# Om Prakash Jaiswal v. Prescribed

- **Citation:** (2000) 3 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-jaiswal-v-prescribed-39495
- **Pages:** 5

## Text

271 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
3.
Om Prakash Jaiswal Vs. Prescribed
Authority, Allahabad, 1984, A.R.C. 52.

4.
Bhola Nath Vs. A.D.J., Gonda and
others, 1985(1), A.R.C. 445.

5.
Bhola Nath Vs. Mohd. Ibrahim and
another, 1987(1) A.R.C. 103.

6.
Sardar Harbhajan Singh Vs. Hari
Babu and another, 1996(2), A.R.C. 498.
7.
Shanta Ram Vs. VII A.D.J. Kanpur
and another, 1997(1) A.R.C. 31.

16. From the above noted decisions,
it is apparent that the Appellate Authority
acting under Section 22 of the Act has
got
jurisdiction
to
admit
additional
evidence at the appellate stage but the
requirements of Order 41 Rule 27, C.P.C.,
are to be followed by the said authority
while admitting the additional evidence.
In
the present case, the Appellate
Authority has fully followed the aforesaid
decision and rightly refused to admit the
additional evidence as the requirements or
Order 41 Rule 27 were not fulfilled. I do
not find any illegality in the order passed
by
the
Appellate
Authority.
The
application filed by the petitioner for
permission to file additional evidence was
rightly
rejected
by
the
Appellate
Authority.

17. From the material on the record,
particularly from the report of the valuer,
namely
M/S.
Agrawal
Associates
Engineers which was supported by an
affidavit that market value of the building
was assessed at Rs. 14,71,000/-, therefore,
the Prescribed Authority rightly enhanced
the rate of rent to Rs. 12,000/- per month
which was equivalent to 1/12th of 10
percent of the market value. The report
which was filed by the petitioner to
contradict
the
report
filed
by
the
contesting respondents, for the reasons
stated
above,
was
inadmissible
in
evidence and the same was rightly
discarded by the Appellate Authority.

18. In view of the aforesaid
discussion, No. case for interference
under Article 226 of the Constitution of
India is made out.

19. The writ petition fails and is
hereby dismissed with cost.
Petition Dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 6+<$0$/ .80$5 6(1 &-
7+( +21·%/( 6+<$0$/ .80$5 6(1 &-
7+( +21·%/( *3 0$7+85 -
7+( +21·%/( *3 0$7+85 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6KDPEKX 6LQJK
«3HWLWLRQHU
9HUVXV
6WDWH (OHFWLRQ &RPPLVVLRQ 83 7KURXJK
LWV 6HFUHWDU\ DQG RWKHUV«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL $3 6DKL
6KUL $VKRN 6LQJK
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL 6. 0LVUD
6KUL %' 0DQGK\DQ
6&

83
3DQFKD\DW
5DM
(OHFWLRQ
RI
PHPEHUV 3UDGKDQ DQG 83 3UDGKDQ
5XOHV

UXOHV

UHDG
ZLWK
&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

-XULVGLFWLRQ EDU9LOODJH 3UDGKDQ (OHFWLRQ
±UHVXOW GHFODUHGLQIRUPDWLRQ VHQG WR WKH
'LVWULFW 0DJLVWUDWH ZKR RUGHUHG IRU UH
FRXQWLQJ IRXQG LOOHJDO +LJK &RXUW FDQ
LQWHUIHUH XQGHU $UWLFOH
3All] Shambhu Singh V. State Election Commission, through its Secretary and others 272
+HOG
,Q RXU YLHZ RQ SURSHU LQWHUSUHWDWLRQ RI
WKH 6WDWXWH DIWHU WKH HOHFWLRQ SURFHVV KDV
FRPH
WR
DQ
HQG
WKH
VWDWH
HOHFWLRQ
&RPPLVVLRQHU 'LVWULFW 0DJLVWUDWH DQG
WKH (OHFWLRQ 7ULEXQDO $V D FRUROODU\ LW
IROORZV
WKDW
WKH
6WDWH
(OHFWLRQ
&RPPLVVLRQHU GLVWULFW 0DJLVWUDWH DQG
(OHFWLRQ RIILFHU FDQ QHLWKHU FDQFHO WKH
SRROGHFODUDWLRQ RI WKH UHVXOW QRU FDQ
GLUHFW IRU D IUHVK SROO DQG UHFRXQWLQJ
DIWHU WKH FDQGLGDWH KDV EHHQ GHFODUHG
HOHFWHG EXW VXFK D GHFODUDWLRQ KDV WR EH
LQ DFFRUGDQFH ZLWK ODZ 3DUD DQG
&DVH ODZ GLVFXVVHG
$,5 6&

