IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1203 of 2009 SANJAY DAS, son of Narayan Das, resident of village Maranchi Ujagan Block Hasanpur, District Samastipur … …………………. appellant Versus 1. THE STATE OF BIHAR 2. The State Election Commission, Bihar, Patna 3. The District Election Officer-cum-Collector, Samastipur 4. The Block Development Officer-cum-Chief Executive Officer, Hasanpur Block, Samastipur 5. Yogendra Prasad Gupta, son of late Dhruv Narayan Gupta, resident of village Rampur Rajwa (Hasanpur Bazar) PS- Hasanpur District Samastipur 6. Anita Devi W/o Lavahar Mukhia R/o Vill- Godah PO- Sakhawa, PS- Hasanpur District Samastipur …………..respondents --------------------- For the appellant: Sri K. N. Chaubey, Sr. Advocate Sri Ambuj Nayan Chaubey, advocate Sri Siddharth Hansh, advocate Mrs. Rita Priyadarshi, Advocate For Respondent no.5: Shri Abhay Kumar Singh, Sr. advocate Shri Rakesh Kumar Samrendra, advocate Shri Rajendra Narayan Singh, advocate For respondents no. 3 & 4: Mr. Rakesh Kumar, G.A For the intervener: Sri Basant Kumar Choudhary, Sr. Advocate For respondent no.2 : Mr. Rajeev Lochan, advocate Mr. Sanjeev Nikesh, advocate With LPA No.1209 of 2009 1. SADHNA DEVI , wife of Sri Sanjay Singh, resident of village Baijalpur (Fakir) Block Sonepur, PS Sonepur District Saran 2. Anil Kumar Rai, son of Sri Paras Nath Rai, resident of village Chhitarchak Sahpur Diara, Block- Sonepur, PS Sonepur District Saran….appellants Versus 1. THE STATE OF BIHAR 2. The Joint Election Commissioner, State Election Commission, Sone Bhawan, Birchand Patel Marg, Patna-1, Bihar 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, Block Sonepur, Saran ………respondents ----------- For the appellants: Shri K. N. Chaubey, Sr. advocate For respondents no. 3 to 6: Mr. Dhurendra Kumar, AC to SC 5 For State Election Commission: Mr. Rajeev Lochan, advocate Mr. Sanjeev Nikesh, Advocate ----------------- 2 5 16-11-2009 Heard learned counsel the parties and perused the order under appeal which is common in both the appeals. The appellant Sanjay Das of LPA no. 1203/09 approached this court through CWJC no. 14359/2008 against the order of the State Election Commission whereby his election was declared null and void by the State Election Commission on the ground that Election Commission was not communicated about the vacancies and, therefore, election was held without the authority of the Election Commission. During the pendency of the said election petition, treating the post of Pramukh in the concerned Panchayat Samiti vacant the State Election Commission decided to hold a fresh election. At the instance of appellant Sanjay Das an order of stay of the fresh election was passed by the writ court on 19-9-2008 but on that date itself the election was held between 11 AM and 1.10 PM and the election result was also announced by the competent authority before the District Magistrate could look into the fax message sent by the counsel for the State on 19-9-08 at 3.30 PM. By the judgement and order under appeal the writ court has dismissed the writ petition on a finding that the action of the Election Commission in treating as void the appellant’s first election held without the authority of Commission was legal and proper. While doing so the writ court further noticed that since the subsequent election was held after the passing of stay order by the writ court that election also had to be set aside on account of stay 3 order passed on 19-9-2008. The appellant who was successful in the subsequent election also has, thus, been unseated again on account of judgement and order under appeal only because of an interim order issued at his instance but admittedly that order could not reach the concerned authorities in the district concerned before the election was held and the appellant had been declared successful. So far as judgement of the writ court relating to validity of his first election is concerned, we are in agreement that the election held without the authority of the State Election Commission can never be an election in the eyes of law. Such an election has to be ignored by all the concerned authorities. That having been done by the State Election Commission, we find no good reason to interfere with that part of order of the writ court or with the order of the State Election Commission. So far as the subsequent election is concerned in which the appellant was also successful and got elected as Pramukh, the main issue was whether the stay order had actually reached the authorities before the holding of the election concerned. A stay order becomes effective only when it is communicated to the concerned authorities who have to act upon such order of stay. In the present case we find from the order under appeal that the District Magistrate, Samastipur could not disclose as to when he first had the opportunity to look at the stay order. Now from the counter affidavit filed on behalf of 4 respondent nos. 3 and 4, particularly, from paragraphs 5 and 6 it is absolutely clear that the fax message sent through the office of Advocate General, Bihar could be seen by the District Magistrate, Samastipur only at 3.30 PM on 19-9-2008 but by that time not only the voting had concluded but the election result had already been declared. The election of Pramukh was not a big affair inasmuch as apparently only 28 members had to participate in the election and the election process was being held at Hasanpur block, as submitted at the bar, at a distance of 50 Kms from the district headquarter Samastipur. In our view the election held on 19-9-2008 did not suffer from any illegality or infirmity nor its validity could be affected automatically on account of stay order passed on 19-9-2008 by this court which could not reach the District Magistrate, Samastipur before the holding of the election. There is no doubt that according to settled law this court has ample powers under Articles 226 and 227 of Constitution of India to set at naught any proceeding or decision which may take place contrary to an interim order of this court if the court is satisfied that such decision or proceeding was prompted with a view to over-reach the process of the court and only to defeat the interim order. In the present case, we find that election schedule had already been communicated to the State Election Commission and election was held as per declared schedule on 19-9-2008. There was no motive for the District Magistrate to ignore order of this court and 5 pretend ignorance with a view to defeat the order. Hence, it is not an appropriate case where subsequent election of 19-9-2008 should be set aside by us on the grounds noticed above. As a result LPA no. 1203/2009 succeeds partially and that part of the judgement and order of the writ court is set aside whereby the subsequent election held on 19-9-2008 was also held to be illegal and against law. As a consequence, the appellant, Sanjay Das, will be entitled to the benefits flowing from the result of the election to the post of Pramukh held on 19-9-2008. The appeal is allowed in the aforesaid terms but without costs. In view of our finding recorded earlier in respect of invalidity of the first election held without the authority of the State Election Commission, we find no merit in LPA no. 1209/2009 and the same is, accordingly, dismissed but without costs. BKS/- (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.)