Patna High Court
Ramkishore Prasad Singh vs The State Of Bihar And Ors. on 6 July, 1971
Equivalent citations: AIR1973PAT139, AIR 1973 PATNA 139
ORDER Kanhaiyaji, J.
1. In this case petitioner Ramkishore Prasad Singh has applied for grant of a writ in the nature of certiorari under Articles 226 and 227 of the Constitution for quashing the order of the Sub-divisional Magistrate, Sadar, Muzaffarpur, dated the 14th May, 1971, (Annexure 4) to the writ application rejecting his nomination paper for election as Mukhiya of Bhadai Gram Panchayat.
2. The learned Subdivisional Magistrate has held that the petitioner was disqualified under Section 79 (1) (f) of the Bihar Panchayat Raj Act, 1947, hereinafter referred to as 'the Act', which is to the following effect:--
"(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election, nomination, or appointment as a Mukhiya, member of the Executive Committee, Sarpanch or Panch if such person--
(f) has been sentenced by a Criminal Court, whether within or without India, to imprisonment for an offence other than a political offence, for a term exceeding six months, or to transportation, or has been ordered to furnish security for good behaviour under Section 109 or Section 110 of the Code of Criminal Procedure, 1898 (5 of 1898), such sentence or order not having subsequently been reversed or remitted, or the offender not having been pardoned;"
3. The finding of the learned Sub-divisional Magistrate is that the petitioner was convicted by a Criminal Court and sentenced to undergo rigorous imprisonment for a term exceeding six months. This sentence was upheld by this Court. This is admitted by the petitioner. However, the petitioner produced an order of the Government attested by the Section Officer of the Community Development and Pancha-yat Department (Panchayati Raj, Bihar, Patna). The order (Annexure 1 to the writ application) reads:
"In exercise of the powers conferred by the first proviso of Sub-section (1) of Section 79 of the Bihar Panchayat Raj Act, 1947, the Governor of Bihar is pleased to remove the disqualification under Clause (f) of Sub-section (1) of the said section of Shri Ram Kishore Singh, village and P.O. Bhadajee, P.S. Katra, district Muzaffarpur, for election to the office of Mukhiya, Sar-panch, Panch and member of executive committee of a Gram Panchayat.
By order of the Governor of Bihar.
Sd. S.N. Prasad Deputy Secretary to Government."
A copy of this order was forwarded to the petitioner for information with reference to his petition filed for removal of his disqualification. In this connection it is better to mention that at the time of scrutiny of the nomination papers an objection was raised by Shri Mahendra Prasad Yadav, respondent No. 4, against the acceptance of the nomination paper of the petitioner but that objection was overruled and the nomination paper of the petitioner was accepted by the Election Officer. Respondent No. 4 filed objection under Rule 23 (4) of the Bihar Panchayat Elections Rules, hereinafter referred to as 'the Rules' before the Sub-divisional Magistrate, Sadar, Muzaffarpur. The petitioner filed show cause and also produced the attested copy of the order referred to above removing his disqualifiction. The petitioner filed also an affidavit sworn in by him saying that the Government had removed the disqualification. A copy of the affidavit is Annexure 3 to the writ application. The Subdivisional Magistrate held that no reliance can be placed on the attested copy unless the Bihar Gazette Notification or the original Government order was produced. Besides the copy of the order was not available in the office of the Election Officer, Aurai. Accordingly, the learned Subdivisional Magistrate rejected the nomination paper as stated above and the petitioner has moved this Court for the relief mentioned above.
4. Cause has been shown by Mahendra Prasad Yadav, respondent No. 4 to whom the notice of the writ application was given.
5. The argument on behalf of the petitioner is that the order of the Sub-divisional Magistrate is illegal. It was pointed out that the removal of the disqualification is not required to be notified in the Gazette. The petitioner could not produce the Bihar Gazette including the notification removing the disqualification as provided in Section 79 of the Act. The relevant proviso of Section 79 of the Act reads as:
"Provided that in cases of (b), (e), (f), (h) and (i) the disqualification may be removed by a general or special order of the Government in this behalf."
It was also pointed out that the learned Subdivisional Magistrate should not have doubted the removal of the disqualification attested by the officer of the department. If he had doubt, he should have enquired from the Government as to whether such an order had been passed. At this stage I may mention that the original letter was produced by Mr. Tara Kant Jha, learned Standing Counsel No. H, from which it is clear that the attested copy was genuine copy of the order passed by the Government.