By the Court

1. In the instant writ petition the
petitioner has challenged the declaration
of the result of the election held for the
office of the Pradhan of village Sheopur
Bujurg,
tehsil
Padrauna,
district
Kushinagar declaring respondent no.4 as
the elected candidate. The contention of
the petitioner is that he was originally
declared elected. The counting of votes
took place on 28th June, 2000 and after
completion of counting of votes result
was declared which is Annexure-2 to the
writ petition. When called upon by the
Court the petitioner has also produced
certificate issued by the Returning Officer
declaring
the
petitioner
as
elected
candidate in respect of village Sheopur
Bujurg,
tehsil
Padrauna,
district
Kushinagar.
The
contention
of
the
petitioner is that subsequent to the
declaration of result and issuance of the
certificate on the same date, i.e. 28th June,
2000,
a complaint was lodged by
respondent
no.
4
to
the
District
Magistrate, which is stated to be of 30th
June, Annexure-1 to the counter affidavit.
On the basis of the said complaint the
District Magistrate passed an order dated
3rd July, 2000, whereby the cancelled the
declaration of result made on 28th June,
2000 in respect of the petitioner and
directed the Returning Officer to declare
respondent no. 4, as duly elected.
Pursuant to the direction of the District
Magistrate, another declaration was made
by the Returning Officer whereby the
declared respondent no. 4 as duly elected
on 6th July, 2000.

2. The question that arises for
consideration in the instant writ petition is
whether after the declaration of result and
issuance
of
certificate
the
District
Magistrate has any authority to reopen the
election process and direct the Returning
Officer for afresh declaration of the result.
It is also required to be considered in this
connection that the Returning Officer,
who is for the purpose of holding election,
can cancel his declaration one made
declaring the duly elected candidate and
again declare the result pursuant to the
direction of the District Magistrate.

3. The contention of the learned
Advocate for respondent no. 4 is that
there appeared serious discrepancy in the
counting process and the chart, which was
relied upon for the counting, was made on
the basis of the forged documents. He
referred to Section 12-BC of the U.P.
Panchayat Raj Act, 1947 and submitted
that
the
District
Magistrate
has
supervisory power over the election and,
as such, the district Magistrate was quite
within his powers to cancel the election of
the petitioner and direct the Returning
Officer to declare the election result
again.

4.

We
have
considered
the
submission of the learned Advocates
273 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
forties. In our view, Section 12-BC refers
to other provisions relating to holding of
elections. It is no doubt true that the
District Magistrate has supervisory power
over the conduct of elections of Pradhans
Up-Pradhans and the member of Gram
Panchayats in the district, but one the
election result is declared and certificate
issued, election process is complete and
Section 12-C immediately comes into
play.

5. Section 12-C of the U.P.
Panchayat Raj Act, 1947 provides for
application to be made for questioning the
elections. If there was any forged
document
relied
in
the
process of
counting process of counting that really
amounts to irregularity in the counting
process, the proper remedy for the
respondent no. 4 is to challenge the same
by way of filing an election petition.

6. We have heard learned standing
counsel, who has also submitted that the
supervisory
power
of
the
District
Magistrate has not ended in the instant
case in view of the fact that the election
process has not ended by mere declaration
of election result on 28th June, 2000 and
the Returning Officer has not become
functus officio thereby. According to the
learned standing counsel the election
process is only completed when the report
is sent to the District Magistrate and
thereafter
to
the
State
Election
Commission. In this connection he has
referred to Rule 55 of the U.P. Panchayat
Raj (Elections of Members, Pradhans and
U.P. Pradhans) Rules, 1994 which is set
out below:

"55.Report of result: As soon as may be
after the result of an election has been
declared, the Nirvachan Adhikari shall
report the result to the District Magistrate
and shall also inform the Secretary of the
Gram Panchayat. The District Magistrate
shall report the result to the State Election
Commission."

