S.RAFAT ALAM,J. - (1.) IN the instant writ petition the petitioner has prayed for the following reliefs : "(a) issue a writ, order or direction in the nature of certiorari quashing the impugned declaration dated 8.3. 2001 (Annexure -6 to this writ petition) declaring Balwant respondent No. 1 as elected Pramukh Kshetra Panchayat, Bhathat, district Gorakhpur. (b) issue a writ, order or direction in the nature of Mandamus commanding respondent not to administer oath of office to respondent No. 4 for elected post of Pramukh Kshetra, Panchayat, Bhathat district Gorakhpur. (c) issue a writ, order or direction in the nature of Mandamus commanding the respondents to treat the petitioner as validly elected Pramukh of Kshetra Panchayat, Bhathat district Gorakhpur in pursuance of the declaration dated 8.3.2001 (Annexure -4 to this writ petition). (d) Issue any other suitable writ, order or direction which this Hon'ble Court may deem just and proper under the facts and circumstances of the case. (e) Award the costs of this writ petition."
(2.) THE short facts giving rise to the present petition are that the election process for the election of Pramukh and Up -Pramukhs of Kshetra Panchayat in the district of Gorakhpur was set in motion by issuance of notification dated 1.3.2001. As per notified election programme, the nomination papers were to be filed on 5.3.2001 between 11 a.m. to 3 p.m. scrutiny was to be done on 5.3.2001 after 3 p.m. and the last date for withdrawal of nomination was 7.3.2001 between 9 a.m. to I p.m. The date of the poll, if necessary was fixed between 10 a.m. to 3 p.m. on 8.3.2001 and the counting of votes and declaration of result thereafter was to take place after 3.30 p.m. on the same day. Both the petitioner and respondent No. 4 being elected members of Kshetra Panchayat, Bhathat, filed their nominations pursuant to the aforesaid notification dated 1.3.2001 for contesting the election of Pramukh of Kshetra Panchayat, Bhathat. After verification and scrutiny of their nomination papers, they contested the election. Immediately after the polling, counting of votes was taken up. The version of the petitioner is that total 60 votes were cast out of which 13 votes were found to be invalid by the Assistant Returning Officer, hence the same were not counted and thus, only 47 votes which were found valid by the Assistant Returning Officer were counted, out of which 25 votes were polled in favour of the petitioner and 22 votes were cast in favour of respondent No. 4 and on that basis the Assistant Returning Officer, respondent No. 3 declared the petitioner as elected Pramukh of Kshetra Panchayat, Bhathat and also issued declaration in Form -VIII under Rule 29 of Uttar Pradesh Kshetra Panchayats (Election of Pramukhs and Up -Pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as Rules). Consequently, the declaration of result was also communicated to the District Magistrate, Gorakhpur for communicating the same to the State Election Commission and the State Government. However, the fact has seriously been disputed by the respondents and according to them the petitioner was not declared elected as provided under Rule 29 of the Rules and it was only determination of result under Rule 27. Their case is that immediately after determination of pasting of result, a complaint was filed by respondent No. 4 alleging that 12 votes have wrongly been rejected and the Assistant Returning Officer, therefore, forwarded the papers to the District Election Officer who immediately sent for message to the Election Commission along with full details together with the report of the Assistant Returning Officer, the Election Commission thereafter communicated its decision, to the District Election Officer that 13 votes have wrongly been rejected and, therefore, directed the Assistant Returning Officer to count those votes also. Accordingly, those 13 votes were recounted as valid votes under Rule 28, out of which 9 votes were found to be polled in favour of the respondent No. 4 and 4 votes in favour of the petitioner. Thus, the petitioner could secure only 29 votes whereas 31 votes were polled in favour of respondent No. 4. The result was thereafter declared in the presence of the parties and their signatures were also obtained on Form -VIII. The contention of the learned Counsel for the petitioner is that the petitioner having been elected as Pramukh and after issuance of certificate of return in Form -VIII in his favour, the Assistant Returning Officer has no jurisdiction to re -count the invalid votes and make fresh declaration after recounting of invalid votes and therefore, the declaration issued in favour of respondent No. 4 is per se illegal and without jurisdiction. Relying on two Division Bench judgments of this Court in the case of Smt. Ram Kanti v. District Magistrate and others, reported in 1995 AWC 1465, and in the case of Shambhu Singh v. State Election Commission and others, reported in 2000 (4) AWC 2777, it is vehemently contended that after the declaration of result, the election process comes to an end and the Returning Officer becomes officio and has no jurisdiction to direct for recounting of votes as it will amount to reopen the election process.
(3.) WHILE opposing the writ petition Sri B.D. Mandhyan, learned Counsel appearing for the State Election Commission contended that before declaration of result as provided under Rule 29, respondent No. 4 filed objection regarding rejection of 13 votes which was referred to the Election Commission and after the receipt of direction from the Election Commission to count those 13 votes, the ballot papers were recounted whereupon the declaration of result was made in presence of the parties as required under Rule 29. He also submitted that Form -VIII which has been produced by the petitioner was prepared at the stage of determination of result as provided under Rule 27 but before the declaration could be made, recounting was ordered by the Election Commission and, therefore, even if Form -VIII was given to the petitioner, that was of no value unless the result is declared in the manner prescribed under Rule 29 and the same is reported to the District Magistrate, State Election Commission and the State Government.;