Patna High Court
Gurudeo Das vs The Election Officer, Gram Panchayat ... on 11 January, 1972
Equivalent citations: AIR1972PAT283, AIR 1972 PATNA 283
ORDER S. Anwar Ahmad, J.
1. By this application filed under Articles 226 and 227 of the Constitution of India, petitioner Gurudeo Das has challenged the election of Hardeo Prasad (respondent No. 6) to the post of Mukhia of Mohammadpur Gram Panchayat, in the District of Patna.
2. The case of the petitioner is that in between the date fixed for filing nomination papers (26th of March, 1971) and the date of polling (8th of June, 1971), names of 179 persons were added to the voters' list on the 5th of May, 1971. His further case is that out of these persons 150 actually took part in the voting and as such the entire election was vitiated and ought to be quashed by issue of a proper writ.
3. The fact that 179 voters were added to the original list is admitted by respondent No. 6 who is the elected Mukhia and with whom the petitioner has got the real contest, but the case of respondent No. 6 is that the petitioner had prior knowledge of this inclusion of names to the voter's list and he did not choose to come to this Court earlier. The other two points on which the application has been challenged before me as not maintainable are that the petitioner having acquiesced and taken part in the election, he cannot now turn round and challenge the same in a Court of law much less by filing an application under Articles 226 and 227 of the Constitution, and that, admittedly, an election petition filed by Kashi Rai, a voter of the constituency, is pending disposal. In that petition also it has been prayed that the aforesaid election be set aside on account of the inclusion of the names of 179 voters in between the date of filing nomination papers and the date of polling and that the petitioner before this Court be declared to be a duly elected Mukhia.
4. Having heard counsel for the parties at great length, I think that the petition before this Court, in the first instance, is not maintainable and, even if maintainable, on the. facts and circumstances of this case, there should be no interference under Articles 226 and 227 of the Constitution. As already stated since an election petition is pending disposal, I shall take care not to make any reference to the case of the parties on its merits so that neither of them may be prejudiced.
5. In his application as well as in his supplementary affidavit the petitioner has stated that he had no knowledge of the inclusion of the names of 179 voters to the already existing voter's list, but this fact has been specifically denied by respondent No. 6 in paragraphs 4, 5 and 6 of his counter-affidavit. In paragraph 4 of his counter-affidavit, respondent No. 6 has clearly stated that the petitioner had knowledge of the aforesaid inclusion immediately after the order in that regard was passed by the Election Registration Officer (respondent No. 3). It is also stated that an enquiry as contemplated by Section 23 of the Representation of the People Act and Rule 26 of the Registration of Electors Rules was duly made. Rule 26 deals with the correction of entries and inclusion of names in electoral rolls. Sub-
rule (3) lays down that the registrar' on Officer shall, immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.
Thus, according to para. 4 of the counter-affidavit, the procedure laid down in Rule 26 was followed by respondent No. 3. This fact has not been denied by the petitioner in his reply to this counter-affidavit. Similarly, in paragraphs 5 and 6 of the counter-affidavit filed by respondent No. 6, it is stated that on receipt of the applications, respondent No. 3 passed orders inviting objections and also sent the aforesaid applications to the Prakhand Vikas Padadhikari, Asthawan, for enquiry and report and it was on receipt of the report of the Prakhand Vikas Padadhikari that 179 persons were added as voters on the 5th May, 1971. It is also stated in paragraph 6 that notice inviting objections was also hung up on the notice board of the office of respondent No- 3 which remained there for a period of one week. None of these facts have been denied in the reply to the counter-affidavit filed on behalf of the petitioner. It has, therefore, to be accepted as a fact that the petitioner had knowledge of the inclusion of the names of 179 voters earlier than the date of the poll, but he took no steps to remedy the defect.
6. Having participated in the election with the full knowledge of the illegality committed in the shape of inclusion of the names of 179 persons in the voters' list in between the date of filing nomination papers and the date of poll, the petitioner will be deemed to have acquiesced or concurred in the election and will be estopped from challenging the election on being defeated therein. This view finds support from a number of decisions of this Court as well as of the Supreme Court of India. In Bindhachal v. S.C. Mukherji, (1954) ILR 33 Pat 905, it was held that the petitioner in that case could not maintain the writ as he had taken part in the election with the knowledge of the illegality committed earlier and had been defeated in the election. This view was followed by another Bench decision of this Court in M. J. C. No. 133 of 1961, decided on 22-11-1961 (Pat). To the Similar effect are the decisions in Daroga Singh v. State of Bihar, 1965 BLJR 397 and Siasaran Singh v. Election Tribunal, 1961 BLJR 14. In the case of Daroga Singh, the mandatory provision of Section 3 of the Bihar Panchayat Raj Act as to the alteration in the area of a Gram Panchayat had been violated. In the case of M/s. Pannalal Binjraj v. Union of India, AIR 1957 SC 397 it was held that as none of the petitioners raised any objection with regard to the jurisdiction of the officer to whom their cases had been transferred, the petitioners were not entitled to invoke the jurisdiction of the Supreme Court under Article 32 of the Constitution.
