The central legal point established in the judgment is the constitutional power of the State Election Commission to exercise superintendence, direction, and control over all elections to the Municipalities, including the election to the post of the Chief Councillor.

1. Heard learned counsel for the petitioner, learned counsel for the State and learned Senior Counsel for the State Election Commission.

2. The petitioner seeks quashing of the order contained in letter No. 3369 dated 10.12.2009 issued under the signature of the Secretary, State Election Commission, Bihar, Patna, by which a direction has been issued to the District Magistrate-cum- District Returning Officer (Municipality), Purnea to get the election conducted for the post of the Chief Councillor, Nagar Panchayat, Kasba, Purnea on 29.12.2009 in accordance with the provisions laid down under Rules 93 to 97 of the Bihar Municipal Election Rules, 2007 and further for quashing the consequential letter dated 17.12.2009 issued by the Returning Officer, Municipal Council, Purnea and addressed to the petitioner requesting therein to participate in the meeting of the Councillors scheduled to be held at 11 A.M. on 29.12.2009.

3. Learned counsel for the petitioner submits that under Rule 93 of the Bihar Municipal Election Rules, 2007, it is the District Magistrate or any other officer not below the rank of the Deputy Collector authorized by him in this behalf who shall be called the Returning Officer for the purpose of Rules 94 to 96, who shall call the meeting of the elected Councillors to elect the Chief Councillor or Deputy Chief Councillor under Section 35 of the Act. It is submitted that the notice of the place, date and time of the meeting has to be fixed by the District Magistrate and no authority has been conferred by the said Rules upon the State Election Commission to fix a date and issue direction to the District Magistrate to hold election on the said date. It is further submitted that under Rule 97, the election of the Chief Councillor and Deputy Councillor to fill a casual vacancy in the Municipality is to be held in accordance with the procedure prescribed under Rules 93 to 96 and thus even in the case of filling of a casual vacancy to the said office, as in the present matter, the said Rule 93 shall apply. It is stated by learned counsel that through Annexure-1, letter impugned dated 10.12.2009, it is the Secretary to the State Election Commission, who has fixed the date of election on 29.12.2009 and the District Magistrate has been directed to conduct the election on the said date, which is contrary to the provisions of Rule 93 of the Rules.

4. The other contention of learned counsel for the petitioner is that the notice issued to the petitioner for attending the said meeting for electing the Chief Councillor on 29.12.2009 has been issued under Rule 67 of the Bihar Municipal Elections and Election Petition Rules, 1953, which rule has been repealed by Rule 116 of the Bihar Municipal Election Rules, 2007 and thus, the notice itself is non est having been issued under repealed statutory rules. Learned counsel also relies upon the provisions of Section 23(3) of the Bihar Municipal Act, 2007, which provides that in case of any casual vacancy in the office of the Chief Councillor caused by death, resignation, removal or otherwise, the Councillors shall, in accordance with such procedure as may be prescribed, elect one of the Councillors to fill up the vacancy. It is urged by learned counsel that the election to the office of the Chief Councillor in the case of a casual vacancy to the said office has to be held in accordance with the prescribed procedure, which means the procedure as prescribed by the Bihar Municipal Election Rules, 2007 .

5. For the aforesaid reasons, learned counsel for the petitioner submits that the impugned letter dated 10.12.2009 and the notice dated 17.12.2009 (Annexure-2) should be quashed as non est and contrary to the law and statutory rules.

6. Learned Senior Counsel for the State Election Commission, on the other hand, submits that the issue raised in the present election petition is no longer res integra as the same has already been concluded and decided by a decision of this Court in a bat