Court No. - 38

Case :- WRIT - C No. - 10442 of 2022

Petitioner :- Smt. Maneeta Devi

Respondent :- State Of U.P. And 8 Others

Counsel for Petitioner :- Girja Shanker Mishra,Ramesh

Kumar Tiwari

Counsel for Respondent :- C.S.C.,Sumit Daga,Tarun

Agrawal

Hon'ble Saumitra Dayal Singh,J.

Heard Sri Ramesh Kumar Tiwari learned counsel for the

petitioner, Sri Sumit Daga learned counsel for the

respondent No.4 and the learned Standing Counsel for

the State respondents.

Present writ petition has been filed by the successful

candidate challenging the order passed by the Election

Tribunal/SDM Handia, Prayagraj dated 12.1.2022

whereby the said authority hs directed for recount of the

votes cast for the election on the post of Gram Pradhan

Bhagautipur, Handia, Prayagraj.

Submission of learned counsel for the petitioner is that

the said order is contrary to law inasmuch as no finding

has been recorded on any of the issues framed in the

election petition. Specifically no finding has been

recorded with respect to issue Nos. 6 and 7 framed in that

petition. Learned counsel for the petitioner has placed

reliance on a Division Bench decision of this Court in the

case of Mohd. Mustafa Vs. Up Ziladhikari, Phoolpur,

Azamgarh and others, 2007(6) AWC 5536.

On the other hand, besides the issue on merit, Sri Sumit

Daga learned counsel for respondent No.4-election

petitioner has submitted that the present petition is not

maintainable. He would submit, by the order dated

12.1.2022 the election petition has been partly allowed.

The Election Tribunal has returned findings against the

petitioner with respect to issue Nos. 1 to 9 framed therein.

Therefore, the only remedy that may be available against

the said order is stated to be a civil revision. In that regard

reliance has been placed on a decision of a learned

Single Judge of this Court in the case of Athar Hussain

Vs. Razda Begum and others, 2017(1) 35 RD 128 and

another learned Single Judge decision in the case of

Kalektar Vs. Anil Kumar and Others, Misc. Single No.

2187 of 2018 decided on 16.2.2018. Thus, it has been

submitted that the Division Bench decision in the case of

Mohd. Mustafa (Supra) has been distinguished on facts.

Same distinction applies in the present case.

Having heard learned counsel for parties and having

perused the record, there is no quarrel between the

parties that if a final adjudication has taken place in an

election petition and order of recount has been passed

therein, the remedy available to the person aggrieved

may be to file a civil revision. If however, no final order

has been passed and the election petition is thus

pending, an order of recount passed during such

pendency may remain an interlocutory order which may

be subjected to challenge in a writ jurisdiction.

That being the undisputed principle to be applied, we may

examine the contents of the order dated 12.1.2022. In

that the Tribunal has taken note of nine issues framed by

it being:

"01.

कयय ययचच दयरय 30 प 0

पपचययत रयज एकट ननयमयवलच 1994

कक धयरय 03(1) कक

अननसयर 50 र0

कक पनतभभनत धनरयनश गयम पपचययत कक गयम ननधध खयतक मम जमय नकयय

गयय हह?

02.

कयय चननयव ययनचकय आदकश 07

ननयम 11

जय०दच सक बयधधत हह?

03.

कयय चननयव ययनचकय धयरय 80(3) जय0

दच सक बयधधत हह?

04.

कयय चननयव ययनचकय मम उ 0 प 0

सरकयर कक पक मनकदमय बनययय गयय हह। यनद नहह

तक उसकय पभयव

05.

कयय चननयव ययनचकय पकषणचय हह?

06.

कयय गयम पपचययत कक मतगणनय नवधधक ननदरशश एवप पयरदनशरतय कक सयथ नहह कक

गयच हह ?

07.

कयय ययचच कक वहध मतश कक अवहध एवप पनतपकच सपखयय 1

कक अवहध मतश कक वहध

करकक चननयव पररणयम पभयनवत नकयय गयय हह?

08.

कयय मतदयन मम पडक मतपतश कक कन ल सपखयय मम अनतर हह यनद हयप तक उसकय पभयव?

09.

कयय ययचच अनय उपसम पयनक कय अधधकयरच हह ?"

Thereafter the Tribunal has made a brief reference of the

proce