Patna High Court
Vishwanath Prasad And Ors. vs Election Officer, Agricultural ... on 19 August, 1992
Equivalent citations: 1993(2)BLJR1320
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT B.P. Singh, J.
1. The petitioners herein, who claim to be agriculturists and traders of Madhubani, have challenged the election programme dated 24-1-1992, published in Hindi daily on 31st January, 1992 for election of members to Madhubani Agricultural Produce Market Committee. They have further prayed that all steps subsequently taken by the Election Officer, the respondent herein, should also be quashed. Their main grievance is that if an election is held in pursuance of the election programme (Annexure 1), the election will be illegal since it is sought to be held in breach of the provisions of the Bihar Agricultural Produce Markets Act, and the Rules made there-under. The election was to be held on 11th March, 1992, and the instant writ petition was filed on 5th March, 1992. At the admission stage itself the respondent has filed his counter-affidavit and supplementary counter-affidavit., and after hearing the parties at length this writ petition is being disposed of at the admission stage itself with the consent of the parties. It may only be noticed that on 12th March, 1992, this Court had made specific direction that the pendency of the writ petition would not prevent the petitioners from challenging the election before an appropriate forum in accordance with law.
2. The petitioners contend that they are agriculturists and traders of Madhubani. They were entitled to vote and to contest the election for the membership of Madhubani Agricultural Produce Market Committee. Their names were illegally excluded from the electoral roll and consequently they were deprived of their right to contest the election and to vote in the election. Rule 5 of the Rules provides that at least four months before the expiry of the term of the Market Committee, the voters' list has to be revised in accordance with the above Rule. According to the petitioners, no such revision was undertaken by the respondent. Since no revision was undertaken; no draft voters' list was published inviting objections to illegal inclusion or exclusion of the names in the said list. Consequently, no final list, as required by the Rule, was published, In a nut shall, the" voters' list not having been revised and not published in accordance with Rule 5, many persons were illegally excluded from taking part in the election including the petitioners, who were intending candidates, Secondly, the petitioners made a grievance that the notification called upon the voters to elect only two representatives from amongst the traders. According to the petitioners, three representatives of traders had to be elected to the Market Committee in accordance with Rule 3 (ii) read with Section 9 of the Act. It is, therefore, urged that the notification is illegal. Lastly, it was urged that the date for allotment of symbols was changed from 15th February, 1992 to 22nd February, 1992. This was in violation of Rule 8 of the Rules, since no such change could be brought about once the election process had begun.
3. A counter-affidavit and a supplementary counter-affidavit have been filed on behalf of the respondent denying the factual allegations in the writ petition. It is further contended on behalf of the respondent that even if the petitioners had any grievance against the manner in which the election was being held, they should have sought their remedy before the Director under Rule 14 (iv) of the Rules which' provides a forum of appeal against any decision of the Election Officer against the rejection of a nomination paper. In any event, under Rule 43 the petitioners could have challenged the election before the Munsif in accordance with the Rules. Instead of resorting to the remedies provided under the Act and the Rules, the petitioners unnecessarily filed the instant writ petition.
4. On the factual aspects of the matter, the respondent contends that Rule 5 which provides for the revision of the elect oral roll, for the publication of the draft voters' list and for the publication of final voters' list, was fully complied with and it is not a fact that the voters' list was not revised and published in accordance with the provisions of the Act and the Rules. So far as the election of two traders from the traders' constituency is concerned, it is submitted that in view of Section 9 of the Act, only two members have to be elected from the traders' constituency and, therefore, the notification is perfectly in accordance with law. So far as the date for allotment of symbol is concerned, it is submitted that neither the Act nor the Rules makes any provision with regard to fixation of date of allotment of symbols and, therefore, no illegality has been committed if the date had to be changed on account of unavoidable circumstances. In any event, no provision of the Act or the Rules is breached.
5. It is no doubt true that where an election process is challenged in a writ petition, the Court is loath to interfere particularly when an alternative effective remedy is provided under the law. Moreover, in exercise of writ jurisdiction, this Court will not interfere with the process of election, unless it is shown that the interference of this Court is required for the purpose of holding a fair election, and to prevent miscarriage of justice. In the instant case, since allegations were made that the entire election process was illegal and the election was sought to be held in an illegal manner in breach of the statutory provisions after excluding the petitioners, we called upon the respondent to place all the facts before us, so that we could dispose of the writ petition at the admission stage itself. Having heard counsel for the respondent, we are of the view that this writ petition deserves to be dismissed, because even the factual averments made in the writ petition are not correct.
