of returned candidate and during counting when election petitioner came to know that number of votes given in her favour are 990 and in favour of elected candidate are 993 and number of rejected votes are 157, she raised an objection and prayed for recounting but Election Officer has not paid attention. A further assertion has been made that bundle of 157 rejected votes included some valid votes also.
17. It is settled that order of recounting cannot be passed only for the sake of it and on the basis of vague allegation without specifying any particular irregularity in counting as well as how it would affect election result materially. In the present case in the body of election petition vague assertions have been made regarding illegal rejection of valid votes which are not substantiated either in examination of election petitioner or otherwise on the basis of record available. Parties have to take proper pleadings by adducing evidence that by particular irregularity of illegality result of election has been materially affected. There is no dispute to the settled legal proposition that as a rule relief not founded in pleadings should not be granted [See, Arikala Narasa Reddy (supra)]."
Relevant paras of the judgment passed by this Court in the case of Manoj Devi (Supra) on reproduction read as under:-
"9. Before entering into merit of case, there is a hurdle which has to be overcome. The Prescribed Authority while passing order dated 05.11.2022 has accepted the election petition, i.e., it has granted final relief even before actual recounting could take place and, therefore, it become a functus officio. In this regard few paragraphs of the judgment passed by Coordinate Bench of this Court in Parshuram vs. State of U.P. and others (Matters Under Article 227 No. 31424 of 2021), decided on 23.12.2022 are relevant and reproduced as under:
"6. The legal question which has arisen in the instant petition is whether the Prescribed Authority has erred in law in directing for re-counting of votes while finally deciding the election petition inasmuch as to whether the Prescribed Authority could pass any further order on receipt of the result of the re-counting of votes once the election petition had been finally decided and consequently the Prescribed Authority became ''functus officio'?"
"36. As already indicated above, the Apex Court in the case of Hari Vishnu Kamath (supra) has held that after the Election Tribunal finally pronounces its decision, it becomes 'functus officio' meaning thereby that it would not have any power to pass any order in the election petition after it pronounces its order. In the instant case what the Election Tribunal headed by the Prescribed Authority has done is that it has finally allowed the election petition and has directed for a recounting. Even if the result of recounting of the votes is to be either way, the Election Tribunal having become 'functus officio' after pronouncement of its decision/allowing the petition, it would not be able to pass any further orders. As such keeping in view the settled proposition of law, Article 243-O of the Constitution of India categorically providing that only by means of an election petition the election to the Panchayat can be called in question and the election petition having been finally decided, the Prescribed Authority/Election Tribunal, thus became functus officio and cannot pass any further orders in the matter. As such, the impugned order has to be treated as a final order in all respects and accordingly it is apparent that the Prescribed Authority has passed a patently perverse order and has failed to exercise jurisdiction vested in him i.e. of finally deciding an election petition either way.
37 Keeping in view the aforesaid discussion, the legal question which has arisen in the instant petition is answered below:-
The Prescribed Authority on finally deciding an election petition becomes functus officio and can not pass any order subsequent thereto even if the election petition has been decided finally calling for the re-counting of votes."
In the case of Kamal Kumar Dhuriya (Supra), the Prescribed Authority passed the order of recounting of electoral colleges/votes and disposed of the election petition without setting aside the election or declaring the election to be void or declaring the election petitioner to be duly elected and after considering the same the preliminary objection regarding maintainability of the petition was decided by the Co-ordinate Bench of this Court in following paragraphs:-
"As regards the preliminary objection of Shri Pathak this issue has been settled by a Division Bench of this Court in the case of Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur, Azamgarh and Ors. reported in 2007 (103) RD 282. The said decision has also been followed recently by this very Bench while rendering a judgment on 12.04.2019 in Writ Petition No. 9609(M/S) of 2018. According to the said decision an order of recount being an interlocutory order which does not dispose of the proceedings finally no revision lies under Section 12-C(6) of the Act, 1947. The preliminary objection of Shri Pathak is, thus, rejected."
In the case of Rajesh Kumar (Supra), Co-ordinate Bench of this Court dealt with the petition which was filed with the prayer that the election result declared on 13.12.2015 be declared as void ab-initio and a nullity and an order of recounting be passed and the petitioner be declared elected. In this case, the revision was filed challenging the order of recounting of votes during pendency of the election petition. Relevant paras of the same on reproduction reads as under:-
"Having heard the learned counsel for the parties and perused the record, this Court finds that a Single Judge Bench of this Court at Allahabad noticing a judgment by a co-ordinate Bench in the case of (Abrar vs. State of U.P. & others) reported in 2004 (5) AWC 4088 taking a contrary view in the matter referred the the following questions for consideration by a Larger Bench.
