Umakant Sinha v. State Of Bihar — 1981 DIGILAW 61 (PAT)

Judgment BIRENDRA PRASAD SINHA, J. 1. In this application under Arts. 226 and 227 of the Constitution of India a prayer has been made for the issuance of a writ of certiorari quashing Annexure-2, which is an order dated 1st of May, 1978, passed by the Sub-Divisional Officer, Khagaria. By this order, the learned Sub-Divisional Officer, while allowing an application filed by respondent No. 4, rejected the nomination paper of the petitioner for the post of Mukhia of Saur Gram Panchayat. 2. This application was first placed before a learned single Judge of this Court for hearing who, by his order dated 13th April, 1979, referred it to a Division Bench. 3. The short facts leading to this application are these : There is a Gram Panchayat called Saur Gram Panchayat in the District of Monghyr, which was established by notification dated 6.02.1973. Village Korchakka is one of the four villages of the said Gram Panchayat. The petitioner and respondent No. 4 Lakshman Sahani filed their nomination papers for the post of Mukhiya of the said Gram Panchayat. The Election Officer accepted the nomination papers of the petitioner and respondent No. 4. Respondent No. 4 filed an application before the Sub-Divisional Officer objecting to the acceptance of the nomination paper of the petitioner. The Sub-Divisional Officer by the impugned order, dated 1st May, 1978, rejected the nomination of the petitioner, on the ground that it was not in keeping with the entries in the voters list. In his nomination paper the petitioner had described his village as "Gram Panchayat Saur Gram Korchakka". The petitioner thereupon filed a petition of review before the Sub-Divisional Officer who, by his order dated 3rd of May, 1978, set aside his previous order dated 1.05.1978, contained in Annexure-2, and held that the nomination paper filed by the petitioner was valid. This order dated 3rd of May, 1978, of the Sub-Divisional Officer, was challenged by respondent No. 4 in C. W. J. C. No. 1409 of 1978. The said application was admitted on 19th of May, 1978, and the election was stayed. By his judgment dated 11th of August, 1978 Reported in 1979 0 BLJR 430, Madan Mohan Prasad, J., set aside the order dated 3rd of May, 1978, of the Sub-Divisional Officer. The result was that the order dated 1st of May, 1978; contained in Annexure-2, was restored. By his judgment dated 11th of August, 1978 Reported in 1979 0 BLJR 430, Madan Mohan Prasad, J., set aside the order dated 3rd of May, 1978, of the Sub-Divisional Officer. The result was that the order dated 1st of May, 1978; contained in Annexure-2, was restored. The present application was admitted on 19th of August, 1978. The petitioner filed an application under O. VI, R. 17, and Sec.151 of the Code of Civil Procedure on 24th August, 1978, renewing his earlier prayer for quashing Annexure-2 and for staying the election for the post of Mukhiya and to restrain respondent No. 4 from taking oath of the Office of Mukhiya. Notice was issued and respondent No. 4 was restrained from taking oath as well as charge of the Office of Mukhiya. 4. A counter-affidavit has been filed on behalf of respondent No. 4, stating, inter alia, that after rejection of the nomination paper of the petitioner, respondent No. 4 was the only candidate left in the field and as such by operation of law there was an automatic declaration of respondent No. 4 for the post of Mukhiya. It has been further stated that respondent No. 4 was administered the oath of office on 16-8-78 and an intimation to this effect was sent to the District Panchayat Officer by the Block Development Officer for publication of the name of respondent No. 4 in the Gazette. 5. Learned counsel for the petitioner submitted that Korchakka is only a Tola of Village Saur and the nomination of the petitioner could not be rejected on the ground that he had mentioned "Gram Panchayat Saur Gram Korchakka" in his nomination paper. According to him, this could be only an error which should have been ignored by the Election Officer. From the notification constituting the Gram Panchayat, it will appear that Village Korchakka has been mentioned as one of the Tolas of Saur Gram Panchayat. In my opinion, this was not such an error which should not have been ignored by the Election Officer at the time of scrutiny of the nomination papers. On this ground, the nomination paper of the petitioner could not be rejected. 6. In my opinion, this was not such an error which should not have been ignored by the Election Officer at the time of scrutiny of the nomination papers. On this ground, the nomination paper of the petitioner could not be rejected. 6. The real objection which has been raised on behalf of respondent No. 4 is that the writ application itself is not maintainable, because there is an alternative remedy provided under the rules and the petitioner should have filed an election petition challenging the election of respondent No. 4. Learned counsel relied upon a decision in K. K. Srivastava V/s. B. K. Jalan ( AIR 1977 SC 1703 ) and a Full Bench decision of this Court in Ram Naresh Rai V/s. The State ( 1978 BBCJ 677 ) : ( AIR 1979 Pat 130 ). 