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2009 DIGILAW 1209 (PAT)

Sanjay Das v. State Of Bihar

2009-09-09

RAMESH KUMAR DATTA

body2009
JUDGEMENT 1. All the writ applications raise the common issue pertaining to the power of the State Election Commission to cancel the election of Pramukh/Up-Pramukh of a Panchayat Samiti in a special meeting convened by the Sub-Divisional Officer on the ground that the State Election Commission was not informed about the vacancy and no direction sought from it for proceeding to fill up the vacancy by holding election for the said post and accordingly they have been heard together and are being disposed of by this common order. 2. The facts of the cases lie within a narrow compass. 3. In all the writ petitions the offices of the Pramukh and/or Up-Pramukh became vacant due to the resignation of the said office bearers or their removal from the said office by motion of No confidence. After the vacancies arose it is alleged that a notice in Form 24 was issued by the respondent Sub-Divisional Officer under Rule 87 of the Bihar Panchayat Election Rules convening a meeting of the Panchayat Samiti concerned. In the said meeting the petitioners were elected or granted certificates and took oath of their respective offices. The matter was communicated to the District Magistrate-cuim-District Election Officer who reported the matter to the State Election Commission. Subsequently by the impugned orders the said elections were cancelled on the ground that the Election Commission was not communicated about the vacancy and no direction was taken from it for holding fresh election on the post of Pramukh/Up-Pramukh and fresh elections were called for. Aggrieved by the said orders issued by the State Election Commission cancelling the elections of the petitioners on the posts of the Pramukh/Up-Pramukh and directing the holding of fresh elections to the said offices the petitioners came to this Court. 4. Learned counsel for the petitioners submit that under Rule 87 of the Bihar Panchayat Election Rules power has been conferred upon the Sub-Divisional Officer to fix the date, time and place for holding a meeting of the Panchayat Samiti for the election of Pramukh and Up-Pramukh and the information with regard to it has to be given to the members in Form 24. Thereafter on the date fixed the meeting is held under the Chairmanship of the Sub-Divisional Officer as laid down in Rule 88 and it is open to the interested candidates from among the directly elected members to file their nominations and after scrutiny of the nominations the election takes place either uncontested if there is only one candidate for one post or on a contest by secret ballot. In a case of contest the entire process commencing from the filing of nominations to the counting and declaration of results is to be conducted under the Chairmanship of the Sub-Divisional Officer who also gives the elected candidate a certificate in Form 22 for such election. It is thus submitted by learned counsel for the petitioners that in view of the fact that the elections have been conducted in terms of the statutory rules by the statutorily authorized officer, namely, the Sub-Divisional Officer and the certificates regarding the election have also been issued, hence valuable rights have accrued in favour of the petitioners on the basis of such election and the said election can only be challenged by filing an election petition under Section 137 of the Bihar Panchayat Raj Act, 2006. It is submitted that under Section 137 of the said Act the election to any office of the Panchayat shall not be called in question except by an election petition as prescribed and further under Section 138 of the Act there is a bar to call in question any election to any Panchayat except by an election petition presented to the prescribed authority. It is submitted that the said bar flows from Article 243-O(b) of the Constitution which contains a similar bar. 5. It is the further contention of learned counsel for the petitioners that the only ground on which respective elections of the petitioners have been set aside is that the State Election Commission had not been informed about the vacancy and no direction was taken from it for filling up the same by the Sub-Divisional Officer. It is stated that the State Election Commission could not have acted on the said ground. The same would be covered by the provisions of Section 139(1)(d)(iv) which provides that one of the grounds for declaring an election of the returned candidate to be void is non-compliance of the provisions of the Act or the Rules made thereunder. It is stated that the State Election Commission could not have acted on the said ground. The same would be covered by the provisions of Section 139(1)(d)(iv) which provides that one of the grounds for declaring an election of the returned candidate to be void is non-compliance of the provisions of the Act or the Rules made thereunder. It is thus argued that on the said ground being available to the aggrieved party against the election of the petitioners their only remedy is before the Election Tribunal by filing election petition. 