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2021 DIGILAW 685 (ALL)

Babita Devi v. State of U. P.

2021-07-16

SADHNA RANI THAKUR, SUNITA AGARWAL

body2021
JUDGMENT : 1. Learned counsel for the petitioner remained absent though the matter has been date fixed with his consent. This is a matter arising out of the Election of Member, Kshetra Panchayat Lalai, Ward No. 42, Vikas Khand Hathwant, Firozabad. We have heard learned counsel for the petitioner on 14.7.2021 on the legal issues and postponed the matter only to obtain instructions from the State Election Commission to ascertain the date of the declaration of the result. We, therefore, do not deem it fit to adjourn the matter today. The written instructions have been supplied by the learned counsel for the respondent-State Election Commission on 14.7.2021. Further instructions in compliance of the order dated 14.7.2021 have also been placed before us today. The Office is directed to upload the scanned copy of the written instructions and the compilation of cases supplied by the learned counsel for the respondents. 2. Heard Sri Imran Syed learned Advocate holding brief of Sri Tarun Agrawal learned counsel for the respondent-State Election Commission, Sri Ajit Kumar Singh learned Additional Advocate General assisted by Sri Sudhansh Srivastava learned Additional Chief Standing Counsel appearing on behalf of the State respondents today. 3. Placing the above instructions before us, it is pointed out by the learned counsel for the respondents that for the election of Member, Kshetra Panchayat concerned, the polling was held on 26.4.2021 at two polling booth nos. 180 and 181. The ballot boxes of both the polling booths were opened under the supervision of the Assistant Returning Officer. On 2.5.2021 when the counting was made, the petitioner Smt. Babita Devi wife of Sri Vimal Kumar had secured 169 votes at polling booth no. 181 whereas Indrapal son of Sri Pati Ram resident of Village Lalai, Block Hathwant got 77 votes and the third candidate Sri Kushalpal son of Sri Hariom resident of the same village got 163 votes. Similarly at polling booth no. 180, the petitioner Smt. Babita Devi secured 114 votes whereas Indrapal received 305 votes and Kushalpal 95 votes. The Assistant Returning Officer had issued the certificate of the elected/returned candidate to Smt. Babita Devi on 3.5.2021 on the basis of the votes of one polling booth No. 181 only. After the counting was completed, on 4.5.2021, respondent no. 7, Sri Indrapal gave a written application raising objection about the result and sought for further verification of the same. The Assistant Returning Officer had issued the certificate of the elected/returned candidate to Smt. Babita Devi on 3.5.2021 on the basis of the votes of one polling booth No. 181 only. After the counting was completed, on 4.5.2021, respondent no. 7, Sri Indrapal gave a written application raising objection about the result and sought for further verification of the same. Upon verification of the record, it was found that the votes cast at the polling booth no. 181 were not added in the final preparation of the result. By adding the votes of two polling booth nos. 180 & 181, it was found that the respondent no. 7 had received total 382 votes which was the highest whereas the petitioner Smt. Babita Devi was placed at serial no. 2 having received 283 votes. The mistake committed by the Assistant Returning Officer was corrected by the Returning Officer after issuing a notice to the petitioner herein. The order in this regard had been passed on 4.5.2021. The copies of the Election Return referable to Rules 50(e) and 53 of the U.P. Kshetra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 (In short as "the Rules, 1994") in Form 43' and the counting sheet in Form 47' as per Chapter 9 of the Guide Book for the Panchayat Elections-2021 issued by the State Election Commission, of both the polling booth nos. 180 and 181 prepared on 3.5.2021 have been placed before us alongwith the written instructions to give the details of the votes cast, ballot papers rejected and the total votes cast in favour of each candidate. Today, an extract of the entries uploaded on the portal of the State Election Commission has also been placed before the Court to demonstrate that the portal of the State Election Commission for declaration of the result was created on 18.4.2021 and the election result was uploaded on the same on 7.5.2021 at about 14:19:59.313 hours. With the help of the said written instructions, it is submitted by the learned counsel for the State Election Commission that the compliance of Rule 56 of the Rules, 1994 had been made on 7.5.2021 after correction of the clerical/arithmetical mistake in the matter of declaration of the result. With the help of the said written instructions, it is submitted by the learned counsel for the State Election Commission that the compliance of Rule 56 of the Rules, 1994 had been made on 7.5.2021 after correction of the clerical/arithmetical mistake in the matter of declaration of the result. As regards the issue of cancellation of the certificate issued in the name of the petitioner, the stand of the Returning Officer is that an effort was made to intimate the petitioner personally about the mistake before the correction of the result. The Returning Officer alongwith the Assistant Returning Officer had personally gone to the house of the petitioner but no one met there. The notice was, therefore, pasted at a conspicuous place of the house of the petitioner, and, thereafter, while cancelling the certificate issued to the petitioner, a correct certificate was issued to the returned candidate/respondent no. 7. It is, then, submitted that after uploading the election result on 7.5.2021, the portal of the State Election Commission stood locked automatically and no changes, thereafter, could have been made. The correction made by the returning officer before the declaration of the election result by the State Election Commission with uploading on the same on its portal, was for removal of an arithmetical mistake. The principle of functusofficio will not be attracted in such a situation. 