6. Mr. K. P. Verma, learned counsel appearing for respondent No. 4, challenged the validity of the order on two grounds. Firstly he submitted that the order removing the disqualification was not an order of the Government and secondly he submitted that on previous occasion an application for removal of disqualification had been dismissed by the then Chief Minister of Bihar. According to learned counsel, the subsequent order should not have been passed by the Government without reviewing the previous order.
7. There is no substance in either of the objections. The order of removal of disqualification (Annexure 1) is signed by the Deputy Secretary to the Government. Therefore, there can be no doubt that the disqualification had been removed by the special order of the Government as provided in Section 79 of the Act.
8. In connection with the second point an affidavit has been filed on behalf of respondent No. 4 stating that on the 28th May, 1963, the then Chief Minister rejected the prayer of the petitioner for removing his disqualification. The order was endorsed and communicated on the 14th September, 1963. The order passed by the then Chief Minister was never challenged in any court and no prayer at any stage was made for either review or recall of that order. The order removing the disqualification (Annexure 1) is dated the 13th November, 1963, and from the record of the case produced by Mr. T.K. Jha it appears that the Government passed this order after reviewing the previous order dated the 28th May, 1963. It has not been argued that the Government could not have reviewed its own order. Therefore, it is apparent that the order removing the disqualification of the petitioner had been validly passed and there was no illegality in that order. For these reasons it is clear that the order passed by the learned Subdivisional Magistrate is illegal,
9. The main question, however, which has been pressed by Mr. Verma, is that the petitioner should have utilised the alternative remedy provided by the Rules. The contention of Mr. Verma was that Section 84-B of the Act and Rules 70 and 72 of the Rules provide an alternative remedy to the petitioner for challenging the election and he did not avail of the alternative remedy and, therefore, his application under Articles 226 and 227 of the Constitution should not be entertained. In this connection it is necessary to mention a few facts. It appears from the rejoinder filed on behalf of the petitioner to the counter-affidavit of respondent No. 4 that on the 14th May, 1971, the impugned order was passed by the learned Subdivisional Magistrate. The petitioner was informed of the order on the 15th May, 1971. 16th May, 1971, was Sunday. An application for certified copy of the said order was made on the 17th May and the copy was supplied to the petitioner on the 18th May, 1971. The petitioner came to Patna for filing the writ petition, which was filed on the 19th May, 1971. A petition on behalf of the petitioner was filed before the Election Officer in the early hours of the 19th May, 1971, requesting him not to declare respondent No. 4 as uncontested Mukhiya. However, it appears that on the 19th May, 1971, respondent No. 4 was declared Mukhiya, as the nomination paper of the petitioner was rejected and he was the only duly nominated candidate for the election to the post of Mukhiya. Rule 26 of the Rules provides that immediately after the expiry of the period for filing and disposal of the objection petition under Sub-rule (4) of Rule 23, the Election Officer shall, if the number of seats to be filled, declare all such candidates to be duly elected to fill those seats.
It has been strenuously argued by Mr. Verma that after declaration of the result of the election the only remedy of the petitioner was to avail alternative remedy and not to seek relief from this Court. Mr. Verma relied on a Bench decision of this Court in Lakshman Lal v. Rameshwar Ram, (1963 BUR 710). In this case it was found that the finding of the Subdivisional Officer was that the petitioner had sub-let the licence of a foodgrain shop in favour of Maheshwar Ram and that the transaction was suspicious in character and the petitioner had misused his official position to the disadvantage of the Panchayat. It was further found that the findings of the Sub-divisional Officer that the petitioner was guilty of corrupt practice within the meaning of Section 79 (1) (I) of the Act were not correct. It was observed that on this part of the case the argument of learned counsel for the petitioner had great force but the difficulty was felt for grant of a writ in view of the fact that the writ application was filed on the 13th September, 1960 and on the 5th October, 1960 an application was made for stay of the election of the Mukhiya but the petition was rejected by the learned Single Judge on that date. Thereafter the election was held on the 7th and 8th October, 1960. It was held that the petitioner having failed to avail the alternative remedy under Rule 72 it was not competent for the petitioner to move the High Court for grant of a writ under Article 226 of the Constitution. In the instant case I have already shown that the petitioner came to this Court soon after the rejection of his nomination paper and pending hearing of the application declaration of respondent No. 4 as duly elected Mukhiya was stayed. Mr. Jai Narain, learned counsel appearing on behalf of respondent No. 4, accepted the notice, but did not inform the Court that respondent No. 4 had been declared elected Mukhiya of the Gram Panchayat. Therefore, the facts of this case are entirely different.
