Lakhan Mahto v. State Of Bihar — 1972 DIGILAW 202 (PAT)

Judgment Madan Mohan Prasad, J. 1. This is an application Tinder Articles 226 and 227 of the Constitution of India for issue of an appropriate writ quashing an election in respect of Kaba-Ghosi Gram Panchayat of Hilsa Block in the subdivision of Bihar Sharriff in the District of Patna held on the 22nd of November, 1971. 2. It is said that as per election programme for the general election of the offices of the Mukhiya, Sarpanch, Panches and members of the Executive Committee of the aforesaid Gram Panchayat, nomination papers were to be received on the 26th of March, 1971, and the polling was to be held on the 15th June, 1971. On that date, polling started _at four polling stations. At two of them, at Alipore and Ghosi booths, however, there was an interruption in the election on account of violence. From the polling booth at Alipore, even the ballot boxes had been forcibly taken away while the polling was going on. For this reason, the poll at these two booths was adjourned. On the 30th of October, 1971, a new programme for the adjourned polling was issued; according to which the 16th of November, 1971 was the date fixed for the adjourned polling. It appears, however, that for some reason or the other, the polling was not held on this date, and, it appears that a fresh programme was issued on the 20th November, 1971, according to which the polling was fixed for the 22nd of November, 1971. It is said that the poll held at Alipore was a fresh one, whereas the poll held at Ghosi was an adjourned one. On this date, polling was held and ultimately the result of election was declared, whereby respondents 5 and 6 were elected Mukhiya and Sarpanch respectively. It is said that respondents 7 to 14 were declared elected without any contest either as Panches or members of the Executive Committee. 3. It is said on behalf of the petitioners, who are said to be the electors of the aforesaid Gram Panchayat that on account of the adjournment of the polling from the 16th November, 1971 to the 22nd November, 1971, they had no knowledge of the adjournment date of polling, and, as such, they could not exercise their right to vote. It is said on behalf of the petitioners, who are said to be the electors of the aforesaid Gram Panchayat that on account of the adjournment of the polling from the 16th November, 1971 to the 22nd November, 1971, they had no knowledge of the adjournment date of polling, and, as such, they could not exercise their right to vote. It has been next said that this was done in violation of Rules 17, 31 and 91 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules); and the aforesaid rules being mandatory, the election was a nullity and it ought to be set aside by this Court. 4. "Learned Government Pleader, on the other hand, has contended that in view of the fact that the polling was adjourned on account of violence etc., Rule 50 of the Rules would govern the situation and Rules 17, 31 and 91 have no application to the facts of this case and further that there has been no violation of the requirements of Rule 50 in the present case. Secondly, it has been urged that the petitioners have not availed themselves of the alternative remedy provided by the Act of going to the Election Tribunal under Rule 72 of the Rules, and, for that reason, the petition is not maintainable. 5. I will first take up the question in respect of the maintainability of this application. Learned Government Pleader has placed reliance on a Full Bench decision of this Court in Dilip Kumar Singh V/s. State of Bihar, 1970 Pat LJR 319 = ( AIR 1971 Pat 65 ) (FB). Shambhu Prasad Singh, J. held that it was well settled that where an alternative remedy was open to a petitioner and he did not exhaust that remedy, a court ordinarily should not issue writ in his favour; and that at the same time it was also well settled that in appropriate cases writs might be issued by a High Court where an alternative remedy did exist and had not been availed of by the petitioners. In this connection, the learned Judge has further said that where essential provisions of some statute and of the rules framed thereunder are not followed, there can be no doubt that the High Court, in proper cases, may interfere with such elections by issuing appropriate writs under Articles 226 and 227 of the Constitution. In this connection, the learned Judge has further said that where essential provisions of some statute and of the rules framed thereunder are not followed, there can be no doubt that the High Court, in proper cases, may interfere with such elections by issuing appropriate writs under Articles 226 and 227 of the Constitution. The other two learned Judges of the Full Bench agreed broadly with the propositions laid down. In another Bench decision of this Court in Ram Lochan Mahton V/s. State of Bihar. (1971 BLJR 98), a question arose whether the violation of Rules 18 and 90 resulted in the election being a nullity and further whether, without exhausting the remedy of approaching the election Tribunal the