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

- **Citation:** (2021) 9 ILRA 1329
- **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-47524
- **Pages:** 16

## Headnote

Panchayats (Election of Members) Rules,
1994 - Rule 54 - Minor correction in
totaling of the votes - Jurisdiction of the
Returning Officer to make correction in
the election result after victory certificate
is issued - Procedural review - functus
Officio - Held - Returning Officer has
jurisdiction to correct minor errors of
clerical/arithmetical nature - Returning
Officer
on
discovering
mistake
in
calculation/totaling of the votes must
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
correct the same at the earliest possible
opportunity - 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 (Para 10, 21)

B. U.P. Kshetra Panchayats and Zila
Panchayats (Election of Members) Rules,
1994 - Rules 53, 54 & 56 - Guide Book for
Panchayat
General
Elections-2021,
Chapter IX - Form 54, 56 - Returning
Officer before declaration of the result of
the election would enter all details in the
prescribed "Election Result Register" in
Form-56, get the signature of the elected
candidate and also sign it by himself -
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 - Issuance
of the certificate of elected candidate in
Form-54 can only be after the declaration
of the result in Form-56 - 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 (Para 16, 17)

C. Constitution of India, Article 226 - while
exercising
equitable
discretionary
jurisdiction substantial justice should be
done in the matter - High Court would not
issue a writ which would revive any
illegality - quashing of the certificate
issued in favour of the opposite party
would result in cancellation of the election
of a candidate having attained highest
number of votes - no reason to upset the
election result & relegate the candidate
having
highest
number
of
votes
to
approach the Election Tribunal for removal
of a minor defect (Para 22)

Assistant Returning Officer 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 victory certificate to the petitioner
on 3.5.2021 - on 4.5.2021, private respondent
raised objection - As soon as the said mistake
was brought to the knowledge of the Returning
Officer, he found that the votes of the polling
booth no. 180 were not added in the result
declared by the Assistant Returning Officer -
mistake committed by the Assistant Returning
Officer was c

## Text

_Characters 0–39,962 of 51,663. This is a partial read: ask again with offset=39962 for what follows._

9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1329
State of U.P. and others, reported at 2012
(11) ADJ 404 issued peremptory orders to
state authorities to take all necessary action
in law and and clear such encroachments
expeditiously:

"5.In view of direction noticed in
the aforesaid circular, we are of the
considered
view
that
if
complaints
regarding unauthorized occupation over the
public ponds or other similar public lands
are received by the District Magistrate of a
District, he should take all the required
actions in view of law already settled in the
case of Jagpal Singh and others.

6. In case, the District Magistrate
finds some good reasons to seek guidance
from the Members Committee indicated in
Para-2 of the aforesaid circular, then he may
refer the matter and seek guidance in
appropriate cases.

7. So far as the present writ petition
is concerned, we grant liberty to the petitioner
to approach respondents no. 2 and 3 again
with a certified copy of this order. The
concerned respondents shall get appropriate
inquiry made and take required action to
protect public ponds as per law laid down by
the Apex Court, expeditiously.

8. Let a copy of this order be
furnished to the learned Standing Counsel
for the State for communication to the
Principal
Secretary,
Revenue,
Government of Uttar Pradesh, who shall
circulate a copy of this order to all the
Divisional Commissioners as well as the
District Magistrates so that number of
such types of cases coming to this Court
may be checked."

19. In wake of the preceding
discussion, no interference is called for in
the impugned order. The writ petition is
liable to be dismissed and is dismissed.

20. The District Magistrate is
ordered to forthwith resume possession
over the disputed parcels of land and
restore the pond to its original pristine
stage, within a period of six months from
today.

21. Learned Standing Counsel to
serve a copy of this order upon the District
Magistrate, Kanpur Dehat, for compliance.
----------
(2021)09ILR A1329
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:
Gaurav Singh Chauhan, R.P.S. Chauhan

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

A. U.P. Kshetra Panchayats and Zila
Panchayats (Election of Members) Rules,
1994 - Rule 54 - Minor correction in
totaling of the votes - Jurisdiction of the
Returning Officer to make correction in
the election result after victory certificate
is issued - Procedural review - functus
Officio - Held - Returning Officer has
jurisdiction to correct minor errors of
clerical/arithmetical nature - Returning
Officer
on
discovering
mistake
in
calculation/totaling of the votes must
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
correct the same at the earliest possible
opportunity - 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 (Para 10, 21)

B. U.P. Kshetra Panchayats and Zila
Panchayats (Election of Members) Rules,
1994 - Rules 53, 54 & 56 - Guide Book for
Panchayat
General
Elections-2021,
Chapter IX - Form 54, 56 - Returning
Officer before declaration of the result of
the election would enter all details in the
prescribed "Election Result Register" in
Form-56, get the signature of the elected
candidate and also sign it by himself -
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 - Issuance
of the certificate of elected candidate in
Form-54 can only be after the declaration
of the result in Form-56 - 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 (Para 16, 17)

C. Constitution of India, Article 226 - while
exercising
equitable
discretionary
jurisdiction substantial justice should be
done in the matter - High Court would not
issue a writ which would revive any
illegality - quashing of the certificate
issued in favour of the opposite party
would result in cancellation of the election
of a candidate having attained highest
number of votes - no reason to upset the
election result & relegate the candidate
having
highest
number
of
votes
to
approach the Election Tribunal for removal
of a minor defect (Para 22)

