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PETITIONER: KRISHAN BALLABH PRASAD SINGH

       Vs.

RESPONDENT: SUB-DIVISIONAL OFFICER HILSA-CUMRETURNING OFFICER AND ORS.

DATE OF JUDGMENT12/08/1985

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR 1746            1985 SCR  Supl. (2) 532  1985 SCC  (4) 194        1985 SCALE  (2)1402

ACT:      Representation of  People Act  1951, Section  66 and 67 and Conduct  of Elections  Rules 1961,  Rules 64 & 66, Forms 21C, 21D  and 22  - Election  - Result - Declaration in Form 21C not  made Certificate  in Form  22 issued  - Election  - Whether valid  Whether writ  petition  lies  -  Whether  bar enacted in Article 329 (b) operates against writ petition.

HEADNOTE:      The Returning Officer after counting of votes announced that  the   petitioner  had   been  duly  elected  to  Bihar Legislative Assembly from Islampur Constituency and issued a certificate of  election in  Form 22  under Rule  66 of  the Conduct of  Elections Rules 1961 in his favour. However, the declaration in Form 21C was not prepared under 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 21C  was  then  prepared declaring  the   fourth  respondent   elected  and  a  fresh certificate in Form 22 was issued .      The petitioner  challenged the  election of  the fourth respondent under  Article 226  of the Constitution. The High Court held  that the  writ  petition  was  not  maintainable because of  the bar imposed by clause (b) of Article 329 and that an election petition was the proper remedy.      In  Special   Leave  Petition  to  this  Court  it  was contended: (1)  that the  petitioner is entitled Lo maintain the  writ  petition,  since  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 certifying that the  petitioner had  been elected and (2) the Returning Officer  had   no  power  to  cancel  the  election  of  the petitioner and declare the fourth respondent elected . 533      Dismissing the Special Leave Petition, ^      HELD:1. 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

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the manner  expressed in Rule 64 of the Rules only either in Form 21C or 21D, 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 status 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-D]      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  Rules  made thereunder.’ Thereafter,  under section 67 the result of the election  is  reported  by  the  Returning  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 18  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]

JUDGMENT:      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      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 following order of the Court was delivered by      PATHAK, J.  The petitioner  and the  fourth  respondent contested an election to the Bihar Legislative Assembly seat from the  Islampur Assembly  Constituency  in  March,  1985. After the  votes had  been polled, the counting of votes was taken up  on March  , 1985.  Pursuant to allegations made by the parties,  the Election  Commission of  India ordered re- polling in  sixty stations. On the conclusion of the re-poll 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 certificate of  election in  Form 22  under rule 66 of U 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

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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 notice 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 Division  Bench 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 Division  Bench that the writ petition must  fail because of the bar imposed by clause (b) of Article  329 of  the Constitution  and that  an  election petition was the proper remedy.      In this petition for special leave against the majority judgment of the High Court, the only question is whether the bar enacted  in clause  (b) of  Article 329 operates against the writ 535 petition. Learned  counsel for the petitioner urged that the petitioner is  entitled to maintain the writ petition and to contend that  the returning  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  certifying  that  he  had  been elected, and  therefore /  question arose  of the petitioner filing an  election petition.  What i  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.      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 this  Act or the rules 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 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, 1961. 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 21D,  as may be           appropriate, the  candidate to  whom  the  largest           member of  valid  votes  has  been  given,  to  be           elected under  section 66  and send  signed copies

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         thereof to the appropriate authority, the Election           Commission and the chief electoral officer; and           (b) complete and certify the return of election in           Form 21E  and send  signed copies  thereof to  the           Election  Commission   and  the   chief  electoral           officer. 536 It is plain that the declaration envisaged by the law that a candidate has been elected is the declaration in from 21C or from 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. It is not settled law that  the right  to  vote,  the  right  to  stand  as  a candidate for  election and the entire procedure in relation thereto are  created and determined by statute. Accordingly, when s.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 that manner only. The  manner is  clearly expressed  in rule  64 of  the Conduct of  Elections Rules, 1961. There is no other manner. There must  be a  declaration in  Form 21C  or Form 21D. The announcement by  the Returning  Officer 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 22 to the petitioner cannot avail him  because rule  66 contemplates  the grant  of such certificate only  after the candidates been declared elected under s.66, which refers us back to rule 64 and therefore to Form 21C.  There having  been no  declaration in Form 21C at the relevant  time, the grant of the certificate of election in Form 22 to the Petitioner was meaningless.      We are of opinion that 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  of the Constitution came into operation thereafter and  an election petition alone was maintainable. The writ petition 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 dispute  between  the parties, which  as we  have observed  must properly  be  the subject of an election petition.      The petition for special leave fails and is rejected. A.P.J.                                    Petition dismissed 537