# Manaj Kumar v. Mohd. Saud and others - **Citation:** (2008) 1 ILRA 128 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2007-12-18 - **Case number:** First Appeal No. 242 of 2007 - **Bench:** Pankaj Mithal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manaj-kumar-v-mohd-saud-and-others-41245 - **Pages:** 10 ## Headnote Sri U.N. Sharma Sri Ravi Shankar Prasad Sri Chandan Sharma U.P. Kshetriya Punchayat (Election of Pramukh and U.P. State and Settlement of Election Disputes) Rules, 1994-Rule29-Declaration of result-out of 79 three voter found invalid-both candidate secured 38 votes-on tie-the A.R.O. on basis of lottery declared Mr. D. elected form VIII issued-R.O. in recounting found 2 votes invalid in favour of Mr. Ahence declared Mr. B. as electedwhether the A.R.O. competent to declare winner in absence of delegation of power by RO/D.M.?-held-'No'-even without complaint-the R.O. suo moto order for recounting-No order in writing for its satisfaction recorded-held-not fetal-'B' rightly declared elected-view taken by election Tribunal illegal-set aside. Held: Para 26 In short, the conclusion derived from the above authority is that where the election result is declared unauthorisedly, the same is liable to be treated as null and void. In the instance case as the RO/DM has not delegated his 1 All] Manoj Kumar V. Mohd. Saud and another 129 power to declare the election result in favour of the ARO, he was not the officer competent to declare the result and fill up the form VIII under Rule 29 of the Rules. Accordingly, the election result declared by the ARO was without jurisdiction and as such null and void which in no way conferred any right in favour of respondent No. 1 Mohd. Saud. Case law discussed: 2003 (3) AWC-2271, 1995 AWC-1465, 2000 (3) UPLBEC-2097, 2004 AWC-2777, 2006 UPLBEC-372 ## Text 128 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 has not been considered by the Division Bench while making the reference. (b) Whether the Full Bench in the case of Shahroj Answar Khan (supra) is correct in recording in paragraph 21 that the word 'inquiry' as contemplated under Rule 17(1)(a) (para materia to Rule 49-A of the C.C.A. Rules) will include a preliminary inquiry to be precise whether the word 'inquiry' in the said Rules includes within its ambit preliminary inquiry inasmuch as the Constitution Bench of this Court in the case of State of U.P. v. Jai Singh Dixit (supra) has specifically held that the word 'inquiry', under Rule 49-A of the C.C.A. Rules, necessarily refer to formal departmental inquiry referable to Rule 55 and 56-A of the C.C.A. Rules or Rules 6 and 7 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. (c) Whether, while directing preliminary inquiry, the power to suspend has to be exercised on objective consideration of material on record of each case and therefore it is for the State Government on a challenge being made to an order of suspension in contemplation of an inquiry to justify by such material on record that irrespective of preliminary inquiry the authority was satisfied that suspension was warranted in the facts of the case. (d) Whether an order of suspension, in contemplation of a vigilance inquiry, would be within four corners of Rule 49A. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.12.2007 BEFORE THE HON'BLE PANKAJ MITHAL, J. First Appeal No. 242 of 2007 Manaj Kumar ...Respondent-Appellant Versus Mohd. Saud and others ...Petitioner-Respondents Counsel for the Appellant: Sri Ravi Kant Sri Ram Raj Sri Gajendra Pratap Singh Counsel for the Respondents: Sri U.N. Sharma Sri Ravi Shankar Prasad Sri Chandan Sharma U.P. Kshetriya Punchayat (Election of Pramukh and U.P. State and Settlement of Election Disputes) Rules, 1994-Rule29-Declaration of result-out of 79 three voter found invalid-both candidate secured 38 votes-on tie-the A.R.O. on basis of lottery declared Mr. D. elected form VIII issued-R.O. in recounting found 2 votes invalid in favour of Mr. Ahence declared Mr. B. as electedwhether the A.R.O. competent to declare winner in absence of delegation of power by RO/D.M.?