KRJ; SHAN IW.LABH PRASAD SINGH

SUB'-DlVISIONAL OFFICER HILSA-CUM-

RE; TURNING OFFICER AND ORS.

AUGUST 12,1985

'[R.S. ?Al'Hi\K AND SA!lYASACHI MUKHAkJI, JJ.]

Representation of People Act 1951, Section 66 and 67 and Conduct of J::lections Rules 1%1, Rules 64 & 66, Forms 21C, 210 ' . and 22 - - Election - Result - IJeclaration in Form ZlC not made - .

I Cortificate in Form 22 • issued - Election - Whether valid - . c Whether writ petition lies - Whether bar enacted in Article 329

( b) operates againstwrit peti tioci.

I .

The Returning Offiicer after counting of votes announced that ' the petitioner had peen duly elected to Bihar Legislative Assembly from Islamput Constitueney and issued a certificate of election in Form 22 under Rule 66 of the Conduct of Elections

IJ Rules 1961 in 'his favur. However, the declaration in Form 21C was not prepared unde~ clause (a)· of Rules 64 and sent to the required authorities.

The Returning Officer, subsequently .discovered that the ballot papers of one booth had not been counted and after taking into account those votes issued a notice cancelling the election of the petitioner. A declaration in Form E 21C was then prepared eclaring the fourth respondent elected and a fresh ce"tificate in, Form 22 was issued.

' The .petitioner :challenged the e 0lectlon of the fourth respondent under Artic!le 226 of the Constitution. The High Court

I held that the writ ptition was not maintainable because of the F bar imposed by clause 1 (b) of Article 329 and that an election petitiori was the proper remedy.

I In sf, ecial Leave'. Petition to this Court it was contended: (lJ that the petitioner is entitled lo maintai~ the writ petition, since the pr.cess of election was com.>leted as soon as G the C?unting of votes as concluded and certif icaLe of election in Form 22 was grantep. certtfying that the petitioner had been elected and (2) the Re; turning Officer had no power to cancel the election of the petitioner and declare he fou-rth respondent elected.

K.B.PRASAD v. SUB.DIV.OFFICER 533

Dismissing the Special Leave Petition,

llELD:l. When Section 66 of the Representation of the People Act, 1951 provides that the result of .the election shall be declared .in' the manner provided by the Act or the Rules made thereunder, the declaration can be effected in the manner expressed in Rule 64 of the Rules only either in Form 21C or 210, as the case may be. ( 536 B-C]

In . the instant case, the announcement by the Returning Officer that the petitioner had been elected has no legal statWI because the declaration in Form 21C had not yet been drawn up.

Even the grant of the certificate of election in Form 22 cannot . avail because Rule 66 contemplates the grant of such certificate only after the candidate has been declared elected under section

66. [536 c-DJ

2. The Writ Petition cannot be entertained. The process of election came to an end after the declaration in Form 21C was made and the consequential formalities were completed. The bar of clause (b) of Article 329 came into operation thereafter and an election petition alone.was maintainable. [536 E-F]

3. The process of election set forth in the Representation of People _Act, 1951 consists of several stages. and towards the end it requires a declaration of the result of the election. Section 66 of the Act provides that when 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 Ruies made the!'."eunder." Thereafter, under section 67 the result of the election is reported by the- Retunling Officer to the authorities and the declaration is published in the'Official Gazette. [535 C-D]

4. The procedure for declaring the result of the election is set forth in Rule 64 of the Conduct of Election Rules 1961 which provides that the declaration envisaged by the law that a candidate has been elected is the declaration in Form 21C or Form 21D. The declaration in Form 21C is made in a. general election and the declaration in Form 21D. is made when the election is held to fill a casual vacancy. [535 E-H, 536 A]

CIVIL APPELLATE JURISDICTION : Petition for Special Leave to Appeal (Civil) No. 7822 of 1985.·

From the Judgment and Order dated 2.5.1985 of the Patna High Court in c.w.J.C, No. 1265 of 1985.

534 SUPRl!:ME COURT REPORTS [1985] SUPP.2 s.c.R.

R.K. Garg, L.R. Singh, Gopal Singh and A. Sharan for the petitioners.

Jai Narayan Singh, F.S. Nariman, Pramod Swarup, M. Khan, B.P. Singh, Ranjit Kumar and Ravi Prakash for the respondents.

The tallowing orer of the Court was delivered by

PATHAK, J, The petitioner and the fourth respondent contested an election to the Hihar Legi§lative Assembly seat from the Islampur Assembly Constituency in March, 1985. After the votes had been polld; the counting of votes was taken up on March b, 1%5. Pursuant to allegations made by the parties, the Election Commission of India ordered re-polling in sixty stations. On the conciusion of the re-pbll the votes were counted_ and the petitioner was found to have secured more votes than the fourth respondent. The fourth respondent applied for a recount of the votes but the Returning Officer rejected the application and announced that the petitioner had been duly elected to the Assembly. A certifica, te of election in Form 22 under rule 66 of the conduct of Elections Rules, 1961 was granted to the petitioner. It seems that the declaration in Form 21C was not prepared under clause (a) of rule 64 of the Conduct of Elections Rules, 1961 and sent to the authorities required thereunder. The Returning Officer, on discovering that the ballot papers of one booth had not been counted, took those votes into account and thereafter issued a n?tice cancelling the election of the petitioner and declaring the fourth respondent to be successful candidate. A declaration in Form 21C was then prepared declaring the fourth respondent to be the elected candidate, and a fresh certificate in Form 22 was issued.