4. Reliance has been placed on the decision of this Court in Smt. Tara Devi Vs. State of U.P. and others, 2011 (1) ADJ 287 (DB) to submit that the opinion of the earlier Division Bench in Smt. Sunita Patel vs. State of U.P., 2006 (2) AWC 1422 , relied by the learned counsel for the petitioner, had been held as per incuriam. 5. As regards the contention of the learned counsel for the petitioner in the argument dated 14.7.2021 that after issuance of the certificate of elected candidate to the petitioner, the Returning Officer had become functus officio and it was not open for him to make any changes in the election result, and hence the subsequent declaration of respondent no. 5. As regards the contention of the learned counsel for the petitioner in the argument dated 14.7.2021 that after issuance of the certificate of elected candidate to the petitioner, the Returning Officer had become functus officio and it was not open for him to make any changes in the election result, and hence the subsequent declaration of respondent no. 7 as elected candidate was beyond the jurisdiction of the Returning Officer, Rule 56 of Rules, 1994 has been pressed into service to contend that after the counting was completed, the result declared by the Returning Officer by issuance of the certificate in accordance with Rule 54 of the Rules, 1994 was only an intermediary stage. The Returning Officer made corrections before the communication of the result to the District Magistrate which was well within his jurisdiction. 6. Considering the above submissions, before we delve on the issues, the relevant provisions of the Rules, 1994 which govern the Election of the Member Kshetra Panchayat are to be noted for ready reference:- 53. Election return by the Nirvachan Adhikari. -The Nirvachan Adhikari shall then prepare and certify an election return in the specified form setting forth- (a) the names of candidates for whom valid votes given have been; (b) the number of valid votes given for each candidate; (c) the total number of valid ballot papers; (d) the number of rejected ballot papers; (e) the number of tendered ballot papers; and (f) the name of the candidate elected. He shall then also permit any contesting candidate or his Nirvachan Abhikarta or Ganana Abhikarta to take a copy of or an extract from such return. 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. 56. Report of result. - As soon as may be after the result of an election has been declared, the Nirvachan 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 57. Custody of the return and of the ballot papers and other papers relating to election. - (1) The Nirvachan Adhikari shall, after reporting the result of the election under Rule 56 forward the return to the District Panchayat Raj Officer for safe custody. (2) The Nirvachan Adhikari shall also forward to the District Panchayat Raj Officer for safe custody the packets of the ballot papers and all other papers relating to the election. 58. Production and inspection of election papers. - (1) While in the custody of the District Panchayat Raj Officer the packet of ballot papers, whether valid, rejected or tendered and of the marked copy of the electoral roll shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the order of a competent court or of a District Judge hearing an election petition. The inspection when ordered shall be subject to the payment of a fee at the rate of rupees two per day on which the inspection is done. (2) All other papers relating to the election shall be open to public inspection subject to such condition, if any, as the State Government may specify and subject to the payment of a fee at the rate of rupees twenty per day on which inspection is done. (3) Copies of the returns forwarded by the Nirvachan Adhikari under sub-rule (1) of Rule 57 shall be furnished by the District Panchayat Raj Officer on payment of a fee of rupees twenty for each copy. (4) Copy of such papers are allowed to be inspected under sub-rule (2) shall be given to any person applying for the same on payment of a fee at the same rate as is charged in the State for a copy of any order by a Revenue Officer. Application for copies of papers may be preferred on plain paper and no judicial stamps need be affixed. Application for copies of papers may be preferred on plain paper and no judicial stamps need be affixed. (5) Certified copy of any paper referred to in sub-rule (6) shall be attested by the District Panchayat Raj Officer concerned and will be issued from his office.” 