Gujarat High Court
Jagdish Bulchandbhai Mohnani vs Tamanna H. Jhalodia Or Her Successor In ... on 8 March, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/4193/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4193 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
NO
made thereunder ?
==========================================================
JAGDISH BULCHANDBHAI MOHNANI
Versus
TAMANNA H. JHALODIA OR HER SUCCESSOR IN OFFICE
==========================================================
Appearance:
MR YN RAVANI(718) for the Petitioner(s) No. 1
MR C B UPADHYAYA(3508) for the Respondent(s) No. 4
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 3
MR VANDAN K BAXI(5863) for the Respondent(s) No. 1
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MS ROOPAL R PATEL(1360)
for the Respondent(s) No. 2
MS MANISHA LAVKUMAR SHAH GOVERNMENT PLEADER WITH MS
AISHWARYA GUPTA, AGP for the Respondent No.1
==========================================================
CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Page 1 of 76
Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT
Date : 08/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"A) Your Lordships may be pleased to admit and allow this petition.
B) Your Lordships may be pleased to issue a writ of mandamus and/or certiorari and/or any other appropriate writ, order or direction in the nature of mandamus and/or certiorari quashing and setting aside the impugned order No.ELC/MND/S.U./Kubernagar/314/Counting of Votes 2021, dated 25.02.2021 (AnnexureA) and served on the petitioner at
2.30 a.m. on 26.02.2021 and be further pleased to declare that respondent No.1 is not competent to pass order of declaring the petitioner as defeated candidate, after declaration of results.
C) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order No.ELC/MND/S.U./ Kubernagar/314/Counting of Votes 2021, dated 25.02.2021 (Annexure A) and served on the petitioner at 2.30 a.m. on 26.02.2021.
D) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to restrain respondent No.4 herein - Gitaben Vishalsinh Chavda from acting as a Corporator and permitting the petitioner to act as the Corporation for Ward No.14 of Kubernagar, Ahmedabad city as per the results declared on 23.02.2921 and as per the certificate issued under Form No.22 under Rule68 of the Rules of 1994 in favour of the petitioner (AnnexureC).
E) Such other and further orders as Your Lordships may deem just, fit and expedient be passed in favour of the petitioner."
● For the convenience of exposition, this judgement is divided into the following parts:
Page 2 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT
Sr. Description Paras
No.
1 Facts giving rise to this writ application 2 to 5
2 Submissions on behalf of the writ 6 to 12
applicant
3 Submissions on behalf of the State 13 to 17
Election Commission
4 Submissions on behalf of the Returning 18 to 20
Officer
5 Submission on behalf of the respondent 21 to 23
No.4
6 Relevant provisions of the Gujarat 25
Provincial Municipal Corporation Act,
1949 and (Conduct of Election) Rules,
1994
7 Analysis of the (Conduct of Election) 26 to 33
Rules, 1994
8 Certificate of Election issued in Form 22 34
under Rule 68 of the Rules
9 True English translation of the impugned 37
order
10 Discussion on Section 21 of the General 38 to 58
Clauses Act, 1897
11 Discussion on Rule 82 (Removal of 59 to 62
Difficulties clause) of the Rules, 1994
12 Few decisions supporting the submissions 63 to 69
canvassed on behalf of the respondents
13 Final conclusions summarized 76
2 The facts giving rise to this writ application may be summarized as
under:
2.1 The writ applicant was one of the candidates, who contested the election to the Ahmedabad Municipal Corporation held on 21st February 2021. The respondent No.4 herein namely Gitaben Vishalsinh Chavda Page 3 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT was one of the rival candidates in the election.
2.2 The writ applicant contested the election as a candidate nominated by the 'Indian National Congress Party'. Whereas, the respondent No.4 contested the election as a candidate nominated by the 'Bhartiya Janta Party'. The writ applicant as well as the respondent No.4 contested the election from the Kubernagar Ward No.14, Ahmedabad city.
2.3 The date for counting was fixed on 23rd February 2021. The respondent No.1 was appointed as the Returning Officer under Rule 4 of the Gujarat Provincial Municipal Corporations (Conduct of Election) Rules, 1994 (for short, "the Rules of 1994"). The writ applicant had appointed 10 of his polling agents as there were 10 rounds of counting.
2.4 It is the case of the writ applicant that the counting had taken place in the presence of the candidates as well as the polling agents. On completion of the counting, the writ applicant was declared as elected along with three other candidates namely (i) Urmilaben Jethabhai Parmar (ii) Kaminidevi Vinodkumar Jha and (iii) Nikulsinh Kamalsinh Tomar.
2.5 After the results were declared, the writ applicant was issued the certificate in Form No.22 under Rule 68 of the Rules of 1994. The certificate issued by the Returning Officer in favour of the writ applicant was, thereafter, submitted with the Secretary of the Ahmedabad Municipal Corporation. The writ applicant also filled up the required form of information of Councillor and the same was submitted to the Secretary, Ahmedabad Municipal Corporation.
Page 4 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT 3 In the night between 25th February 2021 and 26th February 2021,
around 30 to 40 officers came at the residential house of the writ applicant and inquired about the writ applicant. The writ applicant was not present at his residential house, as he was at his farm situated at Gandhinagar. The cousin brother of the writ applicant namely Shri Pradip Denani was present at the house of the writ applicant and he was compelled to accept the impugned order (Annexure : A) at 2:30 A.M. 4 The impugned order revealed that the writ applicant was wrongly declared as the returned candidate in the election. Whereas, according to the respondent No.1, it is the respondent No.4, who, actually, won the election by securing higher votes. The impugned order further reveals that as it was an arithmetical error committed by the Returning Officer in declaring the results of the election, the same was later rectified in exercise of power under Section 21 of the General Clauses Act, 1897.
5 The writ applicant, being aggrieved with the impugned order passed by the respondent No.1, is here before this Court with the present writ application.
● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT:
6 Mr. Y. N. Ravani, the learned counsel appearing for the writ applicant has raised the following meaningful questions for the consideration of this Court:
(i) Whether the Returning Officer, after the declaration of results under Rule64 of the Bombay Provincial Municipal Corporations (Conduct of Elections) Rules, 1994 and after grant of certificate to the elected candidate under Rule68 thereof, can review/revise its decision by declaring other candidate as elected, in absence of any Page 5 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT specific power conferred upon him in law?
(ii) Whether the Returning Officer appointed under Rule4 of the Rules, 1994 becomes functus officio after the declaration of results of the candidates under Rule64?
(iii) Whether the Returning Officer has any authority or inherent power to recalculate and/or to recount the votes at the time of forwarding the details to the State Election Commission?
(iv) Whether any recounting or recalculation of votes is permitted in the absence of Polling Agents, candidates and that to at the place not authorized for counting?
(v) Whether the Government authority can act or function after office hours for the official work, in the absence of any emergent situation?
7 Mr. Ravani would submit that the impugned order passed by the respondent No.1 in the purported exercise of power under Section 21 of the General Clauses Act, 1897 is per se without jurisdiction. He would submit that the entire election process is governed by the provisions of the Act, 1949 and the election Rules of 1994 framed thereunder. The State Election Commission is a statutory body under Section 14 of the Act, 1949, and the function of the Commission is to conduct the election of the Ahmedabad Municipal Corporation in accordance with the provisions of the Act. Mr. Ravani would submit that under Section 456 of the Act, 1949, the State Government is empowered to make the rules. The State Government has framed rules recognized as "The Gujarat Provincial Municipal Corporations (Conduct of Elections) Rules, 1994.
Page 6 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT Section 2(o) defines the "Returning Officer". Rule 64 provides for the declaration of the results. Rule 68 provides for the "grant of certificate to the elected candidates". Rule 69 provides for the publication of the names of the persons elected to be Councillors in the Government Gazette.
8 Mr. Ravani, thereafter, invited the attention of this Court to the few relevant pleadings in the memorandum of the writ applicant, which reads thus:
"9(A) Petitioner submits that on 27.02.2021 it has been published in the newspaper "Sandesh" that representation was made by BJP Party to the State Election Commission relating to Kubernagar Ward. In view of that representation, recounting was done under the instructions of the State Election Commission. Pursuant to the same, Ms. Gitaben Chavda was declared as winner of the Kubernagar Ward. Copy of the newspaper report dated 27.02.2021 is hereto annexed and marked as AnnexureF. Petitioner states that this aspect shows that it was not an independent decision of the Returning Officer but, she had acted as per the directions of the State Election Commission, allegedly recalculating of votes. It is settled law that, authority must act independently and not act as per the direction of higherups.
9(B) Petitioner submits that the Election Commission of India, pursuant to the directions of the Hon'ble Supreme Court dated 30.10.2017 in the case of Prakash Joshi vs. Election Commission of India, had framed guidelines on 19.12.2017 wherein five kind of officers were not to be allotted duty as Election Officers, including officers on extension of service or reemployment. The guidelines of Central Election Commission of India, pursuant to the directions of the Hon'ble Supreme Court is hereto annexed and marked as AnnexureG. It is required to be noted that the Secretary of the State Election Commission of Gujarat, Mr. M. V. Joshi, is a retired IAS Officer of 2013. He has been given posting as Secretary of State Election Commission on 01.07.2013, after his retirement. The Secretary of the State Election Commission is an officer on extension at the mercy of State Government of Gujarat. Number of representations were made not to continue the service of Mr. M. V. Joshi, as Secretary of the State Election Commission. However, the State Government is continuing his services, which ultimately creates a situation of passing of biased and illegal order. In view of this fact, petitioner states that the impugned order is passed by the Returning Officer not at her discretion, but, at the instance of the State Page 7 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT Election Commission and the reason for instructions of the State Election Commission is apparently to favour the party in power as the officers in charge of the State Election Commission i.e. Secretary is on extension of his service, contrary to the guidelines of Central Election Commission as well as the directions of the Hon'ble Apex Court. It is otherwise required to be noted that, after declaration of results, all the candidates had signed the result sheet, accepted the results and therefore, any candidate was estopped from contending otherwise. However, under the guise that the candidate had complained about calculation mistake, in fact, State Election Commission has acted, which is an afterthought story."
9 Mr. Ravani further submitted that after the declaration of the results in accordance with Rule 64 of the Rules and upon issue of the certificate under Rule 68 of the Rules, the Returning Officer becomes functus officio. Mr. Ravani would vociferously argue that assuming for the moment that the Returning Officer committed a clerical or arithmetical error in the declaration of the results, still, the Returning Officer would have no jurisdiction to thereafter rectify such mistake. In such circumstances, according to Mr. Ravani, the impugned order could be termed as one without jurisdiction. In other words, by way of the impugned order, the Returning Officer could not have said that the writ applicant was declared as the returned candidate inadvertently, whereas, actually, the returned candidate is the respondent No.4 herein.
10 Mr. Ravani would submit that the respondent No.1 as well as the respondent No.2 are labouring under a serious misconception of law that by virtue of the power under Section 21 of the General Clauses Act, 1897, the mistake could have been rectified by passing the impugned order.
11 In such circumstances referred to above, Mr. Ravani prays that there being merit in his writ application, the same be allowed and the impugned order be quashed and set aside.
Page 8 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT 12 Mr. Ravani, in support of his submissions, has placed reliance on the following decisions:
[1] Shambhu Singh vs. State Election Commission, U.P. and Ors reported in AIR 2001 All 39.
[2] Indian National Congress (I) vs. Institute of Social Welfare and others reported in (2002) 5 SCC 685 [3] Bhanita Chetankumar Patel vs. Rajshri Vijaykumar Kesari and 15 [Special Civil Application No.16559 of 2016] ● SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 -
STATE ELECTION COMMISSION:
13 Mr. Mihir Joshi, the learned Senior Counsel assisted by Ms. Roopal Patel, the learned counsel appearing for the State Election Commission, on the other hand, has vehemently opposed the present writ application. Mr. Joshi would submit that no error much less an error of law could be said to have been committed by the respondent No.1 in passing the impugned order. According to Mr. Joshi, a clerical or arithmetical error in the declaration of the results can always be rectified to bring the results in tune with the Rule 64 of the Rules of 1994. Mr. Joshi has fairly conceded that a mistake was committed, which could be termed as an arithmetical or clerical error. To rectify such a clerical or arithmetical error, there is always an inherent power with the Returning Officer. According to Mr. Joshi, for the purpose of rectifying or correcting such an arithmetical or clerical error, the issue of declaring Page 9 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT the Returning Officer as a functus officio does not really arise. Mr. Joshi would submit that the Returning Officer is not expected to adjudicate, and hence, he or she cannot decide. The principle of functus officio, according to Mr. Joshi, pertains to a situation where a person has been vested with a power to act or adjudicate and such person had consequently discharged his or her duties as per the authorisation given to him or her. By the very absence of the decision making jurisdiction, the principle can have no application here. The first respondent was expected to declare the results of the election in accordance with the votes secured by each of the candidates and it goes without saying that the candidate, who had secured the highest votes, has to be declared as the returned candidate in accordance with the Rule 64 of the Rules. In the calculation of the votes, if there is any clerical or arithmetical error, which leads to an incorrect declaration of the results, then, in such circumstances, the Returning Officer has the inherent power to rectify his own.
14 Mr. Joshi laid much emphasis on the fact that just because the certificate came to be issued in favour of the writ applicant in accordance with Rule 68 of the Rules, by itself, is not sufficient to say that thereafter, the clerical or arithmetical error could not have been corrected. In other words, according to Mr. Joshi, Form 22 under Rule 68 is to be issued only to the person who has secured the highest number of valid votes. If such a Form is given to a person who has not polled the largest number of valid votes, such a person does not acquire a indefeasible right to be regarded as the person elected, solely on the strength of issue of Form 22 under Rule 68.
15 Mr. Joshi Invited the attention of this Court to few relevant averments made in the affidavitinreply filed on behalf of the Page 10 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT respondent No.2 explaining what had exactly transpired in the case on hand. We quote the relevant averments:
"4.2 It is submitted that pursuant to the said Notification, the Election was held on 21.02.2021 on Sunday wherein the Election was conducted for Ward No.14 of Ahmedabad Municipal Corporation. After the conduct of elections, the counting of votes was carried out on 23.02.2021 at the premises of L.D. Engineering College at Ahmedabad for Ward No.14 and there were a total of 19 candidates for which the said exercise was undertaken by the Returning Officer.
4.3 It is submitted that for counting of votes for Ward No.14 - Kubernagar, a total of 99 Polling Booths were accounted for and a the Vote Counting Booth, an arrangement was made by placing 10 separate tables and on each table, 10 rounds of vote calculation was to be undertaken.
4.4 It is submitted that after completion of each round out of the total of 10 rounds, an account of the votes received by each candidate is recorded in the prescribed Form No.17Bm, Part II and upon completion of each round, the record of votes for each candidate was entered into the computer records for the purpose of calculation.
4.5 Upon completion of each round, the total number of votes are cumulatively added to the subsequent round and accordingly upon completion of the 10th round, the total numbers of votes casted and the total number of votes qua each candidate are also cumulatively ascertained and accordingly the results were declared.
4.6 However, in the facts of the present case, there was a clerical error while ascertaining the grand total at the end of round No.10. Due to clerical error, instead of taking the cumulative total of 9th round, an error was committed by selecting the cumulative total of the 8th round in the computer records and as an effect thereto, the votes casted and calculated in the 9th round were not reflected in the grand total of votes of the 10th round.
