JUDGMENT
P.S. Sahay, J.
1. By this writ application the petitioners have challenged the entire election of the Municipal Commissioners of Arrah Municipality held on 23-11-1978 in which respondents 8 to 41 were elected or co-opted as members of the aforesaid Municipality held under the Bihar and Orissa Municipal Act (hereinafter referred to as the Act).
2. In order to appreciate the points raised in the application it will be necessary to state some facts. The term of office of the Municipal Commissioners expired on 29-7-1978 and government thereafter decided to hold a fresh election of Arrah Municipality. On 1st August, 1978, a notification was issued by the District Magistrate, Bhojpur, respondent No. 3, for holding general election before 6-10-1978 a copy of the aforesaid notification has been filed and marked as Annexure 1. Election programme was also published and the date for final publication of the electoral roll was 7-8-1978 and 21-8-1978 was fixed for filing claims and objections and the date for polling was fixed for 4-10-1978.
On 29-8-1978, which was the date for publication of corrected electoral roll, the District Magistrate, respondent No. 3, exercising power under Rule 7 (2) of the Bihar Municipal Election Rules (hereinafter referred to be as the Rules) postponed the election on the ground that a number of claims and objections were pending before the Returning Officer, a copy of the order of respondent No. 3 has been filed and marked Annexure 2, on 8-9-1978 respondent No. 3 published a fresh date for the election and 18-10-1978 was fixed for publication of election programme and 26-10-1978 was the date fixed for filing nominations and 23-11-1978 was the date for holding the election, a copy of the same has been filed and marked as Annexure 3. On 23-11-1978 the petitioners learnt that respondent No. 2 had altered the area of the Wards and voters of Ward No. 12 from serial No. 1531 to 1648 were shifted to Ward No. 4 and similarly voters from serial No. 903 to 1034 of Ward No. 29 were shifted to Ward No. 22 and this was done in other wards also, a copy of the order dated 26-10-1978 is filed and has been marked as Annexure 4.
The petitioners also learnt that about six thousand voters were enrolled afresh after the publication of the electoral roll in order to favour certain persons, a copy of the same has been filed and marked Annexure 5. Names of some persons were mentioned at two places in two different wards which, according to the petitioners, was wholly illegal and in support of that a chart has been filed and marked Annexure 6. Respondent No. 4, by his order dated 24-4-1978, wrote to the District Magistrate that the constitution of the Wards and the electoral rolls were not correctly prepared and thus they should be revised, a copy of the aforesaid letter is filed as Annexure 8. In spite of that the electoral roll was finally published on 7-8-1978. It is also alleged that no opportunity was given to the tax payers and residents of Arrah Municipality for filing claims and objections and respondent No. 3, the District Magistrate, and respondent No. 4, the S.D.O. acted in a mala fide manner. On the aforesaid grounds the entire election of the Arrah Municipality, held on 23-11-1978, has been challenged.
3. Mr. Ras Bihari Singh, learned counsel appearing on behalf of the petitioners, submitted that election programme was not published in accordance with law and under Rule 4 of the Election Rules objections filed were not decided and no date for hearing was even fixed by the authorities. It has also been submitted that draft electoral roll was not published in a separate register Ward by Ward and, thus, there was clear infraction of the Rule 4 of the Election Rules. The election fixed earlier for 24-10-1978 was illegally shifted and postponed and that also not by the proper authority, namely, the Returning Officer. Learned Advocate General has submitted that this application is not maintainable because a number of issues have been joined together, which give rise to independent causes of action, based on disputed questions of fact and can only be challenged before the Election Tribunal by separate applications for each relief claimed for.
He has, further, submitted that all the objections received were decided and published in accordance with law and the authorities have acted within the four corners of the provisions of the Act and the Rules framed thereunder. The case was heard by a Division Bench and it was urged on behalf of the respondents that in view of the recent Bench decision of this Court in the case of Anil Kumar v. State of Bihar (1980 BBCJ (HC) 140) : (AIR 1980 Pat 271) this application under Articles 226 and 227 of the Constitution of India was not maintainable. Learned counsel for the petitioners, however, doubted the correctness of the aforesaid decision in view of a recent decision of the Supreme Court in the case of Bar Council of Delhi v. Surjeet Singh (1980 BBCJ Part III 7) : (AIR 1980 SC 1612) and submitted that the Bench decision of this Court has not laid down the correct law and thus requires reconsideration and by order dated 21-3-1980 the matter was referred to Full Bench and that is how the matter has come before us.
