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A.F.R.

Neutral Citation No. . 2024:AHC:109919

Court No. . 49

Case :. WRIT . C No. . 14461 of 2024

Petitioner :. Smt Asha Devi

Respondent :. Prescribed Authority / Sub Divisional Magistrate And 8

Others

Counsel for Petitioner :. Bhagwan Dutt Pandey,Girja Shanker Sen

Counsel for Respondent :. Bheshaj Puri,C.S.C.,Sarvesh Pandey

Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the petitioner, learned counsel for the private

respondent No. 3 as well as learned Standing Counsel for the State-

respondents and perused the record on board.

2. Petitioner has invoked the extraordinary jurisdiction of this Court

under Article 226 of the Constitution of India assailing the order dated

21.3.2024 passed by Sub-Divisional Officer, Aonwla, Bareilly whereby

election petition under Section 12-C of UP Panchayat Raj Act, 1947 (in

brevity, ‘Act, 1947’) moved on behalf of Rajkumari, respondent No. 3,

has been allowed and she has been declared returned candidate on the

post of Pradhan of the village Guleli, Vikas Khand Ramnagar, Tehsil-

Aonwla, District Bareilly, after recounting of ballot papers in pursuance

of the order dated 2.3.2024.

3. Facts culled out from the record are that in UP Panchayat Election

2020-2021 held on 15.4.2021, present petitioner has been declared

successful to the post of Pradhan. Counting of votes was conducted on

2.5.2021 and, thereafter, result was declared on the same day. In the final

result, returned candidate (petitioner) has secured 650 votes and the first

runner respondent No. 3 has secured 644 votes. Having been aggrieved

with the result of the panchayat election, Smt. Raj Kumari (respondent

No. 3) has filed an election petition dated 25.5.2021 with the prayer to

cancel the election result on the post of Pradhan of village/Gram

Panchayat, Guleli and declare the election-petitioner as a returned

candidate after recounting of votes. After exchange of respective

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pleadings between the parties, learned Prescribed Authority (Election

Tribunal) has framed as many as 11 issues and, after due discussion, has

allowed the election petition in part, vide its order dated 2.3.2024, with a

direction for recounting of ballot papers fixing 9.3.2024 as a date. Having

been aggrieved with the order of recounting dated 2.3.2024, the returned

candidate (present petitioner) has preferred a revision dated 12.3.2024

which has been ordered to be registered and admitted, vide order dated

22.3.2024 (Annexure No. 10). During pendency of the revision,

recounting process was completed. Consequently, the Prescribed

Authority has passed fresh order dated 21.3.2024 allowing the election

petition and declared the respondent No. 3 as a returned candidate, which

is under challenge before this Court.

4. In this backdrop of the facts, learned counsel for the petitioner, while

assailing the order impugned dated 21.3.2024, has questioned the

jurisdiction of the Prescribed Authority in passing the order dated

21.3.2024 on the ground that while passing the previous order dated

2.3.2024, whereby election petition has been allowed in part, the

Prescribed Authority became functus officio, thus, he has inherent lack of

jurisdiction to pass subsequent order impugned dated 21.3.2024 whereby

the same election petition has been allowed second time and,

consequently, respondent No. 3 has been declared as a returned candidate.

He has laid emphasis on the final observation made by the Prescribed

Authority in its previous order dated 21.3.2024 whereby election petition

has been partially allowed. It is next submitted that once the election

petition has been partially allowed without fixing any date for further

proceeding or action, it amounts to final decision on the election petition

and nothing remains to be decided in the said petition. Thus, subsequent

order dated 21.3.2024 passed by the Prescribed Authority, who became

functus officio, is nullity in the eye of law. In support of his submissions,

learned counsel for the petitioner has placed reliance on the follwoing

cases:

(i) Parshuram vs. State of UP and others (Matter under Article 227

No. 31424 of 2021), decided on 23.12.2022 by coordinate Bench at

Lucknow of this Court, 2022 O Supreme (All) 1629,

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(ii) Manoj Devi vs. State of UP and 20 others (Writ C No. 33777 of

2022), decided on 29.3.2023 by the coordinate Bench of this Court,

Neutral Citation No. 2013:AHC:67092

(iii) Ram Kali vs. District Judge Hardoi and 10 others (Writ C No.

6852 of 2023), decided on 9.8.2023 by the coordinate Bench at

Lucknow of this Court (Neutral Citation No. 2023: AHC-LKO

53074), and

(vi) Smt. Maneeta Devi vs. State of UP and 8 others (Writ C No.