7. As per the contention of the petitioner, the declaration of the result under Rule 54 by the Returning Officer marked culmination of the election and subsequent report of the result under Rule 56 was only a ministerial act. The Returning Officer lost his jurisdiction after the declaration of the result under Rule 54 by issuance of the certificate in the prescribed proforma to the winning candidate, the petitioner herein. For any dispute in the matter of election of the petitioner, only remedy before the respondent no. 7 was to approach the Election Tribunal. It was, thus, contended that since the question in the writ petition is about the jurisdiction of the Returning Officer to change or cancel the election result, the bar of jurisdiction of the Court in the matter of the election of Panchayats under Article 243-O of the Constitution of India will not be attracted. 8. Before we delve on the issue of the interpretation of Rules 54 and 56 of Rules, 1994, it is pertinent to note that the Apex Court while deciding the cases under the Representation of the People Act had held that the election connotes the entire process culminating in a candidate being declared elected. The election commences from the initial notification and culminates in the declaration of the return of a candidate. The election process, thus, comes to an end on the final declaration of the returned candidates. After the election process has come to an end, the State Election Commission, the District Magistrate and the Election Officer lose their jurisdiction and only authority which can deal with and decide any complaint regarding the election is the Election Tribunal. The election process, thus, comes to an end on the final declaration of the returned candidates. After the election process has come to an end, the State Election Commission, the District Magistrate and the Election Officer lose their jurisdiction and only authority which can deal with and decide any complaint regarding the election is the Election Tribunal. [Reference N.P.Punnuswami vs. Returning Officer, AIR 1952 SC 64 and Mohinder Singh Gill vs. Chief Election Commissioner, AIR 1978 SC 851 ] While dealing with a question regarding the jurisdiction of the Returning Officer, in Krishna Ballabh Prasad Singh vs. Sub-Divisional Officer Hilsa-cum-Returning Officer and others, 1985 (4) SCC 194 , the Apex Court in the matter of conduct of election to the Bihar Legislative Assembly had examined the impact of Section 66 of the Representation of the People Act, 1951 and the Rules 64 of the Conduct of Election Rules, 1961 (In short as “the Rules, 1961”) framed thereunder. It was held therein that Section 66 of the Act provides that when the counting of votes has been completed, the Returning Officer must declare forthwith the result of the election “in the manner provided in the Act or the Rules made thereunder.” The Rule 64 of 1961 Rules expressly provides the manner in which the declaration of result of election and return of election has to be prepared. The declaration in Form 21-C referable to Rule 64 of the Rules, 1961 is the final step in the process of election. It was held therein that without declaration in Form 21-C in the manner as prescribed in Rule 64, the announcement of the result by the Returning Officer with the grant of the certificate in Form 22 to the candidate was meaningless and had no legal status. Under the Rules 1961, the grant of certificate of election to the elected candidate in Form 22 is provided under the Rule 66 which contemplates the grant of such certificate only after the candidate has been declared elected under Section 66, which refers back to Rule 66 and therefore to Form 21-C. It was, thus, held that the bar of clause (b) of Article 329 of the Constitution came into operation only after the declaration in Form 21-C was made and, thereafter, the election petition alone was maintainable. 9. 9. The question raised before us is as to whether under the scheme of Rules, 1994, the issuance of the certificate to the winning candidate would amount to the final declaration of the result under Rule 54 by the Returning Officer and, thus, marked the culmination of the election process. The challenge by the petitioner to the jurisdiction of the returning officer to cancel the certificate and issue fresh certificate in favour of the returned candidate is based on the opinion of the two Division Benches of this Court in Kamlesh vs. Mukhya Nirwachan Ayukt and others, 2006 (2) AWC 1720 All and Smt. Sunita Patel (supra). The same issue had been considered by a third Division Bench of this Court in Smt. Tara Devi (supra). We would like to refer to them in a chronological manner. The Division Bench of this Court in Kamlesh (supra) in the year 2006 had held that in the matter of election of Member, Kshetra Panchayat under the Rules, 1994, the election comes to an end with the issuance of the certificate to a candidate declaring him successful and all subsequent proceedings taken by the Returning Officer were without any authority/competence. In Smt. Sunita Patel (supra), the Division Bench while considering the scope of Rules 54 and Rule 56 of the Rules, 1994, taking note of the decision of the Apex Court in Krishna Ballabh Prasad Singh (supra) had held that Rule 54 of the 1994 Rules does not prescribe the declaration to be made by the Returning Officer in any prescribed form before issuing the certificate, as prescribed in the Conduct of Election Rules, 1961, [subject matter of consideration in Krishna Ballabh Prasad Singh (supra)]. 