^^^^^^^^^^^^s^i ^^^ Fr^ : ^^ l^ i HIGH COURT OF CHHATTISGARH. BILASPUR Division Bench:- Hon'ble Shri Vijay Kumar Shrivastava, J & Hon'ble Shri Dhirendra Mishra, J Writ Petition No. 276 of 2005 Petitioner: Respondent: Chhedilel Ratre Vs. 1. Election Commission of Chhrttisgarh through its Secretary, Raipur 2. District Election Officer-cum-Collector, Bilaspur (C.G.) 3. Returning Officer, Panchayat, Takhatpur, District Bilaspur (C.G.) 4. Ramesh Tandon, S/o Ramadhin Tandon, aged 32 yeare, R/o Village-Uslapur, District- Bilaspur (C.G.) PetJtionerbyShri Rajeev Shrivastava with ShriNeeraj Shrivastava, Advocate. Respondents 1 to 3 by Shri Prashant Mishra, Addl.A.G. Respondent No.4 by Shri Pradeep Mishra, Advocate. JUDGEMENT (DeliveredonJ/OW2005) The instant writ petition has been preferredbythe petitioner againstthe order of Annexure P/7 dated 25.01.2005 passed by respondent No.2, Djstrict Election Officer by which respondent No.2 declared the recpunting of the votes dated 24.01.2005 held as per directions ofthe Returning Officer, Takhatpur, void and in pursuance ofthe said recounting the election certificate issued to the petitioner has been cancelled. The petition is also directed against the order of Annexure P/8 by which the Returning Officer has issued-election certificate declaring respondent No.4as Sarpanch ofGramPanchayat, Uslapur. , 2. Brieffactsnecessaryforadjudicationofthispetitionisthatanotificatioii?waSl issued for election to the post of Sarpanch, Gram Panchayatj Uslapur^on t 15.12.2004 and elections were hetd and votes were casteon 20.01.2005. The petitioneras also respondent No.4 and two other candidates participated in the election. After election, counting of votes was held on 20.01.2005 and votes were counted. However, the result was not declared and the petitioner made application ofAnnexure P/1, P/2 and P/3 to the Returning OfRcer, Presiding Officer and tothe District Election Officer. The Retuming OfRcer ordered recount on 23.01.2005 and communicated the same to all the candidates vide Annexure P/4,intimating that recounting of all the rejected votes shall be heldon 24.01.2005 at 2.00 pm in the Office of Janpad Sabha. After recount on 24.01.2005, election certificate of Annexure P/5 was issued to the petitioner declaring him elected as Sarpanch of Gram Panchayat, Uslapur. However, on the complaint of respondent No.4, respondent No.2 requisitioned the records of recounting of all the three polling booths of Gram Panchayat, Uslapur and after conduction of enquiry and perusal of the records, by the impugned orderdeclared the recounting void and further directed to amend Form-17 and 21 and accordingly on the basis of the amended Forms, the elected eandidate should be given certificate of election. By this order, the election certificate issued to the petitioner has also been cancelled. 3. After filing ofthe petition, notices were issued by the tearned Single Judge tothe respondentsand afterfilingofthe returns bythe respondents, the matterwas heard on 10.02.2005. The leamed Single Judge, looking to the importance ofthe questions of public interest arising for decision.formulated issues and referred the sameto be decided bythe Division Bench as under; 1 2. Whether after issuance ofthe certificate as per Rule 83 ofthe Chhattisgarh Panchayat Nirvachan Niyam, 1995 (for short the Rules'), in favour of the petitioner, the District Election Officer was entitled to set aside the election of the petitioner under Rule &4 of the Rules? and Whether the order impugned passed by the District Election Officer, is assailable underthe witjurisdiction? 4. The petitioner has filed the petition on the ground thatthe orderjofAnnexuFe P/7 passed bytheDistrict Election Officeris without jurisdiction as afterthe eleetjoo proceedings are complete, results were deelared and election certi|ficates were -•r issued under Rule 83, the District Election Officer respondent No.2 had no jurisdiction to cancel the notification issuedunder Rule 83 and the election ofthe petitioner can onty be assailed as per Section 122 of the Act of 1 993 by way offlling election petition. The order of District Election Offlcer is also^ challenged on the ground that before passing the order of Annexure P/7, no opportunity of hearing was provided to the petitioner and even without hearing the petitioner, his election has been set aside and further in pursuance ofthe said order, certificate of election has been illegally issued to respondent No.4 vide document ofAnnexure P/8. 