Ramchandra Soren vs Mahabir Singh and Others

R.L. Narasimham, C.J.—This is a Letters Patent Appeal from an order dated the 29th June, 1966, passed by Single Judge of this Court, summarily dismissing a writ application (C.W.J.C. No. 366 of 1966) against the order of the Subdivisional Magistrate-cum-Election Tribunal, Dalbhum, dated the 6th June, 1966, setting aside the election of the petitioner to the Mukhiaship of Harharghuttu Gram Panchayat and declaring the respondent Mahabir Singh as the duly elected Mukhia of the said Panchayat.

A preliminary objection to the maintainability of this appeal was raised by Mr. Lal Narain Sinha appearing for respondent No. 1, Mahabir Singh. He urged that the order of the Single Judge dismissing the appeal did not disclose any reasons for such dismissal and, consequently, it should not be considered to be a final order or Judgment for the purpose of an appeal under Clause 10 of the Patna Letters Patent. He relied on Daryao v. State of Uttar Pradesh AIR 1961 S.C. 1957 , where it was held that if an application under Article 226 as dismissed in limine, without passing a speaking order, such dismissal will not operate as res judicata. The question for consideration here, however, is not whether the order of the Single Judge operates as res judicata or not, but whether it finally disposes of the controversy between the parties so as to amount to a final order or judgment for the purpose of Clause 10 of the Patna Letters Patent. In a recent judgment of their Lordships of the Supreme Court in Ramesh and Another Vs. Seth Gendalal Motilal Patni and Others, it was laid down that an order of a High Court summarily dismissing an application under Article 226 must be construed to be final disposal of the controversy that was raised before the High Court and that it makes no difference whether the High Court pronounced a speaking order or not. Such an order will be a final order for the purpose of Article 133(1) of the constitution, and by parity of reasoning it must also be held to be a "judgment" for the purpose of Clause 10 of Patna Letters Patent. The preliminary objection is, therefore, rejected.

The elections to the said Panchayat were held on the 14th May, 1965, and there were four contestants, namely, the petitioner, respondent No. 1 and two other persons. The petitioner was declared duly elected. While challenging his election before the Tribunal, respondent No. 1 urged the following three important grounds:

(1) Some voters of Ghasiatola and Sundernagar were shown as voters of two different Gram Panchayats, namely, Karandih and Harharghuttu.

(2) Corrupt practices were resorted to by the successful candidates.

(3) The declaration of the election result was made contrary to law and was, therefore, void.

The learned Tribunal held that the Election Officer, namely, the Block Development Officer, orally declared the result of the election and that, consequently, there was contravention of Rule 54 of the Bihar Gram Panchayat Rules which vitiated the election. It is not necessary for us to examine the correctness of the view taken by the learned Tribunal to the effect that on a construction of Rule 54(1) of the Bihar Gram Panchayat Election Rules, 1959, the declaration of the result of the election should be made in writing and not done orally. I will leave this question open.

But the main ground on which the election was held to be void was that voters of Ghasiatola and Sundernagar participated in the disputed election. The Block Development Officer, who conducted the election, while giving evidence before the Tribunal, frankly said that he could not say if Ghasiatola and Sundernagar formed part of Karandih Panchayat and not of Harharghuttu Panchayat. But the letter sent by the Election Officer (Ext. 3(1)) forwarding the electoral roll of Karandih Panchayat to the Tribunal showed that Sundernagar was in Karandih Gram Panchayat. The learned Tribunal did not decide definitely whether Sundernagar and Ghasiatola were included in Karandih Panchayat and not in Harharghuttu Panchayat. But in view of the conflict between the testimony of the Block Development Officer (P. W.1) before him and the statement as given in exhibit 3(1) he thought that the election, was rendered invalid. He should have decided this matter definitely instead of merely referring to the conflicting evidence on the subject. But in any view of the case, once there is a serious doubt as to whether Sundernagar is included in the Harharghuttu Panchayat or Karandih Panchayat, the election to Harharghuttu Panchayat must be held to be vitiated if, as admitted by the Block Development Officer, the voters of Sundernagar actually participated in the disputed election. The exact number of voters from Sundernagar who cast their votes is not known. Parties should have adduced complete, evidence on the subject. But on the materials available before the Tribunal it cannot be said that his view that the election was vitiated is wrong. There were also certain cuttings and over-writings in the chart (Ext. 6) showing the number of votes polled at some of the centres. Mr. Ghosh for the petitioner quite properly did not challenge that portion of the order of the Tribunal which held that the election was not conducted in accordance with law and declared the election of respondent No. 1 as void. But he urged that once the Tribunal held that the election, was not conducted in accordance with law, it had no jurisdiction to declare respondent No. 1. to be duly elected and that it should have merery directed the holding of a fresh election.

This argument appears to be justified. The learned Tribunal in the very last sentence of his order has suddenly jumped to the conclusion that respondent No. 1 got the highest valid votes. His judgment does not show how he arrived; at this conclusion. If the entire election was conducted in contravention of the rules and if some persons of Sundernagar (who presumably were not entitled to vote in Harharghuttu Gram panchayat) participated in the election, it is difficult to hold that respondent No. 1 obtained the highest valid votes, unless it can be further shown that no voter from either Ghasiatola or Sundernagar voted for him and that the non-compliance with the statutory provisions did not affect the votes cast in favour of respondent No. 1, though it affected the votes cast in favour of the petitioner. There is no such finding in the order of the Tribunal.

For these reasons I allow the appeal, set aside the order of the learned Single Judge and also that portion of the order of the Subdivisional Magistrate-cum-Election Tribunal declaring respondent No. 1, Mahabir Singh, to be the duly elected Mukhia of Harharghuttu Gram Panchayat; but that portion of his order which set aside the election of the petitioner as Mukhia of the Panchayat will, however, stand. Fresh election should be held to the Mukhiaship of the Panchayat according to law as soon as possible. There will be no order for costs.

U.N. Sinha, J.

I agree.