Anil Kumar v. State Of Bihar — 1979 DIGILAW 237 (PAT)

Judgment 1. In an application under Article- 226 and 227 of the Constitution of India, these petitioners have prayed for quashing the election of the Municipal Commissioners of the Siwan Municipality which was held on 1st Oct 1977 and the result of the. election was published on 3rd Oct., 1977. 2. The case of petitioner No. 11 was that he was eligible for being candidate for the Municipal Commissioner (see Para No. 10 of the writ petition). It is also stated that petitioner No. 2 was a candidate from ward No. 9, and petitioner No. 3 was a candidate from ward No. 4 (see paras 12 and 13 of the writ petition). In this writ petition, the petitioners have challenged the validity of the entire election of the Municipal Commissioners of the Siwan Municipality which was held on 1st October, 1977. 3. The short point for consideration is : Whether in a case where the entire election of a certain Municipality is being challenged, such a dispute can be decided by the Election Commissioner or not ? 4. In our opinion, the answer must be given in the alternative. The points raised is this case are covered by two Supreme Court decisions in Nanhoo Mal V/s. Hira Mat, AIR 1975 SC 2140 and in R.R. Shrivastava V/s. Bhupendra Kumar Jain, AIR 1977 SC 1703 . In the latter case, the Supreme Court has held that no foundation whatever for thinking that where the challenge is to an entire election then the writ jurisdiction springs into action." The contention of the learned Counsel of the petitioners is that where the entire election of a certain Municipality is challenged, then the forum for agitating such a matter lies before the High Court under Articles 226 and 227 of the Constitution and not before the Election Commissioner under Rule 74 of the Bihar Municipal Election and Election Petitions Rules, 1953 (hereinafter referred to as the Rules). 5. It is relevant at this stage to quote Rule 74 of the Rules which runs as follows : "74. Election petitions :- No election to the office of the Municipal Commissioner, Chairman, Vice-Chairman or President under these rules shall be called in question except by an election petition presented in accordance with this Part". 5. It is relevant at this stage to quote Rule 74 of the Rules which runs as follows : "74. Election petitions :- No election to the office of the Municipal Commissioner, Chairman, Vice-Chairman or President under these rules shall be called in question except by an election petition presented in accordance with this Part". On perusal of Rule 74 of the Rules, it is clear that if anyone desires to challenge the election to the office of the Municipal Commissioner, Chairman, Vice-Chairman or President, then such a challenge can be made only by filing an election petition- before the Election Commissioner. In the present case, these petitioners are challenging the entire election of the Siwan Municipality on the ground of non-compliance with R.7(1) of the Rules. These petitioners have also challenged the validity of the election on the ground of not following Rule 4 of the Rules. While arguing, learned Counsel for the petitioners did not press the case of the petitioners on the ground of non-compliance with Rule 4 of the Rules for the reason that the facts stated in paragraph No. 19 of the petition have been controverted by respondents 1 and 2 in their counter-affidavit in paragraph No. 14. In view of the fact that this is a disputed question of fact, he did not press the invalidity of the election of the Municipal Commissioner of Siwan Municipality on the ground of non-compliance with Rule 4 of the Rules. Then remains Rule 7 of the Rules which runs as follows : "7. Notification for election for Commissioners. (1) For the purpose of constituting the Municipality or re-constituting it on the expiration of the term of office of the Commissioners or under S.386, the District Magistrate shall, by a notification published in the Official Gazette and in the manner laid down in Sec.356, call upon all the wards of the Municipality to select Commissioners in accordance with the provisions of the Act and these rules before such date as may be specified in the notification : Provided that in the case of a general election held on the eve of the expiration of the term of the Commissioners, a notification under this rule shall not be issued more than four months prior to the date on which the term of the Commissioners is due to expire under the provisions of the Act. (2) The District Magistrate may by a like notification, alter the date fixed under sub-rule (1) for reasons to be recorded in the notification. (3) The alteration of the date under sub-rule (2) shall not affect any action taken under the Act and these rules before the date of issue of the notification under the said sub-rule except when the State Government for reasons to be recorded in writing otherwise directs." 