# Smt. Babita Devi v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-16
- **Case number:** Writ-C No. 14093 of 2021
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-babita-devi-v-state-of-u-p-ors-46534
- **Pages:** 13

## Headnote

A. Election Law - UP Kshetra Panchayats and
Zila Panchayats (Election of Members) Rules,
1994 - Rules 50(e), 53, 54 & 55 - Counting of
votes - Votes of one polling booth were not
added in the result declared - Mistake rectified
after
issuance
of
Certificate
of
elected
candidate - Certificate cancelled and election
result changed by the Returning Officer (R.O.)
after issuing notice - Validity challenged -
Jurisdiction of R.O. questioned - Duty of R.O.
of removing mistake, explained - Held, till the
Returning Officer was In-charge of his office
under
the
order
of
the
State
Election
Commission and the election result was not
finalized by uploading the same on the portal
of
the
State
Election
Commission,
the
Returning Officer cannot be denuded of his
power to make correction of an error which
was only clerical or arithmetical in nature, to
put the record of his office straight - Returning
Officer is duty bound to ensure that the
declaration made by it of the election result is
true; and when he had made correction of
minor
or
formal
nature
for
removing
inadvertent error he cannot said to have
become functus officio nor can it be said that it
was outside the scope and jurisdiction of the
Returning Officer under the authority given by
the Election Commission. (Para 21)
B. Election Law - UP Kshetra Panchayats and
Zila Panchayats (Election of Members) Rules,
1994 - Rules 54 & 56 - Declaration of result,
when became final - Words 'to be elected' used
in Rule 54 - It's impact - Declaration under
Rule 56 - It's significance - Smt. Tara Devi's
case
followed
-
Held,
Rule
54
only
contemplates
for
the
declaration
of
the
candidate securing highest number of votes, 'to
be duly elected' - The issuance of the
certificate on the part of the authority was only
an additional act which cannot by itself gives
any independent cause of action to proceed -
In case, the issuance of the certificate in
contemplation of Rule 54 is held final, Rule 56
will be nugatory - Formal declaration of the
result under Rule 54 by the R.O. will be abide
by the Rule 56 of the Rules, 1994 - Suggestion
to amend suitable amendment in Rule 54 and
56 was made in Tara Devi's case, but it could
not be taken note by State Govt. - High Court
requested for suitable amendment in the Rules
1994 in order to avoid future litigation and to
bring stability in the Panchayat election
process in future. (Para 10, 27 and 30)
C. Constitution of India - Article 226 -
Equitable jurisdiction - Substantial Justice -
Writ, when cannot be issued - Held, while
exercising equitable discretionary jurisdiction
under Article 226 of the Constitution of India, it
must be keptp in mind that substantial justice
is done in the matter and the High Court would
not issue a writ which would revive any
illegality. (Para 23)
Writ petition dismissed. (E-1)
11 All. Smt. Babita Devi Vs. State of U.P. & Ors.
327
Cases relied on :-

## Text

_Characters 0–39,904 of 48,554. This is a partial read: ask again with offset=39904 for what follows._

326 INDIAN LAW REPORTS ALLAHABAD SERIES

47. The impugned award dated 30.01.2020
is liable to be set aside and is set aside.

48. The writ petition is allowed.

49. The Court appreciates the assistance
rendered by Sri Jagram Singh, learned counsel
as well as Sri Rahul Agarwal, learned counsel
for the petitioner. Sri Gopal Narayan Srivastava,
learned counsel for respondent No. 3 has also
assisted the Court with great effort.
----------
(2021)11ILR A326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Writ-C No. 14093 of 2021

Smt. Babita Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gaurav Singh Chauhan, Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri Tarun Agarwal