petition could be maintained. Untwalia, J. (as he then was) said as follows:- - "While agreeing generally with what has been said by the learned Chief Justice, I would point out that the powers of Court under Article 226 are wide enough in an appropriate case to interfere in an election matter and hold the election to be void although there was the alternative remedy available to the petitioners under the Rules for challenging the election." It is thus well settled that where the petitioner challenges the election on such grounds as would make the election a nullity on account of violation of certain fundamental provisions of the Act or the Rules, it is open to this Court to interfere. In view of such violation, there would be no election at all in the eye of law, and, therefore, in such a case this Court would interfere even though the alternative remedy of approaching the election tribunal has not been availed of In the instant case, the argument is that the mandatory provisions of Rules 17 and 91 have been violated, and in cases of such violation this Court has interfered with such elections irrespective of the fact of not exhausting the alternative remedy provided for filing an election petition before the tribunal. Four such cases have been brought to my notice. One is a Bench decision of this Court in Bharosa Singh V/s. Sheo Baran Singh, ( AIR 1964 Pat 500 ) where the provision of Rule 17 was held to be mandatory and the election was set aside on account of violation of that rule. Four such cases have been brought to my notice. One is a Bench decision of this Court in Bharosa Singh V/s. Sheo Baran Singh, ( AIR 1964 Pat 500 ) where the provision of Rule 17 was held to be mandatory and the election was set aside on account of violation of that rule. The other three cases are unreported ones of this Court The first one is the case of Ramdeo Prasad Singh V/s. Election Officer, Sarmera Gram Panchayat Elections (C. W. J C. No. 910 of 1971) = (reported in AIR 1972 Pat 438 ) decided by An-war Ahmad, J. on the 18th November, 1971, wherein the violation of Rule 91, which was held to be mandatory, was the ground for quashing the election. The other two decisions in the cases of Janardan Mishra V/s. Janardan Kuer (C. W.J. C. No. 994 of 1971) disposed of on 7-1-1972 (Pat), and of Deo Narain Bhandari V/s. Tek Nath Jha (C.W.J.C. No. 982 of 1971) disposed of on 11-1-1972 (Pat), have been given by Kanhaiyaji, J. The decision given in the former case by Anwar Ahmad, J. was followed by Kanhaiyaji, J. in the latter two cases, and writs were issued quashing the elections. 6. As I have said earlier, the question raised on Behalf of the petitioners is that the mandatory provisions of Rules 17, 31 and 91 have been violated. The three decisions, referred to above, of the learned judges support the proportion in respect of Rules 17 and 91; and, if it were to be found in the present case that the aforesaid two rules have been violated, there would be no escape from the conclusion that on account of the violation of those mandatory rules, the election would be a nullity and this Court would interfere. I am, therefore, not prepared to say that the present application must be thrown out as being not maintainable only on the ground that the petitioners have not taken recourse to filing an election petition before the election tribunal. The objection of the learned Government Pleader on this score cannot, therefore, be accepted. 7. It has been urged on behalf of the petitioners in this case that the fundamental right of the petitioners in respect of their right of franchise which they would have exercised but for the unlawful election has been denied to them. The objection of the learned Government Pleader on this score cannot, therefore, be accepted. 7. It has been urged on behalf of the petitioners in this case that the fundamental right of the petitioners in respect of their right of franchise which they would have exercised but for the unlawful election has been denied to them. In this context, the point which arises and which is decisive is whether there has been a violation of Rules 17, 31 and 91 of the Rules, as strenuously contended by Mr. Sharma on behalf of the petitioners. It is necessary in this connection to indicate the scheme as envisaged by these rules for the purpose of appreciating the arguments put forward by learned counsel. Rule 17 reads as follows:- - "Election programme-- On the eve of each general election or bye-election, the Election Officer shall cause to be published in the office of the Panchayat as also in the office of the Block Development Officer, Anchal Adhikari. Circle Officer, Project Executive Officer of the area an election programme giving the time-table of the different stages of the election, including the date and hour of Poll. The fact that an election programme has been published shall be announced by beat of drum in the different wards of the Panchayat within 48 hours of the publication of the programme." The next rule, namely. Rule 18, deals with the date, place and hours of