# Smt. Kamlesh v. Mukhya Nirwachan Ayuct and others

- **Citation:** (2006) 3 ILRA 1157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-30
- **Case number:** Civil Misc. Writ Petition No.266 of 2006
- **Bench:** Dr.B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamlesh-v-mukhya-nirwachan-ayuct-and-others-40769
- **Pages:** 5

## Headnote

Constitution of India-Art. 226-Power of
re counting of Votes-election for the post
of
member
of
Block
Development
Committee-petitioner
secured
378
Votes- respondent no. 3 got 337-by
order dated 26.10.05 petitioner declared
successful
and
certificate
issuedsubsequent declaration in favour of
respondent no. 3-on the basis of recounting on the ground-the votes of
polling booth No. 132 was not countedheld-once
result
declared-certificate
issued-the election process come to an
end-subsequent
order
based
on
re
counting without jurisdiction.

Held: Para 8 & 11

The law on the issue involved in this
petition is well settled. The election law
is too technical; equity, justice etc. have
no role in such matters. The result had
been declared by the Returning Officer.
The
petitioner
had
been
declared
successful and the certificate to that
effect was also issued in her favour. In
such circumstances the Returning Officer
had become functus officio and the
1158 INDIAN LAW REPORT ALLAHABAD SERIES [2006
mistake, if any, in declaring the result
without counting some of the votes,
could
be
rectified
only
at
the
intervention
of
the
Election
Tribunal/Court but it was not legally
permissible for the Returning Officer on
any ground, whatsoever, to review his
earlier order. The order passed by him is
therefore without jurisdiction and the
certificate declaring respondent no.3 as
a successful candidate cannot be given
effect to.

From the above, it is evident that
election comes to an end on declaration
of the result of the election, i.e. when the
certificate is issued to a particular
candidate
declaring
him
successful.
Thus, in the instant case, the election
had come to an end the moment the
certificate was issued in favour of the
petitioner
and
all
subsequent
proceedings taken by the Returning
Officer
are
without
any
authority/competence.
Case law discussed:
AIR 2002 SC-2112
AIR 1978 SC-851
1995 AWC-1465
AIR 1952 SC-64
2000 (91) R.D.-619
AIR 1954 SC-520
1995 AWC-1465
AIR 1965-1892
2005 (8) SC-383
AIR 1985 SC-1746
AIR 2004 SC-3600
AIR 1988 SC-61
AIR 1999 P & H. 1 (F.B.)

## Text

3All] Smt. Kamlesh V. Mukhya Nirwachan Ayuct and others 1157
objections to the prayer for divorce the
concerned Court should not grant any
unnecessary adjournment.

12. In this view of the matter, we
quash the criminal proceedings against
the petitioners in case crime No. 395 of
2005, under Sections 498-A/323/504/506
IPC read with Section 3⁄4 of Dowry
Prohibition
Act,
police
station
Colonelganj,
district
Allahabad.
We
further quash the proceedings under
section 125 Cr.P.C. in case No. 451 of
2005, pending before the Principal Judge,
Family court, Allahabad. We also direct
the
Principal
Judge,
Family
Court,
Allahabad not to grant any adjournment
on the date when petitioner No. 3 appears
before the Court for filing his consent and
no objection to the grant of a decree of
divorce to respondent No. 3 in her petition
under Section 13 of the Hindu Marriage
Act against petitioner No.3, and to pass
appropriate orders very expeditiously,
The concerned Court is also directed to
pass appropriate orders in the proceedings
under section 125 Cr.P.C. in the light of
the orders passed in this writ petition. In
future also it is expected that the parties
shall not raise any claim or counter claim
against each other.
With these observations, this writ petition
is allowed.

Copy of the order may be given to
the parties by 27th May 2006 on payment
of usual costs. Application Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2006

BEFORE
THE HON'BLE DR.B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.266 of 2006

Smt. Kamlesh

...Petitioner
Versus
Mukya Nirwachan Ayuct, Rajya Nirwachan
Ayog, U.P. and others
 ...Respondents

Counsel for the Petitioner:
Sri Vivek Prakash Mishra

Counsel for the Respondents:
Sri P.N. Rai
Sri Rajendra Singh Parihar
S.C.