A. Election Law - UP Kshetra Panchayats and
Zila Panchayats (Election of Members) Rules,
1994 - Rules 50(e), 53, 54 & 55 - Counting of
votes - Votes of one polling booth were not
added in the result declared - Mistake rectified
after
issuance
of
Certificate
of
elected
candidate - Certificate cancelled and election
result changed by the Returning Officer (R.O.)
after issuing notice - Validity challenged -
Jurisdiction of R.O. questioned - Duty of R.O.
of removing mistake, explained - Held, till the
Returning Officer was In-charge of his office
under
the
order
of
the
State
Election
Commission and the election result was not
finalized by uploading the same on the portal
of
the
State
Election
Commission,
the
Returning Officer cannot be denuded of his
power to make correction of an error which
was only clerical or arithmetical in nature, to
put the record of his office straight - Returning
Officer is duty bound to ensure that the
declaration made by it of the election result is
true; and when he had made correction of
minor
or
formal
nature
for
removing
inadvertent error he cannot said to have
become functus officio nor can it be said that it
was outside the scope and jurisdiction of the
Returning Officer under the authority given by
the Election Commission. (Para 21)
B. Election Law - UP Kshetra Panchayats and
Zila Panchayats (Election of Members) Rules,
1994 - Rules 54 & 56 - Declaration of result,
when became final - Words 'to be elected' used
in Rule 54 - It's impact - Declaration under
Rule 56 - It's significance - Smt. Tara Devi's
case
followed
-
Held,
Rule
54
only
contemplates
for
the
declaration
of
the
candidate securing highest number of votes, 'to
be duly elected' - The issuance of the
certificate on the part of the authority was only
an additional act which cannot by itself gives
any independent cause of action to proceed -
In case, the issuance of the certificate in
contemplation of Rule 54 is held final, Rule 56
will be nugatory - Formal declaration of the
result under Rule 54 by the R.O. will be abide
by the Rule 56 of the Rules, 1994 - Suggestion
to amend suitable amendment in Rule 54 and
56 was made in Tara Devi's case, but it could
not be taken note by State Govt. - High Court
requested for suitable amendment in the Rules
1994 in order to avoid future litigation and to
bring stability in the Panchayat election
process in future. (Para 10, 27 and 30)
C. Constitution of India - Article 226 -
Equitable jurisdiction - Substantial Justice -
Writ, when cannot be issued - Held, while
exercising equitable discretionary jurisdiction
under Article 226 of the Constitution of India, it
must be keptp in mind that substantial justice
is done in the matter and the High Court would
not issue a writ which would revive any
illegality. (Para 23)
Writ petition dismissed. (E-1)
11 All. Smt. Babita Devi Vs. State of U.P. & Ors.
327
Cases relied on :-
1. Smt. Tara Devi Vs St, of U.P. & ors.; 2011 (1) ADJ
287 (DB)
2. Smt. Sunita Patel Vs St.of U.P.; 2006 (2) AWC 1422
3. N.P. Punnuswami Vs Returning Officer; AIR 1952
SC 64
4.
Mohinder
Singh
Gill
Vs
Chief
Election
Commissioner; AIR 1978 SC 851
5. Krishna Ballabh Prasad Singh Vs Sub-Divisional
Officer Hilsa-cum-Returning Officer & ors.; 1985 (4)
SCC 194
6. Kamlesh Vs Mukhya Nirwachan Ayukt & ors.; 2006
(2) AWC 1720 All
7.
Grindlays
Bank
Ltd.Vs
Central
Government
Industrial Tribunal; AIR 1981 SC 606
8. Maharaja Chintamani Saran Nath Shahdeo Vs St. of
Bihar & ors.; (1999) 8 SCC 16

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Mrs. Sadhna Rani (Thakur), J.)

1. Learned counsel for the petitioner
remained absent though the matter has been date
fixed with his consent. This is a matter arising
out of the Election of Member, Kshetra
Panchayat Lalai, Ward No. 42, Vikas Khand
Hathwant, Firozabad. We have heard learned
counsel for the petitioner on 14.7.2021 on the
legal issues and postponed the matter only to
obtain instructions from the State Election
Commission to ascertain the date of the
declaration of the result. We, therefore, do not
deem it fit to adjourn the matter today.

The written instructions have been
supplied by the learned counsel for the
respondent-State
Election
Commission
on
14.7.2021. Further instructions in compliance of
the order dated 14.7.2021 have also been placed
before us today.

The Office is directed to upload the
scanned copy of the written instructions and the
compilation of cases supplied by the learned
counsel for the respondents.

2. Heard Sri Imran Syed learned Advocate
holding brief of Sri Tarun Agrawal learned
counsel for the respondent-State Election
Commission, Sri Ajit Kumar Singh learned
Additional Advocate General assisted by Sri
Sudhansh Srivastava learned Additional Chief
Standing Counsel appearing on behalf of the
State respondents today.

3. Placing the above instructions before us,
it is pointed out by the learned counsel for the
respondents that for the election of Member,
Kshetra Panchayat concerned, the polling was
held on 26.4.2021 at two polling booth nos. 180
and 181. The ballot boxes of both the polling
booths were opened under the supervision of the
Assistant Returning Officer. On 2.5.2021 when
the counting was made, the petitioner Smt.
Babita Devi wife of Sri Vimal Kumar had
secured 169 votes at polling booth no. 181
whereas Indrapal son of Sri Pati Ram resident of
Village Lalai, Block Hathwant got 77 votes and
the third candidate Sri Kushalpal son of Sri
Hariom resident of the same village got 163
votes. Similarly at polling booth no. 180, the
petitioner Smt. Babita Devi secured 114 votes
whereas Indrapal received 305 votes and
Kushalpal 95 votes. The Assistant Returning
Officer had issued the certificate of the
elected/returned candidate to Smt. Babita Devi
on 3.5.2021 on the basis of the votes of one
polling booth No. 181 only. After the counting
was completed, on 4.5.2021, respondent no. 7,
Sri Indrapal gave a written application raising
objection about the result and sought for further
verification of the same. Upon verification of the
record, it was found that the votes cast at the
polling booth no. 181 were not added in the final
preparation of the result. By adding the votes of
two polling booth nos. 180 & 181, it was found
that the respondent no. 7 had received total 382
votes which was the highest whereas the
328 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner Smt. Babita Devi was placed at serial
no. 2 having received 283 votes.

