IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1557 of 2009 N.S.MADHAVAN, S/O SHRI AMBODY SREE DHARAMENON, CHIEF ELECTION OFFICER, BIHAR STATE ELECTION AUTHORITY, BARRACK NO.11, OLD SECRETARIAT, PATNA (RESPONDENT No. 2) ………………………..…… APPELLANT Versus 1. SHYAMDEO PRASAD, S/O SHRI SHIVBARAT PRASAD, R/O VILL - LODIPUR, P.S.KHIZERSARAI, DISTT-GAYA ……. (PETITIONER) …… ……………………………………………..RESPONDENT 1ST SET, 2. THE STATE OF BIHAR 3. THE DISTRICT MAGISTRATE – CUM - DISTRICT ELECTION OFFICER, (PACS), GAYA 4. DISTRICT CO-OPERATIVE OFFICER – CUM - DEPUTY ELECTION OFFICER (PACS), GAYA 5. BLOCK DEVELOPMENT OFFICER – CUM - ELECTION OFFICER, KHIZER SARAI, BLOCK, DISTT - GAYA …… RESPONDENTS 2ND SET………………………………………………..…. RESPONDENTS. ----------- For the Appellant: Mr. K.B. Nath and Mr. Subhash Chandra Jha, Advocates. For the Respondents: Mr. Purnandu Singh and Mr. Rakesh Kumar Sharma, Advocates. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (19.05.2010) As per Dipak Misra, C.J.- Calling in question the legal propriety of the order dated 03.11.2009 passed by the learned single Judge in CWJC No. 13474 of 2009, the Chief Election Officer has preferred this appeal under Clause X of the Letters Patent. 2. The facts which are requisite to be stated for adjudication in this appeal are that the respondent no. 1 filed his nomination paper for contesting for the post of Chairman of Panchayat Lodipur PACS in the district of Gaya along with three other candidates. The Scrutiny of the nomination papers was done on 03.10.2009 and the nomination of all the three candidates were 2 rejected by the Block Development Officer-cum-Returning Officer, Lodipur PACS. The nomination paper of the petitioner was rejected on the ground that he had dues payable to the Magadh Central Co-operative Bank, Gaya. Questioning the legal proposition of the said rejection, the writ petition was preferred wherein it was contended before the learned single Judge that he had received the `No Due Certificate‟ issued by the Assistant Manager, namely, Ashok Kumar, which he had filed along with his nomination paper. On 01.10.2009 said Ashok Kumar issued another certificate wherein it was mentioned that Rs. 5000/- was due. The said certificate was filed by one Satyendra Singh, who allegedly belonged to the village Lodipur, Gaya. The writ petitioner was asked by the Assistant Returning Officer to clarify the position while the matter was pending before the Election Officer. An enquiry was made through the District Co-operative Officer about the `No Due Certificate‟. On production of records it was cleared that on 05.10.2009 a certificate was granted by the Managing Director of the Magadh Central Co-operative Bank to the District Co-operative Officer clearly stating that there was no dues as against the petitioner. The certificate had been granted after verification of the records of the Bank. Despite the same the petitioner‟s candidature was rejected. As all the nomination papers were rejected, a re-election was directed. 3 3. It was urged before the learned single Judge that the records would bear that the Managing Director of the Magadh Central Co-operative Bank had certified to the Returning Officer (B.D.O.) that the petitioner had no dues and in that view of the matter the candidature of the petitioner could not have been cancelled on that score. The learned single Judge adverted to the factual issue and expressed the view that a `No Due Certificate‟ was issued by the Assistant Manager, Mr. Ashok Kumar which led to rejection of the petitioner‟s nomination paper. The learned single Judge repelled the submission of the State Election authority whether the rejection of the nomination paper is correct or not is a question to be decided by the election tribunal in a duly constituted proceeding pertaining to election dispute. The learned single Judge also declined to accept the submission of the respondent – election authority on the ground that it had now become a fait accompli in view of the fact that the nomination was erroneously rejected inasmuch as the Managing Director of the Bank himself had clarified that the certificate granted by the Assistant Manager was erroneous. Being of this view, the learned single Judge held that there was no necessity of filing an election petition at all because the records of the Returning Officer clearly reveal that the petitioner was not a debtor to any Co-operative Society and an erroneous certificate was granted to cause harm to him. Thereafter, the learned single Judge declared the nomination 4 paper to be valid and directed that the election process for election of the Chairman of the said PACS would accordingly continue in accordance with law. 4. Questioning the sustainability of the order of the learned single Judge, Mr. K.B. Nath, learned counsel appearing for the State Election Commission, submitted that the rejection of the nomination paper of the petitioner for contesting the election of the Chairman of the said PACS cannot be called in question except by presenting an election petition under Section 11(b) of the Bihar State Election Authority Act, 2008 (for brevity `the 2008 Act‟) before the prescribed authority and a writ petition under Article 226 of the Constitution of India could not have been entertained. It is further submitted by him that contesting the election is a statutory right and when there is a statutory remedy, the learned single Judge should have been well advised to direct the petitioner to take recourse to the said remedy and not exercised the extra-ordinary jurisdiction. 