10442 of 2022), decided on 13.4.2022 by the coordinate Bench of this

Court (Neutral Citation No. 2022:AHC:54664)

5. Per Contra, learned counsel for the contesting respondent No. 3 has

vehemently opposed the submissions as advanced by the learned counsel

for the petitioner and contended that issuing a direction for recounting of

the ballot papers is simply an aid to final decision on the election petition,

therefore, order of recounting cannot be treated as a final order rather

same is an interlocutory order, therefore, after recounting of ballot papers,

final decision has rightly been taken on the election petition, vide order

impugned dated 21.3.2024. It is next submitted that direction for

recounting of the ballot papers amounts to pendency of the election

petition subject to final outcome of the recounting. Thus, learned Tribunal

has rightly allowed the election petition finally, having regard to the result

of the recounting. In support of his contention, learned counsel for the

respondents has placed reliance on the follwoing judgments:-

(i) Mohd Mustafa vs. U.P. Ziladhikari and others, 2007 103 RD 282,

(ii) Kusum Misra vs State of U.P., 2023 (5) AWC 4247, and

(iii) Jahida Begam vs State of U.P. and 8 others, 2023 AIR (All) 120.

6. Having considered the rival submissions advanced by learned counsel

for the parties and perusal of record, it is manifested that point for

consideration in the instant writ petition lies in a narrow compass as to

whether the Prescribed Authority has become functus officio while partly

allowing the election petition and issuing a direction for recounting of

ballot papers, vide order dated 2.3.2024, thus, he has inherent lack of

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jurisdiction to pass subsequent order dated 21.03.2024, having considered

the final outcome of recounting, again allowing the same election petition

finally and declaring the respondent No. 3 as a returned candidate?

7. In view of the point involved in the instant matter, as mentioned above,

it would be befitting to define the phrase “Functus Officio”. Needless to

say that any judge or quasi-judicial authority would be considered as

functus officio in the eventuality that he/she has performed his/her duty

finally in its official capacity and nothing remains to be

decided/considered/revisit on the said subject matter unless there is a

legal provision to do so. In the recent judgment of Orissa Administrative

Tribunal Bar Association vs. Union of India and others, 2003 SCC

OnLine SC 309, Hon. Supreme Court has discussed the phrase “functus

officio”. The relevant paragraphs of the aforesaid judgment are quoted

herein below:-

107. P. Ramanath Aiyer’s The Law Lexicon (1997 edition)

defines the term functus officio as:-

"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 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

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110. For instance, Section 362 of the Code of Criminal

Procedure 1975 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

70. 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.

115. 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

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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."

8. In the matter of Lalit Narayan Mishra vs. State of Himachal

Pradesh and others, 2016 SCC OnLine HP 2866, Division Bench of

Hon’ble Himachal Pradesh High Court has held that "Functus officio" is a

Latin term meaning having performed his or her office. With regard to an

officer or official body, it means without further authority or legal

competence because the duties and functions of the original commission

have been fully accomplished. "Functus" means having performed and

"officio" means office. Thus, the phrase functus officio means having

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performed his or her office, which in turn means that the public officer is

without further authority or legal competence because the duties and

functions of the original commission have been fully accomplished.

Trayner's Latin Maxims, 4th Edn. gives the expression functus officio the

following meaning “Having discharged his official duty. This is said of

any one holding a certain appointment, when the duties of his office have

been discharged. Thus a Judge, who has decided a question brought

before him, is functus officio and cannot review his own decision.”

In Wharton's Law Lexicon, 14th Edn., the expression functus officio is

given the meaning: "a person who has discharged his duties, or whose

office or authority is at an end."

P. Ramanatha Aiyar's Law Lexicon gives the expression the meaning: "A

term applied to something which once has had a life and power, but

which has become of no virtue whatsoever. Thus when an agent has

completed the business which he was entrusted his agency is functus

officio."

In Black's Law Dictionary Tenth Edition, meaning of functus officio is:

"having performed his or her office (of an officer or official body)

without further authority or legal competence because the duties and

functions of the original commission have been fully accomplished." In

other words, the authority, which had a life and power, has lost everything

on account of completion of purpose/activities/act.

(Emphasis added)

9. Dealing with the execution proceedings, Hon’ble Single Bench of

Madras High Court in the matter of VG Naidu vs. Pahalraj Gangaram,

2016 SCC OnLine Mad 9710 has observed that till the time of limitation

subsists, there can be any number of execution applications and if statute,

provides power to correct certain account of certain kinds of errors, then

the doctrine of functus officio would be subject to such qualification and

its applicability would dependent upon the nature and extent of power

conferred on the authority functioning. It is further observed that

“principle of finality is attached to the doctrine of functus officio, but,

there are exceptions to the principle of finality. However, the court's

inherent power to set aside the judgment only be invoked in exceptional

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circumstances to avoid miscarriage of justice. Fraud as is a genuine,

albeit limited, exceptions to the important principle of finality of

litigation.