-held-'No'-even without complaint-the R.O. suo moto order for recounting-No order in writing for its satisfaction recorded-held-not fetal-'B' rightly declared elected-view taken by election Tribunal illegal-set aside. Held: Para 26 In short, the conclusion derived from the above authority is that where the election result is declared unauthorisedly, the same is liable to be treated as null and void. In the instance case as the RO/DM has not delegated his 1 All] Manoj Kumar V. Mohd. Saud and another 129 power to declare the election result in favour of the ARO, he was not the officer competent to declare the result and fill up the form VIII under Rule 29 of the Rules. Accordingly, the election result declared by the ARO was without jurisdiction and as such null and void which in no way conferred any right in favour of respondent No. 1 Mohd. Saud. Case law discussed: 2003 (3) AWC-2271, 1995 AWC-1465, 2000 (3) UPLBEC-2097, 2004 AWC-2777, 2006 UPLBEC-372 (Delivered by Hon'ble Pankaj Mithal, J.) 1. Under challenge is the judgment and order of the District Judge dated 30.7.2007 passed in Election Petition No. 3/70 of 2006 Mohd. Saud Vs. Manoj Kumar and another by which the election petition was allowed, the election of Manoj Kumar as Pramukh, Kshetriya Panchayat Mooratganj, district Kaushambi was set aside and Mohd. Saud was declared elected in his place. 2. The appellant Manoj Kumar and the respondent No. 1 Mohd. Saud both contested elections for the post of Pramukh, Kshetriya Panchayat Mooratganj as Other Backward Class (hereinafter in short OBC) candidates. The elections to the said post were held on 27.2.2007. All the 79 members of the Kshetriya Panchayat voted. Counting was done on the same evening. Three (3) ballot papers were rejected as invalid. Thus only 76 valid ballot papers remained for counting. On counting both the candidates secured 38 votes each and as such there was a tie. Accordingly, a lottery was drawn. On the basis of lottery respondent No. 1 Mohd. Saud was allegedly declared winner. However, the Assistant Returning Officer (in short ARO) with his report submitted the entire ballot papers to the Returning Officer/ District Magistrate (in short RO/DM) at the Vikas Bhawan Manjhanpur district Kaushambi. The RO/DM undertook recounting and found that out of the 38 votes polled by the respondent No. 1 Mohd. Saud two were invalid but were counted wrongly in his favour. On recounting therefore, the appellant Manoj Kumar was found to have secured 38 votes whereas respondent No. 1 Mohd Saud 36 votes. Thus with the consent of the observer appointed by the State Election Commission the appellant Manoj Kumar was finally declared as elected. 3. In the above scenario the respondent No. 1 Mohd. Saud who was first declared elected on tie by draw of lottery and subsequently having lost on recounting, preferred an election petition under Rule 35 of the U.P. Kshetriya Panchayat (Election of Pramukh and U.P. State and Settlement of Election Disputes) Rules,1994(hereinafter referred to in short Rules). 4. In the election petition, the respondent No. 1 Mohd. Saud apart from arraying appellant Manoj Kumar, as defendant No.1 also arrayed the RO/DM as the defendant No. 2. Both the defendants filed separate written statements. The respondent No.1 Mohd. Saud in the election petition categorically pleaded that the ARO acting for and on behalf of RO/DM after counting and determining the result had declared him elected and therefore the RO/DM was left with no jurisdiction to make a recount and to declare the appellant Manoj Kumar as elected. The appellant Manoj Kumar by his written statement pleaded that he was rightly declared elected by the RO/DM in accordance with the rules inasmuch as he 130 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 had secured 38 votes while the respondent No. 1 Mohd. Saud had only polled 36 votes. The declaration was followed by a certificate issued by the ARO dated 27.2.2006 to the above effect. The respondent No. 2 the RO/DM in his written statement admitted that 79 votes were polled out of which 3 ballot papers were rejected as invalid. The ARO after counting proceeded to determine the result in accordance with clause 4 of schedule II of the Rules, 1994 on the basis of lottery as both the candidates have polled equal number of first preference votes i.e., 38 each, and the respondent No. 1 Mohd. Saud was declared elected. He however stated that the ARO was not the competent person to declare the result. He could not have declared the result even otherwise in view of the instructions of the State Election Commission contained in the letter dated 25.2.2006 which provided for taking consent of the observer appointed by the Election Commission before declaring the result. Therefore when the ARO presented the papers along with his report to him, he recounted the ballot papers and with the concurrence of the observer declared appellant Manoj Kumar as having won by margin of two votes over Mohd. Saud respondent No. 1. 