4.7 As a result of the clerical error, the petitioner was issued the Election Certificate in Form No.22 under the provisions of Rule 68 for Ward No.14, 4th Seat for General Category.
4.8 It is submitted that upon completion of the above procedure, the Returning Officer Is obligated to submit the necessary Returns and Results to the State Election Commission and while carrying out the same, the Returning Officer discovered the clerical error which had crept in while Page 11 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT calculating the computerized data pursuant to which, Respondent No.1 issued the impugned Order dated 25.02.2021 which has been challenged by the Petitioner in the present Petition.
4.9 Upon issuance of the impugned Order dated 25.02.2021, the Petitioner has been declared as defeated and one Shri Nikulsinh Kamalsinh Tomar was declared elected on the 4th Seat and one Ms. Geetaben Vishalsinh Chavda was declared elected on the 3rd Seat and Election Certificate in terms of Rule 68, Form No.22 was issued to Ms. Geetaben Vishalsinh Chavda.
4.10 It is submitted that the Returning Officer has committed no error in making a declaration in the Official Gazette dated 25.02.2021 under the provisions of Rule 69. A copy of the Official Gazette dated 25.02.2021 is annexed hereto and marked as ANNEXURE "RI". It is submitted that the Returning Officer has corrected an arithmetical error before making a declaration in the Official Gazette and no illegality can be attributed to the action of the Returning Officer for declaration of correct results in the Official Gazette.
4.11 It is submitted that considering the provisions of Rule 69, it is the boundant duty of the Returning Officer to publish the results as per the correct records which are available to and within the knowledge of the Returning Officer and, therefore, to uphold the validity of Certificate issued under Rule 68, Form No. 22 to the Petitioner, the Returning Officer could not have published false or erroneous results in the Official Gazette under Rule 69 despite being privy to the fact of actual voting data.
4.12 As per the records, it is clear that candidate wise result of counting of each round was recorded in Form 17B part2 at each Counting tables and the Counting Agents of the candidates were also present and they had also signed the said Forms. It is an admitted position that no changes have even been alleged to the records of candidate wise result of counting in Form 17B partZ. What has been corrected by the Returning Officer is only the arithmetical error while issuing the Result Sheet in Form No. 21 and the same came to be corrected by way of the impugned Order dated 25.02.2021 and, therefore, no illegality has been committed by the Returning Officer.
4.13 It is further submitted that the factum of error in the calculation of Round Nos. 9 and 10 was also pointed out to the State Election Commission by one of the contesting candidates Ms. Geetaben Vishalsinh Chavda vide her Application dated 24.02.2021 wherein she has pointed Out the issue of miscalculation or arithmetical error to the State Election Page 12 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT Commission pursuant to which, the State Election Commission forwarded the same to the City Election Officer I.e. the Office of the Collector to submit a report pursuant to the representation made by Ms. Geetaben Chavda. Annexed hereto and marked as ANNEXURE "RII" COLLY. Are the copies of the representation dated 24.02.2021 and letter of Commission dated 25.02.2021.
4.14 It is submitted that pursuant to the letter dated 25.02.2021,the Nodal Officer of the State Election Commission Additional Collector, Ahmedabad informed the State Commission Commission vide his letter dated 27.02.2021 stating that the Returning Officer for Ward Nos. 11, 12 and 14 of Ahmedabad Municipal Corporation has corrected the technical fault and has passed the impugned Order dated 25.02.2021 and Final result sheet Form No. 21 has been prepared again for Ward No. 14. Annexed hereto and marked as ANNEXURE "RIII" is the copy of the letter dated 27.02.2021. In the meantime, the impugned Order dated 25.02.2021 was already passed by the Returning Officer and the Official Gazette under Rule 69 was also published and, therefore, the State Election Commission had taken all necessary steps by communicating the grievance of the candidates as and when expressed/represented before the Commission by communicating the same to the City Election Officer.
4.15 It is further submitted that even the Election Observer - Ahmedabad for Municipal Corporation General Election, 2021 has submitted the Report dated 28.02.2021 to the same effect that the error caused in the total of Round 8, 9 and 10 due to Data Entry Selection has been committed and the same has been corrected vide the impugned Order dated 25.02.2021. Annexed hereto and marked as ANNEXURE "IV" is a copy of the Report dated 28.02.2021. It is, therefore, submitted that the error which was committed while making the grand total of Round No. 10 was apparently committed due to clerical error and the same was corrected by Respondent No.1 by the impugned Order and the same is not in violation of any provisions or Rules under The GPMC Act, 1949.
4.16 Even otherwise, it is within the powers of the Returning Officer, subject to the provisions of the Act and the directions issued by the Commission which are not inconsistent with the provisions of the Act and Rules which the Returning Officer can Undertake which it may deem necessary for the proper holding of elections and accordingly, before the publication of results in the Official Gazette under Rule 69, the Returning Officer has carried out the impugned action in accordance with the provisions of law and within Its scope of powers and, therefore, no illegality has been committed by the Returning Officer.Page 13 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT 4.17 So far as Para 9A of the Draft Amendment is concerned, it is
submitted that as pointed out hereinabove, the State Election Commission had vide its letter dated 25.02.2021 informed the Office of the City Election Officer I.e. the Office of the Collector, and not to the Returning Officer I.e. the Respondent No.1, pursuant to which, the State Election Commission received the communication from the Nodal Officer of the State Election CommissioncumAdditional Collector, Ahmedabad vide its letter dated 27.02.2021 regarding the impugned Order dated 25.02.2021 and, therefore, the State Election Commission was nowhere in picture between the above two dates i.e. 25.02.2021 and 27.02.2021 and, therefore, no indulgence can be attributed to the State Election Commission merely on the ground of a newspaper report, as relied upon by the Petitioner. It is further stated that the State Election Commission has not addressed any communication to the Returning Officer in question and the only communication which happened was between the Commission and the Office of the Collector as stated hereinabove and, therefore, there is no question of issuance of any direction by the Commission for recalculation of the votes to the Returning Officer and, therefore, it is humbly submitted that the allegations regarding independence of the decision of Returning Officer or the indulgence of the Election Commission are scandalous, irresponsible, unwarranted and have been made without a sense of responsibility of ascertaining the true and correct facts before making such allegations in the legal proceedings. Therefore, the contents of Para 9A of the Draft Amendment are denied in toto.
4.18 So far as Para 9B of the Draft Amendment is concerned, the contents of the same are denied in toto and are again scandalous, irresponsible and made without sense of propriety and have been made to deviate the issue before this Hon'ble Court. It is submitted that the allegations with regard to the present Secretary of the State Election Commission of Gujarat have been made only to deviate the issue of the present proceedings inasmuch as the Secretary of the State Election Commission is not the authority which is responsible for holding of election as per the Rules made by the State Government. Upon perusal of Section 14 of The Gujarat Provincial Municipal Corporations Act, 1949, it is clear that subsection (2) of Section 14 beholds the State Election Commissioner as a person responsible to hold the election of Councilors as per the Rules framed by the State Government and, therefore, it is submitted that when Section 14 prescribes the office of State Election Commissioner responsible for holding the elections within the State of Gujarat, the false allegations made in Para 98 of the Draft Amendment are totally out of context, irrelevant and unnecessary for the adjudication of the present proceedings. It is further submitted that the Petitioner has made unnecessary allegations regarding the conduct of elections in the present proceedings and, the contents of Para 98 are misplaced.Page 14 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT 4.19 Therefore, it is submitted that the Petitioner has made unnecessary scandalous allegations in Paras 9A and % by way of the Draft Amendment which are denied by the Answering Respondent. It is further stated that reference to the guideline issued by the Election Commission of India vide its communication dated 19.12.2017, as relied upon by the Petitioner, is pertaining to the appointment of Returning Officers and the same has no context insofar as the post of Secretary of the State Election Commission and, therefore also, it is submitted that the petitioner is placing all and any material which may not even have a bearing on the present proceedings in order to gain sympathy of this Hon'ble Court on the grounds of creating prejudice."
16 Mr. Joshi submitted that it is true that the rule making authority has not conferred any specific power upon the Returning Officer under the Rules to rectify a clerical or arithmetical error. In other words, the rule making authority has not conferred any specific power upon the Returning Officer to correct such arithmetical or clerical error in the declaration of result of the election, however, the Returning Officer, in undertaking the exercise of counting and declaring the result of the election, could be said to be performing an administrative function. Mr. Joshi would submit that it is a wellestablished principle that an authority discharging administrative function, has the power to review its orders. No specific power is required to be conferred on such an authority for such purpose. The provisions of Section 21 of the General Clauses Act confer ample jurisdiction on an administrative authority to amend, vary or rescind its orders. It is argued that the principle laid down in Section 21 of the General Clauses Act is of general application and there is no reason why the Returning Officer in the case on hand could not have corrected the clerical or arithmetical error. An administrative authority exercising powers has absolute jurisdiction to correct the mistake committed by it suo motu or at the instance of any party.
17 In such circumstances referred to above, Mr. Joshi, the learned
Page 15 of 76
Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT
Senior Counsel prays that there being no merit in this writ application, the same be rejected.
● SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 -
RETURNING OFFICER:
18 Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned A.G.P. appearing for the respondent No.1 has also vehemently opposed this writ application. Ms. Shah, by and large, has adopted all the submissions put forward by Mr. Joshi, the learned Senior Counsel appearing for the State Election Commission. However, Ms. Shah seeks to rely upon the following averments made in the affidavitinreply filed on behalf of the respondent No.1, wherein the following has been stated:
"4.4 At this juncture, it is imperative to elaborate before the Hon'ble Court the process of calculation of votes that is usually adopted on the day of counting:
a) Considering the COVID guidelines, for the purpose of counting, the total number of counting tables permitted was 10.
b) The counting of votes takes place roundwise, i.e., polling booths are distributed in consecutive order to the counting tables. Thus, votes of polling booth no.1 would be counted at Table No.1, polling booth No.2 at Table No.2 and so on. On each table 1 EVM machine is placed for the purpose of calculation of votes. The cycle would start again with Polling Booth No.11 being counted at Table No.1.
c) It is pertinent to note that such process of counting is carried out in accordance with Rule 72C of the 1994 Rules. As per Rule 72C(2)(ii), the complete Part II of form No 17B reflecting the number of votes polled by each candidate is signed by the counting supervisor and also by the candidates or their election agents or counting agents, present.While the votes are being counted on each table, the respective counting agents of the candidates are present at such tables.
d) Each Cycle is known as a Round and at the end of counting of votes for one round, the total votes received by each candidate are tallied. The votes Page 16 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT polled by each candidate are displayed on the control unit and the votes counted at each table are recoded separately in respect of each candidate in Part H of Form No. 17B.
e)The votes for each round are added cumulatively to arrive at the total figure. Thus, for instance, at the end of counting of votes for Round No. 4, the votes received by the candidates for that Round as well as the cumulative figure of votes from Rounds 1 to 3, would be reflected in the chart prepared for Round 4.
f) The counting agents of the petitioner were present at the counting tables during the calculation of votes for each round and their signatures in Part II of Form No 17B have not denied by the petitioner. At the end of each round, a chart is prepared using MS EXCEL and the same is checked and signed by the concerned Returning Officer.
4.5 It is submitted that the aforementioned process was followed in strict compliance with the statutory Rules in this regard, for the counting of votes of Ward No. 14: Kubernagar. It is pertinent to note after counting of votes, the result sheet was prepared in accordance with Rule 62 of the Rules of ,1994 and the same was issued in Form no. 21 as provided in the Rules. Pursuant to preparation of such result sheet, a Certificate of Election was issued to the petitioner in Form No. 2 as per provisions of Rule 68 of the 1994 Rules.A copy of the certificate issued to the petitioner is already annexed to the petition at page 35.
4.6 After the issuance of certificate of election, the answering respondent was also required to publish the results of the names of the persons elected to be Councillors in the Official Gazette under Rule 69 of the 1994 Rules. While sending the report of the process to the State Election Commission and before the publication of results under Rule 69, it was discovered, while uploading the data on the NIC Server for real time monitoring, upon verification of Microsoft Excel sheet which was used for the calculation of votes, that there was an error in the calculation of votes of the Final Round, i.e., Round No. 10. It was found for the counting of votes at the end of Round no. 10, the total votes of only Rounds No. 1 to 8 were added to the votes of Round no. 10 and the votes from Round no. 9 were left out. By virtue of such error, the votes from Round no. 9 were not added to the total votes before declaration of the result and consequently, the mistake was carried forward while calculating the grand total at the end of round number 10.
4.7 In order to further elaborate the facts,I crave leave to draw the attention of the Hon'ble Court to the following:
Page 17 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT 4.8 The total number of votes at the end of 8 th Round came to 1,30,614
votes. The said total was a cumulative total from Round 1 to 8. A copy of the result sheet of Round No.8, consisting of details of the tablewise counting and the total votes at the end of Round No. 8 along with the compilation is annexed hereto and marked as AnnexureR3.
4.9 Thereafter, votes were to be counted for Round No. 9 and the same was to be added 1,30,614 votes (figure arrived at, upto 8 th round) and accordingly, the total number of votes at the end of 9 th Round came to 1,44,529.A copy of the result sheet of Round No. 9, consisting of details of the tablewise counting and the total votes at the end of Round No. 9 along with the compilation is annexed hereto and marked as Annexure R4.
4.10 In the final round, i.e., Round No. 10, instead of taking the cumulative total of the 9th Round, due to a clerical error, the total of the 8th Round was added as cumulative base of 10th Round, meaning thereby, instead of adding the votes of the 10th round to 1,44,529 (votes upto 9th Round), the votes of 10th round were added with cumulative votes of 8th Round of 130,614 votes. The said error can be seen from the papers of 10th Round.The said error is clear upon perusal of total number of votes being 1,30,614 found as "total of previous round" in Round No.9 as well as in Round No. 10. The previous round total of Round No. 9 and 10 has been the same, which is erroneous. A copy of the result sheet of Round No. 10, consisting of details of the tablewise counting and the erroneous totaling votes at the end of Round No. 10 along with the compilation is annexed hereto and marked as AnnexureR5.
4.11 The above stated error had transpired due to wrong selection of field no. D20 in the Microsoft Excelsheet, instead of selecting D21, while ascertaining the grand total of 10th Round. Annexed hereto and marked as AnnexureR6 (colly) are the copies of the screen shots of Excel Sheets showing the erroneous selection. Upon finding out the said clerical error, the answering respondent verified total votes of Round No. 8, 9 and 10 from the actual calculation sheets (tablewise) issued in Form No. 17B as per Rule 72C of the Rules of 1994.
4.12 The said error was found to be corrected and tallied with Form 17B records when correct field D21 was selected in the Microsoft Excelsheets of Round No. 8, 9 and 10. Annexed hereto and marked as AnnexureR7 Coll are the screen capture of correct excelsheets. Pursuant to such correction, the correct sheet displaying the total number of votes polled at the end of Round No. 10 was prepared and thereafter, signed by the deponent. A copy of the corrected result sheet reflecting the total number of votes at the end Page 18 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT of Round No. 10 is annexed hereto and marked as Annexure8.
