Patna High Court
Dilip Kumar Singh And Anr. vs State Of Bihar And Ors. on 5 May, 1970
Equivalent citations: AIR1971PAT65, AIR 1971 PATNA 65, 1970 BLJR 692, ILR 49 PAT 415, 1970 PATLJR 319
JUDGMENT Shambhu Prasad Singh, J.
1. These two writ applications under Articles 226 and 227 of the Constitution of India arise out of Gram Panchayat elections. As some of the questions involved in them are common, they have been heard together and are being disposed of by this common judgment.
2. The petitioner in C.W.J.C. No. 1572 of 1969 is a voter of Damodarpur Bhojpati Gram Panchayat within Mahua Block, in the District of Muzaffarpur, and has prayed for declaring void and without jurisdiction the election of the said Gram Panchayat held on the 13th of November, 1969. The programme for the election was published, on the 23rd of May, 1969, and nomination papers of various candidates for the different offices of the said Gram Panchayat were received on the 5th of June, 1969. According to the said programme, polling was to take place on the 18th of August, 1969. By a general order of the State Government, respondent No. 1, the election of the Panchayat was postponed on account of rain. Block Development Officer, Mahua, respondent No. 4, who was the Election Officer, then fixed up the 13th of November, 1969, as the date for the Poll and the polling did take place on that date. According to allegations, made in the petition, the election is bad on the following grounds.:--
(i) The revised programme for the election was not published by beat of drums in the Wards of the Panchayat as required by Rule 17 of the Bihar Panchayat Election Rules, 1959, (hereinafter to be referred to as 'the Rules').
(ii) According to Rule 31 of the Rules, Polling stations should have been selected by the Sub-divisional Officer, Hajipur, respondent No. 3, but they were, in fact, selected by respondent No. 4.
Approval of the District Magistrate was also not obtained.
(iii) Rule 21 of the Rules has been amended. The amendment prescribes a non-refundable nomination fee of Rs. 20 for the offices of Mukhia and Sarpanch and a fee of Rs. 10 for other offices. Rule 23, has also been amended authorising the Election Officer to reject the nomination papers which are not accompanied by a receipt showing deposit of the nomination fee. These amendments of Rules 21 and 23 are beyond the rule-making powers of the State Government under Section 80 of the Bihar Panchayat Raj Act, 1947 (hereinafter to be referred to as 'the Act'). The amendments are also bad as they have the effect of adding another disqualification to the disqualifications enumerated under Section 79 of the Act.
(iv) The electoral roll of the Gram Panchayat was not revised as required by the rules as a result of which large number of persons were deprived from exercising their franchise in the election held on the 13th November 1969.
(v) Two villages, Rajopur Baraie and Baraie, of Lalganj Police Station lying within Lalganj Block have also been included in the Damodarpur Bhojpati Gram Panchayat with the result that the voters of those villages will have a say in the election of the Panchayat Pramukh for the Panchayat Samiti of Mahua Block. Respondent Nos. 5, 11 and 14 (who?) have been elected to some of the offices of the Gram Panchayat at the said election have been described as residents of the aforesaid two villages.
3. Two counter-affidavits have been filed, one on behalf of respondent No. 5, one of the elected persons and another on behalf of respondent No. 4. They, inter alia, state that the revised poll programme was published in the different Wards of the Gram Panchayat by beat of drums, that the polling stations were selected by the Sub-divisional Officer and approval of the District Magistrate was obtained, that amendments of Rules 21 and 23 were legally made by respondent No. 1 and they were within its competence, that the voters' list was amended and revised up to the year 1968 and the election on the 13th November, 1969 was held on the correct voters list "for the time being in force" within the meaning of Rule 5 of the Rules and that the two villages Rajopur and Baraie are within Mahua Block, It is further stated in the counter-affidavit filed on behalf of respondent No. 5 that respondent Nos. 5, 11 and 14 are residents of villages within Damodar Bhojpati Gram Panchayat within Mahua Block, that the two villages lie within Mahua Police station and not within Lalganj Police Station and that the present petition has been filed at the instance of Bindeshwari Pd. Sindh, ex-Mukhia of the Gram Panchayat, who has been defeated at the poll and has also filed an election petition before the Election Tribunal under Rule 70 of the Rules.
4. While hearing of the petition was going on, a counter-affidavit was also filed on behalf of respondent No. 1 stating, inter alia, that Rules 21 and 23 were amended and a nomination fee was imposed to meet only a part of the huge expenditure over Gram Panchayat elections inasmuch as respondent No. 1 due to financial stringency was not in a position to hold the election to the Panchayats in time in past.
5. Mr. Satyanand Kumar who appeared for the petitioner did not challenge the validity of the election on ground Nos. (i), (ii) and (v). He confined his arguments only to ground Nos. (iii) and (iv). Apart from contending that there was no substance in the aforesaid two grounds raised on behalf of the petitioner, Mr. Shreenath Singh, appearing on behalf of respondents 1 to 4, contended that as the petitioner had not exhausted the alternative remedy of filing an election petition, the writ application was not maintainable. Thus, on the contentions of the parties the following points arise for decision in this writ application:--
(i) Whether it was within the competence of the State Government to amend Rules 21 and 23 of the Rules thereby imposing a non-refundable nomination fee and disqualifying a person from being a candidate for the election if he was not able to deposit the fee, and can the election be challenged at the instance of the petitioner on the ground that the State Government could not legally amend the rules ?
(ii) Is an election held on a voters' list not revised to make it up-to-date valid and legal ?
(iii) Is the writ application maintainable inasmuch as the petitioner has not exhausted the alternative remedy of filing an election petition before the Election Tribunal under Rule 70 of the Rules ?
6. C.W.J.C. No. 1634 of 1969 relates to Mahthour Gram Panchayat within Manigachi Block, in the district of Darbhanga. The petitioner of that case describes himself as a citizen of India and a resident of village Mahthour. He has not stated specifically whether he was a candidate for any of the offices of the Gram Panchayat at the election or is a voter. According to the original programme for holding the election, nomination papers were to be filed on the 4th of June, 1969 and polling was to take place on the 27th of September, 1969. The polling was postponed by an order of the State Government (not made a party to the application) on account of rains. Subsequently the petitioner came to learn that polling was to take place on the 14th of December, 1969, though no fresh programme for the election was published as required by Rule 17 of the Rules. Accordingly, he filed this writ application for restraining the Sub-Divisional Officer, Darbhanga Sadar, respondent No. 1, and the Block Development Officer, Manigachi, respondent No. 2, from holding the election on the 14th of December, 1969. At the time of the admission he also got an order of stay with the result that the polling has not taken place so far. According to allegations made in his petition, the election will be illegal on the following grounds:--
(i) The amendments of Rules 21 and 23 of the Rules (details whereof have already been stated earlier while stating the facts of the other case) are illegal and beyond the competence of the State Government.
(ii) The voters' list has not been revised since after 1966 and the election, cannot be held on such a voters' list.
(iii) The election cannot be held without a fresh publication of the changed programme for the election.
(iv) No election can be held after six months of the filing of the nomination papers without calling for fresh nominations. Such an election will be in contravention of Rules 90 and 91 of the Rules.
7. A counter-affidavit has been filed on behalf of respondent No. 2 stating, inter alia, that the amendments of Rules 21 and 23 are legal and valid, that the voters' list on which the election was to be held was proper and in accordance with the rules, that the revised election programme was duly published in every ward of the panchayat by beat of drums and also otherwise in accordance with the rules and that the holding of election on the 14th of December, 1969 without calling for fresh nomination papers was justified and valid in accordance with the amended Rule 90 of the Rules. It has further been stated in the counter-affidavit that persons who were candidates for the offices of Member of the Executive Committee/and Panches were declared elected uncontested much before the filing of this writ application.