Constitution of India-Art. 226-Power of
re counting of Votes-election for the post
of
member
of
Block
Development
Committee-petitioner
secured
378
Votes- respondent no. 3 got 337-by
order dated 26.10.05 petitioner declared
successful
and
certificate
issuedsubsequent declaration in favour of
respondent no. 3-on the basis of recounting on the ground-the votes of
polling booth No. 132 was not countedheld-once
result
declared-certificate
issued-the election process come to an
end-subsequent
order
based
on
re
counting without jurisdiction.

Held: Para 8 & 11

The law on the issue involved in this
petition is well settled. The election law
is too technical; equity, justice etc. have
no role in such matters. The result had
been declared by the Returning Officer.
The
petitioner
had
been
declared
successful and the certificate to that
effect was also issued in her favour. In
such circumstances the Returning Officer
had become functus officio and the
1158 INDIAN LAW REPORT ALLAHABAD SERIES [2006
mistake, if any, in declaring the result
without counting some of the votes,
could
be
rectified
only
at
the
intervention
of
the
Election
Tribunal/Court but it was not legally
permissible for the Returning Officer on
any ground, whatsoever, to review his
earlier order. The order passed by him is
therefore without jurisdiction and the
certificate declaring respondent no.3 as
a successful candidate cannot be given
effect to.

From the above, it is evident that
election comes to an end on declaration
of the result of the election, i.e. when the
certificate is issued to a particular
candidate
declaring
him
successful.
Thus, in the instant case, the election
had come to an end the moment the
certificate was issued in favour of the
petitioner
and
all
subsequent
proceedings taken by the Returning
Officer
are
without
any
authority/competence.
Case law discussed:
AIR 2002 SC-2112
AIR 1978 SC-851
1995 AWC-1465
AIR 1952 SC-64
2000 (91) R.D.-619
AIR 1954 SC-520
1995 AWC-1465
AIR 1965-1892
2005 (8) SC-383
AIR 1985 SC-1746
AIR 2004 SC-3600
AIR 1988 SC-61
AIR 1999 P & H. 1 (F.B.)

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1.

This
petition
involves
a
substantial question of law as to whether
after declaration of the result by the
Returning Officer and issuance of the
certificate of declaration in favour of a
successful
candidate,
the
Returning
Officer has the competence to order for
recount of the votes or issue a certificate
in favour of any other candidate on the
ground that certain votes had not been
counted before the declaration of the
result.

2. The facts and circumstances
giving rise to this case are that the
petitioner was a candidate for the post of
member
of
Block
Development
Committee
(hereinafter
called
the
''B.D.C.') for Kshetra Panchayat Swar,
District Rampur. The election was held on
23.10.2005 and after the counting of
votes, it was found that the petitioner
secured 378 votes while the respondent
no.3 Smt. Surja secured only 337 votes
and another candidate Geeta could secure
only 24 votes. On the basis of this
counting,
the
Returning
Officer,
respondent no.2 declared the petitioner
successful, and the certificate to that
effect dated 26.10.2005 (Annex.1) as
required under the Rules was also issued
to her. The Returning officer, subsequent
thereto, declared the respondent no.3 as a
successful candidate and also issued the
certificate to that effect on the same date
on the ground that the votes relating to
polling booth no.132 had not been
counted and could not be taken into
consideration
while
making
the
declaration in favour of the petitioner. As
after counting all the votes, respondent
no.3 secured 463 votes and petitioner
could secure only 414 votes, respondent
no.3 was declared successful. Petitioner
filed Writ Petition No. 74495 of 2005 to
challenge the certificate issued in favour
of respondent no.3. This Court, vide order
dated 08.12.2005 dismissed the writ
petition
as
withdrawn
but
granted
permission to file a fresh petition. Hence
this petition.

3. Heard Shri Vivek Prakash Mishra,
learned counsel for the petitioner, Shri
3All] Smt. Kamlesh V. Mukhya Nirwachan Ayuct and others 1159
P.N. Rai, learned counsel appearing for
respondent nos. 1 and 2 and Shri Rajendra
Singh Parihar for respondent no.3.

