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2005 DIGILAW 2300 (ALL)

Sunita Patel, Arvind Patel v. State of U. P.

2005-11-23

SUSHIL HARKAULI, VIKRAM NATH

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SUSHIL HARKAULI AND VIKRAM NATH, JJ. ( 1 ) BOTH these writ petitions involve common question of law. The facts are not disputed. Therefore, both the petitions are being decided by this common judgment. ( 2 ) WRIT Petition No. 69710 of 2005 relates to the election of the Member of Zila Panchayat from ward No. 25, Salempur Bhaluani Anshik, district, Deoria. Polling was held on 20. 10. 2005. In the counting which took place on 27. 10. 2005, the petitioner - was found to have secured the highest number of 2712 votes and was declared successful by the Returning Officer on the same day. A certificate was also issued to that effect on 27. 10. 2005, which has been filed as annexure-1 to the writ petition. It appears that hereafter there was some complaint, upon which recounting, re-tallying of votes was done and based upon that the Returning Officer subsequently issued another certificate on the same day in favour of respondent No. 5, which has been filed as annexure-5 to the writ petition. Prayer has been made for quashing the certificate issued in favour of respondent No. 5. ( 3 ) WRIT Petition No. 70197 of 2005 relates to the election of Member of Kshettra Panchayat from ward No. 42, Govindpur II, Block Mardaha, district Ghazipur. In the counting which took place on 25. 10. 2005, the petitioner was found to have secured the highest number of votes and was declared elected on the same date. The Returning Officer issued certificate too the said effect on the same date, which has been filed as Annexure-1 to the writ Petition. Thereafter, it appears that an order for recounting was passed by the Returning Officer on the next day i. e. , 26. 10. 2005 fixing 29. 10. 2005 as the date for recounting. It is alleged in paragraphs 9 and 10 that even before the date for recount, the respondent No. 5 was declared elected and on 29. 10. 2005, the respondent No. 4 passed an order declaring respondent No. 5 as elected and directing the petitioner to return the certificate already issued to him. It is this order, which has been challenged in this petition. 10. 2005, the respondent No. 4 passed an order declaring respondent No. 5 as elected and directing the petitioner to return the certificate already issued to him. It is this order, which has been challenged in this petition. ( 4 ) WE have heard learned Counsel for the petitioners, Sri P. N. Rai, learned Counsel for the State election Commission, learned standing Counsel for the State respondents and the Counsel for private respondents in both the writ petitions and have perused the counter affidavit filed by the state Election Commission in both the writ petitions and the short counter affidavit filed by the respondent No. 5 in Writ Petition No. 69710 of 2005. ( 5 ) AS noticed above, in both the writ petitions, election was held and after counting, the result was declared in favour of the petitioners by the Returning Officer under Rule 54 of the UP. Kshettra Panchayat and Zila Panchayat (Election of Members) Rules, 1994. The declaration of result is certified by the certificates to that effect issued by the Returning Officer in favour of the petitioners of both the writ petitions. After the certificates were issued, there was some objection on the basis of which the Returning Officer got the votes recounted/recomputed/re-tallied and as a result of such computation declared that the private respondents in each of the writ petitions as elected and not the petitioner. The petitioners have challenged this action of the Returning officer by these writ petitions. ( 6 ) ACCORDING to the contention of the petitioners, after declaring the result and issuing this certificate evidencing such declaration, the Returning Officer became functus officio and had no power to review his decision regarding the returned candidate. ( 7 ) RELIANCE has been placed from the petitioners side upon the following decisions of this Court by three different Division Benches: (1) Smt. Ram Kanti v. District Magistrate (1995) 2 UPLBEC 771; (2) Shyam Sakhi v. The State Election Commission (2000) 3 UPLBEC 2097 ; and (3) Shambhu Singh v. State Election Commissioner 2000 (91) RD 619. ( 8 ) FROM the side of the private respondents, reliance has been placed upon the decision of the supreme Court in the case of Krishna Ballabh Prasad Singh v. Sub-Divisional Officer AIR1985 SC 1746 , 1985 (33 )BLJR639 , 1985 (2 )SCALE1402 , (1985)4 SCC194 , [1985 ]supp2 SCR532 , 1985 (17 )UJ1067 (SC ). ( 8 ) FROM the side of the private respondents, reliance has been placed upon the decision of the supreme Court in the case of Krishna Ballabh Prasad Singh v. Sub-Divisional Officer AIR1985 SC 1746 , 1985 (33 )BLJR639 , 1985 (2 )SCALE1402 , (1985)4 SCC194 , [1985 ]supp2 SCR532 , 1985 (17 )UJ1067 (SC ). ( 9 ) THE said decision of the Supreme Court has been considered in paras 9 and 10 of the decision in the case of Smt. Ram Kanti (supra ). The remaining two Division Bench decisions have relied upon the case of Smt. Ram Kanti and have not found any reason to disagree. ( 10 ) WE have been taken through the Rules relating to the Zila Panchayat Election referred to above as also the Rules which were subject matter of the decision of the Supreme Court and which are known as Conduct of Election Rules, 1961. ( 11 ) UNDER the Conduct of Election Rules, 1961, the grant of certificate to the returned candidate in Form 22 is governed by Rule 66. Relevant words of which Rule provide that the certificate of election in Form 22 is to be granted by the Returning Officer after a candidate has been declared by the Returning Officer to be elected. Section 66 of the Representation of People Act, 1951 provides that the Returning Officer after completion of counting of votes must declare forthwith the result of the election in the manner provided in this Act or the Rules made thereunder. The manner of declaration of results is prescribed by Rule 64 of the Conduct of Election Rules, 1961, and according to that rule, the result has to be declared in Form 21 C in case of regular elections and in Form 21 D in case of elections to fill up casual vacancies. In the case of Krishna Ballabh prasad Singh (supra), the Returning Officer without declaration in Form 21-C had issued the certificate under Rule 66 of the Conduct of Election Rules, 1961. Thus, it was held by the supreme Court that if declaration of result had not been made in Form 21- C, the grant of certificate under Rule 66 was misled and of no legal consequence. However, Rule 54 of the UP. Thus, it was held by the supreme Court that if declaration of result had not been made in Form 21- C, the