The Sub-divisional Magistrate is not divested of his power to appoint Presiding Officers by the delegation of his powers as Election Officer to the Block Development Officer.

Narasimham, C.J.

This is a Letters patent appeal against the judgment of a single Judge of this Court in Civil Writ Jurisdiction Case No. 811 of 1965. One Kailash Singh (respondent no. 1) filed an application under Articles 226 and 227 of the Constitution, challenging the validity of the elections held to Khanetu Gram Panchayat in the district of Gaya on the 14th June, 1965. The main ground urged in support of the application was that the elections were conducted by two Presiding Officers, viz., Shri Singheshwar Prasad Singh and Shri Saheb Dayal Singh, for booths 1 and 2, and that they had no jurisdiction to function as Presiding Officers, inasmuch as they were appointed as Presiding Officers by the Sub-divisional Magistrate functioning as Election Officer after he had delegated his power as Election Officer to the Block Development Officer, Tekari Block. It was urged that, after such delegation, the Sub-divisional Magistrate lost his power to appoint Presiding Officers, and that consequently, Shri Singheshwar Prasad Singh and Shri Saheb Dayal Singh could not validly function as Presiding Officers, and conduct the elections. Several other grounds were alleged in support of the writ petition; but the learned single Judge disposed of it on the said ground only, leaving the other grounds open. He thought that, in view of a Bench decision of this Court in (I) Hanuman Mishra V. Bachan Mishra (1964 B.L.J.R 773), the Sub-divisional Magistrate was divested of his power to appoint Presiding Officers to hold the elections after he had delegated his power as Election Officer to the Block Development Officer. Hence, he set aside the election.

2. Against the judgment of the learned single Judge, this appeal was filed by opposite party nos. 1 to 3, 8 and 9. Opposite party nos. 1 and 2 (appellants nos. 1 and 2) were elected Mukhiya and Sarpanch, respectively, of the said Panchayat. Opposite party no. 3 (appellant no. 3) was elected a punch after contest. Opposite party nos. 8 and 9 (appellants nos. 4 and 5) were elected as members of the Executive Committee of the said Panchayat after contest.

3. It is now necessary to refer to some of the relevant provisions of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules). Clause (g) of Rule 2 defines an "Election Officer" as “the Sub-divisional Magistrate exercising jurisdiction over the Subdivision within the local limits of which the Gram Panchayat in which the election or the bye-election is to be held is situated and includes any other officer who may be specially appointed by the Election Officer to discharge any of his functions under these rules." By virtue of this definition, it is clear that the Sub-divisional Magistrate is the Election Officer, though he has the power to delegate his functions as Election Officer to any other officer. It is not denied that, in exercise of this power, he delegated his functions as Election Officer to the Block Development Officer, Tekari Block. The process of election is required by these rules to be conducted ordinarily by the Election Officer, who prepares the election programme, receives the nomination papers, scrutinises the nomination, and, eventually, decides on the holding of poll (see Rules 17 to 30). Rule 31 (2) is as follows:

"The Election Officer shall, in writing, appoint a Presiding Officer and such number of Polling Officers to assist the Presiding Officer as he thinks necessary."

In view of the definition of "Election Officer" (as quoted), it is obvious that, in respect of the Panchayat concerned, the Block Development Officer has, undoubtedly jurisdiction to appoint the Presiding Officer and the Polling Officers to conduct: the poll. It is, however, admitted that, in respect of the impugned election, the Presiding Officers and the Polling Officers were appointed by the Sub-divisional Magistrate himself. There is no finding of the learned single Judge, nor is it alleged in the writ petition, that the Block Devel