DHANUSHDHABI PRASAD Vs. SUB-DIVISIONAL MAGISTRATE AND OTHERS

JUDGEMENT

(1.) The only point urged on behalf of the petitioner by his learned counsel in this application directed from an order of the Sub -divisional Magistrate accepting the nomination paper of respondent no. 2 is that before his nomination paper was accepted by the Sub -divisional Magistrate on 23.2.1970, the petitioner had been duly elected to the office of the Mukhiya of the Gram Panchayat concerned under Rule 26 of the Bihar Panchayat Elections Rules, 1959 (hereinafter to be referred to as 'the Rules') and hence the proceeding before the Sub -divisional Magistrate became infructuous and the order recorded by him on 23.2.1970 can have no effect. I am unable to accept this contention. The nomination paper of respondent no. 2 was rejected by the Election Officer on 5.2.1970. He filed his objection under Rule 23(4) of the Rules before the Sub -divisional Magistrate on 9.2.1970. According to the case of the petitioner, as it appears from the records placed by his learned counsel, the declaration was made by the Election Officer on or before 16.2.1970. A period of two weeks has been provided under Rule 23(4) of the Rules for the filing of the objection petition and its disposal. The argument put forward by learned counsel for the petitioner is that, as held by this Court in several decisions, the period of seven days provided for the filing of the objection petition under Rule 23(4) of the Rules is mandatory, but the period of one week provided thereafter for disposal of the application is directory and hence learned counsel submitted that on a reasonable and harmonious construction of Rule 26, it should be held that the Election Officer cannot make a declaration under Rule 26 within seven days of his order of scrutiny of the nomination paper either rejecting or accepting the same. I am unable to accept this argument. For the purpose of making the order, the Sub divisional Magistrate may take more time, but on the express language of Rule 26, it is abundantly clear that the Election Officer has no jurisdiction to make the declaration before the expiry of the period both for filing and disposal of the objection petition as provided in Sub -rule (4) of Rule 23. The period provided undoubtedly for both is two weeks. The second period may be directory, but that does not mean that the period is not provided in Rule 23(4) of the Rules. It is provided and even if directory, ordinarily and generally, it is meant to be complied with and hence the Election Officer making a declaration under Rule 26 before the expiry of the total period of two weeks does an act which is ultra vires and his declaration must be held to be nullity. I am inclined to think, although that question does not arise in this case, that the declaration made on the expiry of two weeks and before passing of the order of the Sub -divisional Magistrate under Rule 23(4) of the Rules may not be ultra vires, illegal or a nullity. But since in this case, the declaration was not made on the expiry of two weeks from 5.2.70, that is, on 20.2.70 and before 23.2.70, but it was made before the expiry of the period of two weeks, I have no doubt in my mind that such a declaration was illegal, ultra vires and a nullity. The Election Officer should, therefore, now ignore the declaration and on the basis of the order of the Sub -divisional Magistrate accept the nomination paper of respondent no. 2 as valid. In the result, the application fails and is dismissed. But I shall make no order for costs.