Bipin Prasad Singh v. Block Development Officer — 1973 DIGILAW 56 (PAT)

Judgment S.N.P.Singh, J. 1. This application under Articles 226 and 227 of the Constitution raises a question of some importance as to what would happen in case a candidate for election to the post of Mukhiya of a Gram Panchayat dies after his nomination paper has been found on scrutiny to be valid and he has not withdrawn from the election before the actual election takes place. 2. Facts relevant to the question are that there is a Panchayat known as Boaldah Gram Panchayat within the Kochadhaman Block of the Purnea district. The Block Development Officer of Kochadhaman published an election programme fixing different times scheduled for different stages of the election. The last date fixed for filing of nomination paper was the 26th March, 1971 and on the same day scrutiny of the nomination paper was also to be done. On the scheduled date, three persons, namely (i) Baldeb Prasad Singh. (ii) Muzaffar Hus-sain and (iii) Lalmohan Singh filed their nomination papers. The nomination paper of Lalmohen Singh was rejected after scrutiny and the nomination papers of the first two named candidates were found on scrutiny to be valid and they remained in the field for election to the post of Mukhiya of the said Gram Pan-chayat. The 30th March. 1971 was the last date fixed for withdrawal from contest. Of the two above-named candidates neither withdrew and accordingly a list of duly nominated candidates was published under Rule 25 of the Bihar Panchayat Election Rules. 1959 (hereinafter to be referred to as the Rules). The names of both the persons stood in the said list. The 13th April, 1971. was the date fixed for distribution of symbol and. in fact symbol was allotted to the said two candidates for the post of Mukhiyaship. The date for Poll was fixed as the 24th May, 1971. In between the 13th April. 1971 and 24th May, 1971, i.e. on the 14th April, 1971 the first named candidate, namely, Baldeb Prasad Singh died. 3. On the death of Baldeb Prasad Singh, a question arose as to the next step that was required to be taken under the Rules in such circumstances. A reference was made to the Sub-Divisional Officer, Kishanganj for his advice and subsequently to the other authorities under the Gram Panchayat Act for the same end. On the 16th June. 1971. 3. On the death of Baldeb Prasad Singh, a question arose as to the next step that was required to be taken under the Rules in such circumstances. A reference was made to the Sub-Divisional Officer, Kishanganj for his advice and subsequently to the other authorities under the Gram Panchayat Act for the same end. On the 16th June. 1971. the Deputy Director of Gram Panchayats, Bihar, Patna--vide his letter No. 4026 G. P. dated the 11th May, 1971 Communicated through the Sub-Divisional Officer, Kishanganj--vide his letter No. 538 dated the 16th May. 1971 a copy of which is annexed as Annexure 1 to the writ petition, said that Muzaffar Hussain. the remaining candidate should be declared as Mukhiya. Muzaffar Hussain was accordingly declared as Mukhiya. A reference to the aforesaid letter of the Deputy Director of Gram Panchayats, Patna. was also made in the aforesaid declaration. Muzaffar Hussain haying been declared elected as Mukhiya, this petition has been filed by one of the voters of the said Gram Panchayat with a prayer that the declaration of Muzaffar Hussain as the candidate duly elected for the post of Mukhiya of the Gram Panchayat as contained in Annexure 2 be quashed. 4. This matter was initially placed before one of the Hon ble Judges of this Court, who was pleased to refer it to a Division Bench, looking to the importance of the matter involved. That is how this matter is now before this Bench. 5. Mr. Rama Kant Verma appearing for the petitioner submitted that there being no provision under the Rules for declaring a candidate as elected in the event of the death of a candidate who had not withdrawn his candidature and whose nomination had been found to be valid on scrutiny, the declaration made under Annexure 2 was invalid and must be quashed. He made a reference to Sec. 52 of the Representation of People Act (Act 43 of 1951) wherein a specific provision has been made with regard to an eventuality of the nature as has crept up in this case. According to Mr. Verma, therefore, that provision of the Representation of People Act ought to be taken as a guide for deciding the question involved in this petition. Quite apart from it. According to Mr. Verma, therefore, that provision of the Representation of People Act ought to be taken as a guide for deciding the question involved in this petition. Quite apart from it. he submitted that in any event on the death of one of the candidates, after his candidature was found to be valid and only the poll had to take place, the other candidate ought not to be declared as elected on general principles of democracy, namely, that where a candidate is set up by a party, the party cannot be held to have lost the election if the candidate set up by the party died Just before the poll. Mr. Verma, therefore, submitted that the declaration of Muzaffar Hussain as a Mukhiya of the said Panchayat ought to be quashed. 6. Mr. Birendra Prasad Sinha appearing for the State, who is supported by Mr. Mojibul Haque appearing for respondent No. 3 Muzaffar Hussain, submitted that by virtue of Rule 26 of the Election Rules, the declaration made under Annexure 2 was valid and could not be quashed. According to Mr. Sinha, in terms of Rule 26 of the Election Rules, if the number of duly nominated candidate or candidates is equal to the number of seat or seats to be filled, the Election Officer is required to declare all such candidate or candidates to be duly elected to fill those seats. In the instant case, by virtue of the fact that there was one seat of Mukhiya and of the two candidates one having died, the number of duly nominated candidates remaining in the field was equal to the number of the seat to be filled and consequently the declaration made under Annexure 2 was valid and must be upheld. 7. I must frankly confess that the arguments made on both the sides have force. On a deeper consideration of the matter, however. I am of the opinion, that the contention raised on behalf of the petitioner is fit to be accepted for the reasons which I presently state. 