Assistant Returning Officer 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 victory certificate to the petitioner
on 3.5.2021 - on 4.5.2021, private respondent
raised objection - As soon as the said mistake
was brought to the knowledge of the Returning
Officer, he found that the votes of the polling
booth no. 180 were not added in the result
declared by the Assistant Returning Officer -
mistake committed by the Assistant Returning
Officer was corrected by the Returning Officer
on 04.05.2021 - by means of the memo dated
6.5.2021, the Returning Officer cancelled the
certificate
of
the
petitioner
&
declared
respondent no. 7 as the elected candidate by
adding votes of both the polling booths i.e.
booth nos. 180 and 181 - after correction of the
clerical/arithmetical
mistake,
election
result
uploaded on the portal of State Election
Commission on 7.5.2021 - Held - Returning
Officer committed no illegality - 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 (Para 12)

Dismissed. (E-5)

List of Cases cited :

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 SubDivisional
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
S. of Bihar & ors. (1999) 8 SCC 16
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1331
(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 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
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1333
which govern the 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 betweenany 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.
1334 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
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-cumReturning 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
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1335
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 21C 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 21-C. 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
21-C 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 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
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1337
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. 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
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
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 िी प्रकक्रया

कनवााचन
अकधिारी
सदस्य
ग्राम
पांचायत तथा प्रधान ग्राम पांचायत िे कनवााचन
पररणाम िी घोिणा िे पूवा तुरन्त कनधााररत
कनवााचन पररणाम पांकजिा पररचिष्ट-14(प्रपत्र56) पर कववरण दजा िरिे कनवााकचत उम्मीदवार
या उसिे कनवााचन अकभिताा िे हस्ताक्षर लेगा
ओर स्वांय या सहायि कनवााचन अकधिारी द्वारा
हस्ताक्षर किया जाएगा और वही अकधिारी
तदन्तर तत्काल कनवााचन पररणाम िी घोिणा
िरेगा। कनधााररत कनवााचन पररणाम पांकजिा
(प्रपत्र-56) में प्रत्येि ग्राम पांचायत िे कलए
अलग-अलग पृष्ठ कनधााररत रहेंगे कजसमें उस ग्राम
पांचायत िे सदस्य िे कनवााचन पररणाम िे अन्त
में प्रधान पद िा कनवााचन पररणाम िा कववरण
अांकित किया जाएगा और सदस्य ग्राम पांचायत
िे कलए सहायि कनवााचन अकधिारी द्वारा प्रमाण
पत्र पररकशष्ट-15(प्रपत्र-52) पर तथा प्रधान, क्षेत्र
पांचायत सदस्य िे कलए कनवााचन अकधिारी द्वारा
प्रमाण पत्र क्रमशः पररचिष्ट-16 एंव 17 (प्रपत्र53 एांव प्रपत्र-54) पर जारी किया 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 पररकशष्ट-14 (Form-56) 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 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 पररकशष्ट17 (Form-54) shall be issued by the
Assistant Returning Officer to the elected
candidate. Form-56 in पररकशष्ट-14 and
Form-54 in पररकशष्ट-17 prescribed in the
Guide Book are relevant to be extracted
under:-

"पररकशष्ट-14

प्रपत्र-56

कनवााचन पररणाम पांकजिा
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1339

जनपद..............

.. कविास खण्ड .............

क्र
०
सां
०

ग्रा
म
पां
चा
यत
/
क्षे
त्र
पां
चा
यत
/
कज
ला
पां
चा
यत
िा
ना
म

पद
/वा
िा
िा
कव
वर
ण

कन
वाा
च
न
प
रर
णा
म
घो
ि
णा
िा
कद
नाां
ि
व
स
म
य

कन
वाा
कचत
उ
म्मी
दवा
र
िा
नाम
एांव
चुना
व
कचह्न

कन
वाा
कचत
उ
म्मी
दवा
र
द्वा
रा
प्रा
प्त
मतोां
िी
सां
ख्या

कन
वाा
कचत
उ
म्मी
दवा
र िे
ह
स्ता
क्षर
कन
वाा
चन
अ
कध
िा
री /
स
हाय
ि
कन
वाा
चन
अ
कध
िा
री
िे
ह
स्ता
क्षर

1
2
3
4
5
6
7
8

"पररकशष्ट-17

प्रपत्र-54

राज्य कनवााचन आयोग, उत्तर प्रदेश

कत्रस्तरीय
पांचायतोां
िे
सामान्य/उप
कनवााचन* (.............................................)
प्रमाण-पत्र (सदस्य क्षेत्र पंिायत)

मैं एतद्द्वारा प्रमाकणत िरता/िरती* हूँ कि
श्री/सुश्री*
.....................................
कपता/पकत*....... कनवासी ग्राम पांचायत ..........
कविास खण्ड ................. जनपद ............. क्षेत्र
पांचायत.......................... िे प्रादेकशि कनवााचन
क्षेत्र सांख्या .......... से विा ......... में सम्पन्न हुए
सामान्य/उप कनवााचन* में सदस्य क्षेत्र पांचायत
कनकवारोध/सकवरोध* कनवााकचत हुए/हुई* ।

 कदनाांिः ..............

स्थानः .................

हस्ताक्षर..........

कनवााचन अकधिारी/सहायि कनवााचन अकधिारी

मुहर िा
नाम ...

प्रादेकशि कनवााचन क्षेत्र सांख्या ..........

कविास खण्ड ....................

तहसील .........................

जनपद ..........................

*जो लागू न हो उसे िाि दीकजए।

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
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 Elections-2021, 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
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1341
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.