JUDGMENT
R.S. Garg, J.
1. The petitioner being aggrieved by Annexure-7, an order issued by the Election Officer on 18-10-2002 changing some of the polling booths in accordance with the letter of the District Magistrate bearing No. 293 dated 11-10-2002 and letter No. 294 dated 17-10-2002 has come to this Court. The said letters are annexed as Annexure-B and Annexure-D to the counter-affidavit filed by the District Magistrate.
2. It is not in dispute before me that the Agriculture Produce Market Committee, Triveniganj was to have its election in accordance with law and bye-laws of the said Committee. Undisputedly, election notification was issued on 9-9-2002. In accordance with the rules the Deputy Collector was authorised to work and discharge his duties as the Election Officer. On 16-9-2002 the said Election Officer declared the polling station under Annexure-4. On 20-9-2002 the petitioner and others filed certain objection to change the polling booth. It appears that thereafter some other Deputy Collector made an enquiry after issuing a public notice and vide Annexure-6 ordered that the polling booths be changed. After this change the Collector, Supaul on 11-10-2002, vide his letter No. 293 required the Executive Magistrate-Cum-Election Officer to issue a fresh notification fixing the polling booths in accordance with three alternatives proposed in the objections which were filed by the Member of Parliament of the area and the other representatives of the public. On 17-10-2002 vide letter No. 294 the District Magistrate Supaul issued yet another letter and required the Election Officer to issue a fresh notification and report compliance of the matter to the District Magistrate. It appears that feeling bound by the direction-cum-recommendation issued/made by the District Magistrate the Election Officer who otherwise is a subordinate to the District Magistrate issued Annexure-7 and changed some stations of the polling booths. This is how the petitioner has come to this Court.
3. Learned Counsel for the petitioner submits that once the powers are conferred upon any officer to act and discharge his duties as Election Officer then the District Magistrate or the Deputy Commissioner who have authorised such officer, would have no jurisdiction in the matter nor would be entitled to issue orders or make recommendation for change of the polling booths or taken any steps in the matter in accordance with the direction of the District Magistrate/Deputy Collector. It is contended that from the tenor and texture of the order contained in Annexure-7 it would clearly appear that the Election Officer without application of his mind or without being aware of his own rights and authority simply observed the order issued by the District Magistrate, as if he was still a sub-ordinate to the District Magistrate and was not acting independently as an Election Officer.
4. Learned Counsel for the State submits that looking to the public demand and the recommendation made by the M.L.A. and M.P. so also the pressure created by the representatives of the public and as it was in the fitness of things the District Magistrate requested the Election Officer to change the polling booth.
5. Learned Counsel for the Election Officer submits that though the District Magistrate had no authority in the matter to issue any direction but the Election Officer being a Deputy Collector, sub-ordinate to the Collector could not ignore the mandatory recommendation/request made by the District Magistrate. It is also contended by the learned Counsel for the Election Officer that in accordance with Section 9(6) of the Bihar Agricultural Produce Markets Act 1960 all matters in relation to the election shall be challenged by an election petition and not otherwise and no Court has any jurisdiction with regard to or in connection with any election under the said Section. Conceding to the fact that the Election Officer was not obliged to change the polling booth under the direction of the District Magistrate, it is however contended by the learned Counsel that even if the polling booth was illegally changed then too the process of the election petition must be observed.
6. Learned Counsel for the intervenor submits that from perusal of Annexures-B and D annexed to the counter-affidavit of the District Magistrate it would clearly appear that he was simply making recommendation and was not interfering with the jurisdiction of the Election Officer. According to him the Election Officer was empowered to turn down the request and was not obliged to accept the recommendation. It is also submitted by him that the District Magistrate even after authorising the Deputy Collector as Election Officer would retain his power and in a given case would be entitled to issue direction looking to the need of the hour. 7.1 I have heard the parties at length.
8. Rule 2 (7) of the Bihar Agricultural Produce Markets Rules defines the Election Officer. According to the definition, “Election Officer means the Collector, Deputy Commissioner or any officer, not below the rank of a Deputy Collector, authorised by him in this behalf of respective areas in whose jurisdiction the market Committee is situated and includes any other officer appointed by the Managing Director to discharge all or any other function of Election Officer.” From the definition it would clearly appear that the Collector and/or the Deputy Commissioner would be the Election Officer. They may authorise any person not below the rank of Deputy Collector as an authorised officer to act as an Election Officer. From the very language of Rule it would clearly appear that present is not a case of delegation of power where the Delegator despite delegation in favour of the delegated still retains the power. Present is a case of authorisation. Once an officer who himself could exercise the power under the provisions of the Act authorises any other officer to act as such officer then the first officer/authority does not retain any powers of supervision or so. The powers are conferred upon the authorised officer and are not delegated in his favour.
