S.S. Chadha, J.
(1) This petition under Article 227 of the Constitution of India seeks the quashing and setting aside the orders dated May 2, 1984 and May 16, 1984 passed by the Competent Authority (Election).
(2) The elections to the Gaon Sabha Nanalcheri were held on December 25,1983. The elections were conducted under the provisions of the Delhi Gram Panchayat Act, 1954 (hereinafter referred to as the Act) and Gram Pacchayat Rules, 1959 (hereinafter referred to as the Rules). Shri J.N. Malhotra was the Returning Officer for Circle 14 (Chhawla) of which Gaon Sabha Nanakheri forms a part. Shri J.P. Sharma, respondent No.6 was appointed as the Presiding Officer for conducting the elections and counting the votes. After the polling had taken place, the ballot boxes were opened by the Presiding Officer, respondent No. 6, in the presence of the contesting candidates or their agents. As a result of the counting, the petitioner secured 133 valid votes and respondent No. 3 secured 132 valid votes.
(3) The Presiding Officer filed in the returns in the prescribed manner and forwarded the same to the Returning Officer. The Returning Officer issued a notice dated December 27. 1983 informing the candidates at the elections that be would re-count the votes of Pradhan of Gaon Sabha, Nanakheri in the interest of justice and fair play at 11 a.m. on December 31, 1983. In the meantime, the petitioner filed a suit in the Court of Shri J.D. Kapoor, Additional District Judge, Delhi and obtained a stay of the recounting of the votes by the Returning Officer. The Returning Officer, however, declared the result on December 31.1983 and declared the petitioner as elected as Pradhan, Gaon Sabha Nanakheri.
(4) Shri Ved Singh, respondent No. 3, who polled one vote less than the petitioner, filed an election petition before Shri L.D. Gupta, who was the Competent Authority (Election) under the Act and the Rules. The election of the petitioner is challenged on various grounds. One of the grounds is that the Returning Officer has declared the ballot paper No. 154 cancelled, notwithstanding the fact that more than 70% mark was in column of the election petition and there was no justification in rejecting the said ballot paper because it is clear that the elector has cast the vote in favor of the election petitioner and the intention of the elector was to cast the vote in favor of the election petitioner. The course] for the parties appearing before the Competent Authority (Election) had agreed to the inspection of ballot paper No. 154. The sealed bag containing the ballot papers was opened in the presence of the parties and their counsel. Shri S.C. Jain, Deputy C.E.O. Delhi Administration was invited for assistance. The first impugned order dated May 2, 1984 says
'VOTENo. 154 found to have been polled in favor of the petitioner.'
(5) The next contention of the election petitioner was with regard to the recounting of the votes. According to the election petitioner, no recounting was done before announcing the result. The matter was heard by the Competent Authority (Election). A, hearing counsel for the parties, the Competent Authority (Election) in the second impugned order dated May 16, 1984 directed that the recounting in the case should be done as decided by the Returning Officer after satisfying himself on the basis of the material then placed before him that recounting was necessary and for that matter gave opportunity to the parties for recounting. The Competent Authority (Election) felt that once a notice for providing opportunity had been given by the Returning Officer, he could not withdraw that opportunity and declare the result without fulfillling the commitment made by him, and this ten amounted to denial of opportunity. The Returning Officer was ordered to complete the process according to law by recounting and preparation of fresh results after giving due opportunity to the parties.
(6) Any dispute arising out of any election has to be referred to the prescribed authority whose decision, subject to the revision by the Chief Commissioner, is final and is not to be called in question in any Court of law. Part Vi of the Rules provides for the election petition. Under Rule 57, the election of a person as Pradhan of a Gaon Sabba etc. of a circle Panchayat can be called in question by an election petition presented in accordance with the Rules and on any of the grounds specified therein. One of the grounds is that the result of the election has been materially affected by gross failure to comply with the provisions of the Act or the Rules framed there under. The election petitioner in para9-A of the election petition has pleaded that there is no justification in rejecting ballot paper No. 154 as it is clear that the elector has east the vote in favor of the election petitioner. The method of recording and casting of vote is provided in Rule 38. An elector has to record his vote on the ballot by putting a cross mark (x) in the space provided against each symbol. Rule 46 provides for the counting of votes by the Presiding Officer. The ballot papers which are declared invalid, are required to be endorsed with the word 'REJECTED' and the grounds of rejection. A ballot paper is invalid and has to be rejected if the cross mark is at such a position on the ballot paper as to render it impossible to co-relate it to any symbol. The dispute is with regard to ballot paper No. 154 which has been found in favor of the election petitioner by the first impugned order.
