Patna High Court
Ram Prakash Singh And Ors. vs State Of Bihar And Ors. on 5 December, 1979
Equivalent citations: AIR1980PAT208, AIR 1980 PATNA 208
ORDER P.S. Sahay, J.
1. The petitioners have moved this Court challenging the election of Patelia Gram Panchayat, in which respondent No. 4 was elected as the Mukhiya and respondents 7 to 15 as office bearers of the said Gram Panchayat.
2. In order to appreciate the points which have been raised, it is necessary to state some facts. The petitioners were voters of Patelia Gram Panchayat which is within Bibhutipur Block in the district of Samastipur, and they are also voters of the Bibhutipur constituency of the Bihar Legislative Assembly -- petitioners 1 to 5 are voters of Ward No. 3 and petitioners 6 to 9 are voters of Ward No. 2 of the aforesaid Gram Panchayat. Patelia Gram Panchayat was constituted under the Bihar Panchayat Raj Act, 1947 (hereinafter referred to as the Act). On 11-4-78 in exercise of the powers under Rule 17 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules), the Election Officer of the Bibhutipur Gram Panchayat (respondent No. 2) published an election programme, giving the details of the election. A copy of the said programme has been filed along with the application and marked Annexure 1. It is further stated in the application that in the aforesaid election programme it was not mentioned whether the election was of the Mukhiya, Sarpanch, Panch or members of the Executive Committee which, according to the petitioners is clear violation of Rule 18 of the Rules. Respondents 4, 5 and 6 filed their nomination paper on 19-4-78, and similarly respondents 7 to 15 filed their nomination papers for election to the offices of Sarpanch, Panch and members of the Executive Committee; and nomination of respondents 4, 5 and 6 was declared valid. On 5-5-78, the polling stations were selected for Patelia Gram Panchayat, and a list of the same was published after due approval by the District Magistrate, as required under Rule 31 (1) of the Rules. A copy of the list has been filed along with the application and marked Annexure 2. The polling which was to be held on 19-5-78 was later changed to 13-6-78. A copy of the same has been filed and marked Annexure 1/A. It is also stated in the application that on 30-5-78 some of the polling stations put under Annexure 2 were changed in violation of the Rules. Polling Stations 84 and 85 were changed as polling stations of Ward No. 2, and this affected the voting rights of 2000 voters of Ward No. 3 of the aforesaid Gram Panchayat. It is further stated in the petition that on the date of polling the voters of Wards 2 and 3 were put in utter confusion due to the arbitrary and last minute illegal change, polling station No. 84, which was located in the school was shifted to a portable polling station in Khasra No. 1198, and when they went there they were told that it was shifted to the original place, viz., Kanya Vidyalaya. It is also stated that election authorities acted illegally and mala fide by changing the polling stations and thus depriving the petitioners and others of their right of franchise. The result of the election was declared, and respondent No. 4 was elected as the Mukhiya (Annexure 5). Being aggrieved, the petitioners have moved this Court and challenged the entire election of the aforesaid Gram Panchayat.
3. Mr. Basudeva Prasad, learned counsel appearing on behalf of the petitioners, has contended that there has been a clear violation of the mandatory Rules 17, 18, 31 and 50 of the Rules, and thus there was no election in the eye of law and, therefore, the entire election was fit to be quashed. A number of points were raised in the application but at the time of argument learned counsel confined his submission only on two points. Firstly, it has been urged that Rule 18 was violated because there was no mention in the election programme regarding the election of Mukhiya, Sar Panch, Panch and members of the Executive Committee which, according to the learned counsel, was mandatory. Next, it has been contended that the polling booths were changed, in clear violation of Rule 31. The learned Government Pleader appearing for the State has submitted that there has been no violation of the mandatory provisions of the Rules and, therefore, the remedy of the petitioners was by way of election petition and the election of the Gram Panchayat cannot be challenged in this Court. It has also been submitted on his behalf that when the writ was filed and entertained by this Court, 42nd Amendment of the Constitution was in force and there being an alternative remedy by way of election petition, the application was fit to be dismissed. Learned counsel appearing on behalf of respondent No. 4 has also submitted that the points which have been raised in the writ application are all disputed questions of fact which cannot be decided by this Court.