(Emphasis added)

10. To apply the proposition of law qua functus officio, as discussed

above, in the given circumstances of the present matter, it would be

befitting to refer and discuss the final observation made by the Prescribed

Authority in his order dated 2.3.2024, which is quoted herein below:

A.F RC. ouurt N 4r 9aNs es t: Nu PNot4N sNi4: nNsp

4p 9dol4 fe Hr 'up4Ns 4p iN.p bDh n.e.ks,d 4p

पुन गणना के आधार पर चुनाव याचिका राजकुमारी हेतु वि#ना के आधार पर चुनाव याचिका राजकुमारींक

09-03-2024

विनयत की जा के आधार पर चुनाव याचिका राजकुमारीती है। मतपत्रों की

e: J() N 4p 4NPJuNbp ou4NH vSU sNn (s .bHpM

9duMN oiMN csrMp n2 4sNPp iNPr(p h

“Thus, in view of the discussion as above, election

petition of Raj kumari is partly allowed. Date 9.3.2024

is being fixed for recounting of ballot papers.

Proceeding of recounting will be conducted in Vikas

Khand, Ram Nagar, Tehsil Aonwla, District Bareilly.”

(Tranlation by Court)

11. It is evident from the first order dated 2.3.2024 passed by Prescried

Authority that the election petition has been allowed partially fixing the

date for recounting, without fixing any date for further hearing in the

election petition, which resulted into final termination of the proceeding

in election petition filed on behalf of respondent No. 3 under section 12-C

of the Act, 1947. There is nothing on record to demonstrate that further

date has been fixed for hearing in the election petition intending to decide

it finally after final outcome of the recounting. Thus, a genuine question

has arisen as to what remains to be decided in the election petition while

it has been allowed, even partially, without fixing any further date for the

purposes of further hearing in the election petition? Recounting of ballot

papers was the consequential effect of the order dated 2.3.2024. However,

declaring the respondent No. 3 as a returned candidate in consequence to

the final outcome of the recounting may be a ministerial/procedural issue,

but, same cannot be made an integral part of the such judicial proceedings

under Section 12-C of the Act, 1947, which has already been terminated

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by previous order dated 2.3.2024. Partly allowing the election petition

and fixing the date for recounting, vide order dated 2.3.2024 passed by

Prescribed Authority, is a paramount consideration for the purposes to

decide as to whether, after said order being passed, the Prescribed

Authority became functus officio or not. Dealing with this question, the

coordinate Bench at Lucknow of this Court in the case of Parshuram

(supra) has held that once the final order has been passed in an election

petition, the Prescribed Authority became functus officio and cannot pass

any order subsequent thereto even if election petition has been decided

finally for recounting of votes. The relevant paragraphs No. 6, 36 and 37

of the aforesaid judgment are quoted in hereinbelow:-

“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

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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.”

12. In the case of Mohd. Mustafa (supra), the Division Bench of this

Court has discussed scope of maintainability of the revision under Section

12-C (6) of the Act, 1947 in the event where order of recounting has been

passed by the Prescribed Authority. The questions, which were referred to

Hon’ble Division Bench, as mentioned in paragraph No.2 of the aforesaid

judgement, are quoted herein below:-

“[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

Abrar v. State of U.P., 2004 5 AWC 4088 and Ors. lays

down correct law?”

13. While answering the quetion referred in the matter of Mohd. Mustafa

(supra), Hon’ble Division Bench has shown its inability to circumscribe

to the view taken by the learned Single Judge in the matter of Abrar v.

State of U.P. and others, 2004(5) AWC 4088 that the disposal of an

application for recount would amount to be a final order as it disposes of

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the application for recounting finally. It is observed that the finality

comes only after the disposed 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.

Discussing the facts and circumstance of the Mohd. Mustafa (supra)

case, it has been observed that only the order of recount has been passed

by the Prescribed Authority and other issues were remained to be decided

after recounting of ballot papers, as to whether the election had been held

in accordance with law and as to whether the votes casted in favour of

contesting respondents have been mixed up with the votes of the returned

candidate and on the basis of which the petitioner has been declared

elected. It was further to be decided as to whether election petition is to

be allowed or dismissed. In this backdrop of the facts, Hon’ble Division

Bench of this Court has observed that by no stretch of imagination it can

be held that the order of recounting of votes has finally disposed of the

election petition. In such specific facts and circumstances of the case,

wherein simply order for recounting has been passed and original election

petition was kept pending to be decided, Hon’ble Division Bench of this

Court answered to the questions referred that revision under Section 12-

C(2) of Act 1947 is always preferred against the final order passed by the

Prescribed Authority, and the order for recounting is an interlocutory

order, therefore, revision is not maintainable. Relevant paragraphs No. 24,

25, 26 and 27 of the aforesaid case are quoted herein below:

“[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

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(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 lald 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.