The petitioner filed a writ petition in the Patna High Court challenging the declaration made in favour of the fourth respondent. A Di vision Hench of two Judges of the High Court heard the writ petition and on a difference between the two the case was referred to a third Judge of the High Court. The third Judge agreed with the view taken by one of the Judges of the IJi vision Hench that the writ petition must fail because of the bar imposed by clause ,(b) of Article 329 of the Constitution 3;-.rf that an ele.ction petition was the proper remedy.

ln this petition for special leave against the majority judgment of tt1e High Court, the only question is whether the bar enacted in clause (b) of Article 329 operates against the writ

K.B.PRASAD v. SUB.DIV.OFFICER [PATHAK, J.] 535

petition. Learned counsel for the petitioner 11rged that the A petitioner is entitled to maintain the writ petition and to contend that the returril.ng officer had no power to cancel the election of the petitioner and declare the fourth respondent elected. It is submitted that the process of election was completed as soon as the counting of votes was concluded and a certificate of election in Form 22 was granted to the petitioner B certifying that he had been elected, and therefore no question arose of the petitioner filing an election petition. What is challenged, says the petitioners, is the declaration by the

returning officer thereafter that the fourth respondent, and not the petitioner stood elected. 'we see no force in this contention.

l'he process of election set forth in the Representation of People Act, 1951 consists of several stages and towards the end it requires a declaration of the result of the election. Section b6 of the Act provide" that when the counting of votes has been completed the Returning Officer must declare forthwith the result

of the election "in the maruier provided in this Act or the rules D made thereunder". Thereafter, under s.67 the result of the election is reported by the Returning Officer to the authorities specified therein and the declaration is published in the Official Gazette. It may be mentioned that according to s.67A of the Act the date on which the candidate' is declared by the Returning Officer under s.66 to be elected is regarded as the date of election of that candidate. Now, as contemplated by s.66 E the declaration of the result of the election must be in the manner provided by the Act or the rules made thereunder. The procedure for declaring the result of the election is set forth in rule 64 of the Conduct of Elections Rules, 1901. Rule 64 provides:-

64. "Declaration of result of election and return of election. The returning officer shall, subject to the provisions of section 55 if and so far as they apply to any particular case, then -

(a) declare in Form 21C or Form 21U, as may be appro- G priate, the candidate to whom the largest member of valid votes has been giVen, to be elected under section 66 and send signed copief: thereof to the appropriate authori.ty, the Election Commission ad the chief electoral oficer; and

(b) complete and crtify the return of election in Form 21E . .and send signed copies .thereof to the Election Commission and the chief electoral officer."

SUPREME COURT REPORTS [1985 J SUPP.2 s.c.R.

It, is pla.in that the declaration envisaged by the law that a A candidate has been eleted is the declaration in Form 21C or Form

210. The .declaration n Form 21C is made in, a general election and the declaration in Form 21D is made when the election is held to fill a casual vacany. It is not settled law that the right to vote, the. right to sand as a candidate for. election and the B entire procedure in relation thereto are created and determined by statute. Accordingly, when s .66 of the Representation of the People Act, 1.951 provdes that the result of the election shall be declared in the manner provided by the Act or the Rules made thereunder, the declaration can be effected in that manner only.

The manner. is clearly, expressed in rule 64 of the Conduct of C Elections Rules, 1961. There is no other manner. There must be a declaration in. Fa.rm . 2.lC or Form 21D. The announcement by the Returning oficer that the petitioner. had been elected has no legal status because the declaration in Form 21C had not yet been drawn up. Even the grant of the certificate of election in Form l2 'to the, petitioner cannot avai~ him because rule 66 contem-· D plates the, grant .of such certificate only after the candidate has been. declared elected under s.66, which refers us back to rule 64 and therefore to Form 21C.

There having been no

dclaration. in Form 21C at the relevant time, the grant of the

crtificae o~ election in Form 22 to the Petitioner was meaningless. • ,.

We are of opinion that. the process of election came to an end after the declarat.:Lon in Form 21C was made and the_ consequential' formalities were completed. The bar of clause (b) of Article 329 0£. the: Constituti0n. came into operation thereafter and an election Petition alone was maintainable. '.fhe writ petition F cannot be. entertained.

Learned counsel fOr the petitioner contends that it was not open to the returning-. -'officer to antedate the Form 21C draWn up by. him by placing on it the date on which he originally announced the result of the election. That is a ground bearing on the merits~ of the dispµte between the parties, which as we have G observed mUst properly_ be the subject of n election petition.

The pe~_ition for special leave fails: and is rejected. ' .

A.P.J.

Petition dismissed