7. An election held under the Bihar Panchayat Election Rules, 1959 , can be called in question by filing an election petition before an Election Tribunal under R. 70 of the Rules. Rule 70 provides that it cannot be called in question in any other manner on any ground whatsoever other than by an election petition. The question is when an election can be said to have been complete under the rules. According to R. 72 (2), an election petition against a returned candidate can be filed "within 30 days from the date of the declaration of the result of the election". This shows that the limitation for filing an election petition starts running from "the date of the declaration of the result of the election". Rule 27 provides that if on the expiry of the period of filing and disposal of an objection petition under sub-rule (4) of R. 23 the number of duly nominated candidates is less than the number of seats to be filled, the Election Officer shall "declare" all such candidates to be duly elected. Then, R. 55 (1A) provides that "as soon as may be after a candidate has been declared by the Election Officer under the provisions of Rule 27, to be elected; the Election Officer shall grant to such candidate a certificate of election in Form D and obtain from the candidate an acknowledgment of its receipt duly signed by him". This sub-rule (1A) was inserted by an amendment dated 14-10-77. This sub-rule (1A) was inserted by an amendment dated 14-10-77. It shows that it is not a mere verbal declaration required to be made by the Election Officer in proof of a declaration under R.27. The Election Officer, under Rule 27, has to grant a certificate in a form provided under the Rules in proof of a declaration. In the present case no material was placed before us to show that such a certificate was granted to respondent No. 4 by the Election Officer. It was also not shown to us that any declaration was made by the Election Officer declaring respondent No. 4 to be duly elected as Mukhiya under R.27. On behalf of respondent No. 4 it has been only asserted that by operation of law, there was an automatic declaration of respondent No. 4 as a Mukhiya. From the materials on record, the factual position appears to be that no formal declaration was ever made under Rule 27 nor any certificate was granted in Form D under R.55 (1A). As stated above, the election was stayed by this Court in C.W.J.C. No. 1409 of 1978 and the same continued until 11th of August, 1978 Reported in 1979 BLJR 430, when that writ application was disposed of. Any declaration therefore, under R.27 could have been made only after 11th of August, 1978. Nobody says that such a declaration was made after 11th of August, 1978. On the other hand, it was asserted on behalf of the petitioner that no such declaration has been made up-till now. The result is that all the processes of the election were not over. The question is whether any remedy has been provided under the Rules in such a situation. Could the petitioner file any election petition before a declaration had been made under R.27? The answer must be in the negative. In a similar situation I had held in Shahdeo Singh V/s. State of Bihar (1979 Pat LJR 389):( AIR 1980 Pat 20 ) that no remedy is provided under the Rules and no election petition could be filed before any Tribunal. I am not persuaded to take a different view. The case of Shahdeo Singh (supra), was in respect of the election of Sarpanch of this very Gram Panchayat. I am not persuaded to take a different view. The case of Shahdeo Singh (supra), was in respect of the election of Sarpanch of this very Gram Panchayat. Learned counsel for the respondents referred to R.23 (4) which states that any order passed by the Sub-Divisional Officer under this sub-rule shall "subject to any decision to the contrary given by the Election Tribunal on the trial of an election petition calling in question the election, be final". According to him, even such orders which are passed by the Election Officer either rejecting or accepting the nomination paper is subject to a decision given by the Election Tribunal. I am unable to agree with this submission. R.23 (4) has to be read along with R.27. In my opinion, the Tribunal can be approached by filing an election petition only after a declaration has been made under Rule 27. Between the period a nomination paper has been rejected and the date on which a declaration is made under Rule 27, the person aggrieved has no remedy provided under the Rules and he can surely come to this Court under Arts.226 and 227 of the Constitution of India. The two decisions in the case of K.K. Srivastava ( AIR 1977 SC 1703 ) and Ram Naresh Rai ( AIR 1979 Pat 130 ) (FB) (supra), relied upon by learned counsel for the respondents, do not come to his aid in the facts and circumstances of this case. These decisions do not shut the door of the High Court in cases relating to election in such circumstances. Once the process of election is over and a declaration is made under R.27, and a certificate is granted under R.55 (1A), an aggrieved person must go to the Election Tribunal under R.70; but in absence of such a declaration and certificate it cannot be said that he cannot come to this Court under Arts.226 and 227 of the Constitution. In my opinion, therefore, no remedy was available to the petitioner against the rejection of his nomination paper before respondent No. 4 was actually declared elected. That being so, the objection of respondent No. 4 that this writ application was not maintainable, is overruled. 8. I have found above that nomination paper of the petitioner could not be rejected on the ground that he mentioned in his nomination paper "Gram Panchayat Saur Gram Korchakka". That being so, the objection of respondent No. 4 that this writ application was not maintainable, is overruled. 8. I have found above that nomination paper of the petitioner could not be rejected on the ground that he mentioned in his nomination paper "Gram Panchayat Saur Gram Korchakka". That being the position, the order contained in Annexure-2 must be set aside. 9. The result is that this application is allowed and the order passed by the Sub-Divisional Officer, Khagaria, respondent No. 2, is set aside. The authorities should now proceed to hold the election of the Mukhiya in accordance with law. There shall be no order as to costs. M.P.VARMA, J. 10 I agree.