IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14317 of 2009 1. SANJEEV KUMAR S/O LATE KAPILDEO KUMAR VILL- MAHUNADWALI, P.S. PATAHI, DISTT. EAST CHAMPARAN (MOTIHARI) Versus 1. THE STATE OF BIHAR 2. THE SECRETARY BIHAR STATE ELECTION AUTHORITY, BAIRAK NO. 11, OLD SECRETARIATE, PATNA-15 3. THE DISTRICT MAGISTRATE-CUM-DISTRICT ELECTION OFFICER EAST CHAMPARAN (MOTIHARI) 4. THE DISTRICT CO-OPERATIVE OFFICER DISTRICT CO- OPERATIVE SOCIETIES, EAST CHAMPARAN (MOTIHARI) 5. THE BLOCK DEVELOPMENT OFFICER-CUM-RETURNING OFFICER PATAHI, DISTT. EAST CHAMPARAN (MOTIHARI) 6. SRI CHANDRA KISHORE KUMAR S/O SRI NARAD KUMAR VILL- BADHKA BARUA, P.S. PATAHI, DISTT. EAST CHAMPARAN (MOTIHARI) ----------- For the Petitioner : Mr. Binod Kanth, Sr.Adv. & Mr. Pankaj Kr.Singh For B.S.E. Authority : Mr. K.B.Nath and Mr. S.C.Jha. For respondent no.7 : Mr. Yogendra Mishra and Mr. Raghunath Kumar. 4 29.1.2010 Petitioner has filed this writ application challenging the order of the State Election Authority by which it had cancelled the election result declared in his favour and directed a fresh election. During the pendency of this writ application, fresh election having taken place and respondent no.7 having been elected, he was added as a party-respondent and that election with its result was also challenged. Pursuant to notice issued by this Court respondent no.7 has appeared. As pleadings are complete and parties have advanced their arguments in detail, with the consent of the parties, matter is heard for final disposal at this stage itself. 2 Heard Mr. Binod Kanth, learned Senior Counsel appearing in support of the writ petition, Mr. K.B. Nath, learned counsel appearing for the State Election Authority and Mr. Yogendra Mishra, learned counsel appearing for the private respondent no.7. The facts are not in dispute. The dispute is in relation to a Primary Agriculture Credit Society governed by the provisions of the Bihar Co-operative Societies Act and the Rules framed thereunder for election of members to the Managing Committee. The election programme was notified . So far as the constituency of the petitioner is concerned, petitioner and one another filed nominations. At the time of scrutiny petitioner protested raising objections that the said other person had not filed his prescribed returns and declaration and nomination ought to be rejected. The Conducting Officer sought opinion of the Government Pleader, which was tendered on the same day holding that the nomination paper could be rejected. It seems that other person then moved the Collector, who ordered some enquiry. Petitioner also moved the authority to persuade the Conducting Officer to take a decision in the matter. Ultimately the Conducting Officer took another opinion of the Government pleader. In the meantime, as date of scrutiny had crossed. The other person was duly allotted election symbol because by then his nomination had not been rejected. In other words, it had been held to be accepted. At this stage the second opinion of the Government pleader was received. Acting on this opinion, the Conducting Officer now rejected the nomination 3 of the said other person and there being no other person contesting the election declared petitioner elected un-opposed and granted certificate to the petitioner in that regard. It seems that the said other person , being aggrieved by this illegal manner in which his candidature was rejected, after his nomination had been accepted and election symbol allotted, approached the State Election Authority. The State Election Authority without notice to the petitioner called for a report from the Conducting Officer and held that once the nomination was accepted, law does not permit provisional acceptance of nomination , the nomination could not be later rejected and/or cancelled. Thus, holding it held that the declaration of result declaring petitioner elected un- opposed was wrong and it was thus set aside by the State Election Authority, who then ordered a fresh election. The second part of grievance of Mr. Binod Kanth, learned Senior Counsel is in relation to this election. The State Election Authority having set aside the election of the petitioner within two days, fixed a fresh election process to start from the stage of filing of nomination paper. It is not in dispute that the petitioner filed his nomination paper in this fresh election and contested and lost by substantial votes. These are undisputed facts. The submissions on behalf of the petitioner, as made by Mr. Binod Kanth, learned Senior Counsel, are once in the first election he was duly declared elected and certified to be elected, those elections could be set aside only by election petition before the Election Tribunal and not by way of interference by the State Election 4 Authority at that late stage. Accordingly, it is submitted that the order of the State Election Authority setting aside petitioner’s election was wholly without jurisdiction. It is submitted consequentially that if the order of the State Election Authority is held to be illegal and wholly without jurisdiction then consequential election announced and held in which respondent no.7 got elected cannot be held to be valid or in existence because that was consequent upon the order of the State Election Authority. On behalf of the State Election Authority , Mr. K.B.Nath, learned counsel submits that in view of Rule 21(Y) of the Bihar Co-operative Societies Rules, the State Election Authority has the power of superintendence direction and control of election to the Managing Committee and office bearers of notified society under the Bihar Co-operative Societies Act and that being so, the State Election Authority had jurisdiction to interfere even after election results were declared and certified. His second submission is that the act of the Conducting Officer in initially rejecting the other nomination was wholly illegal and without jurisdiction and even if it be held that the order of the State Election Authority is without jurisdiction , any interference with the latter would