IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.599 of 2010 In CWJC No. 13595 of 2009 With I.A. No. 3057 of 2010 In LETTERS PATENT APPEAL No.599 of 2010 =========================================== Bihar State Election Tribunal Appellant Versus Udai Prakash Chaudhary & Ors.- Respondent(s) =========================================== Appearance: For the Appellant : Mr. Mukesh Kumar Thakur For the Respondent nos. 1 to 4 : Served For the Respondent nos. 5 to 8 : Mr. Sunil Kr. Mandal, S.C.-15 Mr. Arjun Prasad, A.C. to SC-15 ========================================== CORAM:HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 04. 03.11.2010 On 5th April 2010 notice was issued to the respondent nos. 1 to 4 on the question of condonation of delay as well as the hearing of appeal. Though served, the respondent nos. 1 to 4 have not entered appearance. Reg: I.A. No. 3057 of 2010 This application under Section 5 of the Limitation Act is filed by the appellant for condonation of delay of 9 days occurred in filing the Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory Application stands disposed of. Reg: L.P.A. No. 599 of 2010 This Appeal under Clause 10 of the Letters Patent is preferred by the Bihar State Election Authority (hereinafter referred to as “the Authority”) against the judgment and order 2 dated 12th January 2010 passed by the learned Single Judge in above C.W.J.C. No. 13595 of 2009. The appellant Bihar State Election Authority is a statutory authority constituted under the Bihar State Election Authority Act, 2008. Under Section 4 of the said Act the Authority is empowered and authorized to exercise superintendence, direction and control of the preparation of electoral rolls for and conduct of all elections to bodies such as Co-Operative Societies etc. This matter relates to the election of the Primary Agricultural Co-Operative Societies in Bagaha-2 Block, District-West Champaran Pursuant to the declaration of the election programme the petitioners-respondents 1 to 4 herein filed their nominations for election to the post of President on Ist October 2010. The Election Officer-cum-Block Development Officer did not accept the nominations filed by the writ petitioners. Feeling aggrieved the writ petitioners approached this Court in the above C.W.J.C. No. 13595 of 2009. They prayed for a direction for rectification of the voters’ list and for restraining the respondents from holding the elections till the voters’ list was corrected. By order dated 12th January 2010, the learned Single Judge was pleased to hold that the voters’ list for the Primary Agricultural Co-Operative Societies in question was not prepared in accordance with law. Learned Single Judge was, therefore, pleased to direct the Secretaries of the respective societies to submit true and correct voters’ list and the District Election Officer to publish the same as draft voters’ list etc. By a further order dated 2nd February 2010, the learned Single Judge made note of Rule 21Y inserted in the Bihar Co- Operative Societies Rules, 1959 under the Bihar Co-Operative Societies Amendment Rules, 2008. In the opinion of the learned Single Judge, Sub Rule b(iii) of the said Rule 21Y 3 empowered the Authority to appoint the Election Officer not below the rank of Sub-Divisional Magistrate. The learned Single Judge was pleased to hold that the Authority was required to appoint the Election Officer not below the rank of Sub-Divisional Magistrate. The Block Development Officer, being below in rank than Sub Divisional Magistrate, had no authority to function as an Election Officer. Any direction issued by the said Election Officer was wholly inconsistent with the provisions of the Act and the Rules. Feeling aggrieved, the Authority has preferred the present Appeal. Learned Advocate Mr. Mukesh Kumar Thakur has appeared for the Authority. He has challenged the impugned order to the extent the learned Single Judge has held that the Block Development Officer had no authority to function as Election Officer. He has relied upon the aforesaid Sub-Rule b(iii) of Rule 21Y of the Rules. He has submitted that it is the Authority which is empowered to appoint the Election Officer or it may authorise an officer not below the rank of Sub- Divisional Magistrate to appoint the Election Officer. Thus it is the power to appoint Election Officer which can not be delegated to an officer below the rank of Sub-Divisional Magistrate; not that an Officer below the rank of Sub- Divisional Magistrate cannot be appointed to be the Election Officer. Learned Advocate Mr. Arjun Prasad has appeared for the State authorities. He has supported the Appeal. We do see merit in the submission made by Mr. Thakur. The above referred Sub-Rule b(iii) of Rule 21Y reads as under; “21Y:-Election by the Election Authority- (a) The election to the Managing Committee and office bearers of notified societies shall be held under the superintendence, direction and control of the election Authority, which shall include the following- 4 (i) Preparation of voter list, (ii) Appointment of Election Officers, (iii) Notification of place of voting and counting, (b) Notwithstanding anything contrary in these rules or bye laws of any notified society, the Election Authority (i) shall get the voter list prepared and decide the cut-off date for the preparation of such voter- list, which shall not be more than 120 days prior to the date of election. (ii) shall determine the programme for such elections including venue, date and time for various stages of the election process including counting. (iii) shall appoint the Election Officer or authorize any other officer not below the rank of Sub- Divisional Magistrate for appointment of Election Officers.” The provision is quite clear and unambiguous. It is the Authority which is empowered to appoint the Election Officer or it may delegate its power of appointment of Election Officer to an officer not below the rank of Sub-Divisional Magistrate. It is not correct to say that no officer below the rank of Sub-Divisional Magistrate can be appointed as the Election Officer. In the present case, the Authority has appointed the Block Development Officer as the Election Officer in exercise of power conferred upon it under Sub-Rule b(iii) of Rule 21Y of the Rules referred to above. It would be wrong to say that the Authority has acted beyond its authority or that it is not empowered to appoint the Block Development Officer as the Election Officer. For the aforesaid reasons, we allow this Appeal to the extent the learned Single Judge has held that the Bihar State Election Authority has no power or authority to appoint an Officer below the rank of Sub-Divisional Magistrate to be the 5 Election Officer. The Notification dated 24th December 2008 issued by the Bihar State Election Authority is upheld. The legal consequences will follow. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)