6. It is further argued by learned counsel that the State Election Commission is a creature of statute and its powers and functions are those defined by the statute and under Section 136(2) of the Act the only power conferred upon it is to decide a question as to whether a member of Panchayat was before election or has become after election subject to any of the disqualification mentioned in sub-section (1) of Section 136 of the Act. It is urged that the present matter does not at ail relate to disqualification for membership of the petitioners rather the same pertains to their election in which allegedly proper procedure has not been followed and thus the State Election Commission had no jurisdiction to interfere with the same; being a Tribunal of limited jurisdiction it had no power to interfere except on the grounds referred to in Section 136 of the Act and thus it has no jurisdiction unless it is shown on the face of it. In this regard learned counsel rely upon the decision in the case of Anisminic Ltd. Vs. Foreign Compensation Commission and Another, (1969)2 A.C. 147, at page 197 of which the following observation of the Court of Appeal in Rex Vs. Shoreditch Assessment Committee, Ex. parte Morgan, (1910)2 K.B. 859 was quoted:- "It is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure-such a tribunal would be autocratic, not limited..." 7. Shoreditch Assessment Committee, Ex. parte Morgan, (1910)2 K.B. 859 was quoted:- "It is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure-such a tribunal would be autocratic, not limited..." 7. It is also the contention of learned counsel that Rule 121 of the 2006 Rules which lays down that if any post of any Panchayat is vacant then the District Election Officer shall inform the State Election Commission and the Commission shall take steps for filling up the vacant post in accordance with the Act and the Rules only relates to a general election and not with respect of filling up of posts like that of a Pramukh/Up-Pramukh of Panchayat Samiti by the directly elected members of the Panchayat Samiti. It is submitted that in any case the power of fixation of date under Rule 87 is vested in the Sub-Divisional Officer and thus a mere failure to report the vacancy to the State Election Commission amounts only to a formal non-compliance of the Rules and does not go to the root of the matter since only fixation of date is involved; in the said circumstances the matter was fit to be agitated in an election petition and not by raising the same before the State Election Commission for its cancellation. 8. It is urged by learned counsel that the authority of the State Election Commission to act is only confined to the stage from the issuance of notification to the final declaration of results. Once the results are declared then the State Election Commission becomes functus officio. It will thus have no authority to at all interfere with the results of the election and the only remedy before the aggrieved persons is to approach the Election Tribunal by filing an election petition. 9. Learned counsel also rely upon the provisions of Section 46(3) of the Act which provides that the Sub-Divisional Officer shall fix the date of the first meeting of the Panchayat Samiti after its constitution and in such meeting the election of Pramukh Up-Pramukh takes place and in subsequent elections on account of vacancies arising also the same procedure has to be followed and the Election Commission has no role to play in fixation of date. 10. 10. It has also been argued by learned counsel that Rule 121 does not provide for any penal consequence for its non-compliance and thus the same is only a procedural matter directory in nature and the election cannot be annulled for its non-compliance. In this regard learned counsel rely on the decision of the Supreme Court in the case of Jagan Nath Vs. Jaswant Singh : AIR 1954 SC 210 , paragraph 7 of which is quoted below:- "7. The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it. It is arways to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected." 11. It is submitted that in the present matter the further reinforcing factor is that the S.D.O. who is the authority under the statutory rules for the purpose of fixation of date, etc. and to preside over such meeting for election of Pramukh/Up-Pramukh, is not a person like other Government Officials and thus his action cannot be straightaway set aside by the Election Commission after the declaration of results. 12. and to preside over such meeting for election of Pramukh/Up-Pramukh, is not a person like other Government Officials and thus his action cannot be straightaway set aside by the Election Commission after the declaration of results. 12. It is also argued that even if the order of the S.D.O. declaring the petitioners as elected was void, the same being by the de facto authority under the Act and the Rules would continue to be valid unless it is set aside by a competent court and not by the State Election Commission. 13. It is also one of the grounds that for the fault of the officials the elected candidate and the members of the Panchayat Samiti cannot be penalized and if at all action has been taken the same must be taken against the erring officials since the election has already taken place. In support of this proposition learned counsel rely upon a decision of the Supreme Court in the case of State of Punjab and Others Vs. Gurdev Singh, (1991)4 SCC 1 . In paragraph-8 of the said decision it has been held as follows:- "8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. In Smith Vs. East Elloe Rural District Council Lord Radcliffe observed: (All. ER p. 871) "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." 