5. The case of respondents No. 1 to 3 in their return is that the order of Annexure P/7 has been passed by the District Election Officer inthe exercise of powers available under Rule 84 ofthe Chhattisgarh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as 'Rutes 1995'). It is submitted by the respondents No. 1 to 3that afterthe orderofAnnexure P/7,the certificate ofelection has already been granted to the respondent No. 4 and the same can be challenged only by election petition in viewofthe bar under Article 243 (O)ofthe Constitutjonoflndia. 6. Respondent.No. 4 in his retum has submitted that the impugned order of Annexure P/7 has been passed by respondent No.2, the District Election Officer while exercising powers under Rule 22 and 27 of Rules 1995 and as per procedure prescribed under Rule 84(4), he has passed the impugned order and the impugned ordercan not be challenged by the petitioner in view of the Article 243 (o) ofthe Constitution and in view of the Section 122 of the Act of 1993. 7. The findings ofAnnexure P/7 recorded are as under; (a) That, the order of Annexure P/7 has been passed by respondent No.2, District Election Officer by recording a finding that the voting.and counting of the votes in all the three polling booths of Gram Panchayat, Uslapur was concluded on 20.01.2005 itself (b) that thepetitioner neversubmitted any application for recounting in the polling stationas from the perusal of the diaries of the Presiding Officer of Polling Booth No. 192, against demandof recounting is written- Nil and though one application for recounting has been submitted before the Presiding Officer ofthe Booth No, ]190 as per the diary of the said Presiding OfRcer but there is no mer^tion whether^it was decided or not and on the basis of it the District Election Officer; 4 has recorded a finding that the petitionerhas not submitted any application for recounting and (c) That, the order ofrecounting by the Retuming Officer of Takhatpur was not in accordance with taw. Even on the ground that if at all recounting was to be held, then all the votes ought to have been recounted and not only the rejectedvotes aswas ordered. (d) That, the order of recounting was also void on the ground that'after completion of the counting, there is no provision of recounting and accordingly, it was directed that as perRule 81-1(8) ofths Etection Rules 1995, on the basis of resutt sheets prepared in Form-17,a statement m Form-21 preparedand the candidates who have secured maximum valid votes be declared elected. 8. Before we proceedtoconsider the contention ofthe rival parties, 'rt would be appropriateto reproduce Rule 77 ofthe C.G. Panchayat Raj Adhiniyam, 1993. "JT.Counting ofvoles.-(i) Every ballct paper which te not rejected undermie 76 shail becounfed: Provkled ttiat no cover confaining tender baltot papers shail be openecf ancf no sucft &atot paper sfta// ibe counted. (2) After fhe countingof votes in respecf of a polling sfation has been compfefed, the Returning Offker or such cther officer authomed by him, shall makethe entries in result sfteef in Form 16 for Panchas and m Part one of the resut sheet in Form 17, 18 and 19 for sarpanch, members cf Janpad Panchayatand Zila panchayat isspectively and announce e| totaf number of votes polted by each candkjate. (3) AS valid balkst papers shall be bundied together ancf tepf atong wto the bundle of rejected baliot papers in a separate packet whksh shall be sealed and on whtoh shall be recorded the folkMing particulars, name/y:- (a) the number of ttie ward a nd name of Gram Panchayat in case ofeiectton of Panch, the name oi Gram Panchayat in caseof etecfen of Sarpanch, the number ofconstitiency of Janpad Panchayat or Z8a Panchayat as the case may be, in case of etectton of member cfJanpad Panchayat orZiia Panchayat; (b) the number and name ofthe poiling station where the baSst papers have been used; and (c) fhe date (^ cpunting." /r~~~—--^_ ! 