4. First of all, I will refer to the case law relevant on the subject in order to find out whether such elections can be challenged in this Court under the provisions of Articles 226 and 227 of the Constitution of India or the remedy of the aggrieved person lies before Tribunal and this matter has been the subject matter of controversy and has been raised on earlier occasions also.
5. Now I propose to discuss the case law on the subject. The first case on the point is the case of Parmeshwar Mahaseth v. State of Bihar (AIR 1958 Pat 149) where the election of Darbhanga Municipality was challenged on the ground that Rule 7 (2) of the Election Rules, which required publication by notification calling upon the wards of the Municipality to elect Commissioners was not followed in accordance with the provisions of the Act and the Rules framed thereunder and it was held that those provisions which relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance are directory. If the provisions which are mandatory are not complied with it will render the proceedings illegal and void.
Further it was held that the publication of the notification was the very foundation of the election and the non-compliance thereof deprive many electors of their right to exercise their franchise and the entire election was quashed. The above decision was quoted with approval in the case of Bishwanath Pd. v. Ramji Pd. (AIR 1964 Pat 469) where the election of Sitamarhi Municipality was challenged and Rule 62 of the Election Rules, which was held to be mandatory, having not been complied with, the entire election was held to be void. In the case of Umakant Singh v. Binda Chaudhary, (AIR 1965 Pat 459) the election to the Panchayat Samiti and Zila Parishad was challenged and it was held, that where the entire election was challenged as having been held under statute or statutory rules which were invalid by committing illegalities and it was held to be so in that case and the entire election was quashed in exercise of the powers under Articles 226 and 227 of the Constitution of India.
The aforesaid cases have been considered by Full Bench of this Court in the case of Dilip Kumar Singh v. State of Bihar (AIR 1971 Pat 65) where the election to the Gram Panchayat was challenged and their Lordships, after considering other decisions on the point, held that even if some illegality had been committed in holding the election, it could be challenged in this court in spite of alternative remedy, and could be interfered with if this court was satisfied that the election was not an election at all in the eye of law or a colourable one or the procedure adopted was against the provisions of the statute. Another Full Bench of this Court in the case of Ram Naresh Rai v. State of Bihar (AIR 1979 Pat 130) (FB) fully endorsed the observation of their Lordships.
It may be noticed that, though relying on the case of Parmeshwar Mahaseth (supra) it was held in the case of Dilip Kumar Sinha that it did not apply on all fours to that case which was under the Gram Panchayat Act and election to the post of Mukhiya, Sarpanch and the members of the executive committee were not separate elections, placing reliance on Section 84 (b) of the Gram Panchayat Act and Rule 70 of the Election Rules. It has been rightly pointed out by the learned Additional Advocate General that Rule 21, Sub-clause (4) of the Panchayat Election Rules, was not noticed by their Lordships which is as follows:
“21 (4). Election to the office of the Mukhiya, Sarpanch, Panch, member of the Executive Committee, as the case may be, shall be deemed to be different elections for the purpose of this Rule.”
Learned Advocate General has also drawn our attention to other Rules, namely, 2 (o). “Ward” means a ward of Panchayat. Rule 32 which says that the poll for election of the Mukhiyas, Sarpanchas and Panchas and the members of the Executive Committee at any one polling station shall be held on the same day. Election could be challenged by filing an application before the Election Tribunal appointed under Rules 70 and 72 which is rather important and is quoted here-under.
“72 (1). An election petition calling in question the election to any office of a Gram Panchayat may be presented to the Election Tribunal by any candidate or voter. The ejection of more than one office-bearer shall not be challenged by one election petition for which different fees have been prescribed under Rule 73.”
