BISHESHWAR SINGH Vs. SUBDIVISIONAL MAGISTRATE

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India for the issue of an appropriate writ quashing an order passed by the Subdivisional Magistrate under Rule 23 (4) of the Bihar Panchayat Election Rules (hereinafter called 'the Rules') rejecting the nomination paper of the petitioner for the post of Mukhia of the Gram Panchayat.

(2.) It appears that the general election of the Kondi Gram Panchayat within Pandarak Block in the district of Patna was to be held in the year 1971. The 27th of March, 1971 was, according to the programme, the date for filing of nomination papers for the various posts. The petitioner filed his nomination for the post of Mukhia. Others who filed their nomination for the same post were respondent No. 3 and one Anandi Singh. It is said that the petitioner by way of abundant caution filed two nomination papers for the same post with the required fee of Rs. 20/-. In one of the nomination papers, however, by inadvertence the post of Mukhia was not mentioned and the column was left blank. Respondent No. 3, however, fraudulently enclosed a receipt for a sum of Rs. 10/- with the nomination paper in which the column for the post was left vacant At the time of scrutiny respondent No. 3, who is the sitting Mukhia, raised an objection against the validity of the nomination paper of the petitioner on the ground that the two nomination papers of the petitioner were for the post of Mukhia and the membership of the Executive Committee. The Election Officer, therefore, rejected both the nomination papers of the petitioner by writing the word "rejected". The nomination paper of the third candidate Anandi Singh was also rejected. The petitioner had, however, stated before the Election Officer at the time of scrutiny that he had not filed the nomination paper for two posts, that the receipt for Rs. 10/- had not been enclosed by the petitioner or his proposers and that in any case the second nomination paper not showing the post for which he had been nominated ought to be ignored. He also filed a petition before the Election Officer stating the facts aforesaid. On perusing this application and after considering the circumstances the Election Officer, then passed an order by which he accepted the first nomination paper and declared him to be duly nominated candidate. As against this order respondent No. 3 filed a petition of objection before the Subdivisional Magistrate under Rule 23 (4) mainly on the ground that the Election Officer had no right to review his own order. The Sub-divisional Magistrate accepted the objection and declared the nomination of the petitioner to be invalid. Hence this application.

(3.) It is further stated by the petitioner that respondent No. 3 has not yet been declared elected as the Mukhia. A counter-affidavit has been sworn on behalf of respondents 1 and 2. namely, the Sub-divisional Magistrate and the Election Officer, wherein it has been stated that respondent No. 3 was declared elected at 9-30 a.m. on the 16th of April. 1971 before the stay order was passed by this Court and could be received by them. In this connection it may be mentioned that the present application was filed on the 15th of April, 1971 and it was admitted on the 16th of April, 1971 and by an order passed on that date the declaration of the result had been stayed.