The
mistake
committed
by
the
Assistant Returning Officer was corrected by the
Returning Officer after issuing a notice to the
petitioner herein. The order in this regard had
been passed on 4.5.2021. The copies of the
Election Return referable to Rules 50(e) and 53
of the U.P. Kshetra Panchayats and Zila
Panchayats (Election of Members) Rules, 1994
(In short as "the Rules, 1994") in Form '43' and
the counting sheet in Form '47' as per Chapter 9
of the Guide Book for the Panchayat Elections2021 issued by the State Election Commission,
of both the polling booth nos. 180 and 181
prepared on 3.5.2021 have been placed before us
alongwith the written instructions to give the
details of the votes cast, ballot papers rejected
and the total votes cast in favour of each
candidate.

Today, an extract of the entries
uploaded on the portal of the State Election
Commission has also been placed before the
Court to demonstrate that the portal of the State
Election Commission for declaration of the
result was created on 18.4.2021 and the election
result was uploaded on the same on 7.5.2021 at
about 14:19:59.313 hours.

With the help of the said written
instructions, it is submitted by the learned
counsel for the State Election Commission that
the compliance of Rule 56 of the Rules, 1994
had been made on 7.5.2021 after correction of
the clerical/arithmetical mistake in the matter of
declaration of the result. As regards the issue of
cancellation of the certificate issued in the name
of the petitioner, the stand of the Returning
Officer is that an effort was made to intimate the
petitioner personally about the mistake before
the correction of the result. The Returning
Officer alongwith the Assistant Returning
Officer had personally gone to the house of the
petitioner but no one met there. The notice was,
therefore, pasted at a conspicuous place of the
house of the petitioner, and, thereafter, while
cancelling the certificate issued to the petitioner,
a correct certificate was issued to the returned
candidate/respondent no. 7. It is, then, submitted
that after uploading the election result on
7.5.2021, the portal of the State Election
Commission stood locked automatically and no
changes, thereafter, could have been made. The
correction made by the returning officer before
the declaration of the election result by the State
Election Commission with uploading on the
same on its portal, was for removal of an
arithmetical mistake. The principle of functus
officio will not be attracted in such a situation.

4. Reliance has been placed on the decision
of this Court in Smt. Tara Devi vs. State of
U.P. and others1 to submit that the opinion of
the earlier Division Bench in Smt. Sunita Patel
vs. State of U.P.2, relied by the learned counsel
for the petitioner, had been held as per incuriam.

5. As regards the contention of the learned
counsel for the petitioner in the argument dated
14.7.2021 that after issuance of the certificate of
elected candidate to the petitioner, the Returning
Officer had become functus officio and it was
not open for him to make any changes in the
election result, and hence the subsequent
declaration of respondent no. 7 as elected
candidate was beyond the jurisdiction of the
Returning Officer, Rule 56 of Rules, 1994 has
been pressed into service to contend that after
the counting was completed, the result declared
by the Returning Officer by issuance of the
certificate in accordance with Rule 54 of the
Rules, 1994 was only an intermediary stage. The
Returning Officer made corrections before the
communication of the result to the District
Magistrate
which
was
well
within
his
jurisdiction.

6. Considering the above submissions,
before we delve on the issues, the relevant
provisions of the Rules, 1994 which govern the
11 All. Smt. Babita Devi Vs. State of U.P. & Ors.
329
Election of the Member Kshetra Panchayat are
to be noted for ready reference:-

"53.
Election
return
by
the
Nirvachan Adhikari. -The Nirvachan Adhikari
shall then prepare and certify an election return
in the specified form setting forth-

(a) the names of candidates for whom
valid votes given have been;

(b) the number of valid votes given for
each candidate;

(c) the total number of valid ballot
papers;

(d) the number of rejected ballot
papers;

(e) the number of tendered ballot
papers; and

(f) the name of the candidate elected.

He shall then also permit any
contesting candidate or his Nirvachan Abhikarta
or Ganana Abhikarta to take a copy of or an
extract from such return.

54. Declaration of result. - The
Nirvachan Adhikari shall declare candidate
securing the highest number of votes in their
respective constituency to be duly elected.

55. Equality of votes. - If after the
counting of the votes Is completed, an equality of
votes is found to exist between-any candidates
and the addition of one vote will entitle any of
those candidates to be declared elected, the
Nirvachan Adhikari shall forthwith decide
between these candidates by lot, and proceed as
if the candidate on whom the lot falls had an
additional vote.