"(I)Whether the revision under section 12-C(6) shall lie only against a final order passed by Prescribed Authority deciding the election petition under Section 12-C(1) or a writ petition can be filed against an order of recount, which has been passed after deciding certain issues raised in the election petition?
(II)Whether the judgment of learned Single Judge in Abrar v. State of U.P. and others, lays down correct law?"
Consequently the matter was placed before a Division Bench for consideration of the reference. The Division Bench in the case of Mohd. Mustafa (supra) considered the issues referred to it threadbare and came to the conclusion as under:-
"23. We answer the questions referred to by the learned Single as follows:-
(I) A revision under Section 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 others, 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."
As would be evident from the above extracted paragraph of the Division Bench Judgment, it was held that a Revision under12-C(6) of the Act, 1947 shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C(1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority. The decision of the Division Bench is so clear that it does not require any further elaboration or explanation.
Furthermore, the Division Bench held that the learned Single Judge in Abrar Hussain (supra) while holding that a Revision is maintainable against an order of re-counting, did not lay down the law correctly.
Thirdly, as a natural corollary to the above, it was held by the Division Bench that instead of a Revision under Section 12-C(6) a writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the Act, 1947. This conclusion was arrived at, obviously, as an order of recount has an important consequence to the parties concerned which could not be left remedy-less as an order of recounting cannot be passed as a matter of corce but can only be passed keeping in mind the pre-requisites laid down by the Supreme Court in a catena of decisions and the Full Bench decision of this Court in the case of Ram Adhar Singh vs. District Judge reported in 1986 (2) RD 151; Kattinokkula Murali Krishna vs. Veeramalla Kotewara Rao & others reported in (2010) 1 SCC 466; M. Chinnasamy vs. K.C. Palanisamy & others reported in (2004) 6 SCC 341, Mahendra Pratap vs. Krishn Pal and others reported in (2003) 1 SCC 390; according to which firstly there has to be specific pleading making out a case for recounting and secondly there has to be proof of it, thirdly the degree of proof required is very high as the secrecy of ballots is to be maintained.
In support of the aforesaid conclusions the Division Bench gave cogent reasons in its judgment which need not be elaborated by this Court, but, suffice it to say that it considered the language used in Section 12-C(6) and the earlier precedents all of which took the same view as was taken by the Division Bench. One of the reasons given by the Division Bench requires mention by this Court. It opined that an order of recount is an order in aid of final determination which has to be made in respect of the election which have been made the basis for claiming such re-count. The disposal of such an application by itself does not finally touch upon the result of the election and is not a final decision on the relief claimed in an election application. The ultimate relief claimed in an election application is to set aside the election of a successful candidate. Unless and until such an order is passed, finally determining the fate of the election, it cannot be said that an order passed for mere re-count attaches finality to the proceedings. The order of re-count by itself does not dispose of the election application finally and something more remains to be done thereafter, namely, the final decision on the basis of the evidence led on the subject of re-count. There is very possibility of the election application being allowed after the Tribunal comes to the conclusion that the recount has materially affected the result and has tilted the balance in favour of the election petitioner. It is, therefore, obvious, that the final disposal will occur only after a decision is rendered upon the out come of the recount. The Court further opined that mere reasons given or the mere passing of an order for re-count does not attach finality to the proceedings arising out of an election application under Section 12-C of the Act. It is the declaration of either the ultimate success or failure of the election application that attached finality to the proceedings.
The Division Bench also considered the phraseology used in sub section 6 of Section 12-C to the effect - ''aggrieved by an order' of the Prescribed Authority and came to the conclusion that the word 'an' refers to a specific order/incident/happening. It is equivalent to one as the term seldom refers to plurality of the intention of the legislature was that any order including an order of re-count could be challenged by filing a Revision under the said provision then the term used would have been 'any order'. The Division Bench further justified the view which was taken it by holding that the intention of the legislature while not providing the remedy of Revision against any order passed during the pendency of the election application seems to be to avoid prolonged litigation ad infinitum as it would not be in the interest of justice to allow a party to obtain a decision at primary point, challenge the same before the superior Courts upto the Hon'ble Supreme Court to disadvantage to the other side. Thus, the intention of the legislature according to it was that the Revision would not be maintainable against an order passed by the Prescribed Authority unless the election application ,itself, stands finally disposed of.