grant of certificate under Rule 66 was misled and of no legal consequence. However, Rule 54 of the UP. Kshettra Panchayat and Zila Panchayat (Election of Members) Rules, 1994 (in short referred to as 1994 Rules), which provides that the Nirvachan Adhikari (Returning Officer) shall declare the candidate securing the highest number of votes in their respective constituencies to be duly elected does not prescribe the declaration to be made by the Returning Officer in any prescribed form before issuing the certificate. Although, we have not been able to find out any provision in the Rules regarding issue of a victory certificate by the Returning Officer but the value of certificate issued originally in the name of the petitioners in both the writ petitions by the returning Officer can definitely be used as evidence of the declaration of result under Rule 54 of the 1994 Rules. ( 12 ) AFTER the declaration of result, the Returning Officer has not been given any power either by the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 or by the U. P. Kshettra Panchayat and Zila Panchayat (Election of Members) Rules, 1994 to review its decision or to get a recounting done. ( 13 ) THE next contention from the side of the private respondents is that the reporting of the result under Rule 56 of the 1994 Rules should be held to be an integral part of the declaration of result under Rule 54 of the 1994 Rules on the ground that the superintendence and control of the election is with the State Election Commission and till the dispatch of the papers under Rule 66 of the 1994 Rules is completed, the Returning Officer would be well within his powers to get the ballot recounted, re-tallied or recomputed. 13. To consider this submission, it would be appropriate to refer to the Rules 54 to 56 of the 1994 Rules, which read as follows: 54. Declaration of result.- The Nirvachan Adhikari shall declare candidate securing the highest number of votes in their respective constituency to be duly elected. 55. 13. To consider this submission, it would be appropriate to refer to the Rules 54 to 56 of the 1994 Rules, which read as follows: 54. Declaration of result.- The Nirvachan Adhikari shall declare candidate securing the highest number of votes in their respective constituency to be duly elected. 55. Equality of votes.- If after the counting of the votes is completed, an equality of votes is found to exist between any candidates and the addition of one vote will entitle any of those candidates to be declared elected, the Nirvachan Adhikari shall forthwith decide between these candidates by lot, and proceed as if the candidate on whom the lot falls had an additional vote. 56. Report of result.- As soon as may be after the result of an election has been declared, the niryachan Adhikari shall report the result, to the District Magistrate and shall also inform the block Development Officer of the Kshettra Panchayat or Chief Executive Officer of Zila panchayat as the case may be. The District Magistrate shall report the result to the State election Commission. ( 14 ) THE argument of the respondent can not be accepted firstly for the reason that the scheme of the 1994 Rules suggest that with the declaration of the result by the Returning Officer under rule 54 of the said Rules, the election stands concluded and communication of the result is only consequential-formality and by no stretch can it be held that the communication of the result by the Returning Officer to the District Magistrate and, thereafter to the State Election Commission under Rule 56 of the 1994 Rules is an integral part of the declaration of result under Rule 54 of the 1994 Rules. The other reason for not accepting this submission is that the State Election commission does not have the power to exercise the said power of superintendence in violation of the statutory Rules. In fact, such power on part of the State Election Commission is ruled out by the provisions of Article 243 O, which provides that an election can be called into question only by way of an election petition and not otherwise. In fact, such power on part of the State Election Commission is ruled out by the provisions of Article 243 O, which provides that an election can be called into question only by way of an election petition and not otherwise. ( 15 ) THUS, we are of the opinion that the law laid down by the three Division Benches of this court referred to above is correct and after the result was declared under Rule 54 of the 1994 rules, the only remedy left to the private respondents was to challenge the same by way of an election petition and not by way of an objection either before the Returning Officer or before the state Election Commission. ( 16 ) IT has been suggested that taking this kind of view may result in misuse of his power by the returning Officer. We are unable to agree because the Returning Officer is a government servant and any illegal action on his part is liable to visit the Returning Officer with departmental consequences, which is a sufficient safe-guard for the Returning Officer not to deviate from the law. ( 17 ) FROM the side of the private respondents, it has been argued that our Jurisdiction under article 226 of the Constitution of India in this matter is barred by the said Article 243 O of the constitution. ( 18 ) THE said Article reads as follows: 243-O. Bar to interference by Courts In electoral matters.- Notwithstanding anything in this constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any Court; (b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and In such manner as is provided for by or under any law made by the Legislature of a State. ( 19 ) IN our opinion, the said Article bars the jurisdiction in respect of the ejection, which stood concluded by the declaration granted under Rule 54 of the 1994 Rules. ( 19 ) IN our opinion, the said Article bars the jurisdiction in respect of the ejection, which stood concluded by the declaration granted under Rule 54 of the 1994 Rules. Any subsequent act of the returning Officer or the State Election Officer, which is contrary to the statute and the statutory rules is no part of the election and, therefore, the same is liable to be adjudicated under Article 226 of "the Constitution of India, more particularly when there are no disputed questions of fact involved. ( 20 ) WE, therefore, allow both these writ petitions, set-aside the declarations in favour of the private respondents in the two writ petitions and hold that the declaration granted in favour of the petitioners under Rule 54 are final subject only to the right of the private respondents or other persons to challenge the said result of the petitioners by way of an election petitions. ( 21 ) BOTH the writ petitions are allowed as above. No order as to costs. . .