6. The grievance of the learned Counsel of the petitioners is that the District Magistrate did not notify in the official gazette to the effect that the voters of all the words of the Municipality were called upon to elect Commissioners before a certain date as specified in the notification in accordance with the provisions of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as the Act) and the Rules. In other words, learned Counsel for the petitioners contends that in the absence of such a notification, the District Magistrate had no authority to hold Siwan Municipal election. In the present case, it is conceded by the learned Advocate General that there was no publication of any notification in the official gazette as laid down in Rule 7(1) of the Rules : The case of the State is that the voters were informed by beat of drum about the election of the Municipal Commissioners. Respondents 3 to 18 have supported the case of the State and in their Counter-affidavit they have stated that the voters had notice about the election of the Siwan Municipality which was held on 1st October, 1977. In our opinion, Rule 7(1) of the Rules is only directory in nature. 7. In this connection, learned Counsel for the petitioners relies on a Division Bench decision of this Court in Parmeshwar Mahaseth V/s. State of Bihar, AIR 1958 Pat 149 . In that case, the Division Bench has held that the High Court can exercise its writ jurisdiction where the entire election of a Municipality has been challenged. This case was considered by a Full Bench decision of this Court in Dilip Kumar Singh V/s. State of Bihar, 1970 0 BLJR 692. The question for decision before the Full Bench was as to whether a party can invoke the writ jurisdiction when an effective remedy is provided under Rule 70 of the Bihar Panchayat Election Rules. This case was considered by a Full Bench decision of this Court in Dilip Kumar Singh V/s. State of Bihar, 1970 0 BLJR 692. The question for decision before the Full Bench was as to whether a party can invoke the writ jurisdiction when an effective remedy is provided under Rule 70 of the Bihar Panchayat Election Rules. It is relevant to quote Rule 70 of the Bihar Panchayat Election Rules which runs as follows : "No election held under these rules shall be called in question in any other manner on any ground whatsoever other than by a petition before the Election Tribunal appointed under these rules : Provided that any candidate or voter aggrieved by the judgement of the Election Tribunal may within thirty days of the said judgement appeal to the District Judge who shall deliver his judgement within six months". On a perusal of Rule 70 of the Bihar Panchayat Election Rules and Rule 74 of the Bihar Municipal Election and Election Petitions Rules, it is clear that both the provisions are identical. While considering Rule 70 of the Bihar Panchayat Election Rules, the Full Bench in Para No. 28 of the report has distinguished the decision in Parmeshwar Mahaseths case, AIR 1958 Pat 149 and has held that Rule 70 of the Bihar Panchayat Election Rules does not refer to election to a particular office as is the case with Rule 82 of the Bihar Municipal Elections and Election Petitions Rules (at present Rule 74 of the Bihar Municipal Election and Election Petitions Rules). Their Lordships have held in the Full Bench that if anyone challenges the validity of the election under the Bihar Panchayat Raj Act, 1947 and the Rules framed thereunder, the only forum to challenge such an election is the Election Tribunal constituted under the rules. In our opinion, the identical provision is in Rule 74 of the Rules. If an election under the Bihar Panchayat Raj Act cannot be challenged by invoking the extraordinary jurisdiction of the High Court except by way of an election petition before the Election Tribunal, we find no reason as to why such a procedure cannot be adopted while challenging an election under the provisions of the Bihar and Orissa Municipal Act, 1922 and the rules made thereunder. Our attention has also been drawn to a Division Bench decision of this Court in Sanjeev Kumar V/s. State of Bihar (Civil Writ Jurisdiction Case No. 2333 of 1977) decided on 13th August, 1979. In that case also, the entire election of Municipal Commissioners of Forbesganj Municipality was challenged. Their Lordships did not interfere with the validity of the election in view of Rule 74 of the Rules. In these circumstances, we are unable to interfere with the entire election of the Municipal Commissioners of Siwan Municipality. 8. We are, however, unable to follow the decision in Parmeshwar Mahaseths case, AIR 1958 Pat 149 (supra) as also a portion of the finding (mentioned in the above paragraph) arrived at by the Full Bench in para No. 28 in Dilip Kumar Singh V/s. State of Bihar, 1970 0 BLJR 692 where Shambhu Prasad Singh, J. has affirmed the correctness of the decision in Parmeshwar Mahaseths case (supra), in view of the two decisions of the Supreme Court in Nanhoo Mal V/s. Hira Mal ( AIR 1975 SC 2140 ) and K.K. Shrivastava V/s. Bhupendra Kumar Jain, AIR 1977 SC 1703 . In the Supreme Court case in K.K. Shrivasteva (supra), the Madhya Pradesh High Court has held that a writ petition is maintainable where the entire election of the Bar Council has been challenged. The Supreme Court set aside the decision of the Madhya Pradesh High Court and has held that merely because an entire election has been challenged, that does not give the High Court the discretion to exercise the writ jurisdiction. Their Lordships of the Supreme Court relied on Rule 31(4) of the Election Rules framed by the Bar Council of Madhya Pradesh which provides as