Patna High Court - Orders
Prafful Chandra Sudhanshu vs The State Election Commission on 1 March, 2013
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1128 of 2012
In
Civil Writ Jurisdiction Case No. 9061 of 2012
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Prafful Chandra Sudhanshu S/o Nagendra Prasad Resident of Mohalla
Rupaspur Jalalpur, Nahar Par, Ward No. 40, P.O. Danapur Cantt., P.S.
Rupaspur, District Patna
.... .... Petitioner-Appellant
Versus
1. The State Election Commission (Municipality), through the State Election
Commissioner, 3rd Floor, Sone Bhawan, Bir Chand Patel Path, Patna
2. The State Election Commissioner (Municipality), 3rd Floor, Sone Bhawan,
Bir Chand Patel Path, Patna
3. The Secretary, State Election Commission (Municipality), 3rd Floor, Sone
Bhawan, Bir Chand Patel Path, Patna
4. The Returning Officer, Danapur Nagar Parishad Municipal Election 2012,
P.O. Danapur Cantt., District Patna
5. Shri Shatrughan Prasad S/o not known to the appellant Resident of Ward
No. 40, Danapur Nagar Parishad, P.O. Danapur Cantt, P.S. Rupaspur,
District-Patna.
.... .... Respondents-Respondents
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Appearance :
For the Appellants : Mr. S. B. K. Mangalam, Advocate
Mr. Ravi Ranjan, Advocate
Mrs. Chandani, Advocate
For the Respondent Nos.1-4: Mr. Amit Shrivastava, Advocate
Mr. Girish Pandey, Advocate
For the Respondent No.5: Mr. Santosh Kumar Sinha-2, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
2 Patna High Court LPA No.1128 of 2012 (9) dt.01-03-2013
2/5
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
9. 1-3-2013Feeling aggrieved by the judgment and order dated 29th June 2012 made by the learned single Judge in C.W.J.C. No. 9061 of 2012, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent.
The matter at dispute relates to election of a Councillor of Ward No.40, Danapur Nagar Parishad. Pursuant to declaration of the election programme, the appellant submitted his nomination for election as Councillor from Ward No.40, Danapur Nagar Parishad. After due scrutiny of the nomination papers, the nomination submitted by the appellant was accepted by the Returning Officer on 26th April 2012. The respondent no.5 raised objection against the acceptance of the nomination on 28 th April 2012. The same having not been considered by the Returning Officer, he submitted his objection before the Bihar State Election Commission (hereinafter referred to as "the State Election Commission"). The State Election Commission, under its direction dated 29th April 2012, directed the Returning Officer to reconsider the nomination submitted by the appellant. On such reconsideration the said nomination was rejected on 29th April 2012. It is the decision of the Returning Officer to reject the nomination of the appellant which led to above C.W.J.C. No. 9061 of 2012.
According to the appellant, the Returning Officer, having once accepted the nomination papers, had no authority to reconsider the decision and to reject the same on a later date. The learned single Judge has rejected the writ petition. Therefore, this 3 Patna High Court LPA No.1128 of 2012 (9) dt.01-03-2013 3/5 Appeal.
Learned advocate Mr. S.B.K. Mangalam has appeared for the appellant. He has relied upon Rules 46, 47 and 51 of the Bihar Municipal Election Rules, 2007 (hereinafter referred to as "the Rules of 2007"). He has submitted that the appellant being the only contestant whose nomination was accepted by the Returning Officer. It was the duty of the Returning Officer to declare the appellant to be elected. Further, in view of the intervention by the State Election Commission, such declaration has illegally been aborted. Mr. Mangalam has also relied upon Section 479 of the Bihar Municipal Act, 2007 (hereinafter referred to as "the Act").
Learned advocate Mr. Amit Shrivastava has appeared for the State Election Commission. He has contested the Appeal. He has relied upon Rule 92 of the Rules of 2007. He has submitted that the State Election Commission has power to issue directions as may be necessary for the efficient conduct of the election. The instruction in question was issued in exercise of power conferred by Rule 92 of the Rules of 2007. Appeal is also contested by the respondent no.5.
Rule 46 of the Rules of 2007 provides for scrutiny of nomination papers. Specific directions are issued to the Returning Officer as to the matters which he should scrutinize. Rule 47 of the Rules of 2007 gives finality to the decision of the Returning Officer. Rule 51(2) thereof provides for declaration forthwith of candidates to be duly elected when the number of candidates are equal to number of seats.
In the present case, it is not in dispute that the appellant was the only candidate whose nomination was accepted 4 Patna High Court LPA No.1128 of 2012 (9) dt.01-03-2013 4/5 by the Returning Officer. The Returning Officer, having accepted his nomination, was under obligation to declare him elected uncontested. The power conferred upon the State Election Commission to issue direction for efficient conduct of the election under Rule 92 of the Rules of 2007 cannot be utilized for issuing instruction in the individual cases. The said power is meant for general instructions. Whether or not to accept a nomination of an individual candidate cannot be the matter covered by the words "efficient conduct of the election". Moreover, the said Rule 92 does not confer power upon the State Election Commission to issue direction contrary to statutory provisions.
In view of the above provisions, we are of the opinion that it was the duty of the Returning Officer to declare the appellant elected once his nomination was accepted and he was the only candidate whose nomination was accepted. State Election Commission had no authority to issue direction to scrutinize the nomination once again as was done in the present case. If aggrieved, the respondent no.5 would have the remedy to file election petition against the election of the appellant on the ground that may be available to him under Section 479 of the Act of 2007.
For the aforesaid reasons, the Appeal is allowed. The impugned judgment and order dated 29th June 2012 made by the learned single Judge in C.W.J.C. No. 9061 of 2012 is set aside. C.W.J.C. No. 9061 of 2012 is allowed. The order dated 29th April 2012 made by the Returning Officer is quashed and set aside. The respondents will declare the appellant elected from Ward No.40, Danapur Nagar Parishad as envisaged by Rule 5 Patna High Court LPA No.1128 of 2012 (9) dt.01-03-2013 5/5 51(2) of the Bihar Municipal Election Rules, 2007.
Registry will send copy of this order to the respondent no.4 forthwith.
(R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) Pawan/-