IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18431 of 2009 RANJANA DEVI, wife of Sri Sudhanshu Prasad Sah, resident of Mohalla- Balughat, Ward No.8, Kasba, Police Station- Kasba District Purnea. Versus 1. THE STATE OF BIHAR through the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna. 2. The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna. 3. The District Magistrate-cum- District Returning Officer, Municipal Council, Purnea. 4. The Nagar Panchayat, Kasba, Purnea through its Executive Officer, Nagar Panchayat, Kasba, Purnea. 5. The Councillors, Nagar Panchayat, Kasba, Purnea through its Executive Officer, Nagar Panchayat, Kasba, Purnea. 6. The State Election Commission, Bihar through its Secretary, State Election Commission, Bihar, Patna, Sone Bhawan, Birchand Patel Marg, Patna- 800001. ----------- For the petitioner: Mr. Murari Prasad Sinha, Advocate For Election Commission: Mr. R.S. Pradhan, Senior Advocate Mr. Sanjeev Nikesh, Advocate For the State: Mr. Anant Kumar Bhaskar, A.C. to S.C. II. --- 2. 24.12.2009 Heard learned counsel for the petitioner, learned counsel for the State and learned Senior Counsel for the State Election Commission. The petitioner seeks quashing of the order contained in letter No.3369 dated 10.12.2009 issued under the signature of the Secretary, State Election Commission, Bihar, Patna, by which a direction has been issued to the District Magistrate-cum-District Returning Officer (Municipality), Purnea to get the election conducted for the post of the Chief Councillor, Nagar Panchayat, Kasba, Purnea on - 2 - 29.12.2009 in accordance with the provisions laid down under Rules 93 to 97 of the Bihar Municipal Election Rules, 2007 and further for quashing the consequential letter dated 17.12.2009 issued by the Returning Officer, Municipal Council, Purnea and addressed to the petitioner requesting therein to participate in the meeting of the Councillors scheduled to be held at 11 A.M. on 29.12.2009. Learned counsel for the petitioner submits that under Rule 93 of the Bihar Municipal Election Rules, 2007, it is the District Magistrate or any other officer not below the rank of the Deputy Collector authorized by him in this behalf who shall be called the Returning Officer for the purpose of rules 94 to 96, who shall call the meeting of the elected Councillors to elect the Chief Councillor or Deputy Chief Councillor under Section 35 of the Act. It is submitted that the notice of the place, date and time of the meeting has to be fixed by the District Magistrate and no authority has been conferred by the said Rules upon the State Election Commission to fix a date and issue direction to the District Magistrate to hold - 3 - election on the said date. It is further submitted that under Rule 97, the election of the Chief Councillor and Deputy Councillor to fill a casual vacancy in the Municipality is to be held in accordance with the procedure prescribed under Rules 93 to 96 and thus even in the case of filling of a casual vacancy to the said office, as in the present matter, the said Rule 93 shall apply. It is stated by learned counsel that through Annexure-1, letter impugned dated 10.12.2009, it is the Secretary to the State Election Commission, who has fixed the date of election on 29.12.2009 and the District Magistrate has been directed to conduct the election on the said date, which is contrary to the provisions of rule 93 of the Rules. The other contention of learned counsel for the petitioner is that the notice issued to the petitioner for attending the said meeting for electing the Chief Councillor on 29.12.2009 has been issued under Rule 67 of the Bihar Municipal Elections and Election Petition Rules, 1953, which rule has been repealed by rule 116 of the Bihar Municipal Election Rules, 2007 and thus, the notice itself is non est having been issued - 4 - under repealed statutory rules. Learned counsel also relies upon the provisions of Section 23 (3) of the Bihar Municipal Act, 2007, which provides that in case of any casual vacancy in the office of the Chief Councillor caused by death, resignation, removal or otherwise, the Councillors shall, in accordance with such procedure as may be prescribed, elect one of the Councillors to fill up the vacancy. It is urged by learned counsel that the election to the office of the Chief Councillor in the case of a casual vacancy to the said office has to be held in accordance with the prescribed procedure, which means the procedure as prescribed by the Bihar Municipal Election Rules, 2007. For the aforesaid reasons, learned counsel for the petitioner submits that the impugned letter dated 10.12.2009 and the notice dated 17.12.2009 (Annexure-2) should be quashed as non est and contrary to the law and statutory rules. Learned Senior Counsel for the State Election Commission, on the other hand, submits that the issue raised in the present election petition is no longer res integra as the same has - 5 - already been concluded and decided by a decision of this Court in a batch of writ petitions in the case of Sanjay Das, etc. vs. The State of Bihar and others: 2009 (4) PLJR 347, which decision has been upheld by a Division Bench of this Court in Letters Patent Appeal reported in 2009 (4) PLJR 1036: Sanjay Das and Anr.v. The State of Bihar and others. It is submitted by learned Counsel that the Constitution confers powers of superintendence, direction and control in conduct of the said election upon the State Election Commission by Article 243ZA which is in the following terms: “Elections to the Municipalities- (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K. (2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities. It is contended by him that any law made by the State Legislature including the statutory rules have been specifically provided by clause (2) of the said Article to be subject to the provisions of the Constitution and, therefore, in the matter of conduct of all elections to - 6 - Municipalities which would include an election to the post of the Chief Councillor, the superintendence, direction and control vest in the State Election Commission. It is further submitted by learned Counsel that, as held by this Court in the case of Sanjay Das,etc. (supra), any election held without such superintendence, direction and control, the