9. In the present matter after authorisation was issued in favour of the Deputy Collector to act as the Election Officer, the District Magistrate had no jurisdiction to issue any direction either because of his office or in hierarchy. A district Magistrate is certainly a superior officer to the Deputy Collector in revenue matters or in administrative matters but in election matter the Deputy Collector would be an independent authority and after issuance of authorisation in his favour he would not be sub-ordinate to the District Magistrate. Such an Election Officer will have to look into the matter at his own level, will have to apply his own mind to the facts and will have to pass orders and taken decisions looking to the requirement of the hour. In the present matter from the very reading of Annexure-7 it would clearly appear that the Election Officer did not at all apply his mind to the provisions’ of law nor did he look into the extent and scope of his own power. Despite being an Election Officer he was acting as a sub-ordinate to the District Magistrate. It is most unfortunate that in a democratic set up an Election Officer who has to work independently within four corners of law is still deeming himself as sub-ordinate to the District Magistrate and dancing to his tunes. The District Magistrate had no jurisdiction to interfere with the election process unless the powers are saved in his favour or the powers are conferred upon him. A district Magistrate/Collector may be a revenue head or the administrative head of a district but he is not to need everything irrespective of the legal position. From Annexure-7 it appears that the Election Officer referred to the letter Nos. 293 and 294 dated 11-10-2002 and 17-10-2002 respectively, deemed those letters to be orders and there after issued the notification on 18-10-2002. The order (Annexure-7) may be read from any angle but it would not show that it is an outcome of the free will of the Election Officer. It would rather appear that feeling bound by the orders of the District Magistrate the Election Officer issued Annexure-7.
10. So far as the letters dated 11 -10-2002 and 17-10-2002 are concerned and the arguments of the intervenor are concerned that these were simple recommendation, a perusal of Annexure-B and Annexure-D would show that in each of the letter the District Magistrate was dropping the names and was requiring the Election Officer to issue yet another notification.
11. In Annexure-B, the letter dated 11 -10-2002 the District Magistrate has observed that in view of the recommendation/application made by “Hon’ble” Member of Parliament and the representative of the public the Election Officer should select one of the options out of three alternatives and issue a fresh notification and thereafter report compliance. In Annexure-D letter dated 17-10-2002 the District Magistrate has observed that in view of the letters/applications received from Hon’ble M.L.A. and representative of the public a particular notification be issued and the compliance be reported to the District Magistrate. After reading the paragraph many times I could not find a single word of request or recommendation in these operative parts of these letters. In fact, the District Magistrate being full with his power and authority was requiring the Election Officer to issue a fresh notification.
12. Despite all this and finding that everything is illegal the polling booth has been changed without any authority of law and the Collector unnecessarily interfered with the election process, the learned Counsel for the Election Officer and the intervenor submit that the parties be left to the remedy of the election petition. True it is that Sub-section 6 of Section 9 says that all matters, in relation to election shall be challenged by an election petition before the prescribed authority and no Court shall have any jurisdiction with regard to or in connection with any election under the said Section but the fact remains that the High Court cannot close its eyes to the illegalities which are floating on the surface of the records and are in the teeth of the constitutional mandates and the statutory mandates. If the objections raised by the respondent/ intervenor are allowed it would lead to an illegality and would later perpetuate the same. The High Court under Article 226 of the Constitution of India is not a silent spectator. It has a sword of justice in its hands. It would strike at the illegality at the first available opportunity. In the matter like present if the High Court refuses to strike at the illegality then the High Court would not be acting fair to the public, to the election, to the election process and to its own constitution. An illegality should be allowed to perpetuate ad infinitum is not the law. The law is to weed out the illegality at its earliest so that it does not grow up in cancerous growth. In the present matter if the Election Officer could not change the polling booth under the direction of the District Magistrate or the District Magistrate had no jurisdiction to direct change of the election booth is held to be the proper legal position then should the High Court refuse to interfere in the matter simply on the ground that the statute says that an election matter can be challenged in an election petition. Should the High Court allow an illegality to continue and thereafter require some officer to hear and decide the election petition and thereafter set aside the orders giving an opportunity to the loser to take up the matter in appeal after appeal to the higher forum, I am unable to concede to this argument. The High Court is not meant to allow the illegalities to perpetuate. The High Court must be vigilant and must strike out the illegality at the threshold so that the illegality does not continue. The argument of the alternative remedy and jurisdiction of this Court is rejected.
13. As letters dated 11 -2-2002 and 17-2-2002 were patently illegal and without jurisdiction they deserve to and are accordingly quashed. The order dated 18-10-2002 (Annexure-7) is absolutely illegal and cannot be allowed to stand. It deserves to and is accordingly quashed.
14. After quashing Annexure-7, ordinarily I could leave the parties to square one for continuing the election but the manner in which the election process has been polluted by the M.P. by the M.L.A. by the other representatives and the District Magistrate himself it would be useless to continue this election. The whole election process and the whole election is quashed. It is hereby directed that in accordance with law the authorities shall notify the election and shall see that the elections are conducted in accordance with the provisions of law.
15. The petitioner shall be entitled to this cost quantified to Rs. 5000. The cost be paid by the State Government. It is however made clear that the State would be entitled to recover the cost amount from the officer who has made illegal orders after giving due opportunity of hearing to the officer.