6. Reading the aforesaid provisions it is clear that the observations made in paragraph 28 of the judgment of the Full Bench has been made without considering the aforesaid Rule which is similar to Rule 62 of the Bihar Municipal Election Rules, which was held by the Full Bench to be different from the Gram Panchayat Rules. In that view of the matter, the decision of Parmeshwar Mahaseth (AIR 1958 Pat 149) will be fully applicable to the cases relating to Gram Panchayat elections also and to that extent the observation of their Lordships in paragraph 28 of the judgment is not correct. It was so held without noticing Rule 21 (4) of the Panchayat Election Rules which has been quoted above.
7. In the case of Anil Kumar v. State of Bihar (1980 BBCJ (HC) 140): (AIR 1980 Pat 271) the election of Siwan Municipality was challenged on the ground that there was an infraction of the mandatory Rule 7 of the Election Rules as in the case of Parmeshwar Mahaseth, Their Lordships relying on two decisions of the Supreme Court: Nanhoo Mal v. Hira Mal (AIR 1975 SC 2140) and K. K. Shrivastava v. Bhupendra Kumar Jain (AIR 1977 SC 1703) held as follows (at p, 276 of AIR 1980 Pat) :–
“We follow the decision of the Supreme Court and hold that the election of the entire Municipal Commissioners, cannot be challenged before the High Court in a writ petition while exercising the jurisdiction under Articles 226 and 227 of Constitution in view of Rule 74 of the Rules which, in our opinion, is an effective remedy provided for challenging any election of the Municipality. In other words, even if the Municipal election is illegal or without jurisdiction, such challenge can only be made by filing an election petition, but not by way of filing a petition under Articles 226 and 227 of the Constitution.”
Further, there Lordships held that in view of the two aforesaid decisions of the Supreme Court the case of Parmeshwar Mahaseth (AIR 1958 Pat 149) (supra) and the observations of the Full Bench in para. 28 in Dilip Kumar Sinha’s case (AIR 1971 Pat 65) stand overruled. Learned counsel appearing for the petitioners doubted the correctness of the aforesaid decision and has placed reliance on Parmeshwar Mahaseth’s case and the Full Bench decision of Dilip Kumar Sinha. According to him, in the instant case the electoral rolls were not prepared according to the rules, objections filed under Rule 4 were not properly considered, persons living in one ward were shifted to another ward to their great prejudice, date of election was changed without any valid reason and all these taken together should be deemed to be no election in the eye of law and, therefore, this court should interfere, as it was done in the case of Parmeshwar Mahaseth.
8. Reliance has also been placed in the case of Chief Commr. of Ajmer v. Radhey Shyam Dani (AIR 1957 SC 304). In that case the election to Ajmer Municipality was challenged on the ground that when the electoral roll was prepared opportunity was not given to the parties to scrutinise the same and file objections. Their Lordships held that unless this was done the entire obligation cast upon the authorities holding the election is not discharged and the elections held on such imperfect electoral rolls could acquire no validity and would be liable to challenge at the instance of the parties concerned and in that situation the election was held to be bad. In the case of Nanhoo Mal v. Hira Mal (AIR 1975 SC 2140) the election of Etah Municipality was challenged on the ground that Rule 6 of U. P. Municipality Act was not complied with and the Full Bench of the Allahabad High Court (1975 All LJ 419) allowed the application and set aside the entire proceeding relating to the election of the President.
The matter went to the Supreme Court and it was held that whether the rule in question has been complied with or not could be decided by an election petition presented in accordance with the provisions of the Act and in no other way. Further it was held that the District Judge under the Act had ample power to decide all such questions and the High Court could not interfere in exercise of their power. In the case of K. K. Shri-vastava v. Bhupendra Kumar Jain (AIR 1977 SC 17031 the election of the Bar Council was challenged and it was allowed by the Madhya Pradesh High Court on the ground that the entire election was under challenge. The matter went to the Supreme Court and it was held that when there is appropriate and equally efficacious remedy, the court, exercising writ jurisdiction, should keep its hands of more so particularly where the dispute relates to an election, and there is a statutory rule and a prescribed remedy which almost reads in mandatory terms.