56. Report of result. - As soon as may
be after the result of an election has been
declared, the Nirvachan Adhikari shall report
the result, to the District Magistrate and shall
also inform the Block Development Officer of
the Kshettra Panchayat or Chief Executive
Officer of Zila Panchayat as the case may be.
The District Magistrate shall report the result to
the State Election Commission.

57. Custody of the return and of the
ballot papers and other papers relating to
election. - (1) The Nirvachan Adhikari shall,
after reporting the result of the election under
Rule 56 forward the return to the District
Panchayat Raj Officer for safe custody.

(2) The Nirvachan Adhikari shall also
forward to the District Panchayat Raj Officer
for safe custody the packets of the ballot papers
and all other papers relating to the election.

58. Production and inspection of
election papers. - (1) While in the custody of the
District Panchayat Raj Officer the packet of
ballot papers, whether valid, rejected or
tendered and of the marked copy of the electoral
roll shall not be opened and their contents shall
not be inspected by or produced before any
person or authority except under the order of a
competent court or of a District Judge hearing
an election petition. The inspection when
ordered shall be subject to the payment of a fee
at the rate of rupees two per day on which the
inspection is done.

(2) All other papers relating to the
election shall be open to public inspection
subject to such condition, if any, as the State
Government may specify and subject to the
payment of a fee at the rate of rupees twenty per
day on which inspection is done.

(3) Copies of the returns forwarded by
the Nirvachan Adhikari under sub-rule (1) of
Rule 57 shall be furnished by the District
Panchayat Raj Officer on payment of a fee of
rupees twenty for each copy.

(4) Copy of such papers are allowed to
be inspected under sub-rule (2) shall be given to
any person applying for the same on payment of
a fee at the same rate as is charged in the State
for a copy of any order by a Revenue Officer.
Application for copies of papers may be
preferred on plain paper and no judicial stamps
need be affixed.

(5) Certified copy of any paper
referred to in sub-rule (6) shall be attested by
330 INDIAN LAW REPORTS ALLAHABAD SERIES
the District Panchayat Raj Officer concerned
and will be issued from his office."

7. As per the contention of the petitioner,
the declaration of the result under Rule 54 by the
Returning Officer marked culmination of the
election and subsequent report of the result
under Rule 56 was only a ministerial act. The
Returning Officer lost his jurisdiction after the
declaration of the result under Rule 54 by
issuance of the certificate in the prescribed
proforma to the winning candidate, the petitioner
herein. For any dispute in the matter of election
of the petitioner, only remedy before the
respondent no. 7 was to approach the Election
Tribunal.

It was, thus, contended that since the
question in the writ petition is about the
jurisdiction of the Returning Officer to change
or cancel the election result, the bar of
jurisdiction of the Court in the matter of the
election of Panchayats under Article 243-O of
the Constitution of India will not be attracted.

8. Before we delve on the issue of the
interpretation of Rules 54 and 56 of Rules, 1994,
it is pertinent to note that the Apex Court while
deciding the cases under the Representation of
the People Act had held that the election
connotes the entire process culminating in a
candidate being declared elected. The election
commences from the initial notification and
culminates in the declaration of the return of a
candidate. The election process, thus, comes to
an end on the final declaration of the returned
candidates. After the election process has come
to an end, the State Election Commission, the
District Magistrate and the Election Officer lose
their jurisdiction and only authority which can
deal with and decide any complaint regarding
the election is the Election Tribunal. [Reference
N.P. Punnuswami vs. Returning Officer3 and
Mohinder Singh Gill vs. Chief Election
Commissioner4]

While
dealing
with
a
question
regarding the jurisdiction of the Returning
Officer, in Krishna Ballabh Prasad Singh vs.
Sub-Divisional Officer Hilsa-cum-Returning
Officer and others5, the Apex Court in the
matter of conduct of election to the Bihar
Legislative Assembly had examined the impact
of Section 66 of the Representation of the
People Act, 1951 and the Rules 64 of the
Conduct of Election Rules, 1961 (In short as
"the Rules, 1961") framed thereunder. It was
held therein that Section 66 of the Act provides
that when the counting of votes has been
completed, the Returning Officer must declare
forthwith the result of the election "in the
manner provided in the Act or the Rules made
thereunder." The Rule 64 of 1961 Rules
expressly provides the manner in which the
declaration of result of election and return of
election has to be prepared. The declaration in
Form 21-C referable to Rule 64 of the Rules,
1961 is the final step in the process of election.
It was held therein that without declaration in
Form 21-C in the manner as prescribed in Rule
64, the announcement of the result by the
Returning Officer with the grant of the
certificate in Form 22 to the candidate was
meaningless and had no legal status. Under the
Rules 1961, the grant of certificate of election to
the elected candidate in Form 22 is provided
under the Rule 66 which contemplates the grant
of such certificate only after the candidate has
been declared elected under Section 66, which
refers back to Rule 66 and therefor to Form 21C. It was, thus, held that the bar of clause (b) of
Article 329 of the Constitution came into
operation only after the declaration in Form 21C was made and, thereafter, the election petition
alone was maintainable.