presentation of nomination and Rule 19 with the scrutiny of nomination papers. Rule 20 deals with adjournment of scrutiny. The other rules thereafter, namely, Rules 22 and 23 also deal with scrutiny, and Rule 24 with withdrawal of candidates. The next few rules also deal with the list of nominated candidates, etc., Rule 30 deals with another topic, that is, time of poll and the next, that is Rule 31 with the selection of polling stations, Rule 31 is as follows:- - "Selection of polling stations-- (1) The Election Officer, and not an officer to whom he delegates his powers under Clause (g) of Rule 2, shall select one or more polling stations, as may be considered necessary by him, for each Panchayat and shall obtain the approval of the District Magistrate thereon. Once approved, the polling stations shall not be changed. Once approved, the polling stations shall not be changed. The Election Officer shall publish the list of the polling stations on his own notice-board as also on that of the Panchayat at least two weeks before the date of actual poll. (2). The Election Officer shall, in writing appoint a Presiding Officer and such number of Polling Officers to assist the Presiding Officer as he thinks necessary. There are other matters in respect of the election which are dealt with by Rules 32 to 49. Thereafter comes Rule 50 which relates to interruption of an election by riot etc. at polling station and provides for the adjournment of the polling and taking an adjourned poll or a fresh poll, as the case may be. It is not necessary to reproduce this rule at this stage, for I will have to deal with it subsequently. We may skip over Rules 51 to 90. In between. Rule 72 provides for calling an election in question by presentation of an election petition before the election tribunal by any candidate or voter. The subsequent rules deal with such petitions and their trial and other matters. Rule 90 provides for a case of election held after a period of six months from the date of filing of the nomination papers. We now come to Rule 91 and that is as follows:- - "Stay of election-- In cases of emergency like outbreak of epidemics, fire, flood, famine, communal riot or maintenance of law and order the District Magistrate may, by an order In writing and similarly the State Government may also, in any of the above cases or for any other reason stated in the order, stay the holding of elections of Panchayats in any local area for such time as they may, in their discretion, consider necessary: Provided that in case such order is passed by the District Magistrate, it shall be communicated within a week of the date of the order, to the Government for their confirmation." It will appear from the scheme of the rules that the initial provisions all relate to what is to be done on the eve of a general election? How is an election programme to be notified? How are the polling stations to be fixed and how is the poll to be taken etc. Rule 50 provides for a case where there is an interruption in the polling. How is an election programme to be notified? How are the polling stations to be fixed and how is the poll to be taken etc. Rule 50 provides for a case where there is an interruption in the polling. In other words, this rule provides for a situation which arises under extraordinary situation. Rule 91 relates to stay of election in case of emergency, though the circumstances differ from each other. It is necessary to say all this, because the Question which arises in the present case is whether Rules 17, 31 or 91 have any application to the facts of the present case. 8 Learned counsel for the petitioners has contended that in respect of the adjournment of the date of poll from the 16th of November to the 22nd of November, 1971. Rule 17 is attracted. The aforesaid rule requires the election programme "on the eve of each general election or bye-election" to be published in a particular manner, and an announcement by beat of drum in the different wards of the Panchayat within 48 hours of the publication of the programme. It requires the publication of the programme in the offices of certain officers etc. In the present case, it is said that there were no 48 hours in between the publication of the programme and the holding of the poll, because it was only on the 20th of November, 1971 that the programme had been published and the poll had taken place from 8 Oclock in the morning of the 22nd of November. I am asked to presume that the publication must have taken place during the working hours of the offices which began at 10-30 A.M. in the morning. It is thus sought to be shown that there was no 48 hours gap in between the two, and for that reason there was a violation of Rule 17. There is no dispute in the present case that the programme was published on the 20th of November and the poll was taken on the 22nd of November, 1971, as alleged. The question, however; arises whether the requirement of beating of drum within 48 hours of the publication of the programme could be a requirement of law in the circumstances of the present case. In