5. In the election petition no oral evidence was adduced by any of the parties. The court below on the pleadings of the parties framed as many as 8 issues as under:- 1. Whether the return of Shri Manoj Kumar, respondent No. 1 dated 27.2.2006 as Kshetra Panchyat Adhyaksha, Mooratganj, DistrictKaushambi is void as pleaded in para 15 of the Election Petition? 2. Whether the petition is bad for nonjoinder of necessary parties for not impleading A.R.O., and state of Uttar Pradesh as parties? 3. Whether A.R.O., is competent to exercise the powers of R.O., when R.O., available in the District? 4. Whether R.O., has power to recount the ballot papers? 5. Whether R.O., respondent No. 2 is empowered to peruse, vary , examine or recount the ballot papers after the counting was over on 27.2.2006 and From VIII of Rule 29 Kshetra Panchayat Samit Niyamawali had already been fulfilled as pleaded in paras 12,21,23 and 29 of the written statement filed by respondent No. 27? 6. whether the copies of the different News papers filed in the petition are admissible in evidence? 7. Whether on account of return of Manoj Kumar as panchyat Adhyaksha Mooratganj, DistrictKaushambi being void petitioners Mohd. Saud himself is entitled to be declared legally elected Kshetra panchayat Adhyaksha, Mooratganj, District-Kaushambi? 8. Whether the petitioner is entitled to any other relief? 6. The Court decided issues No. 1,3,4 and 5 together and held that the ARO was a competent person to declare the election result for and on behalf of the RO/DM. Once he has declared the election result in accordance with Rule 29 and has filled up form VIII, the RO/DM has become functus officio so as to order a recount or to recount the ballot papers and to declare the other candidate as having won. The result declared by the ARO does not get affected by the alleged 1 All] Manoj Kumar V. Mohd. Saud and another 131 circular dated 25.2.2006 issued by the Additional Commissioner State Election Commission U.P., Lucknow. 7. Thus the election petition was allowed and the election of the appellant Manoj Kumar was set aside and the respondent No.1 Mohd. Saud was declared elected as Pramukh, Kshetriyha Panchyat Mooratganj, District Kaushambi. 8. Aggrieved by the aforesaid judgment and order of the court below, the appellant Manoj Kumar has preferred this first appeal. 9. Heard Sri Ravi Kant, Senior Advocate assisted by Sri Gajendra Pratap Singh for the appellant Manoj Kumar and Sri U.N. Sharma, assisted by Sri Ravi Shankar Prasad for the respondent No.1 Mohd. Saud. Learned standing counsel appeared for respondent No. 2. 10. Now before examining respective contentions of the parties it would be better to be clear on facts. Admittedly, the appellant Manoj Kumar and the respondent No. 1 Mohd Saud were the only two contestant. The elections were held on 27.2.2007. Counting took place on the same day. Both the candidates secured 38 votes each after 3 ballot papers were rejected as invalid. Thus there was a tie. Accordingly, lottery was drawn as per clause 4 of schedule II of the Rules, 1994. 11. It is said that on the basis of lottery the ARO declared respondent No. 1 Mohd Saud as elected in accordance with Rule 29 of the Rules and form VIII was duly filled up. Now let me first examine whether in fact the ARO had declared the result of the election. The respondent No.1 Mohd. Saud in paragraph 15 of the election petition has stated that "the Assistant Returning Officer acting for and on behalf the Returning Officer in the presence of contesting candidates proceeded to count the votes and as provided under Rule 26 carried out all the formalities and determined the result under Rule 27 and declared it under Rule 29." The RO/DM in his written statement in paragraph 12 has sated " however it is submitted that the ARO filled form VIII of Rule 29 wrongly." Thus, from the aforesaid averment made in the election petition which had remained uncontroverted and the reply of RO/DM result of the election was declared as form VIII of Rule 29 was filled up by the ARO. This fact of declaration of result and filling up form VIII has not been denied by the appellant Manoj Kumar in his written statement. In replication respondent No.1 Mohd. Saud in paragraph 5 had further made a specific averment that counting concluded on 27.2.2006 at block Mooratganj and form VIII under Rule 29 was filled. The result was declared by the ARO and the petitioner was declared elected. No evidence to rebut the aforesaid statement was adduced. Thus from the above pleadings of the parties alone it is crystal clear that after the close of the election counting was done, the result was determined and was declared in accordance with Rule 29. Therefore, the finding recorded by the court below that form VIII under Rule 29 was filled up by the ARO and the result was declared suffers from no illegality or perversity. 