6. I shall first take up the contention of the petitioners that no revision of the electoral roll was undertaken, no draft voters' list published and consequently no final list of voters was ever published and notified in accordance with Rule 5. It is difficult to accept the contention in view of the materials placed before this Court establishing the fact that a revision of the voters' list was undertaken, and all steps for publication of the final voters' list was also taken by the respondent, Election Officer. Annexures A, B and D to the counter-affidavit are the publications is local dailies notifying the fact that on 12-12-1991 a draft voters' list had been published and that objections were invited to the said draft voters' list which had to be tiled within thirty days. Thereafter, it appears from Annexure 3 to the writ petition as also from Annexures B/l and E to the counter-affidavit that a notification was published in the local dailies to the effect that the draft voters list had been finalised on 23-1-92, and that the said list could be inspected in the office of the Election Officer as also in the office of the Market Committee. It was thereafter that the election programme was issued on 24th January, 1992, which has bean impugned in the instant writ petition. From the aforesaid annexure, therefore, it is quite apparent that a draft voters' Hat was prepared and notified inviting objections thereto on 22-12-1991 and thereafter a final voter's list was notified on 23-1-1992. The draft as also the final voters' list were available for inspection by any person interested in doing so in the office of the Election Officer as also in the office of the Market Committee, It cannot, therefore, be said that Rule 5 of the Rules had been violated, and that the voters' list was not revised and published in accordance with the Rules. The first contention must, therefore, be rejected.
7. It has also been brought to our notice that the averments made in the writ petition to the effect that the petitioners were wrongly excluded from the election is also factually incorrect. The voters' list (Annexure-C series) has been produced before us and from that it appears that the name of the petitioners appear in the list of voters. Obviously, therefore, the petitioners have misrepresented to this Court that they were illegally excluded from taking part in the election since their names did not find place in the voters' list. Counsel for the petitioners then contended that in any event Rule 5, which is mandatory, has not been complied with, because the revised voters' list had to be finalised four months before the date on which the term of the Market Committee was due to expire. In the instant case, the term of the Market Committee was due to expire on 4th January, 1992, whereas tha draft voters' list was prepared on 22-124991 and the final list on 23-1-1992. This was not in accordance with the rules, because it was not prepared four months before the date on which the terms of the Market Committee was to expire. It is no doubt true that Rule 5 does provide that the Election Officer shall cause to be prepared separate lists of voters qualified to vote for each of the constituency, and that every such list shall be revised for each triennial election at least four months before the date on which the term of the Market Committee is due to expire. Sub-rule (iv) of Rule 5 provides that the Election Officer shall fix a date not not later than 30 days from the date of publication of the list before which any application for inclusion, or correction of any entry shall reach him. The Election Officer is required to give to the objector a reasonable opportunity of being heard and to decide the application or objection before the date so fixed. In accordance with the decisions on such applications or objections, the list has to be amended and a final list published. Sub-rule (vi) of Rule 5 provides that any person whose name is not included in the final voters' list of a constituency may apply to the Election Officer for inclusion of his name in the list, and the Election Officer after being satisfied that the applicant is entitled to be included in the list direct his name to be included therein. The second Proviso to Sub-rule (vi) provides, however, that no amendment, transposition or dictions of any entry shall be made after the last date for making nomination for an election in the constituency. Sub-rule (viii) of Rule 5 provides that the final list so prepared shall remain in force and continue in operation as the list of voters for the purpose of any bye-election. It is clearly provided therein that if the voters' list is not revised as required under Sub-rule (i) of Rule 5, the validity or continued operation of the said voters' list shall not thereby be affected.
