1970 Supreme(Pat) 77

PATNA HIGH COURT
S.C.Misra, K.B.N.Singh and Shambhu Prasad Singh JJ.
Dilip Kumar Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1572 of 1969 ; 1634 of 1969 ;
Decided On : MAY 05, 1970

The State Government cannot levy any impost to be collected by itself under the rule-making powers conferred upon it by the Act, levying of a nomination fee as imposed by amendment to Rule 21 is foreign to the scheme of the Act.

Headnote:

Whether it was within the competence of the State Government to amend Rules 21 and 23 of the Rules thereby imposing a non-refundable nomination fee and disqualifying a person from being a candidate for the election if he was not able to deposit the fee, and can the election be challenged at the instance of the petitioner on the ground that the State Government could not legally amend the rules ? Is an election held on a voters list not revised to make it up-to-date valid and legal ? Is the writ application maintainable inasmuch as the petitioner has not exhausted the alternative remedy of filing an election petition before the Election Tribunal under Rule 70 of the Rules ?

Fact of the Case:

The petitioner in C.W.J.C. No. 1572 of 1969 is a voter of Damodarpur Bhojpati Gram Panchayat within Mahua Block, in the District of Muzaffarpur, and has prayed for declaring void and without jurisdiction the election of the said Gram Panchayat held on the 13th of November, 1969. The programme for the election was published, on the 23rd of May, 1969, and nomination papers of various candidates for the different offices of the said Gram Panchayat were received on the 5th of June, 1969. According to the said programme, polling was to take place on the 18th of August, 1969. By a general order of the State Government, respondent No. 1, the election of the Panchayat was postponed on account of rain. Block Development Officer, Mahua, respondent No. 4, who was the Election Officer, then fixed up the 13th of November, 1969, as the date for the Poll and the polling did take place on that date. According to allegations, made in the petition, the election is bad on the following grounds.:- - (i) The revised programme for the election was not published by beat of drums in the Wards of the Panchayat as required by Rule 17 of the Bihar Panchayat Election Rules, 1959, (hereinafter to be referred to as the Rules). - (ii) According to Rule 31 of the Rules, Polling stations should have been selected by the Sub-divisional Officer, Hajipur, respondent No. 3, but they were, in fact, selected by respondent No. 4. - (iii) Rule 21 of the Rules has been amended. The amendment prescribes a non-refundable nomination fee of Rs. 20 for the offices of Mukhia and Sarpanch and a fee of Rs. 10 for other offices. Rule 23, has also been amended authorising the Election Officer to reject the nomination papers which are not accompanied by a receipt showing deposit of the nomination fee. These amendments of Rules 21 and 23 are beyond the rule-making powers of the State Government under Section 80 of the Bihar Panchayat Raj Act, 1947 (hereinafter to be referred to as the Act). - (iv) The electoral roll of the Gram Panchayat was not revised as required by the rules as a result of which large number of persons were deprived from exercising their franchise in the election held on the 13th November 1969. - (v) Two villages, Rajopur Baraie and Baraie, of Lalganj Police Station lying within Lalganj Block have also been included in the Damodarpur Bhojpati Gram Panchayat with the result that the voters of those villages will have a say in the election of the Panchayat Pramukh for the Panchayat Samiti of Mahua Block. Respondent Nos. 5, 11 and 14 (who?) have been elected to some of the offices of the Gram Panchayat at the said election have been described as residents of the aforesaid two villages.

Finding of the Court:

The Court held that the State Government could not levy any impost to be collected by itself under the rule-making powers conferred upon it by the Act, levying of a nomination fee as imposed by amendment to Rule 21 is foreign to the scheme of the Act. The Court also held that the Election Tribunal is the appropriate forum to challenge the validity of the election and not the High Court under Article 226 of the Constitution.

Issues: 1. Whether the State Government had the competence to amend Rules 21 and 23 of the Rules thereby imposing a non-refundable nomination fee and disqualifying a person from being a candidate for the election if he was not able to deposit the fee? 2. Whether the election can be challenged at the instance of the petitioner on the ground that the State Government could not legally amend the rules ? 3. Whether an election held on a voters list not revised to make it up-to-date valid and legal ? 4. Whether the writ application is maintainable inasmuch as the petitioner has not exhausted the alternative remedy of filing an election petition before the Election Tribunal under Rule 70 of the Rules ?

Ratio Decidendi: 1. The Court held that the State Government could not levy any impost to be collected by itself under the rule-making powers conferred upon it by the Act, levying of a nomination fee as imposed by amendment to Rule 21 is foreign to the scheme of the Act. 2. The Court held that the Election Tribunal is the appropriate forum to challenge the validity of the election and not the High Court under Article 226 of the Constitution. 3. The Court held that an election held on a voters list not revised to make it up-to-date is valid and legal. 4. The Court held that the writ application is not maintainable inasmuch as the petitioner has not exhausted the alternative remedy of filing an election petition before the Election Tribunal under Rule 70 of the Rules.

Final Decision: Both the writ petitions were dismissed.