12. Having come to a definite conclusion that the election result was declared by the ARO on 27.2.2006, it has 132 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 to be seen whether he was competent to do so in view of the circular/letter dated 25.2.2006 of the State Election Commission. 13. The submission of the learned counsel for the appellant is that in view of the circular letter dated 25.2.2006 of the Additional Commissioner State Election Commission U.P. Lucknow, the RO/ARO was not authorized to make any declaration of the result without the consent of the observer appointed by the Election Commission. As far as this submission of Sri Ravi Kant that the ARO was not competent to declare the result in view of circular dated 25.2.2006, it is bereft of merit. The said circular/ letter is reproduced below: fuokZpu vk;ksx la[;k 1126 l0fu0vk0vuq0 o 1126 izs"kd] fou; fiz; nwcs] vij vk;qDr] jkT; fuokZpu vk;ksx] m0iz0] ih0lh0,Q0 Hkou] 32 LVs'ku jksM y[kuÅ" lsok esa] ftykf/kdkjh@ftyk fuokZpu vf/kdkjh 1⁄4ia01⁄2] lksuHknzA jkT; fuokZpu----------------- y[kuÅ] fnukad 25 Qjojh] 2006 fo"k;%&{ks= iapk;r izeq[k@mi izeq[kksa ds lkekU; fuokZpu &2006 ds laca/k esaA egksn;] d`i;k mi;qZDr fo"k;d vius QSDl i=kad la0&704@ i0fu0@ize0 fuokZ0@02 fnufkad 24 Qjojh 2006 ds dze esa vk;ksx dh vksj ls eq>s ;g eq>s ;g esa Li"V djus dk funsZ'k gqvk gS fd {ks= iapk;r izeq[kksa@miizeq[kksa ds fufoZjks/k fuokZpu ds ifj.kke dh ?kks"k.kk vk;ksx dh vuqefr ds mijkUr dh tk;sxh rFkk erx.kuk ds i'pkr fuokZpu ifj.kke vk;ksx }kjk rSukr fd;s x;s izs{kd dh lgefr ds mijkUr gh ftykf/kdkjh@fuokZpu vf/kdkjh }kjk ?kksf"kr fd;k tk;A Hkonh; g0v0 1⁄4fou; fiz; nwcs1⁄2 vij vk;qDr la[;k 1126@l0fu0v0vuq04@1126@2006 rn fnukad izfrfyfi%& leLr ftykf/kdkjh@ftyk fuokZpu vf/kdkjh 1⁄4ia01⁄2 m0iz0 1⁄4lksuHknz-----1⁄2lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"krA g0v0 1⁄4fou; fiz; nwcs1⁄2 vij vk;qDr (emphasis supplied) 14. A careful reading of the aforesaid circular/letter reveals that the Election Commission by the said circular had only clarified that only the election result of Pramukh and Up-Pramukh, Kshetra Panchayat who are elected unopposed shall be declared by the Returning Officer after seeking consent of the observer appointed by the Election Commission. The said circular as such is applicable for declaring the election result of the candidates who are elected unopposed as contemplated under Rule 14 of the Rules and not to the results of contested elections. 15. Sri Ravi Kant has basically made two submissions; first ARO was not competent to declare the election result. It was only the RO/DM who could have declared the same with the concurrence of the observer appointed by the election commission. Secondly, the RO/DM had committed no jurisdictional error in recounting the ballot papers and declaring the appellant Manoj Kumar as elected thereafter. 16. Now therefore only two points remain in this appeal for determination:- 1. Whether the election result declared by the ARO is null and void as he 1 All] Manoj Kumar V. Mohd. Saud and another 133 was not the competent officer authorized to make declaration; and 2. Whether RO/DM had the authority to order recount or to recount the votes, in the absence of any complaint in writing. 17. As regards the first point the provisions of Rule 3,4 and 5 of the Rules are relevant. Rule 3 defines Mukhya Nirwachan Adhikari (Panchyat) as officer appointed by the State government as required by the State Election Commission to perform all functions relating to the conduct of elections under the superintendence, direction and control of the Election Commission. 