In this context the reliance placed by learned Senior Advocate Sri Asit Chaturvedi upon the decision of learned Single Judge in Athar Hussain (supra) requires consideration in this case. In the said case twelve issues were framed, all of which were decided. However, it was not all that was done. What was further done was to allow the election petition partially with specific observations in this regard which have been quoted in the judgment of Athar Hussain (supra). Now in the context of law as discussed hereinabove, when this Court considers the order of the Prescribed Authority passed in the case no doubt two issues were framed and decided and the plea under Order VII Rule 11 of the CPC was also decided, but, what has yet not been decided is as to whether the election petition is to be allowed or is to be rejected. In fact while framing the issues a third issue as to whether the relief prayed for the Election Petition is liable to be granted or not was also required to be framed by the Prescribed Authority. Even if, it has not been framed, this will have to be decided after the recount takes place. Based on this recount the election petition could be dismissed or could be allowed. The fact of the matter is that as per the categorical enunciation of the law by the Division Bench and the answer given by it on the questions referred to it the election petition at hand has not been finally disposed of as yet and in view of the categorical enunciation of law by the Division Bench as quoted hereinabove, it is not possible for this Court to take any other view of the matter.
One additional reason which persuades the Court to take this view is that the law is very well settled that an order of recounting can be challenged even after final disposal of the election petition by filing a Revision and such challenge would be implicit in a challenge to the final order if requisite grounds are taken in this regard and also that an order of recounting cannot be justified by the result of the recounting. Relevant decisions of the Supreme Court have already been referred earlier, therefore, the opposite party no.3 is not left remedy less, firstly, in view of the judgment of the Division Bench in the case of Mohd. Mustafa (supra) he can file a writ petition before this Court under Article 226 of the Constitution India secondly, he can also challenge the said order if he so choses after the final disposal of the election petition in the revision proceedings while challenging the final order."
Relevant paras of the judgment passed by this Court in the case of Dori Lal (Supra), on reproduction read as under:-
"11. Thus, revision under section 12-C (6) of the Act shall lie only against final order passed by the Prescribed Authority deciding the election application preferred under section 12-C (1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority. writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under section 12-C of the U.P. Panchayat Raj Act, 1947. Since today is the date fixed in the aforesaid revision filed by the respondent No. before the District Judge, Kanpur Dehat and as such this writ petition is disposed of giving liberty to the petitioner to raise objection as to maintainability of the revision in the light of the Division Bench judgment dated 11.7.2007 in the case of Mohd. Mustafa v. Up-Ziladhikari, Phoolpur, Azamgarh (supra) and if such an objection is raised, the same shall be decided by the revisional authority within four weeks after hearing the parties on day-to-day basis."
In the case of Parshuram (Supra), the Prescribed Authority disposed of the election petition with the direction for recounting of votes vide order dated 21.12.2021 and being aggrieved, a petition was filed which was entertained after taking note of the judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa vs. Up Ziladhikari; reported in 2007 SCC OnLine All 1564 and at the stage of final disposal, the Co-ordinate Bench of this Court considered the impugned order dated 21.12.2021 in the light of the expression 'functus officio' and also considered Section 12-C of the Act of 1947 and various judgments of this Court as also of the Hon'ble Apex Court including the judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra) and held that after the Election Tribunal pronounces its decision, it becomes 'functus officio'. Relevant portion of the judgment passed in the case of Parshuram (Supra), on reproduction reads as under:-
"25. However, the legal issue which arises in the instant case is that when the Prescribed Authority has finally allowed the election petition by means of impugned order dated 21.12.2021 and has directed for recounting then after disposal of the election petition, the Election Tribunal would become 'functus officio' and no subsequent order can be passed in this regard by the Election Tribunal.
26. This aspect of the matter has been considered by a seven Judges Constitution Bench of Hon'ble Supreme 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?"
Further, after observing as aforesaid, the Co-ordinate Bench of this Court in the case of Parshuram (Supra) declined to relegate the petitioner for filing the revision challenging the order of recounting of votes, whereby the election petition was also disposed of by the Prescribed Authority on the ground that the petition was entertained and interim order was granted as also that the law in this regard was not settled as to whether the order impugned would be considered to be a 'final order' or an interim order, as would appear from following para of the same:-
"39. Though it has been argued that the petitioner has a remedy of filing of a revision against the order impugned before the learned District Judge under sub-section (6) of Section 12-C of the Act, 1947 and as such he should be relegated to filing of a revision but considering that the petition had been entertained about a year back and an interim order had already been passed and the fact that the law in this regard was not settled as to whether the order impugned would be considered to be a final order or an interim order consequently this Court is exercising its powers as vested under Article 227 of the Constitution of India."
