Patna High Court
Ram Prasad Dubey vs Bihar State Agricultural Produce ... on 16 September, 1983
Equivalent citations: AIR 1984 PATNA 86, 1984 BLT (REP) 143, 1984 BBCJ 455, (1984) BLJ 529
JUDGMENT P.S. Mishra, J.
1. The petitioner, a candidate declared elected as a member of Market Committee. Arrah from Constituency No. 5 of the agriculturists has moved this Court under Articles 226 and 227 of the Constitution against the order of the Director, Marketing, Bihar State Agricultural Produce Marketing Board (respondent No. 2) dated 14-3-1983 declaring the nomination paper of the respondent No. 4 for the said constituency valid. The nomination paper of the respondent No. 4 was found invalid by the Election Officer-cum-Deputy Collector. Land Reforms, Arrah (respondent No. 3) and accordingly rejected on 26-2-1983. The respondent No. 4 preferred an appeal before the respondent No. 2. His appeal was allowed by the Director (respondent No. 2) on 14-3-1981. In the meanwhile on 7-3-1983 the petitioner being the only candidate left in the field, had been declared elected. In view of the order of the Director (respondent No. 2) dated 14-3-1983, the Marketing Secretary (H. Q.) of the Board issued memo No. 672 dated 21-3-19-aa stating that the election on contest would be held afresh in the agriculturists constituency No. 5. The petitioner has questioned the validity of this order as well. The order of Director dated 14-3-1983 is Annexure 2 to the writ application. Memo No. 672 dated 21-3-1983 is Annexure 4 thereof.
2. Only a few facts need to be stated. The Election Officer-cum-Deputy Collector, Land Reforms, Arrah (respondent No. 3) notified the programme of election in different constituencies of the agriculturists of the Arrah Market Committee. Four persons, the petitioner, respondent No. 4 and Jagdish Singh and Ramkumar Lal filed their nomination papers on the date fixed for the said purpose in constituency No. 5 of the agriculturists. The nomination papers of these candidates were scrutinised by the respondent No. 3 on 26-2-1983. He rejected the nomination paper of the respondent No, 4 on the ground that his proposer was not a voter of the constituency No. 5. Jagdish Singh and Ram-kumar Lal withdrew their candidatures on 2-3-1983, that is to say the date fixed for the said purpose. The respondent No. 4 filed an appeal before the Director, Marketing Board (respondent No. 2) on 2-3-1983. Although the appeal filed by the respondent No. 4 was entertained, no order staying further proceedings of the election in constituency No. 5 of the agriculturists was made by the respondent No. 2. The respondent No. 3 declared the petitioner elected uncontested on 7-3-1983. Notices were issued to the parties concerned by the respondent No. 2 including the petitioner and the Election Officer-cum-Deputy Collector, Land Reforms. The appeal was heard and as it appears from the order of the Director (respondent No. 2) dated 14-3-1983, learned counsel appearing for the appellant (respondent No. 4) and the Election Officer (respondent No. 5) were heard. The respondent No. 2 found that the name of proposer of the respondent No. 4 was included in the voters' list of the constituency and accordingly declared that his nomination paper was valid. As a consequence of the order of the respondent No. 2 the respondent No. 4 also became a candidate duly nominated and thus election on contest was required to be held. The Secretary of the Board accordingly issued memo No. 672 dated 21-3-1983 stating that election on contest would be held in the petitioner's constituency.
3. Before prospecting into the contentions of the parties I propose to take a bird's-eye view of the relevant provisions of law. The legislature of Bihar enacted the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as "the Act") with a view to provide better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Bihar. Chapter II of the Act contains provision as to the constitution of markets and market committees. Section 4 thereof empowers the State Government to declare a market area in the manner prescribed therein. Section 6 lays down that for every market area the State Government shall, by notification, establish a Market Committee. Section 8 provides for constitution of first market committee and Section 9 for the constitution of the second and subsequent market committees. These provisions have undergone several amendments. Section 9 as amended by Act, 60 of 1982 in Sub-section (i) contains provisions for election in the prescribed manner of seven representatives of agriculturists from seven constituencies created for the said purpose.