4.13 Thus, the abovementioned clerical error was corrected by reissuance of result sheet under Rule 62 of the 1994 Rules in Form No. 21. Annexed hereto and marked as AnnexureR9 is the copy of Form No. 21 issued by the Answering respondent reflecting correct result. It is submitted that it is only after this stage that the answering respondent issued the Official Gazette as per Rule 69. Annexed hereto and marked as Annexure R10 is the copy of the Official Gazette dated 25.02.2021.
4.14 It was due to such an error that the impugned order was passed by the deponent.
5. In respect of the contention of the petitioner, regarding the Returning Officer having become, functus officio upon issuance of certificate under Rule 68, it is submitted that the same is not correct. In fact, various responsibilities are specified for subsequent procedure under Rules 69 to 71 which fasten the duties upon the Returning Officer and therefore, it is not correct for the petitioner to state that upon issuance of certificate under Rule 68, the Returning Officer becomes functus officio and cannot undertake any further action. It is submitted that as per Rule 82 of the 1994 Rules, the Returning Officer can undertake any action which is not inconsistent with the Act or directions of Election Commission, which appears to him to be necessary for the proper holding of election. And thus, the action of the Returning Officer cannot be termed as without jurisdiction.
6. It is further submitted that Rule 60(6) of the 1994 Rules prescribes that every ballot paper which is not rejected under this Rule shall be counted as & valid vote. Therefore, unless the votes as recorded in Round No. 9 are rejected under Rule 60, the Returning Officer is bound to calculate the said valid votes into the total number of votes. Furthermore, Rule 72A makes Rule 60 of the 1994 Rules applicable to votes via EVMs, as well. Therefore, until all the valid votes are considered, the process of counting votes cannot be said to be completed.
7. Upon perusal of Rule 64(1)of the 1994 Rules, it is clear that the declaration of result is subject to the condition of completion of counting of votes, and since there is a statutory obligation to count every valid vote under Rule 60, preparation of result sheet under Rule 62 cannot be considered as final.
8. It is most pertinent to note that even otherwise, the petitioner has not challenged that factum of votes of Round 9 nor has challenged the Page 19 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT correctness of votes calculated as per records. The counting agents of the petitioner were present at the counting tables during the calculation of votes for each round and their signatures in Part 11 of Form No. 17B have not denied by the petitioner. Therefore, without any challenge to the factum of existence of vote, in view of Rule 60(6), the petitioner cannot seek prayers to the effect that valid votes may be ignored and impugned order be set aside as such prayers are contrary to statutory provisions.
9. It is further submitted that even otherwise, the petitioner has not challenged the Declaration in the Official Gazette dated 25.02.2021 and in absence of any challenge to the Official Gazette, the limited challenge to the impugned order will be futile.
10. It is lastly submitted that in view of the settled legal position, and in view of Article 243ZG, and in view of catena of judgments and availability of alternative remedy, this Hon'ble Court may no exercise its extraordinary jurisdiction under 226 of the Constitution of India."
19 In substance, three things emerge from the aforesaid:
[1] Upon issuance of certificate in Form 22 under Rule 68, the Returning Officer does not become functus officio;
[2] The declaration of result is subject to the condition of completion of counting of all the valid votes as provided under Rule 60, and therefore, the preparation of the resultsheet under Rule 62 is not final, and;
[3] The writ applicant has not challenged the correctness of the votes calculated as per the records nor has challenged the factum of votes of round 9.
20 In such circumstances referred to above, Ms. Shah prays that there being no merit in this writ application, the same be rejected.
Page 20 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT
● SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.4:
21 Mr. Chitrajit Upadhyay, the learned counsel appearing for the
respondent No.4 has also vehemently opposed the present writ application. He would submit that over and above Section 21 of the General Clauses Act, 1897, the Returning Officer has power under Rule 82 of the 1994 Rules (removal of difficulties clause) to rectify any clerical or arithmetical error in the calculation of the votes and the ultimate declaration of the results of the election. Mr. Upadhyay submitted that that the impugned order cannot be termed as one without jurisdiction. Mr. Upadhyay would submit that although his client secured more votes, yet, by mistake, the writ applicant was declared as the returned candidate. According to Mr. Upadhyay, it would be a travesty of justice to take the view that although the respondent No.4 secured more votes than the writ applicant, yet, as, inadvertently, the certificate, under Rule 68, came to be issued to the writ applicant, nothing can be done now and the only alternative remedy available to the respondent No.4 is to prefer an election petition before the Election Tribunal.
22 Mr. Upadhyay also, by and large, has adopted all the submissions canvassed by Mr. Joshi and Ms. Shah, the two learned Senior Counsel appearing for the respondents Nos.1 and 2 respectively.
23 In such circumstances referred to above, Mr. Upadhyay prays that there being no merit in this writ application, the same be rejected.
● ANALYSIS:
24 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the respondent No.1 committed any Page 21 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT error in passing the impugned order.
25 Before we advert to the rival submissions canvassed on either side, we must look into few relevant provisions of the Act as well as the Rules.
● THE GUJARAT PROVINCIAL MUNICIPAL CORPORATIONS ACT, 1949:
"14. Election by State Election Commission. (1) The superintendence, direction and control of the preparation of electoral roll for, and conduct of, all the elections of the Corporations shall be vested in the State Election Commission.
(2) The State Election Commission shall hold the election as per the rules made by the State Government.
(3) The provision of section 7 of the Bombay General Clauses Act, 1904 shall not apply to anything done or suffered under the provision repealed or substituted by the Bombay Provincial Municipal Corporations (Gujarat Second Amendment) Act, 1993 (hereinafter referred to as "the said Act").
(4) The Sate Election Commissioner shall be appointed within two months of the coming into force of the said Act.
(5) The State Government shall when so required by the State Election Commission, make available to it the staff as may be necessary for the discharge of the function conferred it by clause (1) of article 243K of the Constitution of India.
(6) The State Election Commissioner appointed immediately after the commencement of the said Act shall commence the work of delimitation of the constituencies to be known as wards within one month from the date of his appointment as per the last published census figures.
(7) Notwithstanding anything contained in the principal Act or in any decree, order or direction of any court, the election of the Corporation shall be held in accordance with the provisions of the Constitution (Seventyfourth Amendment) Act, 1992 on Municipalities and the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949) as amended by the said Act and the rules made by the State Government in this behalf.]"
"Section 456. Power of [State] Government to make rules. [(1) The Page 22 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT State Government may, by notification in the Official Gazette make, rules to provide for matters expressly required or allowed by the Act to prescribe by rules or for such other matters for carrying out the purposes of this Act.
(2) All the rules made under subsection (1) shall be subject to condition of previous publication:
Provided that the State Government may, for sufficient reasons, dispense with the requirement of previous publication.
(3) All the rules made under subsection (1) shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made, and shall be subject to rescission or to such modification as the Legislature may make during the session in which they are so laid, or the Session immediately following.
(4) Any rescission or modifications so made by the State Legislature shall be published in the Official Gazette and shall thereupon take effect.
(5) Any rules made by the Corporation which are inconsistent with the rules made by the State Government shall be null and void to the extent of inconsistency.] [(6)] The 4[State] Government may at any time required the Corporation to make rules under section 454 in respect of any purpose or matter specified in section 457.
[(7)] If the Corporation fails to comply with such requisition within such reasonable time as may be fixed by the 4[State] Government, the 4[State] Government may, after previous publication make such rules and the rules so made shall, on final publication in the official Gazette have effect as if enacted in this Act."
● THE BOMBAY PROVINCIAL MUNICIPAL CORPORATIONS (CONDUCT OF ELECTION) RULES, 1994:
"4. Appointment of returning officers and assistant returning officers:
(1) For the conduct of election to a corporation, the State Election Commission may, subject to the provisions of rule 73, appoint as many returning officers and assistant returning officers as it may deem necessary.
(2) Subject to such restrictions as may be imposed by the returning officer, the assistant returning officer shall exercise all or any of the powers of the returning officers:Page 23 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT Provided that the power exercisable by a returning officer [under rules 6, 8 to 10, 13, 15, 16, 18, 50 to 53 and 60 to 69] shall not be exercised by an assistant.
(3) The returning officers and the assistant returning officers shall work under the general direction and superintendence of the City Election Officer."
"59. Counting and scrutiny of votes.(1) The ballot box or boxes relating to each polling station or the envelopes containing the ballot papers, as the case may be, shall be opened one after another and the ballot papers therein taken out and counted and the number thereof recorded in a statement.
(2) The Returning Officer shall not open the sealed packets of the tendered votes, the marked copy of the electoral roll, or the counterfoils of the ballot papers. The returning officer shall verify the statement submitted by the presiding officer under rule 45 in Form 17 and Form 18, if any, be by comparing it to the number of counted ballot papers, spoilt and returned ballot papers, ballot papers dealt with under rule 42, the unused ballot papers in his possession and the tendered votes list. He shall then reclose and reseal each packet which has been opened by him and shall record on each packet the description of its contents and the date of election to which they relate.
(3) The Returning Officer shall then mix together all the ballot papers so taken out and distribute them in convenient bundles to the counting supervisors and counting assistants for counting:
Provided that no envelope containing the tendered ballot papers shall be opened and no such votes shall be counted.
(4) After the ballot papers have been so distributed, they shall be scrutinized and counted. The candidates or his counting agent may be given a reasonable opportunity to inspect the ballot papers without actually handling them."
"62. Preparation of result sheet. After the completion of the counting, the Returning Officer shall prepare in Form 21 the result sheet containing
(a) the names of the candidates for whom valid votes have been given;
(b) number of valid votes given for each candidate;
(c) number of votes declared invalid; and, Page 24 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT
(d) number of tendered votes given."
"63. Announcement of results and recounting of vote (l) After the preparation of the result sheet as per rule 62 the returning Officer shall announce the total number of votes polled by each candidate.
(2) After such announcement has been made the candidate or his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such re counting.
(3) On such application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous and unreasonable.
(4) Every decision of the returning officer under subrule (3) shall be in writing and containing the reasons therefor.
(5) If the Returning Officer decides under subrule (3) to allow the re counting of votes either wholly or in part he shall do recounting according to rule 55 and' amend the result sheet to the extent necessary after such re counting and announce the amendment so made by him.
(6) After the total number of votes polled by each candidate has been announced under subrule ( l ), or under subrule (5) in case a recount has been ordered under subrule (3), returning officer shall complete and sign the result sheet and no application for recounting shall be entertained thereafter:
Provided that no step under this subrule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given & reasonable opportunity to exercise their right conferred by subrule (2)."
"64. Declaration of results.(l) When the counting of votes has been completed, the returning officer shall proceed to declare the result of the election in the following manner.
(2) He shall first decide the result of the seat reserved for women by declaring elected to that seat the woman who has secured the highest number of valid votes amongst women eligible to be elected to that seat.
(3) He shall then decide the result of the seat reserved, if any, for Scheduled Castes, Scheduled Tribes or Other Backward Classes in that order by declaring elected to that seat the person,˙ other than the person who has already been declared elected to the seat reserved for women, who Page 25 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT has secured the highest number of valid votes amongst persons eligible to be elected to that reserved seat.
(4) He shall then decide the result of the unreserved seat or seats, as the case may be, by declaring elected the person or, where there are more than one such seat; the persons not exceeding the number of such seats, other than the persons who have already been declared elected to the reserved seats, who has or have secured the highest number of valid votes."
"68. Grant of Certificate to the elected candidates As soon as may be after a candidate is deemed to have been declared elected under rule 13, or has been declared to have been elected under rule 64 to 66, the returning officer shall grant to such a candidate a Certificate of Election in Form 22, obtain from the candidate an acknowledgment of its receipt duly signed by him and immediately send it to the State Election Commission."
"69. Publication of results. The names of the persons elected to be councillors shall be published by the returning officer in the Official Gazette."
26 Thus, the (Conduct of Election) Rules, 1994 framed in exercise of the powers conferred by Section 456 of the Act, 1949 are a complete code in itself insofar as the election to the Municipal Corporations are concerned. Part IV of the said Rules contain a detailed procedure for the scrutiny, counting of votes and declaration of results.
27 As per Rule 62 referred to above, after the completion of the counting, the Returning Officer should prepare a resultsheet in Form
21. Thereafter, the Returning Officer is obliged in terms of Rule 63 to make an announcement of results and the recount of votes, if any. Under Rule 63(2), a contesting candidate or his agent is entitled to seek the Returning Officer for a recount. However, such request should be made after the announcement, but, before the declaration of the result of the election.
28 SubRule (6) of Rule 63 makes it clear that after the total number Page 26 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT
of votes polled by each candidate has been announced under subRule (1), the Returning Officer should complete and sign the resultsheet in Form 21. Rule 63(6) also states that thereafter, no application for a recounting should be entertained.
29 Rule 64 elaborates the procedure for declaration of result of election. Under Clause (2) of Rule 64, the Returning Officer should first decide the result of the seat reserved for woman by declaring elected to that seat the woman who has secured the highest number of valid votes amongst women eligible to be elected to that seat. Under Clause (3) of Rule 64, the Returning Officer would thereafter decide the result of the seat reserved, if any, for the Scheduled Castes, Scheduled Tribes or other Backward Classes in that order and in the last, under Clause (4) of Rule 64, the Returning Officer would decide the result of the unreserved seat or seats, as the case may be, by declaring elected the person, who has or have secured the highest number of valid votes.
30 Under Rule 68, as soon as may be after a candidate is deemed to have been declared elected under Rule 13, or has been declared to have been elected under Rule 64 to 66, the Returning Officer shall grant to such a candidate a certificate of election in Form 22 and obtain from the candidate an acknowledgement of its receipt duly signed by the candidate and immediately forward it to the State Election Commission.
31 In the last, as per Rule 69, the names of the persons elected to be councillors would be published by the Returning Officer in the official gazette.
32 A careful reading of the Rules referred to above indicate that the moment the Returning Officer issues a certificate to the returned Page 27 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT candidate in Form 22 in accordance with Rule 68 referred to above he is obliged to do two things: (1) to obtain from the candidate an acknowledgement of its receipt duly signed by him and (2) forward the same to the State Election Commission. Once this declaration is made, even this Court would cease to have the power to interfere with such a declaration and it is for the person aggrieved by such a declaration to invoke the remedy available to him before the Election Tribunal. Therefore, none of the Rules referred to above give any leverage or scope for the Returning Officer to withdraw a declaration once made and a certificate of return once issued in Form No.22. The role of the Returning Officer gets reduced after the grant of certificate to the returned candidate in Form 22 in accordance with Rule 68. This is the reason why Rule 68 mandates the Returning Officer to forward immediately the receipt of acknowledgement signed by the returned candidate to the State Election Commission to enable the latter to publish the same in the official gazette.
33 If the Returning Officer is made entitled to review the Form No.22 issued in terms of Rule 68, it would amount to conferring a power which is not recognised to be in existence either in the Act or in the Rules. When the set of rules provide a complete Code, the Returning Officer cannot assume to himself any residuary or inherent powers to withdraw any declaration made or any Form already issued by him. Therefore, the act on the part of the Returning Officer in the present case in seeking to withdraw the Form No.22 by passing the impugned order and to issue a fresh Form in favour of the Respondent No.4 could be said to be completely in violation of the statutory rules.
