JUDGMENT :

1. Petitioner before this Court is a returned candidate (Village Pradhan of Village Panchayat Pawatikalan, Kairana, District Shamli) whereas contesting Respondent-2/ Election Petitioner (Smt. Anita) is runner up candidate and the margin of victory was only three votes.

2. The election petitioner (Respondent-2) filed an election petition under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “Act, 1947”) wherein after exchange of pleadings following five issues were framed:

^^1- D;k isVh'kuj o vU; izfroknhx.k us xzke ikoVhdyka ls iz/kku in gsrq fof/k vuqlkj vkosnu izLrqr fd;k Fkk ;fn uk rks izHkko D;k\
2- erx.kuk ds nkSjku oknh ds ,tsaVks }kjk D;k&Dk vkifŸk mBk;h x;hA D;k bUgs izfroknh la- 15 o 16 }kjk vLohdkj fd;k x;k ;fn gkW rks izHkko\
3- mDr ;kfpdk es fd;s x;s dFkuks ds vuqlkj erx.kuk fof/k o fu;e ds vuqlkj ugh dh x;h ;fn gk rks izHkko\
4- D;k ;kfpdk esa fd;s x;s dFku ds vuqlkj iqu% erx.kuk fd;k tkuk gS\
5- D;k oknh vU; dksbZ vuqrks"k ikus dk gdnkj gS ;fn gka rks D;k\^^

3. Sub-Divisional Magistrate, Kairana after considering material on record by impugned order dated 23.12.2022 accepted election petition and disposed of same with direction of recounting. Petitioner has approached this Court directly without availing alternative remedy provided under Section 12-C(6) of Act, 1947.

4. A preliminary objection was raised by Sri Bhupendra Kumar Tripathi, Advocate holding brief of Sri Vineet Singh Parmar, learned counsel appearing for Respondent-2, with regard to maintainability of writ petition and he placed reliance on a Constitution Bench decision of Supreme Court in Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233 and relevant para 23 is reproduced as under:

“23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which, the boundary between the two classes of errors could be demarcated.”

5. In reply to preliminary objection Sri Anurag Khanna, learned Senior Advocate assisted by Sri Nipun Singh and Sri Raghav Dev Garg, learned counsel for petitioner, placed reliance on a judgment passed by Division Bench of this Court in Mohd. Mustafa vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others, 2007(7) ADJ 1 (DB) and he referred the answers to the question referred by learned Single Judge. Relevant para 27 is mentioned hereinafter:

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.”

6. Learned Senior Advocate also referred that facts of the matter under reference are similar to present case wherein election petition was finally disposed of with direction of recounting of votes and as such writ petition is maintainable against order of recounting pass