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Rajendra Misra v. The State Of Bihar And Others
Structured Summary of the Opinion
Factual and Procedural Background
Rajendra Misra, the sole petitioner, challenged an order dated 14-3-1970 of the Sub-Divisional Officer (respondent No. 2) rejecting his nomination as a candidate for the post of Mukhiya of Goshpur Panchayat. The petitioner had filed his nomination on 4-3-1970; the Block Development Officer (respondent No. 3) initially accepted it. Another candidate, Sri Krityanand Misir (respondent No. 4), filed an objection under Rule 23, Clause 4 of the Bihar Panchayat Election Rules. The Sub-Divisional Officer, after considering documentary materials and hearing the parties, set aside the Block Development Officer's acceptance and rejected the petitioner's nomination on grounds that the petitioner had received an advance (Rs. 2,406.70) for construction of a sluice gate for the Gram Panchayat but had not constructed it, allegedly misutilised the funds for personal benefit, failed to enter the transaction in the "Lekhanidhi Bohi" (accounts book), and had pending certificate proceedings and a body warrant for non-payment of certificate dues.
The petitioner filed a writ petition under Articles 226 and 227; this Court admitted the writ on 3-4-1970 and by order dated 21-4-1970 stayed the election pending the writ. Despite that stay, the election was held on 25-4-1970 and respondent No. 4 was declared elected. The petitioner then moved for contempt proceedings; notices were issued to the Sub-Divisional Officer and the Block Development Officer, both of whom tendered unqualified apologies and the contempt proceedings were dropped on 1-9-1970 without prejudice to the writ petition. The present opinion disposes of the writ challenged order and the consequences arising from the election held notwithstanding the stay.
Legal Issues Presented
- Whether the Sub-Divisional Officer validly rejected the petitioner's nomination under Section 79(1)(i) of the Bihar Panchayat Raj Act, 1947 on the basis that the petitioner had "directly or indirectly any share or interest in any contract" with the Gram Panchayat.
- Whether findings of fact made by the Sub-Divisional Officer — that the petitioner had a share or interest in the contract and had misutilised the amount — were such that this Court should refrain from interfering under Articles 226 and 227 of the Constitution (i.e., whether interference would be inappropriate because the matter raised disputed questions of fact).
- Whether the election of respondent No. 4, held despite this Court's interim stay, could be sustained or whether the election must be quashed and fresh steps taken to hold a valid election.
Arguments of the Parties
Petitioner's (Appellant's) Arguments
- The petitioner admitted that he had received an advance and executed an agreement in his capacity as Mukhiya, but contended he had utilised the amount properly and supported this by affidavit.
- The petition challenged the Sub-Divisional Officer's order rejecting the nomination; the petitioner sought relief under Articles 226 and 227 and obtained an interim stay of the election from this Court.
- After the election was held notwithstanding the stay, the petitioner initiated contempt proceedings against the Sub-Divisional Officer and the Block Development Officer.
Respondent No. 4's Arguments
- Respondent No. 4 alleged the petitioner defalcated Gram Panchayat funds, did not enter the contract money in the "Lekha Nidhi Bahi", sold goods received for the contract, and thereby profited personally.
- Respondent No. 4 relied on certified copies of certificate proceedings and Gram Panchayat Case No. 8 of 1970 to show that certificate proceedings were pending and that a body warrant had been issued; it was alleged the petitioner had evaded payment until after his nomination was rejected.
- It was contended that these findings established a disqualification under Section 79(1)(i) of the Bihar Panchayat Raj Act, 1947 (disqualification where a person "has directly or indirectly any share or interest in any contract with, by or on behalf of the Gram Panchayat").
- Respondent No. 4 further argued that the finding of facts by the Sub-Divisional Officer should not be interfered with by this Court under Articles 226 and 227 because the matter involved disputed questions of fact requiring investigation.
- Finally, respondent No. 4 contended that the petitioner had an alternative remedy before the election tribunal and that writ relief was therefore inappropriate.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Damodar Pd. Singh v. S.D.O. Muzaffarpur (Misc. Judl. Case No. 583 of 1961 (Pat)) — unreported judgment D/‑12‑12‑1961 | Support for the proposition that this Court may interfere with subordinate authority findings where an error is apparent on the face of the order. | The Court recorded that it found support in this decision for its view that it could interfere under Articles 226 and 227 with the Sub-Divisional Officer's order which contained an apparent error. |
| Jahuri Mandal v. Chandramauleshwar Singh (C.W.J.C No. 514 of 1970 (Pat)) — unreported judgment D/‑20‑4‑1970 | Support for the same principle permitting judicial interference where the subordinate finding shows an error apparent on the face of the record. | The Court cited this unreported judgment as additional support for its jurisdiction to review and set aside the impugned order on the basis of an apparent error in the findings. |
Court's Reasoning and Analysis
The Court undertook a textual and contextual analysis of the statutory scheme and the record before the Sub-Divisional Officer:
- Statutory framework: The Court noted that Section 33 of the Bihar Panchayat Raj Act empowers the Government to entrust the Gram Panchayat with contracts for specified purposes, and Section 34 provides remedies and liabilities against members of the Gram Panchayat committee (including the Mukhiya) for misappropriation, misconduct or neglect, permitting the Government to institute proceedings on its own initiative. This regime, the Court held, demonstrates a statutory mechanism for addressing misappropriation or negligence by office-holders.