(7) A already mentioned, the Presiding Officer when declaring a ballot paper invalid has to endorse the word 'REJECTED' and the grounds of rejection. There is no material on the record as to what was the ground of rejection by the Presiding Officer. The Competent Authority (Election) by mere one sentence recorded his finding that vote No. 154 is found to have been polled in favor of the election petitioner. The Competent Authority (Election) does not refer to the ground of rejection given by the Presiding Officer. The Competent Authority (Election) does not meet the ground of rejection. The Competent Authority (Election) does not say that the cross mark is at such a position on the ballot paper so as to render it impossible to co-relate to any symbol. He does not give the circumstances for coming to the conclusion as to why and bow he found ballot paper No. 154 to have been polled in favor of the election petitioner. The ground for election petition is gross failure to comply with the provisions of the Act or the Rules framed there under. The Election Tribunal did not express that the view taken by the Presiding Officer was plausible or possible or whether it was so absurd that it amounted to gross failure to comply with the Rules. I am, thereforee, of the view that the impugned order dated May 2, 1984 is wholly arbitrary and has to be struck down.
(8) Rules 9 provides for the functions of the Returning Officer. The Returning Officer is to perform the functions required to be performed under Chapter Iii and it is his general duty at the election to do all such acts and things as may be necessary of effectively conducting the elections in the manner provided by the Act and the Rules. Under Rules I I, the Returning Officer has to appoint a Presiding Officer for each polling station in the Gaon Sabha. The method of voting is provided in Rule 24 which says that the voting for the election shall be by ballot or by show of hands, as the Deputy Commissioner may direct. The responsibility and jurisdiction for the counting of the votes under Rule 46 is vested in the Presiding Officer. The Presiding Officer with the assistance of the Polling Officer and in the presence of the candidates or one of their agents is required to open the ballot boxes and sort out the ballot papers. It is thereafter that the Presiding Officer has to separate the ballot papers which are admitted as valid from those which are declared invalid, endorsing on the later the word 'REJECTED' and the ground of rejection and then to prepare an account of ballot papers in form No. 14. The Presiding Officer has to count the valid votes given to each candidate and then to prepare and certify the returns in form No. 15. After the returns are received by the Returning Officer, the Returning Officer has to prepare an election return setting forth the result of the election. The declaration of the result is by the Returning Officer under Rule 51. As I have already mentioned, Rule 46 provides for the counting of votes by the Presiding Officer. After counting of the valid votes, the Presiding Officer is to prepare and certify a return in form No. 15. The result is declared by the Returning Officer on the basis of the return in form No. 15 prepared by the Presiding Officer. There is no provision about the recounting of the votes either before the Presiding Officer or before the Returning Officer. The Development Commissioner, Delhi has issued certain guidelines for the Returning Officer in the matter of recounting. These guidelines are stated to be covered by Rule 7 which provides for the superintendence, control and direction of conduct of elections under the general superintendence, direction and control of the Deputy Commissioner. I will assume for the disposal of the present petition that these guidelines are valid. These guidelines only empower the Returning Officer to direct a recount when Returning Officer considers it appropriate and necessary in the interest of justice and fair play. But in this case, the Returning Officer dropped the proceedings for recount and declared the result of the election under Rule 51 declaring the petitioner herein as duly elected. Once the results have been declared under the Rules by the Returning Officer, the Returning Officer becomes functus officio. He has no power or jurisdiction to set aside the resuit declared and to make a recount.
(9) The Competent Authority (Election) has to proceed with the election petition in accordance with the provisions contained in Chapter Vi of the Rules. The Competent Authority (Election) has to consider whether the result of the election has been materially affected by gross failure to comply with the provisions of the Act or the Rules framed there under. The only allegation made in the election petition is that the Presiding Officer accepted the ballot papers which were apparently invalid of about 10-15 persons because there was a thumb mark in the said ballot papers instead of the marking prescribed under the Rules. The jurisdiction to consider whether there was a gross failure to comply with the provisions of the Rules is vested in the Competent Authority (Election). He in the impugned order dated May 16, 1984 directed the Returning Officer to complete the process of recount and to prepare fresh results. There is no power in the Rules with the Competent Authority (Election) to direct the Returning Officer to embark upon a recount after considering afresh the validity or invalidity of each ballot paper.
(10) Accordingly, the petition succeeds and the impugned orders dated May 2, 1984 and May 16, 1984 are quashed. It will be open to the Competent Authority (Election) to pass a fresh order with regard to ballot paper No. 154. Whether or not the Competent Authority (Election) can himself pass an order for the inspection of the ballot papers so as to consider ground No. 9-B of the election petition, I express no opinion. The impugned order dated May 16, 1984 is, however, quashed which directs the Returning Officer to recount the ballot paper and prepare fresh results. On the facts and circumstances, I make no order as to Costs.
(11) Let the records be sent back to the Competent Authority (Election). The parties are directed to appear before the Competent Authority (Election) on 10th December, 1984.