8. Mr. Satyanand Kumar, who also appeared on behalf of the petitioner in this writ application, did not press the ground with regard to the fresh publication of the revised programme of the election. The maintainability of this writ application was also challenged on the ground that the alternative remedy of filing an election petition before the Election Tribunal under Rule 70 has not been exhausted. The questions, therefore, which arise for decision in this case are the same which arise for decision in the other case except that a further Question, as stated below, also arises for decision in this writ application:--
(iv) Whether the election can be held without inviting fresh nomination papers after six months of the filing of the earlier nomination papers ?
9. I propose to address myself on the second point first. It is alleged in paragraph 14 of the petition in C.W.J.C. No. 1572 of 1969 that election of the Gram Panchayat was held on the basis of electoral roll prepared in 1966 for the general election held in 1967. In the counter-affidavits it is stated that the aforesaid allegation is not correct and election was held on the basis of voters' list as amended and revised up to the year 1968. In the other writ application also in paragraph 11 it has been alleged that election was to be held on the electoral roll of 1966. The counter-affidavit filed in that application too states that the voters' list was revised in the year 1968. Thus, there is a controversy between the parties of both the writ applications whether the voters' list was revised in the year 1968 or not.
In writ applications this Court ought not to investigate disputed questions of fact. In the circumstances, the contention of Mr. Satyanand Kumar that as the respondents to the writ application have not produced revised voters' list of the Gram Panchayats concerned this Court should hold that election was held or was to be held on the basis of the voters' list prepared in the year 1966 cannot be accepted. But Mr. Kumar further contended that as admittedly the voters' list was not revised in the year 1969, the election held for Damodarpur Bhojpati Gram Panchayat was and to be held for Mahthour Gram Panchayat will be illegal. In support of this contention Mr. Kumar relied on Rule 25 of the Registration of Electors Rules, 1960, made under the Representation of the People Act, 1950 (Act 43 of 1950). According to Mr. Kumar this rule requires annual revision of rolls and they ought to have been revised in the year 1969. In its body the rule nowhere provides for annual revision of the rolls but it has got its heading "Annual revision of Rolls". The submission of Mr. Kumar, it appears, was based on the heading. I would assume in his favour that the aforesaid rule requires annual revision of the electoral roll, but, in my opinion, no election of a Gram Panchayat can be held to be illegal on the ground that the voters' list was not annually revised as required by the aforesaid rule. The relevant rule with which we are really concerned for decision of this point is Rule 5 (1) of the Rules (Bihar Panchayat Election Rules) which runs as follows:--
"5 (1). So much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar, for the time being in force, as relates to the areas comprised within the local limits of the jurisdiction of a panchayat, shall be deemed to be the voters' list for that Panchayat for the purpose of election of Mukhiya and Sarpanch and so much of the said electoral roll or rolls as appertain to a particular ward, constituted under Rule 4 of these rules, shall be deemed to be the voters' list of that particular ward for the purpose of election of panch and Member of the Executive Committee from the ward concerned."
For finding out what is the electoral roll| or rolls of an assembly constituency of this State "for the time being in force" a reference has to be made to Section 21 of the Representation of the People Act, 1950. The section deals with preparation and revision of electoral rolls and provides as follows:--
"21. Preparation and revision of electoral rolls.--(1) The electoral roll for each constituency shall be prepared in the prescribed manner by 'reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act.
(2) The said electoral roll shall thereafter be revised in every subsequent year in the prescribed manner by reference to the qualifying date :
Provided that if for any reason the electoral roll is not revised in any year the validity or continued operation of the electoral roll shall not thereby be affected.
(3) Notwithstanding anything contained in Sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit:
Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed."
10. The provisions of Sub-sections (2) and (3) of Section 21 of the Representation of the People Act, 1950 make abundantly clear that the validity of an electoral roll or the voters' list is not affected if it is not revised as required by this section and even when a special revision is ordered, so long it is not completed, the unrevised electoral roll or voters' list continues to be in force and valid. The voters' lists as revised in the year 1968 of the State Assembly constituencies to which the aforesaid two Gram Panchayats appertain, or as a matter of fact, even of the year 1966, if there was no revision in the years 1967 and 1968, will be valid voters' lists "for the time being in force" for the purposes of Rule 5 of the Rules.
Mr. Kumar had to concede that he was under the impression that Section 21 of the Representation of the People Act, 1950, was no longer on the statute book and had been repealed by the Representation of the People Act, 1951. But as this is not a fact and Section 21 of the Representation of the People Act, 1950 is still law in force, it has to be held that the entire argument of Mr. Kumar in relation to the question under consideration was made under misconcepion and there is no merit in it. Consequently, the election held for Damodarpur Bhojpati Gram Panchayat cannot be held to be illegal on the ground that there was no revision of the voters' list in the year 1969 or even in the years 1967 or 1968. Similarly the holding of election for Mahthour Gram Panchayat cannot be stayed that there has been no revision of the voters' list for that Gram Panchayat.
11. I would next take up for consideration point No. 4 which relates to C.W.J.C. No. 1634 of 1969 only. The 14th of December, 1969, the date fixed for polling, was beyond six months of the 4th of June, 1969, when the nomination papers were filed, is not in dispute. According to Mr. Kumar, as fresh nomination papers were not called for, the election, if held, on the 14th of December, 1969, would have been illegal. This contention of Mr. Kumar is correct or incorrect depends on the interpretation of Rules 90 and 91 of the Rules. At the time of filing of the nomination papers on the 4th of June, 1969 or on the 27th of September, 1969, the date fixed originally for polling. Rule 90 stood as follows:--
"90. In case election of Panchayat is not held for some reason or the other within a period of six months from the date of filing of nomination papers, the election shall be held after calling for fresh nomination papers."
This rule was amended by the State Government. The amendment was published in the Bihar Gazette Extra ordinary dated the 26th of November, 1969. The rule as it stands after amendment is as follows :--
"90. In case election of Panchayat is not held for some reason or the other within a period of six months from the date of filing of nomination papers or within such further period, not exceeding sixty days, as the District Magistrate may under special circumstances and in public interest, extend, by an order in writing, the election shall be held after calling for fresh nomination papers."
A comparison of the rule as it originally stood and the rule as it stands after amendment will show that the words underlined in the amended rule, quoted above, have been added to the original rule. These newly added words confer on the District Magistrate power to extend the period of six months by sixty days. In other words, according to the amended rule, no fresh nomination papers need be called for if the election is held within eight months (roughly) and there is an order of the District Magistrate for extending the period of six months. Mr. Kumar challenged the validity of the amendment on the ground that it was mala fide, but as there is no allegation in the application that the State Government amended Rule 90 mala fide, Mr. Kumar cannot be allowed to make such a submission.
12. Mr. Kumar next contended that the amendment could not have retroactive operation and, therefore, could not apply to cases where nomination papers had already been filed like the present one. In my opinion, there is no substance in this contention of Mr. Kumar. Six months had not elapsed from the 4th June, 1969 on the 26th of November, 1969 when the amendment was published in the Bihar Gazette and came into force. If six months would have elapsed, certainly the amended rule would not have applied to the present case. After the amendment came into force the District Magistrate had power within six months of the filing of the nomination papers to extend the date of holding of the election of Panchayat for any further period not exceeding sixty days. The present case would be governed by the amended Rule 90 and not as it originally stood, and as the extended date for poll, i.e., the 14th of December 1969, was not beyond sixty days from six months of the filing of the nomination papers, the election, if held on that date, would not have been illegal and invalid.
13. The extension of date for polling to the 14th of December, 1969 was not illegal also on account of Rule 91 of the Rules which runs as follows:--
"91. In cases of emergency like outbreak of epidemics, fire, flood, famine, communal riot or maintenance of law and order the District Magistrate may, by an order in writing, and similarly the State Government may also, in any of the above cases or for any other reason stated in the order, stay the holding of elections to Panchayats in any local area for such time as they may, in their discretion, consider necessary."