34 The facts of this case are plain and simple. It is not in dispute that the writ applicant was declared as the returned candidate and was also Page 28 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT issued a certificate in Form No.22 in accordance with Rule 68 of the 1994 Rules. The certificate issued reads as under:
"FORM 22 (SEE RULE 68) Certificate of Election Ward No.14 Name of Ward : Kubernagar I, Tamanna H. Zalodiya, Returning Officer, for the Election of the Ahmedabad Municipal Corporation, for the Ward No.14, Name of Ward - Kubernagar, hereby certify that, I have, on the 23rd day of February 2021, declared Shri Jagdish Bulchandbhai Mohnani, resident of B502, Ashutosh Avenue, Near Taj Hotel, Hansol, sponsored by Bhartiya National Congress (recognized political party) to have been duly elected from the said ward to be a Councillor in the Municipal Corporation, Ahmedabad city and that in token thereof, I have granted to him this certificate of election.
Date : 23/02/2021 sd/
Place : Ahmedabad. Seal and signature of the
Returning Officer"
35 It appears from the scheme as laid under the Rules of 1994 that
once the certificate is issued in accordance with Rule 68 of the Rules, the next step in the process is Rule 69, by which, the names of the successful candidates are to be published in the official gazette. It appears that while forwarding the report of the entire process of counting of votes of the election to the State Election Commission, but, before the Page 29 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT publication of the name of the writ applicant in the official gazette, it came to the notice of the Returning Officer while uploading the data on the NIC Server for Realtime Monitoring, more particularly, upon verification of the Miscrosoft Excel sheet, which was used for the purpose of calculation of votes that there was an error in the calculation of votes of the final round i.e. Round No.10. The Returning Officer noticed that at the end of the counting of votes of the Round No.10, the total votes of only Round Nos.1 to 8 were added to the votes of Round No.10 and inadvertently, the votes counted in the Round No.9 were not counted or rather were left out to be counted. In such circumstances, the votes calculated in Round No.9 never came to be added to the total votes before the declaration of the result. The mistake was carried forward while calculating the grand total at the end of the Round No.10.
36 The moot question that falls for the consideration of this Court is that even if it was a clerical or arithmetical error or a bona fide lapse, the result once having been declared, whether the same could have been altered or changed, in any manner, by the Returning Officer?
37 The true English translation of the impugned order reads as under:
"PREFACE :
As per Form No.1, vide Letter No.RaChaAaChatanAhmedabad Municipal CorporationGeneral Election012021 dated 01.02.2021 of the State Election Commission, a public notice was published for the general election to the Ahmedabad Municipal Corporation - 2021 for total 48 wards, and it has been decided that we have to perform the duty as the Returning Officer for Ward No.11Sardarnagar, Ward No.12Naroda and Ward Page 30 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT No.14Kubernagar.
A public notice came to be published by us on 01.02.2021 in Form No.2, wherein it was declared that the election is to be held for the below mentioned four seats of Ward No.14Kubernagar :
First Seat : Reserved for Woman from Scheduled Caste category Second Seat: Reserved for Woman from General category Third Seat General Fourth Seat General In the said notice, it was declared that the nomination forms may be submitted to the Returning Officer/Assistant Returning Officers not later than by 06.02.2021 except public holidays. Moreover, the date and time for scrutiny of the nomination forms, withdrawing the nomination forms as well as the date and time of the election was also declared.
A list of 19 candidates in Form No.6 to the general election of Ward No.14Kubernagar of the Ahmedabad Municipal Corporation was published on 09.02.2021, for which the election was held on 21.02.2021. The counting of votes for Ward No.14Kubernagar was done on 23.02.2021 at the L.D.Engineering College. There were total 99 election booths in Ward No.14Kubernagar. It was decided to count the votes roundwise. Therefore, the counting of votes was done on ten counting tables for total ten rounds and each round consists of ten election booths.
The counting of votes was done roundwise by the Counting Supervisor after obtaining the signatures in Form No.14 Affidavit (Panchnama) from the candidate/election agent/counting agent present and after ascertaining from them that the seal is intact and there is no any Page 31 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT manipulation in the machine under their control and that it has been opened in their presence. The proceeding for displaying the votes obtained by each of the candidates is initiated after obtaining signatures in that regard.
The list of the details of votes obtained by the contesting candidates round wise was being submitted in Part2 of Form No.17(kh) by the Counting Supervisor in our presence, and after verifying the same, it was being sent to the computer for data entry.
The Computer Operator used to make entry roundwise in the computer, wherein, after the end of round no.8, the following votes have been obtained by the contesting candidates :
Sr. Name of the Candidate Category of the Candidate Votes No. obtained 1 Ashaben Pradipbhai Thadhani General Woman 3049 2 Urmilaben Jethabhai Parmar Scheduled Caste Woman 16692 3 Kaminidevi Vinodkumar Jha General Woman 16143 4 Geetaben Nareshbhai Sundarva Scheduled Caste Woman 2475 5 Geetaben Vishalsinh Chavda General Woman 13766 6 Jagdish Bulchand Mohnani General 15303 7 Jayendra Jagannath Abhvekar General 2137 8 Narendrakumar Parasnath Pande General 1460 9 Nikulsinh Kamalsinh Tomar General 15816 10 Pavankumar Umeshbhai Sharma General 11923 11 Manisha Sureshbhai Waghela Scheduled Caste Woman 11691 12 Munnalal Mangalsinh Suman General 1056 13 Ravindralal Ramprasad Gupta General 1610 14 Rajesh Vasudev Ravtani General 11305 15 Chunilal Devabhai Parmar Backward Class 1232 16 Ranjitsinh Chhatrasinh Yadav Backward Class 1310 17 Savitaben Sudeshkumar Thakor Backward Class Woman 1251 18 Havendrasinh Bhavansinh Ravat General 901 Page 32 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT 19 Ajay Devanand Indrekar Backward Class 1254 20 NOTA 267 Total 130641
Thereafter, the counting of votes for the round no.9 was undertaken, wherein the following votes have been obtained by the contesting candidates :
Sr. Name of the Candidate Category of the Candidate Votes No. obtained 1 Ashaben Pradipbhai Thadhani General Woman 350 2 Urmilaben Jethabhai Parmar Scheduled Caste Woman 835 3 Kaminidevi Vinodkumar Jha General Woman 753 4 Geetaben Nareshbhai Sundarva Scheduled Caste Woman 332 5 Geetaben Vishalsinh Chavda General Woman 2232 6 Jagdish Bulchand Mohnani General 873 7 Jayendra Jagannath Abhvekar General 251 8 Narendrakumar Parasnath Pande General 99 9 Nikulsinh Kamalsinh Tomar General 750 10 Pavankumar Umeshbhai Sharma General 2063 11 Manisha Sureshbhai Waghela Scheduled Caste Woman 2100 12 Munnalal Mangalsinh Suman General 116 13 Ravindralal Ramprasad Gupta General 234 14 Rajesh Vasudev Ravtani General 2006 15 Chunilal Devabhai Parmar Backward Class 214 16 Ranjitsinh Chhatrasinh Yadav Backward Class 191 17 Savitaben Sudeshkumar Thakor Backward Class Woman 188 18 Havendrasinh Bhavansinh Ravat General 103 19 Ajay Devanand Indrekar Backward Class 163 20 NOTA 35 Total 13888
Thereafter, the sum of total number of votes obtained in the round no.9 was to be Page 33 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT shown while making the data entry for the round no.10. However, through inadvertence, the Computer Operator entered the sum of total number of votes obtained in the round no.8. Therefore, it has been shown that the contesting candidates got the following votes after the end of the round no.10 :
Sr. Name of the Candidate Category of the Candidate Votes
No. obtained
1 Ashaben Pradipbhai Thadhani General Woman 3362
2 Urmilaben Jethabhai Parmar Scheduled Caste Woman 17572
3 Kaminidevi Vinodkumar Jha General Woman 16944
4 Geetaben Nareshbhai Sundarva Scheduled Caste Woman 2725
5 Geetaben Vishalsinh Chavda General Woman 15424
6 Jagdish Bulchand Mohnani General 16119
7 Jayendra Jagannath Abhvekar General 2302
8 Narendrakumar Parasnath Pande General 1569
9 Nikulsinh Kamalsinh Tomar General 16548
10 Pavankumar Umeshbhai Sharma General 13374
11 Manisha Sureshbhai Waghela Scheduled Caste Woman 13135
12 Munnalal Mangalsinh Suman General 1148
13 Ravindralal Ramprasad Gupta General 1754
14 Rajesh Vasudev Ravtani General 12772
15 Chunilal Devabhai Parmar Backward Class 1745
16 Ranjitsinh Chhatrasinh Yadav Backward Class 1784
17 Savitaben Sudeshkumar Thakor Backward Class Woman 1725
18 Havendrasinh Bhavansinh Ravat General 1059
19 Ajay Devanand Indrekar Backward Class 1371
20 NOTA 350
Total 142782
As per the same, the final result was prepared as per Form No.21 and the following candidates have been declared elected and the Election Certificate has been issued in Form No.22 :Page 34 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT
1. Smt. Urmilaben Jethabhai Parmar for the Reserved Seat for Woman belonging to the Scheduled Caste category.
2. Smt. Kaminidevi Vinodkumar Jha for the Reserved Seat for Woman belonging to the General category.
3. Shri Nikulsinh Kamalsinh Tomar for the Unreserved Seat for the General category.
4. Shri Jagdish Bulchand Mohnani for the Unreserved Seat for the General category.
In view of the report to be submitted to the State Election Commission after the results are declared, on scrutiny of the result, it came to the notice that a mistake has occurred in the result. As per the same, the sum of total number of votes obtained after the end of the round no.8 was shown in the round no.10 as the total of the previous round. In fact, the figure of sum of total number of votes obtained after the end of the round no.9 was to be shown in the round no.10. After calculating accordingly, it is apparently clear that, in fact, the contesting candidates got the below mentioned votes :
Sr. Name of the Candidate Category of the Candidate Votes
No. obtained
1 Ashaben Pradipbhai Thadhani General Woman 3712
2 Urmilaben Jethabhai Parmar Scheduled Caste Woman 18407
3 Kaminidevi Vinodkumar Jha General Woman 17697
4 Geetaben Nareshbhai Sundarva Scheduled Caste Woman 3057
5 Geetaben Vishalsinh Chavda General Woman 17656
6 Jagdish Bulchand Mohnani General 16992
7 Jayendra Jagannath Abhvekar General 2553
8 Narendrakumar Parasnath General 1668
Pande
9 Nikulsinh Kamalsinh Tomar General 17298
Page 35 of 76
Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT
10 Pavankumar Umeshbhai General 15437
Sharma
11 Manisha Sureshbhai Waghela Scheduled Caste Woman 15235
12 Munnalal Mangalsinh Suman General 1264
13 Ravindralal Ramprasad Gupta General 1988
14 Rajesh Vasudev Ravtani General 14778
15 Chunilal Devabhai Parmar Backward Class 1959
16 Ranjitsinh Chhatrasinh Yadav Backward Class 1975
17 Savitaben Sudeshkumar Thakor Backward Class Woman 1913
18 Havendrasinh Bhavansinh General 1162
Ravat
19 Ajay Devanand Indrekar Backward Class 1534
20 NOTA 350
Total 156635
In such circumstances, after taking into consideration the above mentioned votes obtained by the candidates, as per the procedure prescribed under rule 64, the following candidates are required to be declared as properly elected candidates instead of the previously declared elected candidates :
1. Smt.Urmilaben Jethabhai Parmar for the Reserved Seat for Woman belonging to the Scheduled Caste category.
2. Smt.Kaminidevi Vinodkumar Jha for the Reserved Seat for Woman belonging to the General category.
3. Smt.Geetaben Vishalsinh Chavda for the Unreserved Seat for the General category.
4. Shri Nikulsinh Kamalsinh Tomar for the Unreserved Seat for the General category.
Section 21 of the General Clauses Act, 1897, reads as under :
Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or byelaws. - Where, by any [Central Act] or Regulations a power to [issue notifications,] orders, rules or byelaws is Page 36 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any [notifications,] orders, rules or byelaws so [issued].
Section 21 of the Bombay General Clauses Act, 1904, reads as under :
Where by any Bombay Act 47 (or Gujarat Act), a power to issue notifications, orders, rules or bylaws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bylaws, so issued.
In exercise of the powers vested upon me under Section 21 of the General Clauses Act, 1897 and Section 21 of the Bombay General Clauses Act, 1904, earlier on 23.02.2021, I had declared the elected members to the Ahmedabad Municipal Corporation General Election2021 for Ward No.14Kubernagar.
It is hereby ordered to declare Shri Nikulsinh Kamalsinh Tomar as elected on General Unreserved fourth seat instead of General Unreserved third seat, and Smt.Geetaben Vishalsinh Chavda as elected on General Unreserved third seat. Moreover, Shri Jagdish Bulchand Mohnani, who was earlier declared as elected on General Unreserved fourth seat, is to be declared as defeated, and the certificate issued to him in Form No.22 is to be revoked. It is hereby ordered to issue certificate in Form No.22 in favour of Smt.Geetaben Vishalsinh Chavda who is required to be declared as elected on General Unreserved third seat.
The final result sheet as per Form No.21 is required to be issued afresh as per the above mentioned order."Page 37 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT
● SECTION 21 OF THE GENERAL CLAUSES ACT, 1897:
38 Section 21 of the General Clauses Act reads thus:
"Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or byelaws. - Where, by any [Central Act] or Regulations a power to [issue notifications,] orders, rules or byelaws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any [notifications,] orders, rules or byelaws so [issued]."
39 Section 21 of the Bombay General Clauses Act, 1904, reads as under :
"Where by any Bombay Act 47 (or Gujarat Act), a power to issue notifications, orders, rules or bylaws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bylaws, so issued."
40 Section 21 referred to above occurs in the group of sections which are headed "provisions as to orders, rules, etc, made under enactments".
41 Section 20 provides that, "Where, by any Act of the GovernorGeneral in Council or regulation, a power to issue any order, notification, scheme, rule, form or bylaw is conferred, then the expressions used in the order, notification, scheme, rule, form or bylaw, if it is made after the commencement of the Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power."
Page 38 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT Then comes Section 21, which reads thus:
"Where by any Act of the GovernorGeneral in Council or regulation, a power to issue notifications, orders, rules or bylaws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add, to amend, vary or rescind any notifications, orders, rules or byelaws so issued."
42 The argument canvassed on behalf of the respondents Nos.1 and 2 respectively is that the Returning Officer, being an administrative authority, has the power expressly conferred by Section 21 of the General Clauses Act, to vary the result of the election so as to bring it in accordance with Rule 64 of the Rules of 1994.
