IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14359 of 2008 SANJAY DAS son of Narayan Das, resident of Village Maranchi Ujagan Block Hasanpur, District Samastipur-----------------petitioner Versus 1.THE STATE OF BIHAR 2.The State Election Commissioner,Bihar,Patna 3.The District Election Officer-cum-Collector, Samastipur 4.B.D.O. cum Chief Executive Officer Hasanpur Block Samastipur------------------------respondents with CWJC No.14500 of 2008 UMESH KUMAR son of Late Swarath Singh, resident of village and P.O.Bindaul, P.S.Khijarsarai, District Gaya----------------------petitioner Versus 1.THE STATE OF BIHAR 2.Bihar State Election Commission through its State Election Commissioner, Sone Bhawan, 3rd Floor, Beer Chand Patel Path, Patna 3.Joint Election Commissioner, Bihar State Election Commission, Sone Bhawan, 3rd Floor Beer Chand Patel Path, Patna 4.District Magistrate cum District Election Officer (Panchayat) Gaya 5.Sub-divisional Officer, Neemchak Bathani at Khijarsarai, District Gaya 6.Block Development Officer, Khijarsarai Block District Gaya----------------------respondents with CWJC No.13806 of 2008 1.SADHANA DEVI wife of Shri Sanjay Singh, Resident of village Baijalpur(Fakir) Block Sonepur, P.S. Sonepur, District Saran 2.Anil Kumar Rai son of Shri Paras Nath Rai, resident of village Chhitarchak Shahpur Diara Block Sonepur, P.S.Sonepur, District Saran ----------petitioners Versus 1.THE STATE OF BIHAR 2.The Joint Election Commissioner, State Election Commission, Sone Bhawan, Birshen Patel Marg, Patna-1 3.The District Magistrate cum District Election Officer (Panchayat) District Saran at Chapra 4.The District Panchayat Officer, District Saran at Chapra 5.The Sub Divisional Officer cum Returning Officer Sub Division Sonepur, District Saran 6.The Executive Officer Panchayat Committee Sonepur cum Block Development Officer-----------respondents with 2 CWJC No.13756 of 2008 ALI MOHAMMAD RAI BHAT, son of Sri Dudar Rai Bhat Resident of village Bakhari (Hemu Chapra) P.O. Matiyari, P.S. Baikunthpur,District Gopalganj Presently Pramukh of Block Panchayat Samiti Baikunthpur, District Gopalganj-----petitioner Versus 1.THE STATE OF BIHAR 2.The State Election Commission, Sone Bhawan Birchand Patel Path, Patna through the State Election Commissioner 3.The Joint Election Commissioner, the State Election Commission, Sone Bhawan, Birchand Patel Path, Patna 4.The District Magistrate-cum-District Election Officer, Gopalganj 5.The Sub Divisional Officer, Gopalganj, District Gopalganj 6.The Block Development Officer-cum-Executive Officer, Block Panchayat Samiti,Baikunthpur, District Gopalganj 7.Noor Alam son of Sri Kabiruddin Mian,resident of village Bansghat Masuria P.S.Mohammadpur District Gopalganj-----------------respondents ----------- (in CWJC No.14359/08) For the petitioner :M/S Kamal Nr.Chaubey,Sr.Adv. Gajendra Prasad Yadav For the State Election Commission:Mr.Sanjeev Nikesh For the State :Mr.Prabhu Narayan Shami,J.C. to G.A.9 For the intervener :Mr.Chandra Bhushan Das (in CWJC No.14500/08) For the petitioner :M/S S.N.Sharma,Sr.Adv. Amrendra Kumar For the intervener res.:Mr.Sanjay Kumar For the State Election Commission:Mr.R.S.Pradhan, Sr.Adv. Mr.Rajeev Lochan For the State : G.P.8 (in CWJC No.13806/08) For the petitioners :M/S Y.V.Giri,Sr.Adv. Anirudh Kumar Sinha Gopal Shankar For the S.E.C. :M/S R.S.Pradhan,Sr.Adv. Rajeev Lochan For the Intervener :M/S Basant Kr.Choudhary,Sr.Adv Ram Sandesh Roy Shambhu Sharan Singh For the State :S.C.5 (in CWJC No.13756/08) For the petitioner :M/S S.B.K.Mangalam Rajesh Ranjan For the S.E.C. :M/S R.S.Pradhan,Sr.Adv. Rajeev Lochan 3 For the intervener :M/S G.Arun,Sudhir Kr.Singh For the State :S.C.3 ------- 4. 09.09.2009 All the writ applications raise the common issue pertaining to the power of the State Election Commission to cancel the election of Pramukh/Up-Pramukh of a Panchayat Samiti in a special meeting convened by the Sub Divisional Officer on the ground that the State Election Commission was not informed about the vacancy and no direction sought from it for proceeding to fill up the vacancy by holding election for the said post and accordingly they have been heard together and are being disposed of by this common order. The facts of the cases lie within a narrow compass. In all the writ petitions the offices of the Pramukh and/or Up-Pramukh became vacant due to the resignation of the said office bearers or their removal from the said office by motion of No Confidence. After the vacancies arose it is alleged that a notice in Form 24 was issued by the respondent Sub Divisional Officer under Rule 87 of the Bihar Panchayat Election Rules convening a meeting of the Panchayat Samiti concerned. In the said meeting the petitioners were elected or granted certificates and took oath of their respective offices. The matter was communicated to the District Magistrate-cum-District