It also transpires from the judgment passed in the case of Parshuram (Supra) that the judgment passed in the case of Mohd. Mustafa (Supra) was considered in the light of the judgment passed by the Constitution Bench of the Hon'ble Supreme Court and this Court, based upon the same, held that the Election Tribunal/Prescribed Authority would become 'functus officio' after final disposal of the case.
In the context of the present case, it would be appropriate to refer the judgment of the Hon'ble Apex Court passed in the case of Orissa Administrative Tribunal Bar Association vs. Union of India and others; reported in 2023 SCC OnLine SC 309, wherein the Hon'ble Apex Court considered the expression 'functus officio'. The relevant paras of the same on reproduction reads as under:-
""A term applied to something which once has had a life and power, but which has become of no virtue whatsoever ... One who has fulfilled his office or is out of office; an authority who has performed the act authorised so that the authority is exhausted"
108. Black's Law Dictionary (5th edition) defines the term as follows:
"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority ... an instrument, power, agency, etc. which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect."
109. The doctrine of functus officio gives effect to the principle of finality. Once a judge or a quasi-judicial authority has rendered a decision, it is not open to her to revisit the decision and amend, correct, clarify, or reverse it (except in the exercise of the power of review, conferred by law). Once a judicial or quasi-judicial decision attains finality, it is subject to change only in proceedings before the appellate court.
110. For instance, Section 362 of the Code of Criminal Procedure 1973 provides that a court of law is not to alter its judgment once it is signed:
"362. Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
111. In Hari Singh Mann v. Harbhajan Singh Bajwa35, this Court recognized that Section 362 was based on the doctrine of functus officio:
"10. ... The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error."
112. The doctrine of functus officio exists to provide a clear point where the adjudicative process ends and to bring quietus to the dispute. Without it, decision-making bodies such as courts could endlessly revisit their decisions. With a definitive endpoint to a case before a court or quasi-judicial authority, parties are free to seek judicial review or to prefer an appeal. Alternatively, their rights are determined with finality. Similar considerations do not apply to decisions by the state which are based entirely on policy or expediency.
113. Turning to the present case, the appellants' argument that the Union Government was rendered functus officio after establishing the OAT does not stand scrutiny. The decision to establish the OAT was administrative and based on policy considerations. If the doctrine of functus officio were to be applied to the sphere of administrative decision-making by the state, its executive power would be crippled. The state would find itself unable to change or reverse any policy or policy-based decision and its functioning would grind to a halt. All policies would attain finality and any change would be close to impossible to effectuate.
114. This would impact not only major policy decisions but also minor ones. For example, a minor policy decision such as a bus route would not be amenable to any modification once it was notified. Once determined, the bus route would stay the same regardless of the demand for, say, an additional stop at a popular destination. Major policy decisions such as those concerning subsidies, corporate governance, housing, education and social welfare would be frozen if the doctrine of functus officio were to be applied to administrative decisions. This is not conceivable because it would defeat the purpose of having a government and the foundation of governance. By their very nature, policies are subject to change depending on the circumstances prevailing in society at any given time. The doctrine of functus officio cannot ordinarily be applied in cases where the government is formulating and implementing a policy.
115. In the present case, the State and Union Governments' authority has not been exhausted after the establishment of an SAT. Similarly, the State and Union Governments cannot be said to have fulfilled the purpose of their creation and to be of no further virtue or effect once they have established an SAT. The state may revisit its policy decisions in accordance with law. For these reasons, the Union Government was not rendered functus officio after establishing the OAT."
Thus, a conjoint reading of aforesaid would show that if the Prescribed Authority keeping the election petition pending directs for recounting of votes, then it would be an interlocutory order and against this order writ petition would be maintainable. If election petition is disposed of by the Prescribed Authority directing for recounting of votes, then it would be a 'final order' and against this order, the revision under Section 12-C(6) of the Act of 1947 would be maintainable.
Considered the submissions advanced by the learned counsel for the parties and perused the record as also considered the judgment(s), referred above.
This Court is not inclined to enter into factual matrix including the merits of the case as this Court is considering the issue of maintainability of the present petition only in the light of the operative portion of the impugned order dated 05.06.2023, quoted in earlier part of this judgment, whereby the Prescribed Authority concluded the proceedings of case/election petition instituted under Section 12-C of the Act of 1947 without granting the relief(s) as provided under Section 12-C(4)(ii) of the Act of 1947.
The judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra), which is the basis of judgment(s) passed by the Co-ordinate Bench, referred above, says that a revision under Section 12-C(6) of the Act of 1947 shall lie only against a 'final order' passed by the Prescribed Authority deciding the election application preferred under Section 12-C(1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority.
