- (1.) B. S. Chauhan, J. This petition involves a substantial question of law as to whether after declaration of the result by the Returning Officer and issuance of the certificate of declaration in favour of a successful candidate, the Returning Officer has the competence to order for recount of the votes or issue a certificate in favour of any other candidate on the ground that certain votes had not been counted before the declaration of the result.
(2.) THE facts and circumstances giving rise to this case are that the petitioner was a candidate for the post of member of Block Development Committee (hereinafter called the 'b. D. C. ') for Kshetra Panchayat Swar, District Rampur. THE election was held on 23-10-2005 and after the counting of votes, it was found that the petitioner secured 378 votes while the respondent No. 3 Smt. Surja secured only 337 votes and another candidate Geeta could secure only 24 votes. On the basis of this counting, the Returning Officer, respondent No. 2 declared the petitioner successful, and the certificate to that effect dated 26-10-2005 (Annexure-1) as required under the Rules was also issued to her. THE Returning Officer, subsequent thereto, declared the respondent No. 3 as a successful candidate and also issued the certificate to that effect on the same date on the ground that the votes relating to polling booth No. 132 had not been counted and could not be taken into consideration while making the declaration in favour of the petitioner. As after counting all the votes, respondent No. 3 secured 463 votes and petitioner could secure only 414 votes, respondent No. 3 was declared successful. Petitioner filed Writ Petition No. 74495 of 2005 to challenge the certificate issued in favour of respondent No. 3. This Court, vide order dated 8-12-2005 dismissed the writ petition as withdrawn but granted permission to file a fresh petition. Hence this petition. Heard Shri Vivek Prakash Mishra, learned Counsel for the petitioner, Shri P. N. Rai, learned Counsel appearing for respondent Nos. 1 and 2 and Shri Rajendra Singh Parihar for respondent No. 3. It has been submitted by learned Counsel for the petitioner that once the result had been declared, the Returning Officer had become functus officio. He, therefore, had no authority under law to count other votes for any reason whatsoever and declare respondent No. 3 as a successful candidate.
(3.) SHRI P. N. Rai and SHRI Rajendra Singh Parihar, learned Counsel appearing for the respondents have submitted that in order to rectify a factual error, the Returning Officer found it necessary to do so in the interest of justice for holding a fair election, and as the result declaring the petitioner successful had been made inadvertently, the same was rectified by the Returning Officer and hence the petition is liable to be dismissed. We have considered the rival submissions made by learned Counsel for the parties and perused the record.;