Ram Sewak Singh v. State Of Bihar — 1979 DIGILAW 40 (PAT)

Judgment Birendra Prasad Sinha, J. 1. This writ application has been filed by the two petitioners who claim themselves to be voteis of Sona Ahuara Gram Panchayat. The reliefs sought for and as given in paragraph No.52 of the writ application are that (a) the extension of the date of poll from 29.5.1978 to 12.6.1978 was in violation of Rule 17 of the Bihar Panchayat Election Rules, 1959 (hereinafter to be referred as the Rules), and was, therefore, void and without jurisdiction ; (b) that the selection of the polling station was contrary to Rule 31 (i) of the Rules and could not be changed, (c) that the supplementary voters list is illegal and without jurisdiction and that (d) Ordinance No.57 of 1978 is ultra vires the Constitution of India. 2. At the time of argument Mr. Prabha Shankar Mishra, learned counsel for the petitioners, instead of making any of these prayers, challenged annexure 8 to the writ application. Annexure 8 is an order dated 29.6.1978 passed by the Sub-divisional Officer (respondent No.3) directing the Election officer (respondent No.4) to announce the result of the election of the Gram panchayat. Mr. Mishra very imphatically argued that even though no prayer had been for quashing Annexure 8 to the writ application all the foundations have been laid in the writ petition for challenging Annexure 8. He submitted that in that view of the matter he was entitled to challenge Annexure 8. No effort has been made in this connection even for amending the prayer in the writ application. In my opinion since such a prayer has not been made, it is not open to the petitioners to challenge the order contained in Annexure 8 at such a stage and that also without amending the writ petition. Even so I would like to discuss the points raised by Mishra in support of his argument. 3. It would be relevant to give some basic facts before I deal with the arguments advanced on behalf of the petitioners. On 14.4.1978 an election programme had been announced by the Election Officer, according to which, the date of poll was fixed on 29.5.1978. It appears that the date of poll was extended from 29.5.1978 to 12.6.1978. The petitioners filed a writ petition in this Court which was registered as C. W. J. C. No.2032 of 1978. On 14.4.1978 an election programme had been announced by the Election Officer, according to which, the date of poll was fixed on 29.5.1978. It appears that the date of poll was extended from 29.5.1978 to 12.6.1978. The petitioners filed a writ petition in this Court which was registered as C. W. J. C. No.2032 of 1978. It came up for admission before a Single Bench of this Court on 12.6.1978 and was disposed of with certain observations. The relevant observation is quoted below :- "the only point submitted for consideration was that the date of poll has been changed from 24.5.78 to 12.6.78 without observing the provision of Rule 17 of the Bihar Panchayat Election Rules, 1959 . If that is so then a fresh election programme in accordance with rule 17 of aforesaid Rules may be drawn up and issued and the present election of Sona Ahuara Gram Panchayat within the naubatpur Block, district Patna will remain stayed will then. " This order seems to have been received by the Election Officer on 12.6.1978 at 4.15 p. m. Since the polling was to be held between 8 a. m. and 4 p. m. on 12.6.1978, the polling was already over. The Election Officer stayed further action regarding the Gram Panchayat election. Further action in the election was now to announce the result. Thereafter, it appears that one of the parties moved the Sub-divisional Officer (respondent No.3) in this connection and after looking into the relevant papers concerning the election he came to the conclusion that the election had been held after full complying with the provisions of Rule 17 of the Rules. Accordingly, he directed the Election Officer by his order contained in Annexure 8 to announce the results. Consequent upon such a direction the Election Officer announced the result declaring respondent Nos.5 to 12 elected to the various offices of the Gram Panchayat. It was, thereafter, that the petitioners have filed the present writ petition on 4.7.1978 without making any prayer either for quashing Annexure 8 to the writ petition or setting aside the election of the Gram Panchayat. 4 Mr. It was, thereafter, that the petitioners have filed the present writ petition on 4.7.1978 without making any prayer either for quashing Annexure 8 to the writ petition or setting aside the election of the Gram Panchayat. 