7. It is clear from Rule 55 that the
only duty given to the District Magistrate
is that after he received the report of the
Nirvachan Adhikari of the declaration of
the result, he shall also inform the
Secretary of the Gram Panchayat, and
shall report the result to the State Election
Commission. It is clear that after the
result is declared and it becomes final, the
intimation and the report of the same is
required to be given to the District
Magistrate for the purpose of giving
report of the result to the State Election
Commission. There is no power conferred
upon the District Magistrate directing the
Returning Officer to declare the election
result again when it has once been
declared. We are, therefore, unable to
agree with the submissions of the learned
standing counsel. In our view the only
remedy upon to the respondent no. 4 is to
file an election petition in pursuance of
Section 12-C of the U.P. Panchayat Raj
Act. In our view there is no necessity to
the petitioner to file an election petition
since he has been declared elected on 28th
June, 2000. It is the District Magistrate
who
exceeded
his
jurisdiction
and
interfered with the declaration of the
result by directing the Returning Officer
to reopen the election process. This is not
permissible in law.

8. The meaning of word "Election"
and when does he election process comes
to an end has been considered by the
Supreme Court while deciding the cases
under Representation of People Act. In
this
connection
the
judgement
and
3All] Shambhu Singh V. State Election Commission, through its Secretary and others 274
decision in the case of P.N. Ponnuswami
vs. Returning Officer (A.I.R. 1952 SC 64)
may be taken note of. In the aforesaid
decision the Supreme Court has given a
wide meaning to the word "Election" so
as
to
connote
'the
entire
process
culminating in a candidate being declared
elected'. The election, therefore, really
includes "the entire procedure to be gone
through to return a candidate to the
Legislature". The same principle has been
enunciated in the Judgement and decision
in the case of Mohinder Singh Gill vs.
Chief Election Commissioner (A.I.R.
1978 S.C. 851) wherein it was laid down
that the election "commences from the
initial election notification and culminates
in the declaration of the return of a
candidate". Election process, thus, comes
to an end on "the final declaration of
returned candidates." More or less the
same procedure as in the Representation
of People Act has been provided in the
Statute with which we are concerned. In
the present case the same definition of
election has to be applied to the election
held under the U.P. Panchayat Raj Act
and the Rules. In our view, on proper
interpretation of the Statute after the
election process has come to an end, the
State Election Commissioner, District
Magistrate and the Election Officer cease
to have any jurisdiction and the only
authority which can deal with and decide
any complaint regarding the election is
the Election Tribunal. As a corollary it
follows
that
the
State
Election
Commissioner, District Magistrate and
Election Officer can neither nor can direct
for a fresh poll and recounting after the
candidate has been declared elected, but
such a declaration has to be in accordance
with law.

9. Article 242-O of the Constitution
bars the jurisdiction of the court in the
matter of election of Panchayats. In the
instant case after the election process has
come to an end what is challenged by
means of writ petition is not the election
but the order of the State Election
Commissioner, District Magistrate or the
Election
Officer,
cancelling
the
poll/declaration of the result and directing
for repoll or recounting after a candidate
has been duly declared elected and as
such, writ petition cannot be barred. In
such a case, Article 243-O of the
Constitution is not attracted. In this
connection the judgement and decision in
the case of Mohinder Singh Gill vs. Chief
Election Commissioner (supra) may again
be taken note of. It was held by the
Supreme Court in the said decision that
the bar created by Article 329(b) of the
Constitution was confined to litigative
challenges of electroal steps taken by the
Election Commission and its Officer for
carrying forward the process of election to
its culmination in the formal declaration
of the result. Similarly Article 243-0 of
the Constitution bars the jurisdiction of
this Court so far as the election and the
steps taken in connection therewith are
concerned, but after the election is over, if
any order is passed by the Election
Commissioner
or
any
other
officer
affecting the election, which has already
been completed, writ petition against such
an order under Article 226 of the
Constitution can be entertained. In such a
case no election is called in question. This
Court in the case of Smt. Ram Kanti vs.
District Magistrate and other (1995
A.W.C. 1465), following the aforesaid
Supreme Court decisions, has also taken
the same view. There is no reason not to
follow the said settled principle as
enunciated in the aforesaid decision.
275 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
The
writ
petition,
accordingly,
succeeds and is allowed. The order of the
District Magistrate dated 3rd July, 2000 is
quashed.

