Allahabad High Court
Smt. Vijay Laxmi vs State Of U.P And Others on 2 July, 2021
Bench: Sunita Agarwal, Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 14170 of 2021
Petitioner :- Smt. Vijay Laxmi
Respondent :- State Of U.P And Others
Counsel for Petitioner :- Uma Nath Pandey
Counsel for Respondent :- C.S.C.,Tarun Agrawal
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard Sri Swapnil Kumar and Sri Uma Nath Pandey learned counsels for the petitioner and Sri Imran Sayed appearing for the State Election Commission. Learned Standing counsel appears for the State respondent.
The present petition has been filed with the following reliefs:
"I. a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.05.2021 passed by Nirwachan Adhikari (Returning Officer) of Kshetra Panchayat Sardaha Shukla, Block Gaur, District Basti (Annexure no.2. to this writ petition).
II. a writ, order or direction in the nature of mandamus commanding the respondent no.3 to issue the certificate of the Member of Kshetra Panchayat Sardaha Shukla Ward no.27 in favour of petitioner."
The contention of the learned counsel for the petitioner is that the Election Officer had initially declared the petitioner an elected candidate and later on, by interpolation in the form issued under Rule 50 and 53 of the U.P. Kshetra Panchayat and Zila Panchayat (Election of Members) Rules 1994, the respondent no.5 had been declared elected.
Noticeable is the fact that the petitioner seeks issuance of a writ of mandamus commanding the Returning Officer to issue the fresh certificate in his favour on the basis of the entries in the form issued under Rule 53 of Rules, 1994, which is at page-'27A' of the paper book. The assertion of the petitioner is that a fraud had been committed by the Returning Officer and by making interpolation in the said form the election result had been declared illegally. In essence, the prayer in the writ petition is to cancel the election result and declare the petitioner a returned candidate. Reliance has been placed on the judgment of the Division Bench of this Court in case of Sunita Patel vs State of U.P. and others reported in 2006 (2) AWC 1429 to submit that after the declaration of the result, it was not open for the returning officer to make any changes in the aforesaid form.
To deal with the said submissions, the relevant Rules of the U.P. Kshetra Panchayat and Zila Panchayat (Election of Members) Rules, 1994 which govern the election of members of Kshetra Panchayat are noted as under:
"53. Election return by the Nirvachan Adhikari.- The Nirvachan Adhikari shall then prepare and certify an election return in the specified for 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."
We may note that the document appended at page '27 A' of the paper book is the election return, referable to Rule 53 of the Rules'1994. The final result had been declared under Rule 54 of the Rules, thereafter. The relief prayed by the petitioner is to issue direction to the Returning Officer to issue a fresh certificate after making an enquiry into the allegations of fraud. After declaration of the result, the Returning Officer cannot review it decision or to get a recounting done. Moreover, the decision on the question of fraud will require a factual enquiry. The Division Bench in Sunita Patel (supra) had noted that Article 243-O of the Constitution bars the jurisdiction of this Court in respect of the election, which stood concluded by the declaration made under Rule 54 of the 1994 Rules.
This relief as prayed for can only be granted by the Election Tribunal, in case an appropriate election petition is filed.
For the aforesaid, we do not propose to entertain the present petition. The writ petition is dismissed on the ground of alternative remedy.
Order Date :- 2.7.2021
Harshita