follows : "All disputes arising under the above sub-rule shall be decided by a Tribunal to be known as an Election Tribunal..." Relying on this rule, their Lordships have held that the forum to raise such an election dispute can only be the Election Tribunal in a case where the validity of the entire election of the Bar council has been challenged. Relying on this decision, we hold that Rule 74 of the Rules is wide enough to include an election dispute where the entire election of the Municipality has been challenged. Relying on this decision, we hold that Rule 74 of the Rules is wide enough to include an election dispute where the entire election of the Municipality has been challenged. In a case like this, where the entire election of a Municipality has been challenged, the High Court has no jurisdiction to entertain such a petition while exercising powers under Articles 226 and 227 of the Constitution for the simple reason that such a dispute can only be effectively decided by the Election Commissioner under Rule 74 and not otherwise. Even in a case where the validity of Rule 7 has been challenged such al dispute can be decided by the Election Commissioner. 9. In this connection, Rule 87(1) of the Rules is relevant which runs as follows :- "87. Findings of the Election Commissioner for Municipal Elections. (1) Subject to the provisions of this rule, if in the opinion of the Election Commissioner for Municipal Elections. - (a) the election of a returned candidate has been procured or induced, or the result of the election has been materially affected, by any corrupt or illegal practice; or (b) any corrupt or illegal practice specified in Part I of the First Schedule has been committed in the interests of a returned candidate; or (c) the result of the election has been materially affected by the improper acceptance or, rejection of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper rejection or refusal of a vote or by the rejection of any vote which is invalid, or by any non-compliance with the provisions of the Act, or of the rules, framed under the Act in respect of the election, or by any mistake is the use of any prescribed form; or (d) the election has not been a free election by reason of the large number of cases in which bribery or undue influence has been committed; the election of the returned candidate shall be void. xx xx xx xx Rule 87(1)(c) provides that the petitioner can challenge the election for non-compliance with any provisions of the Act or of the rules framed under the Act in respect of an election. In the present case, these petitioners are challenging the election for non-compliance with R.7(1) of the Rules. xx xx xx xx Rule 87(1)(c) provides that the petitioner can challenge the election for non-compliance with any provisions of the Act or of the rules framed under the Act in respect of an election. In the present case, these petitioners are challenging the election for non-compliance with R.7(1) of the Rules. In our opinion, such non-compliance of any rule can be challenged under Rule 87(1)(c) of the Rules before the Election Commissioner in an election petition and the Election Commissioner has been vested with the power to give a finding in this connection by virtue of Rule 87(1)(c) of the Rules. 10. The facts of the Supreme Court case in Nanhoo Mal V/s. Hira Mal ( AIR 1975 SC 2140 ) are identical with the facts of the present case. The Supreme Court case arose out of a decision of the Full Bench of the Allahabad High Court in Hira Mai V/s. District Magistrate, Etah 1975 0 AllLJ 419. In the Allahabad case, petitioner Hira Mal challenged the validity of the election of the President of a Municipal Board. In this connection, the High Court and the Supreme Court considered Rule 6 of the U. P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1964 (hereafter referred to as the Order which rule is as follows : "6. Appointment of date for nomination, etc. - (1) As soon as may be after the election of members of a board is completed at a general election within the meaning of S.43 of the Act or a casual vacancy occurs in the office of President of a board, the District Magistrate shall, by notification in the official Gazette, appoint for the election to the office of President of the Board; (a) the date for making nomination which shall be a date at least four days after the date of notification; and (b) the date for scrutiny of nomination which shall be the date next following the date fixed under clause (a); and (c) the last date for withdrawal of candidatures which shall be the third day after the date fixed for scrutiny of nomination; and (d) the date on which and the hours during which a poll shall, if necessary, be taken : Provided that the date for taking the poll shall be a date not more than five days after the last date fixed under clause (c). (2) On the issue of notification under sub-para (1), the Returning Officer shall give public notice of the election in Hindi in Form I by affixing a copy of the notice at his office and another copy at the office of the Board and in such other manner, if any, as he may think fit and shall also cause to be despatched by post under certificate of posting a copy of the notice to the last known address of each member." 