10. It was then held that though the Rule, 1994 does not prescribe for issuance of a victory certificate to the winning candidate but such a certificate can be used as an evidence of the declaration of the result under Rule 54 of 1994' Rules. The declaration of the result by the Returning Officer in such a manner, under Rule 54 of the Rules, 1994 concludes the election and communication of the result under Rule 56 is only a consequential formality (a ministerial act); and further communication to the State Election Commission under Rule 56 of the Rules, 1994 cannot be said to be an integral part of the election process. The Returning Officer after issuance of the victory certificate cannot review its decision to get a recounting or retallying the result. The contention of the respondent therein that Rule 56 is an integral part of the election process had been brushed aside giving the reason that the State Election Commission does not have the power to exercise superintendence in violation of the statutory rules, inasmuch as, the election can only be questioned by way of an election petition and not otherwise, by virtue of Article 243-O of the Constitution of India after declaration of the result by the Returning Officer. The decision of the Division Bench in Kamlesh (supra) had been considered in Smt. Tara Devi (supra) and it was noted that in the said matter the Court had proceeded on the assumption that the issuance of the certificate is the final declaration of the result without even considering the import of Rules 54 and 56 of the Rules, 1994. This opinion drawn by the Division Bench in Smt. Sunita Patel (supra) had been held to be per incuriam in Smt. Tara Devi (supra) while examining the scope of Rules 54 and 56 of the Rules, 1994. It was held therein that Rule 54 only contemplates for the declaration of the candidate securing highest number of votes, “to be duly elected”. The words “to be duly elected” give two inputs; either he has to be elected at once or subject to the reporting of the result as contemplated under Rule 56 of the Rules. It was then noted that admittedly there is no provision for issuance of the victory certificate to the candidate under the Rules, 1994. The issuance of the certificate on the part of the authority was only an additional act which cannot by itself gives any independent cause of action to proceed. In case, the issuance of the certificate in contemplation of Rule 54 is held final, Rule 56 will be nugatory. By reading Rules 54 and 56 of 1994 Rules, it was held that the harmonious reading of the Rules makes it clear that after the declaration of the result under Rule 54, as soon as may be, the Returning Officer has to report the result to the District Magistrate and also the Block Development Officer of the Kshetra Panchayat under Rule 56, who, in turn, shall report the result to the State Election Commission. It was, thus, held that the formal declaration of the result under Rule 54 by the Returning Officer will abide by the Rule 56 of the Rules, 1994 that means, the declaration of the result under Rule 54 becomes final subject to the declaration made under Rule 56. It was observed in Smt. Tara Devi (supra) that as regards the authority of the State Election Commission, there cannot be a dispute that the Election Commission being creature of the Constitution has the power of superintendence to control and conduct the elections. With the commencement of the elections by the notification till the date of the de-notification with the final declaration of the result, the State Election Commission is the final authority to adjudicate any dispute, if it is called upon. After de-notification, it is open for an aggrieved person to approach the Election Tribunal. Further the Election Commission being the final authority during the continuance of the election process can call upon the Returning Officer to remove the defects which are either minor or formal or inadvertent. Any other officer or authority functioning under the directions of the Election Commission can also issue such direction to the Returning Officer. It was held that till the declaration of the result is made final under Rule 56, neither the Returning Officer can be said to be functus officion or the jurisdiction of the State Election Commission can be said to have come to an end. Any calculation mistake or administrative lapses can be corrected before finality is attached to the election result under Rule 56. For correction of any inadvertent mistake or formal defect, the application of the aggrieved candidate was clearly maintainable as he cannot be compelled to file an election petition for correction of such mistake. To deal with the arguments on the question of lack of jurisdiction of the Returning Officer to make correction after declaration made under Rule 54, the Division Bench in Tar a Devi (supra) had also considered the law of review as propounded by the Supreme Court in Grindlays Bank Limited vs. Central Government Industrial Tribunal, AIR 1981 SC 606 to note that inadvertent error or arithmetical mistake must be corrected by the authority to prevent the abuse of its process as the same would amount to review of a procedural defect. 11. 