18. Rule 4 provides DM to be the RO for the purposes of conducting election under the Rules. Rule 5 provides for the appointments of ARO and their functions. Rule 5 which is very relevant and material reads as under:- 5. Assistant Returning Officer: 1. The Returning Officer may appoint one or more persons as Assistant Returning Officers to assist him in the performance of his functions under these rules. 2. Every Assistant Returning Officer shall be competent to perform all or any of the functions of the Returning Officer. 3. The Returning Officer may take such assistance from such other staffs in a Government Department for conducting election as he may deem necessary. 4. The Returning Officer and the Assistant Returning Officer shall perform their functions and duties under the superintendence, direction and control of the State Election Commission. (emphasis supplied) 19. Thus the RO/DM is authorized to appoint as many AROs' as he considers appropriate to assist him in performance of his functions and every ARO is competent to perform all or any of the functions of the Returning Officer. 20. The RO/DM may or may not assign all his functions to the ARO. He is free to assign only limited functions and not all to the AROs'. Therefore, the ARO who is to assist the RO/DM in discharge of his functions is competent to perform only those duties/functions which are assigned to him by the RO/DM. 21. The functions assigned to the ARO can be ascertained by the order of the RO/DM dated 26.2.2006 paper No. 60 Ka/13 on record. The said order demonstrates that RO/DM had only delegated/assigned his limited powers under the Rules to the ARO starting from polling till the end of the closing of the counting. The letter of the RO/DM delegating his power to the ARO is reproduced below:- dk;kZy; ftyk fuokZpu vf/kdkjh 1⁄4aia01⁄2 dkS'kkEch i=kad 1259@ia0fuokZ0@izeq[k&mi izeq[k@T;s"B d0@05&06 fnukad 26-2-06 vkns'k izeq[k T;s"B mi izeq[k ,oa dfu"B mi izeq[k ds laca/k esa iwoZ fuxZr dk;kZy; vkns'k la[;k 1224@ia0fu0@2005&06 fnukad 21 Qjojh 2006 jkT; fuokZpu vk;ksx ds vkns'k la[;k 1117@jk0fu0vk0vuq0&4@1117@2006] fnukad 24 Qjojh 2006 ds vuqikyu esa ,rn }kjk la'kksf/kr djrs gq, eSa Mk0 ,l0,u0 ikBd] ftykf/kdkjh@ftyk fuokZpu vf/kdkjh@ 1⁄4ia01⁄2 dkS'kkEch fuEufyf[kr vf/kdkfj;ksa dks muds uke ds lEeq[k vafdr {ks= iapk;rksa ds fy, lgk;d fuokZpu vf/kdkjh 1⁄4izeq[k in gsrq1⁄2 fu;qDr djrk gwaA fu;qDr vf/kdkjhx.k {ks= iapk;r izeq[k ds fuokZpu ls lacaf/kr 134 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 ernku ,oa erx.kuk izfØ;k dh lekfIr rd vius vf/kdkj {ks= ds dk;kZsa dks fu"BkiwoZd o fu"i{k rFkk 'kkfUr iw.kZ uiqj 3 Jh jkf'k jatu dqekj jko lgk;d fucU/kd lgdkjh lfefr;ka m0iz0 ewjrxat 4 Jh ,l0ds0 jk; ifj;kstuk izcU/kd fuekZ.k 'kk[kk] ty fuxe ;wfuV 33 dkS'kkEch DkS'kkEch 5 Jh ,0ds0 flag vf/k'kk"kh vfHk;Urk tyfuxe] Hkjokjh dkS'kkEch usoknk 6 Jh vkj0ds0 ik.Ms vf/k'kk"kh vfHk;ark flapkbZ [k.M dkS'kkEch dM+k 7 Mk0vkj0,l0 flag eq[;i'kqfpfdRlkf/k dkjh] dkS'kkEch fljkFkw 1⁄4Mk0 ,l0,u0 ikBd1⁄2 ftyk eftLVasV ftyk fuokZpu vf/kdkjh 1⁄4ia01⁄2 dkS'kkEch i=kad 1259@ia0fuokZ0@izeq[k&mi izeq[k@T;s"B d0@05&06 fnukad 26-2-2006 izfrfyfi& fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrqA 1- miftyk fuokZpu vf/kdkjh 1⁄4ia01⁄2@eq[; fodkl vf/kdkjh dkS'kkEchA 2- vij ftykf/kdkjh 1⁄4fo0@jk01⁄2@izHkkjh vf/kdkjh iapk LFkkfu pqukoky;] dkS'kkEchA 3- miftykf/kdkjh pk;u] ea>uiqj] fljkFkwA 4- leLr [k.M fodkl vf/kdkjh] dkS'kkEchA 5- lgk;d fuokZpu vf/kdkjh 1⁄4ia01⁄2 dkS'kkEchA 6- lacaf/kr vf/kdkfj;ksa dks vuqikyukFkZA 1⁄4Mk0 ,l0,u0 ikBd1⁄2 ftyk eftLVasV ftyk fuokZpu vf/kdkjh 1⁄4ia01⁄2 dkS'kkEch (emphasis supplied) 22. A plain reading of the aforesaid order demonstrates that the RO/DM had not delegated all his powers to the ARO. Only powers upto close of the counting were delegated or assigned to the ARO. Now it is to be examined whether the powers with regard to polling till the close of the counting covers the power to declare the result. In this regard the provisions of Rule 26,27,28 and 29 are relevant and material. These rules read as under:- 27.Determination of result-After all the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of the voting in accordance with the instructions contained in Schedule II to those rules. 28.Recounting- The officer may, either on his own initiative or at the instance of any candidate recount the votes, whether once or more than once, when the Returning Officer is not satisfied as to the accuracy of the previous counting: Provided that nothing herein contained shall make it obligatory on the Returning Officer to recount the same votes more than once. 