ISLAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this writ application the petitioners have challenged the entire election of the Municipal Commissioners of Arrah Municipality held on 23-11-1978 in which respondents 8 to 41 were elected or co-opted as members of the aforesaid Municipality held under the Bihar and Orissa Municipal Act (hereinafter referred to as the Act).

(2.) In order to appreciate the points raised in the application it will be necessary to state some facts. The term of office of the Municipal Commissioners expired on 29-7-1978 and government thereafter decided to hold a fresh election of Arrah Municipality. On 1st August, 1978, a notification was issued by the District Magistrate, Bhojpur, respondent No. 3, for holding general election before 6-10-1978 a copy of the aforesaid notification has been filed and marked as Annexure 1. Election programme was also published and the date for final publication of the electoral roll was 7-8-1978 and 21-8-1978 was fixed for filing claims and objections and the date for polling was fixed for 4-10-1978. On 29-8-1978, which was the date for publication of corrected electoral roll, the District Magistrate, respondent No. 3, exercising power under Rule 7 (2) of the Bihar Municipal Election Rules (hereinafter referred to be as the Rules) postponed the election on the ground that a number of claims and objections were pending before the Returning Officer, a copy of the order of respondent No. 3 has been filed and marked Annexure 2, on 8-9-1978 respondent No. 3 published a fresh date for the election and 18-10-1978 was fixed for publication of election programme and 26-10-1978 was the date fixed for filing nominations and 23-11-1978 was the date for holding the election, a copy of the same has been filed and marked as Annexure 3. On 23-11-1978 the petitioners learnt that respondent No. 2 had altered the area of the Wards and voters of Ward No. 12 from serial No. 1531 to 1648 were shifted to Ward No. 4 and similarly voters from serial No. 903 to 1034 of Ward No. 29 were shifted to Ward No. 22 and this was done in other wards also, a copy of the order dated 26-10-1978 is filed and has been marked as Annexure 4. The petitioners also learnt that about six thousand voters were enrolled afresh after the publication of the electoral roll in order to favour certain persons, a copy of the same has been filed and marked Annexure 5. Names of some persons were mentioned at two places in two different wards which, according to the petitioners, was wholly illegal and in support of that a chart has been filed and marked Annexure 6. Respondent No. 4, by his order dated 24-4-1978, wrote to the District Magistrate that the constitution of the Wards and the electoral rolls were not correctly prepared and thus they should be revised, a copy of the aforesaid letter is filed as Annexure 8. In spite of that the electoral roll was finally published on 7-8-1978. It is also alleged that no opportunity was given to the tax payers and residents of Arrah Municipality for filing claims and objections and respondent No. 3, the District Magistrate, and respondent No. 4, the S.D.O. acted in a mala fide manner. On the aforesaid grounds the entire election of the Arrah Municipality, held on 23-11-1978, has been challenged.

(3.) Mr. Ras Bihari Singh, learned counsel appearing on behalf of the petitioners, submitted that election programme was not published in accordance with law and under Rule 4 of the Election Rules objections filed were not decided and no date for hearing was even fixed by the authorities. It has also been submitted that draft electoral roll was not published in a separate register Ward by Ward and, thus, there was clear infraction of the Rule 4 of the Election Rules. The election fixed earlier for 24-10-1978 was illegally shifted and postponed and that also not by the proper authority, namely, the Returning Officer. Learned Advocate General has submitted that this application is not maintainable because a number of issues have been joined together, which give rise to independent causes of action, based on disputed questions of fact and can only be challenged before the Election Tribunal by separate applications for each relief claimed for. He has, further, submitted that all the objections received were decided and published in accordance with law and the authorities have acted within the four corners of the provisions of the Act and the Rules framed thereunder. The case was heard by a Division Bench and it was urged on behalf of the respondents that in view of the recent Bench decision of this Court in the case of Anil Kumar v. State of Bihar (1980 BBCJ (HC) 140) : (AIR 1980 Pat 271) this application under Articles 226 and 227 of the Constitution of India was not maintainable. Learned counsel for the petitioners, however, doubted the correctness of the aforesaid decision in view of a recent decision of the Supreme Court in the case of Bar Council of Delhi v. Surjeet Singh (1980 BBCJ Part III 7) : (AIR 1980 SC 1612) and submitted that the Bench decision of this Court has not laid down the correct law and thus requires reconsideration and by order dated 21-3-1980 the matter was referred to Full Bench and that is how the matter has come before us.