KRISHAN BALLABH PRASAD SINGHversusSUB-DIVISIONAL OFFICER HILSA-CUM-RETURNING OFFICER AND ORS.

        532


A                              KRJ;SHAN IW.LABH PRASAD SINGH
                                             v.
                           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
                                I
                                      -   IJeclaration in Form ZlC not made -
        Cortificate in Form 22 • issued - Election - Whether valid -
.c      Whether writ petition lies - Whether bar enacted in Article 329
        ( b) operates against- writ 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 fav~ur. 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 lectlon of the fourth
                                                            0
        respondent under Artic!le 226 of the Constitution. The High Court
                               I
        held that the writ p~tition was not maintainable because of the
                               1
 F      bar imposed by clause (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 petit~ioner and declare ~he fou-rth respondent
        elected.

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


     Dismissing the Special Leave Petition,                          A

     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,    JI
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 .    c
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        D
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. Sec-
tion 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         F
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.·                                         H

     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.


A         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 or~er 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   poll~d;   the counting of votes was taken up on
    March b, 1%5. Pursuant to allegations made by the parties, the
c   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
D   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
E   thereafter issued a n?tice cancelling the election of the peti-
    tioner 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.
F        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
G   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
H   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 con-
tend 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 comple-
ted 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.
                                                                        c
      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 elec-
tion 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 pro-
cedure for declaring the result of the election is set forth in
rule 64 of the Conduct of Elections Rules, 1901. Rule 64
provides:-
                                                                        F
             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 a~d the
             chief electoral of~icer; and
                                                                        ll
             (b)   complete and   c~rtify   the return of election in
             Form 21E ..and send· signed copies .thereof to the
             Election Commission and the chief electoral officer."
        536              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 ele~ted is the declaration in Form 21C or Form
        210. The .declar·ation ~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 vacan~y. It is not settled law that the right to
        vote, the. right to s~and 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 prov~des 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 ·of~icer 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
        d~claration. in Form 21C at the relevant time, the grant of the
        c~rtifica~e o~ election in Form 22 to the Petitioner was meaning-
        less.      •,.

              We are of opinion that. the process of election came to an
        end after the declarat.:Lon in Form 21C was made and the_ consequen-
        tial' 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 i t 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