9. The question raised before us is as to
whether under the scheme of Rules, 1994, the
issuance of the certificate to the winning
candidate would amount to the final declaration
of the result under Rule 54 by the Returning
11 All. Smt. Babita Devi Vs. State of U.P. & Ors.
331
Officer and, thus, marked the culmination of the
election process.

The challenge by the petitioner to the
jurisdiction of the returning officer to cancel the
certificate and issue fresh certificate in favour of
the returned candidate is based on the opinion of
the two Division Benches of this Court in
Kamlesh vs. Mukhya Nirwachan Ayukt and
others6 and Smt. Sunita Patel (supra).

The same issue had been considered
by a third Division Bench of this Court in Smt.
Tara Devi (supra).

We would like to refer to them in a
chronological manner.

The Division Bench of this Court in
Kamlesh (supra) in the year 2006 had held that
in the matter of election of Member, Kshetra
Panchayat under the Rules, 1994, the election
comes to an end with the issuance of the
certificate
to
a
candidate
declaring
him
successful and all subsequent proceedings taken
by the Returning Officer were without any
authority/competence.

In Smt. Sunita Patel (supra), the
Division Bench while considering the scope of
Rules 54 and Rule 56 of the Rules, 1994, taking
note of the decision of the Apex Court in
Krishna Ballabh Prasad Singh (supra) had
held that Rule 54 of the 1994 Rules does not
prescribe the declaration to be made by the
Returning Officer in any prescribed form before
issuing the certificate, as prescribed in the
Conduct of Election Rules, 1961, [subject matter
of consideration in Krishna Ballabh Prasad
Singh (supra)].

10. It was then held that though the Rule,
1994 does not prescribe for issuance of a victory
certificate to the winning candidate but such a
certificate can be used as an evidence of the
declaration of the result under Rule 54 of 1994'
Rules. The declaration of the result by the
Returning Officer in such a manner, under Rule
54 of the Rules, 1994 concludes the election and
communication of the result under Rule 56 is
only a consequential formality (a ministerial
act); and further communication to the State
Election Commission under Rule 56 of the
Rules, 1994 cannot be said to be an integral part
of the election process. The Returning Officer
after issuance of the victory certificate cannot
review its decision to get a recounting or
retallying the result. The contention of the
respondent therein that Rule 56 is an integral
part of the election process had been brushed
aside giving the reason that the State Election
Commission does not have the power to exercise
superintendence in violation of the statutory
rules, inasmuch as, the election can only be
questioned by way of an election petition and
not otherwise, by virtue of Article 243-O of the
Constitution of India after declaration of the
result by the Returning Officer.

The decision of the Division Bench in
Kamlesh (supra) had been considered in Smt.
Tara Devi (supra) and it was noted that in the
said matter the Court had proceeded on the
assumption that the issuance of the certificate is
the final declaration of the result without even
considering the import of Rules 54 and 56 of the
Rules, 1994.

This opinion drawn by the Division
Bench in Smt. Sunita Patel (supra) had been
held to be per incuriam in Smt. Tara Devi
(supra) while examining the scope of Rules 54
and 56 of the Rules, 1994. It was held therein
that Rule 54 only contemplates for the
declaration of the candidate securing highest
number of votes, "to be duly elected". The
words "to be duly elected" give two inputs;
either he has to be elected at once or subject to
the reporting of the result as contemplated under
Rule 56 of the Rules. It was then noted that
admittedly there is no provision for issuance of
the victory certificate to the candidate under the
Rules, 1994. The issuance of the certificate on
the part of the authority was only an additional
act which cannot by itself gives any independent
332 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of action to proceed. In case, the issuance
of the certificate in contemplation of Rule 54 is
held final, Rule 56 will be nugatory. By reading
Rules 54 and 56 of 1994 Rules, it was held that
the harmonious reading of the Rules makes it
clear that after the declaration of the result under
Rule 54, as soon as may be, the Returning
Officer has to report the result to the District
Magistrate and also the Block Development
Officer of the Kshetra Panchayat under Rule 56,
who, in turn, shall report the result to the State
Election Commission. It was, thus, held that the
formal declaration of the result under Rule 54 by
the Returning Officer will abide by the Rule 56
of the Rules, 1994 that means, the declaration of
the result under Rule 54 becomes final subject to
the declaration made under Rule 56.

