- (1.) SUNIL Ambwani, J. Heard Shri M. D. Singh Sekhar, Senior Advocate assisted by Shri Arun Kumar Misra, learned Counsel for the petitioner and learned Standing Counsel. Shri A. P. Singh appears for respondent No. 4.
(2.) THE petitioner contested the election on the post of Pradhan of Gram Panchayat, Handia, Tehsil Phoolpur, Distt: Azamgarh. THE elections were held on 23. 8. 2005. THE result was declared on 9. 9. 2005. THE petitioner was declared elected with a margin of 8 votes as against Shri Ashok Kumar at the second position. THE petitioner secured 354 and Shri Ashok Kumar 346 votes, out of 1199 valid votes. Fifty votes were declared as invalid. Shri Ashok Kumar filed election petition No. 2 of 2005 under Section 12-C of the U. P. Panchayat Raj Act. He prayed for summoning the record and recount of votes and to declare him elected. He imp leaded all the other candidates as respondents. By the impugned order the application of recount of votes was allowed on 29. 1. 2007, giving rise to this writ petition. A preliminary objection was raised on the basis of the judgment in Abrar v. State of U. P. and others, (2004) 5 AWC 4088 that the order of recount is revisable under Section 12-C (6) of the Panchayat Raj Act. Learned Judge hearing the matter referred following questions on 20. 2. 2007 to be considered by the Division Bench : " (i) Whether the revision under Section 12-C (6) shall lie only against a final order passed by Prescribed Authority deciding the election petition under Section 12-C (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. "
(3.) THE Division Bench upon hearing the parties, by its judgment dated 11. 7. 2007 returned the questions as follows: " (I) A revision under Section 12-C (6) of the Act shall lie only against a final order passed by the Prescribed Authority deciding the election application preferred under Section 12-C (1) and not against any interlocutory order or order of recount of votes by the Prescribed Authority. (II) THE judgment of the learned Single Judge in the case of Abrar v. State of U. P. and others, (2004) 5 AWC 4088 does not lay down the law correctly and is, therefore, overruled to the extent of the question of maintainability of a revision petition, as indicated hereinabove. (III) As a natural corollary to the above, we also hold that a writ petition would be maintainable against an order of recount passed by the Prescribed Authority while proceeding in an election application under Section 12-C of the U. P. Panchayat Raj Act, 1947. " The parties agree that since the revision is not maintainable and that the writ petition challenges the order of recount, the matter may be heard.;