7. I must frankly confess that the arguments made on both the sides have force. On a deeper consideration of the matter, however. I am of the opinion, that the contention raised on behalf of the petitioner is fit to be accepted for the reasons which I presently state. The scheme of the Election Rules is that in terms of Rule 22 on the presentation of a nomination paper either for the office of Mukhiya or Surpanch or Punch etc., the Election Officer has to satisfy himself that the name and voter number of the candidate and his proposer duly find place in the voters list and tally with the name and voter number mentioned in the nomination paper. The next stage is the scrutiny of the nomination papers after which the Election Officer takes a decision accepting or rejecting the nomination paper. After nomination paper has been accepted, the candidate whose nomination paper has been accepted is given an option to withdraw his candidature by notice in writing subscribed by himself and delivered by the candidate in person to the Election Officer within the period notified for such withdrawal. After this formality is over the Election Officer is required to prepare a list of duly nominated candidates and cause it to be affixed in some conspicuous place in his office as also in the office of the Panchayat. Then the next stage laid under Rule 26 of the Rules is as under: "Immediately after the expiry of the period for filing and disposal of the objection petition under sub-rule (4) of Rule 23. the Election Officer shall, if the number of duly nominated candidates is equal to the number of seats to be filled declare all such candidates to be duly elected to fill those seats." If however, the number of duly nominated candidate or candidates exceeds the number of seat or seats to be filled, a poll has to take place in accordance with Rules 29 to 51 of the Rules. In terms of Rule 34, each duly nominated candidate has to be allotted a symbol as specified in Schedule II of the Rules. After the polling has taken place, in terms of Rule 54 the counting of ballot papers has to be made and thereafter the name of the duly elected candidate has to be declared and submitted by the Election Officer for publication in the gazette. After the polling has taken place, in terms of Rule 54 the counting of ballot papers has to be made and thereafter the name of the duly elected candidate has to be declared and submitted by the Election Officer for publication in the gazette. Rule 56 is of some importance which deals with by-election. Any casual vacancy in the office of the Mukhiya, members of the Executive Committee, Sarpanch and Panchas has to be filled in by a by-election to which all the aforesaid rules shall apply mutatis mutandis. Sec.13-A of the Bihar Panchayat Raj Act reads as follows:- - "If the Mukhiya or any other member of the Executive Committee is. by reason of his resignation, death or otherwise, unable to complete his full term of office, the vacancy so caused shall be filled by the election or appointment in the manner provided in Sec.10 or Sec.11 as the case may be. of another person; and the person so elected or appointed shall fill such vacancy for the unexpired portion of the term for which such Mukhiya or member would otherwise have continued in office." 8. Now. therefore, on reading the relevant rules and also Sec.13-A of the Act. the position which emerges is like this that after a candidates nomination paper has been found on scrutiny to be valid and accepted, the candidate is given an option to withdraw from the field of election and if he does not withdraw from it and the Election Officer further finds that the number of duly nominated candidates exceeds the number of seat or seats to be filled, a poll has to take place. Therefore when, the stage of taking the poll has been reached and a candidate who has not withdrawn, has died, in my opinion, the only course open is to let the voters elect for themselves as to whether they would prefer to vote for a .candidate, who was dead or a candidate who was alive. If perchance, on the taking of the poll, the dead candidate is elected, it will be a case of casual vacancy and in that event the provisions of Rule 56 of the Rules will have to be applied. If perchance, on the taking of the poll, the dead candidate is elected, it will be a case of casual vacancy and in that event the provisions of Rule 56 of the Rules will have to be applied. As I read the Rules, after the number of duly nominated candidates has exceeded the number of seats to be filled the option no more lies with the Election Officer to drop out any candidate even if a candidate was not serious about the contest or was dead. That stage of dropping out a candidate could only be had so long as the nomination paper had not been duly accepted, but not after that. Once nomination papers are duly accepted and the list of the duly nominated candidates is notified, it no more remains within the competence of the Election Officer to drop any candidate out of the list. The poll has to take place leaving it to the good sense of the voters as to whom they will vote for and if they have exercised their votes in favour of the dead person, the only option left thereafter to the Election Officer is to act under Rule 56 on the happening of a casual vacancy by the death of the person elected who was unable to complete the full term of his office. 9. Now in the instant case, the position is that Baldeb Prasad Singh, one of the duly nominated candidates died when the stage of withdrawal of the nomination paper was past but before the poll took place. In my view, therefore, there was no option left to the Election Officer except to take the poll and to declare the result in terms of Rules 54 and 55 of the Rules. In such view of the matter, in my opinion, the declaration of Muzaffar Hussain as a Mukhiya without taking the poll but on the advice of the Deputy Director of Pancbayats is illegal and incompetent, Annexure 2 must, therefore, be quashed. It is accordingly quashed. 10. Before I close, I may observe that my decision will mean a poll going waste but I cannot help it keeping in view the technical nature of the Election Rules and the lacuna in it, namely, that it does not contain any provision of the nature of Sec. 52 of the Representation of People Act. 11. 10. Before I close, I may observe that my decision will mean a poll going waste but I cannot help it keeping in view the technical nature of the Election Rules and the lacuna in it, namely, that it does not contain any provision of the nature of Sec. 52 of the Representation of People Act. 11. In the result, the application is allowed; but in the circumstances of the case. I make no order as to costs. S.N.P.Singh, J. 12 I agree to the order proposed. On the facts of the instant case, the proper course for the authority was to invite fresh nomination papers for the election of the Mukhiya and then to hold poll in accordance with the provisions of the Act end the Rules. On the facts of the instant case, the authorities were not justified to declare respondent No. 3 duly elected in accordance with the provision of Rule 27 of the Bihar Panchayat Rules.