JUDGMENT :

1. Heard Mr. Zafar Abbas and Mr. Imtiaz Husain, learned counsel for the petitioner and Mr. Pradeep Kumar Rai, learned counsel for the respondent no.3 and Mr. Aseem Mukherjee, learned Standing Counsel for the State-respondents.

2. This writ petition has been filed by the petitioner with a prayer to quash the order dated 20.06.2023 passed by the Prescribed Authority/Sub-Divisional Magistrate, Bilari in Election Petition No.T202113540205476 of 2021 (Javed vs. Rookame Alam and others), under Sections 13-C of Panchayat Raj Act, 1947 whereby it was ordered for recounting of votes in the election held in the year 2021 of Gram Panchayat in Gram Lalpur Gangwari, Block Kundarki, Tehsil-Bilari, Moradabad and further prayer to direct the respondent no.2 not to take any further step for recounting in pursuance of order dated 20.06.2023.

Brief facts;

3. Brief facts of the case are that:-

i) The petitioner and respondent no.3; Javed contested the elections for the post of Pradhan in gram panchayat Lalpur Gangwari. Polling took place on 26.04.2021 whereby after counting, the petitioner was declared as winning candidate with the margin of 04 votes from the runner up candidate; Javed.

ii) The respondent no.3, who was defeated by margin of 04 votes, preferred election petition under Section 12(c) of Uttar Pradesh Panchayat Raj Act, 1947[“The Act, 1947”] (hereinafter referred to as ''the Act, 1947'') on 01.07.2021 stating therein that at the time of counting, Dr. Minzar s/o Abrar, Bhura s/o Yusuf and Alam s/o Nanhe colluded with the petitioner and seven ballots votes cast in favour of respondent no.3; Javed were declared invalid and one vote was kept in other category. Despite objection being raised by respondent no.3; Javed before Assistant Returning Officer/Returning Officer, nothing was done.

iii) In the aforesaid election petition, the notices were issued to the other parties and on 19.05.2023, the said election petition was dismissed by Prescribed Authority/Sub Divisional Magistrate for want of prosecution. Thereafter, on 26.05.2022, the respondent no.3 filed recall application and by order dated 01.07.2022, the order dated 19.05.2022 was recalled and the matter was fixed for 21.07.2022 directing the petitioner (respondent in election petition) to file written statement before the court below.

iv) The petitioner has filed his written statement on 14.12.2022 to which rejoinder has been filed on 06.02.2023 by respondent no.3, thereafter, date was fixed for framing of issues. On 31.05.2022, the S.D.M. Bilari has framed nine issues and closed the opportunity for producing the evidence and fixed the matter for final hearing on 07.06.2023.

v) subsequently, without providing an opportunity to the parties to appear for the statement and cross examination, the impugned order dated 20.06.2023 has been passed directing for recounting of votes. Hence the present writ petition has been filed.

Preliminary objection;

4. Learned counsel for the respondent no.3 has raised preliminary objection regarding maintainability of writ petition on the ground that against the order dated 20.06.2023 directing for recounting of votes, the petitioner had statutory remedy of filing a revision under Section 12-C (6) of the Act, 1947, therefore the writ petition is not maintainable. In support of his contention, he has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Smt.Maneeta Devi vs. State of U.P. and 8 others decided on 13.04.2022 passed in Writ-C No.10442 of 2022.

5. Answering the aforesaid preliminary objection, learned counsel for the petitioner, placing reliance upon the judgment of this Court in the case of Mohd. Mustafa vs. U.P. Ziladhikari, Phoolpur, Azamgarh and others reported in 2007 (7) ADJ 1, submits that the writ petition against the interlocutory order of recount of votes passed by the Presiding Officer, is maintainable.

6. Considering the preliminary objection, this Court has carefully perused the judgments of the Division Be