11. In the instant case, the Assistant Returning Officer had committed a mistake apparent on the face of the record in declaring the result on the basis of the votes cast on one polling booth (booth No. 181) only, and thereby in issuing the certificate of the elected candidate to the petitioner on 3.5.2021 on wrong calculation of the total votes. As soon as the said mistake was brought to the knowledge of the Returning Officer, he after verification of the record of his office found that the votes of the polling booth no. 180 were not added in the result declared by the Assistant Returning Officer. For correction of the said mistake, notice was also sought to be served upon the petitioner but she did not receive the same nor responded to the notice pasted at her house. The writ petition is completely silent about the said notice. 12. So, by means of the memo dated 6.5.2021, the Returning Officer had cancelled the certificate of the petitioner and declared respondent no. 7 as the elected candidate by adding votes of both the polling booths i.e. booth nos. 180 and 181, cast in favour of each candidate. This is not a case of elaborate counting or reopening of the result by any process which could be said to be prohibited after declaration of the result, rather it is a case of correction of the minor mistake or defect in the election result. 13. The procedure for holding election of Member Kshetra Panchayat is governed by 1994 Rules which provides the manner of conduct of election, preparation of the election papers, declaration of the result and maintaining the election record. Rule 53, relevant for our purpose, provides for preparation of the election return containing the details of the names of candidates; the number of valid votes for each candidate; the total number of valid ballot papers; the number of rejected ballot papers; the number of tendered ballot papers and the name of the candidate elected. The election return is to be prepared and certified by the Returning Officer. The copy of the certified election return can be taken by the contesting candidate or his representatives/Nirvachan Abhikarta and Ganana Abhikarta. The election return is to be prepared and certified by the Returning Officer. The copy of the certified election return can be taken by the contesting candidate or his representatives/Nirvachan Abhikarta and Ganana Abhikarta. The manner in which the result has to be declared by the Returning Officer is stated in Rule 54 which provides that the Returning Officer shall declare the candidate securing the highest number of votes to be duly elected. Rule 56 provides for the report of the result to be sent by the Returning Officer to the District Magistrate and the information of the result to the Block Development Officer of the Kshetra Panchayat. The District Magistrate in turn has to report the election result to the State Election Commission. Under the scheme of the Act, no format is given for declaration of the result, i.e. for declaration of the result or reporting of the result to the State Election Commission. 14. However, in the instructions issued by the State Election Commission as contained in the Guide Book for Panchayat General Elections-2021 for the use of the Returning Officer/Employees, Chapter IX contains the description as to how the result would be declared by the Returning Officer and the prescribed format for the purpose. 15. Relevant extract of Chapter 9' of the Guide Book is to be quoted hereunder:- ^^v/;k;&9 erx.kuk mijkar dh izfØ;k fuokZpu vf/kdkjh lnL; xzke iapk;r rFkk iz/kku xzke iapk;r ds fuokZpu ifj.kke dh ?kks"k.kk ds iwoZ rqjar fu/kkfjZr fuokZpu ifj.kke iaftdk ifjf'k"V&14¼izi=&56½ ij fooj.k ntZ djds fuokZfpr mEehnokj ;k mlds fuokZpu vfHkdrkZ ds gLrk{kj ysxk vkSj Loa; ;k lgk;d fuokZpu vf/kdkjh }kjk gLrk{kj fd;k tk,xk vkSj ogh vf/kdkjh rnUrj rRdky fuokZpu ifj.kke dh ?kks"k.kk djsxkA fu/kkZfjr fuokZpu ifj.kke iftdk¼izi=&56½ es izR;sd xzke iapk;r ds fy, vyx&vyx i`"B fu/kkZfjr jgsaxs ftlesa ml xzke iapk;r ds lnL; ds fuokZpu ifj.kke ds var es iz/kku in dk fuokZpu ifj.kke dk fooj.k vafdr fd;k tk,xk vkSj lnL; xzke iapk;r ds fy, lgk;d fuokZpu vf/kdkjh }kjk izek.k i= ifjf'k"V&15 ¼izi=&52½ ij rFkk iz/kku] {ks= iapk;r lnL; ds fy, fuokZpu vf/kdkjh }kjk izek.k i= Øe'k% ifjf'k"V&16 ,oa 17 ¼izi=&53 ,oa izi=&54½ ij tkjh fd;k tk,xkA^^ 16. A careful reading of the instructions in clause 9' indicate that the Returning Officer before declaration of the result of the election would enter all details in the prescribed “Election Result Register” in ifjf'k"V&14 (Form-56) and get the signature of the elected candidate and/or his Nirvachan Abhikarta and also sign it by himself or by the Assistant Returning Officer. Thus, the election result has to be declared only after preparation of Form-56. It further provides that the prescribed Form-56 (Election Result Register) shall contain separate pages for each Kshetra Panchayat and after preparation of the result in Form-56, the certificate in ifjf'k"V&17 (Form-54) shall be issued by the Assistant Returning Officer to the elected candidate. Form-56 in ifjf'k"V&14 and Form-54 in ifjf'k"V&17 prescribed in the Guide Book are relevant to be extracted under:- ifjf'k"V&14 izi=&56 fuokZpu ifj.kke iaftdk tuin---------- fodkl [k.M----------------------- ØŒlaŒ xkke iapk;r@{ks= iapk;r@ftyk iapk;r dk uke in@okMZ dk fooj.k fuokZpu ifj.kke ?kks"k.kk dk fnukad o le; fuokfPkZr mEehnokj dk uke ,oa pquko fpag fuokZfpr mEehnokj }kjk izkIr erks dh la[;k fuokZfpr mEehnokj ds gLrk{kj fuokZpu vf/kdkjh@lgk;d fuokZpu vf/kdkjh ds gLrk{kj 1 2 3 4 5 6 7 8 ifjf'k"V&17 izi=&54 jkT; fuokZpu vk;ksx] mŸkj izns'k f=Lrjh; iapk;rks ds lkekU;@mi fuokZpu ¼--------------------------------------------------------------------------½ izek.k&i= ¼lnL; {ks= iapk;r½ eS ,rn}kjk izekf.kr djrk@djrh * gwW fd Jh@lqJh * -------------------------- firk@ifr * ---------------------------------- fuoklh xzke iapk;r --------------------------- fodkl [k.M --------------------------tuin------------------------ {ks= iapk;r------------------------------ ds izknsf'kd fuokZpu {ks= la[;k -------------------------------- ls o"kZ ---------------- eS lEiUu gq, lkekU;@mi fuokZpu esa lnL; {ks= iapk;r fufoZjks/k@lfojks/k fuokZfpr gq,@gqbZA fnukad % ------------------------ LFkku % ---------------------------------- Ekqgj gLrk{kj --------------------- fuokZpu vf/kdkjh@lgk;d fuokZpu vf/kdkjh dk uke ----------------------- izknsf'kd fuokZpu {ks= l[a;k---------------------- fodkl [k.M ------------------------ rglhy -------------------------- tuin------------------------- * tks ykxw u gks mls dkV ns From the perusal of the above instructions issued by the State Election Commission, it is evident that the certificate of winning candidate can be issued by the Returning Officer only after the finalization of the election result in Form-56 which is to be sent to the District Magistrate for onward report to the State Election Commission. The issuance of the certificate of elected candidate in Form-54, thus, can only be after the declaration of the result in Form-56. The date of preparation of Form-56 or the details thereof is/are not before us. The column (4) of Form-56 must contain the date and time of the declaration of result. The issuance of the certificate of elected candidate in Form-54, thus, can only be after the declaration of the result in Form-56. The date of preparation of Form-56 or the details thereof is/are not before us. The column (4) of Form-56 must contain the date and time of the declaration of result. The instant writ petition is completely silent about the preparation of Form-56 which must have been signed by the elected candidate or his Ganana Abhikarta. The issuance of the certificate in Form-54 by the Assistant Returning Officer without preparation of Form-56 containing the details of the date and time of the declaration of the result will be of no consequence under the scheme of the procedure formulated by the State Election Commission to supplement the Rules' 1994. 17. Moreover, in absence of any detail given by the petitioner herein regarding the preparation of Form-56 containing his signature or of his Ganana Adhikari, we are not inclined to accept her contention that the result of the election was declared with the issuance of the certificate in Form-54 to her on 3.5.2021. 18. On the other hand, as per the details given by the counsel for the State Election Commission, the mistake in the certificate issued by the Assistant Returning Officer was corrected by the Returning Officer on the very next date i.e. 4.5.2021 as soon as it came to his knowledge. Before correction of the mistake, the notice was also sought to be served upon the petitioner. The information about the final result declaring the opposite party no. 7 as elected candidate was uploaded on the portal of the State Election Commission on 7.5.2021 at about 14:19 Hours. The issuance of the certificate by the Assistant Returning Officer in Form-54 to the petitioner herein, therefore, cannot be said to have marked the culmination of the election. 19. Having considered the scheme of the Rules 1994 and the instructions as contained in the Guide Book issued by the State Election Commission for the Panchayat General Elections-2021, we further find that the ratio of the decisions in Kamlesh (supra), Smt . Sunita Patel (supra) and Smt. Tara Devi (supra) will have no application in the facts and circumstances of the instant case. Sunita Patel (supra) and Smt. Tara Devi (supra) will have no application in the facts and circumstances of the instant case. The reason being that in none of the above decisions, the scheme of the declaration of the election result in the prescribed Form-56 formulated by the State Election Commission was subject matter of consideration. The reliance placed by the counsel for the petitioner on the decision in Smt. Sunita Patel (supra) to assert that the certificate issued by the Returning Officer marked the culmination of the election, is, thus, of no benefit to the petitioner. 20. Much emphasis has been laid by the counsel for the petitioner on the previous date on the application of the principle of functus officio to assert that the Returning Officer lacked jurisdiction to make any correction in the election result after the certificate was issued declaring the petitioner as elected candidate. 