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(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.”

14. Facts and circumstances of the cited case viz. Mohd. Mustafa (supra)

is distinguishable from the facts and circumstances of the present case

wherein election petition has been allowed partly by order dated

2.3.2024. Prescribed Authority has decided all the eleven (11) issues as

formulated in the election petition filed under Section 12-C of the Act,

1947 and nothing remains to be decided. It would not be befitting to

discuss the issues at this juncture inasmuch as order dated 2.3.2024 is

under challenge in revison under Section 12-C(6) of Act, 1947 which is

still pending before revisional court. While dealing with an election

petition, there would be two options available for the Prescribed

Authority; either to decide the election petition finally leaving no issue to

be decided in further proceeding or fix dates for further proceedings

intending to decide the election petition finally. If the Prescribed

Authority chose to keep the election petition pending and directs to

recount of votes then it would be an interlocutory order, in view of the

ratio decided by the Hon’ble Division Bench of this Court in the matter of

Mohd. Mustafa (supra). However, on the flip side, if the Prescribed

Authority passes an order allowing or dismissing the election petition,

may be partly, without keeping the election petition pending, with

direction for recounting of votes, then, in my considered opinion, it would

tantamount a final order and to that extent, the Prescribed Authority

would be treated as functus officio, who has finally terminated the

proceeding of election petition without keeping it pending for further

proceedings.

15. The case of Mohd. Mustafa (supra) was discussed by the coordinate

Bench at Lucknow of this Court in case of Parshuram (supra) and

concluded that Election Tribunal become functus offico after

pronouncement of its decision on the election petition. Hon’ble Judge has

considered the provisions under Article 243-O of the Constitution of India

as well. In similar facts and circumstances, wherein election petition has

been allowed and direction has been issued for recounting of ballot

papers, co-ordinate Bench of this Court in the case of Kusum Kumari

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(supra) and Ram Kali (supra) has finally upheld that such orders are final

order in the eye of law subject to remedy of revision under Section 12-C

(6) of the Act, 1947. It is apposite to mention that while entertaining the

revision under Section 12-C (6) of the Act, 1947 against the order dated

2.3.2024, the revisional court, vide order dated 22.3.2024, has considered

the order under revision as a final order to be revisable under Section 12-

C (6) of the Act, 1947 and, accordingly, passed order for admission of the

revision and its registration. While confronted with the counsel for the

parties querying the pendency of the revision petition, they have admitted

that said revision is still seized with the revisional court against the order

dated 2.3.2024.

16. In this conspectus, as above, I found substance in the submissions

advanced by the learned counsel for the petitioner that in view of

allowing the election petition partly, vide order dated 2.3.2024, that too,

without fixing any date for the further proceedings in the election petition

intending to decide any issue or to take final decision on said election

petition, the Prescribed Authority became functus officio and he has an

inherent lack of jurisdiction to entertain such election petition again and

allowed the same second time declaring respondent No. 3 as a returned

candidate. It appears, prima facie, that learned Prescribed Authority has

passed order dated 21.3.2024 in zeal, while the revision dated 12.3.2024

was seized with the revisional court to examine the legality and validity

of the order dated 2.3.2024. Even assuming that no interim order was

passed by the revisional court, the Prescribed Authority has not justified

in passing the order dated 21.3.2024 while he had already laid his hands

off from the election petition by terminating its proceeding finally vide

order dated 2.3.2024. There is no provision under the Act, 1947

authorizing the Prescribed Authority to re-entertain the election petition,

which has already been decided, and modify the previous order dated

2.3.2024 passed by him or to pass subsequent fresh order in furtherance

of the previous order. The order under challenge, passed by the Prescribed

Authority, is patently erroneous and perverse to the provisions of the Act,

1947 and same is liable to be qushed being illegal, unwarranted under the

law, cryptic and suffers from infirmity warranting the indulgence of this

Court in exercise of its extraordinary jurisdiction under Article 226 of the

Constitution of India. The existence of such order beget prejudice and

miscarriage of justice to the present petitioner, who is an elected

representative in the democratic setup.

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17. Resultantly, instant writ petition succeeds and is allowed. Order

impugned dated 21.3.2024 passed by the Prescribed Authority/Sub-

Divisional Officer, Aonwla (Annexure No. 1) is hereby quashed. Parties

are already under litigation before the Revisional Court in revision filed

on behalf of present petitioner assailing the order dated 2.3.2024. The

final outcome of the recounting, subject to objection if any at the relevant

time, shall be kept in the sealed cover and shall be subject to the final

decision of the revisional court. The revisional court, before whom

revison filed on behalf of the petitioner is pending consideration, is

expected to decide the said revision strictly in accordance with law as

early as possible.

Order Date :. 8.7.2024

vinay