43 We are of the view that Section 21, General Clauses Act, does not, apply to this case.
44 It is well settled that Section 21 embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject matter, context and the effect of the relevant provisions of the said statute. In other words, it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by the Section, the contention of the respondents is justified that the power to cancel the certificate issued by the Returning Officer in Form 22 under Rule 68 of the Rules can be said to vest in the Returning Officer by necessary implication. If we arrive to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, the respondents would not be entitled to invoke the Page 39 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT assistance of the said section. In other words, Section 21 of the General Clauses Act, which embodies a rule of construction, is, by no means, one of universal application. Even if the impugned order needs to be treated as an administrative order, we are of the view that Section 21 of the General Clauses Act cannot be made applicable to such order. The Supreme Court in the case of State of Bihar vs. D. N. Ganguly [AIR 1958 SC 1018] held a reference under Section 10(1) of the Industrial Disputes Act to be administrative in character and yet not subject to modification by application of the implied power under Section 21 of the General Clauses Act.
45 Section 21 applies to cases where under various enactments a power to issue notifications, orders or rules or bylaws is conferred. The expression "order" employed in Section 21 shows that such an order must be in the nature of Notification, Rules and byelaws, etc. The order, which can be modified or rescinded on the application of Section 21, has to be either executive or legislature in nature. What type of order did the Returning Officer in the present case modified or rescinded? Is the Returning Officer talking about the certificate issued in favour of the writ applicant in Form 22 under Rule 68 of the Rules? The Returning Officer was appointed under the statutory Rules of 1994. He could be termed as a statutory authority appointed under the rules to discharge his duties and functions in the election. In M/s. Bishamber Dayal Chandra Mohan vs. State of U.P. and others [AIR 1982 SC 33], the Supreme Court explained the difference in a statutory order and an executive order observing that executive instruction issued under Article 162 of the Constitution does not amount to law. However, if an order can be referred to a statutory provision and held to have been passed under the said statutory provision, it would not be merely an executive fiat, but an order under the Statute having statutory force for the reason Page 40 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT that it would be a positive State made law. So, in order to examine as to whether an order has a statutory force, the Court has to find out and determine as to whether it can be referred to the provision of the Statute. The section as it now stands is the result of an amendment by Act l of 1903. As it was originally enacted in 1897, Section 21 ran thus:
"Where by any Act of the GovernorGeneral in Council or regulation, a power to make orders, rules or bylaws is conferred, then that power includes a power exercisable in like manner and subject to the like sanction and conditions (if any) to add, to amend, vary or rescind any orders, rules or bylaws so made."
Under various enactments the power was given to make rules, by laws or orders. Before Act 10 of 1897, it was considered doubtful whether a power conferred by an enactment of the GovernorGeneral or regulation to make orders or rules or bylaws included a power to add, to amend, vary or rescind such orders, rules or bylaws. The matter was classified by the enactment of Section 21. Section 21 of Act 10 of 1897 corresponds to Section 32, Clause (3), Interpretation Act, 52 and 53 Vict. Ch. 63. That section runs thus:
"Where an Act passed after the commencement of this Act confers a power to make any rules, regulations, or bylaws, the power shall, unless the contrary intention appears, be construed as including a power, exercisable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the rules, regulations, or bylaws."
As pointed out by Craies on Statute Law (p. 260, Edn. 4):
"In Acts prior to 1890 which authorize the making of rules, regulations or bylaws, a power of rescission or variation must, it would seem, be given expressly or by necessary implication in order to authorize any alteration of the rules etc., when once made, and without such power the rule making authority is functus officie on the first exercise of the power."Page 41 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT It is in order to remedy this state of things which necessitated a fresh enactment. Whenever a change in the rules or bylaws was felt necessary that Section 32, Clause (3), English Interpretation Act, was enacted and Section 32, Clause (3) applies to cases where by an Act passed after 1889 a power is conferred to make rules, regulations or by laws and it is only in such cases that the power to make rules, etc., includes the power to vary, rescind, revoke or amend the rules, regulations, or by laws. In India prior to the enactment of 1897 a doubt was felt whether the power to make orders and rules included a power to vary or rescind those orders or rules. Sections 20 to 24, General Clauses Act, relate to powers conferred upon, what we may call, a subordinate legislative authority. In several cases the Legislature instead of making orders and rules and notifications in the Act itself, enacts that a particular authority shall have, subject to the conditions mentioned in the enactment, the power to issue or make notifications, orders, or rules. In such cases the authority to which the power to issue or make orders or notifications is given is to have the power to modify, vary or rescind them. Some cases of delegated authority to issue orders and rules are set out in "Local rules and orders in the Madras Presidency," published from time to time. It does not apply to a decision as to the rights of parties made by a particular judicial or quasi judicial or administrative authority. If Section 21 is held to apply to all cases where an order is passed under an enactment, the result would be startling. [See :
Municipal Council, Bezwada vs. Madras and Southern Maharattah Railway Co. Ltd AIR 1944 Madras 355].
46 In the aforesaid context, we may also refer to and rely upon a decision of the Bombay High Court in the case of Sarla vs. State of Page 42 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT Maharashtra and others reported in AIR 2001 Bom 159. In the said case, a batch of writ applications involved a common question as to whether the Returning Officer is vested with any power to add, to amend, vary or rescind the result of the election after the same is declared by him under Rule 34 of the Bombay Village Panchayat Election Rules, 1959. It was argued on behalf of the petitioner therein before a Division Bench of the Bombay High Court that the action on the part of the Returning Officer to have issued a corrigendum resulting in the modification of the election results declared earlier, was without any jurisdiction vested in him under the law, and therefore, once the Election Officer had declared the result (right or wrong), he could not have issued a corrigendum pursuant to the directions of the State Election Commission and by placing reliance on Section 10(7) of the Bombay Village Panchayat Act.
47 The Bombay High Court also took into consideration Section 21 of the General Clauses Act as one of the main emphasis on the part of the respondents therein in justifying the authority of the Returning Officer to modify the results of the elected candidates was by placing reliance on Section 21 of the Bombay General Clauses Act, 1904. The Bombay High Court, while negativing such contention, held as under:
"The underlying principle which has persuaded the Court to exercise its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India is that "Purity of election process has to be preserved" and, therefore, if in a given situation, the very nature of things such as in the matters at hand, what we find is a strong case which calls for intervention. The main emphasis on the part of the respondents in justifying the authority of the Returning Officer to modify the results of the elected candidates is by placing reliance on Section 21 of the Bombay General Clauses Act 1904, which has been so referred to in the impugned notifications. In an identical situation, this Court had an occasion to examine the issue while dealing with the general elections held on 96 2000 to Vangani Gram Panchayat in an unreported decision in the case of Page 43 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT Anil Sudam Patil v. Returning Officer, v. Angani GP (Writ Petition No. 4516 of 2000) decided on 792000, wherein the Bombay Bench of this Court held as under :
"3. After hearing the learned counsel for the parties, we are of the opinion that the impugned order passed by the 1st respondent cannot be sustained in law. It is an admitted position that the result was declared on 1062000 whereby the respondent No. 1 declared Ghanshyam Dangre as elected in seat reserved for OBC and as far as the present petitioner is concerned he was declared elected as against open category. Once the results are declared respondent No. 1 had no power to modify or alter the result of the election. It is well settled that the returning officer becomes functus officio after the results are declared and thereafter he cannot alter or modify the results of election. Section 15A of the Village Panchayat Act provides in clear terms that election of any panchayat cannot be called in question except in accordance with the provisions of Section 15 of the Act i.e. by way of filing of election petition. Thus the impugned order passed by the respondent No. 1 is wholly illegal and without jurisdiction. The impugned order is therefore quashed and set aside. Rule is made absolute in terms of prayer Clause (a) (1)."
We concur with the view taken by the Division Bench of this Court as cited above and would like to add that under the scheme of the Bombay Village Panchayat Act. 1958 and that of the Bombay Village Panchayat Election Rules, 1959, once Returning Officer declares the results of elections under Rule 34 of the Rules of 1959, next step can be that the candidate, or, in his absence, his election agent may apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted stating the grounds taken and as contemplated under Rule 35 of the Rules of 1959, and if the Returning Officer decides to allow such an application, then he shall count the ballot papers again in accordance with his decision and amend the statement showing the number of votes recorded, referred to in Subrule (4) of Rule 32 to the extent necessary after such recount and announce the amendments so made by him and the result of the election. It is only in this contingency that the Returning Officer is vested with powers to amend the results of the elections and under Rule 36, he shall cause the names of elected candidates to be posted at Village Chavdi or at the village panchayat office or at such other public place, if any, appointed in that behalf by him and shall report such names immediately to the Collector. It is thereafter that the Collector would cause publication of results of elections under Rule 37 of the Rules of 1959. The Collector also is vested with a limited jurisdiction before the publication of the names of the elected and appointed members I.e. to the extent of correcting Page 44 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT any mistake in the names of the elected and appointed members. Therefore, in the whole process, commencing from declaration of results of the elections to its publication, the Rules do not permit or vest with the Returning Officer or the Collector, any power to add to, amend, vary or rescind the declaration of results of elections, and, therefore, to borrow such powers from Section 21 of the Bombay General Clauses Act 1904, would be nothing but acting beyond the jurisdiction vested by the Act and Rules. Therefore, the Returning Officer having once exercised his power of declaring the results of elections, cannot exercise it again unless statute provides for or vests with him the right to do so. Section 21 of the Bombay General Clauses Act, 1904 cannot be used by the Returning Officer to put a person who has been declared by him as elected (rightly or wrongly), to change the result of the election and place the person in an advantageous position over the other side and drive the other side to seek redress by taking recourse to election petition. It is rightly contended by the learned counsel appearing for the respondents that the remedy available to a person aggrieved by the declaration of the result of election is only through filing an election petition as contemplated under Section 15 of the Bombay Village Panchayat Act. The Karnataka High Court, while dealing with a similar situation in the case of The Tahsildar and Returning Officer, Agricultural Produce Market Committee, Bhalki v. Shivaji Rao, AIR 1976 Karnalaka 233, observed in para 4 of the judgment as under (at page 234) :
"4. The general principle of law is that once the process of election is started, the same cannot be interrupted except by an order of Court. The result of the action of the appellant Tahsildar is to interrupt the process of election after the nominations had been filed and accepted. If the principle of Section 21 of the General Clauses Act can be availed of by Returning Officers, then it is likely to be seriously abused whenever the persons in authority find that their candidates are not likely to win or their nominations are not valid. As at present advised we are of the opinion that unless there is an express power conferred by the Statute, the Tahsildar has no power to cancel the notification once he has issued a calendar of events and pursuant to the same, nominations have been filed and accepted."
In another case, Patna High Court, while dealing with Section 21 of the General Clauses Act (1897), in the case of Bakshi S.B.P. Sinha v. The Bihar State Bar Council, , held as under :
Page 45 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT "The Bihar State Bar Council has no power to cancel its entire election and to give direction to the Returning Officer to hold fresh election. Thus where some obstructions and disturbances took place, at certain polling booths and polling had also stopped for some time but ultimately the poll had been completed, and the counting and recounting of votes also took place, the State Bar Council could not at such stage pass a resolution cancelling the entire election and directing fresh election. The resolution of the State Bar Council could not be saved under implied powers under Section 21 of the General Clauses Act, because the resolution did not amount to postponement or alteration of the election programme but amounted to cancellation of election already held. If at all any irregularities were committed at the election, the proper remedy was to file election petition before the Election Tribunal constituted under Rule 47 of the State Bar Council Rules. Till the result of the election was declared, it could not be challenged by filing election petition and therefore the Bar Council was directed to declare the result."
Therefore, we have no hesitation to hold that the impugned action on the part of the respondentReturning Officer in issuing the corrigendum and unsettling the results of the election earlier declared, on the basis of the instructions/guidelines, was without jurisdiction and deserves to be quashed and set aside."
48 We are in complete agreement with the aforesaid decision of the Bombay High Court taking the view that Section 21 of the General Clauses Act cannot be a source of power for the Returning Officer to vary or change the results of the election once the same is declared and a certificate is issued in favour of the successful candidate (rightly or wrongly). We are of the view that after the declaration of the election, the Returning Officer as well as the Election Commission becomes functus officio.
49 In the aforesaid context, we may also refer to and rely upon a Division Bench decision of the Allahabad High Court in the case of Kamlesh vs. Mukhya Nirwachan Ayukt reported in 2006(63) AllLR Page 46 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT
580. In the case before the Allahabad High Court, the very same question, i.e. whether after the declaration of the result by the Returning Officer and issuance of the certificate of declaration in favour of a successful candidate, the Returning Officer has the competence to order for recount of the votes or issue a certificate in favour of any other candidate on the ground that certain valid votes had not been counted before the declaration of the result, was involved. Justice B. S. Chauhan (as His Lordship then was), speaking for the Bench, observed as under:
"7. The learned Counsel for the respondents have admitted in their counteraffidavit that the result was declared by the Returning Officer on 26.10.2005 and petitioner was declared a successful candidate and the certificate to that effect (Annexure1) was also issued to her. While entertaining the writ petition, this Court passed an interim order in favour of the petitioner and she is still holding the post under the interim order of this Court.
8. The law on the issue involved in this petition is wellsettled. The election law is too technical; equity, justice etc. have no role in such matters. The result had been declared by the Returning Officer. The petitioner had been declared successful and the certificate to that effect was also issued in her favour. In such circumstances the Returning Officer had become functus officio and the mistake, if any, in declaring the result without counting some of the votes, could be rectified only at the intervention of the Election Tribunal/Court but it was not legally permissible for the Returning Officer on any ground, whatsoever, to review his earlier order. The order passed by him is therefore without jurisdiction and the certificate declaring respondent No. 3 as a successful candidate cannot be given effect to.
9. Shri P.N. Rai, learned Counsel for the respondent Commission has submitted that the Election Commission has plenary and all necessary powers for smooth, free and fair conduct of the election subject only to a valid law and in exercise of its residual power, such a course is permissible. To fortify his submission, reliance has been placed by Shri Rai on the judgments of the Hon'ble Apex Court in Union of India v. Association for Democratic Reforms and Anr. and Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. , wherein it has been held that the Commission is competent, in an appropriate case, to pass an appropriate order to meet a particular fact situation in exercise of its powers under the statute though the order is to be passed on receiving the reports Page 47 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT from the Returning Officer with regard to any situation arising in the course of an election and the powers has to be exercised with promptitude. The aforesaid contention has to be rejected for the reason that in Mohinder Singh Gill (supra), the Hon'ble Apex Court has held that the power of the Commission and its officers can be exercised to hold free and fair election till its culmination in the formal declaration of the result. The Court held as under:
Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culmination in the final declaration of the returned candidate. (Emphasis added)
10. Similar view had earlier been taken by the Apex Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal Salem Distt. And Ors. .
11. From the above, it is evident that election comes to an end on declaration of the result of the election, i.e., when the certificate is issued to a particular candidate declaring him successful. Thus, in the instant case, the election had come to an end the moment the certificate was issued in favour of the petitioner and all subsequent proceedings taken by the Returning Officer are without any authority /competence.
12. More so, recounting of votes is permissible on limited grounds, by the Returning Officer only prior to the declaration of the result. He has no competence to order for recount of the votes after declaration of the result of the election. If the respondent No. 3 was so aggrieved she could have filed an election petition seeking direction for recounting of votes from the Election Tribunal but it was not permissible for the Returning Officer to provide the remedy to the respondent No. 3 as he was not the appropriate forum to adjudicate upon the controversy, at all.
