A recounting order is interlocutory and can be challenged through a writ; adequate statutory remedy exists through revision for final orders only.

1. Heard Shri Amrendra Nath Tripathi, learned counsel for the petitioner along with Shri Ashish Raman Mishra, Advocate. Notice on behalf of the respondent Nos.1 and 2 has been accepted by the office of Chief Standing Counsel. Shri Atul Kumar Dubey, learned counsel has accepted notice for the respondent Nos.3 and 4. Shri Sachin Srivastava, learned counsel has put in appearance on behalf of the respondent No.5.

2. The instant petition has been preferred by the petitioner under Art.226 of the Constitution of India assailing the order dated 24.03.2023 passed by the Prescribed Authority / Sub Divisional Magistrate, Sadar, District Bahraich in Election Petition bearing Case No.3608/2021 (Computerized Case No.T202108150103608), whereby the Prescribed Authority while allowing the election petition has simultaneously passed an order of recounting to be held on 31.03.2023 at 11:00 AM and the petition has been consigned to record.

3. At the very outset, the learned counsel for the respondent No.5 has raised an objection regarding maintainability of the petition and it is submitted that in light of the provisions contained under S.12 - C(6) of the U.P. Panchayati Raj Act, 1947 , the petitioner has an adequate and statutory remedy of filing a revision and for the aforesaid reasons, the instant petition is not maintainable.

4. It has further been submitted that the Prescribed Authority has taken note of the evidence and the material which was available on record and has recorded a finding that there are certain discrepancies and the same can only be resolved by taking recourse to recounting as such there can be no error found in the said order. Since, the election petition has been consigned to record, it would amount to final order and in the aforesaid circumstances, the petitioner has adequate and statutory remedy of filing a revision and for the aforesaid reasons, the writ petition may not be entertained.

5. Learned counsel for the petitioner while responding to the preliminary objection submits that the order of recounting is an interlocutory order by its nature and it can only be passed in aid of a final order. The Prescribed Authority has erred in exercise of its jurisdiction by passing the impugned order, the effect of which is that the recounting is to be held on 31.03.2023 and without even declaring the result of the election petition in the sense whether the election petition would stand allowed or dismissed, which has been postponed and the recounting has been ordered and once the petition has been consigned, the Prescribed Authority would become functus officio and the effect of the recounting shall also be futile as no order thereafter can be passed by the Prescribed Authority as he has consigned the file rendering him functus officio. Thus the order of recounting being interlocutory in nature, it is always assailable in exercise of writ jurisdiction before this Court and in support of his submissions, he placed the reliance of the decision of Division Bench of this Court in the case of Mohd. Mustafa v. U.P. Ziladhikari and others , 2007 SCC OnLine All. 1564 : (2007 (5) ALJ 437).

6. Learned counsel for the petitioner has also drawn attention of the Court to the decision of another Coordinate Bench of this Court in Rajesh Kumar v. District Judge, Shrawasti and others , in Writ Petition No.9609 (M/S) of 2018, decided on 12.04.2019 : (AIROnLine 2019 All. 3178). Another later decision of this Court in the case of Parshuram v. State of U.P. and Others , 2023 (1) ADJ 693 (LB) : (2023 (2) ALJ 310) has also been relied upon