JUDGMENT

Abdul Moin, J.

Heard learned counsel for the petitioner, Dr. Udaiveer Singh, learned Additional Chief Standing counsel appearing for the State-respondents and Sri Gyanendra Mishra, learned counsel appearing for the respondent no. 5.

2. Instant petition has been filed praying for the following main reliefs:-

"(i) Issue a writ, order or direction in the nature of Certioari quashing the impugned order dated 30.12.2022 passed by Sub Divisional Magistrate/Prescribed Authority District- Sultanpur in Case No. T20214680607476 of 2021 (Nizam Haider v. Abaad Ali and Ors), as contained in Annexure No. 01 to this writ petition.

(ii) Issue a writ, order or direction in the nature of Mandamus commanding the Sub Divisional Magistrate/Prescribed Authority District Sultanpur to proceed in Case No. T20214680607476 of 2021 (Nizam Haider v. Abaad Ali and Ors), in fair, transparent and impartial manner strictly in accordance with law."

3. The case set forth by the petitioner is that an election for the post of Gram Pradhan had taken place. After election, the petitioner was declared elected as Gram Pradhan. The respondent no. 5 being aggrieved with the election of the petitioner filed an election petition under Section 12 C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947"). The said case was registered as Case No. 7476 of 2021 In re; Nizam Haider v. Abaad Ali. The learned election tribunal framed various issues of which issue no. 2 was as to whether the applicant is entitled for re-counting keeping in view the averments made in the election petition. The said issue has been decided vide order dated 30.12.2022, a copy of which is annexure no. 1 to the writ petition with the direction to the Tehsildar and Block Development Officer to recount the votes on 16.01.2023. Videography has also been directed to be done. A representative each of the applicant and the petitioner herein has also been required to be present at the time of recounting. The concerned authority has been required to make available the votes polled in order to enable the recounting in police presence. The Recounting officer has been directed to make available the result of recounting to the election tribunal and the matter has been listed on 17.01.2023 for the purpose of deciding the issues no. 1, 3 & 11.

4. The grounds taken by the learned counsel for the petitioner while challenging the said order are that:-

(a) it is only the election tribunal which could have counted the votes and there has been delegation of power to the Tehsildar and Block Development Officer which could not have validly been done. In this regard, reliance has been placed on the judgment of this Court in the case of Khilari v. The IVth Additional District Judge, Sonbhadra and other reported in AIR 1992 ALLD 186.

(b) the aforesaid officers cannot decide the validity of the invalid/valid votes which has been considered to be done while deciding the issue no. 2.

(c) recounting had already taken place prior to filing the election petition as such, no recounting can be directed to be done by the learned election tribunal.

(d) while directing for recounting, the election tribunal has patently erred in law inasmuch as it should have called for the evidence of the returning officer and assistant returning officer with regard to allegations pertaining to form 46.

5. No other ground has been urged.

6. On the other hand, Dr. Udaiveer Singh, learned Additional Chief Standing counsel as well as Sri Gyanendra Singh, learned counsel for the respondent no. 5 argue that the order passed by the election tribunal while deciding the