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Dismissing a petition challenging the decision of the State Election Commission and the District Election Officer of Amethi, Allahabad High Court recently observed that the court has to keep in mind while exercising equitable discretionary jurisdiction under Article 226, so as to not interfere if a fact is apparent and the impugned order has done substantial justice in the matter by rectifying the error as that would result in reviving another illegality.

The Division Bench of Justice Saurabh Lavania and Justice Rajan Roy also reiterated a Supreme Court’s decision in State of Maharashtra & ors. v, Prabhu (1994) where the top court said that one of the principles inherent in the exercise of power of discretion is that it should be for the sake of justice. One of the yardsticks for it is if the quashing of the order results in greater harm to the society, then the Court may restrain from exercising the power.

Matter in Brief

The petitioner and one of the opposite parties contested for the election of Zila Panchayat Member for a ward in Amethi. When the election results were declared, the petitioner was held winner and was given election certificate as well, in May, 2021.

However, before the petitioner could take oath, the opposite party submitted a representation to the Assistant Returning Officer stating that votes cast in two booths which were part of the same ward were not included during the calculation of votes.

The Assistant Returning officer rejected the said application. Being aggrieved the opposite party approached the State Election Commission, which ordered the District Magistrate/District Returning Officer to get the facts inquired and to take action in accordance with Rules.

Thereafter, it was found indeed such error had happened. However, after inclusion of the votes cast at aforesaid omitted booths, it was found that the petitioner had secured less votes than the opposite party. Accordingly, a modified result of the election was declared and the certificate of election issued to the petitioner was cancelled. Consequently, the Opposite party also took oath resulting the petitioner’s present plea.

Averments of the parties

Counsel for the petitioner contented that once the result had been declared returning officer became functus officio, therefore, he could not have recalled the certificate of election already issued, that too, without any opportunity of hearing nor could he have issued it in favour of the opposite party. This act was erroneous in law and without jurisdiction, he said.

Whereas, the counsel for the opposite party contended that the election at hand is a 3- tier election and the process of election does not come to an end till the elections to the office of the Chairman, Zila Parishad are held.

Court’s observations

Having heard both the parties, the court observed that the ordinarily, the legal position would be to not interfere in an election matter, once the results have been declared. But it added, “however, we find that on 4.5.2021 itself the petitioner had submitted an application before the A.R.O./R.O. pointing out the error, but, the said officer did not apply his mind to the facts before him. Had he done so, this situation would not have arisen.”.

“It is also a question before us that should we ignore an apparent illegality which has not been rebutted by the petitioner in spite of opportunity before us, and thereby should we revive an illegality by interfering with the order on the grounds asserted by the petitioner’s counsel,” Court added.

Consequently, the Writ Petition has been dismissed.