Admittedly the election which was to be held on the 27th of September, 1969 was stayed by an order of the State Government on account of rainy season. The State Government was competent to pass such an order under Rule 91 was not disputed, but it was contended by Mr. Kumar that Rule 91 is controlled by Rule 90 and the date to which election might be postponed, under Rule 91 ordinarily should not exceed six months and in case it did exceed, fresh nomination papers should be called for. In my opinion, Mr. Kumar is not right in his submission that Rule 91 is controlled by Rule 90. Rule 90 deals with ordinary cases whereas Rule 91 deals with extraordinary cases. It is like an exception to Rule 90 and in the circumstances mentioned in Rule 91, the election may be postponed by the District Magistrate or the State Government, as the case may be, even beyond eight months.
14. It was contended by learned counsel for the respondents that a provision in any statute or Rules for performing some act within a specified time limit is ordinarily directory and not mandatory and, therefore an election held after six months or even eight months of the filing of the nomination papers without calling for fresh nomination papers cannot be held to be illegal. On the other hand, it was contended on behalf of the petitioner that the provisions of Rule 90 are mandatory. If the elections are not held within the time limit prescribed by that rule, a right accrues to such voters of the Gram Panchayat who did not file their nomination papers earlier to file fresh nomination papers and contest the election and that if the election is held after the expiry of the period prescribed by Rule 90 without calling for fresh nomination papers the voters will be deprived of the aforesaid right.
It is now well-nigh settled that when a public duty is imposed and the statute requires that it shall be performed within a certain time, such prescription may well be regarded as intended to be directory only in cases where injustice or inconvenience to others who have no control over those exercising the duty would result, if such requirements were essential and imperative; and that where the invalidation of acts done in neglect of the prescription would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescription would be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or, in other words, as directory only. It is also well established that where the prescription affects the performance of a duty it is directory, and where it relates to a privilege or power it is mandatory or imperative.
Applying these principles for finding out whether the provisions of R. 90 are directory or mandatory, to me it appears that if the election is held after the period specified in that rule without calling for fresh nomination papers, that would result in injustice and inconvenience to others, namely, the voters of the Gram Panchayat who have no control over the Government officers required to act according to the provisions of the rule, inasmuch as, the voters would be deprived of their right to file fresh nomination papers and contest the election. It will result in more injustice or inconvenience to those persons residing within the limits of the Gram Panchayat whose names may be included in the voters' list on account of the revision of the rolls. Whether in fact there has been a revision of the rolls or not is not very material because whether the provisions of a statute or rule are directory or mandatory cannot be decided only with reference to the facts of each case. The directory or mandatory nature of the provisions has to be determined even with reference to contingencies which may arise. The essential aim of Rule 90, appears to give a chance for contesting' the election even to those who could not file their nomination papers in the first instance. A construction that the rule is imperative and therefore, in cases where election is postponed under that rule to a date beyond the period prescribed by it, fresh nomination papers must be invited, would promote that essential aim and would not work serious general inconvenience or injustice to any one. Further, disobedience of the rule would defeat the privilege of such persons who are entitled to contest the election on filing fresh nomination papers. Where non-observance of a rule for the conduct of election might affect the result of the election, the provisions of the rule are to be held as imperative and non-observance of calling for fresh nomination capers as required by Rule 90, there can be no doubt, might affect the result of the election. In my opinion, therefore, the requirement imposed by Rule 90 for calling for fresh nomination papers, if the election is not held within the time mentioned in Rule 90, is mandatory. Of course, as observed earlier, it is subject to the exception contained in Rule 91.
15. Because of an order of stay passed by this Court the election could not be held on the 14th of December, 1969. It shall have to be held now on a date which may be fixed hereafter for the purpose. Ordinarily, one would expect that fresh nomination papers will be called for, for that election, but if the election is held without calling for fresh nomination papers, whether such election will be valid or invalid cannot be decided on the materials available on the record at present. The answer to that question will depend on whether the order fixing the date for election is under Rule 90 or Rule 91. It is not necessary to make any further observation on this aspect of the matter.
16. In order to appreciate various contentions of learned counsel for the parties in respect of point No. (1), it may be necessary to quote Sub-rules (6), (7) and (8) which have been added to Rule 21 of the Rules by the amendment. They run as follows:--
"(6) Every nomination paper filed under Sub-rule (3) shall be accompanied with a nomination fee of rupees twenty for the post of Mukhiya or Sarpanch and rupees ten for the post of Panch or member of the Executive Committee, as the case may be. For members of the Scheduled Tribes and Scheduled Castes the aforesaid fee would be rupees ten for the office of Mukhiya and Sarpanch and rupees five for the office of Panch or Member of Executive Committee.
Provided that where a person has been nominated by more than one nomination paper, not more than one nomination fee would be required to be paid.
(7) The nomination fee shall be deposited:--
(a) in cash to the Election Officer at the time of filing nomination paper who shall cause a receipt to be granted to him; and shall subscribe on the nomination paper giving the receipt number an endorsement to the effect that the nomination fee has been paid in cash; or
(b) in a Government treasury or sub-treasury under head 'III-Misc. Receipt under the Panchayat Act-Fees, Fines and forfeiture under Bihar Panchayat Raj Act, 1947 other receipts' (8) The nomination fee deposited under sub-rule (7) shall not be refundable in any case."
There was some discussion at the bar whether the amount to be deposited before filing of the nomination paper, according to Sub-rules (6) and (7), is a tax or a fee. The contention of Mr. Kumar was that it is a tax inasmuch as it has been made non-refundable and goes to the general Government exchequer. According to Mr. Shreenath Singh, learned counsel for the State, it was a mere fee and not a tax for according to the counter-affidavit filed by the State Government, it was imposed to meet part of the expenses incurred by the State Government on Gram Panchayat elections and was thus correlated with the services rendered by the State in the matter of holding Gram Panchayat elections. The distinction between a tax and a fee was considered at some length by the Supreme Court in the Commr. Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, Undoubtedly, as observed in that judgment by the Supreme Court, the impost going to the general Government exchequer and not being set apart for a particular purpose and the impost realised being correlated with the services rendered by the State Government are relevant considerations in deciding whether the impost is a tax or a fee. The primary distinction between a tax and a fee, according to the said judgment, is as follows:--
"The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privileges. Fees confer a special capacity, although the special advantage, as for example, in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest ............... Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives .........; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action ... ... ... ... ..."
However, as in my opinion, the nomination fee imposed by amendment of Rule 21, even if a fee, is illegal and could not be imposed by the State Government, I do not consider it necessary to give a definite finding whether it is a tax or a fee. I would assume that it is a fee as contended by learned counsel for respondents 1 to 4.
17. The question which next arises for consideration is whether the fee imposed by amendment of Rule 21 could be levied by the State Government under the power of making rules conferred upon it by the Act. The relevant sections of the Act which may be said to be conferring on the State Government power to make rules for the purpose of election of various offices of the Gram panchayat (excepting those of Up-Muk-hiya and Up-Sarpanch, it is not necessary to refer to the election of Up-Mukhiya and Up-Sarpanch inasmuch as they are not directly but indirectly elected by the members of the Executive Committee and Panches respectively), are Sections 10, 11, 49, 51 and 80. Section 10 provides that as soon as may be after its establishment every Gram Panchayat shall i the prescribed manner elect from amongst its own number a Mukhiya. Section 11 lays down that four members of the Executive Committee should be elected by the Gram Panchayat in such manner as may be prescribed. Section 49 says that every Gram Panchayat shall for the purposes of discharging the judicial functions imposed upon it by or under the Act establish a Gram Cutcherry consisting of a panel of 9 Panches including Sarpanch out of which four Panches shall be elect-ed by the Gram Panchayat............... in such manner as may be prescribed by rules made in this behalf.
According to Section 51 (1), every Gram Panchayat shall in the prescribed manner elect from, amongst its own number a person to act as a Sarpanch in the Gram Panchayat. The words underlined indicate that elections of the Mukhiya, four members of the Executive Committee, the Sarpanch and four of the Panches are to be held according to the rules framed by the State Government. Sub-section (1) of Section 80 provides in general that the State Government may after previous publication make rules for carrying out the purposes of the Act. Clause (d) of Sub-section (2) of this section specifically authorises the State Government to make rules with regard to the manner of electing a Mukhiya and Clause (q) of the Sub-section provides for making rules with regard to the qualifications and the manner of election of Panches and manner of publication of their names.