9. The only question involved in this petition is whether respondent No.2, the District Election Officer has the jurisdiction to cancel the said certificate of election granted to the petitioner as per provisiQn of rule 83 ofthe Rules 1995 and whether the illegality, if any, committed by the Returning Officer in directing to conduct recount of votes, can be rectified by the District Election Officer in the purported exercise of powers conferred under Rule22, Rule 27 or Rule 84 ofthe Rules 1995 and thirdly, whether the order passed by the District Election OfRcer canceling the certificate of election granted to the petitioner is justified and subsequently whether writ petition lies against the order of Annexure P/7 or P/8 when the election certificate has been issued by respondent no.3, to respondent No. 4 in compliance ofttie order ofAnnexure P/7. 10. After voting is over, counUng is to be held as per Rule 77 and every ballot paper which is not rejected under Rule 76 is to be counted and thereafter, entries are to be made in the result sheet contained in Form-16 for Panchas, Form-17,18 and 19 for Janpad Panchayat and ZilaPanchayat respectively and announce the total number of votes polled by each candidate; The valid ballot papers and rejected ballot papers are required to be bundled and sealed in aseparate packet. 11. Rule 80 providesfor recount which is reproduced as hereunder; "80. Recount of votes;-(1) After an announcement has been roacfe by ffise Retuming QfRcer or such other ofScer aufhorized by him, af (fte total number of votes po/fecf by each candfdate uncfer sub-wfe f2J of nrfe 77, a candklateor, m Ws absence, his etection agent or Ks counting agent may applyin wriSngto theRetuming Officeror such ofKcerauOwrized byhim, for a recount of atl orany offfte votes alfeady counled, stating ffse giounds on which he demands such recount (2) On such an app/fcaffon fae»ng made the Retuming Officer or such o(fter ofKcer authorized by Hm shall decide ffise matter and may alksw Sie appScation in wftofe or m part or may reject it in tofo tfff appears to him to be frivotous or unreawnable. (3) Every decision of fte Retuming Officer or such ofheroffkwr auffrorized by Hm, under sub-rufo(2) shatl be in wriSng and contaan ttie reasons iherefore. (4) If the Retuming Officer or such qther officer auftorized fty ft/m, decides under sub-n/le (2) toatksw an application eiffwr in wholew^infWt. heshatt- (a) countffiebattotpapersagaininaccoKlancewithhisdecisiOn^ (b) anwnd the result sheet to (fte extent necessary a ey sti^^ f recount; and s-l.. CT-^ (c) announce the amendment so made by him. (5) Aiterthe tctal number afvctes po/fed by each candklafe has been announced under sub-ivle (2)afrute 77 orsub-rute (4) fheReturning Officer or smh other offteer aiithorzed by him shali comptete and sign the resuS sheetand no appiteation for arecounf shaSbe entertaineQthereaner Provided that no step under this sub-ruleshall tse taken on the completionofthecountinguntilthecandidates andelectton agent present ai the comptetion thereofhave been given a reasonabte opportunty to exeivise the right conferred by sub-mte (1). (6) The counted Aa/fof papers shallbe bundtedand tepf in the manner menttoned in sub-rule (3) o^ rufe 77. (7) Resut sheets in Fonn 16, 17 and 19 for Panch, Saipanch, Member of Janpad Panchayat and Member of Zila Panchayat respectivety, preparect by such ather affvers as are authorized by the Retuming Officer, shail be submSted by them, in separate envetops to the Retuming Offkser for compfeffon and tabulatton af votes pofed by each candktate. (8) TheRetumingOffver on receipt ofresuK sheets under sub-rufe (7) shall enter of cause to be entered Ihetotal number af votes poSed by each candKtate contesting fora seaf of Sarpanch, Memher ofJanpad Panchayat or Member of Zila Panchayaf at each poSing station of the concemed constiuency i'n subsequent part orparts of Form 17, 18 and 19 resfiectivefy and comptete and sign the resuS shed' 12. Rule 81 provides for preparation of return of election and declaration of result which is reproduced as