In Nain Snkh Das v. The State of Uttar Pradesh, 1953 SCR 1184 = (AIR 1953 SC 384), the petitioners who were residents within a municipality challenged the election on the ground that they had been deprived of their rights to exercise their votes and to seek their election as candidates in certain by-elections to the Municipal Board, as those by-elections were held on ~ communal lines on the basis of separate electorates contrary to the provisions of the Constitution, and prayed for writs under Article 32 of the Constitution for preventing the elected candidates from acting as members of the Board, and the District Magistrate and Civil Judge from holding any meetings of the Board. It was held that although the law providing for elections on the basis of separate electorates for members of different religious communities offended against Article 15 (1.) of the Constitution and an election held after the Constitution in pursuance of such a law subject to Clause (4) would be void, the right which the petitioners claimed as rate-payers in the municipality to insist that the Board should be legally constituted and that persons who had not been properly elected should not be allowed to take part in the proceedings of the Board was beyond the purview of Article 32 of the Constitution and not a fundamental right conferred by Part III of the Constitution. It was further held that the alleged discrimination practised against them related to the rights which they in fact never sought to exercise and took no steps to assert while there was occasion for doing so and as such the petitioners were not entitled to any relief under Article 32 of the Constitution.
The same principle has been reiterated in Maharashtra State Road Transport Corpn. v. Balwant Regular Motor Service, Amravati, AIR 1969 SC 329, wherein it was held--
"It is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, similar to though not identical with, the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sir Barries Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd Abram Fare-wall and John Kemp, (1874) 5 PC 221 at P 239 as follows:
'Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not e reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.'"
The same principle was applied by their Lordships of the Supreme Court in Moon Mills Ltd. v. M.R. Mehar, AIR 1967 SC 1450.
7. The other ground as to the maintainability of this application is all the more stronger. It has been admitted by learned Counsel for the petitioner as well as for respondent No. 6 that an application has already been filed before the Election Tribunal on the 5th July, 1971 with a prayer to declare the election of respondent No. 6 void and that the present petitioner (respondent No. 2 to that application) be declared as the Mukhia of the Gram Panchayat. Counsel for the petitioner tried to distinguish the two applications on the ground that before the Tribunal the relief claimed was only against respondent No. 6 and the entire election has not been challenged as being void, whereas in the present petition under Article 226 of the Constitution the entire election of those office bearers who had won the contest was sought to be declared as void in the eye of law. In this connection reliance was placed by learned Counsel on the decision in the case of Parmesh-war Mahaseth v. State of Bihar, AIR 1958 Pat 149. In that case such a plea of the respondent was negatived on the ground that Rule 62 of the Bihar Municipal Elections and Election Petitions Rules provided for a case where a person challenged the election of a particular candidate before the Tribunal whereas in the case before their Lordships the entire election, had been challenged.
The principle laid down by this decision was negatived by a Full Bench of this Court in Dilip Kumar Singh v. State of Bihar, AIR 1971 Pat 65 (FB) para 28, wherein it was held that unlike rule 62 of the Bihar Municipal Elections and Election Petitions Rules, Section 84-B of the Bihar Panchayat Raj Act and Rule 70 made thereunder does not refer to the election to a particular office. Under Rule 62 aforesaid separate election petitions for setting aside different elections may have to be filed but on account of that it cannot be said that Sec. 84-B of the Bihar Panchayat Raj Act and Rule 70 made thereunder are similar to the rules made under the Bihar Municipal Elections and Election Petitions Rules which expressly relate to elections to the 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, as laid down in Parmeshwar Mahaseth's case, AIR 1958 Pat 149 does not on all fours apply to the election of a Gram Panchayat. In view of the observations of their Lordships in the Full Bench decision, the distinction pointed out in Parmeshwar Mahseth's case does not appear to be good law. There are, however, direct decisions on the point which go to show that if a matter is sub judice before a competent tribunal, this Court would not exercise its extraordinary powers under Articles 226 and 227 of the Constitution of India.
8. In Awadesh Prasad v. Tarkesh-war Singh, AIR 1966 Pat 23 this Court refused to interfere, inter alia, on the ground that the validity of the election was under challenge before the tribunal in an election petition as provided in R. 721 of the Bihar Panchayat Elections Rules' by one Ramania Singh, one of the defeated candidates. This view of law was| approved by the Full Bench in the case of Dilip Kumar Singh, AIR 1971 Pat 65 (FB), in the following words (per Sham-bhu Prasad Singh, J.):
"I am further of the opinion, in agreement with the decision in Awadesh Pra-sad'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."
In Carl Still G. m.b. H. v. The State of Bihar, AIR 1961 SC 1615, inter alia, it was laid down that if a statute sets up a tribunal and confided to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High Court will not, in the exercise of its extraordinary jurisdiction under Article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. In the present case an election petition is already pending before the Election Tribunal and as such, as laid down by their Lordships of the Supreme Court, there should be no interference with it by this Court and the Tribunal should be allowed to decide the matter before it. If this Court goes into the merit of the application and decides it one way or the other, it will amount to an interference with the course to b" followed by the Election Tribunal.
In K.S. Rashid and Son v. The Income-tax Investigation Commission, 1954 SCR 738 = (AIR 1954 SC 207), it was laid down that the remedy provided in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to grant or refuse any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. As already stated, in the present case the relief claimed before the Election Tribunal is for the declaration that the petitioner is the Mukhia and that respondent No. 6 is not the duly elected Mukhia. Therefore, for all intents and purposes, the relief claimed before this Court under Article 226 is identical with that claimed before the Election Tribunal and as such the petition filed under Article 226 of the Constitution cannot be held to be maintainable and, even if so, it should be refused.
9. The result, therefore, is that the application is dismissed. There will be no order as to costs.