said election would be no election in the eye of law. In this regard, he refers to paragraph No.30 of the said decision in the case of Sanjay Das, etc. v. The State of Bihar and ors.: 2009 (4) PLJR 347,(supra) which is in the following terms: “30. The abovementioned view is further reinforced by Section 129 of the Act which provides that all officers of the State related with election work of rural local bodies for conduct of such elections shall be deemed to be on deputation to the State Election Commission for the period commencing on and from the date of the notification calling for such elections and ending with the date of declaration of the result of such elections and accordingly such officers shall during that period be subject to the control, superintendence and discipline of the State Election Commission. It is thus evident that an election is conducted under the superintendence, control and direction of the State Election Commission under its authority and officers including the S.D.O. in the matter of election to the offices of Pramukh and Up-Pramukh are deemed to be on deputation to the State Election Commission commencing from the date of the notification calling for such election till declaration of results. Thus even for filling up of casual vacancy the S.D.O. is statutorily - 7 - obliged to act under the control, superintendence and discipline of the State Election Commission and if he acts on his own without even informing the State Election Commission and obtaining necessary orders from it in the matter, it cannot be considered to be an election conducted by the officers deemed to be on deputation to the Election Commission, rather it would be an election conducted by an officer of the State, Sub-Divisional Officer. Such an election would be unknown to the provisions of the Constitution, the Act and the Rules and would thus be no election in the eye of law. It must be remembered that the powers of superintendence, direction and control over all elections to the Panchayat are vested in the State Election Commission by the Constitution itself and the Apex Court has pointed out that although the powers of the State Election Commission are subject to laws made by the State Legislature but such laws themselves cannot impinge upon the powers of the State Election Commission conferred upon it by the Constitution itself in respect of conduct of elections. Thus in no manner any provision of the Bihar Panchayat Raj Act or Rules can be read so as to exclude the role of the State Election Commission in the conduct of such election as has been sought to be argued by learned counsel for the petitioners on the strength of Rule 87. As already pointed out the said Rule also begins with the phrase subject to superintendence, control and direction of the State Election Commission and hence no such reading of the Rule is acceptable.” In reply learned counsel for the petitioner submits that Rule 87 of the Panchayat Election Rules, itself speaks of the election to the heads of the Panchayat Body referred therein to be conducted under the superintendence, direction and control of the State Election Commission, whereas no such provision is found under Rule 93 of the Municipal Election Rules. - 8 - On a consideration of the aforesaid submissions of learned counsels for the parties, this Court does not find any force in the submissions of learned counsel for the petitioner. It is trite that the Constitution is the fundamental law of the land and all other Legislatures, whether the Parliament or the State Legislatures, must act in accordance with the said fundamental law of the land and cannot over- ride the same. When the Constitution itself confers the power of superintendence, direction and control to the State Election Commission over all the elections to the Municipalities, which would evidently include an election to the post of the Chief Councillor, it is not open to the State Legislature to exclude any such power by legislative enactment or by statutory rules. The said proposition has been clearly laid down in paragraph No. 15 of the aforesaid decision of this Court in the case of Sanjay Das,etc. (supra). In fact Rule 92 of the Election Rules also provides that the State Election Commission may issue from time to time such directions as it deems fit for the efficient conduct of the - 9 - election. Thus the direction issued by letter dated 10.12.2009 cannot be considered to be contrary to the provisions of the Rules. Moreover from a perusal of Rule 93, it does not appear that any specific exclusive power has been conferred upon the Returning Officer to fix the date of the election as it merely says that the Returning Officer shall call the meeting of the Chief Councillor and further it provides that the notice of the place, date and time of the meeting shall be issued to the elected Councillors at least seven days prior to the day of the meeting. Nowhere does the rule say that the Returning Officer is alone authorized to fix the date and time of the meeting. On the other hand, Rule 87 of the Bihar Panchayat Election Rules specifically provides that the B.D.O., S.D.O. and the D.M. shall fix the date, time and place of the meeting, yet this Court had held that the State Election Commission is competent to issue directions with regard to any such matter in view of the powers of superintendence, direction and control conferred upon it and no one can over-ride the Constitutional status granted to the State Election Commission in this - 10 - regard. So far as the contention of learned counsel for the petitioner that the notice dated 17.12.2009 having been issued under the Rules of 1953 is non est and illegal is concerned, the same has no leg to stand. The mere mentioning of wrong provisions does not affect the validity of an action of the statutory authority, provided the necessary details as required by the current rules are provided therein. From a perusal of the said notice, it is evident that the date, time and place of the meeting and the purpose of the meeting has been clearly given in the said notice and the same is thus in accord with rule 93 of the 2007 Rules. In the light of the above discussions, this Court does not find any merit in the writ petition and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )