- (1.) An application for recall of our order dated 10.11.2005 has been moved by the State Election Commission. For ready reference, the said order is quoted below: "In this case time was granted to Sri K.P. Singh representing the respondent No. 1, State Election Commission, to obtain instructions. Again by order dated 26.10.2005, further time was granted to Sri K.P. Singh and the case was fixed for today. Today, Sri K.P. Singh has merely produced a letter of the Election Commission dated 13.10.2005, by which the State Election Commission has cancelled the election and its result, which was declared and has ordered re-election. The facts indicated in the writ petition are that the last date for withdrawal of nomination was 7.10.2005. On that date, other candidates withdrew their nominations leaving the petitioner as the sole candidate. The Returning Officer announced the election result by declaring the petitioner elected under Rule 21, and also sent the report to that effect to the District Magistrate. After the declaration of result and sending of the report to the District Magistrate by the Returning Officer, the State Election Commission lost its jurisdiction to cancel the declaration of the result and to order fresh elections and this was possible only by way of an election petition. In support of this, reference may be made to the following two Division Bench decisions of this Court: (1) Smt. Ram Kanti v. District Magistrate, 1995 AWC 1465 and (2) Smt. Shyam Sakhi v. State Election Commission, Writ Petition No. 32421 of 2000 D/d. 7.8.2000. In view of this factual situation which has not been controverted despite time being granted to Sri K.P. Singh, we allow this writ petition and quash the order dated 13.10.2005 passed by the State Election Commission as also the consequential order dated 13.10.2005 (annexure-2 to this writ petition)."
(2.) After hearing learned counsel for the State Election Commission, we had passed a detailed order dated 4.5.2007, which is also relevant and is therefore quoted below: "The learned counsel for the State Election Commission has sought adjournment to patch up shortfall in the pleadings of the affidavit supporting the recall application. We may mention here, that in our order dated 10.11.2005 the recall of which has been sought and which is a very short order, we had specifically relied upon Rule 21. Sub-rule (1) of Rule 21 talks about declaration of result by the Returning Officer when there is only one contesting candidate. Sub-rule (2) of Rule 21 says that after declaration of result, the Returning Officer shall report to the District Magistrate the names of the candidates declared elected. In the writ petition there was specific pleading that the petitioner had been declared elected due to lack of contest, and there was further crucial pleading in the writ petition that the report to that effect had been sent by the Returning Officer to the District Magistrate. Our order dated 10.11.2005 also relies, not on one but on both of these circumstances specifically pleaded in the writ petition, for the purpose of holding by the said order that after such declaration of result, the election could not have been reversed and fresh election could not have been ordered at the level of the District Election Commission, and the only remedy was by way of election petition. In the affidavit supporting the application for recall, which must have been drafted after our order dated 10.11.2005, the Respondent-State Election Commission does not appear to have either read our order or to have read the crucial contents of the writ petition carefully enough to file a proper rebuttal. In the affidavit supporting recall application, the State Election Commission has merely stated that the certificate declaring the petitioner elected had not been issued. Issue of certificate, it would appear, is a formality or clerical act, which has to follow the declaration of the result. The crucial event, after which the matter goes out of the hand of the State Election Commission, is declaration of result of winning candidate by the Returning Officer. If the result had been reported to the District Magistrate as alleged in the writ petition, and not yet denied by the State Election Commission, it would mean that election result had been declared, even though the certificate may not have been issued. In the circumstances, despite the direction of the Hon'ble Supreme Court for early disposal of recall application obtained by the Commission, we are being asked by the same Commission to post pone our decision on the recall application, because of the aforesaid fault on the part of the State Election Commission. In the circumstances, instead of rejecting the recall application, we grant a last opportunity to the State Election Commission to file a supplementary affidavit with necessary pleadings and corroborating the same by copies of necessary records from the office of the District Magistrate as to when and what communication was sent by the R.O. under Rule 21(2). List this case again when this Bench is constituted next."
(3.) Today, Sri K.P. Singh, learned counsel representing the State Election Commission has filed before us a supplementary affidavit of Sri Arun Prakash Dwivedi, the then Returning Officer. It has been admitted in paragraph 5 of this supplementary affidavit that information had been given under Rule 21(2) of the Kshettra Panchayats And Zila Panchayats (Election of Members) Rules,1994 (hereinafter referred to as the Rules in short), by the deponent to the District Magistrate informing the District Magistrate that the writ petitioner was the only surviving candidate after withdrawal of nominations. However, the ground mentioned in paragraph 4 of this supplementary affidavit is, that because of some order of the State Election Commission, it had been decided to postpone the declaration of result even of unopposed candidates from 7.10.2005 which was the last date of withdrawal of nominations, till 25.10.2005 when the results of the contested constituencies were expected to be announced.;