It was not disputed by Mr. Kumar who appeared for the petitioners that the various provisions of the Act referred to above do authorise the State Government for making rules with regard to the elections of Mukhiya, members of the Executive Committee, Sarpanch and Panches, but he contended that these provisions of the Act when considered with other provisions thereof could not be interpreted to confer power on the State Government to impose a nomination fee. Before referring to the various other provisions of the Act on which he relied, he contended that in absence of any express provision for levying an impost in the statute itself or to make rules for levy of an impost, as is the case with the Act, it could not and should not be held that the Act impliedly confers upon the State Government or any authority power to levy an impost like the nomination fee imposed by the amendment of Rule 21. This contention is supported by the decision of the Supreme Court in Md. Yasin v. Town Area Committee, Jalalabad, AIR 1952 SC 115 that no impost can be levied by any bye-law, rule or regulation unless the statute under which the subordinate legislation is made specifically authorises the imposition.
18. Coming now to the various provisions of the Act, on which Mr. Kumar placed reliance in support of his contention that the State Government has not been conferred power to make rules for levy of a nomination fee as imposed by amendment of Rule 21, reference in the first instance may be made to Clauses (m) and (p) of Sub-section (2) of Section 80. According to these two clauses, the State Government can make rules for imposition of taxes and levy of supplementary taxes by a Gram Panchayat. It can safely be inferred from the existence of Clauses (m) and (p) in Sub-section (2) of Section 80 that if the framers of the Act would have intended to confer a power on the State Government for levy of imposts by the Government itself, they would have made provisions similar to Clauses (m) and (p) in Section 80. The other provisions of the Act relevant to this question are Sections 46 and 47. Section 46 deals with compulsory tax and is as follows:--
"46. Compulsory Tax--(1) Sublect to any rules or any general order that may be made or issued by the Government in this behalf, the tax which a 'Gram Panchayat' shall levy, shall be a tax in cash, at the prescribed rate payable by persons owning immovable property within the local limits of the jurisdiction of the 'Gram Panchayat'.
(2) The tax mentioned' in Sub-section (1) shall be assessed and realised in such manner as may be prescribed.
Section 47 deals with supplementary taxes and runs as follows:--
47. Supplementary taxes--(1) Subject to the prescribed rules and any general or special orders of the Government in this behalf, a 'Gram Panchayat' may levy--
(a) a licence fee on persons practising as professional buyers, brokers, commission agents, weighers or measurers;
(b) with the previous sanction of the Government, a tax on persons exercising any calling (other than agriculture), profession or trade within the jurisdiction of the 'Gram Panchayat';
(c) a tax on vehicles, pack animals and porters bringing goods for sale into the village;
(d) fees on goods exposed for sale in any market or place belonging to, or under the control of, the 'Gram Panchayat';
(e) fees on registration of animals sold within, the village area;
(f) fees for the use of sarais, dharam-shalas, rest houses and encamping grounds vesting in the "Gram Panchayat";
(g) a water-rate, where water is supplied by the 'Gram Panchayat';
(h) a latrine tax where arrangement for the service of latrine is made by the 'Gram Panchayat';
(i) a lighting rate where lighting of public streets, places and buildings is undertaken by the 'Gram Panchayat'.
(j) a drainage fee where a system of drainage has been introduced by the 'Gram Panchayat';
(k) a pilgrim tax at places of worship and pilgrimage within the village, if approved by the Government; and (1) any other tax, toll, fee or rate approved by the Government for the services rendered by the 'Gram Panchayat';
Provided that the Executive Committee may, subject to an immediate report being submitted to the Government or the prescribed authority, impose an emergency tax on the occurrence of any emergency and that the said tax shall at any time cease to be levied if so directed by the Government or the prescribed authority;
Provided "further that no tax, toll, fee or rate shall be imposed if such tax, toll, fee or rate has already been imposed by the District Board in the 'Gram Panchayat' area;
Provided further that no tax, toll, fee or rate shall be levied by a 'Gram Panchayat' if such tax, toll, fee or rate has already been levied by another 'Gram Panchayat' in respect of the same person or thing as is specified in Clause (a), (b), (c) or (d).
(2) No objection shall be taken to any assessment nor shall the liability of any person to be assessed or taxed be questioned, otherwise than in accordance with the provisions of this Act or the rules made thereunder."
The expression "tax" in Section 47 appears to have been used loosely and is comprehensive enough to include other imposts which cannot be said to be taxes in the strict sense of the term. These two sections authorise the Gram Panchayat to levy taxes or other imposts. If the framers of the Act would have intended that taxes or other imposts for carrying out the purposes of the Act should be levied by the State Government as well, they would have included in the Act provisions similar to those of Sections 46 and 47 for the purpose.
19. It was contended by Mr. Shreenath Singh that money would be required for holding of elections of Gram. Panchayat and for other necessary steps required to be taken with regard to the election of the Gram Panchayat and, therefore, the State Government must be deemed to have been impliedly vested by the Act with power to make rules for levying imposts for the purpose. Section 41 of the Act provides a direct answer to this contention of Mr. Singh. Sub-section (1) of that section lays down that for each Gram Panchayat there shall be formed Gram Panchayat Fund and there shall be placed to the credit thereof such proceeds of tax and other moneys received by it as may be prescribed. Clause (ii) of Sub-section (2) of that section provides that the Gram Panchayat Fund may be applied for holding of elections of the Gram Panchayat and other necessary steps required to be taken with regard to the elections of the Gram Panchayat. It cannot, therefore, be said that the framers of the Act did not apply themselves as to how the costs for holding of elections of Gram Panchayats and other necessary steps required to be taken with regard to the elections of Gram Panchayats were to be met with. They have expressly provided that these costs are to be met with from the Gram Panchayat Fund which also shows that they did not like the idea of the Government levying an impost for purposes of meeting the expenses incurred in holding of elections of Gram Panchayats independent of the imposts which could be levied by Gram Panchayats under Sections 46 and 47 of the Act. In my opinion, therefore, there can be no doubt that the Act does not authorise the State Government for levying any impost to be collected by itself under the rule-making powers conferred upon it and levying of a nomination fee as imposed by amendment to Rule 21 is foreign to the scheme of the Act.
20. It was contended by Mr. Kumar that Sub-rule (8) of Rule 21 of the Rules making the fee non-refundable was unreasonable and, therefore, should be struck down even in the event it was held that it was within the competence of the State Government to impose a nomination fee under rule-making power conferred upon it by the Act. In view of my finding that the State Government could not levy any impost to be collected by itself under the rule-making powers conferred upon it by the Act, it is not necessary to go into the question whether Sub-rule (8) is unreasonable.
21. Simultaneous with amendment of Rule 21 of the Rules, Rule 23 was also amended by adding the following as Clause (v) to Sub-rule (2) of that rule:--
"(v) that the candidate has not deposited the nomination fee required under Sub-rule (7) of the Rule 21." Sub-rule (2) of Rule 23 starts with:--
(2) The Election Officer shall then examine the nomination papers and shall decide all objections which may be made at the time to any nomination and may, either on such objection or on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination paper on any of the following grounds namely :--"
It then proceeds to state the various grounds including No. (v) added by the amendment. The contention of Mr. Kumar was that by the aforesaid amendment the State Government added a further disqualification to those enumerated in Section 79 of the Act for which it had no power. There may be substance in the contention that the State Government could not add a further disqualification to those enumerated in Section 79 of the Act, but Mr. Kumar does not appear to be correct that rejection of the nomination paper on the ground of non-deposit of the nomination fee would amount to a disqualification. Disqualification refers to something antecedent and any provision requiring something to be done at the time of filing of a nomination paper, non-observance of which would make the nomination paper liable for rejection, cannot be said to be adding a further disqualification. The language of sub-rule (2) of Rule 23 also makes it clear. Ground Nos. (i) and (ii) of this sub-rule which are as follows:--
"(i) That the candidate is disqualified from being chosen to fill the vacancy under Section 4 or Section 79 or Sub-rule (1) of Rule 21; or
(ii) that the proposer is disqualified from subscribing a nomination paper under sub-rule (4) of Rule 21, refer to disqualifications of the candidate and the proposer. There is no reference to any disqualification in ground No. (v) introduced by the amendment. A nomination paper may be rejected on grounds of disqualification of the candidate or the proposer or on other grounds such as ground Nos. (iii) and (iv) which run as follows:--
(iii) that there has been any failure to comply with any provision of these rules; or
(iv) that the signature or thumb mark of the candidate or of any proposer has been obtained by fraud" and ground No. (v). If the State Government would have power to impose a nomination fee, certainly it could make rule for rejection of the nomination paper on the ground of non-doposit of such a fee, However, as held earlier, the State Government could not impose the nomination fee, ground No. (v) of Sub-rule (2) of Rule 23 must be held to be ineffective and no nomination paper can be rejected because of failure on the part of the candidate to deposit the nomination fee required under Rule 21.