21. To deal with the said submission, we may note that clerical or arithmetical mistake in any decision or errors arising therein from any accidental slip or omission, may, at any time, be corrected by the competent authority on its own motion or as soon as such an error is brought to its notice in any manner whatsoever. The Returning Officer being Incharge of his office on the relevant date was well within his jurisdiction to correct the errors of clerical/arithmetical nature. To hold otherwise would mean that the wrong result of election had to be declared by the Returning Officer even after discovering the mistake which was only of calculation/totaling of the votes cast in favour of each candidate. The accidental slip or omission attributable to the office of the Returning Officer must be corrected at the earliest possible opportunity so as to maintain the sanctity of the election and to ensure free and fair election. The Returning Officer cannot be said to be functus officio with respect to its power to correct its record before sending the same to the District Magistrate for declaration of the election result on the portal of the State Election Commission. The fact that the Returning Officer was holding the charge of his office on 4.5.2021, when the mistake was corrected, is not disputed before us. The fact that the Returning Officer was holding the charge of his office on 4.5.2021, when the mistake was corrected, is not disputed before us. We, therefore, hold that till the Returning Officer was Incharge of his office under the order of the State Election Commission and the election result was not finalised by uploading the same on the portal of the State Election Commission, the Returning Officer cannot be denuded of his power to make correction of an error which was only clerical or arithmetical in nature, to put the record of his office straight. The Returning Officer is duty bound to ensure that the declaration made by it of the election result is true; and when he had made correction of minor or formal nature for removing inadvertent error he cannot said to have become functus officion or can it be said that it was outside the scope and jurisdiction of the Returning Officer under the authority given by the Election Commission. Further, the writ petition is completely silent about the election return of polling booth nos. 180 and 181 having been received by the petitioner or her Nirvachan Abhikarta and Ganana Abhikarta. The copy of the election returns in Form-47 (as per the Guide Book) alongwith the counting sheet (Ganana Parchi) in Form 43 dated 3.5.2021 of the polling booth nos. 180 and 181 placed before us alongwith the written instructions show the description/details of the votes as is required to be noted under Rule 53 of the Rules, 1994. The total number of the votes received by each candidate have been mentioned therein. The petitioner herein also does not dispute the details or the number of votes indicated in the memo dated 6.5.2021, subject matter of challenge in the present writ petition. 22. For the aforesaid, in the facts and circumstances of the case, we find that the mistake in the computation of the votes of two polling booths was an arithmetical/clerical mistake. The said mistake when brought to the notice of the Returning Officer on 4.5.2021 on the very next day when the certificate of the elected candidate was issued to the petitioner on 3.5.2021, he, as a vigilant officer, after scrutinizing the record of his office when found the mistake being minor/formal in nature proceeded to erase the same at the earliest by issuance of the notice to the petitioner. It is demonstrated before us that in the process of correction, the petitioner did not participate. 23. From a thread-bare discussion on the issues raised before us, in the light of the legal position and the procedure of the declaration of the election results under Rule' 1994 and the instructions issued by the State Election Commission, we find that the action of the Returning Officer in making correction of such an error by only tallying the votes already shown in the election return Form 47 (prepared under Rule 53) cannot be said to be hit on the plea of lack of jurisdiction. Rather the re-inspection of the records by the Returning Officer was needed to maintain the sanctity and stability in the election process. There was no reason as to why a candidate who had received highest number of votes be asked to approach the Election Tribunal when the mistake could be corrected by the machinery which was operational at the relevant point of time. We may reiterate that the elections were not denotified by then and even the final result had not been declared on the Portal created by the State Election Commission for the purpose. There is one more aspect of the matter that while exercising equitable discretionary jurisdiction under Article 226 of the Constitution of India, we must keep in mind that substantial justice is done in the matter and the High Court would not issue a writ which would revive any illegality. [Reference Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar and others, (1999) 8 SCC 16 ]. 24. The quashing of the certificate issued in favour of the opposite party no. 7 would result in cancellation of the election of a candidate having attained highest number of votes. We see no reason to upset the election result and relegate the candidate having highest number of votes to approach the Election Tribunal for removal of a minor defect. 