8. Rule 5 provides for the procedure which the Election Officer must follow for revision of the voters' list and its publication. The purpose of the Rule is to keep the voters' list up-to-date, so that necessary amendments may be carried out before the election is held. The Rule provides that this should be done four months before the date on which the term of the Market Committee is to expire. However, the Rule does not prohibit the Election Officer from making amendment in the final voters' list as well if he is satisfied that the applicant is entitled to be included in the list. This, however, must mot be done after the last date for making nomination for au election. It, therefore, follows that even if a draft voters' list is published followed by a final voters' list after disposing of the applications and objections received, the Election Officer is not precluded from adding names in the voters' list if lie is satisfied that the applicant is entitled to be inculded in the list. The only limitation on the power is that such amendment or transposition or deletion of any entry shall not be made after the last day for making nomination. From the scheme of the Rules it does not appear that the period of four months mentioned in Sub-rule (i) of Rule 5 is mandatory in the sense that if a revision does not take place four months before the date of the expiry of the term of the Market Committee, the election shall become illegal. The purpose of the Rule is to keep the voters'list up to date and, therefore, if there is substantial compliance of the Rules, the voters' list, and conseuqently the election, will not be vitiated. In fact, even if no revision takes place, the earliers voters' list is to remain in force, and has to be treated as the voters' list for the ensuing election. Obviously, therefore, though revision of the voters' list is desirable, failure to do so does not vitiate the election itself. Moreover, if the submission of the petitioners is to be accepted, no election can ever be held if the Election Officer commits the mistake of not revising the voters' list within the period prescribed by Sub-rule (i) of Rule 5. X am, therefore, satisfied that the Rule has been substantially complied with, and the voters' list and the election are not vitiated on account of the fact that list was not prepared strictly within the time prescribed under Sub-rule (i) of Rule 5.
9. It was then contended that the impugned notification provides that only two members from the traders constituency bad to be elected. The petitioners contend that this is contrary to the provisions of Section 9 of the Act read with Rule 3(ii) of the Rules, The submission is misconceived, and perhaps advanced because the petitioners did not notice the drastic amendment to Section 9 of the Act by Act 60 of 1982. Rules were made earlier in the year 1975, and Rule 3(ii) provided for three representatives from the traders' constituency. Section 9 of the Act itself was subsequently amended by Act 60 of 1982, and the Act as it stands today provides that there shall be two representatives from the traders' constituency. It is well-settled that if there is any inconsistency between the Act and the Rules, the Act must prevail. The notification (Annexure 1) is in accordance with Sections of the Act and, therefore, its legality cannot .be challenged/ it appears that by oversight necessary amendments have not been made in the Rules. This should be done at the earliest to avoid any confusion.
10. The contention that by changing the date for allotment of election symbol Rule 8 has been violated, is also devoid of substance. Rule 8 does not provide for notifying any date for allotment of election symbol. The notice to elected issued under Rule 8 just provide for the number of person to be fleeted, the date on which, me place at which, and the hours between which, nomination papers shall be presented, the date of scrutiny, the date on which and the place or places at which the votes of the election shall be taken, and the day on which and the place and hour at which the votes shall be counted. Strictly speaking, therefore, Rule 8 has not been breached by changing the date for allotment of election symbol Moreover, there is nothing to show that any prejudice has been caused to any party by changing the date for allotment of election symbol. The notification, therefore, cannot be quashed on this ground.
11. It is urged in the writ petition that the nominations of eight persons were rejected on the ground that they had not submitted demand drafts for the amount of the security deposit issued by the State Bank of India. This grievance was not pressed before us in course of the argument. However, we find from Rule 10 of the Rules that there is a specific provision in the Rules that security deposit shall be made by Bank Draft drawn on local branch of the State Bank of India in favour of respective Market Committee. The objection is that the respondent was not justified in rejecting the demand draft issued from any other Bank, other than the State Bank of India, The validity of the Rule has not been challenged before us. However, I do not wish to express any considered opinion on this question, because admittedly persons whose nominations have been rejected are different from the petitioners had obviously not filed any nomination. Against the improper rejection of a nomination, a remedy is provided under the Act and the Rules and, therefore, it will be appropriate if the persons agieved seek their remedy before the appropriate forum.
12. I, therefore, find no merit in any of the submissions urged before us.
13. By our order dated 12th March, 1992, we had directed that if the result of the election had not been declared, the same shall not be declared till further orders of this Court. From the counter-affidavit filed on behalf of the respondent it appears that toe result was published even before the order could be communicated to the concerned authority. However, by order dated 17th March, 1992, it was directed that if the result had been declared, that shall not be published in the Gazette under Section 13 of the Act. It is stated in the supplementary counter-affidavit that the result has not been published under Section 13 of the Act. In view of the fact that this writ petition is dismissed, it will now be open to the authority to publish the result in accordance with law.
14. This writ petition is dismissed, but there will be no order as to costs.
S.K. Chattopadhyaya, J.
15. I agree.