5. Mr. Purnendu Singh and Mr. Rakesh Kumar Sharma, learned counsel for the respondents, per contra, supporting the order of the learned single judge submitted that when the facts are tell tale and the authority concerned had rejected the nomination paper in a mala fide manner, the learned single Judge has appositely exercised the jurisdiction under Article 226 of the Constitution of India as it is the duty of the writ 5 Court to exercise jurisdiction wherever it perceives any kind of injustice. It is urged by them that the alternative remedy does not bar the jurisdiction of the High Court to entertain a writ petition as the restraint is a self-imposed one. It is propounded by them the case comes within the compartment of exception and, hence, the order passed by the learned single Judge cannot be said to be insupportable. 6. To appreciate the rivalised submissions raised at the Bar, it is appropriate to refer to Section 48 of Bihar Co-operative Societies Act, 1935 (for short `the 1935 Act‟) which deals with disputes. Sub-section (1) of Section 48 of the 1935 Act uses the phraseology `If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society)‟. The said provision came to be interpreted in Chandeshwar Prasad & Ors. v. The State of Bihar & Ors., 1987 PLJR 159 (FB) wherein their Lordships have expressed thus: “16. Moving ahead one may now advert to the equally sensitive and, perhaps, even more controversial field of election, squarely and precisely prescribed for by the Act and the Rules framed thereunder. Section 14 of the Act mandates that the management of a society registered under the Act, shall be vested in a managing committee constituted in accordance with the Rules. Sub-section (3) of that section then 6 provides that the term of the members and the office-bearers of the Managing Committee of a registered society shall be three cooperative years and they shall continue to hold office after expiry of their term till the elections are held or for six months from the close of the co-operative year, which is earlier. Rule 22 of the Bihar Co-operative Societies Rules, 1959 (hereinafter referred to as „the Rules‟) then provides that apart from nomination by the Registrar to the managing committee of a registered society, including its office-bearers, shall be elected by votes from amongst the members of the society at the annual general meeting held in accordance with the bye- laws. Rules 20 and 21 provide in great detail for holding of the general meeting and the procedure thereat. It is unnecessary to delve very deeply into the model bye-laws, which yet again provide for holding of the various kinds of general meetings and functions of the annual general meeting and elections to be held thereat-vide model bye-laws 20 to 30. It was common ground before us that election disputes come fairly and squarely within the ambit of section 48 of the Act, to which some detailed reference has already been made, which may not be repeated. Barring the fact that the Registrar may make a reference of such dispute and adjudication thereof has been clothed with finality after appeal by sub-sections (6) and (9) of section 48 of the Act. It was common ground before us that election dispute would also come squarely within the ambit of section 48 of the Act 7 and if any authority is needed for the proposition it is available in Mam Raj v. State of Haryana and others (A.I.R. 1982 Punjab 211). 17. It would be manifest from the above that virtually a complete code for both election to the co-operative societies, which lie at the heart of the co-operative movement, and the resolving of election disputes in appellate forum has been provided under the Act. …….” 7. In Vijay Kumar Mishra v. The State of Bihar & Ors., 1988 PLJR 478, the Division Bench after scanning the anatomy of various provisions of the Act and the bye-laws has held thus: “…..But for the present, it is enough to say that no election of a Board of Directors can be set aside except by filing an election petition under section 48 of the Act. Until that is done, the election held by the Annual General meeting shall remain valid……” 8. Section 10 of the 2008 Act provides for Election Petition. The said provision reads as under: “10. Election Petition.- (1)(i) The election to any office of a body shall not be called in question except by an election petition as prescribed: Provided that if an election to any office of a body is under dispute, the election petition shall lie before such authority as is prescribed under the 8 Act or Rule regulating such body or where administration and functioning of such body is not regulated by any statutory provision, before such Authority, which the State Government may prescribe by issuance of notification. (2) Parties to the petition.- A petitioner shall join as a respondent to this petition- (a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) Any other candidate against whom allegations of any corrupt practice are made in the petition.” 9. Section 11 which deals with bar to interference by Courts in electoral matters is as follows: “11. Bar to interference by Courts in electoral matter.- Notwithstanding anything contained in this Act- (a) The validity of any order relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made shall not be called in question in any court; 9 (b) No election to any body shall be called in question except by an election petition presented to the prescribed authority under this Act.” 10. Section 12 specifies the grounds for declaring election to be void. It reads as under: “12. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the prescribed authority is of opinion- (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or (iv) by any non-compliance with the provision of this Act or of any rules or orders made thereunder; 10 the prescribed authority shall declare the election of the returned candidate to be void. (2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied- (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidates is not void.” 11. Section 13 deals with the grounds on which a candidate other than the returned candidate may be declared to have been elected. Section 13 is as follows: “13. Grounds on which a candidate other than the returned candidate may be declared to have been elected.- (1) If any person who has filed an election petition has, in addition to calling in question the election of the returned candidate, claims a declaration that he himself or any other candidate has been duly elected and the Prescribed Authority is of opinion- 11 (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Prescribed Authority shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. (2) The decision of the Prescribed Authority shall be final.” 12. It is worth nothing a set of Rules, namely, the Bihar State Election Authority Rules, 2008 has been framed in exercise of the powers conferred in sub-section (1) of Section 16 of the 2008 Act. Chapter V whereof deals with election petitions. Rules 11 and 12 being relevant are reproduced below: “11. Election Petitions- No election to a post of a body shall be called in question except by an election petition; Provided that if an election to any office of a body is under dispute, the election petition shall lie before such authority as is prescribed under the Act and/or Rules regulating such body or where administration and functioning of such body is not regulated by any statutory provision, before the Munsif in whose jurisdiction such institution or establishment or organization or body is situated. 12 12. A petitioner shall add as a respondent to this petition.- (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) Any other candidate against whom allegations of any corrupt practice are made in the petition.” 13. From the aforesaid scheme of things there can be no trace or scintilla of doubt that an election dispute has been provided as a statutory remedy and whole gamut of procedure has been prescribed. Regard being had to the aforesaid, it is to be adjudged whether a writ petition under Article 226 of the Constitution of India under any circumstances would be entertained or not. In this regard we may refer with profit to the decision in N.P. Punnuswami v. Returning Officer, Namakkal and others, AIR 1952 SC 64 wherein it has been held: “18. The points which emerge from this decision may be stated as follows:-- (1) The right to vote or stand as a candidate for election is not a civil right but is a creature of 13 statute or special law and must be subject to the limitations imposed by it. (2) Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.” 14. In Nanhoo Mal and others v. Hira Mal and others, AIR 1975 SC 2140, a three-Judge Bench of the Apex Court referred to the case of Ponnuswami (supra) and expressed thus: “5. It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after of the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case (AIR 1952 SC 14 64) (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider.” 15. In this context we may fruitfully refer to the decision in Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 wherein it has been held as under: “A right to elect, fundamental though it is to democracy, is, anomalously enough neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected, and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, 15 nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait-jacket. ……..” 16. In Gajanan Krishnaji Bapat and another v. Dattaji Raghobaji Meghe and others, (1995) 5 SCC 347, the Apex Court has ruled thus: “12. The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an 16 election and an election must be challenged only in the manner provided for by the Act.” 17. In this context we think it appropriate to refer to another three-Judge Bench decision of the Apex Court in K.K. Shrivastava v. Bhupendra Kumar Jain and others, AIR 1977 SC 1703, wherein V.R. Krishna Iyer, J., speaking for the Court, laid down as under: “It is well settled law that while Art. 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so, where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore, a writ petition will lie, is a fallacious argument. It is important to notice what the High Court has overlooked is that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in 17 the present case an election petition covering the same subject matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an `entire election‟ then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago, is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious something writ petitions are where they should not be is illustrated by this very case.” 18. In Gujarat University v. Shri N.U. Rajguru and others, AIR 1988 SC 66, a two-Judge Bench of the Apex Court has held thus: “6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by