under; °S1. Preparation ofroturn ofefectfon and decteraffon ofresult- (1) The Returning Offteer shatl prepare a return ofeleclton to the dfke af- (a) Panchin Form 20 on the basis af result sheet compiled in Form 16; (b) Sarpanch in Form 21 o(i the basis of resuK sheet compited in Form 17; (c) Member of Janpad Panchayat in Form 22 on the basis of fhe resuSsheef compiledin Form 18; (d) Member cfZila Panchayat in Form 23, on the basis of -" theresutsheetcompiledinForm19. and declare the candidate who has received the largest number af vatki votes elected. (2) The retum cf election and deciaratkjn made undersub-mie (1) shallbe subject to the orderpassect by the District Eiectton Offser under;rute 84, ifany. . (3) The Retuming Offker shail send two signed copies cS^vetyfetwn tf'!i3?^ under sub-rule (1) to the District Election Offker who shatl retain ffis offke and send the cthercopylo ihe Commisston foithw'th" 13. Rule 83 for grant ofcertificate tothe returned candidate isreads as under; t "83. Grant ofeertittcate ofa/ecffon to tf»roturned candfdato; As soon as may be after a candidate has been declsrect etected under ruie 81, the Returning Wicer shalt grant to such candktate a ceitifkate of electton in Form 25 and obtain fromthe candidate an acknawtedgement ofSs receipt cfu/y signed by him." Rule 84 empowers the District Election Officer to correct the clerical or arithmetical mistakes or errors which is reproduced as under; "84. Powers af Dislrict Eleetion Offifesr to coireel clerical or arithmetical mistakes or errors.- (1) The District Election Officer may at any time butn^laterthen 15 days fmm the cSay of declaratton afresuK under rufe 81, eithersuo motu orona reportofthe Retuming0fficer,corred, byan order any clerical or arithmetical mistake or error in the resuS sheet in Form 16, 17 , 18 or 19 or in the retum of etectton in Form 20, 21, 22 or 23 as the case may be: ProvsSsd that no cornedion or amendment shall be macfe except after giving a noticeto allcontesting candidates fmmthe ward or constXuency in question, about the date, time amf place for takt'ng up the matterfor such correction. (2) An order passed by the Distnct Elecfion Offtoer under sub-rute (i) shail be in wrSing ancf contain reasons thereforeand acoirected copy of e retum afelection in Form 20, 21, 22 or 23 as the case maybe, duly signed andcertified by the District Electton Officer shal! be senl to the Retuming Officer for grant of certifvate of efecfon fo the candidate declared electedas a result ofsuch correction (3) Nothing in sub-rule (1) shallconfer any pawer orauthorty upon the Distmt Eiectton Officer to open any envetope containing counted baltot papers or to direct re-counting af wries. (4) The certificate of etectton in' Form 25 under rute 83, if already granted by the Retuming Off'cer to a candidate before an order is passed by the District Eiection Officer under sub-mte (i), shallbe deemedto havebeen recalted and cancelled. ^ 14. As already described in the foregoing paragraphs that after voting was over, the Returning OfRcer ordered recount on the basis of some complaint bythe petitioner and the notice of the decision of recount was issued to all the candjdates including the petitioner and respondent No.4and accor,dingly,recount was held on 24.01.2005. After the recount, the petitioner was gh/en certificate of election of Annexure P/5. 4>^si"•-tiit"s!i"iWriilt"Wi IIHEBiiH 15. Learned counselfor the petitioner submits that the District Election Officer has nojurisdiction to entertain the complaint ofthe respondent No.4 and dectarethe recount held on 24.01.2005 as void and the same was done iltegally on exterior considerations vktiich is evident from document of Annexura P/6. He further submits that the result is declared in accordance with rule 81 and certificate of election is granted as per provision of rule 83 when theelection proceedings were over and if any party, aggrieved by the said proceeding, may challenge the same by way of filing election petition ynderSection 122 of the Act 1995 alone. He also submits that no election to any Panchayat can be called into question except by an election petition as perArticle 243 (o) ofthe Constitution oflndia. 