Allahabad High Court
Shambhu Singh vs State Election Commission, U.P. And ... on 8 August, 2000
Equivalent citations: AIR2001ALL39, AIR 2001 ALLAHABAD 39, 2001 ALL. L. J. 350, 2001 A I H C 1321, 2000 (4) ALL WC 2777, 2000 (41) ALL LR 11, 2000 REVDEC 619, 2000 (2) ALL CJ 1178, 2000 ALL CJ 2 1178
Author: G. P. Mathur
Bench: G. P. Mathur
JUDGMENT Shyamal Kumar Sen, C.J.
1. In the instant writ petition, the petitioner has challenged the declaration of the result of the election held for the office of the Pradhan of village Sheopur Bujurg, tehsit Padrauna, district Kushinagar declaring respondent No. 4 as the elected candidate. The contention of the petitioner is that he was originally declared elected. The counting of votes took place on June 28, 2000 and after completion of counting of votes, result was declared which is Annexure-2 to the writ petition. When called upon by the Court, the petitioner has also produced certificate issued by the Returning Officer declaring the petitioner as elected candidate in respect of village Sheopur Bujurg, tehsil Padrauna. district Kushinagar. The contention of the petitioner is that subsequent to the declaration of result and issuance of the certificate on the same date, i.e. June 28, 2000, a complaint was lodged by respondent No. 4 to the District Magistrate, which is slated to be of June 30. 2000, Annexure-1 to the counter-affidavit. On the basis of the said complaint. the District Magistrate passed an order dated July 3, 2000, whereby he cancelled the declaration of result made on June 28, 2000 in respect of the petitioner and directed the Returning Officer to declare respondent No. 4. as duly elected. Pursuant to the direction of the District Magistrate, another declaration was made by the Returning Officer whereby he declared respondent No. 4 as duly elected on July 6, 2000.
2. The question that arises for consideration in the instant writ petition is whether after the declaration of result and Issuance of certificate, the District Magistrate has any authority to reopen the election process and direct the Returning Officer for a fresh declaration of the result. It is also required to be considered in this connection that the Returning Officer, who is for the purpose of holding election, can cancel his declaration once made declaring the duly elected candidate and again declare the result pursuant to the direction of the District Magistrate.
3. The contention of the learned Advocate for respondent No. 4 is that there appeared serious discrepancy in the counting process and the chart, which was relied upon for the counting, was made on the basis of the forged documents. He referred to Section 12BC of the U. P. Panchayat Raj Act, 1947 and submitted that the District Magistrate has supervisory power over the election and, as such, the District Magistrate was quite within his powers to cancel the election of the petitioner and direct the Returning Officer to declare the election result again.
4. We have considered the submissions of the learned Advocates for the parties. In our view, Section 12BC refers to other provisions relating to holding of elections. It is no doubt true that the District Magistrate has supervisory power over the conduct of elections of Pradhans. Up-Pradhans and the members of Gram Panchayats in the district, but once the election result is declared and certificate issued, election process is complete and Section 12C immediately comes into play.
5. Section 12C of the U. P. Panchayat Raj Act, 1947, provides for application to be made for questioning the elections. If there was any forged document relied in the process of counting, that really amounts to irregularity in the counting process, the proper remedy for the respondent No. 4 is to challenge the same by way of filing an election petition.
6. We have heard learned standing counsel, who has also submitted that the supervisory power of the District Magistrate has not ended in the instant case in view of the fact that the election process has not ended by mere declaration of election result on June 28, 2000 and the Returning Officer has not become functus officio thereby. According to the learned standing counsel, the election process is only completed when the report is sent to the District Magistrate and thereafter to the State Election Commission. In this connection, he has referred to Rule 55 of the U. P. Panchayat Raj (Elections of Members, Pradhans and Up-Pradhans) Rules, 1994, which is set out below :
"55. 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 Secretary of the Gram Panchayat. The District Magistrate shall report the result to the State Election Commission."