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- 1 All] Manoj Kumar V. Mohd. Saud and another 135 (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 on each such packet a description of its contents. 23. According to the aforesaid rules the entire procedure after the close of polling till the declaration of result is divided into four parts. Rule 26 speaks about the procedure for counting. Rule 27 talks about determination of result. Rule 28 about recounting, if necessary and Rule 29 provides for declaring the result. Thus it is seen that counting, determination, recounting and declaration of result are four separate stages. Declaration of result comes only after the counting of ballot papers and the determination of result and thus is separate from counting. In fact it is a stage after counting and determination of result. Thus it is implicit from the language of Rule 29 that when the counting of the votes is completed and the result has been determined, the RO/DM shall declare the result and prepare a certificate of return of election in the form VIII and as such declaration of result is not part of counting. 24. Thus on the conjoint reading of the above provisions and the order of the RO/DM dated 26.2.2006 delegating some of his powers to the ARO it can safely be said that the power to declare the election result was not specifically delegated or assigned to the ARO. Accordingly, the ARO was not the person competent and authorized to declare the election result and to fill up form VIII. Therefore the action on his part of declaring the result and filling form VIII which is prescribed under Rule 9 was void altogether. 25. A Division Bench of this Court in a reported case of Ram Kishun Vs. State Election Commissioner and others 2003 (3) and AWC 2271 while considering the same provisions observed that when the polling is closed, the RO/DM shall proceed to count the votes after rejecting invalid ballot papers and thereafter he shall determine the result. Thereafter, if necessary the recounting may be done either suo moto or at the instance of any candidate which means that the parties are entitled to raise objections with regard to acceptance and rejection of ballot papers, thus objections are to be disposed of first before proceeding to the last stage i.e., of declaring result. In other words, the declaration of result under Rule 29 can be made only after disposal of objections/application, if any, filed against the rejection or acceptance of ballot papers or recounting. Any election result which is declared without disposing of such application/objection would be nullity. 26. In short, the conclusion derived from the above authority is that where the election result is declared unauthorisedly, the same is liable to be treated as null and void. In the instance case as the RO/DM has not delegated his power to declare the election result in favour of the ARO, he was not the officer competent to declare the result and fill up the form VIII under Rule 29 of the Rules. Accordingly, the election result declared by the ARO was without jurisdiction and as such null and void which in no way conferred any right 136 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 in favour of respondent No. 1 Mohd. Saud. 27. Sri U.N. Sharma, Senior Advocate appearing for respondent No. 1 Mohd. Saud submitted that once the ARO had declared the election result, the RO/DM became functus officio to take up the matter again so as to recount the votes and to declare the result afresh. In support he has placed reliance upon certain Division Bench decisions of this Court reported in 1995 AWC 1465 Smt. Ram Kanit Vs. DM and others, (2000) 3 UPLBEC 2097 Shyam Sakhi (Smt.) and others Vs. State Election Commission, U.P., (2004) AWC 2777 Shambhu Singh Vs. State Election Commission U.P., and others and others and (2006) UPLBEC 372 Sunita Patel (Smt.) and others Vs. State of U.P., and others. 28. In all these authorities the Court held that once an election result is duly declared, recounting can not be done so as to declare the result afresh as the authority after declaring the result becomes functus officio so as to re open the matter. However, none of the aforesaid authorities apply in the facts and circumstances of the present case. In the case at hand the election result was never duly declared as the ARO who had declared the same was not competent to do so. The result declared by him was null and void. Therefore, the jurisdiction of the RO/DM had not ceased. 