16. Article 243 (o) and Section 122 ofAct 1995, are reproduced hereunder; 243-0. Bar to tnteiference hy courts in elwtoral mattws.- Notwifhsfanding anything this Constitulton,- (a)the vatKity of any !aw relating to the delimSalton of consi&uencies or the a/fcfment of seats to such constifuencies, made or puipoiting to be made under srffc/e 243-K, shailnot be calledinquestton inany court: (b) no etectton to any Panchayaf shali be ca/feaf in questton except by an eiection petSton presented to such authority ancf in such manner as is provided for by or under any !aw made by the Legislature sfa State. ° 122. Efectfon petition.-(i) An electton [ x x x] under this Act sl-iallbe ca/fed inquestton onty by a petitton presented in the prescribed manner- (i) in case of Gram Panchayat to the Sub-Divisional Offksr (Revenue); (ii) incaseofJanpadPanchayatiotheCoSector.and ? (iii) in case ofZita Panchayaf to the DMstonal C.ommtssionerancf •" not c^herwise. » (2) No such petitton shall be admSled uniess it is presented wthin thirty days from the date on which the etectiqn [xx^ in questtonwSsnotSecl^ (3)SucA petitton shall be enquired info w disposed of according to such procedures as may beprescribed. i 17. Leamed cpunsel for the petitioner fijrther submits that the conljentign.^oftthe respondents that the orderimpugned hasbeen passed in the exerei^e;fQfi)9Q^ers. under rule 84 is not acceptable firstly on the ground that the ,imp|ignie8gg^lgr| 'itsiM f35"?-"^^ ^'-'1833 MiiMa nowhere mentions that the same is being passed under the said ruleand secondly the powersavailable to the District Election Officer under rule 84 is limited to the extent ofcorrecting clerical or arithmetical mistakesor errors and the same is to be done only aftergiving a notice to all the contesting candidatesTihereas in the present case, no notices were given to the petitioner or other candidates which is evident from the impugned order itself which mentions that there is no necessity of hearing petitioner Chhedilel Ratre. Leamed counsel for the petitioner submits that the validity of the order is to be judged by the reasons so mentioned in the order itself and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise as has been held by the Apex Court in paragraph-8 of the judgment delivered in the matter of Mohinder Slnah GiS and another Vs. The Chief Electlon Commissioiwr. New Delhi and others reported in AIR 1978 SC. 851 . The relevant paragraph-8 ofthe above citation is being reproduced hereinunder; "S. The second equaliy retevant matter is that when a statutory functionafy makes an order based on certain grounds, its valxtity must be judged by the reasonsso mentioned and cannot b e supplemented by fresh reasons in the shape of affidavit or in the beginning may, by the time S comes to couit on accounf of a chaltenge, gef vatidated by addStonat grounds tater brought out. We may here draw attentton to the observatksn of Bose, J. in Gordhandas Bhanji(AfR 1952 SC16) (at p.18)" "PublK orders pubiicly made, in exercise of a statutory authority cannot be construed in the light of explanattons subsequentty given bythe officer making the orcter cf what he meant, or of what was in his mind, or what he intended to cfo. Publicorders made by public authorities are meanl to have publk effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectiyely wSh referenceto the language used in the order tself." Orcfer are nat like old wine becoming betteras fhey grow okier." :H: 18. The petitioner further relies on the judgment delh/ered in the matter of Sohan Lal Ws. Babu Gandhi and offtera reported in f200311 SCC. 108 and submits that afterthe declaration ofthe result, the Returning OfFicer has no ppwer eitherto direct re-count or to change the result ofthe election andonce, the result is declared, the only remedyfor an aggrieved party is an election petition under Section 122ofthe Act. He furthersubmits that respondent No.2, District Election QfReer has no jurisdictionunder rule 84 to pass the impugned order as by the said provision only clerical or arithmetical mistakes or errors can be corrected in the result sheet,in Form 16, U, 18 and 19 or