11. The validity of the election of the President was challenged before the Full Bench of the Allahabad High Court for non-compliance with R.6 of the Order. Rule 6 of the Order provides that if there is a vacancy or a casual vacancy to the office of the President of the Board, the District Magistrate shall appoint certain dates as mentioned in R.6 by publishing a notification in the official Gazette for election to the office of the President of the Board. In that case, such a notification wag not published at the official Gazette. Therefore, relying on sub-rule (1) of Rule 6 of the Order; their, Lordships to the Allahabad High Court held that in view of the fact that there was no publication in the official gazette as required by sub-rule (1) of Rule 6 of the Order, such election was null and void. In other words, their Lordships of the Full Bench of the Allahabad High Court held that Rule 6 of the Order was a mandatory provision and its non-appliance struck at the root of the jurisdiction to hold the election of the Municipality. A similar view was taken by the Division Bench of the Patna High Court in Parmeshwar Mahaseths case, AIR 1958 Pat 149 . Their Lordships at the Patna High Court held that Rule 7(i) of the Rules was a mandatory provision which vested the jurisdiction in the District Magistrate to hold the election. in other words, in the absence of compliance with Rule 7(1) of the Rules, no election could have been held. It is, therefore, clear that the Allahabad views as well as the Patna views were identical. The view of the Allahabad High Court was repelled by the Supreme Court in Nanhoo Mals case ( AIR 1975 SC 2140 ). in other words, in the absence of compliance with Rule 7(1) of the Rules, no election could have been held. It is, therefore, clear that the Allahabad views as well as the Patna views were identical. The view of the Allahabad High Court was repelled by the Supreme Court in Nanhoo Mals case ( AIR 1975 SC 2140 ). Respondents Nanhoo Mal and others in the case before the Allahabad High Court went up in appeal to the Supreme Court against the Full Bench decision of the said Court in Hira Mal V/s. District Magistrate, Etah, 1975 0 AllLJ 419. Their Lordships of the Supreme Court set aside the order of the Full Bench of the Allahabad High Court and held that such an election to the office of the President could be challenged only by filing an election petition under Sec. 43-B (i) of the U.P. Municipalities Act. It is relevant to quote Sec. 43-B of the aforesaid Act which runs as follows :- "43-B. Judicial Officer to decide the question of validity of election to the office of President - (1) No election of the President shall be called in except by an election petition presented in accordance with the provisions of this Act. (2) In election petition may be presented by any member entitled to vote at the election or by a candidate who has been defeated at the election on one or more of the following grounds, that is to say - (a) that the returned candidate has committed any corrupt practice within the meaning of Sec.28; (b) that the nomination of any candidate has been wrongly rejected, or the notification. of the successful candidate or any other candidate who has not withdrawn his candidature has been wrongly included; (c) that the result of the election has been materially affected by - (i) the improper rejection or refusal of a vote, or (ii) any non-compliance with the provisions of this Act or of any rules or orders made under this Act. (3) An election petition shall be presented to the District Judge, or in a district where there is no headquarters of the District Judge, to the Civil Judge, within whose jurisdiction the Municipality to which the election petition relates is situate; xx xx xx xx 12. Rule 87 of the Rules is identical with Sec. 43-B of the U.P. Municipalities Act. Rule 87 of the Rules is identical with Sec. 43-B of the U.P. Municipalities Act. In this case, their Lordships relied on a decision of the Supreme Court in N.P. Ponnuswami V/s. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 . In N.P. Ponnuswamis case their Lordships of the Supreme Court have held that the law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings. In our opinion, Rule 74 of the Rules is quite clear on this point. If anyone wants to challenge any election of a Municipality, such challenge can only be made by filing an election petition before the Election Commissioner under Rule 74 of the Rules and not otherwise. Rule 74 of the Rules applies to a case where the entire election is challenged on the basis of non-compliance with any rule of the Rules. Merely because the entire election has been challenged, a party cannot in voke the writ jurisdiction of the High Court. It is also a settled law that the a law lays down that an election should be challenged in a particular manner, such challenge should be made according to the procedure laid down under the statute. Rule 75 lays down that an election petition can be filed by a candidate or an elector challenging the validity of an election. Rule 75(2) provides that an election petition against a returned candidate shall be presented to the Election Commissioner within fourteen days from the date of the publication in the Official Gazette. It is, therefore, clear that any candidate or voter can challenge the election of any Municipal Commissioner or Chairman or Vice-Chairman or President under R.75 read with Rules 75 and 76 of the Rules. Rule 76 provides that the petitioner may also pray for a further relief to the effect he himself or any other candidate be declared as elected in the event of success. Thus, in our opinion, the rules lay down a complete machinery for filing an election petition where the election of a Municipal Commissioner or Chairman, Vice-Chairman or President of the Municipality is being challenged. 