4. The Bihar Agricultural Produce Market Rules were first framed in the year 1962 providing, inter alia for constitution of market committee and election. 1962 Rules were, however, repealed by a new set of rules known as the Bihar Agricultural Produce Markets Rules, 1975. Part II of these rules contains provisions as to constitution of Market Committee and Election. Rules 7 to 16 provide for calling upon the constituencies to elect, notice to elect, nomination, scrutiny of nomination, verification, publication and scrutiny of nomination, disposal of objections and rejection of nomination, withdrawal of candidature and procedure of election. In cases, however, in which more than one candidate remain in the field, provisions have been made for holding poll, counting and declaration of results. Provisions have been made for presenting election petitions before the Munsif within whose territorial jurisdiction the market yard of the market area concerned is situated and appeal before the District Judge against the decision of the Munsif. Rule 9 requires a nomination paper completed in form II to be delivered by candidate to Election Officer on the day appointed in this behalf. Rule 9 (ii) reads as follows:
"Every nomination paper shall be signed by a person qualified to vote as proposer and the candidate shall sign his declaration on it expressing his willingness to stand for the election."
It is thus obvious that for a nomination paper to be valid it has to be signed by a person qualified to vote as proposer. Obligation to prepare lists of voters qualified to vote for each of the agriculturists constituencies etc. is placed upon the Election Officer by an express provision made under Rule 5 of the Rules. 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. No amendment, however, is permissible in the voters' list after the last day for making nomination for election in the constituency. Rule 14 enumerates the grounds upon which a nomination may be rejected. One of the grounds enumerated therein is that a nomination may be rejected if the proposer is a person whose name is not entered in the list of voters. Rule 15 provides for withdrawal of candidature and states that on completion of the scrutiny of nomination and after the expiry of the period within which candidature may be withdrawn, a list of persons whose nominations are in order and who have not withdrawn their candidature shall be prepared in form VI and affixed by the Election Officer on the notice board of his office and in the office of the Market Committee, not less than seven days before the date fixed for the election. Rules provide the procedure for election, if the number of the candidates who are duly nominated and who have not withdrawn their candidature exceeds that of the vacancies by ballot and thereafter declaration of the name of the candidate obtaining highest number of valid votes and if the number of such candidates is less than the number of vacancies, declaration of their names as duly elected. The two relevant rules are, Rule 16 (ii) and Rule 41. These rules state:--
Rule 16 (ii):-- "If the number of such candidates is less than the number of vacancies, all such candidates shall be declared to be duly elected and the Election Officer shall call upon the constituency to fill the remaining vacancies, as the case may be in accordance with election programme notified under Rule 8."
Rule 41:-- "Declaration of results-- (i) After completing the scrutiny and counting of votes, the Election Officer shall prepare a return of the result of the election in Form XIV, and declare such number of candidates equal to the number of seats in that constituency as have secured the highest number of votes in descending order to be duly elected.
(ii) Any candidate or his agent shall, on application, be permitted to take a copy or an extract of the return in Form XIV."
These rules thus provide for election in two different instalments. Declaration of the result of the election under Rule 16 (ii) may in a given case complete the election leaving no further election to be held on contest. In another case it may still be necessary to proceed to hold election on contest resulting in the declaration of results thereof under Rule 41. Rule 43 which provides for the determination of validity of election, however, says:--
"(i) At any time within fifteen days from the date of publication, under Rule 41, of the result of an election, any, candidate who stood for election or any person qualified to vote at that election may challenge the election by presenting an election petition by making..."
This rule or any other rule nowhere mentions that a declaration made under Rule 16 (ii) can be challenged in any manner. An appeal has been provided before the Director or the officer authorised by the Chairman of the Board within seven days of the decision of the Election Officer rejecting a nomination paper in Rule 14 (iv) which says:--
"An appeal shall lie against the decision of the Election Officer for the rejection of a nomination paper to the Director or the Officer authorised by the Chairman of the Board within seven days of such decision and the decision given by the Director or the authorised officer shall be final and binding and shall not be questioned in a court of law."