Election 4 Officer who reported the matter to the State Election Commission. Subsequently by the impugned orders the said elections were cancelled on the ground that the Election Commission was not communicated about the vacancy and no direction was taken from it for holding fresh election on the post of Pramukh/Up-Pramukh and fresh elections were called for. Aggrieved by the said orders issued by the State Election Commission cancelling the elections of the petitioners on the posts of Pramukh/Up-Pramukh and directing the holding of fresh elections to the said offices the petitioners came to this Court. Learned counsels for the petitioners submit that under Rule 87 of the Bihar Panchayat Election Rules power has been conferred upon the Sub Divisional Officer to fix the date, time and place for holding a meeting of the Panchayat Samiti for the election of Pramukh and Up-Pramukh and the information with regard to it has to be given to the members in Form 24. Thereafter on the date fixed the meeting is held under the Chairmanship of the Sub Divisional Officer as laid down in Rule 88 and it is open to the interested candidates from among the directly elected members to file their nominations and after scrutiny of the nominations the election takes place either uncontested if there is only one candidate for one 5 post or on a contest by secret ballot. In a case of contest the entire process commencing from the filing of nominations to the counting and declaration of results is to be conducted under the Chairmanship of the Sub Divisional Officer who also gives the elected candidate a certificate in Form 22 for such election. It is thus submitted by learned counsels for the petitioners that in view of the fact that the elections have been conducted in terms of the statutory rules by the statutorily authorized officer, namely, the Sub Divisional Officer and the certificates regarding the election have also been issued, hence valuable rights have accrued in favour of the petitioners on the basis of such election and the said election can only be challenged by filing an election petition under Section 137 of the Bihar Panchayat Raj Act, 2006. It is submitted that under Section 137 of the said Act the election to any office of the Panchayat shall not be called in question except by an election petition as prescribed and further under Section 138 of the Act there is a bar to call in question any election to any Panchayat except by an election petition presented to the prescribed authority. It is submitted that the said bar flows from Article 243-O(b) of the Constitution which contains a similar bar. 6 It is the further contention of learned counsels for the petitioners that the only ground on which respective elections of the petitioners have been set aside is that the State Election Commission had not been informed about the vacancy and no direction was taken from it for filling up the same by the Sub Divisional Officer. It is stated that the State Election Commission could not have acted on the said ground. The same would be covered by the provisions of Section 139(1)(d)(iv) which provides that one of the grounds for declaring an election of the returned candidate to be void is non-compliance of the provisions of the Act or the Rules made thereunder. It is thus argued that on the said ground being available to the aggrieved party against the election of the petitioners their only remedy is before the Election Tribunal by filing election petition. It is further argued by learned counsels that the State Election Commission is a creature of statute and its powers and functions are those defined by the statute and under Section 136(2) of the Act the only power conferred upon it is to decide a question as to whether a member of Panchayat was before election or has become after election subject to any of the disqualification mentioned in Sub Section (1) of Section 136 of the 7 Act. It is urged that the present matter does not at all relate to disqualification for membership of the petitioners rather the same pertains to their election in which allegedly proper procedure has not been followed and thus the State Election Commission had no jurisdiction to interfere with the same; being a Tribunal of limited jurisdiction it had no power to interfere except on the grounds referred to in Section 136 of the Act and thus it has no jurisdiction unless it is shown on the face of it. In this regard learned counsels rely upon the decision in the case of Anisminic Ltd. Vs. Foreign Compensation Commission and another: (1969) 2 A.C.147, at page 197 of which the following observation of the Court of Appeal in Rex v. Shoreditch Assessment Committee, Ex parte Morgan[1910] 2 K.B.859 was quoted : “It is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure-such a tribunal would be autocratic, not limited-----------.” It is also