22. Another part of point No. (i) as formulated, namely, can the election be challenged at the instance of the petitioners on the ground that the State Government could not legally amend the rules, still remains to be considered. It is nowhere stated in either of the two petitions that nomination paper of any person including the petitioner was rejected on the ground of non-deposit of the nomination fee or that any of the petitioners or someone else could not file nomination paper because of Sub-rules (6) and (7) of Rule 21 of the Rules inasmuch as he had no means to deposit the nomination fee. Enforcement of Sub-rules (6) and (7) of Rule 21, therefore. could not have affected the result of the election of Damodarpur Bhojpati Gram Panchayat or would affect the result of the election of Mahthour Gram Panchayat. In my opinion, therefore, the petitioner in either of the two writ applications is not entitled to challenge the election concerned on the ground that the State Government could not legally impose the nomination fee.
23. Lastly I take up for consideration point No. (iii). Section 84-B of the Act runs as follows:--
"84-B:--Election not to be questioned except by Election petition. -- No election held under this Act or the rules made thereunder shall be called in question in any Court on any ground whatsoever except by an election petition presented to such authority and within such time and in such manner as may be prescribed.
Rule 70 of the Rules also provides that no election held under the Rules shall be called in question in any other manner on any ground whatsoever other than by a petition before the Election Tribunal appointed under the Rules. The contention of Mr, Shreenath Singh was that Section 84-B and Rule 70 provide an alternative remedy to the petitioners for challenging the election and as they did not avail of this alternative remedy, their applications under Articles 226 and 227 of the Constitution of India should not be entertained. Articles 226 and 227 of the Constitution confer very wide powers on the High Courts. They prescribe no limit on that power. It is not stated therein that a High Court cannot issue a writ if an alternative remedy is available to the petitioner and that has not been exhausted. But it is now well settled by the decisions of Courts in England, the country which gave origin to writ applications, or in other countries including this country run on democratic basis, that where an alternative remedy is open to a petitioner and he does not exhaust that remedy, a Court ordinarily should not issue writ in his favour. At the same time it is also well established that in appropriate cases writs may be issued by a High Court where an alternative remedy does exist and has not been availed of by the petitioner. Mr. Shreenath Singh, therefore, frankly conceded that he would not challenge the power of this Court to issue a writ under Articles 226 and 227 of the Constitution in cases where an alternative remedy was open to the petitioner and was not availed of, but would contend that in such cases, ordinarily this Court would not exercise its discretion of issuing a writ in favour of the petitioners. According to Mr. Singh, there was nothing exceptional in the two applications before us and as an alternative remedy was open to the petitioners and they did not avail of that remedy, we should refuse to entertain the 'applications.
24. In a recent case Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, 1969 BLJR 690 = (AIR 1969 SC 556) this matter came up for consideration before the Supreme Court. It has been held in that case that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ and that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ but existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor.
At the same time it has been observed that it is to be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. Ramaswami, J., who delivered the judgment then proceeded to point out the two well-recognised exceptions to the aforesaid rule that where adequate legal remedy exists discretion should not be exercised in favour of issuing writs. The exceptions pointed out are (i) where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course; and (ii) in a case where the impugned order has been made in violation of the principles of natural justice. His Lordship was dealing with the case of writ of certionari. It is well known that applications for writ of mandamus ordinarily do not lie where there is other equally effective remedy.
25. In another decision of the Supreme Court of recent past, i.e., in the case of Tata Engineering and Locomotive Co. Ltd. v. Asst. Commr. of Commercial Taxes, AIR 1967 SC 1401 the question of power of the High Courts to issue writ when an alternantive remedy is open and not availed of came up for consideration and it was observed as follows:
"The power and jurisdiction of the High Court under Article 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying. In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked."
26. In a Full Bench of Nagpur High Court in Kanglu Baula Kotwal v. Chief Executive Officer, Janpad Sabha, Durg. AIR 1955 Nag 49, Mudholkar. J. (as then he was), after referring to certain decisions which were cited before their Lordships, observed--
"These cases merely, lay down that issue of a writ of mandamus or 'certiorari' is in the discretion of the Court and where another remedy is open, the Courts should not, ordinarily, interfere, but not that they cannot interfere. Again it cannot be disputed that the powers of this Court under Article 226 are untrammelled by a law made by the Legislature ... ... ... ... ... ... ... ... that elections can be challenged only by way of an election petition before a Tribunal.....the jurisdiction of this Court which is derived from the Constitution can in no way be affected."
His Lordship further observed--
"No doubt, this Court has held in several cases that where another remedy which is equally convenient is open to a person it would not ordinarily interfere. But neither this Court nor the Supreme Court has held that the existence of another remedy is, in every case, a bar to the exercise of the powers of a High Court under Article 226. On the other hand, the view is well settled that there is no such bar and that the Court can interfere if the circumstances of the case demand interference. The dicta in this decision and the decisions of the Supreme Court referred to in the preceding paragraphs do support the proposition of law enunciated earlier that the existence of an alternative remedy is no absolute bar to the issuance of a writ by a High Court under Articles 226 and 227 of the Constitution, but ordinarily, when such a remedy is open and not availed of, the Court ought not to issue a writ.
27. In a good number of writ applications arising out of Gram Panchayat elections this Court has issued a writ even when the alternative remedy of moving the Election Tribunal was not availed of. In some of them, applications were dismissed and writs were not issued on the ground that an alternative remedy was open to the petitioners of those cases. Obviously those cases were decided with reference to the facts of each case, but there may appear some conflict in observations made here and there in these cases. Really, as I have been told, this Full Bench was constituted to resolve the conflict and the difference, if any, in the decisions of this Court. Thus, though there may not be much scope for difference of opinion on the law on the subject in general, some guide lines have to be laid down as to the circumstances when this Court may issue a writ in cases arising out of Gram Panchayat elections where the alternative remedy of moving the Election Tribunal has not been availed of.
28. The decision of this Court which is to be referred to first in this connection is the case of Parmeshwar Mahaseth v. State of Bihar, AIR 1958 Pat 149. It was not a case arising out of a Gram Panchayat election, but it arose out of an election under Bihar and Orissa Municipal Act. Rule 62 of the Bihar Municipal Elections and Election Petition Rules provided for filing of an election petition. One of the petitioners of that case had filed such a petition but after the presentation of the writ application to this Court that election case was pending. The contention of the State, that election could not be disputed except by an election petition as laid down in Rule 62, was, however, overruled with the following observations:--
"What is challenged here is not the election of a particular candidate, but the validity of the entire election, because of the violation of the essential provisions of the Election Rules and the Act. I think, Rule 62 provides for a case where a person challenges the election of a particular candidate. I would overrule the objection."
Rule 62 of the Bihar Municipal Elections and Election Petition Rules is as follows:--
"No election to the office of the Municipal Commissioner, Chairman, Vice-Chairman or President under these rules shall be called in question except by an election petition presented in accordance with this part".