Although this rule makes the pronouncement of the appellate authority final and binding and also says that the same cannot be questioned in a court of law. Rule 43 (iii) (c) provides that the Munsif, who shall be holding enquiry into the validity of the election and exercising any of the powers of the civil court may set aside the election and direct for holding a fresh election if he is of opinion:--
"That any nomination has been improperly rejected."
5. Learned counsel for the petitioner has contended that the impugned order of the Director (Annexure 2) is without jurisdiction. According to him a declaration made under R. 16 (ii) is final and the same cannot be nullified on account of any post determination of the validity of a nomination paper under R. 14 (iv). The election of the petitioner can now be invalidated only under Rule 43 by the Munsif holding enquiry into the validity of election. He has further contended that the Director who heard the appeal filed on behalf of the respondent No. 4, was obliged to give a hearing to the petitioner and as no opportunity was given to the petitioner to place his case before the appellate authority the impugned order, (Annexure 2) has been passed in violation of the principles of natural justice. He has submitted that the Director (respondent No. 2) or the Secretary of the Board has no authority like one conferred upon the Munsif under Rule 43 to set aside the election and direct for a fresh election. The order as contained in the communication of the Secretary dated 21-3-1983 (Annexure 4) is, therefore, wholly without jurisdiction. Learned counsel appearing for the respondent Board as also learned counsel appearing for the respondent No. 4 have contended, on the other hand, that the declaration of the election of the petitioner under Rule 16 (ii) without awaiting the result of the appeal of the respondent No. 4 is invalid. In any event the exercise of appellate jurisdiction by the Director is authorised under Rule 14 (iv). As the Director, the appellate authority, has found that the nomination paper of the respondent No. 4 was wrongly rejected by the Election Officer, the respondent No. 4 was/is a candidate in the field and Rule 16 (ii), therefore, had/has no application in such a case. As the declaration of the election of the petitioner was/is a nullity, the direction as contained in Annexure-4 is a valid direction. Both the learned counsel for the Board and the learned counsel for the respondent No. 4 emphasised On the words used in the appellate order, "Heard both the parties at length" to suggest that the petitioner also was heard by the Director before passing the order According to them the petitioner was present before the Director. According to the counter affidavit of the respondent No. 4.:-- "the writ petitioner was present in the office of the respondent No. 2 and participated in the hearing of the appeal on 14-3-1983 which could be clearly borne out from the order contained in Annexure 2. The writ petitioner also filed voters' list personally, made submissions personally." Learned counsel for the respondents have also contested the contention of the learned counsel for the petitioner that the declaration made under R. 16 (ii) can be challenged under Rule 43. According to them in Rule 43 whereas there is a specific mention of 'publication of the result of the election under R. 41', there is no mention to such publication under Rule 16 (ii). Presentation of election petition under Rule 43 has been deliberately confined to the election under Rule 41. A Munsif entertaining election petition under Rule 43 in a case covered by Rule 16 (ii) shall do violance to the rule itself and act without jurisdiction.
6. Although, in my opinion, facts of this case do not require any detailed examination of the various provisions of the Act and the rules and this case can be disposed of on the adjudication of only two issues namely, (I) Whether the Director (respondent No. 2) violated the principles of natural justice in disposing of the appeal of the respondent No. 4 without giving any opportunity of hearing to the petitioner, and (II) Whether the rejection of the nomination paper of the respondent No. 4 by the respondent No. 3, was valid If the answer of these two issues are in the affirmative, the petitioner must succeed. If the answer of these two issues are in the negative, the petition must fail. But on the facts of the present case, in my view, the first issue has to be answered in favour of the petitioner and the second issue has to be answered in favour of the respondent No. 4.
7. It is admitted on all sides that the registered notice of the appeal issued by the respondent No. 2 on 7-3-1983 was received by the petitioner on 14-3-1983 at his village in the district of Bhojpur. The impugned order (Annexure 2) was passed on 14-3-1983. itself. The petitioner, therefore, had no notice of the appeal before its hearing by the Director (respondent No. 2). The respondent No. 4 has suggested that the petitioner was present, produced the voters' list at the hearing of the appeal and personally made submissions. It is fully evidenced by the contents of the impugned order (Annexure 2) that the respondent No. 4, the appellant before the Director and the Election Officer, respondent No. 3 were represented by their respective lawyers at the time of hearing and they were heard on the questions of fact and law. There is no record to show that the petitioner was represented by any counsel or that he was present himself. The statement in the counter affidavit of the respondent No. 4 that the petitioner was present, filed a copy of the voters' list and made some submissions personally is not supported even by a valid affidavit what to speak of any other evidence. It is not possible to hold that the petitioner was heard by the appellate authority. The respondents have not contested the proposition that in the absence of opportunity of hearing afforded to the petitioner the appellate order will be invalid. It is so well settled that it needs no repetition. A person who is likely to be visited with a civil consequence must be given adequate opportunity to represent his case. As a consequence of the appellate order the election of the petitioner was/is undoubtedly affected. As the petitioner was not heard by the appellate authority, the impugned order, (Annexure 2) having been made in violation of a well recognised principle of natural justice, is invalid.
8. Coming to the question of the validity of the rejection of the nomination paper of the respondent No. 4 by the Election Officer, the respondent No. 3, it has to be seen that one Sudarshan Singh signed as the proposer on the nomination paper of the respondent No. 4. In the voters' list of constituency No. 5 of the agriculturists his name was/is included at Sl. No. 60. There has been a mistake, however, in the printing of the voters' list and at the top of the page in which Sudarshan Singh's name was/is included instead of constituency No. 5, constituency No. 6 had/has been printed. This obviously was/is a printing mistake. In all the pages preceding page in which Sudarshan Singh's name was/is printed as also succeeding the said page correct constituency number and other particulars were/are printed. The respondent No. 3 rejected the nomination paper of the respondent No. 4 on the ground that Sudarshan Singh's name was not included in the voters' list of the constituency. The respondent No. 2 examined the voters' list and found that Sudarshan Singh, although belongs to a different village, was included in the voters' list at Sl. No. 60. He accordingly held that the rejection of the nomination paper of the respondent No. 4 by the respondent No. 3 was bad in law and set aside and declared his nomination valid. I have referred to Rule 14 (i) (a) earlier. Nomination of the respondent No. 4 could be rejected only if the proposer's name was not found entered in the list of voters. Some sort of clerical or printing mistake in the voters' list either in the name of the voter or in any other particular, cannot justify holding that the proposer's name is not included in the list of voters. On the question of rejection of a nomination paper on account of some misdescription as to the electoral roll number of the candidate or of the proposer and like defects quite a few cases under the Representation of the People Act (1951) have been decided. Provisions under Rule 14 are more or less similar to the provisions made in this behalf in the Representation of the People Act under which it has been made incumbent upon the Election Officer to record in writing a brief statement of his reasons for rejecting the nomination paper although for accepting the nomination paper he is not required to do so. In Section 33 (4) of the Representation of the People Act a proviso is appended saying:--
"Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral rolls or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked"
In cases after cases the Supreme Court emphasised:--
"What is of importance in an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that he is not otherwise disqualified. In other words those informations relate to the proof of the required qualifications" (see Ram Awadesh Singh v. Smt. Sumitra Devi, AIR 1972 SC 580). A nomination paper should not be rejected on such technical defects which occur on account of either clerical or printing mistakes. This, as the principle has been recognised by the Supreme Court in Dev Kanta Barooah v. Kusharam Nath (AIR 1961 SC 1125), and Rangilal Choudhury v. Dahu Sao, (AIR 1962 SC 1248). The learned counsel for the petitioner produced before us a copy of voters' list of constituency No. 5. There is misdescription at the relevant page and the constituency No. printed therein is different. The name of the village and the Panchayat is also different. But these descriptions are misprints and there is no manner of doubt that the proposer of the respondent No. 4 is shown at Sl. No. 60 of the voters' list of the constituency No. 5. True, there is no provision in the rules like one as contained in the proviso to Section 33 (4) of the Representation of the People Act, yet there is no reason not to accept as a principle that a defect which is not of substantial character such as an inaccurate description on account of printing error in the electoral roll should be ignored. Rejection of the nomination paper of the respondent No. 4 by the respondent No. 3 for the reason stated before us, falls in the category of a defect which is not of a substantial character. The respondent No. 2 has rightly held in his order (Annexure 2) that the nomination paper of the respondent No. 4 was valid and its rejection by the respondent No. 3 was illegal.