It was observed in Smt. Tara Devi
(supra) that as regards the authority of the State
Election Commission, there cannot be a dispute
that the Election Commission being creature of
the
Constitution
has
the
power
of
superintendence to control and conduct the
elections. With the commencement of the
elections by the notification till the date of the
de-notification with the final declaration of the
result, the State Election Commission is the final
authority to adjudicate any dispute, if it is called
upon. After de-notification, it is open for an
aggrieved person to approach the Election
Tribunal. Further the Election Commission
being the final authority during the continuance
of the election process can call upon the
Returning Officer to remove the defects which
are either minor or formal or inadvertent. Any
other officer or authority functioning under the
directions of the Election Commission can also
issue such direction to the Returning Officer. It
was held that till the declaration of the result is
made final under Rule 56, neither the Returning
Officer can be said to be functus officio nor the
jurisdiction of the State Election Commission
can be said to have come to an end. Any
calculation mistake or administrative lapses can
be corrected before finality is attached to the
election result under Rule 56. For correction of
any inadvertent mistake or formal defect, the
application of the aggrieved candidate was
clearly maintainable as he cannot be compelled
to file an election petition for correction of such
mistake.

To deal with the arguments on the
question of lack of jurisdiction of the Returning
Officer to make correction after declaration
made under Rule 54, the Division Bench in
Tara Devi (supra) had also considered the law
of review as propounded by the Supreme Court
in Grindlays Bank Limited vs. Central
Government Industrial Tribunal7 to note that
inadvertent error or arithmetical mistake must be
corrected by the authority to prevent the abuse
of its process as the same would amount to
review of a procedural defect.

11. In the instant case, the Assistant
Returning Officer had committed a mistake
apparent on the face of the record in declaring
the result on the basis of the votes cast on one
polling booth (booth No. 181) only, and thereby
in issuing the certificate of the elected candidate
to the petitioner on 3.5.2021 on wrong
calculation of the total votes.

As soon as the said mistake was
brought to the knowledge of the Returning
Officer, he after verification of the record of his
office found that the votes of the polling booth
no. 180 were not added in the result declared by
the Assistant Returning Officer. For correction
of the said mistake, notice was also sought to be
served upon the petitioner but she did not
receive the same nor responded to the notice
pasted at her house. The writ petition is
completely silent about the said notice.

12. So, by means of the memo dated
6.5.2021, the Returning Officer had cancelled
the certificate of the petitioner and declared
respondent no. 7 as the elected candidate by
adding votes of both the polling booths i.e.
11 All. Smt. Babita Devi Vs. State of U.P. & Ors.
333
booth nos. 180 and 181, cast in favour of each
candidate. This is not a case of elaborate
counting or reopening of the result by any
process which could be said to be prohibited
after declaration of the result, rather it is a case
of correction of the minor mistake or defect in
the election result.

13. The procedure for holding election of
Member Kshetra Panchayat is governed by 1994
Rules which provides the manner of conduct of
election, preparation of the election papers,
declaration of the result and maintaining the
election record. Rule 53, relevant for our
purpose, provides for preparation of the election
return containing the details of the names of
candidates; the number of valid votes for each
candidate; the total number of valid ballot
papers; the number of rejected ballot papers; the
number of tendered ballot papers and the name
of the candidate elected. The election return is to
be prepared and certified by the Returning
Officer. The copy of the certified election return
can be taken by the contesting candidate or his
representatives/Nirvachan
Abhikarta
and
Ganana Abhikarta. The manner in which the
result has to be declared by the Returning
Officer is stated in Rule 54 which provides that
the Returning Officer shall declare the candidate
securing the highest number of votes to be duly
elected. Rule 56 provides for the report of the
result to be sent by the Returning Officer to the
District Magistrate and the information of the
result to the Block Development Officer of the
Kshetra Panchayat. The District Magistrate in
turn has to report the election result to the State
Election Commission.

Under the scheme of the Act, no
format is given for declaration of the result, i.e.
for declaration of the result or reporting of the
result to the State Election Commission.

14. However, in the instructions issued by
the State Election Commission as contained in
the
Guide
Book
for
Panchayat
General
Elections-2021 for the use of the Returning
Officer/Employees, Chapter IX contains the
description as to how the result would be
declared by the Returning Officer and the
prescribed format for the purpose.

15. Relevant extract of Chapter '9' of the
Guide Book is to be quoted hereunder:-

" अध्याय-9

मतगणना
उपरान्त
की
प्रकिया

वनिादचन अवर्कारी सर्स्य ग्राम पोंचायत
तथा प्रर्ान ग्राम पोंचायत के वनिादचन पररणाम की
घ षणा के पूिद तुरन्त वनर्ादररत वनिादचन पररणाम
पोंवजका पररकशष्ट-14(प्रपत्र-56) पर वििरण र्जद
करके वनिादवचत उिीर्िार या उसके वनिादचन
अवभकताद के हस्ताक्षर लेगा ओर स्वोंय या सहायक
वनिादचन अवर्कारी द्वारा हस्ताक्षर वकया जाएगा और
िही अवर्कारी तर्न्तर तत्काल वनिादचन पररणाम की
घ षणा करेगा। वनर्ादररत वनिादचन पररणाम पोंवजका
(प्रपत्र-56) में प्रत्येक ग्राम पोंचायत के वलए अलगअलग पृष्ठ वनर्ादररत रहेंगे वजसमें उस ग्राम पोंचायत के
सर्स्य के वनिादचन पररणाम के अन्त में प्रर्ान पर् का
वनिादचन पररणाम का वििरण अोंवकत वकया जाएगा
और सर्स्य ग्राम पोंचायत के वलए सहायक वनिादचन
अवर्कारी द्वारा प्रमाण पत्र पररविष्ट-15(प्रपत्र-52) पर
तथा प्रर्ान, क्षेत्र पोंचायत सर्स्य के वलए वनिादचन
अवर्कारी द्वारा प्रमाण पत्र क्रमिः पररकशष्ट-16 एंव
17 (प्रपत्र-53 एोंि प्रपत्र-54) पर जारी वकया जाएगा।"