other words, whether Rule 17 has any application at all. I must answer the question in the negative. The question, however; arises whether the requirement of beating of drum within 48 hours of the publication of the programme could be a requirement of law in the circumstances of the present case. In other words, whether Rule 17 has any application at all. I must answer the question in the negative. Reading the different provisions, I have no doubt that Rule 17 applies to the programme which is fixed up on the eve of the general election, and I will show hereafter that Rule 50 is a comprehensive and exhaustive rule which deals with a case where there has been an interruption of one process out of many of the election, namely, where there has been an interruption to the polling. To my mind, it is not possible to accept the argument that Rule 17 overrides Rule 50 for the simple reason that where the Legislature has enacted a particular provision to govern a special case, the general provision to that extent stands modified. 9. Rule 50, which has been referred to above, clearly shows that it provides for a case where "the proceedings at any polling station are interrupted or obstructed by any riot or open violence ......... or any other sufficient cause". In such a situation, as appears from the rule, the Presiding Officer at the polling station himself has the right to adjourn the poll to a date to be notified later. It appears next from Clause (b) of Sub-rule (1) of Rule 50 that when such a poll is adjourned, the Election Officer shall appoint the day on which the poll shall recommence. It may also be mentioned that where the poll is adjourned, the voters who have already voted are not allowed to vote again. Sub-rule (2). however, deals with the specific case of an interruption to a poll by taking away the ballot box or boxes from the custody of the Presiding Officer or tampering with it or destroying it etc. It may also be mentioned that where the poll is adjourned, the voters who have already voted are not allowed to vote again. Sub-rule (2). however, deals with the specific case of an interruption to a poll by taking away the ballot box or boxes from the custody of the Presiding Officer or tampering with it or destroying it etc. Clause (b) of this sub-rule also provides that "the Election Officer shall then appoint date or dates for taking a fresh poll and fix the place at which the poll will be taken." It is quite obvious from a reading of Rule 50 that in the circumstances of the present case, it was entirely within the jurisdiction of the Presiding Officer to adjourn the poll and it was equally within the jurisdiction of the Election Officer to appoint a day on which the poll was to be taken either by way of an adjourned poll or by way of a fresh poll. It is, however, significant that so far as an adjourned poll is concerned, he proviso to Clause (b) of Sub-rule (1) of Rs. 50 lays down that the appointment of the day of polling and the fixing of the polling station shall be announced by beat of drum in the different wards of the Panchayat without laying down the requirement of the same being done within 48 hours of the publication. It is not difficult to see why the rule makers have made this distinction. In one case, it is a new election and the requirement relates thereto. In the other case, all concerned know that an election has seen adjourned. It may not have been, therefore, considered necessary to fix a time limit in respect of announcement by beat of drum. In the present case, it has not been asserted on behalf of the petitioners that there was no announcement of the publication of the date of poll by beat of drum. In fact, it appears from the programme (Annexures 2 & 3) that there was a direction for such an announcement by beat of drums, and, in such circumstances, it is not possible for this Court to assume that there was no such announcement. It must be taken that there had been an announcement. In fact, it appears from the programme (Annexures 2 & 3) that there was a direction for such an announcement by beat of drums, and, in such circumstances, it is not possible for this Court to assume that there was no such announcement. It must be taken that there had been an announcement. If, however, it had not been within 48 hours of the time of publication, it would in my view be immaterial because it is not the requirement of law as laid down in Rule 50 that it should have been so done. 10. In view of what T have said above, it follows that Rule 17 has no application to the facts of the present case, and, in the absence of fulfilment of the requirement of that rule, the election cannot be said to be a nullity because Rule 17 has been held to be mandatory in its nature, 11. Now, I come to the second point raised by learned counsel with regard to the violation of Rule 91. A reading of the aforesaid rule makes it clear that it applies to cases of emergency like outbreak of epidemics, fire, flood, famine, communal riot or maintenance of law and order. It is only when such circumstances exist