RAJENDRA MISRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Articles 226 and 227 of the Constitution of India has been preferred by Rajendra Misra the sole petitioner against the order dated 14-3-1970. passed by the Sub-Divisional Officer, respondent No. 2, rejecting the nomination paper filed by the petitioner who was a candidate for the post of Mukhiya of Goshpur Panchayat in Raghopur Anchal. Sub-Division Supaul in the district of Saharsa. The application of the petitioner was admitted by this Court on 3-4-1970 and by order D/- 21-4-1970, this Court passed an order that pending the hearing of this application there would be a stay of the election of the Mukhiya of the said Panchayat.

(2.) In order to appreciate the point involved in this application it will be necessary to state briefly the facts. On 4-3-1970, the petitioner filed a nomination paper along with four others including Sri Krityanand Misir. respondent No. 4. The nomination of the petitioner was accepted by the Block Development Officer, respondent No. 3. Against the acceptance of his nomination paper respondent No. 4 filed an application under Rule 23, Clause 4 of the Bihar Panchayat Election Rules (hereinafter referred to as the rules) before the Sub-Divisional Officer, respondent No. 2 who by the impugned order rejected his nomination paper mainly on the ground that the petitioner had taken Rs. 2,406.70 paisa on behalf of the Gram Panchayat for the construction of a sluice gate but the petitioner did not construct the same and it was alleged by respondent No. 4 that the petitioner had misutilised the entire money, in his personal share and interest. A certificate proceeding also was started against the petitioner to realise the amount but he had not deposited the certificate amount in the Government treasury. Even body warrant was issued against the petitioner and he was evading execution of the same. The further allegation against the petitioner was that the money was not even entered in "Lekhanidhi Bahi" of the said Gram Panchayat In order to support the said contention respondent No. 4 had filed a certified copy of the certificate proceeding before the Sub-Divisional Officer which also indicated that the certificate proceeding was pending till then against the petitioner. Another certified copy of Gram Panchayat Case No. 8 of 1970 was filed by respondent No. 4 before the Sub-Divisional Officer to show that the petitioner had misutilised the amount. Before the Sub-Divisional Officer the petitioner admitted that he had received an advance as alleged in the capacity of a Mukhiya and executed an agreement of the said contract along with one member of the executive committee as required under law. He however stated that he had utilised the whole amount properly. In support of his statement he also filed an affidavit. The Sub-Divisional Officer, after hearing the parties and perusing the record held that he was satisfied that the petitioner had share and interest in the contract directly or indirectly and while entering into an agreement on behalf of the Gram Panchayat had misutilised the advanced amount for his own interest and at his own risk. On that ground respondent No. 2 rejected the nomination paper which was filed by the petitioner and set aside the order of the Block Development Officer, respondent No. 3. It is against this finding and the order that the petitioner has come up before this Court. Respondent No. 4 has also filed a counter-affidavit.

(3.) In spite of the said order of this Court dated 21-4-1970. the election of respondent No. 4 as Mukhiya was held on 25-4-1970. Thereafter on 12-5-1970, the petitioner filed on application dated 8-5-1970 in this Court for initiating a contempt proceeding against the Sub-Divisional Officer and Block Development Officer for disobedience of the said order. In that application the Sub-Divisional Officer was impleaded as respondent No. 1 and the Block Development Officer was impleaded as respondent No. 2. On 13-5-1970, this Court ordered issue of notice to the Sub-Divisional Officer and Block Development Officer for showing cause as to why a contempt proceeding be not started against them for disobeying the order of this Court dated the 21st April, 1970, staying the election of the said Gram Panchayat in spite of the petition along with stay order having been filed by the petitioner before them. It appears that those two contemners filed show cause and tendered an unqualified apology. This Court by an order dated 1-9-70, observed that the two contemners i.e., the Sub-Divisional Officer and the Block Development Officer were present in Court. Mr. Katariar, learned counsel for the contemners stated that his clients tendered unqualified apology in the case. They had not intentionally flouted the order of this Court. In that view, their apology was accepted and the contempt proceeding against them was dropped. It was however observed that the said order pass-by this Court was without prejudice to the case of the petitioner regarding the rejection of his nomination paper. The show cause petition filed by the Sub-Divisional Officer and the Block Development Officer in the contempt matter would be taken into consideration at the time of final hearing of the writ application. In paragraph 4 of the show cause the Sub-Divisional Officer as well as the Block, Development Officer stated that since the order of this Court was received the result of the poll was not sent for publication in the Bihar Gazette and the same was not published in the official gazette. Kirtyanand Missir was asked by the Election Officer not to bake oath of the office of Mukhiya of the said Gram Panchayat.