4. Before considering the submissions made at the Bar it would be necessary to consider the powers of this Court while dealing with such application; and I may refer to two Full Bench decisions of this Court which are relevant for this case. In the case of Dilip Kumar Singh v. State of Bihar (1970 BLJR 692 : AIR 1971 Pat 65) (FB) a question came up for consideration whether this Court could entertain a petition challenging the election of the Gram Panchayat or the aggrieved party had his remedy by way of election petition. Their Lordships, after considering all the cases of this Court, held as follows :
"..... if the petitioner does not avail of the alternative remedy of filing the election petition before the Election Tribunal, this Court ought not to interfere merely on the ground that there has been some illegality or irregularity in conducting the election. Unless the question of infringement of a fundamental right is involved, this Court has got discretion to issue or refuse a writ. In considering whether this discretion should be exercised or not in a particular case, this Court can take into account, even if an illegality has been committed in holding the Gram Panchayat election, whether the alternative remedy open to the petitioner has been availed of. The illegality complained of to justify interference by this Court, where an alternative remedy has not been availed of, must be of the nature on account of which it may be held that the election was no election at all in the eye of law or a colourable one..... But if the validity of
only a particular section of the Act or one of the rules is challenged, the section of the Act or the rule must be such, otherwise or compliance whereof has affected the result of the election in the particular case to justify issue of a writ by a High Court even if the alternative remedy has not been availed of."
5. Another Full Bench decision of this Court in the case of Ram Naresh Rai v. State of Bihar, 1978 BBCJ (HC) 677 : (AIR 1979 Pat 130) (FB) endorsed the views expressed by the former Full Bench and held as follows:--
"In my opinion, the position has become all the more difficult in view of sub-clause (3) of Article 226 which was introduced by the Constitution (42nd Amendment) Act, 1976. I have already held that there is no question of challenging the election on the ground of infringement of any of the fundamental rights : as such, it amounts only to redress of an injury by reason of contravention of the provisions of the Act and the rules framed thereunder. To such cases Sub-clause (3) of Article 226 is a bar, there being an alternative remedy."
In the case of K. K. Shrivastava v. B. K. Jain (AIR 1977 SC 1703) the Supreme Court, while dealing with the case relating to Bar Council election, set aside the order of the Madhya Pradesh High Court which had allowed the writ petition challenging the election. Their Lordships in clear terms have held that Courts should not interfere with disputes relating to election when there is a remedy provided for, even if the entire election is challenged on one ground or the other.
6. Keeping in view the aforesaid decisions, now I shall proceed to consider whether the petitioners have made out a case. It has been submitted that in the election programme it was not mentioned for what posts the election was being held. It is better to quote Rule 18 which reads as follows :
"The Election Officer shall in the election programme published under Rule 17, appoint the date, place and hours during which the nomination papers in Form A of the candidates for election as the Mukhiya or the member of the Executive Committee or the Sarpanch or Panch shall be presented to him :
Provided....."
It is true that it was not mentioned that the election was for the post of Mukhiya, Sarpanch or the Executive Committee. It was only mentioned that under Rule 18 nominations are invited which were to be filed by 19-4-78. No doubt, it would have been better to mention the posts for which the elections were being held, especially for those who were to contest the elections. But nowhere in the petition it has been mentioned that the petitioners also intended to be candidates for any of those posts. It has been rightly contended by learned counsel appearing on behalf of respondent No. 4 that if they were not interested in the elections to be candidates, no prejudice has been caused to them and their fundamental right has not been infringed in any way. In my opinion, therefore, even if there has been some infraction of Rule 18, the petitioners have not been prejudiced in any way so as to challenge the entire election of the Gram Panchayat.
