Patna High Court
Ramchandra Prasad Baid vs The State Of Bihar And Ors. on 20 July, 1971
Equivalent citations: AIR1972PAT387, AIR 1972 PATNA 387
ORDER B.N. Jha, J.
1. The petitioner's nomination paper for the post of Mukhiya was accepted by the Election Officer. An appeal was filed before the Subdivisional Officer against the order of the Election Officer accepting the nomination of the petitioner under the provisions of Rule 23 (4) of the Bihar Panchayat Elections Rules (hereinafter referred to as the Rules).
2. The Subdivisional Officer, by his order dated the 16th March, 1971 has rejected the nomination paper of the petitioner for the post of the Mukhiya on the grounds that in 1970 his nomination paper was rejected by the Election Officer and, therefore, he had no right to file nomination paper for the same post and secondly he had not deposited the nomination fee again. Hence this application has been filed to quash the order of the Subdivisional Officer, rejecting his nomination paper.
3. The learned counsel for the petitioner submitted that the two grounds for the rejection of the nomination paper are irrelevant. Firstly, he submitted that if in 1970 his nomination paper was rejected on some ground or the other, no law prohibits him from filing a fresh nomination paper in 1971, when a fresh election is held. Secondly, he submitted that he had already deposited the requisite fee in 1970, at the time of the filing of his nomination paper, and, therefore, he was not required to deposit fresh fee when he filed fresh nomination paper for the post of Mukhiya in 1971. For this purpose, he relied upon Notification No. 2010 dated the 17th March, 1971, issued by the Government of Bihar in the Community Development and Panchayat Department, the relevant portion of which may be quoted here:--
"For Sub-rule (8) of Rule 21 of the said Rules, the following Sub-rule shall be substituted, namely-
"(8). The nomination 'fee deposited under Sub-rule (7) shall not be refundable:--
Provided that where election is not held and fresh nominations are called for, the Election Officer shall, on an application made to him in this behalf by the candidate concerned, sanction refund of nomination fee deposited under sub-rule (7):
Provided further that notwithstanding anything contained in Sub-rule (6), if an election is not held and fresh nominations are called for, no fresh nomination fee shall be required to be deposited in cases where a candidate has deposited his nomination fee for any post under Sub-rule (7) and files his nomination paper for the same post at an election to be held next following the one for which the nomination fee was deposited'."
From a perusal of the aforesaid Notification, it is clear that when a candidate had filed a nomination paper on a previous occasion and somehow or the other the election could not be held and fresh nomination papers are called for, and when the candidate has again filed nomination paper for the same post, as he had done on the previous occasion, he is not required to deposit a fresh nomination fee.
4. Mr. Thakur Prasad, learned counsel appearing for respondent No. 4, contended that the petitioner could not be regarded as a candidate, because his nomination paper had been rejected and he could not have contested the election, if the election would have been held. Therefore, the petitioner could not be regarded as a candidate within the meaning of the last proviso to Sub-rule (8) of Rule 21 of the Bihar Panchayat Elections Rules, and, therefore, the petitioner could not be exempted from paying fresh nomination fee,
5. It is not possible for me to accept this contention. Rule 18 of the Rules provides that the Election Officer shall, in the election programme published under Rule 17, appoint the date, place and hours during which nomination paper in Form A of candidates for election as Mukhiya or Member of the Committee or Sarpanch shall be presented. Rule 21, Sub-rule (3) of the Rules provides as follows:--
"(3). Each candidate shall, either in person or by his proposer, deliver to the Election Officer nomination paper duly completed in Form A and subscribed by the candidate himself as assenting to the nomination and by a qualified person as proposer."
If these two rules are read together, it is clear that the moment a person presents his nomination paper, he is a candidate, whether his nomination paper is subsequently accepted or rejected or whether he contests the election or, due to some reason or the other, he does not contest the election.
6. Mr. Thakur Prasad secondly contended that the whole purpose of the aforesaid notification is that if a candidate, whose nomination paper had been duly accepted, could not contest the election on account of the fact that the election was -
eostponed and if on the second occasion e files a nomination paper, then he should be exempted from payment of further nomination fee. There is no substance in this argument. The language of the notification is quite clear. There is no ambiguity in the language. It does not say that if the nomination paper of a candidate had been rejected, he would not get the benefit of the exemption, as is provided under the notification. The ordinary rule of construction of the statute is that if the language is clear, the court will not go to find out the purpose of the legislation. Therefore, in my opinion, the language of this Notification is quite clear. It does not provide for any distinction as to whether the benefit will be enjoyed by a candidate whose nomination paper had been accepted or the candidate whose nomination paper had been rejected, and in the latter case, the candidate will be debarred from enjoying this benefit. The language is plain and clear that if a candidate, whether his nomination paper had been accepted or rejected, files a fresh nomination paper for the same post on account of the fact that on the previous occasion the election could not be held, and if he had deposited the nomination fee earlier, he is exempted from depositing fresh nomination fee for the same office.
7. There is also no substance in the contention of the learned counsel for the respondent that because his nomination paper had been rejected on the previous occasion on some ground, the petitioner's nomination paper should be rejected this time also as the fresh election is a continuous election. On the previous occasion no election was held. Fresh programme was published and fresh nomination papers were invited for different posts. Hence the present election could not be regarded as one and continuous election. If the petitioner's nomination paper was rejected in 1970 on account of the fact that he was not competent on account of his age in 1970, that would not be ground for rejection of his nomination paper in 1971, if he satisfies the test of requisite age. Therefore, the grounds for rejection of the nomination paper of the petitioner by the Sub-divisional Officer are not valid grounds, and the order of the learned Subdivisional Officer, rejecting the nomination paper of the petitioner cannot be upheld.
8. Mr. Thakur Prasad contended that since respondent No. 4 has been declared elected as Mukhiya, the remedy of the petitioner was to have gone to the Election Tribunal and this Court cannot grant relief to the petitioner. The powers of the High Court under Articles 226 and 227 of the Constitution of India are wide enough and there could not be any limitation on such powers. Of course, there are some self-imposed limitations, one of such limitations is that if there is an alternative remedy, then surely there will not be any interference. But, in the present case, the declaration of respondent No. 4 as the Mukhiya uncontested was subject to the fact that the order of the Subdivisional Officer was valid one, but if the very basis of the order of the Subdivisional Officer goes away, the declaration ipso facto falls. Secondly, once this Court admitted this application, it cannot be said that this Court is helpless in granting relief to the petitioner, because he has an alternative remedy. In my opinion, there is no substance in the contention of the learned counsel for respondent No. 4 on this score,
9. For the reason stated above, the application is allowed, the order of the Subdivisional Officer, dated the 16th April, 1971 (Annexure '3'), rejecting the nomination paper of the petitioner is quashed and consequently the order of the Election Officer declaring respondent No. 4 as Mukhiya is also quashed. The Election Officer will now proceed in the matter of election of the Mukhiya in accordance with law. In the circumstances of the case, there will be no order as to costs.