14. Learned counsel also rely upon a Circular dated 11.8.2006 issued by the State Election Commission which provides detailed guidelines and it is submitted that after the present elections the Circular has not been followed and the authorities have not acted in terms of the delegation made therein. Learned counsels refer to paragraph-6 of the said Circular in which the State Election Commission has stated that after the declaration of result of election an election petition is the only remedy. Learned counsels refer to paragraph-6 of the said Circular in which the State Election Commission has stated that after the declaration of result of election an election petition is the only remedy. It is thus argued that the action of the Commission is contrary to its own views in the matter and the Circular issued by it in this regard. It is further argued by learned counsels that in the present matter the State Election Commission is coram non-judice and even a right decision given by a wrong forum has no existence in the eye of law. 15. Learned counsel also rely upon the decision of the Supreme Court in the case of N.P. Ponnuswami Vs. Returning Officer, Namakkal : AIR 1952 SC 64 in which it has been held that when a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of; and urge that since the Bihar Panchayat Raj Act, 2006 provides for only one remedy, that remedy being an election petition after the election is over, therefore, it was not open to any authority much less the State Election Commission to interfere with the results of the election. 16. Learned counsel also rely upon the decision of the Supreme Court in the case of Jyoti Basu and Others Vs. Oebi Ghosai and Others : AIR 1982 SC 983 , in paragraph 8 of which it has been held as foilows:- "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straightjacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self- contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the fourcorhers of the statute. What does the Act say?" 17. It is thus submitted that on the declaration of election results no other remedy except an election petition is available to the aggrieved person and considerations of equity or public policy have no role to play. For the said proposition reliance has also been placed upon a Constitution Bench decision in the case of Mohinder Singh Gill and Another Vs. It is thus submitted that on the declaration of election results no other remedy except an election petition is available to the aggrieved person and considerations of equity or public policy have no role to play. For the said proposition reliance has also been placed upon a Constitution Bench decision in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner and Others: AIR 1978 SC 851 and thus any action except by filing election petition would be contrary to the provisions of the Act and the Rules. 18. The other submission of learned counsel for the petitioners is that the State Election Commission has acted in the matter either on the report of the District Magistrate- cum-District Election Officer or on the complaint of certain members. Since valuable rights have accrued in favour of the petitioners the same cannot be interfered with behind the back of the petitioners and the impugned orders ought to be quashed on this ground alone that there has been no compliance of the rule of audi alteram partem forming part of the principles of natural justice, as no opportunity not to speak or reasonable opportunity of being heard was given before setting aside the election. In support of the said proposition reliance has been placed upon a decision of the Supreme Court in the case of Uma Baliav Rath Vs. Maheshwar Mohanty and Others: AIR 1999 SC 1322 , in paragraph-5 of which it has been laid down as follows:- "5. In the communication made by Shri S.R. Bommai, he had leveled an allegation against the appellant to the effect that the Form-B produced by him was fraudulent and that respondent No. 1 was the official candidate. The charge made to the Election Commission against the appellant by Shri S.R. Bommai was a serious charge. The least that was expected of the Election Commission, before passing the order on 1.2.1995 was that the appellant be put on notice. That was not done. The Election Commission was exercising its guasi-judicial powers and was obliged to follow the principles of natural justice. The revisional order dated 25th January, 1995 was "reviewed" by the Election Commission on 1st February, 1995, behind the back of the appellant, without putting him on notice or giving him any opportunity to have his say. It was not a proper course to adopt. The revisional order dated 25th January, 1995 was "reviewed" by the Election Commission on 1st February, 1995, behind the back of the appellant, without putting him on notice or giving him any opportunity to have his say. It was not a proper course to adopt. In dealing with a matter like this, the Election Commission is obliged to follow the principles of natural justice, to the extent applicable, before passing any order. There has been clearly a breach of fair play in action in this case. This is yet another reason for us to agree with the High Court that the order of the Election Commission dated 1st February, 1995 was illegal and without jurisdiction." 