amount to reviving another illegal act, which the Court should not do . If this is kept in mind, it is submitted, then either the action of the Conducting Officer and the State Election Authority both have to be set aside or both have not to be interferred with.The results in both the cases would be to hold fresh election and because a fresh election having been done there 5 should be no further interference by the Writ Court. Mr. Yogendra Mishra appearing for the private winning candidate- respondent no.7 submits that once petitioner had chosen to participate in the fresh election he is estopped from challenging the election except by way of an election petition . He further submits that if the Court is to interfere at this stage where petitioner has lost the election by substantial majority, it would be granting relief to the person, who does not enjoy the popularity merely to be reinstated on a legal technicality. Having considered the matter, in my view, no relief can be granted to the petitioner and the writ petition is fit to be dismissed. The reasons are thus: From the facts, as noted above, it would be seen that the action of the Conducting Officer in rejecting the nomination paper of the other contesting candidate was palpably illegal having accepted the nomination, granted electrol symbol, it was too late in the date to cancel the nomination. Petitioner, if aggrieved, had his remedy either by moving the Election Authority as the process of election was still on or thereafter by way of election petition. Petitioner did nothing. Thus, the action of the Conducting Officer was wholly without jurisdiction. The second is the issue of interference by the State Election Authority. It is not in dispute that the election process had completed, results have been declared and petitioner had been certified to have been elected . I do not accept the contention raised on behalf of the State Election Authority that in exercise of power of 6 superintendence control, the State Election Authority continued to have power after election results were declared and certified. The question is not open to discussion inasmuch as in the case of Mohinder Singh Gill and another –v- The Chief Election Commissioner, New Delhi & ors. since reported in AIR 1978 Supreme Court 851, the Apex Court has clearly laid down that the Election Commission has the jurisdiction in all aspects of the matter so long as elections are being held and the election process is on. This judgment does not say that once the election results are declared, the Election Commission would still have jurisdiction because there are clear observation to the contrary wherein it is observed that once results are declared, any person is aggrieved , his remedy is by way of election petition. Mr. K.B.Nath for the Election Authority placed reliance on the judgment of this Court in the case of Uma Sharan Gupta & anr-v- The State of Bihar & ors. since reported in 2001(4)PLJR 613 for the proposition that even after declaration of results State Election Authority can interfere. I have perused the judgment and in para 13 thereof while considering the case of Mohinder Singh Gill, this Court has categorically held that so long results are not declared, the State Election Commission has authority to interfere but thereafter the remedy is by way of Election Petition. The case does not support of the State Election Authority rather goes against it on all four and supports the petitioner inasmuch as the interference by the State Election Authority at this stage after elections results were declared 7 and certified was wholly without jurisdiction and unauthorized. The power of superintendence control and to conduct election in terms of Rule 21(Y) of the Rules is there so long as elections are due and are being conducted, which ends with declaration of results and issuance of certificate in that regard but thereafter the jurisdiction vests in the Election Tribunal. This is also the import of Section 4 of the Bihar State Election Authority Act, 2008, under which the State Election Authority has been created. Thus, it would be found that the order of the Conducting Officer was palpably without jurisdiction and so was the order of State Election Authority. If this Court is to set aside the order of the State Election Authority, as urged by the petitioner, it would revive another illegal order of the Conducting Officer. In my view, it is well settled principle of law that if by setting aside an illegal order, the consequence is revival of another illegal order then the Court must either set aside both orders or interfere with none because in either event of interference with one Court would be validating or sanctifying an illegal act, which it is not meant to do. Thus, in my view, even if one accepts the contention of Mr.Binod Kant, learned Senior Counsel that interference by the State Election Authority was wholly without jurisdiction, court cannot shut its eyes to the conduct of the Conducting Officer in wrongly rejecting the nomination paper and declaring petitioner uncontested winner as correct. In such a situation I do not propose to interfere with either of the two orders because if I set aside the order of State Election Authority, the illegal 8 order of the Conducting Officer would revive. I do not thus propose to interfere. Mr. Yogendra Mishra, in my view, rightly submitted , in view of decisions of this Court in the case of Raghuni Nayak & ors –v- The District Magistrate, Darbhanga & ors. since reported in 1958 B.L.J.R. 177 and Sanjay Singh Som -v- The State of Bihar & ors. since reported in 2002(3)PLJR 589 that petitioner having contested in the fresh election and having lost and that too by substantial majority, now cannot be permitted to turn around and challenge this election itself in a writ petition on any ground whatsoever. He is estopped by his own conduct. The two judgments aforesaid squarely support this contention. Thus , seen the writ petition merits no consideration and is dismissed accordingly. Singh (Navaniti Prasad Singh, J.)