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1964 Supreme(Pat) 179
PATNA HIGH COURT
V.Ramaswami and N.L.Untwalia JJ.
Ram Chandra Prasad Sahi
Versus
State Of Bihar
Miscellaneous Judicial Case No. 551 of 1961 ; 552 of 1961 ;
Decided On : DECEMBER 08, 1964
The requirement of Rule 3 of the Bihar Panchayat Election Rules, 1959, for holding the first election within four months from the date of establishment of the Gram Panchayat was directory and not mandatory.
Headnote:
ELECTION - GRAM PANCHAYAT - ELECTION OF MUKHIYA - WITHDRAWAL OF CANDIDATURE - REQUIREMENT OF RULE 3 OF BIHAR PANCHAYAT ELECTION RULES, 1959 - WHETHER MANDATORY OR DIRECTORY - INTERPRETATION.
Fact of the Case:
Petitioners challenged the election of respondent No. 3 as Mukhiya of Morsand Gram Panchayat on the grounds of an allegedly fraudulent withdrawal of the petitioner's candidature and violation of Rule 3 of the Bihar Panchayat Election Rules, 1959, which required the first election to be held within four months from the date of establishment of the Gram Panchayat.
Finding of the Court:
The court held that the requirement of Rule 3 was directory and not mandatory, and the first election held beyond the period of four months from the date of the establishment of the Gram Panchayat could not be assailed and held void on that account.
Issues: 1. Whether the withdrawal of the petitioner's candidature was valid and in accordance with Rule 24 of the Bihar Panchayat Election Rules, 1959. 2. Whether the requirement of Rule 3 of the Bihar Panchayat Election Rules, 1959, for holding the first election within four months from the date of establishment of the Gram Panchayat was mandatory or directory.
Ratio Decidendi: 1. The court relied on the principles for determining whether a statutory provision is mandatory or directory, considering the intent of the legislature, the nature and design of the provision, and the consequences of construing it one way or the other. 2. The court found that the requirement of Rule 3 was directory, as it related to the performance of a public duty and was a matter of convenience rather than substance. The failure to adhere to the requirement strictly would not make the election null and void, as it would cause serious general inconvenience or injustice to persons who had no control over those entrusted with the duty.
Final Decision: Both M.J.C. No. 551 of 1961 and M.J.C. No. 552 of 1961 were dismissed without costs.
Untwalia, J.
1. In both these application filed, on their face, under Article 227, but in substance, under Article 226 of the Constitution of India, the election of Shri Jagannath Prasad Singh, respondent No. 3, as Mukhfya of Morsand Gram Panchayat in the district of Muzaffarpur, has been challenged as ultra vires, illegal and void by different petitioners, but the attack made at the time of the argument of the oases by learned counsel for the petitioner is on different grounds to be stated hereinafter.
M. J. C. 551/61.
2. The sole petitioner in the case was a candidate for election to the office of the Mukhiya of the Gram Panchayat aforesaid. He along with other candidates filed his nomination on 31st of May, 1861. After security his nomination paper was accepted. According to his case, on the 3rd of June, 1961, the due date for withdrawal of nominations, a withdrawal petition purporting to be on behalf of the petitioner was fraudulently filed before the Elections Officer (respondent No. 2) by some interested individual but without complying with the requirements of Rule 24 of the Bihar Panchayat Election Rules, 1959 , hereinafter referred to as the Rules. In violation of that rule, the Elections Officer passed an order on 3rd of June, 1961, accepting the withdrawal of the petitioners candidature along with others. After withdrawal, the only candidate left in the field for the office of the Mukhiya was respondent No. 3, and, consequently, he was declared duly elected as Mukhiya and respondent No. 2 under Rule 26 of the Rules On the 4th of June, 1961, the petitioner filed an application repudiating the purported withdrawal of his candidature and drawing the pointed attention of the Elections Officer to the fact that the alleged application of withdrawal had not been filed by the petitioner in person and, in fact, he had not withdrawn. A copy of that petition is Annexure A to the petition. But the Elections Officer, by his order dated the 4th of June, 1961, a copy of which is Annexure A/1 to the application, illegally and wrongly rejected the petitioners application on the ground that the withdrawal had been endorsed by the Gram Sewak and the repudiation had been made beyond the date of withdrawal. The declaration of election of respondent No. 3, therefore, has been challenged as illegal and void
3. In the counter-affidavit of respondent No. 3, it has been stated that the petitioner himself had filed the petition on 3-6-1961 before the Elections Officer, and there was no infraction of Rule 24 of the Rules. It is obvious that the decision of this case depends upon determination of two disputed questions of fact, namely, (i) whether the application for withdrawal was signed by the petitioner; and (ii) whether it was filed personally by him before the Elections Officer. The petitioners remedy, therefore, was to file an application before the Election Tribunal to challenge the allegedly void election of respondent No. 3 to the office of the Mukhiya of the Gram Panchayat. It has been held ay this Court in several cases that, in view of the provisions of Section 84B of the Bihar Panchayat Raj Act, 1947 , and also in view of the general principles governing the exercise of powers under Articles 226 and 227 of the Constitution of India, and specially, when disputed questions of fact are involved, this Court will not exercise its powers either under Article 226 or 227 of the Constitution and quash the election when the petitioner has not availed of the alternative and better remedy for deciding the disputed questions of fact. In my opinion, M.J.C. 551 of 1961 has got to fail on this simple ground. It is accordingly dismissed but without costs M. J. C. 552 of 1961.
4. In this case, there are three petitioners who claim to be voters of the Gram Panchayat aforesaid. Their case is that the Gram Panchayat was established under Sec.3 of the Bihar Panchayat Raj Act, 1947 , hereinafter referred to as the Act, under notification No. PEL-