19. Further reliance has also been placed for the said proposition upon a Supreme Court decision in the case of Nawabkhan Abbaskhan Vs. State of Gujarat: AIR 1974 SC 1471 , in paragraph-20 of which it has been held as follows:- "20. We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent Court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid. The French Jurists call it L inexistence or outlawed order (p. 127 Brown "and Garner, French Administrative Law) and could not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal." 20. It is thus urged that a de facto election on the basis of notice issued by the statutorily authorized official, namely, the S.D.O. and under his Chairmanship was held, the results were declared and certificates were issued, then such valuable rights which have accrued could not have been taken away from the petitioners behind their back. 21. It is thus urged that a de facto election on the basis of notice issued by the statutorily authorized official, namely, the S.D.O. and under his Chairmanship was held, the results were declared and certificates were issued, then such valuable rights which have accrued could not have been taken away from the petitioners behind their back. 21. It is lastly pointed out by learned counsel for the petitioners that since 1950 the Election Commission of India has not set aside any election in the manner as has been done now by the State Election Commission. 22. Learned counsel for the State Election Commission and the other contesting respondents, on the other hand, submit that it is evident from the materials on the record that the S.D.Os. concerned in the present matters never intimated regarding the vacancies that had occurred on the posts of Pramukh/Up-Pramukh even to the District Magistrate and thus they could not in turn inform the State Election Commission regarding the vacancies which is a statutory duty to be performed by them under Rule 121 of the Bihar Panchayat Election Rules, 2006. It is submitted that the State Election Commission is the only authority which can direct for filling up the vacant posts in any Panchayat Samiti including that of Pramukh/Up-Pramukh of the Panhayat Samiti and in this regard it occupies the same position as the Election Commission of India in the matter of elections to Parliament and State Legislatures. It is submitted that under Rule 121 of the Bihar Panchayat Election Rules a duty has been cast upon the District Election Officer to inform the State Election Commission regarding the existence of vacancy relating to any post in the Panchayat Samiti and thereafter it is proper for the State Election Commission to take steps for filling up of the vacancy in accordance with the provisions of the Act and the Rules and orders issued thereunder. 23. 23. Reference is also made by the learned counsel to the provisions of Section 40 (1)(b) and (4) of the Act which lays down that any subsequent vacancy caused to any office of the Pramukh/Up-Pramukh can be filled up by the election among elected members of the Panchayat Samiti and further that such filling up of vacancies and determination of disputes relating to such election shall be in accordance with such Rules and procedures prescribed by the State Election Commission, Learned counsel also submit that the entire conduct of election, as has been provided both in the constitutional provisions and the Act and the Rules made thereunder, has to be under the superintendence, control and supervision of the State Election Commission and unless the elections are conducted under such superintendence, control and supervision of the State Election Commission they cannot be considered as elections in the eye of law. In support of the said proposition learned counsel rely upon a Constitution Bench decision in the case of Kishan Tornar Vs. Municipal Corporation of the City of Ahmedabad and Others : (2006)8 SCC 352 , in paragraphs 22 to 28 of which the Supreme Court has held of which the power of the State Election Commission in respect of conduct of election to the Panchayat and Municipal bodies is the same as that of the Election Commission of India with respect to the elections for Parliament and State Legislatures. 24. It is submitted that once the Sub- Divisional Officer exercise power in the matter under Rule 87 dispensing with the requirement of acting under the superintendence, control and direction of the State Election Commission, such an election is not a valid election in the eye of law rather it is void and the State Election Commission on learning about the same would be well within its power to cancel the so-called election. 25. It is further submitted that such an election right from its origin is void as the same did not originate from the State Election Commission which did not even have any information about the holding of the meeting and thus no statutory election for the post of Pram ukh/Up-Pramukh could be taken to have been held. 26. 