13. It is settled legal position that once result of the election is declared, it can be challenged only before the Election Tribunal. (Vide N. P. Ponnuswami (supra) ; Durga Shankar Mehta v. Raghuraj Singh ;
Brundaban Nayak v. Election Commission of India and Anr. ; Mohinder Singh Gill (supra); Krishna Ballabh Prasad Singh v. Sub Divisional Officer, HilsacumReturning Officer and Ors. and Election Commission of India v. Shivaji and Ors. ).
14. In exceptional circumstances, where the facts are not in dispute, the controversy regarding disqualification etc. can also be agitated in writ jurisdiction. (Vide K. Venkatachalam v. A. Swamickan and Anr. And Lal Chand a. State of Haryana and Ors. (FB) ; Manda Jaganarh v. K. S. Rathnam and Ors. and Harnek Singh v. Charanjit Singh ).
Page 48 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT
15. Thus, in view of the above, the Returning Officer had lost the competence to deal with the issue further once the result had been declared.
16. We also find no force in the submissions made by Sri Rai that in such a fact situation, Election Commission and its officers had a legal obligation/implied powers to rectify the mistake made inadvertently. Legal maxim 'Quando lex aliquid alicui concedit, conceditur et id sine guo res ipsa esse nan potest' means when the law gives some one anything, it gives him also that without which the thing cannot exist, does not apply in the facts of the instant case for the reason that immediately after declaration of the result and issuance of the certificate, the election came to an end, and the Returning Officer became functus officio, I.e., after discharging the duties of the Returning Officer, his authority stood terminated automatically. Thus, the Returning Officer had lost the competence to deal further even if some votes were left to be counted inadvertently. Thus, the order passed by the Returning Officer cannot be sustained in the eyes of law.
17. The issue involved herein has been examined by various Division Benches of this Court in Smt. Ram Kanti v. District Magistrate and Ors. 1995 AWC 1465 and Shambhu Singh v. State Election Commissioner and Ors. 2000 (4) AWC 2777 : 2000 (91) RD 619, wherein it has been held that declaration of the result once made cannot subsequently be cancelled. Once the election process comes to an end, the Authority becomes defunct.
18. In view of the above, petition succeeds and is allowed. The certificate issued in favour of respondent No. 3 declaring her as a successful candidate (AnnexureCA 2) is hereby quashed and consequently the earlier certificate declaring the petitioner successful stands revived. It will, however, be open to the respondent No. 3 to approach the appropriate forum, I.e., the Election Tribunal for seeking appropriate remedy, if she is so advised."
50 We have on hand a very interesting decision of the Supreme Court rendered in the case of Krishna Ballabh Prasad Singh vs. Sub Divisional Officer, HilsacumReturning Officer and others reported in AIR 1985 SC 1746. In the said case, the Returning Officer announced that the petitioner Krishna Ballabh Prasad singh is duly elected to the assembly pursuant to which certificate of election in Form 22 under Rule 66 was also granted to him but the declaration in Form 21C was not Page 49 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT prepared under Clause (a) of Rule 64 of the Conduct of Election Rules, 1961, and sent to the authorities required thereunder. However, the Returning Officer, thereafter discovered that the ballot papers of one booth had not been counted and, therefore, after counting those votes he cancelled the election of that petitioner and declared the fourth respondent to be elected. Accordingly, a declaration in Form 21C was then prepared declaring the fourth respondent to be elected candidate, and a fresh certificate in Form 22 was issued. On the above facts it was contended that the Returning Officer had no power to cancel the election of the petitioner and declare the fourth respondent elected. It was also contended that once, after casting of votes, certificate in Form 22 was granted to the petitioner certifying that he had been elected, the process of election was completed and, therefore, the subsequent declaration by the Returning Officer in favour of fourth respondent can be challenged in a writ petition and the bar in Clause (b) of Article 329 does not operate against the writ petition and therefore, no question arose for the petitioner to file election petition. The Supreme Court repelled the contention and held that the declaration of result of an election must be in the manner provided by the Act or the rules made thereunder. It has also been held that the announcement by the Returning Officer that the petitioner had been elected has no legal status because the declaration in Form 21C had not yet been drawn up. It was further held that even the grant of certificate of election in Form 22 to the petitioner could be of no avail to him because Rule 66 contemplates the grant of such certificate only after the candidate has been declared elected under Section 66 and, therefore, there being no declaration in Form 21C at the relevant time, the grant of certificate of election in Form 22 to the petitioner was meaningless. In para 5 of that judgment it has further been held by the Supreme Court that after declaration in Form 21C and completion of consequential formalities, the process of Page 50 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT election comes to an end and the bar of Clause (b) of Article 329 of the Constitution thereafter comes into operation and the election petition alone is maintainable challenging such declaration and the writ petition cannot be entertained.
51 In the aforesaid case, the Supreme Court took the view that the announcement by the Returning Officer that the petitioner had been elected would have no legal status as the declaration in Form 21C had not been drawn up. The Supreme Court took the view that even the grant of certificate of election in Form 22 to the petitioner could be of no avail to him because Rule 66 contemplates the grant of such certificate only after the candidate had been declared elected under Section 66 and there being no declaration in Form 21C at the relevant time, the grant of certificate of election in Form 22 was found to be meaningless. This decision fortifies the view we propose to take that in the present case, as no other formality like Form 21C was required to be completed, and publication of the names of the elected candidates in the official gazette in accordance with Rule 69 of the Rules was the only thing left to be done, the result could not have been changed. It is not in dispute that in the case on hand, the certificate under Rule 68 was issued to the writ applicant declaring him to be the returned candidate. What is important to note are the observations of the Supreme Court that after the declaration in Form 21C and completion of consequential formalities, the process of election comes to an end and the bar of Clause (b) of Article 329 of the Constitution, thereafter, would come into operation and the election petition alone would be maintainable challenging such declaration and the writ petition cannot be entertained.
52 What we are trying to convey in the aforesaid context is that once the declaration of the result (right or wrong) attains finality, nothing Page 51 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT further can be done by the Returning Officer even if at a later stage it comes to his / her notice that a clerical or arithmetical error has crept into the declaration of the final result. So far as the 1994 Rules with which we are concerned, once the certificate under Rule 68 in Form 22 is issued in favour of the candidate declared to be the winner, nothing further is required to be done, except publish the names of the elected Councillors in the official gazette. This is for the general public to know as to who all have been elected as the Councillors. In short, Rule 68, in our opinion, is the end of the process of final declaration of the returned candidate. It would have been altogether a different scenario if the rule making authority had thought fit to confer upon the Returning Officer a specific power to correct any arithmetical or clerical error even after the final declaration of the result. However, we do not find any such rule empowering the Returning Officer to do so.
53 In the aforesaid context, we may give an instance of such power being conferred upon the Returning Officer by way of a statutory rule. For this, we may refer to a Division Bench decision of the Madhya Pradesh High Court in the case of Suresh Kumar Mishra vs. the State of Madhya Pradesh rendered in the Writ Petition No.2184 of 2013 decided on 13th February 2013. A Writ Petition was filed before the Madhya Pradesh questioning the legality and validity of the order, by which the District Election Officer, in exercise of his power, under Rule 84 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995, changed the result of the election. It was argued before the Madhya Pradesh High Court that the provisions of Rule 84 of the Rules would not empower the Returning Officer to make change in the result of the election. For any such aggrieved person, the only remedy would be by filing the Election Petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short, "the Act") and after examining Page 52 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT the evidence available on record, the Election Tribunal would be free to direct recount of the votes.
54 The Madhya Pradesh High Court, while rejecting the writ application, observed as under:
"It is not in dispute that the Rules have been made in exercise of powers conferred on the Rule Making Authority under the Act. Rule 84 of the Rules is reproduced for the purposes of its application and for right appreciation :
"84. Powers of District Election Officer to correct clerical or arithmetical mistakes or errors. (1) The District Election Officer may at any time but not later than 15 days from the date of declaration of result under rule 81, either suo motu or on a report of the Returning Officer, correct, by an order any clerical or arithmetical mistake or error in the result sheet in Form 16, 17, 18 or 19 or in the return of election in Form 20, 21, 22 or 23 as the case may be :
Provided that no correction or amendment shall be made except after giving a notice to all contesting candidates from the ward or constituency in question, about the date, time and place for taking up the matter for such correction.
(2) An order passed by the District Election Officer under sub rule (1) shall be in writing and contain reasons therefor and a corrected copy of the return of election in Form 20, 21, 22 or 23 as the case may be, duly signed and certified by the District Election Officer shall be sent to the Returning Officer for grant of certificate of election to the candidate declared elected as a result of such correction.
(3) Nothing in subrule (1) shall confer any power or authority upon the District Election Officer to open any envelope containing counted ballot papers or to direct recounting of votes.
(4) The certificate of election in Form 25 under rule 83, if already granted by the Returning Officer to a candidate before an order is passed by the District Election Officer under subrule (1), shall be deemed to have been recalled and cancelled."Page 53 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT The Rule Making Authority has categorically conferred the power on the District Election Officer at any time but not later than 15 days from the day of declaration of result of an election to correct any clerical or arithmetical mistake or error in the result sheet. If a report is submitted by the Returning Officer that while declaring the result a clerical or arithmetical error is committed, that can be corrected by the authority under the provisions of Rule 84 of the Rules. The only requirement is grant of an opportunity of hearing to the concerned. There are certain restrictions put on the District Election Officer. Subrule (3) of Rule 84 restricts the District Election Officer to open any envelope containing counted ballot papers and/or to direct recounting of the votes. Similarly, the power is conferred on the District Election Officer under subrule (2) and subrule (4) of Rule 84 of the Rules to make correction in the certificate of election and to issue a certificate of declaring a candidate elected as a result of such correction. The provisions of subrule (4) of Rule 84 of the Rules further makes it clear that a certificate issued by the Returning Officer in respect of a candidate of declaring him as elected is deemed to have been recalled and cancelled.
This being so, the provisions of Rule 84 of the Rules are extensively made for making correction in the error committed in declaring the result.
A perusal of the report submitted by respondent No.3, placed on record as Annexure P2, makes it clear that in fact while making tabulationsheet of the counting of the votes, it was categorically recorded that Ramprasad, son of Kaushal Prasad Mishra, respondent No.4 herein, has polled 43 votes and Suresh Kumar Mishra, son of Ramsumiran Mishra, the petitioner, has obtained 40 votes only. However, by a mistake instead of declaring the respondent No.4 as elected, certificate was issued in favour of the petitioner declaring him as elected. Neither the recounting of votes was done nor any other document was looked into by the District Election Officer except the tabulationsheet placed before him by the Returning Officer. This being so, if a clerical mistake was committed in declaring the petitioner as elected, the same could have been corrected by the order of the District Election Officer in exercise of powers under Rule 84 of the Rules, as the declaration of petitioner as elected in election was nothing but a clerical mistake. Such a mistake cannot be termed any other mistake, except a clerical mistake.
Since such a power is rightly exercised by the respondents authorities, no error is found in the order impugned. However, if the petitioner is not satisfied with the order or according to the petitioner the counting of votes is not rightly done, still the petitioner can approach the Election Tribunal by way of filing an election petition under Section 122 of the Act."
55 Thus, in the case before the Madhya Pradesh High Court, there was Rule 84, which confers power upon the District Election Officer to Page 54 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT correct clerical or arithmetical mistake or error. We do not find any such rule so far as the Rules of 1994 with which we are concerned. In fact, we suggest that the relevant rules can be suitably amended to avoid few litigation. But, as of now, we have no other alternative, but to hold that the law does not permit the Returning Officer to change the result having once issued the certificate to a returned candidate under Rule 68 of the Rules in the prescribed Form 22 referred to above, though such issue of certificate in Form 22 may be in conformity with clause (4) of Rule 64 of the Rules referred to above.
56 In P. K. K. Shamsudeen vs. K. A .M. Mappillai Mohindeen reported in 1989 (1) SCC 526, the Supreme Court went to the extent of holding that "even if the recount disclosed that the elected candidate had not secured highest number of votes, the result of the election cannot be disturbed if the order of recount itself is invalid". Thus the Courts have always safeguarded the purity of the entire election process and recognised the sanctity of declaration of results once made.
57 In Sohan Lal vs. Babu Gandhi reported in 2003 (1) SCC 108, the Returning Officer orally declared one Sohan Lal to have won the election. But when the official declaration was made, it was shown that one Babu Gandhi had won. A recounting was ordered and Sohan Lal was found to have won. Therefore, the Returning Officer corrected the mistake and declared Sohan Lal to have won. On a Writ Petition filed by Babu Gandhi, the High Court remanded the matter. The Returning Officer again ordered recount and again declared Sohan Lal to have won. A second Writ Petition was filed by Babu Gandhi, which was allowed following the decision of the Supreme Court in Ram Rati vs. Saroj Devi reported in 1997 (2) CTC 753 (SC) : 1997 (6) SCC 66, in Page 55 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT which it was held that unless a party first applied to the Returning Officer for recounting, neither the Tribunal nor the Court could direct recounting. But when Sohan Lal took the matter on Appeal to the Supreme Court, a Bench of two Judges had reservation about the principles laid down in Ram Rati's case and hence, the matter was referred to a 3 Member Bench. The 3 Member Bench held in Sohan Lal that "after the declaration of results, the Returning Officer had no power either to direct recount or to change the results of the election." Once the result is declared, the only remedy of an aggrieved party is to file an Election Petition. The Tribunal may order recount depending upon the evidence. But the Returning Officer has no power to change it.
58 A Division Bench of the Allahabad High Court, in the case of Ram Kanti vs. District Magistrate and others reported in 1995(3) AWC 1465 was called upon to answer three neat questions of law. The questions are as under:
"[1] Whether the State Election Commissioner, the District Magistrate or the Election Officer has power to cancel the poll held for electing a Pradhan and direct for fresh poll after a candidate has been declared elected as Pradhan under U.P. Panchayat Raj Act and the Rules framed thereunder?
[2] Whether the Estate Election Commissioner, the District Magistrate or the Election Officer has power to cancel the declaration, declaring a candidate as duly elected Pradhan and direct for recounting?
[3] Whether the writ petition challenging such cancellations and directions for repoll/recounting is barred by Article 2430 of the constitution of India?"