Their Lordships held that merely because the challenge was to plurality of returns of election, therefore, a writ petition will He, was fallacious argument, and it was also held that there was no foundation whatsoever for thinking that where challenge was to an “entire election” then the writ jurisdiction springs into action. In the case of Delhi Bar Council v. Surjeet Singh (1980 BBCJ Part III, 7) : (AIR 1980 SC 1612) the election of the Delhi Bar Council was challenged and reliance has been placed by the learned counsel for the petitioners on this case. The entire election of the Bar Council, Delhi, was challenged on the ground that in Rule 3, Sub-clause (5) of Bar Council of Delhi Rules, a proviso was added to the aforesaid Rule in 1978 by which Advocate were directed to fill up declaration forms and a number of Advocates could not do so for some reason or other.
The result was that they could not participate in the election. After the election was over the election was challenged on the ground that the proviso to the aforesaid Rule was ultra vires and this WHS allowed by the Delhi High Court. The matter came before the Supreme Court and Untwalia, J. speaking for the Bunch held that the aforesaid Rule was ultra vires and the electoral roll so prepared was illegal and this went into root of the matter. Their Lordships after considering the decisions of the Supreme Court and other High Courts and also after referring to the cases of Ajmer Municipality and K. K. Shrivastava (supra) held as follows (at p. 1621 of AIR 1980 SC) :–
“If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature of the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or in any event is not adequate and efficacious remedy then the remedy of a writ petition to challenge the whole election is still available. In the present case we have pointed out above the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3 (j) of the Delhi Bar Council Election Rules ultra vires and that using to the alternative remedy provided in Rule 34 (b) was no remedy at all.”
According to their Lordships aforesaid decision a candidate loosing the election could challenge the validity of the entire election if there was violation of essential provisions of the Election Rules and the Act under Articles 226 and 227 of the Constitution of India even if alternative remedy was provided for and that could not be adequate or efficacious for the person aggrieved. Thus it will be seen that the Full Bench decision of Dilip Kumar Sinha (AIR 1971 Pat 65) (supra) has been approved by the Supreme Court though it was not considered and also the case of Parmeshwar Mahaseth (AIR 1958 Pat 149) (supra) which has been fully approved by the aforesaid Full Bench.
9. On a careful consideration of the ratio decided in the case of the Supreme Court, the observations of their Lordships in the case of Anil Kumar (1980 BBCJ (HC) 140): (AIR 1980 Pat 271) (supra) that in no case High Court can interfere in such elections in exercise of its power under Articles 226 and 227 of the Constitution of India must be held to be not correctly decided and to that extent the aforesaid decision must be held to have been overruled by the decision of the Supreme Court. On a close analysis of the decisions, referred to above, it must be held that this Court can interfere under writ jurisdiction in cases (1) if there is no election in the eye of law; (2) Election held was a colourable one; and (3) Validity of the Act and the Rules of the election in question are under challenge.
10. Now, keeping the aforesaid principles in mind, it remains to be considered whether the petitioners have been able to make out a case, justifying our interference in the election in question. This requires close scrutiny of the submissions of the learned counsel appearing on behalf of the petitioners. First of all, it has been contended that there was addition and alteration in the voter’s list and a number of objections were preferred which will be also clear from the order of the District Magistrate, respondent No. 3, as contained in Annexure 2 but those objections were never disposed of and, thus, this was not an election in the eye of law. In the counter-affidavit, filed on behalf of the State, the fact that a number of objections had been received, has been admitted and for that the election had to be postponed by the District Magistrate, respondent No. 3, but it has also been asserted that all objections were disposed of and everything was done according to the Election Rules. The learned Advocate General has drawn our attention to Rule 4 of the Bihar Municipal Elections and Election Petition Rules, 1953, which is as follows:
“4. Whereas electoral roll of the Assembly constituency, which is deemed suitable to be the electoral roll for the purpose of the municipal election, does not contain the name of any person entitled to be registered in the electoral roll or contains erroneous or defective entry, the person concerned may, in accordance with the provisions of Sections 22 and 23 of the Representation of the People Act, 1950, get his name included and other corrections made in that roll till the date on which the filing of nomination in respect of the Municipal Election is to be made.”