25. It is further submitted that such an election right from its origin is void as the same did not originate from the State Election Commission which did not even have any information about the holding of the meeting and thus no statutory election for the post of Pram ukh/Up-Pramukh could be taken to have been held. 26. It is also submitted by learned counsel for the respondents that the provisions of Section 139(1)(d)(iv) of the Act provides for setting aside of the election by the Election Tribunal on the ground of non-compliance of the procedure prescribed which goes to the root of the election itself. The said provision according to learned counsel would only come into operation when the process of election started validly and thereafter certain illegalities and irregularities committed during the course of such election and not in a case like the present one when no election was set in process by the authorized constitutional and statutory body, namely, the State Election Commission. 27. Having considered the rival sub-missions I am inclined to accept the sub-missions of learned counsel for the respondents. The relevant provisions of the Act in this regard, namely, Sections 40(1)(b) and (4), 129, 137(1), 138(b), 139(1)(d)(iv) and 144 are quoted below: "40. Election of Pramukh and Up- Pramukh.- (1) Under the supervision, control and direction of the State Election Commission: (b) If any subsequent vacancy is caused in the office of Pramukh or Up-Pramukh, the elected members of the Panchayat Samiti shall elect another member from among themselves to be the Pramukh or Up-Pramukh as the case may be: Provided that no such election shall be held if the vacancy is for a period of less than one month. (4) The election of Pramukh and Up-Pramukh, filling up of vacancies in the said offices and determination of disputes relating to such election shall be in accordance with such rules or procedure as may be prescribed by the State Election Commission. 129. (4) The election of Pramukh and Up-Pramukh, filling up of vacancies in the said offices and determination of disputes relating to such election shall be in accordance with such rules or procedure as may be prescribed by the State Election Commission. 129. District Election Officer (Panchayat), Returning Officer, Presiding officer, etc, deemed to be on deputation to State Election Commission.- The District Election Officer (Panchayat), Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer related with election work of rural local bodies and any police officer designated for the time being by the State Government, for the conduct of such election shall be deemed to be on deputation to the State Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the result of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the State Election Commission. 137. Election Petition.-(1) The election to any office of a Panqhayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed: Provided that if an election to any office of a Gram Panchayat or Gram katchahry is under dispute, the election petition shall lie before such Munsif within whose jurisdiction such Gram Panchayat or Gram Katchahry is situated and if the election to any office of Panchayat Samiti or to a Zila Parishad is under dispute, the election petition shall lie before such Sub-Judge within whose jurisdiction such Panchayat Samiti or Zila Parishad, as the case may be, is situated. 138. Bar to interference by Courts in electoral matters.-Notwithstanding anything contained in this Act- (b) no election to any Panchayat shall be called in question except by an election petition presented to the prescribed authority under this Act. 139. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the prescribed authority is of opinion- (d) that the result of the election, in so far as it concerns a returned candi- Me, has been materially affected- (iv) by any non-compliance with the provisions of this Act or of any rule or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. 144. 144. Fresh election, if a seat becomes vacant.-lf the seat of any member has become vacant or is deemed to have become vacant under this Act, a fresh election for the vacancy so caused shall be held in accordance with provisions of this Act." 28. It is evident from the aforesaid provisions that so far as the elections of Pramukh/Up-Pramukh are concerned, the same is to be done under the superintendence, control and direction of the State Election Commission and similarly for the vacancy arising in the office of Pramukh or Up-Pramukh also election has to be conducted accordingly under the superintendence, control and direction of the State Election Commission. Only an elected member of the Panchayat Samiti is entitled to be elected to such post and the right to elect also belongs exclusively to the elected members. However, such rights to either get elected for the said post or to elect on the said post of the members of the Panchayat Samiti can only be exercised as per Section 40 of the Act under the supervision, control and direction of the State Election Commission. It is evident from the provisions of Section 40(1) of the Act that an election to the office of Pramukh or Up- Pramukh whether originally or on any subsequent vacancy arising on the said post would be a valid election in the eye of law if the same is conducted under the super- iniendence, control and direction of the State Selection Commission. The said interpretation is further reinforced by the provisions of sub-section (4) of Section 40 which provides that the election of Pramukh and Up-Pramukh as also filling up of vacancies and determination of disputes relating to such election have to be in accordance by the State Election Commission. Thus so far as the matter of elections, whether original or subsequent to the said