16. A careful reading of the instructions in
clause '9' indicate that the Returning Officer
before declaration of the result of the election
would enter all details in the prescribed
"Election Result Register" in पररविष्ट-14 (Form56) and get the signature of the elected candidate
and/or his Nirvachan Abhikarta and also sign it
by himself or by the Assistant Returning Officer.
Thus, the election result has to be declared only
334 INDIAN LAW REPORTS ALLAHABAD SERIES
after preparation of Form-56. It further provides
that the prescribed Form-56 (Election Result
Register) shall contain separate pages for each
Kshetra Panchayat and after preparation of the
result in Form-56, the certificate in पररविष्ट-17
(Form-54) shall be issued by the Assistant
Returning Officer to the elected candidate.
Form-56 in पररविष्ट-14 and Form-54 in पररविष्ट17 prescribed in the Guide Book are relevant to
be extracted under:-

"पररकशष्ट-14

प्रपत्र-56

कनवााचन पररणाम पंकिका

जनपर्................ विकास िण्ड .............
क्र०
सों०
ग्राम
पोंचायत/
क्षेत्र
पोंचायत/
वजला
पोंचायत
का नाम
पर्/िा
डद का
वििरण
कनवााच
न
पररणा
म
घोषणा
का
किनांक
व
समय
वनिादवच
त
उिीर्
िार का
नाम
एोंि
चुनाि
वचह्न
वनिादवच
त
उिीर्
िार
द्वारा
प्राप्त
मत ों
की
सोंख्या
वनिादवच
त
उिीर्
िार के
हस्ताक्ष
र
वनिादच
न
अवर्का
री
/
सहाय
क
वनिादच
न
अवर्का
री
के
हस्ताक्ष
र
1
2
3
4
5
6
7
8

"पररकशष्ट-17

प्रपत्र-54
 राज्य कनवााचन आयोग, उत्तर
प्रिेश
 वत्रस्तरीय
पोंचायत ों
के
सामान्य/उप
वनिादचन*
(.............................................)
 प्रमाण-पत्र
(सिस्य
क्षेत्र
पंचायत)
 मैं एतद्द्िारा प्रमावणत करता/करती* हूँ वक श्री/सुश्री*
..................................... वपता/पवत*....... वनिासी ग्राम पोंचायत ..........
विकास
िण्ड
.................
जनपर्
.............
क्षेत्र
पोंचायत.......................... के प्रार्ेविक वनिादचन क्षेत्र सोंख्या .......... से िषद
......... में सम्पन्न हुए सामान्य/उप वनिादचन* में सिस्य क्षेत्र पंचायत
वनविदर र्/सविर र्* वनिादवचत हुए/हुई* ।
वर्नाोंकः ..............

स्थानः .................
 हस्ताक्षर..........
 वनिादचन
अवर्कारी/सहायक वनिादचन अवर्कारी
 का नाम ...
मुहर

 प्रार्ेविक वनिादचन क्षेत्र
सोंख्या ..........
 विकास
िण्ड
....................
 तहसील
.........................
 जनपर्
..........................
 *ज लागू न ह उसे काट र्ीवजए।

From the perusal of the above instructions
issued by the State Election Commission, it is
evident that the certificate of winning candidate
can be issued by the Returning Officer only after
the finalization of the election result in Form-56
which is to be sent to the District Magistrate for
onward report to the State Election Commission.
The issuance of the certificate of elected
candidate in Form-54, thus, can only be after the
declaration of the result in Form-56. The date of
preparation of Form-56 or the details thereof
is/are not before us. The column (4) of Form-56
must contain the date and time of the declaration
of result. The instant writ petition is completely
silent about the preparation of Form-56 which
must have been signed by the elected candidate
or his Ganana Abhikarta.

The issuance of the certificate in
Form-54 by the Assistant Returning Officer
without preparation of Form-56 containing the
details of the date and time of the declaration of
the result will be of no consequence under the
scheme of the procedure formulated by the State
Election Commission to supplement the Rules'
1994.