Kanhaiya Singh, J., with whom Ramaswami, C. J. (as then he was) agreed was perfectly correct, if I may say so with respect in observing that Rule 62 provides for a case where a person challenges the election of a particular candidate. Section 84-B of the Act or Rule 70 of the Rules does not refer to election to particular offices as is the case with Rule 62 of the Bihar Municipal Elections and Election Petition Rules. Separate election petitions for setting aside elections of different offices of the Gram Panchayat may have to be filed before the Election Tribunal, but on account of that it cannot be said that Section 84-B of the Act or Rule 70 of the Rules are similar to Rule 62 of the Bihar Municipal Elections and Election Petition Rules which expressly refers to different offices of the municipality. Therefore, the observation that where the validity of the entire election is challenged, a writ application would lie to this Court in Parmeshwar Mahaseth's case AIR 1958 Pat 149 does not apply on all fours to the election of a Gram Panchayat.
Apart from that, in my opinion, the real ratio in that decision was not that the validity of the entire election was being challenged, but it was that the validity of the entire election was being challenged because of the violation of the essential provisions of the Election Rules and the Act. Where essential provisions of some statute and of the rules framed thereunder are not followed, there can be no doubt that this Court, in proper cases, may interfere with such elections by issuing appropriate writs under Articles 226 and 227 of the Constitution. In this case the notification of the District Magistrate calling upon the electors of the municipality to elect commissioners was not published in the Bihar Gazette, separate roll for each ward of the municipality was also not prepared and Dublish-ed before holding of the election was notified. Numerous changes and modifications were made in the Assembly electoral roll which was to be the basis for the municipal electoral roll till the last moment. In the opinion of their Lordships publication of the notification in the official gazette and preparation of electoral roll, according to the different provisions of the different rules of the Bihar Municipal Elections and Election Petition Rules, were the very foundation and basis of the election, and in the circumstances the election was held liable to be set aside,
29. At this stage reference may be made to a decision of the King's Bench Division In re Barnes Corpn. ex parte Hutter, (1933) 1 KBD 668, holding that where there had been no lawful election, the proper remedy was not an application for a writ of quo warranto, or an election petition, but an application for a writ of mandamus. By 'no lawful election' their Lordships meant an election which was merely colourable or where there has been no election at all in the eye of law. The principle underlying the decision in Parmeshwar Mahaseth's case AIR 1958 Pat 149 is the same as of the decision in Barnes Corporation, (1963) 1 KBD 668. The Municipal election which was challenged in Parmeshwar Mahaseth's case AIR 1958 Pat 149 was not lawful because of non-publication of the notification for holding the election in Bihar Gazette and non-preparation of final and separate electoral roll which could be the basis for the election before the notification.
30. Bishwanath Prasad v. Ramji Prasad Sinba, AIR 1964 Pat 459 is another decision relating to municipal election which was relied on by learned counsel for the petitioners. In this case also an election was set aside, though an alternative remedy of filing an election petition had not been availed of, on the ground that the election was held on the basis of an electoral roll revised and published after the notification for holding the election was issued and published. This decision can be justified only if the election held on such a roll is considered not lawful.
31. I would now take up for consideration decisions of the Court relating to Gram Panchayat elections. Ramchandra Prasad v. Sub-divisional Magistrate, Madhubani 1960 BLJR 503 = (AIR 1960 Pat 589} Is a single Judge decision wherein this Court interfered with and quashed, by a writ of certiorari, an order rejecting nomination paper of the petitioner. It was held that in cases where there is an apparent error on the face of the record, this Court can quash the order even though an alternative remedy is open to the petitioner. It was an extreme case where the petitioner had been debarred from seeking election to the office of the Mukhiya on the ground that his nephew who was joint with him was licencee of foodgrains on a finding that on that account the petitioner was in the service of the State Government within the meaning of Section 79 (b) of the Act. It the order would not have been quashed, there would have been grave injustice to the petitioner.
32. Devi Kuar v. Election Officer. 1861 BLJR 43 is another single Judge decision of this Court wherein an order rejecting the nomination paper of the petitioner on the ground that he had dated it ten days earlier than his proposer and seconder was set aside. It was observed that difference in the dates was a mere clerical error, not irregularity or illegality which could invalidate the nomination paper and as such the rejection of the nomination paper was without jurisdiction. It was further observed that availability of an alternative remedy could not be a bar to the issue of a writ by this Court in such a case. The decision is similar to the decision in Ramchandra Prasad's case 1960 BLJR 503 = (AIR 1960 Pat 589) referred to just above.
33. In Ishwari Gope v. Anchal Adhikari, 1961 BLJR 142, a learned single Judge of this Court quashed the proceedings for the election of the Mukhiya of a Gram Panchayat on the ground that the provisions of Rules 18 and 20 of the Rules were not complied with. In this case the date fixed for filing of the nomination paper was within seven days of the publication of the programme. The decision can be justified on the ground that the election, if held, would have been unlawful.
34. In Hari Mohan Jha v. State of Bihar, 1963 BLJR 560 a Bench of this Court set aside an order rejecting nomination paper on the ground that the alleged errors in the nomination paper were clerical. It distinguished another Bench decision of this Court in Sukar Gope v. State of Bihar, AIR 1953 Pat 47. In that case this Court refused to interfere with an order rejecting nomination paper for election to Bihar Legislative Assembly. It was pointed out in this, Hari Mohan Jha's case, AIR 1963 BLJR 560 that in that Sukar Gope's case, AIR 1953 Pat 47 this Court could not interfere because of Article 329 of the Constitution. In the cases relating to Gram Panchayat elections Article 329 was not a bar. This case supports the view taken by a learned single Judge in Devi Kuar's case, 1961 BLJR 43.
35. Bharosa Singh v. Sheo Baran Singh, AIR 1964 Patna 500 was heard and decided by a Bench of this Court. Election of a Gram Panchayat was set aside on the ground that the requirements of Rule 17 of the Rules were not followed in publishing the election programme. The election could be said to be unlawful on that ground.
36. In Hanuman Mishra v. Bachan Mishra. 1964 BLJR 773 a Bench of this Court set aside the election of a Gram Panchayat, even though an alternative remedy of filing an election petition had not been availed of, on the ground that after having delegated his powers to another officer the Sub-divisional Magistrate could not have appointed presiding officers. The election was held to be illegal and ultra vires on that score.
37. Bench decision in Umakant Singh v. Binda Chowdhury, AIR 1965 Pat 459 held that Rule 3 of Bihar Panchayat Samitis and Zila Parishads (Elections, Co-options and Election Petitions) Rules, 1963, as it was prior to the amendment in 1964, was defective and invalid and election held according to the provisions of such a rule must be set aside. This was not a case of election under the Act, but Bihar Panchayat Samitis and Zila Parishads Act (Act 6 of 1962) but both the Acts appear to have been passed in furtherance of the same object, namely, to develop local self-government.
38. In Shyameshwar Mishra v. S. D. O., Sadar, Muzaffarpur, 1966 BLJR 253 a learned single Judge of this Court set aside a Gram Panchayat election on the ground that it was held on the basis of an electoral roll from which names of several persons had been expunged without any amendment or revision of the roll.
39. Paramashwar Pasi v. B. D. O., Sarmera, 1967 BLJR 24 is a judgment of S. C. Mishra, J (as then he was), now my Lord the Chief Justice. In that case voters' list was revised after publication of the election programme and election was held on the basis of that revised list It was quashed on the ground that it was not a valid election.
40. In Ram Pravesh Prasad v. Kailash Singh. 1968 Pat LJR 251 the judgment of a learned single Judge setting aside a Gram Fanchayat election on the ground that there was a violation of R. 50 of the Rules inasmuch as no fresh election was ordered though the hours of poll were reduced to 4 hours from 8 hours due to hooliganism and riot, was upheld by a Bench of this Court hearing the Letters Patent Appeal from that judgment. The election in this case also must be held to be unlawful.
