B. S. Chauhan, J. - (1.) THIS reference has been placed before us under orders of Hon'ble the Chief Justice arising out of a writ petition assailing an order of recount of votes passed by the prescribed authority while hearing an election application under Section 12C of the U. P. Panchayat Raj Act, 1947 (hereinafter called the 'Act'). The objection raised by the respondents in the writ petition was to the effect that the petitioner had a remedy of filing a revision under sub-section (6) of Section 12C of the Act against the impugned order and, therefore, the petition was not maintainable under Article 226 of the Constitution of India. The respondents relied on the decision of Abrar v. State of U. P. and others, (2004) 5 AWC 4088, to contend that the nature of the order impugned amounted to disposing of the matter which is final in nature and therefore, a revision would lie under sub-section (6) of Section 12C of the Act. The petitioner before us contended that in view of the four decisions relied on by them, a revision would not be maintainable and the objection raised by the respondents deserved to be overruled and the writ petition be entertained.
(2.) THE learned single Judge hearing the writ petition pointed out the conflict in the view taken by the learned single Judge in Abrar's case (supra), with that of the decisions relied on by the learned counsel for the petitioner and framed the following questions to be answered by a larger Bench : (I) Whether the revision under Section 12C (6) shall lie only against a final order passed by prescribed authority deciding the election petition under Section 12C (1) or a writ petition can be filed against an order of recount, which has been passed after deciding certain issues raised in the election petition ? (II) Whether the judgment of learned single Judge in 2004 (5) AWC 4088 ; Abrar v. State of U. P. and others, lays down correct law ? The answer of question No. 1 would, therefore, consequently be an answer to the question No. 2 as well. In order to appreciate the issue of reference, we would like to refer to the genesis of the dispute as contained in the order impugned in the writ petition dated 29.01.2007. The petitioner is the elected candidate to the office of Gram Pradhan having defeated the respondent No. 4 Ashok Kumar and other contestants. The margin of votes between the petitioner and respondent No. 4 was only 8 votes. The respondent No. 4 questioned the election under Section 12C of the Act by filing an election application primarily on the allegations that there was a material irregularity in the counting of votes materially affecting the result of the election. For this purpose and for the purposes of questions raised in the present writ petition, suffice it to mention that the allegations were to the effect that the candidates had been orally informed at the time of election by the Returned Officer that 1261 votes had been polled whereas at the time of counting, only 1249 ballots were found and secondly during the counting, five invalid votes have been illegally counted in favour of the elected candidate, i.e., petitioner and three valid votes of the respondent No. 4 had been wrongly counted in favour of the petitioner. The said application has been disposed of by the impugned order by recording certain reasons which, according to the petitioner, cannot form the basis of recounting. The learned single Judge while making the reference, has opined that the question raised are serious issues pertaining to the jurisdiction and powers exercisable by the prescribed authority as well as by the revisional authority under the Act and noticing the conflict, as pointed out hereinabove, the reference has been made for resolving the same.
(3.) THE provisions of Section 12C (1) and (6) of the Act are quoted below for ready reference : "12C. Application for questioning the election. (1) THE election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that, (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election ; or (b) that the result of the election has been materially affected, (i) by the improper acceptance or rejection of any nomination ; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder. 12C. (6). Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on anyone or more of the following grounds, namely : (a) that the prescribed authority has exercised a jurisdiction not vested in it by law ; (b) that the prescribed authority has failed to exercise a jurisdiction so vested ; (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity." A perusal of the aforesaid provisions indicate that an election dispute can only be raised by filing of an election application and it shall not be questioned except otherwise than in accordance with the provisions of the Act and the Rules framed thereunder. Thus, the nature of the language employed clearly indicates that all the issues have to be raised, decided and answered only through an election application. These necessarily include the question as to whether the results of the election have been materially affected for such reasons including the reason of gross failure to comply with the provisions of the Act and Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 read with the Uttar Pradesh Panchayat Raj Rules, 1947. The procedure of counting, therefore, is also an integral part of the process of election and any error in counting, which materially affects the result of the election, can also be questioned through an election application. The process of counting, therefore, if pointed out to be erroneous, can be a ground for questioning thie election and for that purpose, an application for recounting is maintainable in the proceedings when an election dispute is raised under Section 12C of the Act. The prescribed authority is empowered to pass such orders in accordance with the law as may be necessary for disposing of an application for recounting. The order passed by the prescribed authority, therefore, is an order in aid of the final determination which has to be made in respect of the election which have been made the basis for claiming a recount. The disposal of such an application by itself does not finally touch upon the result of the election and is not a final decision on the reliefs claimed in an election application. The ultimate relief claimed in an election application is to set aside the election of a successful candidate. Unless and until such an order is passed, finally determining the fate of the election, it cannot be said that an order passed for mere recount attaches finality to the proceedings. The order of recount by itself does not dispose of the election application finally and something more remains to be done thereafter, namely, the final decision on the basis of the evidence led on the question of recount. There is every possibility of the election application being dismissed in case it is ultimately found upon a recount that there is no material irregularity and conversely an election application can only be allowed after the Tribunal comes to the conclusion that the recount has materially affected the results and has tilted the balance in favour of the election petitioner. It is, therefore, obvious that the final disposal will occur only after a decision is rendered upon the outcome of the recount. As indicated above, the mere reasons given or the mere passing of an order for recount does not attach finality to the proceedings arising out of an election application under Section 12C of the Act. It is the declaration of either the ultimate success or failure of the election application that attaches finality to the proceedings.;