The electoral roll prepared under the Representation of the People Act, 1950, was adopted. Our attention has been drawn to Sections 20 to 23 of the aforesaid Act. Section 22 deals with correction of entries in electoral roll and 23 deals with the inclusion of names in the rolls for which a procedure has been laid down and that inclusion cannot be made after the last date of filing the nominations and person aggrieved by the aforesaid order can also prefer an appeal under Section 24 of the Act It has not been stated anywhere by the petitioners that they had actually applied for their inclusion which was not done. Rather the counter-affidavit, filed on behalf of the State, clearly shows that all objections were disposed of. Therefore, the electoral roll, as it stood on the date of filing nomination of election of different Wards of the Municipality, must be held to be final for the purpose of election, as held in the case of Baidyanath Panjiara v. Sita Ram Mahto (AIR 1970 SC 314) and by our own High Court in the case of Ramji Prasad Singh v. Ram Bilas Ojha ((1976) 54 ELR 293).
It has also been stated in the counter-affidavit that neither the Wards changed nor the voters were shifted from one Ward to the other. Moreover reading the provisions of the Act, which have been mentioned in detail earlier and the Rules framed thereunder, all these give rise to separate causes of action, for challenging the election of each Ward and they cannot be joined together because they are to be treated as separate election. In such cases, facts have to be investigated, as to who had actually applied and whose application was not considered and whether this was done before the date of the filing of the nomination paper. Thus, all these disputed question of fact cannot be decided in this Court. From the papers, which have been produced on behalf of the State, it is clear that under the directions of the District Magistrate, respondent No. 3, corrections were actually made and this fact is also supported by the materials on the record.
11. Mr. Radha Raman, appearing for respondent No. 5, and Mr. B. C. Ghose, appearing for a number of respondents, have contended that except for a bald statement regarding infraction of Rule 7 of the Election Rules, nothing specifically have been stated in the application. No doubt Rule 7 is mandatory and from the materials on the record it is absolutely clear that the District Magistrate, respondent No. 3, acting under Rule 7 of the Election Rules had postponed the election for good and valid reasons. It has also nowhere been asserted that Rule 9 of the Election Rules has been violated which gives power to the Returning Officer to hold the election. It has also nowhere been stated that the S.D.O., respondent No. 4, was not the Returning Officer and election programme was not published. It has been brought to our notice that S.D.O., respondent No. 4, was appointed Returning Officer on 6-8-1978 and had published the election programme on 18-8-1978. In absence of any specific pleading on this point it has been rightly contended on behalf of the State that Rule 9 of the Election Rules has been complied with and Rule 7 has not been violated in any manner as held by me earlier.
12. Thus, on a careful consideration of the points, which have been raised in this application, and after hearing the learned counsel appearing for the parties and on a careful consideration of the case law cited at the Bar, no grounds for interference whatsoever has been made out by the petitioners. The points urged in the application can only be decided by filing election petition before a competent Tribunal which will decide the disputed questions of facts raised on behalf of the parties.
13. Thus, I find that there is no merit in the application and it is, accordingly, dismissed but, in the circumstances of the case, there will be no order as to costs.
K.B.N. Singh, C.J.
14. I agree. In the case of Dilip Kumar Singh v. State of Bihar (AIR 1971 Pat 65) (FB) to which I was a party, the observation made by Hon’ble S. P. Singh, J. in paragraph No. 28 of the decision to the effect that Section 34 of the Gram Panchayat Act and Rule 70 of the Bihar Panchayat Election Rules, 1959, do not refer to the particular office, as is the case with Rule 62 of the Bihar Municipal Elections and Election Petition Rules, which states that no election to the office of the Municipal Commissioner, Chairman, Vice-Chairman or President under the said Rules shall be called in question, except by an election petition. This observation was made as Rule 21 (4) of the Bihar Panchayat Election Rules was not referred to in course of the arguments, by either party, and not incorporated in the copies of the rules placed before us, which led to the said observation distinguishing the decision in the case of Parmeshwar Mahaseth v. State of Bihar (AIR 1958 Pat 149), as it relate to the Bihar and Orissa Municipal Elections and Election Petition Rules.
L.M. Sharma, J.
15. I agree.