9. The event of the declaration in favour of the petitioner under R. 16 (ii) as the duly elected member of the Committee took place on 7-3-1983. The respondent No. 3 rejected the nomination paper of the respondent No. 4 on 26-2-1983 and as the candidates other than the petitioner withdrew from the contest on 2-3-1983, and the petitioner alone remained in the field in constituency No. 5, the respondent No. 3 was not required to follow the election programme any further. He could therefore make a declaration in favour of the petitioner under R. 16 (ii). The respondent No, 4 had, however, filed an appeal against the decision of the Election Officer rejecting the nomination paper before the Director (respondent No. 2) on 2-3-1983, that is to say within seven days of the decision rejecting his nomination paper as provided under Rule 14 (iv). Before the respondent No. 2 ordered for acceptance of the nomination paper of the respondent No. 4 in the appeal, the petitioner had been duly elected to the office. Although the appeal had been filed on 2-3-1983 and no declaration had been made under Rule 16 (ii) until that date or even thereafter until 7-3-1983, the respondent No. 2 did not pass any order of stay. Learned counsel for the petitioner has contended that the proceeding before the Director (respondent No. 2) became infructuous and the order passed by him on 14-3-1983 can have no effect in view of the declaration made under Section 16 (ii). This argument is attractive. It also finds support from the observations by Un-twalia, J. (as he then was) in the case of Dhanushdhari Prasad v. Sub-Divisional Magistrate, Saran, (1970 Pat LJR 539). In an election held under Bihar Panchayat Elections Rules, 1959, Dhanushdhari Prasad was declared duly elected under Rule 26 thereof. The nomination paper of the respondent No. 2 of his case had been rejected by the Election Officer on 5-2-1970 and he had filed objection under Rule 23 (4) of the said rules before the Sub-divisional Magistrate on 9-2-1970. Before the disposal of his objections, however, the Election Officer declared Dhanushdhari Prasad duly elected to the office of the Mukhia of the Gram Panchayat concerned under R. 26 of the said rules on or before 16-2-1970. Rule 23 (4) of the Panchayat Elections Rules with which Untwalia, J. was concerned prescribed a period of seven days for the objections to the rejection of the nomination paper. It provided a further period of one week for disposal of the objections. This Court in several decisions has held that the period of seven days provided for the filing of the objection petition is mandatory but the period of one week provided thereafter for disposal of the objections is directory. In the case before Untwalia, J. the declaration made on or before 16-2-1970 fell within two weeks counted from the date of rejection of the nomination paper. Rejecting the argument that the proceeding before the Sub-divisional Magistrate had become infructuous and the order recorded by him on 23-2-1970 could not be given effect to. Untwalia, J. said:--
"I am unable to accept this argument. For the purpose of making the order, the Sub-divisional Magistrate may take more time, but on the express language of Rule 26, it is abundantly clear that the Election Officer has no jurisdiction to make the declaration before the expiry of the period both for filing and disposal of the objection petition as provided in Sub-rule (4) of Rule 23. The period provided undoubtedly for both is two weeks. The second period may be directory, but that does not mean that the period is not provided in Rule 23 (4) of the Rules. It is provided and even if directory, ordinarily and generally, it is meant to be complied with and hence the Election Officer making a declaration under Rule 26 before the expiry of the total period of two weeks does an act which is ultra vires and his declaration must be held to be nullity. I am inclined to think, although that question does not arise in this case, that the declaration made on the expiry of two weeks and before passing of the order of the Sub-divisional Magistrate under Rule 23 (4) of the Rules may not be ultra vires, illegal or a nullity. But since in this case, the declaration was not made on the expiry of two weeks from 5-2-70, that is, on 20-2-70 and before 23-2-70, but it was made before the expiry of the period of two weeks, I have no doubt in my mind that such a declaration was illegal, ultra vires and a nullity."