17. Moreover, in absence of any detail
given by the petitioner herein regarding the
preparation of Form-56 containing his signature
11 All. Smt. Babita Devi Vs. State of U.P. & Ors.
335
or of his Ganana Adhikari, we are not inclined to
accept her contention that the result of the
election was declared with the issuance of the
certificate in Form-54 to her on 3.5.2021.

18. On the other hand, as per the details
given by the counsel for the State Election
Commission, the mistake in the certificate issued
by the Assistant Returning Officer was corrected
by the Returning Officer on the very next date
i.e. 4.5.2021 as soon as it came to his
knowledge. Before correction of the mistake, the
notice was also sought to be served upon the
petitioner. The information about the final result
declaring the opposite party no. 7 as elected
candidate was uploaded on the portal of the
State Election Commission on 7.5.2021 at about
14:19 Hours. The issuance of the certificate by
the Assistant Returning Officer in Form-54 to
the petitioner herein, therefore, cannot be said to
have marked the culmination of the election.

19. Having considered the scheme of the
Rules 1994 and the instructions as contained in the
Guide Book issued by the State Election
Commission for the Panchayat General Elections2021, we further find that the ratio of the decisions
in Kamlesh (supra), Smt. Sunita Patel (supra)
and Smt. Tara Devi (supra) will have no
application in the facts and circumstances of the
instant case.

The reason being that in none of the
above decisions, the scheme of the declaration of
the election result in the prescribed Form-56
formulated by the State Election Commission was
subject matter of consideration.

The reliance placed by the counsel for
the petitioner on the decision in Smt. Sunita Patel
(supra) to assert that the certificate issued by the
Returning Officer marked the culmination of the
election, is, thus, of no benefit to the petitioner.

20. Much emphasis has been laid by the
counsel for the petitioner on the previous date on
the application of the principle of functus officio
to assert that the Returning Officer lacked
jurisdiction to make any correction in the
election result after the certificate was issued
declaring the petitioner as elected candidate.

21. To deal with the said submission, we
may note that clerical or arithmetical mistake in
any decision or errors arising therein from any
accidental slip or omission, may, at any time, be
corrected by the competent authority on its own
motion or as soon as such an error is brought to
its notice in any manner whatsoever. The
Returning Officer being Incharge of his office
on the relevant date was well within his
jurisdiction
to
correct
the
errors
of
clerical/arithmetical nature. To hold otherwise
would mean that the wrong result of election had
to be declared by the Returning Officer even
after discovering the mistake which was only of
calculation/totaling of the votes cast in favour of
each candidate. The accidental slip or omission
attributable to the office of the Returning Officer
must be corrected at the earliest possible
opportunity so as to maintain the sanctity of the
election and to ensure free and fair election. The
Returning Officer cannot be said to be functus
officio with respect to its power to correct its
record before sending the same to the District
Magistrate for declaration of the election result
on the portal of the State Election Commission.
The fact that the Returning Officer was holding
the charge of his office on 4.5.2021, when the
mistake was corrected, is not disputed before us.
We, therefore, hold that till the Returning
Officer was Incharge of his office under the
order of the State Election Commission and the
election result was not finalised by uploading the
same on the portal of the State Election
Commission, the Returning Officer cannot be
denuded of his power to make correction of an
error which was only clerical or arithmetical in
nature, to put the record of his office straight.
The Returning Officer is duty bound to ensure
that the declaration made by it of the election
336 INDIAN LAW REPORTS ALLAHABAD SERIES
result is true; and when he had made correction
of minor or formal nature for removing
inadvertent error he cannot said to have become
functus officio nor can it be said that it was
outside the scope and jurisdiction of the
Returning Officer under the authority given by
the Election Commission.

Further,
the
writ
petition
is
completely silent about the election return of
polling booth nos. 180 and 181 having been
received by the petitioner or her Nirvachan
Abhikarta and Ganana Abhikarta. The copy of
the election returns in Form-47 (as per the
Guide Book) alongwith the counting sheet
(Ganana Parchi) in Form 43 dated 3.5.2021 of
the polling booth nos. 180 and 181 placed
before us alongwith the written instructions
show the description/details of the votes as is
required to be noted under Rule 53 of the
Rules, 1994. The total number of the votes
received
by
each
candidate
have
been
mentioned therein.

The petitioner herein also does not
dispute the details or the number of votes
indicated in the memo dated 6.5.2021, subject
matter of challenge in the present writ petition.

22. For the aforesaid, in the facts and
circumstances of the case, we find that the
mistake in the computation of the votes of two
polling booths was an arithmetical/clerical
mistake. The said mistake when brought to the
notice of the Returning Officer on 4.5.2021 on
the very next day when the certificate of the
elected candidate was issued to the petitioner on
3.5.2021, he, as a vigilant officer, after
scrutinizing the record of his office when found
the mistake being minor/formal in nature
proceeded to erase the same at the earliest by
issuance of the notice to the petitioner.

It is demonstrated before us that in the
process of correction, the petitioner did not
participate.

23.