4. It has been submitted by learned
counsel for the petitioner that once the
result had been declared, the Returning
Officer had become functus officio. He,
therefore, had no authority under law to
count
other
votes
for
any
reason
whatsoever and declare respondent no.3
as a successful candidate.

5. Shri P.N. Rai and Shri Rajendra
Singh Parihar, learned counsel appearing
for the respondents have submitted that in
order to rectify a factual error, the
Returning Officer found it necessary to do
so in the interest of justice for holding a
fair election, and as the result declaring
the petitioner successful had been made
inadvertently, the same was rectified by
the Returning Officer and hence the
petition is liable to be dismissed.

6. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.

7. The learned counsel for the
respondents
have
admitted
in
their
counter affidavit that the result was
declared by the Returning Officer on
26/10/2005 and petitioner was declared a
successful candidate and the certificate to
that effect (Annex.1) was also issued to
her. While entertaining the writ petition,
this Court passed an interim order in
favour of the petitioner and she is still
holding the post under the interim order
of this Court.

8. The law on the issue involved in
this petition is well settled. The election
law is too technical; equity, justice etc.
have no role in such matters. The result
had been declared by the Returning
Officer. The petitioner had been declared
successful and the certificate to that effect
was also issued in her favour. In such
circumstances the Returning Officer had
become functus officio and the mistake, if
any, in declaring the result without
counting some of the votes, could be
rectified only at the intervention of the
Election Tribunal/Court but it was not
legally permissible for the Returning
Officer on any ground, whatsoever, to
review his earlier order. The order passed
by him is therefore without jurisdiction
and the certificate declaring respondent
no.3 as a successful candidate cannot be
given effect to.

9. Shri P.N. Rai, learned counsel for
the respondent Commission has submitted
that the Election Commission has plenary
and all necessary powers for smooth, free
and fair conduct of the election subject
only to a valid law and in exercise of its
residual
power,
such
a
course
is
permissible. To fortify his submission,
reliance has been placed by Shri Rai on
the judgments of the Hon'ble Apex Court
in Union of India Vs. Association for
Democratic Reforms & Anr., AIR 2002
SC 2112; & Mohinder Singh Gill & Anr.
Vs. The Chief Election Commissioner,
New Delhi & Ors., AIR 1978 SC 851,
wherein it has been held that the
Commission
is
competent,
in
an
appropriate case, to pass an appropriate
order to meet a particular fact situation in
exercise of its powers under the Statute
though the order is to be passed on
receiving the reports from the Returning
Officer with regard to any situation
arising in the course of an election and
the powers has to be exercised with
promptitude. The aforesaid contention has
1160 INDIAN LAW REPORT ALLAHABAD SERIES [2006
to be rejected for the reason that in
Mohinder Singh Gill (supra), the Hon'ble
Apex Court has held that the power of the
Commission and its officers can be
exercised to hold free and fair election till
its culmination in the formal declaration
of the result. The Court held as under:-

"Election, in this context, has a very
wide connotation commencing from the
Presidential notification calling upon the
electorate to elect and culmination in the
final
declaration
of
the
returned
candidate." (Emphasis added).

10. Similar view had earlier been
taken by the Apex Court in N.P.
Ponnuswami Vs. The Returning Officer,
Namakkal Constituency, Namakkal Salem
Dist. & Ors., AIR 1952 SC 64.

11. From the above, it is evident that
election comes to an end on declaration of
the result of the election, i.e. when the
certificate is issued to a particular
candidate declaring him successful. Thus,
in the instant case, the election had come
to an end the moment the certificate was
issued in favour of the petitioner and all
subsequent proceedings taken by the
Returning
Officer
are
without
any
authority/competence.

12. More so, recounting of votes is
permissible on limited grounds, by the
Returning Officer only prior to the
declaration of the result. He has no
competence to order for recount the votes
after declaration of the result of the
election. If the respondent no.3 was so
aggrieved she could have filed an election
petition seeking direction for recounting
of votes from the Election Tribunal but it
was not permissible for the Returning
Officer to provide the remedy to the
respondent no.3 as he was not the
appropriate forum to adjudicate upon the
controversy, at all.