A prescription, even though directory, for disposal of the objection petition filed under Rule 23 (4) of the Panchayat Elections Rules was available in Dhanu-shdhari Prasad's case for holding that the Election Officer could not make a declaration under Rule 26 before the expiry of the total period of two weeks. A period of seven days for filing the appeal against the decision of the Election Officer rejecting the nomination paper is prescribed under Rule 14 (iv). There is no prescription, however, for the disposal of the appeal by the Director or the officer authorised by the Chairman of the Board. On the basis of the ratio of the case of Dhanushdhari Prasad, the Election Officer undoubtedly, is obliged to wait for seven days from the date of the rejection of the nomination paper of a candidate to enable him to file appeal before the Director or the Officer authorised by the Chairman. A further obligation to wait until the date of withdrawal is over, can, by implication, be read in Rule 15. No statutory obligation to wait for any period thereafter is available under the rules. A declaration made under Rule 16 (ii) after the expiry of the period of seven days prescribed under Rule 14 (iv) and the period of 3 days under Rule 15, therefore, cannot be said to be ultra vires, illegal or nullity.
10. There is no specific provision under rules empowering the Director or the Officer authorised by the Chairman of the Board to stay further proceedings in the election. It is doubtful, in the absence of a specific provision that the Director or the officer authorised by the Chairman of the Board shall have the power to stay further proceedings in the election. The election officer cannot call upon the constituency to fill the remaining vacancies in accordance with election programme notified under Rule 8 unless he takes a decision and makes declaration under Rule 16 (ii). Rules suffer from serious lacuna in this regard. Perhaps prompt and immediate action in course of election by the concerned officers alone can save incidents like one in the instant case. It is possible in a given case for the appellate authority to dispose of the appeal before the Election Officer's action under Rule 16 (ii). In that case the Election Officer shall be obliged to follow the directions of the appellate authority. But if no such appellate decision comes before the stage of Rule 16 is reached the Election Officer on the date fixed for deciding to proceed with the election cannot postpone the declaration under Rule 16 (ii).
11. Can it then be said that the order of the appellate authority coming after the declaration under R. 16 (ii) is infructuous and cannot be given effect to? In my view, a declaration under Rule 16 (ii) made after seven days as prescribed under Rule 14 (iv) and three days under Rule 15 (i) may not be given effect to. A person aggrieved by the rejection of his nomination paper will now be required to challenge the election in accordance with law. But a declaration made within the time limit for filing the appeal under Rule 14 (iv) and three days under Rule 15 shall be invalid. The Election Officer shall be obliged to act in accordance with the directions of the appellate authority.
12. What, is then the remedy to a person who is deprived of this right to contest the election on account of illegal rejection of his nomination paper? The instant case is a glaring example of the denial of the right to contest the election. I have pointed out earlier that improper rejection of a nomination paper is a ground to set aside an election under Rule 43 (iii) (c). But Rule 43 says that election can be challenged by presenting an election petition at any time within fifteen days from the date of publication, under Rule 41, of the result of an election. In Rule 43 there is no mention of declaration made under Rule 16 (ii). On the basis of this, it has been argued before us that no election petition can be filed against a declaration made under Rule 16 (ii). I have given anxious consideration to this aspect of the law. In my opinion, even a declaration made under Rule 16 (ii) shall be covered by Rule 43. Support for this conclusion is available in the language of the relevant rules. Rule 16 (ii) has envisaged a situation in which number of candidates is less than the number of vacancies. The Election Officer is required to make the declaration in favour of the candidates who fit in the vacancies. Rule 16 (ii) still requires the election officer to proceed with the election programme notified under Rule 8 for remaining seats. Declaration under Rule 16 (ii) is thus a step in the process of election. Not one but all the constituencies are called upon to elect their representatives under Rule 7. Notice to elect their representatives is given to the electorate of the constituencies according to the election programme published in accordance with Rule 8. Nominations followed by different steps in course of election culminate in the poll and declaration of results under Rule 41. A person declared elected under Rule 16 (ii) can take his office only after the Election Officer shall prepare a return of the result of the election in form XIV and declare the candidates elected under Rule 41. Market Committee shall be deemed to be constituted only there-after. It cannot, therefore, be reason-able to suggest that validity of election of a candidate declared elected under Rule 16 (ii) cannot be challenged under Rule 43. Moreover there is nothing in the language of Rule 43 to suggest that challenge is confined to the declarations made under Rule 41. The opening words of the rule only show that the time limit under which election may be challenged is fifteen days from the date of publication under Rule 41, but the petition presented under Rule 43 may challenge any election by, making the candidates at the election parties to the petition and after complying with requirements of deposits of security for costs etc. It is not possible to read in the words "may challenge the election", further words "under Rule 41" or like words to restrict the challenge to the candidates declared elected under Rule 41 only.