in the retum oftheelectionin Form 20, 21,22 or2aas the case may be and by the impugned order, the order of re-count<h|as been iiiiii.ijiiiiaaaiiai 10 'Bai declared void onthe ground of some enquiry conductect by the District Election Officer in the absence of petitioner. It is ftirther submitted that sub-rule 3 or rule 84 subsequently prohib'rts the District Election Officer from opening any envelope containing counted ballot papers or to direct recounting of votes. Thus, the impugned order of District Election Officer ofAnnexure P/7 and in pursuanceofthe above order.the certificate of election issued to the respondents of Annexure P/8, deserve to be quashed as the same being without jurisdiction. 19. He further contended that as perBlack's Law Dictionary clericat error means, 'an error resuting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and ndtfromjudKial reasoningor determinatton. Among the boundless exampfes of clerical errors are omSting an appendKfrom a document; typing an incorfect number, mistranscnbing a word and faiiing to tog a calt. A court can coirect a clencal error at any time, even afterjudgment has been entered. 20. Placing his reliance on the judgment reported in MR 19S2 Puntab110(V49 C 32) in the matter of Mansha Ram L. JaadiahRai and otiieiy. Vs.Tei BhanL. Gurditta Mal Sahnm and a\soinAIR1959AMlhra Pradesh 95fV46 C 28)in the matter of Bangaru Reddy ancf anot&er, J^s, TheSfato learned counsel for the petitioner submits that the contention ofthe respondents that the order in question was passed exercising povrers under rule 84 is also withoutsubstance declaring order of recount passed by the Returning Officer void and further directing the Returning Officer to declarethe result ignoringthe effectof recount can at no stretch of imagination be held to be cbrrection of clerical or arithmetical errbrs Or mistakes. It is argued that the impugned order has been passed without compliance with the principles of natural justlce affecting the substantial rights ofthe petitioner considerably and on this ground also theimpugned order deserves tobe quashed. Reliance is also placed on the judgment reported in f2004) 2 SCC447 in the case of R/lamiSlal Vs. Stato of M.P. fPara-IOl.Leamed counsel submits that certificateof election granted to the petitioner could not be quashed on the ground of irregularity of recount as pointed out by the District Election OfRcer except in a duty constituted election petition under Section 122 oftheAct. 21. On the other hand, learned eounsel forthe respondents 1 to Ssubmitsthat the impugned order has been passed in the exercis^ of powers conferred as per sub-rule 4 ofrule 84 ofthe Rules 1995 as this rule authorizes the District Election Officer to correct themistakes or errors in the resultsheet and even rflit is assumed that the District Election Officer has wrongly exercised its jurisdictionjit is not open 11 to the aggrieved party to challenge the same by way of writ petition because the remedy available to the petitioner was to challenge it by way of filing election petition under Section 122 of the Act as any result declared under rule 81 of the Rules is subject to the order passed by the District Election OfRcer and grant of certificate of election to the petitioner in Form 25 and 23 shall be deemed to have recalled and cancelled after passing ofthe order under rule 84. 22. Learned counsel for respondent No.4 submits thatthe impugned order of Annexure P/7 has been passed by the District Election Officer in the purported exercise of powersavailable to him under rule 22 read with rule 27 of Rules 1995 which provjdesthe District Election Officer the po\wer of overall directionandcontrol upon the Returning Officers, Assistant Returning Officers and Presiding Officers, Polling Officers and the impugned order has been passed by following the procedure prescribed under rule 84 (4) vAich is well within the jurisdiction of the District Election Offlcer andthe instant petition filed by the petitibner is not maintainable in view of the Article 243 (o) of the Constitution of India and in view of Section 122 of the Act. For the reasons cited in the impugned order, the order