7. It is clear from Rule 55 that the only duty given to the District Magistrate is that after he receives the report of the Nirvachan Adhikari of the declaration of the result, he shall also Inform the Secretary of the Gram Panchayat. and shall report the result to the State Election Commission. It is clear that after the result is declared and it becomes final, the intimation and the report of the same is required to be given to the District Magistrate for the purpose of giving report of the result to the State Election Commission. There is no power conferred upon the District Magistrate directing the Returning Officer to declare the election result again when it has once been declared. We are, therefore, unable to agree with the submissions of the learned standing counsel. In our view, the only remedy open to the respondent No. 4 is to file an election petition in pursuance of Section 12C of the U. P. Panchayat Raj Act. In our view, there is no necessity to the petitioner to file an election petition since he has been declared elected on June 28, 2000. It is the District Magistrate who exceeded his jurisdiction and interfered with the declaration of the result by directing the Returning Officer to reopen the election process. This is not permissible in law.
8. The meaning of word "Election" and when docs the election process comes to an end has been considered by the Supreme Court while deciding the cases under Representation of People Act. In this connection, the Judgment and decision in the case of P. N. Ponnuswami v. Returning Officer, AIR 1952 SC 64, may be taken note of. In the aforesaid decision, the Supreme Court has given a wide meaning to the word "Election" so as to connote 'the entire process culminating in a candidate being declared elected'. The election, therefore, really includes "the entire procedure to be gone through to return a candidate to the Legislature". The same principle has been enunciated in the judgment and decision in the case of Mohinder Singh Gill v. Chief Election Commissioner. ASR 1978 SC 851, wherein it was laid down that the election "commences from the initial election notification and culminates in the declaration of the return of a candidate". Election process, thus, comes to an end on "the final declaration of returned candidates". More or less the same procedure as in the Representation of People Act has been provided in the Statute with which we are concerned. In the present case, the same definition of election has to be applied to the election held under the U. P. Panchayat Raj Act and the Rules. In our view, on proper interpretation of the Statute, after the election process has come to an end. the State Election Commissioner, District Magistrate and the Election Officer cease to have any jurisdiction and the only authority which can deal with and decide any complaint regarding the election is the Election Tribunal. As a corollary, it follows that the State Election Commissioner. District Magistrate and Election Officer can neither cancel the poll/declaration of the result nor can direct for a fresh poll and recounting after the candidate has been declared elected, but such a declaration has to be in accordance with law.
9. Article, 243-O of the Constitution bars the jurisdiction of the Court In the matter of election of Panchayats. In the instant case, after the election process has come to an end, what is challenged by means of writ petition is not the election but the order of the State Election Commissioner, District Magistrate or the Election Officer, cancelling the poll/declaration of the result and directing for repoll or recounting after a candidate has been duly declared and as such, writ petition cannot be barred. In such a case, Article 243-O of the Constitution is not attracted. In this connection, the judgment and decision in the case of Mohinder Singh Gill v. Chief Election Commissioner (supra) may again be taken note of. It was held by the Supreme Court in the said decision that the bar created by Article 329(b) of the Constitution was confined to litigative challenges of electoral steps taken by the Election Commission and its Officer for carrying forward the process of election to Its culmination in the formal declaration of the result. Similarly Article 243-O of the Constitution bars the jurisdiction of this Court so far as the election and the steps taken in connection therewith are concerned, but after the election is over, if any order is passed by the Election Commissioner or any other officer affecting the election, which has already been completed, writ petition against such an order under Article 226 of the Constitution can be entertained. In such a case, no election is called in question. This Court in the case of Smt. Ram Kanti v. District Magistrate and others. 1995 AWC 1465, following the aforesaid Supreme Court decisions, has also taken the same view. There is no reason not to follow the said settled principle as enunciated in the aforesaid decision.
10. The writ petition, accordingly, succeeds and is allowed. The order of the District Magistrate dated July 3, 2000, is quashed.
11. It is, however, made clear that we have not made any adjudication on the merit of the election and it will be open to respondent No. 4 to pursue the remedy by filing an election petition, if he is so advised.