the contention of learned counsels that Rule 121 of the 2006 Rules which lays down that if any post of any Panchayat is vacant then the District Election Officer shall inform the State Election Commission and the Commission shall take steps for filling up the vacant post in accordance with the Act and the Rules only relates 8 to a general election and not with respect of filling up of posts like that of a Pramukh/Up- Pramukh of Panchayat Samiti by the directly elected members of the Panchayat Samiti. It is submitted that in any case the power of fixation of date under Rule 87 is vested in the Sub Divisional Officer and thus a mere failure to report the vacancy to the State Election Commission amounts only to a formal non-compliance of the Rules and does not go to the root of the matter since only fixation of date is involved; in the said circumstances the matter was fit to be agitated in an election petition and not by raising the same before the State Election Commission for its cancellation. It is urged by learned counsels that the authority of the State Election Commission to act is only confined to the stage from the issuance of notification to the final declaration of results. Once the results are declared then the State Election Commission becomes functus officio. It will thus have no authority to at all interfere with the results of the election and the only remedy before the aggrieved persons is to approach the Election Tribunal by filing an election petition. Learned counsels also rely upon the provisions of Section 46(3) of the Act which provides that 9 the Sub Divisional Officer shall fix the date of the first meeting of the Panchayat Samiti after its constitution and in such meeting the election of Pramukh/Up-Pramukh takes place and in subsequent elections on account of vacancies arising also the same procedure has to be followed and the Election Commission has no role to play in fixation of date. It has also been argued by learned counsels that Rule 121 does not provide for any penal consequence for its non-compliance and thus the same is only a procedural matter directory in nature and the election cannot be annulled for its non-compliance. In this regard learned counsels rely on the decision of the Supreme Court in the case of Jagan Nath vs. Jaswant Singh :AIR 1954 SC 210, paragraph 7 of which is quoted below: “7. The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences 10 of non-compliance with certain procedural requirements laid down by it. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected.” It is submitted that in the present matter the further reinforcing factor is that the S.D.O. who is the authority under the statutory rules for the purpose of fixation of date, etc. and to preside over such meeting for election of Pramukh/Up- Pramukh, is not a person like other Government Officials and thus his action cannot be straightaway set aside by the Election Commission after the declaration of results. It is also argued that even if the order of the S.D.O. declaring the petitioners as elected was void, the same being by the de facto authority under the Act and the Rules would continue to be valid unless it is set aside by a competent court and not by the State Election Commission. It is also one of the grounds that for the fault of the officials the elected candidate and the members of the Panchayat Samiti cannot be 11 penalized and if at all action has been taken the same must be taken against the erring officials since the election has already taken place. In support of this proposition learned counsels rely upon a decision of the Supreme Court in the case of State of Punjab and others vs. Gurdev Singh (1991) 4 SCC 1. In paragraph-8 of the said decision it has been held as follows : “8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. In Smith v. East Elloe Rural District Council Lord Radcliffe observed: (All ER p.871) “An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” Learned counsels also rely upon a Circular dated 11.8.2006 issued by the State Election Commission which provides detailed guidelines and it is submitted that after the present elections the Circular has not been followed and the authorities have not acted in terms of the delegation made therein. Learned counsels refer to paragraph-6 of the said Circular in which the State Election Commission has stated that after the declaration of result of election an election 12 petition is the only remedy. It is thus argued that the action of the Commission is contrary to its own views in the matter and the Circular issued by it in this regard. It is further argued by learned counsels that in the present matter the State Election Commission is coram non judice and even a right decision given by a wrong forum has no existence in the eye of law. Learned counsels also rely upon the decision of the Supreme Court