41. On the other hand, in Raj Kumar Lal v. State of Bihar, 1961 Pat LR 127, a Bench of this Court refused to issue a writ setting aside the order of the Sub-Divisional Officer rejecting the nomination paper of the petitioner on the ground that an alternative remedy of filing an election petition was available to the petitioner.
42. Again in Lakshman Lal v. Rameshwar Ram, 1963 BLJR 710, a Bench of this Court dismissed the petition for setting aside an order rejecting nomination paper of the petitioner. One of the grounds for this dismissal was that the petitioner had an alternative remedy of filing an election petition under the Rules.
43. In Awadhesh Prasad v. Tarke-shwar Singh, AIR 1966 Pat 23 though the Bench which heard the case was not prepared to take a different view from one taken in Bishwanath Prasad's case, AIR 1964 Pat 459 that the electoral roll as it stood at the time of the commencement of the election (sic), it held that as an alternative remedy was open to the petitioner, the election could not be set aside on the ground that the electoral roll used at the poll was one as revised and amended after the commencement of the election. It was further held in this case that only a person who has some sort of justiciable light can approach this Court under Article 226 and as petition to set aside Panchayat election by a mere resident within jurisdiction of the Panchayat but not an enrolled elector, is not maintainable. According to this dictum, the petition in C. W. J. C. No. 1634 of 1969 is not maintainable.
44. In my opinion, of late there has been a tendency to state in the writ applications filed before this Court that the alternative remedy available to the petitioner is not as efficacious and adequate as an application for writ even when there is no justification for such a statement. A mere vague statement in the petition of this nature should not be considered sufficient for admitting a writ application or allowing it at the time of final hearing and not giving due weight to the fact of availability of an alternative remedy. Applications must state clearly how the alternative remedy is not efficacious and adequate. Then only it will be possible for the Court to decide with reference to the facts of each case whether the Court may interfere in spite of the' fact that an alternative remedy is open to the petitioner. I am further of the opinion, in agreement with the decision in Awadhesh Prasad's case, AIR 1966 Pat 23 that after a Gram Panchayat election has been held, 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 as it was in Barnes Corporation's case, (1933) 1 KBD 668. There the procedure which was adopted for election was against the procedure provided in the statute.
Just by way of illustration, I mar point out that if the Officers of a Gram Panchayat are elected by raising of hands at a meeting of the voters of the Panchayat and there is no poll, it will be a colourable election or no election in the eye of law. In such a case one may come to this Court even without filing an election petition before the Election Tribunal.
Really no election petition would lie in such a case. As pointed out by the Supreme Court in Baburam Prakash Chandra Mahashwari's case, 1969 BLJR 690 = (AIR 1969 SC 556) where the validity of the Act or the Rules under which the election is held is itself challenged, a writ may be issued notwithstanding the fact that the statutory remedies have not been exhausted. 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, observance 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. Nothing, having no bearing on the result of the election should be made a ground for setting aside the election. This is supported by the decision in Woodward v. Sarsons, (1875) LR 10 CP 733. It was held in that case that to render an election void under a particular Act, by the reason of non-observance of or non-compliance with the rules given therein, such non-observance or non-compliance must be so great as to satisfy the Tribunal before which the validity of the election is contested that the election has been conducted in a manner contrary to the principle of an election by ballot, and that the irregularities complained of did affect or might have affected the result of the election. This decision was referred to with approval in Barnes Corporation's case, (1933) 1 KBD 668. Decisions or observations in decisions of this Court so far as they run counter to observations made in this paragraph shall stand overruled.
45. Second proviso to Rule 79 (2) of the Rules lays down that so long as the election petition is not disposed of, the Election Tribunal shall not grant any temporary injunction restraining any respondent from exercising any right or performing any duty which such respondent is entitled to or required by law to perform. Because of this proviso a person going to the Election Tribunal cannot get any stay of the functioning of the newly elected Officers of the Gram Panchayat. There being no such inhibition on the power of this Court in the matter of granting stay at the time of admission of a writ application, the petitioners have a chance of getting an order of stay from this Court which they might not have got from the Election Tribunal. Perhaps, it is on account of this fact that they prefer to come to this Court direct without exhausting the alternative remedy of filing an election petition before the Election Tribunal. Therefore, at the time of the admission of the writ applications for setting aside Gram Panchayat elections, if the petitioner has not availed of the alternative remedy of moving the Election Tribunal, this Court should be very circumspect. Applications filed merely for the purposes of obtaining stay orders from this Court should be discouraged. Of late, there has been a tendency of filing pro forma applications in this Court. By 'pro forma applications' I mean such applications in which all the necessary facts are not stated but when an application concerning a particular point is admitted, applications involving same or similar points are filed by merely making certain clerical changes in the copy of the application already filed. Such applications should also be discouraged.
46. In my opinion, applications filed before the poll is actually held deserve somewhat different consideration. If nomination paper of a candidate is rejected on a ground which on the face of the record is illegal, it will not be in the interest of justice to ask that candidate to wait till the election is over and then to file an election petition before the Election Tribunal. In such cases this Court may interfere as was done in some of the cases referred to above. Where some procedure adopted by the authorities conducting the election is patently illegal, in such cases also this Court ought to interfere and should not ask the aggrieved person to wait till the elections are over and then file an election petition before the Election Tribunal. Of course, where the aggrieved person does not come to this Court soon after the rejection of the nomination paper or of the commission of alleged illegality in the procedure but comes to this Court nearabout the time the poll is to take place mainly for getting the poll stayed, such petitions should also be discouraged.
47. Before closing the judgment I would like to take up an argument advanced by Mr. Kumar concerning this point that as his clients could not have challenged the elections held or to be held on the ground taken by them before this Court, the applications cannot be refused to be entertained on the ground that they have not availed of the alternative remedy. In support of this contention he referred us to Rule 74 of the Rules. This rule has got no application inasmuch as it relates to such cases where the petitioner claims a declaration that he himself or any other candidate has been duly elected. Only such a relief before an Election Tribunal can be limited to the grounds mentioned in Clauses (a), (b) and (c) in Rule 74. The relief for declaring the election of a candidate illegal is covered by Rule 82, and the expression "any sufficient cause" in that rule is wide enough to include the the grounds taken in the two petitions before us for challenging the elections.
48. For the foregoing reasons, I would hold that C. W. J. C. No. 1572 of 1969 is not maintainable because the petitioner has not exhausted the alternative remedy of filing an election petition before the Election Tribunal. In the other case. i.e.. C. W. J. C. No. 1634 of 1969. if the petitioner would have a justiciable right and I would not have held that extension of date for polling to the 14th of December, 1969, was legal, I would not refuse to entertain that application on the ground that the petitioner of that case has not availed of the alternative remedv of filing an election petition before the Election Tribunal.
49. In the result, both the applications fail and. are dismissed; but on the facts and in the circumstances of the case, without costs.
Misra, C.J.
50. I agree that these two applications must be dismissed. The first point raised by learned Counsel for the petitioners is that the amendment of Rule 21, Clauses (6) and (7), of the Bihar Panchayal Elections Rules has introduced a demand of certain amounts to accompany the nomination paper for the various Offices such as Mukhia, Sarpanch and members of the executive Committee. Rupees twenty for the post of Mukhia and Sarpanch, Rupees ten for the post of Panch or member (half fee for the members of the Scheduled Castes and Tribes). This is payable in cash or to be deposited in the treasury under head "LII --Misc. -- Receipt under the Panchayat Act -- Fees, Fines and Forfeiture under Bihar Panchayat Raj Act. 1947--Other receipts." Under Clause (8), the nomination fee so deposited shall not be refundable. The nomination paper is liable to be rejected for non-deposit of the security amount. It is true that no provision was made in the rules as they were originally framed for deposit of any amount to accompany the nomination paper. Learned Counsel has contended that if the Legislature intended that nomination paper should be accompanied by any amount as a mandatory condition before nomination paper could be entertained and failing which the nomination paper would be liable to be rejected, this provision should have been made in the Act itself. No such power has been provided for in any section of the Bihar Panchayat Raj Act, To make a provision, therefore, in the rule itself, as has been sought to be done by amending Rule 21, cannot be sustained. The only section under which such a power can possibly be held to be included is Section 80 of the Act which runs thus:--
"80 Power to make rules -- (1) The State Government may after previous publication, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:--
Under Section 41 Sub-section (1) of the Act provision has been made for the Gram Panchayat Fund and Sub-section (2) provides that "the Gram Panchayat Fund may be applied to any of the following purposes" One of the enumerated purposes is;--
"(ii) holding of elections of the Gram Panchayat' and other necessary steps required to be taken with regard to the election of the 'Gram Panchayat' as prescribed by rules in this connection."