offices, are concerned the overriding rules or procedure in that regard can only be those as may be prescribed by the State Election Commission. It has been pointed out by learned counsel for the State Election Commission that at present no such statutory rules have been framed by the State Election Commission. In that view of the matter the same would be governed by Rules to the extent applicable as provided in the Bihar Panchayat Election Rules, 2006 . It has been pointed out by learned counsel for the State Election Commission that at present no such statutory rules have been framed by the State Election Commission. In that view of the matter the same would be governed by Rules to the extent applicable as provided in the Bihar Panchayat Election Rules, 2006 . Rule 121 clearly lays down that in case of any vacancy on any post in the office of the Panchayat the District Election Officer shall inform the State Election Commission and the State Election Commission shall fill up the said post in accordance with the provisions of the Act and the Rules. It is evident that the vacancy cannot be filled up by any authority until the Election Commission has been informed by the District Election Officer and steps are taken by the Election Commission to fill up the said vacancies in accordance with the Act and the Rules. 29. Reliance placed by learned counsel for the petitioners on the provisions of Rule 87 appears to be wholly misconceived. It is true that the said Rule lays down that the Sub Divisional Officer shall fix the date, time and place for holding a meeting for electing the Pramukh and Up-Pramukh of the Panchayat Samiti but the said Rule also begins with the phrase that the same shall be done under the superintendence, control and direction of the State Election Commission. It is thus evident that even in the matter of fixation of the date, time and place of the meeting for electing Pramukh and Up-Pramukh, whether after a general election or to fill up a subsequent vacancy, has to be exercised under the superintendence, control and direction of the State Election Commission. Nowhere in the Act or the Rules it has been laid down that the Sub-Divisional Officer can act as an inde- pendent authority at his own discretion in exercise of such power. 30. Nowhere in the Act or the Rules it has been laid down that the Sub-Divisional Officer can act as an inde- pendent authority at his own discretion in exercise of such power. 30. The abovementioned view is further reinforced by Section 129 of the Act which provides that all officers of the State related with election work of rural local bodies for conduct of such elections shall be deemed to be on deputation to the State Election Commission for the period commencing on and from the date of the notification calling for such elections and ending with the date of declaration of the result of such elections and accordingly such officers shall during that period be subject to the control, superintendence and discipline of the State Election Commission. It is thus evident that an election is conducted under the superintendence, control and direction of the State Election Commission under its authority and officers including the S.D.O. in the matter of election to the offices of Pramukh and Up-Pramukh are deemed to be on deputation to the State Election Commission commencing from the date of the notification calling for such election till declaration of results. Thus even for filling up of casual vacancy the S.D.O. is statutorily obliged to act under the control, superintendence and discipline of the State Election Commission and if he acts on his own without even informing the State Eection Commission and obtaining necessary orders from it in the matter, it cannot be considered to be an election conducted by the officers deemed to be on deputation to the Election Commission, rather it would be an election conducted by an officer of the State, Sub-Divisional Officer. Such an election would be unknown to the provisions of the Constitution, the Act and the Rules and would thus be no election in the eye of law. It must be remembered that the powers of superintendence, direction and control over all elections to the Panchayat are vested in the State Election Commission by the Constitution itself and the Apex Court has pointed out that although the powers of the State Election Commission are subject to laws made by the State Legislature but such laws themselves cannot impinge upon the powers of the State Election Commission conferred upon it by the Constitution itself in respect of conduct of elections. Thus in no manner any provision of the Bihar Panchayat Raj Act or Rules can be read so as to exclude the role of the State Election Commission in the conduct of such election as has been sought to be argued by learned counsel for the petitioners on the strength of Rule 87. As already pointed out the said Rule also begins with the phrase subject to superintendence, control and direction of the State Election Commission and hence no such reading of the Rule is acceptable. 