An election held without the authority of the Election Commission is void. A stay order becomes effective only when communicated to the concerned authorities.

1. Heard learned counsel the parties and perused the order under appeal which is common in both the appeals.

2. The appellant Sanjay Das of LPA No. 1203/09 approached this court through CWJC No. 14359/2008 against the order of the State Election Commission whereby his election was declared null and void by the State Election Commission on the ground that Election Commission was not communicated about the vacancies and, therefore, election was held without the authority of the Election Commission. During the pendency of the said election petition, treating the post of Pramukh in the concerned Panchayat Samiti vacant the State Election Commission decided to hold a fresh election. At the instance of appellant Sanjay Das an order of stay of the fresh election was passed by the writ court on 19.9.2008 but on that date itself the election was held between 11 AM and 1.10 PM and the election result was also announced by the competent authority before the District Magistrate could look into the fax message sent by the counsel for the State on 19.9.08 at 3.30 PM.

3. By the judgment and order under appeal the writ court has dismissed the writ petition on a finding that the action of the Election Commission in treating as void the appellants first election held without the authority of Commission was legal and proper. While doing so the writ court further noticed that since the subsequent election was held after the passing of stay order by the writ court that election also had to be set aside on account of stay order passed on 19.9.2008. The appellant who was successful in the subsequent election also has, thus, been unseated again on account of judgment and order under appeal only because of an interim order issued at his instance but admittedly that order could not reach the concerned authorities in the district concerned before the election was held and the appellant had been declared successful.

4. So far as judgment of the writ court relating to validity of his first election is concerned, we are in agreement that the election held without the authority of the State Election Commission can never be an election in the eyes of law. Such an election has to be ignored by all the concerned authorities. That having been done by the State Election Commission, we find no good reason to interfere with that part of order of the writ court or with the order of the State Election Commission.

5. So far as the subsequent election is concerned in which the appellant was also successful and got elected as Pramukh, the main issue was whether the stay order had actually reached the authorities before the holding of the election concerned. A stay order becomes effective only when it is communicated to the concerned authorities who have to act upon such order of stay. In the present case we find from the order under appeal that the District Magistrate, Samastipur could not disclose as to when he first had the opportunity to look at the stay order. Now from the counter affidavit filed on behalf of respondent nos. 3 and 4, particularly, from paragraphs 5 and 6 it is absolutely clear that the fax message sent through the office of Advocate General, Bihar, could be seen by the District Magistrate, Samastipur only at 3.30 PM on 19.9.2008 but by that time not only the voting had concluded but the election result had already been declared. The election of Pramukh was not a big affair inasmuch as apparently only 28 members had to participate in the election and the election process was being held at Hasanpur Block, as submitted at the bar, at a distance of 50 Kms. from the district headquarter Samastipur.

6. In our view the election held on 19.9.2008 did not suffer from any illegality or infirmity nor its validity could be affected automatically on account of stay order passed on 19.9.2008 by this court which could not reach the District Magistrate, Samastipur before the holding of the election. There is no doubt that according to settled law this cou