Sheodeo Singh vs State of Bihar and Others

Birendra Pd. Sinha, J.—The petitioner and respondent No. 4 filed their nomination papers for the post of Sarpanch of Saur Gram Panchayat in the district of Monghyr. Saur Gram Panchayat was established by a notification dated 6-2-1973 and consisting of village Saur thana No. 340 with its four tolas. One of the tolas is called Dudhaila. The petitioner''s nomination paper was accepted by the Election Officer. A petition was filed by respondent No. 4 before the Subdivisional Officer, Khagaria, who rejected the nomination paper the petitioner stating that the entries in the nomination paper are not in keeping with entries in the voters'' list".

It appears that the petitioner filed a review petition before the Election Officer-cum-Subdivisional Officer and by his order dated 3rd May, 1978, he set aside his order and held that the nomination paper of the petitioner was valid. Against the order dated 3rd of May, 1978, respondent No. 4, Chandra Shekhar Singh filed a writ petition in this court on 16th of May, 1978. The election for the office of Sarpanch was stayed by this court on 19th of May, 1978. The present writ application was filed on 6-6-78 and was admitted on 19-8-78. The writ petition of respondent No. 4 (C.W.J.C. No. 1409 of 1978) was ultimately heard by a learned single Judge of this court and was allowed on the 11th of Aug. 1978. The order dated 3rd May, 1978, was set aside. The result is that the order passed by the Subdivisional Officer respondent No. 2, on 1-5-1978, rejecting the nomination paper of the petitioner has been restored. It is this order which has been challenged in the present writ petition.

Mr. Prabha Shankar Mishra, learned counsel for the petitioner submitted that Dudhaila is only a tola of village Saur and the nomination paper of the petitioner could not be rejected for the reason that he had mentioned in his nomination paper "Gram Panchayat Saur Gram Dudhaila". According to learned counsel this was not a mistake at all and even if there was certain error the Election Officer should have ignored it. I find from the notification constituting the Gram Panchayat that Dudhaila has been mentioned as one of the tolas of Saur Gram Panchayat. In the nomination paper the petitioner had, as stated above, mentioned "Gram Panchayat Saur Gram Dudhaila". In my opinion, the submission of the learned counsel for the petitioner on this point appears to be correct. On this ground the nomination paper of the petitioner could not have been rejected.

Mr. Kaushal Kumar Singh, learned counsel appearing on behalf of respondent No. 4, however, submitted that this application itself is not maintainable because there is an alternative remedy provided under the rules and the petitioner, in the circumstances of the case, should have filed an election petition. The position in the present case is that after the nomination paper of the petitioner was rejected, respondent No. 4 was only left in the field. Mr. Mishra has submitted that respondent No. 4 was not declared to have been duly elected under Rule 27 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the ''Rules''), Rule 27 provides that "if on the expiry of the period of filing and disposal of any objection petition under Sub-rule (4) of Rule 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." Mr. Mishra''s emphasis is on the word "declare" occurring in Rule 27. Rule 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 which will show that it is not a verbal declaration required to be made by the Election Officer. In proof of a declaration under Rule 27, the Election Officer has to grant a certificate in a form provided under the Rules. When asked, learned counsel for respondent No. 4 could not place before me any material to show that such a certificate was granted to respondent No. 4 by the Election Officer or for that matter any declaration was made declaring him as duly elected Sarpanch under Rule 27. On the other hand, it has been asserted by the learned counsel for the petitioner that no declaration has been made up-till now under Rule 27. From the materials on the record also the factual position appears to be the same. On 1-5-78, the nomination paper of the petitioner was rejected which was again accepted on review on 3-5-78, and therefore, two persons remained in the field. The election was stayed by this Court in C.W.J.C. No. 1409 of 1978, which continued until the 11th Aug., 1978, when that writ application was allowed. Therefore, if any declaration could be made declaring respondent No. 4 as duly elected Sarpanch, it could have been made only after 11th Aug., 1978. Nobody says that he was so declared after 11th of Aug., 1978. The position, therefore, is that all the processes of the election are not complete. The question is whether any remedy has been provided under the rules in such a situation. An election held under these rules can be called in question by filing an election petition before the election tribunal under Rule 70. According to Rule 72 (2) and 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 starts running from the date of the declaration of the result. This again takes us back to Rule 27 of the Rules, under which a declaration has to be made by the Election Officer, where is such a declaration in the present case if the petitioner wanted to file an election petition ? Can he file any election petition before a declaration has been made under Rule 27 ? The answer is in negative. In my opinion, therefore, in a situation like this no remedy has been provided under the Rules. The remedy provided under the Rules is against an election which has already been declared by the Election Officer under the Rules. Mr. Kaushal Kishore Sinha referred me to Rule 23 (4), which states that "any order passed by the Sub-Divisional Magistrate 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." He submitted that even such orders which are passed by the delegate Election Officer or by the Sub-Divisional Magistrate-cum-Election Officer either rejecting or accepting the nomination paper is subject to a decision given by the Election Tribunal. According to him, this provides an alternative remedy. I am unable to agree with the submission of the learned counsel. Rule 23 (4) must be read along with Rule 27. There may be a case where on account of certain mistake or even mala fide the nomination paper of a candidate is rejected. In such a situation, it cannot be said that a person whose nomination paper has been rejected cannot come to this Court under Articles 226 and 227 of the Constitution of India. Between the period a nomination paper has been rejected and the date on which the declaration is made under Rule 27, the person aggrieved having no remedy provided under the Rules can surely come to this Court under Articles 226 and 227 of the Constitution of India, Mr. Sinha relied upon a decision in K.K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, and a Full Bench decision of this Court in Ram Naresh Rai v. The State 1978 BBCJ (HC) 677Krishna Iyer, J. observed that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This was more particularly so where the dispute related to an election still more so where there was a statutorily prescribed remedy. The learned Judge further stated "while we need not in this case go to the extent of seating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition." This decision, therefore, does not ordinarily shut the door of the High Court even in election matters in exceptional or extraordinary circumstances, even though a remedy is provided under the rules. This decision was relied upon by the Full Bench in Ram Naresh Rai (supra). So far the present case is concerned, I have held that in the facts and circumstances of this case no remedy was available to the petitioner against the rejection of his nomination paper before respondent No. 4 can be declared elected by the Election Officer. To emphasis the same point Mr. Sinha also relied upon a decision of this Court in Ramswaroop Mahton v. State 1961 BLJR 298 and State of Punjab Vs. Satya Pal Dang and Others and Baldev Parkash and Others, . I do not think those cases come to an aid in the present case.

In the result, I shall allow this application and set aside the order passed by respondent No. 2 on 1-5-78 contained in Annexure-2. The authorities will now hold the election for the Office of Sarpanch in accordance with law. There shall be no order as to costs.