The Division Bench opined aforesaid, as in the judgment passed in the case of Abrar vs. State of U.P., reported in (2004) 5 AWC 4088, wherein the learned Single Judge was of the view that the disposal of application for recounting of votes would amount to a 'final order' as it disposes of the application for recounting of votes finally. The Division Bench of this Court also observed that 'final order' would be, if the election application is allowed or dismissed, as would appear from the relevant portion of the judgment passed in the case of Mohd. Mustafa (Supra), which on reproduction reads 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."
After the judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra), this Court in the judgment(s), referred above, entertained the writ petition(s) challenging the order(s) of recounting of votes considering it to be interlocutory order. In the case of Parshuram (Supra), the Co-ordinate Bench of this Court, after considering the judgment passed in the case of Mohd. Mustafa (Supra) as also the order passed by the Prescribed Authority in a case instituted under Section 12-C of the Act of 1947, whereby the Prescribed Authority while passing the order neither set aside the election nor declared the election to be void nor declared the concerned to be duly elected rather has directed for recounting of votes and allowed the election petition and considering the nature of the order as also the expression 'functus officio' in the light of Constitutional Bench judgment passed in the case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and Others; reported in AIR 1955 SC 233, specifically observed that "after Election Tribunal pronounces its decision, it becomes 'functus officio'". Co-ordinate Bench of this Court, after considering the relevant provisions of the Act of 1947 and the judgment passed by the Division Bench in the case of Mohd. Mustafa (Supra) as also the judgment passed by the Constitutional Bench of the Hon'ble Apex Court also observed in regard to such order that the same should be treated as 'final order' in all respects.
A conjoint reading of the judgment passed by the Division Bench of this Court in the case of Mohd. Mustafa (Supra) and the judgment passed by the Co-ordinate Bench of this Court in the case of Parshuram (Supra), would make the point crystal clear that the revision under Section 12-C(6) of the Act of 1947 would be maintainable against the 'final order' passed in the election petition and not against an interlocutory order which includes the order passed for recounting of votes without concluding the proceedings instituted under Section 12-C(1) of the Act of 1947.
This Court has already observed that a conjoint reading of aforesaid would show that if the Prescribed Authority keeping the election petition pending directs for recounting of votes then it would be an interlocutory order and against this order writ petition would be maintainable. If election petition is disposed of by the Prescribed Authority directing for recounting of votes, then it would be a 'final order' and against this order, the revision under Section 12-C(6) of the Act of 1947 would be maintainable.
The word 'functus officio' has already been taken note of in earlier part of this judgment, as per which, once a judge or a quasi-judicial authority has rendered a decision, it is not open to revisit the decision and amend, correct, clarify, or reverse it, except in the exercise of the power of review, conferred by the law and once a judicial or quasi-judicial decision attains finality, it is subject to change only in proceedings before the appellate authority and in this case, as per statutory provision i.e. Section 12-C(6) of the Act of 1947, the District Judge is the Revisional Authority.
In the instant case, the Prescribed Authority has passed the 'final order', which is impugned in this petition, whereby, he allowed the election petition and directed for re-counting of votes with a further direction to the effect that after necessary action, the matter be consigned to record. As such, the order, in issue, is covered under the expression 'final order' and being so, this Court is of the view that the revision would be maintainable under Section 12-C(6) of the Act of 1947.
Accordingly, considering the statutory remedy available to the petitioner, this Court is not inclined to entertain this petition assailing the order dated 05.06.2023 passed by the Prescribed Authority. Accordingly, the present petition is finally disposed of with liberty to the petitioner to approach Revisional Authority, as provided under Section 12-C(6) of the Act of 1947.
In view of the aforesaid as also taking note of the observations made by the Hon'ble Apex Court in the judgment(s) passed in the case of Dana Rajeshwari vs. Bodavula Hanumayamma and Others; reported in AIR 1997 SC 1541; Virender Kumar Rai And Others vs. Union of India And Others; reported in (2004) 13 SCC 463 and Trai Foods Ltd. vs. National Insurance Co. And Others; reported in (2004) 13 SCC 656, it is provided that if the petitioner prefers the revision within a period of 30 days, which is the limitation prescribed for preferring the revision assailing the order passed by Prescribed Authority, the same shall be decided on merits.
Till expiry of 30 days' period from today, the Authority concerned shall not proceed in the case as per the directions of Prescribed Authority.
Order Date :-21.07.2023 Vinay/-