While answering the aforesaid three questions, the Bench Page 56 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT observed as under:
"9. From the above provisions, it is thus, apparent that the State Election Commissioner, District Magistrate and the Election Officer are empowered to supervise, control and conduct the election. After the election is over, they lose, all jurisdiction over the matter and it is the Election Tribunal alone, which is competent to deal with the dispute arising out of or in connection with the election. The meaning of the word election and when does the election process comes to an end has been considered by the Supreme Court from time to time while deciding the cases under the R.P. Act, leading case being N.P. Ponnuswami Vs. Returning Officer, 1952 AIR (SC) 64, wherein the election was given the wide meaning so as to connote the entire process culminating in a candidate being declared elected. It, thus, includes the entire procedure to be gone through to return a candidate to the Legislature. Same rule was reiterated in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, 1978 AIR(SC) 851, wherein it was laid down that the election commences from the initial 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. As the pattern and the procedure for holding the election under the Act and the Rules is similar to that contained in the R.P. Act, the same definition of election has to be applied to the election held under the Act and the Rules. After the election process has come to an end, the State Election Commissioner, District Magistrate and the Election Officer lose all their jurisdiction and the only authority, which can deal with and decide any complaint regarding the election is the Election Tribunal. It follows, therefore, that the State Election Commissioner, District Magistrate and the Election Officer can neither cancel the poll/declaration of the result nor can they direct for fresh poll or recounting after the candidate has been declared elected. But such a declaration has to be in accordance with law. Under the R.P. Act, as per Section 66, after the counting of votes has been completed, the Returning Officer has to forthwith declare the result of the election in the manner provided by this Act or the Rules made there Under. Rule 64 of the Conduct of the Election Rules, 1961 framed under the R.P. Act requires the Returning Officer to declare the candidate as elected in Form 21C or Form 2ID as may be appropriate. Rule 66 further requires the Returning Officer to grant to a candidate so declared elected a certificate of election in Form
22. In Krishna Ballabh Prasad Singh Vs. Subdivisional Officer Hilsa cumreturning Officer and Others, 1985 AIR (SC) 1746, Supreme Court has laid down that in view of the provisions contained in Section 66 of the R.P. Act a candidate can only be declared in the manner provided by the Rules made thereunder and the manner having been provided in Rule 64, a candidate cannot be said to have been duly elected unless the declaration is made in Form 21C. It was further laid down that in the absence of declaration in the said form, even the grant of certificate of Page 57 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT election in Form 22 cannot be of any help to a candidate because such a certificate can only be issued after the candidate has been declared elected in the manner prescribed, namely, in Form 21C. It was accordingly held that election process comes to an end only after declaration in Form 21C has been made.
10. Neither Rule 71 nor Rule 109, which provide for declaration of a candidate as duly elected contain any provision requiring such a declaration in the manner provided by the Act or Rules framed thereunder. In fact neither the Act nor the Rules have laid down any manner nor have they prescribed any form for such a declaration..."
● Rule 82 of the Rules, 1994 reads thus:
"82. Removal of difficulties. if any difficulty arises as to the holding of any election under the Act, the returning officer may, subject to such directions, if any, the State Election Commission may give, do any thing not inconsistent with the Act or rules which appears to him to be necessary for the proper holding of the election."
59 Although not very seriously put forward, yet a reference was made to Rule 82 to make good the submission that in the peculiar facts and circumstances of the present case, the Returning Officer could have even taken recourse to Rule 82 referred to above in the absence of any specific rule empowering the Returning Officer to withdraw the certificate issued in Form 22 under Rule 68 and issue a fresh Form 22 to another candidate.
60 We are of the view that Rule 82 has no application worth the name in the present case.
61 The Supreme Court in the case of Madeva Upendra Senai vs. Union of India reported in AIR 1975 S.C. 797, in paras 45 and 46, has Page 58 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT given more than a fair idea of the nature and purpose of a "removal of difficulty clause" and power conferred by it on the Government. Paras 45 and 46 reads thus:
"45. For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a "removal of difficulty clause" and the power conferred by it on the Government.
46. To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexities. Under conditions of extreme pressure, with heavy demands on the time of the legislature and the endurance and skill of the draftsman, it is well nigh impossible to foresee all the circumstances to deal with which statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socioeconomic activities of the State or extends the existing Indian laws to new territories or areas freshly merged in the Union of India in order to obviate the necessity of approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time consuming amendatory process, the legislature sometimes thinks it expedient to invest the executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the "removal of difficulty clause" once found upon and nicknamed as "Henry VII Clause" scornful commemoration of the absolutist ways in which that English King got the "difficulties" in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds acceptance as a practical necessity, in several Indian statutes of postindependence era." (Emphasis supplied)"
62 Thus, from the aforesaid, it can be culled out that the "removal of the difficulty clause" should be utilized only for the purpose of removal of the difficulties and it cannot partake the power of making the rules under Section 456 of the Act, 1949. Henry VIII clause cannot be used as a rule making power. Certain contingencies might be unforeseen when the statute is enacted. Only those type of eventualities can be resolved Page 59 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT by Henry VII clause. If any doubt or difficulty arises in giving effect to the provisions of the Act, normally it is for the Legislature to remove their doubt or difficulty. The power to remove the doubt or difficulty by altering the provisions of the Act or the Rules would in substance amount to exercise of legislative authority and that cannot be delegated to a executive authority.
● FEW DECISIONS SUPPORTING THE SUBMISSIONS
CANVASSED ON BEHALF OF THE RESPONDENTS:
63 In the case of Tara Devi vs. State of U.P. and others reported in
2011(1) ADJ 287, a Division Bench of the Allahabad High Court took the view that an inadvertent mistake in the calculation of votes may be corrected even after the declaration of result under Rule 54 of the U.P. Khetra Panchayat and Zila Panchayats (Election of Member) Rules, 1994. We quote the relevant observations:
"4. The moot point of argument of Mr. Ojha is that once an election is complete and the result is declared by issuance of certificate by the Nirwachan Adhikari (Returning Officer, as said), he will become functus officio, therefore, he can not further interfere and cancel such certificate. If such certificate is cancelled in spite of having been prohibited under the relevant Rules, the same can not be said to be an election dispute but administrative lapse amenable under the writ jurisdiction of the Court. Mr. Ojha drew our attention to Rule 54 of the Rules, 1994, which is 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."
5 However, we find from Rule 56 of the Rules, 1994 that certain stages are there in connection with declaration of result, therefore, it requires consideration and as such, the same is quoted below:
Page 60 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021C/SCA/4193/2021 JUDGMENT "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."
6 Mr. Ojha has relied upon various judgements of this Court to establish that there is no embargo upon the writ Court in interfering with such type of disputes. According to us, normal practice is that from the date of commencement of election by way of issuance of notification and till the date of denotification the election cases will not be interfered with by the Court, meaning thereby if any dispute arises out of the election, the same can be decided by way of election petition when the election is over. So far as the writ Court is concerned, though there is no embargo in interfering with any matter but the writ Court in its wisdom maintains the restraint, so that the necessity of franchise should not be disturbed during such period. There is a gulf difference between not having power and having power to maintain its restraint. All the cited Division Bench judgements of this Court have principally held that there is no absolute bar to the writ Court. We have no quarrel with the proposition but, according to us, each case is dependent upon factual matrix of such case. Therefore, if a case of such nature is required to be heard by way of election petition, the entire dispute will be resolved in such manner. Alternatively, if the writ Court finds that the dispute is not an election dispute but due to administrative lapse amenable under writ jurisdiction then the entire matter will be adjudicated by the writ Court. No half hearted action would be permissible to construe one action as an administrative lapse and the other as an election dispute, particularly when the provisions of Article 243O of the Constitution is crystal clear that 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. When a person, by invoking the writ jurisdiction, taken a plea that dispute is such that the same would be amenable under writ jurisdiction due to administrative lapse, he can not turn around thereafter to convert the dispute as election petition. We can not stretch the jurisdiction of the writ Court and convert it to forum for hearing dispute. Hence, we have to see whether there was any administrative lapse on the part of the authority under the State Election Commission or not. Petitioner's own case is that the action on the part of the authority is administrative lapse.
7 The respective judgements, cited by the petitioner, are 1995(2) Page 61 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT
UPLBEC 771 (Smt. Ram Kanti Vs. District Magistrate, Hamirpur and others), 2000 (3) UPLBEC 2097 [Shyam Sakhi (Smt.) and others Vs. The State Election Commission, Uttar Pradesh, Lucknow and others], 2005 ADJ 595 (All) (DB) (Smt. Sunita Patel Vs. State of U.P. And others) and an unreported judgement of the Division Bench dated 30th March, 2006 delivered in Civil Misc. Writ Petition No. 266 of 2006 (Smt. Kamlesh Vs. Mukya Nirwachan Ayuct, Rajya Nirwachan Ayog, U.P. & ors.). We have carefully gone through the judgements as referred above.
8 The first judgement in re: Smt. Ram Kanti (supra), which has been subsequently relied upon, decided on the following points:
"(i) Whether the State Election Commissioner, the District Magistrate or the Election Officer has power to cancel the poll held for electing a Pradhan and direct for fresh poll after a candidate has been declared elected as Pradhan under U.P. Panchayat Raj Act and the Rules framed thereunder?
(ii) Whether the State Election Commissioner, the District Magistrate or the Election Officer has power to cancel the declaration, declaring a candidate as duly elected Pradhan and direct for recounting; and
(iii) Whether the writ petition challenging such cancellations and directions for repoll/recounting is barred by Article 243O of the Constitution of India?
9 So far as the last point is concerned, apart from the embargo under Article 243O of the Constitution, we have already clarified the factual and legal positions herein which do not require to be repeated. Moreover, factually the aforesaid case is factually distinguishable from the present case.
10 As far as Shyam Sakhi (supra) is concerned, the dispute therein was that several persons filed the nomination papers and the Assistant Returning Officer rejected the nomination papers of others leaving aside the petitioners, who were declared elected as unopposed. It was stated on behalf of the respondents therein that a fresh election should take place as fraud was practised in getting the nomination papers of others rejected. However, in dealing with factual aspect the Court held that there is no averment in the counter affidavit that the petitioners had committed any fraud. Therefore, again we say that second case is also factually distinguishable. In Smt. Kamlesh (supra) dispute was there with regard to post of Member of Block Development Committee. The fact was that the Returning Officer firstly declared the petitioner as successful and certificate had been issued. The Returning Officer subsequent thereto declared the Page 62 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT respondent no. 3 as a successful candidate and also issued the certificate to that effect on the same day on the ground that the votes relating to polling booth no. 132 had not been counted and could not be taken into consideration while making the declaration in favour of the petitioner. As after counting all the votes, the respondent no. 3 secured more votes than the petitioner and was declared successful. Even question of inadvertent mistake was not considered by the Bench in contra ratio of three Judges' Bench judgement of the Supreme Court in S. Baldev Singh (supra), where even in dealing with the election petition, it was held that in appropriate cases Returning Officer would be reasonably liberal in recheck. We do not find any reference of such judgement in Smt. Kamlesh (supra). There is other facet of this issue. All the judgements are following rigidity to send the second successful candidate to the election petition when in S. Baldev Singh (supra) the Supreme Court has taken a reverse stand in dealing with election petition.
11 Out of all the aforesaid cases, nowhere reference has been made with regard to applicability of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat (Election of Members) Rules, 1994 excepting in Shyam Sakhi (supra) that too with regard to Rule 21 of the Rules, 1994 about declaration of result of uncontested elections and Rule 6 relating to appointments of Nirwachan Adhikari (Returning Officer) and Sahayak Nirwachan Adhikari (Assistant Returning Officer).
12 Dispute herein is only with regard to the import of Rule 54 and Rule 56 of the relevant Rules, 1994. This part has only been dealt with in one of the judgements as referred above i.e. Smt. Sunita Patel (supra). Even factually therein recounting and retallying of the votes was already done and based upon that the Returning Officer subsequently issued another certificate on the same day in favour of the contesting respondent therein. According to the Division Bench of this Court, after declaring the result and issuing the certificate evidencing such declaration, the Returning Officer became functus officio and had no power to review his decision regarding the returned candidate.
13 The argument as advanced by the respondent in Smt. Sunita Patel (supra) is that reporting of the result under Rule 56 of the Rules, 1994 should be held to be an integral part of the declaration of result under Rule 54 of the Rules, 1994 on the ground that the superintendence and control of the election is within the State Election Commission and till the dispatch of the papers under Rule 56 of the Rules, 1994 is completed, the Returning Officer would be well within the power to get the ballots recounted, retallied and recomputed. The Division Bench has held that the argument of the respondent can not be accepted firstly for the reason that the scheme of the Rules, 1994 suggests that with the declaration of the Page 63 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT 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 Rules, 1994 is an integral part of the declaration of result under Rule 54 of the Rules, 1994. The other reason for not accepting the 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.
14 Mr. Baghel, on the other hand, has relied upon a judgement of the Supreme Court reported in AIR 1981 SC 606 : 1980 (Supp.1) SCC 420 (Grindlays Bank Limited Vs. Central Government Industrial Tribunal) to establish that a review on the part of the Returning Officer is squarely within his domain. There are two types of review, one is procedural review and another is review on merits. In respect of the review to a procedural defect, the inadvertent error committed by an authority must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in it. Therefore, when by virtue of such power the arithmetical calculation is corrected, it can not be said to be an interference of the Returning Officer dehors the Rules.
15 According to us, Rule 54 and Rule 56 of the Rules, 1994 should be carefully read together. Rule 54 is contemplated only with regard to declaration of securing highest number of votes in the respective constituency to be elected. The words "to be elected" give two imports. Either he has to be elected at once or subject to reporting of result as contemplated under Rule 56 thereof. Admittedly, there is no provision for issuance of certificate under the Rules. Therefore, issuance of certificate, being additional act on the part of the authority, can not by itself give an independent cause of action to proceed. Hence, if we hold and say that issuance of certificate in contemplation of Rule 54 is final, Rule 56 will be nugatory. On the other hand, as per Rule 56, as soon as result of the election is declared, it will be reported to the District Magistrate then to the Block Development Officer of the Kshettra Panchayat or Chief Executive Officer of the Zila Panchayat and also it will be reported to the State Election Commission. There is no dispute that the State Election Commission is the authority to conduct the Panchayat elections. On 28th October, 2010 this Division Bench has already held in Civil Misc. Writ Petition No. 56318 of 2010 (Srimati Sarita Devi Vs. State of U.P. And others) that the Commission, being creature of the Constitution, has plenary and residuary powers to overcome the respective situations. Such nature of work is to supplement the law but not to supplant. Superintendence, direction, control and conduct of elections have been held by the Courts on numerous occasions in the broadest terms. Therefore, it is crystal clear that formal declaration of result under Rule 54 will be abide Page 64 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT by Rule 56 of the Rules, 1994. In other words, when declaration of result under Rule 54 is formal one, declaration of result subject to Rule 56 is final one. It is an admitted position that election starts with notification and finishes with denotification. Scope of election petition arises thereafter. But during this period, Election Commission is the final authority of the entire process. Therefore, after formal declaration of result by the Returning Officer, if he is called upon by the other authorities under Rule 56 to remove the defects which are either minor or formal or inadvertent and he removes, neither he can be said to be functus officio nor it can be said to be outside the scope and jurisdiction of the Election Commission or any authority thereof. In this context meaning of functus officio is to be made known. It says that having fulfilled the function, discharged the office or accomplished the purpose and, therefore, of no further force or authority; applied to an officer whose term has expired and who has consequently no official authority. Time and again we have held that from the date of notification till the date of denotification the State Election Commission is the final authority to adjudicate any dispute, if it is called upon. After denotification it is open for an aggrieved to file appropriate election petition. The petitioner herein thought it fit that the dispute is in the nature of administrative lapse not an election dispute. Therefore, it is required to be understood what type of administrative lapse it is. The administrative lapse, if any, is calculational mistake. Even then, if the petitioner feels that it is a major departure on the part of the Returning Officer or any other authority connected with the State Election Commission, it is open for her either to approach the State Election Commission till the time election is not denotified and/or thereafter by way of election petition. Why the respondent no. 5 will be compelled to file an election petition for this type of minor or formal or inadvertent mistake particularly when there is an apparent suppression of the material fact in the affidavit on the part of the petitioner on account of production of the appropriate sheet showing calculational mistake, is unknown to us. Had the petitioner a strong prima facie case, she would have come with clean hands.
