Allahabad High Court
Jitendra vs State Of U.P. And 5 Others on 29 June, 2021
Bench: Sunita Agarwal, Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 13349 of 2021
Petitioner :- Jitendra
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Santosh Kumar Chaubey
Counsel for Respondent :- C.S.C.,Ramashray Tripathi,Tarun Agrawal
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard Sri Santosh Kumar Chaubey, learned counsel for the petitioner, Sri Imran Sayad, learned counsel for the State Election Commission and learned Standing Counsel for the State-respondents.
The present petition has been filed with the following relief;-
"A. To issue a writ order or direction in the nature of certiorari to quash the issued winning certificate, if any in favour of the Respondent No.6 namely Sudarshan for the B.D.C.
B. To issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities to return the elected certificate of B.D.C. (winning certificate of B.D.C.) to petitioner with all consequential effect.
C. To issue a writ order or direction in the nature of mandamus commanding and directing to the respondent higher authorities to initiate departmental proceeding and criminal proceeding against the Respondent No.5 namely Laik Ahmad for committing fraud, manipulation and breach of duty."
The contention of the petitioner is that the petitioner and the private respondent no.6 had contested in the election for the post of B.D.C. (Kshettra Panchayat Sadasya) from ward no. 6,7,8,9, 10 & 11. After counting was completed on 2.05.2021, a list of the elected candidates were prepared by the Returning Officer wherein the name of the petitioner finds place as a winning candidate. The said list has been annexed as Annuxure No.-1 to the writ petition. It is then contended that after one week of the declaration of the result, the Returning Officer asked the petitioner to return the original certificate, issued in the prescribed proforma to the winner. The petitioner further requested to the Returning Officer to return his original certificate but he did not do so. The entire episode had been video recorded and the said incident had also been published in the daily news paper namely Hindustan. On the basis of the news items circulated in the daily news paper, it is contended that an enquiry may be directed by this Court in the illegal act of the Returning Officer.
Reliance is placed on the Division Bench Judgment of this Court in the cases of Sunita Patel (Smt.) V/s. State of U.P.- (2006) 1 UPLBEC page 372 (DB), Kamlesh (Smt.) V/s Mukhya Nirwachan Ayukt, Rajya Nirwachan Ayog U.P. and others-(2006) 3 UBLBEC 2337 (DB), Smt. Ram Kanti V/s District Magistrate and others-(1995) AWC 1465 (DB), Shambhu Singh V/s State Election Commissioner and others - 2000 (91) RD 619 (DB) and Shaym Sakhi (Smt.) V/s The State Election Commission U.P. - (2000) 3 UPLBEC 2097 and submit that in the similar facts and circumstances, the Court had cancelled the certificate of the winner candidate and declared the petitioner therein as a winner.
The learned counsel for the respondent, however, submits that the proper remedy to the petitioner is to file an election petition, inasmuch as, after declaring the result dispute can only be decided after perusal of the evidence of parties. A coordinate Bench of this Court in the case of Jitendra Yadav vs. State of U.P. & Others, passed in Writ-C No.-13044 of 2021 had decided the legal position that the Returning Officer becomes functus officio after declaration of the result and cancelled the subsequent certificate issued by him.
Having considered the submissions of the learned counsel for the petitioner, we may make it clear that we can not have any quarrel about the legal proposition that after declaration of the result, the Returning Officer becomes functus officio. But to decide the factual controversy raised herein, we find it a fit and proper that the petitioner may approach the Election Tribunal by filing a proper election petition.
We say so for the reason that for the decision in the matter, the original record of the office of the Returning Officer, would have to be examined, which must have been kept in a sealed cover. Moreover, the final relief of quashing of the election result and the declaration of the petitioner as a winner can only be given after deciding the factual controversy raised herein.
For the aforesaid, we do not propose to entertain the writ petition. The writ petition is, accordingly, dismissed on the ground of alternative remedy.
Order Date :- 29.6.2021
Neeraj