13. In the instant case, however, I do not propose to leave the parties to get the issues settled by the Munsif under Rule 43. Right to challenge an election by filing election petition may be an adequate and effective remedy, yet this Courts' jurisdiction is not ousted Unless the order of the respondent No. 2 as contained in Annexure 2 is set aside and consequently the direction as contained in Annexure 4 is made inoperative, the petitioner cannot claim on the basis of declaration under Rule 16 (ii) that he is a member of the committee. I have found that the order of the Director (Annexure-2) is bad in law. But at the same time I have also found that declaration by the Election Officer under Rule 16 (ii) in favour of the petitioner is illegal. If on account of the infirmities noticed by me the order of the respondent No. 2 (Annexure 2) will be quashed without quashing the declaration made by the Election Officer in favour of the petitioner, a bad and invalid action shall be perpetuated. It is well settled that an order which may be bad and invalid should not be quashed if its quashing shall perpetuate another illegality. Alternatively if one bad order is brought to the notice of the Court and in course of hearing it has noticed another bad order which should not be allowed to exist, it can suo motu exercise its jurisdiction under Article 226 of the Constitution and invalidate that order.
14. During the course of hearing we have been informed that the date of poll had been fixed and when this Court admitted this application it did not stay the poll, but only stayed the publication of the result. Learned counsel for the petitioner has, however, submitted that the date of poll was fixed under an invalid order of the Director of the Board (Annexure-2), There has been no valid order declaring the petitioner's election under Rule 16 (ii) invalid. Until declared invalid by a competent court or authority, the respondents 1 to 3 could not treat the constituency vacant. There is substance in this contention of the learned counsel. It will be improper to recognise as valid actions taken by the respondents 1 to 3 pursuant to the order as contained in Annexure-2. The respondents cannot take advantage of the principle that a void action should be ignored as learned counsel for the petitioner has rightly contended that until avoided declaration of election of the petitioner is valid.
15. To conclude, there is force in the contentions of learned counsel for the petitioner that the order as contained in Annexure-2 is invalid. There is also force in the contention of the learned counsel for the respondents that the declaration of the election of the petitioner under Rule 16 (ii) and the rejection of the nomination paper of the respondent No. 4 are illegal and void. I accordingly hold that the order as contained in Annexure-2 is void and fit to be quashed. The declaration of the election of the petitioner by the respondent No. 3 under Rule 16 (ii) is also bad in law and fit to be quashed.
16. In the result this application is allowed, the order of the Director, Bihar Agricultural Produce Marketing Board, Patna dated 14-3-1973 is hereby quashed. Consequently the communication of the Secretary of the Bihar State Agricultural Marketing Board, as contained in Annexure-4, is also quashed and all consequential actions are declared invalid. Let a writ in the nature of certiorari accordingly issue. The declaration of the election of the petitioner under Rule 16 (ii) by the respondent No. 3 as a member of Agricultural Produce Market Committee, Arrah is hereby declared void. Rejection of the nomination paper of the respondent No. 3 on 26-2-1983 in constituency No. 5 of Agricultural produce Market Committee, Arrah is also hereby quashed. The respondent NOS. 1 to 3 are directed to hold a fresh election in accordance with law. Let a writ in the nature of mandamus accordingly issue. On the facts and in the circumstances of this case there shall, however, be no order as to costs.
S. Sarwar Ali, Actg. C.J.
I agree.