25. Moreover, before parting with the judgment, we deem it fit to express our concern on the number of litigations flowed to this Court post declaration of the result of Member, Kshetra Panchayat. In the month of May and June, 2021 soon after the elections of Member, Kshetra Panchayat were concluded, this Court has been flooded with the writ petitions during the peak of second wave of pandemic Covid-19. In the month of May and June, 2021 soon after the elections of Member, Kshetra Panchayat were concluded, this Court has been flooded with the writ petitions during the peak of second wave of pandemic Covid-19. Most of the writ petitions were raising the issue of the cancellation of the certificates or issuance of the subsequent certificates to the elected candidates by the Returning Officers. In almost all of the cases before us, the mistake was found to be clerical or arithmetical. The candidates whose certificates had been cancelled had vehemently pressed that the Returning Officers lacked jurisdiction to issue another certificate by cancellation of the previous certificate. Such a situation, according to us, arose on account of the language of the Rules 54 and 56 of the Rules, 1994 which give room for doubt. In the 1994 Rules, there is no provision for issuance of a certificate nor any Form for the certificate to be issued to the winning candidate had been prescribed therein. When we notice the procedure for declaration of the result of the election as set out in the Conduct of Elections Rules, 1961, we find that Rule 64 provides for the declaration of the result in Form 21-C and that the signed copies of those forms to be sent the Election Commission. After declaration of the result in Form 21-C or Form 21-D and sending the copies thereof to the Election Commission, the certificate of the election in Form 22 is issued to the candidate therein, who has been declared elected in accordance with the provisions of Section 66 of the Representation of People Act. The manner in which the declaration is made in the prescribed format by the Returning Officer and the information and the issuance of the certificate of election in Form 22 has been prescribed in the said rule itself. 26c of the Conduct of Elections Rules, 1961 is quoted hereunder:- “64. The manner in which the declaration is made in the prescribed format by the Returning Officer and the information and the issuance of the certificate of election in Form 22 has been prescribed in the said rule itself. 26c of the Conduct of Elections Rules, 1961 is quoted hereunder:- “64. Declaration of result of election and return of election.-The returning officer shall, subject to the provisions of section 65 if and so far as they apply to any particular case, then- (a) declare in Form 21-C or Form 21-D, as may be appropriate, the candidate to whom the largest number of valid votes have been given, to be elected under section 66 and send signed copies thereof to the appropriate authority, the Election Commission and the chief electoral officer; and (b) Complete and certify the return of election in Form 21-E, and send signed copies thereof to the Election Commission and the chief electoral officer.] ” Similarly, Rule 29 of the Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 prescribes the procedure for declaration of result in the following manner:- “Rule 29. Declaration of result.-When the counting of the votes has been completed and the result of the voting has been determined, the Returning Officer shall in the absence of any direction by the State Election Commission to the contrary, forthwith- (a) declare the result to those present; (b) report the result to the District Magistrate, the State Election Commission and the State Government; (c) prepare and certify a return of the election in Form VIII; and (d) seal up in separate packets the valid ballot papers and the rejected ballot papers and record of each such packet a description of its contents.” Earlier having noted both the above rules, the Division Bench in Smt. Tara Devi (supra) had suggested for suitable amendments in Rules 54 and 56 of the Rules, 1994 to be made so as to bring further stability in the election process and to be avoid future litigations. 27. It appears that the State Government did not take note of the said suggestion nor any effort seems to have been made to bring the Rules 1994 at par with the Election Rules framed under the Representation of the People Act to remove all possible anamolies. 28. 27. It appears that the State Government did not take note of the said suggestion nor any effort seems to have been made to bring the Rules 1994 at par with the Election Rules framed under the Representation of the People Act to remove all possible anamolies. 28. The apathy on the part of the State Government in making suitable amendment in the 1994 rules has resulted in the flood of avoidable litigation before this Court that too during the peak of second wave of pandemic Covid-19. 29. In our considered opinion, the proformas for preparation of the election papers and the certificate to be issued by the Returning Officer have to be prescribed in the Rules' 1994 itself and certificate to a winning candidate can only be issued after the final declaration of the result after intimation is sent to the State Election Commission as is to be made under Rule 56 of the Rules, 1994 which is also clear from the guiding instructions issued by the State Election Commission for the Panchayat Elections-2021. 30. For the above, we request the Advocate General, High Court, Allahabad to bring this judgment to the notice of the State Government to advise to make suitable amendments in the Rules 1994 in order to avoid future litigation and to bring stability in the Panchayat election process in future. The Additional Chief Secretary, Panchayat Raj, Government of U.P., Lucknow is directed to take up the issue so as to initiate the necessary exercise at the earliest. For the above discussion, in the facts and circumstances of the case, we do not find any merit in the challenge before us. The writ petition is, accordingly, dismissed. No order as to costs.