10. There were divergent views of this Court on the point. Therefore, the point was referred to Full Bench for authoritative decision. Shambhu Prasad Singh, J., who delivered the main judgment, in Dilip Kumar Singh v. State of Bihar, 1970 Pat LJR 319 = (AIR 1971 Pat 65) (FB) has observed:--
"In my opinion, application 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."
Misra, C. J., observed in that case that 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-Election-Tribunal the High Court may interfere in the exercise of Writ Jurisdiction. In a recent decision of the Supreme Court in Tata Engineering and Locomative Co. Ltd. v. Asst. Commr. of Commercial Taxes. AIR 1967 SC 1401 it was observed that the High Court 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.
11. In Vidya Singh v. Wakil Singh, 1971 Pat LJR 136 Shambhu Prasad Singh, J. refuting the argument of learned counsel for the opposite party on the existence of alternative remedy to the petitioner before the Election Tribunal observed:
"..... True it is that ordinarily this Court does not interfere in exercise of writ jurisdiction in favour of a person who has not availed of the alternative remedy open to him; but it is now well established that existence of an alternative remedy cannot affect the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. ....."
I respectfully agree with that view. Untwalia, J., sitting in a Division Bench in Ram Lochan Mahton v. State of Bihar, 1971 BLJR 98 has taken similar view. As pointed out by Misra, C. J., in the Full Bench decision of Dilip Kumar Singh's case that ordinarily and generally this Court would be reluctant or should not exercise its discretion when an alternative remedy is open to the petitioners, but in some exceptional cases, however, the power can be exercised. "While agreeing generally with what had been said by the learned Chief Justice, the learned Judge pointed out that the powers of Court under Article 226 were wide enough in an appropriate case to interfere in an election matter and hold the election to be void although there was the alternative remedy available to the petitioner under the Rules for challenging the election. The principle should be kept in mind at the time of issuance of rules in such cases, if it is found that the remedy of going to the Election Tribunal for challenging the election, although the challenge may be in respect of the whole election, is available to the petitioner or petitioners, the case should not be admitted and rule should not issue. But once if a case has been admitted and rule has been issued, then in a case like that of Ram Lochan Mahton where it was found that the election had been held by violating mandatory requirements of the law, to refuse to give relief to the petitioners on the ground that the alternative remedy was available to them would not be quite just and proper. If the application of the petitioner was rejected on that ground, the remedy of going to the election Tribunal was barred.
12. Lastly I will refer to a decision of the present Chief Justice in Bishwanath Prasad Singh v. State of Bihar, 1971 BLJR 524 = (AIR 1971 Pat 310) wherein it was argued on behalf of respondent No. 5 that under Rules 26 and 72 of the Rules respondent No. 5 must be held to have been declared elected as Mukhiya of the Gram Panchayat as he was the only candidate left in the field and, therefore, the petitioner was duty bound to file an election petition calling in question the election. It was held that the contention was not valid. Respondent No. 5 had not been declared elected, and, as a matter of fact, by an order passed by this Court on the 27th April 1970, it was ordered that during the pendency of the writ application the declaration of respondent No. 5 as Mukhiya would be stayed. Without going deep into this matter the learned Chief Justice held that in any event, if the petitioner's nomination paper had been wrongly rejected by the Sub-divisional Officer, Sasaram, for the reasons dealt with above, there was no bar in the writ application being allowed, if the contention raised on behalf of respondent No. 5 based on the invalidity of the relevant proviso to Section 79 (1) (b) of the Act was rejected. The facts and circumstances of the instant case are similar to those of Bishwanath Prasad Singh's case, 1971 BLJR 524 - (AIR 1971 Pat 310).
13. In the result, the application is allowed and the order of the Sub-divisional Officer, Sadar, Muzaffarpur, Respondent No. 2, dated the 14th May, 1971, rejecting the nomination paper of the petitioner is quashed by a writ of certiorari. As a consequence of this order the election of Mahendra Prasad Yadav, respondent No. 4, as Mukhiya of the aforesaid Gram Panchayat also stands set aside. In the circumstances of the case, however, there will be no order for costs.