31. At this stage I must also point out that the learned counsel have wrongly relied upon the provisions of Section 137 and subsequent provisions of the Act relating to tiling of an election petition before the Sub-Judge for challenging an election to the post of Pramukh or Up-Pramukh. The said submission completely overlooks Section 40(4) of the Act which clearly provides that the determination of disputes relating to an election to the post of Pramukh and Up-Pramukh shall be in accordance with such Rules and procedures as may be prescribed by the State Election Commission, Hence the elections of such post are clearly excluded from the purview of Section 137 and the succeeding provisions of Sections 138 and 139 and others in the Act. It is true that no such Rules have been as yet framed by the State Election Commission but that can only lead to the conclusion that in the absence of any statutory remedy the persons concerned may invoke the writ jurisdiction of this Court if they arc aggrieved by any election held on such post. 32. In view of the above situation the provisions of Section 139 of the Act cannot apply to an election dispute relating the Pramukh and Up-Pramukh. However, even if it be assumed for a moment that Section 139 dealing with grounds of election to be void are applicable, the present matter is not where a person has been elected and in the process of such election there has been non-compliance of the provisions of the Act or the Rules and orders made thereunder. It is a case where no election at all has been heid under the superintendence, control and direction of the State Election Commission and thus it is not an election in the eye of law. 33. It is a case where no election at all has been heid under the superintendence, control and direction of the State Election Commission and thus it is not an election in the eye of law. 33. The question still remains that even if there is no election in the eye of law is it open to the State Election Commission to cancel the same or the only recourse available to the parties would be to approach this Court in its writ jurisdiction to declare the said eiectlon as void as has been argued by some of learned counsel for the petitioners. This Court is of the view that once the matter came to the knowledge of the State Election Commission, whether on the report of the District Magistrate- cum-District Election Officer or on a complaint by some of the aggrieved members of the Panchayat Samiti, it shall be open for it to hold and declare that no election at all has been held under its superintendence, control and direction and not to recognize the same. It appears that the State respondents also have not recognized the said election as in the counter affidavit filed on their behalf it is asserted that the results of the election have not been notified in the District Gazette as required by Rule 83 of 2006 Rules. 34. According to this Court, an election to the Panchayat held without informing the State Election Commission should be set aside by the State Election Commission and it cannot be said that the declaration of election is valid unless it is set aside by a competent court. There is sufficient force in the submission of learned counsel for the respondents that such course of action to challenge the election results either by election petition or through a writ petition would only arise when the election process is duly initiated by the Constitutional and statutory authority, otherwise it becomes a mere holding of meeting by the general Government officials. It is certainly open to the State Election Commission to take cognizance or notice of any such action of the officials of the State who have no authority on their own to conduct any such election unless they exercise such powers under the orders, control and direction of the State Election Commission itself. It is certainly open to the State Election Commission to take cognizance or notice of any such action of the officials of the State who have no authority on their own to conduct any such election unless they exercise such powers under the orders, control and direction of the State Election Commission itself. The orders of cancellation passed by the State Election Commission thus amounts to a declaration by it that it does not recognize the said elections as the same have not been held under its superintendence, control and direction. Since there is no legal sanctity attached to such elections conducted by the officials of the State Government, such actions of the Sub-Divisional Officer are simply fit to be declared as unauthorized and illegal through orders of the State Election Commission. 35. At this juncture the submission of learned counsel for the petitioners regarding the application of the principles of natural justice would be required to be considered. The petitioners claim that they acquired valuable rights on the declaration of the results, that as a matter of fact they have been elected by the members of the Panchayat Samiti and thus at the very least they were entitled to an opportunity of being heard by the State Election Commission before their elections have been cancelled. In view of what has been held by this Court in the preceding paragraphs, this Court does not find that in a matter of present nature there can be any application of the principles of natural justice. It is not a case where the petitioners have something to say to ihe State Election Commission which ought to be considered before passing an order of cancellation. It is not that any allegation against the petitioners themselves was involved which they had the right to meet. If the election process was wholly incompetent and bad as not having