4 Mr. Mishra submitted that the Respondent, the Sub-divisional Officer had no jurisdiction to sit in appeal over the order of the Election Officer and decide the question regarding requirements of Rule 17 of the Rules, He further submitted that the order contained in Annexure 8 suffers from want of non consideration of relevant materials for finding that Rule 17 had been complied with. The order of the Election Officer was final and it was he alone who was competent to decide if there was any compliance with Rule 17 or not. Learned counsel referred to Rule 2 (g) of the Rules which defines an Election Officer. He submitted that once the Sub-divisional Officer had delegated his powers to any other officer to discharge the functions under the Rules, the Sub-divisional officer becomes funclus officio and in fact is divested of the powers of an election Officer. In support of his argument learned counsel relied upon a bench decision of this Court in Hanuman Mishra and others V/s. Bachan Mishra and others, 1964 BLJR 773, In this case certain presiding officers who had been appointed by the delegated Election Officer, were replaced by the Sub divisional officer. It was held that having regard to the scheme of the the language of the Rules the learned Sub-divisional Officer had no concurrent power for appointment of second set of presiding officers after he had delegated his powers as Election Officer under Rule 2 (g) to another officer and after such officer had already appointed one set of presiding officers. This decision came up for consideration by another Division Bench of this Court in ram Pravesh Prasad and others V/s. Kailash Singh and others, 1968 PLJR 251. The conclusions arrived at in the case of Hanuman Mishra (supra) was not followed by the latter Division Bench. It was held that the Sub-divisional officer was not completely divested of his functions after delegating the same to another authority. The power would not be exercised by the Sub-divisional officer if it came into conflict with the order of the Election Officer. It was held that the Sub-divisional officer was not completely divested of his functions after delegating the same to another authority. The power would not be exercised by the Sub-divisional officer if it came into conflict with the order of the Election Officer. It is well known that the delegated authority by the mere act of delegation does not completely denude itself with his powers. A delegation does not imply a denu dation of power of the authority. I am, therefore, unable to hold that merely because the Sub-divisional Officer had delegated his powers to the Election officer (respondent No.4) he was completely divested of his powers by such a delegation. The question is whether the act of the Sub-divisional Officer ever came in conflict with the order passed by the Election Officer. 5. A counter-affidavit has been filed on behalf. of respondents 1 to 4. In paragraph 8 of the said counter-affidavit it has been stated that the Election officer stayed the election as he did not follow the directions of this Court in c. W. J. C. No.2032 of 1978. In fact the Election Officer had merely stated that further action regarding the present Gram Panchayat Election was hereby stayed. I have stated above that the further action was only to announce the result of the election. Nothing else was to be done. The Sub-divisional Officer after considering as to whether there hail been any violation of Rule 17 or not directed the Election Officer to announce the result. The Election Officer had not given any decision whether Rule 17 has been followed or not. I do not, therefore, understand where is the question of any conflict of jurisdiction between the Election Officer and the Sub-divisional Officer in this case. The Sub divisional officer was competent to give such a direction to publish the results of the election. On this ground also I find that there is no illegality in the order passed by the Sub-divisional Officer contained in Annexure 8. 6. Mr. Braj Kishore Prasad No. II appearing on behalf of respondent no.5 referred to paragraph 5 of the counter-affidavit filed on behalf of respondent no.5 and submitted that no relief could be granted to the petitions for another reason also. It has been stated that petitioner No.1 had obtained an observation from this Court in C. W. J. C. No.2032 of 1978 by playing a fraud. It has been stated that petitioner No.1 had obtained an observation from this Court in C. W. J. C. No.2032 of 1978 by playing a fraud. According to the learned counsel in that writ petition it had nowhere been stated that the date of poll changed and fixed by the District Magistrate had not been published as required under Rule 17. Be that as it may, it is not necessary to go into this question as this writ petition is bound to fail on other grounds also. 7. The petitioners now came after the election has been held. They have not been able to show any substantial injustice done to them. In view of a decision of the Full Bench in the case of Ram Naresh Rai and another V/s. The State of Bihar, 1978 BBCJ 687 the petitioners application cannot be entertained as there is an alternative remedy provided in the Act and the Rules where an election can be challenged. 8. For all these reasons I find that there is no substance in This application. This application, therefore, fails and is dismissed with costs. Hearing fee Rs.150/- payable by the petitioners to the contesting respondent No.5. Application dismissed.