that the District Magistrate may by order stay the election. It has not been said in the present case that the election was not held on the 16th of November, 1971 on any of the grounds mentioned in Rule 91. This rule, therefore, also has no application to the fact(r) of the present case. As I have mentioned earlier while discussing Rule 50, it will appear that in a particular case covered by that rule, it is the Election Officer who is given the rights to appoint a day on which the poll is to be taken. No other provisions in the Rules or the Act have been pointed out to me to show that any other authority in such circumstances had the right to stay the poll and appoint another date. In the present case, it was the Election Officer himself, and that is not in dispute, who had appointed the day of the poll to be taken at both the polling stations at Alipore and Ghosi. In the present case, it was the Election Officer himself, and that is not in dispute, who had appointed the day of the poll to be taken at both the polling stations at Alipore and Ghosi. In either case, whether it was a case of adjourned poll or a case of fresh poll under Sub-rules (1) or (2) of Rule 50, it was the Election Officer who had the right to appoint the date. The question is whether if he had the right to appoint the date of fresh poll or adjourned poll, had he not had the right to appoint another date in supersession of a previous date appointed by him? In my view, the right to appoint the date is not merely limited to the right to appoint initially one day and no other. It will include the right to appoint a "date or to change the date to another. It may be mentioned that the rule making authority has taken care to say in Clause (b) of Sub-rule (2) of Rule 50 that "if any officer other than the Subdivisional Magistrate is the Election Officer, he shall do so with the previous approval of the Subdivisional Magistrate". In the present case, it appears from the annexures fixing the programme that the Subdivisional Magistrate had been consulted and it was in pursuance of his direction that the date of poll, namely, the 22nd of November, 1971, had been fixed. 12. It is quite clear, therefore, that Rule 50 alone governs the situation arising out of an interruption to an actual poll at polling stations and prescribes what is to be done thereafter. In a case of this kind, Rule 91 has absolutely no application, and for that reason any violation of Rule 91 is of no avail to the present petitioners. 13. Learned counsel for the petitioners has drawn my attention to an observation by Anwar Ahmad, J. in Ramdeo Prasad Singhs case, mentioned earlier, to the effect that "no other authority is entitled either under the Act or under the Rules to change the date fixed for holding the election. It is thus clear that the Election Officer had no jurisdiction whatsoever to change the date of election......". The learned Judge was dealing with a case which was not covered by Rule 50. It is thus clear that the Election Officer had no jurisdiction whatsoever to change the date of election......". The learned Judge was dealing with a case which was not covered by Rule 50. It was a case where the programme of an election had been fixed up and the poll was fixed for a particular date, namely, 17th of May, 1971; but a day earlier the Election Officer had stayed the holding of the election. It was not a case where polling had been held and there was any interruption therein; and, for that reason the attention of the learned Judge was not drawn to Rule 50 which enables the Election Officer to fix a date of the adjourned poll. The observations in this case, therefore, are of no avail to the petitioners in the present case. 14. Another point which was half-heartedly raised by learned counsel for the petitioners is that even the requirement of Rule 31 regarding the selection of the polling stations has been violated in the present case. This argument need not detain me, because I have stated earlier that under Clause (b) of both Sub-rules (1) and (2) of Rule 50, the Election Officer has been given the right to fix the polling station as well as the date of the poll. It is not said the polling booths were different from the previous areas. It is difficult in the circumstances to hold that Rule 31 will supersede or override the provisions of Rule 50 which are specifically provided to meet a particular case. There is no escape from the conclusion that Rule 31 has no application to the facts of this case, and the requirements of that rule are immaterial for the purpose of the present case. 15. In the result, I find that there 5s no substance in any of the contentions put forward. The petitioners have failed to show that there has been any violation of any basic law relating to the election, as a result whereof they have been denied the opportunity of exercising their right of franchise. In this view of the matter, this application has to be dismissed; and the same is, accordingly, dismissed. In the circumstances of this case, however, there will be no order for costs.