been held under the supervision of the State Election Commission then no right at all accrued to the petitioners on the mere declaration of their results by the Sub-Divisional Officer as an officer of the State Government and not an officer deemed to be acting on deputation to the State Election Commission. By such a sham election no rights at all had accrued in favour of the petitioners and thus they were not required to be heard in the matter at all. 36. By such a sham election no rights at all had accrued in favour of the petitioners and thus they were not required to be heard in the matter at all. 36. Moreover, this was not a case where any material fact of significance which could change the decision of the State Election Commission could have been brought to its notice by the petitioners even if they were to be given an opportunity of being heard. The decision had to be taken on the basis of one and only one point, that is, whether it had been informed by the District Election Officer regarding the existence of vacancy on the post of Pramukh/ Up-Pramukh and whether it had initiated the process of filling up the said posts. Such facts were clearly within the domain and knowledge of the State Election Commission and not at all within the domain and knowledge of the election petitioners who themselves claim to be ignorant of what had transpired between the Sub-Divisional Officer and the other authorities concerned and have taken the plea that for no fault of theirs they should not be made to suffer. There can hardly be any doubt that they are not at fault but it is equally true that the so-called election was no election in the eye of law at all as held above. Hence for the said reasons also there could be no occasion to invoke the principles of natural justice in favour of the petitioners. 37. The contention of learned counsel for the petitioners that such an order has never been passed by the Election Commission of India since 1950 has only to be noticed to be rejected, as it only reflects upon the manner in which certain officials of the State Government have acted in the present matter of conducting elections to a Constitutional body by keeping the State Election Commission in the dark, which powers could not have been conferred upon them even by the State Legislature in view of the Constitutional mandate. 38. Lastly, the reliance placed by learned counsel for the petitioners on the Circular dated 11.8.2006 issued by the State Election Commission is also of no avail as, apart from the fact that it has no application to the facts of the present cases, it is clearly held by the Apex Court in the case of Lakshmi Charan Sen Vs. 38. Lastly, the reliance placed by learned counsel for the petitioners on the Circular dated 11.8.2006 issued by the State Election Commission is also of no avail as, apart from the fact that it has no application to the facts of the present cases, it is clearly held by the Apex Court in the case of Lakshmi Charan Sen Vs. A.K.M. Hassan Uzzaman : AIR 1985 SC 1233 , in paragraph-21 of the said judgment in the following words: "21. One of the questions which was debated before us and to which we must now trun, is whether the directions given by the Election Commission to the Chief Electoral officers have the force of taw under the Acts of 1950 and 1951. There is no provision in either of these Acts which would justify the proposition that the directions given by the Election Commission have the force of law. Election Laws are self-contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. It is, therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but, their violation cannot create rights and obligations unknown to the Election Law....." 39. Thus no benefit can be availed of by the petitioners from the said Circular of the State Election Commission. 40. In the light of the aforesaid discussions this Court does not find any merit in the writ petitions and they are accordingly dismissed. 41. Thus no benefit can be availed of by the petitioners from the said Circular of the State Election Commission. 40. In the light of the aforesaid discussions this Court does not find any merit in the writ petitions and they are accordingly dismissed. 41. With respect to C.WJ.C. No. 14359 of 2008 it is pointed out that by an interim order dated 19.9.2008 this Court had directed that no election shall take place for the post of Pramukh of Hasanpur Panchayat Samiti as has been fixed by the State Election Commission and by the said order learned counsel for the State was directed to immediately inform the concerned authorities so that the meeting for election was not held; the interim order was passed at the behest of the petitioner. However, the meeting for election was held and the petitioner, who despite the said interim order obtained by him contested the election, was declared elected on the post of Pramukh. In view of the fact that this Court had already directed that no election shall take place, it must be held that the said meeting and also decision in the said meeting are non est in the eye of law and the election of the petitioner of the said case is contrary to the direction of this Court. The election of the said petitioner is accordingly set aside and the State Election Commission is directed to hold a meeting for election afresh. In which the said petitioner would also be entitled to participate.