10. It is, however, made clear that
we have not made any adjudication on the
merit of the election and it will be open to
respondent no. 4 to pursue the remedy by
filing an election petition, if he is so
advised.
Petition Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' $8*867
'$7(' $//$+$%$' $8*867
%()25(
%()25(
7+( +21·%/( 6+<$0$/ .80$5 6(1 &-
7+( +21·%/( 6+<$0$/ .80$5 6(1 &-
7+( +21·%/( *3 0$7+857+( +21·%/( *3 0$7+85-

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

0V 0DKHVKZDUL %URWKHUV
«3HWLWLRQHU
9HUVXV
7KH &KDLUPDQ DQG 0DQDJLQJ 'LUHFWRU
83 6WDWH 7H[WLOH &RUSRUDWLRQ /WG 9DVWUD
%KDZDQ
6KDUGD
1DJDU
.DQSXU
DQG
RWKHUV
«5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 61 6ULYDVWDYD
&RXQVHO IRU WKH 5HVSRQGHQWV
6&
6KUL ' $ZDVWKL

83 3XEOLF 0RQH\¶V 5HFRYHU\ RI 'XHV
$FW VHFWLRQ , G5HFRYHU\ DV
$UUHDUV RI ODQG 5HYHQXH3HWLWLRQHU EHLQJ
DXWKRULVHG
GHDOHU
RI
WKH
)LUP
ZDV
VXSSOLHG VRPH JRRGVOLDELOLW\ RI SD\PHQW
RI WKRVH SULFH&RUSRUDWLRQ VHQG GHPDQG
1RWLFH5HFRYHU\ &HUWLILFDWH LVVXHG KHOG
YDOLGDQ\ DPRXQW GXH WR WKH FRUSRUDWLRQ
FDQ EH UHFRYHUHG DV DUUHDUV RI ODQG
UHYHQXH
+HOG ±
,W DOVR DSSHDUV IURP 6HFWLRQ , G RI
WKH $FW LI DQ\ PRQH\ LV GXH DQG SD\DEOH
WR
WKH
6WDWH
*RYHUQPHQW
RU
WKH
&RUSRUDWLRQ
WKH
VDPH
VKDOO
EH
UHFRYHUDEOH DV DUUHDUV RI ODQG UHYHQXH
2Q SURSHU LQWHUSUHWDWLRQ RI 6HFWLRQ ,
RI WKH VDLG $FW LW DSSHDUV WKDW VLQFH WKH
PRQH\ LV UHFRYHUDEOH RQ WKH EDVLV RI WKH
JRRGV VROG WR WKH ZULW SHWLWLRQHU WKH 83
6WDWH 7H[WLOH &RUSRUDWLRQ FDQ FODLP DV
FUHGLWRU WR HQIRUFH WKH VDLG DJUHHPHQW
DQG
PD\
WDNH
VWHSV IRU LVVXDQFH RI
FHUWLILFDWH LQ WHUPV RI 6HFWLRQ , RI WKH
DFW 7KH VDLG $FW KDV EHHQ HQDFWHG IRU
WKH SXUSRVH RI VSHHG\ UHFRYHU\ RI GHEWV
DQG DV VXFK ZH DUH RI YLHZ WKDW WKH
&RUSRUDWLRQ
LV
ULJKW
LQ
LVVXLQJ
WKH
FHUWLILFDWH IRU UHFRYHU\ RI WKH GXHV LQ WKH
PDQQHU DV LW KDV GRQH LQ WKH LQVWDQW
FDVH 2XU YLHZ DOVR ILQGV VXSSRUW IURP
WKH GHFLVLRQ RI D 'LYLVLRQ %HQFK RI WKLV
&RXUW LQ WKH FDVH RI 0V -DLVKUHH 3RXNU\
)HHG ,QGXVWULHV YHUVXV 6WDWH RI 83 DQG
RWKHUV
$OODKDEDG
&LYLO
-RXUQDO

3DJH 3DUD
&DVH ODZ GLVFXVVHG
$&-
By the Court

1. In the instant writ petition the
petitioner has prayed for quashing of the
impugned certificate dated 15.10.1998
(Annexure No. 6) issued by respondent
no.
1
against
the
petitioner
and
forwarding
letter
dated
24.10.1998
(Annexure No. 6-A) issued by respondent
no. 2 and recovery notice dated 5.6.1999
(Annexures No. 5 &5-A issued by
respondent no. 3 to the petitioner in
relation to recovery of the amount of Rs.
3,14,642 plus Rs. 2.00 with its all
consequential
effects
throughout
whatsover with immediate effect.

2. The petitioner has also prayed for
issuing
mandamus
commanding
the
respondents (I) not to recover the alleged
amount of Rs. 3,14,642.39 contained in
the recovery certificate as well as