16 So far as the question of statutory interpretation is concerned, we have to hold and say that when the language of a statute is susceptible of two interpretations, one of which is reasonable and the other unreasonable according to the Court, the Court should hold that former must prevail. It is further known that where the language of a statute is general, doubtful or obscure, the language may be modified or varied by interpretation in order to avoid any manifest absurdity, repugnance, mischief or injustice. When the language of a statute is capable of two interpretations, one of which works injustice and the other does not work any injustice, the latter must prevail. The rule of interpretation requires that while interpreting two inconsistent, or, obviously repugnant provisions of an Act, the Courts should make an effort to so interpret the Page 65 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT provisions as to harmonise them so that purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose.
17 There is a parallel Rule I.e. The Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and UpPramukhs and Settlement of Election Disputes) Rules, 1994. For the purpose of better understanding, Rule 29 of such Rules is quoted hereunder:
"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."
18 According to us, under the said Rule though the Returning Officer is directed to declare result forthwith but declaration of result includes both the parts as under Rules 54 and 56 of the Rules, 1994 herein. In interpreting Rule 29 a Division Bench of this High Court in 2003 (3) AWC 2271 (Ram Kishun, Gorakhpur Vs. State Election Commissioner and others) held that declaration of result by the Returning Officer is not final but subject to disposal of objection or application, if any, filed by any candidate.
19 These Rules are pari materia with the Rules 54 and 56 of the Rules, 1994 herein. Having so, we suggest that the relevant Rules can be suitably amended to avoid future litigations. But as of now, we have no other alternative but to hold that the law laid down by the Division Bench of this Court in Smt. Sunita Patel (supra) as regards Rule 56 is not integral part of Rule 54 of the relevant Rules, 1994 but incidental thereto, is per incuriam in nature."
64 The aforesaid was a litigation in which the Rules 54 and 56 Page 66 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT respectively of the (Election of Members) Rules, 1994 was a subject matter of consideration. The principal argument like the one canvassed in the case on hand was that once an election is complete and the result is declared by issuance of certificate by the Nirwachan Adhikari (Returning Officer, as said), he will become functus officio, and therefore, he cannot further interfere and cancel such certificate. Rule 54 therein is in respect of the declaration of the result. In the said case, the Allahabad High Court thought fit to read Rules 54 and 56 respectively harmoniously and carefully. The High Court took the view that Rule 54 contemplates only the declaration of securing highest number of votes. Whereas Rule 56 castes an obligation upon the Returning Officer to report the result to the District Magistrate and shall also inform the Block Development Officer or the Chief Executive Officer of the concerned panchayat and the District Magistrate in turn to report the result to the State Election Commission. In the said case, when the certificate came to be cancelled, the Returning Officer had not reached upto the stage of Rule 56. The matter was still at the stage of Rule 54. In such circumstances, the High Court took the view that it would not be correct to say that the issuance of certificate under Rule 54 is final, as such a view would render the Rule 56 to be nugatory. In other words, the High Court took the view that formal declaration of result under Rule 54 would abide by Rule 56 of the Rules. This decision is distinguishable having regard to the specific rules referred to above.
65 In Shiam Lal vs. Ram Saroop and others reported in 1971 All LJ 1349, Justice K. N. Singh (as his Lordship then was) had the occasion to consider Section 21 of the General Clauses Act, while considering the question, whether the Assistant Returning Officer had the jurisdiction to correct the mistake which was obvious on its face. We quote the relevant Page 67 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT observations:
"10. It appears that the declaration of Ram Swarup was made in advertently due to mistake, as would be clear from the order of the Assistant Returning Officer dated 1st June. 1971 (Annexure 'B' to the petition). The Assistant Returning Officer stated in his order that admittedly an error had been committed by him in declaring the result of the election. He observed that none of the parties before him questioned the commission of the error by him. with the result all the contesting candidates before the Assistant Returning Officer agreed that a mistake had been committed by the Assistant Returning Officer in declaring Chaman Lal and Rarn Swarup elected. to the Board from Ward No. 6 whereas Chaman Lal end Shyam Lal were entitled to be declared elected. Although the Assistant Returning Officer as well as contesting candidates before him no doubt admitted the error but the Assistant Returning Officer became overconscious in refusing to correct the mistake committed by him. According to the Assistant Returning Officer if he was to correct the mistake pointed out to him, he would have committed another mistake and as such, he was of the opinion that he should not commit another mistakes to undo a mistake. He refused to correct the mistake and thereafter signed proforma VIII declaring Chaman Lal and Ram Sawrup duly elected members.
11. learned counsel for the petitioner has urged that the Assistant Returning Officer had jurisdiction to correct the mistakes which was obvious on its face and in refusing to correct the same the Assistant Returning Officer failed to exercise the jurisdiction jurisdiction vested in him by law. There is considerable force in this contention. The Assistant Returning Officer in conducting the counting and declaring the result of the election was performing an administrative function. It is a well established principle that an authority discharging administrative functions has power to review its orders. No specific power is required to be conferred on such an authority for this purpose. The provisions of Sec. 21 of the General Clauses Act confer ample jurisdiction on an administrative authority to amend. vary or rescind its orders. The principle laid down in See. 21 of the General Clauses Act is of general application and there is no reason why the Assistant Returning Officer could not review his order passed by him under a mistake. In case of an authority discharging quasijudicial functions. different considerations may arise. as no quasijudicial authority has any inherent power to review its orders unless so empowered expressly or impliedly by an Act or Rules. But an Administrative Authority exercising administrative powers has full jurisdiction to correct mistakes committed by it suomoto or at the instance of any party. Besides, that whenever a mistake is committed by an administrative authority. it would be in public interest to correct the Page 68 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT same as expeditiously as possible in order to avoid perpetration of injustice.
12. In the instant case only form 17. prescribed under paragraph 66 of the order had been filled up. The result of the election had not been reported to the State Government as required by paragraph 68 nor the result of the election had been notified. The mistake had been pointed out to the Returning Officer immediately after he had prepared the return in form 17, prescribed by paragraph 66 of the Order. There is no statutory provision in the U.P. Municipalities Act or in the said Order taking away the jurisdiction of Returning Officer to correct any error or mistake committed by him. The error was obvious on the face of it. The Assistant Returning Officer. Therefore, in my opinion. had jurisdiction to correct that mistake. In refusing to correct the error committed by him, the Assistant Returning Officer failed to exercise Jurisdiction vested in him by law."
66 We are not in a position to subscribe to the aforesaid view of the High Court for the reasons we have recorded while discussing Section 21 of the General Clauses Act.
67 We may also refer to one unreported judgement rendered by a Division Bench of the Madras High Court in the case of S. Vijayakumar vs. The Returning Officer, Semusigapuram Village Panchayat, Rajapalayam Panchayat Union, Virudhunagar District and others [W.A. No.2598 of 2001, decided on 6th October 2003], wherein the Division Bench held as follows:
"3. Rule 67 of the Tamil Nadu Panchayats (Elections) Rules, 1995 in sub rule 3(a) provides thus:
"In the case of election of member of Village Panchayats, after Returning Officer has completed the scrutiny and counting of votes, he shall declare elected, its candidate or candidates, as the case may be, to whom the largest number of valid votes have been given and complete and certify the return in Form 24 and send the signed copy to the District Election Officer and the State Election Commission." (The other parts of that Rule are not set out as they Page 69 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT are not necessary).
4. Form 26 is to be issued only to the person to whom the largest number of valid votes had been given. If such a Form is given to a person who has not polled the largest number of valid votes, such a person does not acquire a indefeasible right to be regarded as person elected, solely on the strength of issue of Form 26 under Rule 69.
5. In order to be regarded as the elected candidate, the person should have polled the highest number of votes. Form 24 is to be first prepared in which the number of votes polled by each of the candidates is required to be set out. Form 26 which is to be given to the elected candidate, must be given only to the person who has polled the largest number of votes and whose name is found in Form 24 along with the number of votes polled by him. The error committed by the Returning Officer in giving Form 26 to a person who has polled the highest number of votes, is not a Form on which the recipient can rely, to claim the status of an elected member of the Panchayat.
6. In this case, error was realised on the same day on which the counting was done, the writ petitioner was informed of the error and the details which are required to be set out in Form 24, had been incorporated in the letter that was sent to him on the same day.
7. The submission made by learned counsel for the appellant that even in such cases, the only remedy is by way of election petition under Section 258 of the Tamil Nadu Panchayats Act, cannot, having regard to what has been stated earlier, be accepted. Section 258 of the Act no doubt requires that the election of a member shall not be called into question except by an election petition. Here, what has been done is not the calling into question the election of any member. What has been done is to recall the certificate given to a person who was not entitled to receive the same, having regard to the number of votes polled and who was not entitled to be regarded as the elected member. It is only when having regard to the number of votes polled, a person is declared as the elected member and given the certificate, the provisions of Section 258 are attracted.
8. Recalling of the certificate erroneously given to the writ petitioner who had not received the highest number of votes, was therefore perfectly in accordance with law. We do not find any merit in the writ appeal and the same is dismissed. No costs."Page 70 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021
C/SCA/4193/2021 JUDGMENT 68 In fact, the above referred decision of the Madras High Court
fortifies the contention canvassed by Mr. Joshi, the learned Senior Counsel appearing for the State Election Commission that all that the Returning Officer did in the case on hand was to recall the certificate issued to the writ applicant who was otherwise not entitled to receive the same, having regard to the number of votes polled and who was not entitled to be regarded as the elected member. It is only when having regard to the number of votes polled, a person is declared as the elected member and issued the certificate, the result could be said to be in accordance with Rule 64(4) of the Rules. However, in the said case, there is no discussion as regards the power of the Returning Officer to do so in the absence of any specific rule providing for correcting any arithmetical or clerical error.
69 Thus, so far as the question of law is concerned, the same needs to be answered in favour of the writ applicant and against the respondents.
70 The next question that follows is that although the writ applicant has succeeded on the questions of law discussed above, yet is he straight way entitled to the reliefs prayed for by him in this writ application.
71 This is a case where there is absolutely no scope for any dispute. There is no scope for any debate at all. No argument could possibly be raised as we have already noticed the fair stance adopted before us by the learned Senior Counsel appearing for the respondents that the Returning Officer had committed a mistake. We have also discussed in details the nature of the clerical or arithmetical error. Therefore, this is a case where a mistake committed by the Returning Officer is beyond Page 71 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT dispute. In such a case, if we are to allow the writ application and grant the reliefs sought for by the writ applicant in the writ petition, the result would be, though a person did not deserve under the rules to be declared as a returned candidate he will govern. It is now wellsettled that if an order of an authority is illegal or without jurisdiction, it need not be questioned by the High Court under Article 226 of the Constitution of India if such action would result in miscarriage of justice. Needless to say, we reiterate that the Returning Officer had no jurisdiction in the matter. We are declining to interfere in the matter in view of the fact that the alleged alleged declaration in favour of the writ applicant was not in accordance with law, and therefore, no relief should be granted under the writ jurisdiction of this Court.
72 It is wellsettled legal position that prerogative writs under Article 226 of the Constitution can be issued only in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of jurisdiction, or in violation of principles of natural Justice, or refused to exercise jurisdiction vested in them, or there is error apparent on the face of record which has resulted in manifest injustice. In the case of Sangram Singh vs. Election Tribunal, Kotah [AIR 1955 SC 425], in para 14 of the judgment the Supreme Court has observed as under :
"That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily ; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law, which do Page 72 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT not occasion injustice in a broad and general sense, for, though no Legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the Legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."
73 In M. Padmanabha Iyengar vs. Government of A.P. reported in AIR 1990 AP 357, Jeevan Reddi, J. (as His Lordship then was) observed as follows:
"It must also be remembered that, the remedy under Article 226 is a discretionary one. The Court is not bound to interfere merely on the establishment of an irregularity or illegality. The Court must further be satisfied that such interference is called for to meet, or to further, the ends of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm; (see Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 and Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC 828)."
74 A Division Bench of this High Court in the case of Saurashtra Paper and Board Mills Pvt Ltd vs. State of Gujarat and others reported in (1992) 2 GLR 871 observed as under:
"It is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case, even if some action or order challenged in the petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties."
75 It has been rightly observed that the legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not Page 73 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT to take it to the logical end, the High Court would be failing in its duty if it does not notice the equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal Court of Appeal, which it is not.
76 Our final conclusions may be summarized as under:
[a] The (Conduct of Election) Rules, 1994, framed in exercise of powers conferred by Section 456 of the Act, 1949, are a complete code in itself insofar as the election to the Municipal Corporations are concerned. Part IV of the said rules contain a detailed procedure for the scrutiny, counting of votes and declaration of results.
[b] A careful reading of the rules indicate that the moment the Returning Officer issues a certificate to the returned candidate in Form 22 in accordance with Rule 68 of the Rules, he is obliged to do two things: (i) to obtain acknowledgement of its receipt duly signed by him, and (ii) forward the same to the State Election Commission. Once such declaration is made, the High Court would have no power to interfere with such a declaration and it is for the person aggrieved by such a declaration to invoke the remedy available to him / her before the Election Tribunal.
[c] The Rules of 1994 do not give any leverage or scope for the Returning Officer to withdraw a declaration once made and a certificate of return once issued in Form No.22. It would amount to conferring a power which is not recognised to be in existence either in the Act or in the Rules. When the set of rules provide a Page 74 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT complete code, the Returning Officer cannot assume to himself any residuary or inherent powers to withdraw any declaration made or any Form already issued by him.
[d] The law of election is too technical; equity, justice, etc, have no role in such matters.
[e] Section 21 of the General Clauses Act, 1897 or of the Bombay General Clauses Act, 1904 has no application in the present case. Section 21 embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject matter, context and the effect of the relevant provisions of the said statute. Section 21 applies to cases where under various enactments a power to issue notifications, orders or rules or bylaws is conferred. The expression "order" employed in Section 21 indicates that such an order must be in the nature of notifications, rules and byelaws, etc. Section 21 would apply to the executive or legislative order.
[f] Rule 82 of the (Conduct of Election) Rules, 1994 (removal of difficulties clause) has no application. The "removal of difficulties clause" should be utilized only for the purpose of removal of the difficulties and it cannot partake the power of making the rules under Section 456 of the Act, 1949. Henry VIII clause cannot be used as a rule making power.
[g] The prerogative writs under Article 226 of the Constitution can be issued only in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of jurisdiction, or in violation of principles of natural justice, or Page 75 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021 C/SCA/4193/2021 JUDGMENT refused to exercise jurisdiction vested in them, or there is error apparent on the face of record, which has resulted in manifest injustice. The remedy under Article 226 is a discretionary one. The Court is not bound to interfere merely on the establishment of an irregularity or illegality. The Court must further be satisfied that such interference is called for to meet, or to further, the ends of justice. If by interfering in the matter, the interests of justice are going to suffer, the writ Court will withhold its arm.
77 For the foregoing reasons, this writ application fails and is hereby rejected.
(J. B. PARDIWALA, J) (ILESH J. VORA,J) CHANDRESH Page 76 of 76 Downloaded on : Sat Sep 04 06:05:46 IST 2021