13. Thus, in our opinion, the rules lay down a complete machinery for filing an election petition where the election of a Municipal Commissioner or Chairman, Vice-Chairman or President of the Municipality is being challenged. 13. In this connection, the Supreme Court held in Nanhoo Mals case ( AIR 1975 SC 2140 ) that the election to the office of the President of the Municipal Hoard could be challenge only according to the procedure prescribed by that Act and in no other way. We follow the decision of the Supreme Court and-hold that the election of the entire Municipal Commissioners, cannot be challenged before the High Court in a writ petition while exercising the jurisdiction under Articles 226 and 227 of the Constitution in view of Rule 74 of the Rules which, in our opinion, is an effective remedy provided for challenging any election of the Municipality. In other words, even if the Municipal election is illegal or without jurisdiction, such challenge can only be made by filing an election petition, but not by way of filing a petition under Articles 226 and 227 of the Constitution. 14. The decision in Parmeshwar Mahaseths case (AIR 1958 Pat 141) (supra) is identical with the decision of the Full Bench decision of the Allahabad High Court in Hira Mals case, 1975 0 AllLJ 419 (supra). Both, in Parmeshwar Mahaseths case Rule 7(1) of the Rules and in Hira Mals case Rule 6(1) of the Order were held mandatory. The Supreme Court set aside the decision of the Full Bench of the Allahabad High Court and did not hold that the mere non-publication in accordance with R.8(1) of the Order was fatal to the whole election. In other words, the Supreme Court did not hold that Rule 6(1) of the Order is mandatory in nature. In this view of the matter, we hold that by the decisions of the Supreme Court in Nanhoo Mals case ( AIR 1975 SC 2140 ) and in K.K. Shrivastavas case, AIR 1917 SC 1703, the Division Bench decision of the Patna High Court in Parmeshwar Mahaseths case, AIR 1958 Pat 149 as well as a portion of the judgement of the Full Bench in Paragraph No. 28 in Dilip Kumar Singhs case, 1970 0 BLJR 692 stand overruled. In K.K. Shrivastavas case, it has been held that "where there is an appropriate or equally efficacious remedy, the Court should keep its, hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms". Relying on the decisions, we are unable to accept the correctness of the decision in Parmeshwar Mahaseths case (supra) as well as a portion of the decision in Para No. 28 in Kumar Singhs case, 1970 0 BLJR 692. 15. Learned counsel to the petitioners has also relied on the decisions in the State of U.P. V/s. Mohammad Nooh, AIR 1958 SC 86 , Tata Engineering and Locomotive Co. Ltd. V/s. Assistant Commr. Of Commercial Taxes, AIR 1967 SC 1401 and Baburam Prakash Chandra Maheshwari V/s. Antarim Zila Parishad, Muzaffarnagar, AIR 1969 SC 556 . In these decisions, their Lordships have held that a petitioner is entitled to involve the extraordinary jurisdiction of to High Court under Articles 226 and 227 of the Constitution even if there is an efficacious and alternative remedy available to the petitioner. These decision have also held that if a Tribunal or an inferior court commits any illegality, it is the duty of the High Court to powers to issue a writ of certiorari to quash the same in order to correct the decision of the inferior court and the Tribunal. We respectfully accept the correctness of the ratio laid down in those decisions. In the present case, we are concerned with a question whether an extraordinary jurisdiction under Article 229 of the Constitution can be exercised in an election case where an alternative and efficacious remedy has been provided for deciding a dispute in connection with the election. The answer must be given in the negative. In such a case, the High Court should not exercise its extraordinary jurisdiction. This view is being supported by the Full Bench decision in Dilip Kumar Singh V/s. State of Bihar (1970 BLJR 692) : ( AIR 1971 Pat 95 ). In that case, their Lordships were called upon to lay down a correct interpretation of Rule 70 of the Bihar Panchayat Election Rules, 1959. Their Lordships have held that if anyone challenges any election of Gram Panchayat, the only forum is the Election Tribunal. In that case, their Lordships were called upon to lay down a correct interpretation of Rule 70 of the Bihar Panchayat Election Rules, 1959. Their Lordships have held that if anyone challenges any election of Gram Panchayat, the only forum is the Election Tribunal. Their Lordships have further held that where an election of Gram Panchayat is being challenged, a writ petition is not maintainable. 16. In the result, the application is dismissed. The parties shall bear their own costs.