Judgment Reserved on 9.1.2023

Delivered on 28.1.2023

Court No. - 34

Case :- WRIT - C No. - 24348 of 2022

Petitioner :- Vijay Gupta

Respondent :- State Of U.P. And 12 Others

Counsel for Petitioner :- Ashish Kumar Singh,Prashant Kumar

Tripathi

Counsel for Respondent :- C.S.C.,Ravi Anand Agarwal,Shreya

Gupta

Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Ashish Kumar Singh, Advocate assisted by Sri Prashant

Kumar Tripathi, Advocate for petitioner and Sri Rakesh Pande,

learned Senior Advocate assisted by Ms. Shreya Gupta, Advocate

for Respondent-5.

2.

Before adverting to rival submissions to decide whether

Election Tribunal was legally correct to pass an order for

recounting, a preliminary submission is that while passing the

order of recounting since election petition was disposed of,

therefore, in light of judgment of co-ordinate Bench in Parshuram

Vs. State of U.P. & Ors in Matter under Article 227 No.31424 of

2021 decided on 23.12.2022, Prescribed Authority becomes

functus officio and cannot pass any order subsequent thereto i.e.

no order can be passed on the outcome of recounting.

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3. In Parshuram (Supra) co-ordinate Bench has framed issue in

paragraph no.6 and decided in paragraph 37 which are reproduced

hereinafter:

“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'?

X

x

x

37. 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.”

4.

Learned counsel for respondents has tried to state that the

order impugned is passed on basis of material available which

prima-facie shows irregularity in recounting. However, he is not

able to make any legal submission contrary to Parshuram (Supra).

5.

In view of above discussions, impugned orders dated

8.6.2022 and 10.8.2022 are set-aside and the matter is remanded

back to the authority concerned for passing a fresh order in

accordance with law keeping in view the provisions of sub-section

4 (ii) of Section 12 (C) of U.P. Panchayat Act, 1947 after hearing

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the parties expeditiously, preferably within a period of three

months from today in accordance with law.

6.

With the aforesaid direction, this writ petition is disposed of.

Order Date:28.1.2023

SB

Digitally signed by :-

SANDEEP BHATTACHARYA

High Court of Judicature at Allahabad