13. It is settled legal position that
once result of the election is declared, it
can be challenged only before the election
Tribunal.
(Vide
N.P.
Ponnuswami
(supra);
Durga
Shankar
Mehta
Vs.
Raghuraj Singh, AIR 1954 SC 520;
Brundaban
Nayak
Vs.
Election
Commission of India & Anr., AIR 1965
SC 1892; Mohinder Singh Gill (supra);
Krishna Ballabh Prasad Singh Vs. Sub
Divisional Officer, Hilsa-cum-Returning
Officer & Ors., AIR 1985 SC 1746; and
The Election Commission of India Vs.
Shivaji & Ors., AIR 1988 SC 61).

14. In exceptional circumstances,
where the facts are not in dispute, the
controversy regarding disqualification etc.
can also be agitated in writ jurisdiction.
(Vide
K.
Venkatachalam
Vs.
A.
Swamickan & Anr., AIR 1999 SC 1723;
and Lal Chand Vs. State of Haryana &
Ors., AIR 1999 P&H 1 (FB); Manda
Jaganath Vs. K.S. Rathnam & Ors., AIR
2004 SC 3600; Harnek Singh Vs.
Charanjit Singh, (2005) 8 SCC 383).

15. Thus, in view of the above, the
Returning
Officer
had
lost
the
competence to deal with the issue further
once the result had been declared.

16. We also find no force in the
submissions made by Sri Rai that in such
a fact-situation, Election Commission and
its officers had a legal obligation/implied
powers to rectify the mistake made
inadvertently. Legal maxim ''Quando lex
aliquid alicui concedit, conceditur et id
sine quo res ipsa esse non potest' means
when the law gives some one anything, it
3All] Smt. Anju Jain V. The G.M., (P.& HRD). S.B.I. and others 1161
gives him also that without which the
thing cannot exist, does not apply in the
facts of the instant case for the reason that
immediately after declaration of the result
and issuance of the certificate, the
election came to an end, and the
Returning Officer became functus officio,
i.e. after discharging the duties of the
Returning Officer, his authority stood
terminated
automatically.
Thus,
the
Returning
Officer
had
lost
the
competence to deal further even if some
votes
were
left
to
be
counted
inadvertently. Thus, the order passed by
the Returning Officer cannot be sustained
in the eyes of law.

17. The issue involved herein has
been examined by various Division Bench
of this Court in Smt. Ram Kanti Vs.
District Magistrate & Ors., (1995) AWC
1465; and Shambhu Singh Vs. State
Election Commissioner & Ors., 2000 (91)
RD 619, wherein it has been held that
declaration of the result once made cannot
subsequently be cancelled. Once the
election process comes to an end, the
Authority becomes defunct.

18. In view of the above, petition
succeeds and is allowed. The certificate
issued in favour of respondent no.3
declaring her as a successful candidate
(Annex CA-2) is hereby quashed and
consequently
the
earlier
certificate
declaring the petitioner successful stands
revived. It will, however, be open to the
respondent
no.3
to
approach
the
appropriate forum, i.e. the Election
Tribunal for seeking appropriate remedy,
if she is so advised.

19. A copy of this order may be
issued to the learned counsel for the
parties by 01.04.2006 on payment of
usual charges.
 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2006

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No. 45006 of 2001

Smt. Anju Jain

...Petitioner
Versus
The General Manager (Personnel & HRD),
State Bank of India & others ...Respondents

Counsel for the Petitioner:
Sri R.M. Shukla
Sri M.C. Tewari
Sri O.P. Sharma

Counsel for the Respondents:
Sri Vipin Sinha
S.C.

Constitution
of
India,
Art.
226Compassionate
Appointment-claim
rejected-taking into account the past
conduct
of
the
employee-died
in
harness-held-it is not a benefit provided
to
the
deceased
employee-but
for
providing
immediate
relief
to
the
dependents to survive-view takes by the
Bank authority-held-impermissible in the
eye of law being in violation of principle
of natural justice.

Held: Para 7

No past acts of misconduct of the
employee who dies in harness can be
taken into account while considering the
case of a family member for employment
on compassionate ground, as it is not a
benefit
provided
to
the
deceased
employee but for providing immediate
succor to its dependants to survive. The
decision
of
the
respondents
is
impermissible in the eye of law being in