29. Now comes the submission whether the RO/DM had any power to order recount once the counting had been done and completed by the ARO. In this regard a glance at Rule 28 quoted above would make the situation clear. It provides and authorizes the RO/DM to recount the votes suo moto or at the instance of any candidate where he is not satisfied about the accuracy of the previous counting. Thus the RO/DM was competent to undertake recounting even on his own motion. However, on record there is no order which could reveal about the satisfaction of the RO/DM for holding the recounting. The recounting was done suo moto in view of the report of the ARO. The absence of the order recording satisfaction makes no difference as it is not the case of respondent No. 1 Mohd. Saud that the recounting was done without the satisfaction as to the accuracy about the previous counting. Thus the RO/DM was within its jurisdiction in recounting the votes as the election result before that had not been declared in accordance with law by the competent authority. 30. In the last a faint effort has been made by Sri U.N. Sharma, learned counsel for the respondent that the counting had commenced at the place of election and therefore it was not proper to change the said place of counting by removing the ballot papers from that place to the district headquarter. The submission has no merit. In a district there are generally several Kshetra Panchayats. Obliviously, election to all the Kshetra Panchayats in a district would be held at different places, but the result of the elections of all these Kshetra Panchayats had to be declared by the RO/DM. It is normally, not possible for the RO/DM to visit each Kshetra Panchayat at the same time for declaring the result. Therefore, it is but natural for the RO/DM to declare the results of all the Kshetra Panchyats at one place i.e., in his office at District headquarter. This is precisely what has been done by the RO/DM. As such no 1 All] Manoj Kumar V. Mohd. Saud and another 137 illegality was committed by him in declaring the result from his office. 31. The court below while deciding issues No. 2,3,4 and 5 have failed to consider the effect of the order of the RO/DM by which he delegated only limited powers to the ARO and the legal position that declaration of result is separate and is not part of counting. Thus the court below manifestly erred in law in holding that as the result was validly declared by the ARO and the RO/DM has become functus officio to have ordered recounting and to make a different declaration in favour of the appellant Manoj Kumar. 32. Undisputedly, in the recounting appellant Manoj Kumar was declared elected and a certificate in form VIII was also issued in his favour by the RO/DM declaring him as elected over respondent No. 1 Mohd. Saud by a margin of two votes. Thus, he was rightly declared elected. 33. In view of the above, the appeal succeeds and is allowed. The judgment and order dated 30.7.2007 passed by the District Judge in Election Petition No. 3/70 of 2007 Mohd. Saud Vs. Manoj Kumar is set aside. 34. The parties shall bear their own costs. Note:-Office to send a copy of this judgment and order to the State Election Commission, U.P., Lucknow and RO/DM, Kaushambi. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 22.11.2007 BEFORE THE HON'BLE H.L. GOKHALE, C.J. THE HON'BLE PANKAJ MITHAL, J. Special Appeal No. [954] of 2007 Sanjay Mohan ...Appellant Versus State of U.P. and others ...Respondents Counsel for the Appellants: Sri Ashok Khare Sri P.N. Ojha Counsel for the Respondents: Sri Girish Chandra Upadhyay Sri R.P.Dubey Sri Sanjay Kumar Allahabad High Court Rules 1952, Chapter V Rule-14-Tied up Cases-pre admission stage-even after change of roster-such direction of Single Judge against the Law laid down by Apex Court in Jasbir Singh Case-apart from violation of Rules-14. Held: Para 17 The law laid down in these judgments clearly establishes that the learned Single Judge could not have directed the Registry to continue the matter to be placed before him as the roster had been changed. Even if he was to say that the matter was part heard, in view of the law laid down by the Full Bench which is affirmed by the Apex Court: such a direction or order would be in violation of the Rules of Court and, therefore, nullity. Any case at pre admission stage cannot be treated as part heard or tied up and such a direction contrary to the