in the case of N.P.Ponnuswami vs. Returning Officer, Namakkal :AIR 1952 SC 64 in which it has been held that when a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of; and urge that since the Bihar Panchayat Raj Act, 2006 provides for only one remedy, that remedy being an election petition after the election is over, therefore, it was not open to any authority much less the State Election Commission to interfere with the results of the election. Learned counsels also rely upon the decision of the Supreme Court in the case of Jyoti Basu and others vs. Debi Ghosal and others :AIR 1982 SC 983, in paragraph 8 of which it has been held as follows : “8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a 13 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 , 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 straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to 14 an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say ?” It is thus submitted that on the declaration of election results no other remedy except an election petition is available to the aggrieved person and considerations of equity or public policy have no role to play. For the said proposition reliance has also been placed upon a Constitution Bench decision in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner and others : AIR 1978 SC 851 and thus any action except by filing election petition would be contrary to the provisions of the Act and the Rules. The other submission of learned counsels for the petitioners is that the State Election Commission has acted in the matter either on the report of the District Magistrate-cum-District Election Officer or on the complaint of certain members. Since valuable rights have accrued in favour of the petitioners the same cannot be interfered with behind the back of the petitioners and the impugned orders ought to be quashed on this ground alone that there has been no compliance of the rule of audi alteram partem 15 forming part of the principles of natural justice, as no opportunity not to speak of reasonable opportunity of being heard was given before setting aside the election. In support of the said proposition reliance has been placed upon a decision of the Supreme Court in the case of Uma Ballav Rath vs. Maheshwar Mohanty and others : AIR 1999 SC 1322, in paragraph-5 of which it has been laid down as follows: “5. In the communication made by Shri S.R.Bommai, he had leveled an allegation against the appellant to the effect that the Form B produced by him was „fraudulent‟ and that respondent No.1 was the official candidate. The charge made to the Election Commission against the appellant by Shri S.R.Bommai was a serious charge. The least that was expected of the Election Commission, before passing the order on 1.2.1995 was that the appellant be put on notice. That was not done. The Election Commission was exercising its quasi-judicial powers and was obliged to follow the principles of natural justice. The revisional order dated 25th January, 1995 was “reviewed” by the Election Commission on 1st February, 1995, behind the back of the appellant, without putting him on notice or giving him any opportunity to have his say. It was not a proper course to adopt. In dealing with a matter like this, the Election Commission is obliged to follow the principles of natural justice, to the extent applicable, before passing any order. There has been clearly a breach of fair play in action in this case. This is yet another reason for us to agree with the High Court that the order of the Election Commission dated 1st February, 1995 was illegal and without jurisdiction.” 16 Further reliance has also been placed for the said proposition upon a Supreme Court decision in the case of Nawabkhan Abbaskhan vs. State of Gujarat :AIR 1974 SC 1471, in paragraph-20 of which it has been held as follows : “20. We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent Court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid. The French Jurists call it L‟inexistence or outlawed order (p. 127 Brown and Garner, French Administrative Law) and could not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal.” It is thus urged that a de facto election on the basis of notice issued by the statutorily authorized official, namely, the S.D.O. and under his Chairmanship was held, the results were declared and certificates were issued, then such valuable rights which have accrued could not have been taken away from the petitioners behind their back. 17 It is lastly pointed out by learned counsels for the petitioners that since 1950 the Election Commission of India has not set aside any election in the manner as has been done now by the State Election Commission. Learned counsel for the State Election Commission and the other contesting respondents, on the other hand, submit that it is evident from the materials on