7. The other point which has been raised on behalf of the petitioners is that there has been violation of the mandatory provisions of Rule 31 (1), which reads as follows:--
"The Election Officer, and not an officer to whom he delegates his powers under Clause (g) of Rule 2 shall select one or more polling stations as may be considered necessary by him, for each Panchayat and shall obtain the approval of the District Magistrate thereon. Once approved, the polling stations shall not be changed. The Election Officer shall publish the list of the polling station on his own notice board as also on that of the Panchayat at least two weeks before the date of actual poll."
Mr, prasad has submitted that the District Magistrate had approved the polling booths on 3-5-78 and announcements were made accordingly by the sub-divisional Officer on 5-5-78 (Annexure A/2). There were four polling booths in the aforesaid Gram Panchayat, viz., 83, 84, 85 and 86. Booths 84 and 85 were in the same building. Kanya Vidyalaya one on the right and the other on the left wing of the building. Subsequently, on 30-5-73, booth No. 84 was changed to a portable booth in Khasra No. 1198. In paragraph 18 of the petition it has been stated that the voters of Wards 2 and 3 were put in utter confusion due to last minute arbitrary and illegal change and thus the entire election has been vitiated.
8. In the counter-affidavit filed on behalf of respondents 1 to 3 it has been stated that though the list of polling booths was approved and published on 5-5-78, the District Magistrate, Samastipore, in exercise of the power conferred on him under Rule 91 of the Rules, changed the polling booths, because objection petitions were filed which were enquired into by the 2nd Officer who held a spot enquiry and submitted a report. The District Magistrate, after examining the matter, approved the same, and the amended list duly approved, was finally published on 30-5-78 two weeks before the changed date of polling, viz., 3-8-78. This fact is also supported from the last part of Annexure 2. Now, the question arises whether this could have been done. In my opinion, there was no such bar. According to Rule 31 (1), which has been quoted above, before the polling booths are announced it has to be approved by the District Magistrate and, after the approval, no change can be made. The first approval was obtained on 3-5-78, which was announced for the election to be held on 25-5-78; but subsequently the date of poll was changed and it was to be held on 13-6-78. In the meantime, as it has been stat-ed in the counter-affidavit, objection was made and, after enquiry, there was a change of the polling booth, which was sanctioned by the District Magistrate. This, in my opinion, was permissible and was rightly done, because the date of the polling was changed for the reasons which have been mentioned above, and there was also a clear gap of two weeks between the second approval of the polling booth and the fresh date of polling. Thus, the latter part of Rule 31 (1) was complied with. The words "once approved, the polling stations shall not be changed" occurring in the rule cannot be read in isolation, divorced from the other parts. There may be a situation that it may not be possible for the authorities to hold election at a particular booth approved and notified earlier due to some natural calamity or for some other valid reason. But in such a situation, the entire election cannot be postponed. A change has to be made in such circumstance and, after it is approved and notified, election can be held after two weeks, therefore, to enable the voters to have knowledge about the same. In this case, after the second approval, in which some booths were changed and the poll there was a clear gap of two weeks, as required by the Rules. It is difficult to accept the case of the petitioners that the voters of Wards 2 and 3 were put in utter confusion and there was a last minute change, as alleged by them. It was not a case of last minute change; rather, it was done two weeks before the actual polling, as stated earlier. Whether the voters were put under confusion for which they could not exercise their franchise is a question of fact, which cannot be decided in this writ jurisdiction. Therefore, this point raised on behalf of the petitioners also has to be rejected.
9. Since the petitioners have failed on both the points, it is not necessary to consider the question of alternative remedy and the bar placed under the 42nd Amendment of the Constitution of Article 226 (3) and the aforesaid bar having been lifted now by the 44th Amendment which has repealed Sub-clause (3) of Article 226 and the case laws relied on by the parties in this connection.
10. Thus, on a careful consideration of the points which have been raised in this application, I find that there is no merit, and it is accordingly dismissed; but, in the circumstances of the case, there will be no order as to costs.