It was the responsibility, therefore, of the Gram Panchayat under this clause to devote part of its fund to the Gram Panchayat election. It was contended by learned counsel for the State that expenses of holding Panchayat elections have gone up very high and the Gram Panchayat. therefore cannot be expected to devote its fund to meeting such expenses. Accordingly a rule has been framed by amending Rule 21 that all nomination papers should be accompanied by certain amounts as stated above which amounts, no doubt, are not refundable even after the declaration of the result of the election. , because such amounts will be appropriated by the Government as part compensation for the heavy expenditure incurred by the Government in connection with the Panchayat elections. In view of Section 41 Sub-section (2), Clause (ii), the argument cannot be ruled out as absolutely devoid of force because holding of election is one of the purposes of the Act and expenditure to be incurred for that also may well be regarded as part of the process of election and if a rule, therefore, has been framed, it cannot be said to be beyond the competence of the Government as contemplated in Section 80. But the argument of learned counsel for the petitioners also has got considerable sub: stance that Sub-section (1) of Section 80 should be confined to carrying out the purposes of the Act for which alone rules may be made, but this cannot include the imposition of any amount as a necessary accompaniment for filing of nomination paper. On the whole, therefore, I agree with my learned brother that the amendment of Rue 21, Clauses (6), (7) and (8), in so far as it provides for the nomination papers being accompanied by the amounts aforesaid and the provision for the consequence of non-deposit of these amounts as rejection of the nomination papers cannot be regarded as valid and, therefore, this rule has to be struck down.
51. The next point urged is that when the election of any Panchayat is not held for some reason or other within the period of six months from the date of filing of nomination paper or within such further period not exceeding sixty days, as the District Magistrate may under special circumstances and in public interest, extend, by an order in writing, the election shall be held after calling or fresh nomination papers. The question is where election has been postponed on account of rainy season, as is expressed in the Government notification, and thus the actual election has been fixed to be held eight months beyond the date of filing of the nomination papers, whether election will be held on the nomination papers originally filed or fresh nomination papers will be called for as required in Rule 90. Rule 90, no doubt, lays down the period of six months as fixed by the Government and a further period of sixty days at the discretion of the District Magistrate in special circumstances and in public interest, but Rule 91 refers to a different class of cases altogether such as occurs in emergency.
The question is whether to an extension of the date of election due to emergency also the restriction incorporated in Rule 90 will apply. The consideration in regard to this matter is that if it is held that when there is extension of the date of election due to an emergency like the outbreak of epidemics, fire, flood, famine communal riot or maintenance of law and order, and if this period is unduly prolonged it will create such a situation that when election is held, say. very much beyond eight months, it will be on the nomination paper filed long before. This will give rise to a ticklish situation. On the other hand, it is contended that Rule 90 provides a restriction because this is due to causes under the control of the Government and matter is postponed in the ordinary course for one reason or another. A limit has been provided so as to speed up the work of the Government machinery or to avoid any deliberate laches on the part of the election authority so that if it is beyond eight months in all, fresh nomination papers will have to be filed. Extension of the date on account of the emergency, however, does not suffer from the considerations which applv in the case of any negligence on the part of the election authority which is covered by Rule 90. Rule 91 as I have said above, refers to circumstances beyond the control of a human agency so that, for instance, if a fire breaks out or rioting takes place, or there is difficulty in the maintenance of law and order for a day or two, if Rule 90 is taken to govern Rule 91, this may bring about a very unjust situation if fresh nomination paper is called for.
Rule 90, therefore, must be confined to a situation of Governmental delay and Rule 91 to an unforeseen situation. The consideration, therefore, which will apply to Rule 90 cannot apply to Rule 91. I agree with my learned brother, Shambhu Prasad Singh, J., that Rule 91 must be read independent of Rule 90. The difficulty, however, which is pointed out is that where on account of say, famine if an election is postponed for a long time, it will be unjust to pin down the voters to the nomination paper filed, say, a year before. The answer to this is that in such a situation there is ample power to the Government under Section 38 or Section 11 or otherwise to order that a fresh general election will be held and the entire process will be gone through anew although Government should endeavour to complete the election within the ambit of Rule 90. In normal circumstances, however, if there is an occurrence in any of the contingencies referred to in Rule 91, there is no reason whv Rule 91 should not govern it. I overrule the contention of learned counsel, therefore, that in this case also fresh nomination papers must be called for.
52. I also agree with my learned brother that the roll of voters for the constituency for election to the State Assembly must be taken to be the voter's roll for Gram Panchayat elections as well as duly amended under the Representation of the People Act.
53. The main question, however, which has been discussed and for which the matter has been referred to Full Bench is that when under Section 84 (b) of the Act and under Rule 70 of the Bihar Panchayat Elections Rules, the aggrieved parties are required to go to the Election Tribunal for relief, whether this Court should entertain an application direct. I agree with my learned brother that the law on the point is correctly laid down in AIR 1955 Nag 49 (FB), and in 1969 BLJR 690 = (AIR 1969 SC 556). The gist of the decision on the matter is that where a remedy is provided in a particular statute in regard to any matter covered by the statute, the party aggrieved must exhaust the remedy provided in the statute itself before he can move the High Court in exercise of writ jurisdiction under Article 226 of the Constitution and the Court will not ordinarily interfere and direct the partv concerned to seek his remedy before the Tribunal provided in the Act itself. There may, however, be some extreme cases in which if the High Court is satisfied that proper and adequate remedy cannot be had before the special Tribunal--in this case the Election Tribunal--the High Court may interfere in the exercise of writ jurisdiction.
Ramaswami, J., in the above decision of Baburam Prakash Chandra Maheshwari, 1969 BLJR 690 placed reliance on the case of the State of Uttar Pradesh v. Moham-mad Noon, 1958 SCR 595 at P. 605 = (AIR 1958 SC 86 at p. 93) and quoted a passage the extract from which is eiven below:
"The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior ourt in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
Thereafter, their Lordships proceeded to give instances of two extreme situations in which the High Court can interfere. One, where proceedings are taken before a Tribunal under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to writ until those proceedings run their full courses. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principle of natural justice. The Nagpur case referred to above was a case of election to Zila Parishad and only when very special circumstances were made out, the Naspur Full Bench in the above case thought it proper to interfere. In regard to the Pancnayat elections, I may add to it an instance when a party could come straight to the High Court even though the point could be raised before the Election Tribunal. It is when the ground urged by the petitioner is that the Gram Panchayat has not been properly constituted under the Act as has been held in some of the decisions of this Court. The mere fact, however, that any particular rule or part of it is challenged as ultra vires will hardly justify any one coming straight to the High Court, for this can be raised before the Election Tribunal in questioning the validity of an election and after the decision thereof the High Court can examine the legal soundness of the view of the Tribunal. In the circumstances of these applications, however, I agree with my learned brother that there is hardlv any ground made out for our interference. All the points whch have been raised before us could well have been raised before the Election Tribunal and if the Election Tribunal would err, it would be open to the party concerned to move this Court.
54. I am satisfied, therefore, in agreement with my learned brother, that both these applications must be dismissed and parties must seek their remedy be- fore the Election Tribunal and not in this Court under Article 226.
K.B.N. Singh, J.
55. I also agree.