- Interpretation of Section 79(1)(i): The Court observed that Section 79(1)(i) disqualifies a person for election if he "has directly or indirectly any share or interest in any contract with, by or on behalf of the Gram Panchayat while owing such share or interest." The Court interpreted this provision as intended to address situations where the candidate possesses a definite share, profit or interest in a contract — not to serve as a general disqualification for alleged misappropriation, omission to enter accounts, or mere pendency of certificate proceedings.
- Application to record facts: The Court found there was no evidence on the record to establish that the petitioner had any definite share, profit or interest in the contract he had entered into on behalf of the Gram Panchayat. Although the Sub-Divisional Officer concluded that the petitioner had "share and interest" and had misutilised the advanced amount, the Court held that those findings were not sufficient, on the material before the SDO, to constitute disqualification under Section 79(1)(i).
- Reviewability under Articles 226 and 227: Respondent No. 4 argued that the High Court should not interfere because the matter involved disputed facts. The Court disagreed, finding that the Sub-Divisional Officer had committed an error apparent on the face of the impugned order in drawing the inference of a disqualifying share or interest. Because the error was apparent on the record, the High Court properly exercised its jurisdiction under Articles 226 and 227 to interfere. The Court expressly relied on earlier unreported decisions of the Patna High Court to support that approach.
- Effect of election held despite stay: The Court treated the election held on 25-4-1970 in breach of this Court's interim stay (21-4-1970) as unsustainable. Given that the election was conducted notwithstanding the stay, the Court concluded the result could not stand and the declaration of respondent No. 4 as Mukhiya had to be set aside.
Holding and Implications
Holding: The writ application was allowed; the impugned order dated 14-3-1970 of the Sub-Divisional Officer rejecting the petitioner's nomination was QUASHED, and the declaration of respondent No. 4 as the duly elected Mukhiya of the said Panchayat was also set aside. The Court directed the appropriate authority to take steps, in accordance with the rules, to hold a fresh election.
Implications:
- Direct effect on the parties: The petitioner's nomination rejection is quashed; the respondent previously declared elected is no longer the duly elected Mukhiya; and the appropriate authority must proceed to arrange fresh elections in accordance with the rules.
- Jurisdictional principle: The Court reaffirmed that it may interfere under Articles 226 and 227 where a subordinate authority's order contains an apparent error on its face, even when factual disputes exist, provided the error is demonstrable from the record presented to the authority.
- No broader precedent was stated to be created by the Court beyond applying these principles to the facts of this case; the decision directed relief and administrative consequence (fresh election) for the specific circumstances set out in the opinion.
- Costs: The Court made no order as to costs.
Disposition: Application allowed.
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. In order to appreciate the point involved in this application it will be necessary to state briefly the facts.
2. 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.
3. The further allegation against the petitioner was that the money was not even entered in “Lekhanidhi Bohi” 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.
4. 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 an 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 take oath of the office of Mukhiya of the said Gram Panchayat.
5. In this case respondent No. 4 on 21-4-1970, filed a counter-affidavit mentioned earlier, stating inter alia that the petitioner had defalcated the money belonging to the Gram Panchayat and thereby he had personal interest in the contract inasmuch as the contract money obtained by him was not entered in the ‘Lekha Nidhi Bahi’ and the goods received in kind for completion of the contract were also sold away by him and thereby the petitioner profited himself at the cost of the Gram Panchayat. A certificate proceeding was also started against the petitioner on 6-7-1963 by the Block Development Officer which was registered as certificate case No. 265 of 1963-1964 and body warrant was issued against him for his deliberately and intentionally evading the processes and till the date of the filing of nomination paper he did not pay the said certificate dues. It was further stated therein that the petitioner having realised that he was disqualified by his said acts and omission, deposited the certificate dues long after the rejection of his nomination paper, and just before filing his application in this Court. Therefore it was contended on behalf of respondent No. 4 that the petitioner had rightly been held by respondent No. 2 to be disqualified under Section 79(1)(i) of the Bihar Panchayat Raj Act, 1947 (hereafter referred to as the Act); the relevant portion of which reads as follows:—
“Notwithstanding anything contained in this Act a person shall be disqualified for election, nomination or appointment as a Mukhiya if such person has directly or indirectly any share or interest in any contract with, by or on behalf of the Gram Panchayat while owing such share or interest”.
6. It was further contended on behalf of respondent No. 4 by learned counsel that the finding of facts by respondent No. 2 was based on the evidence on the record and this finding clearly disqualifies the petitioner under the aforesaid provision of the Act and as such the nomination paper of the petitioner was rightly rejected.
7. In my opinion those findings are not sufficient to disqualify the petitioner under the aforesaid provision and to reject his nomination paper. Section 33 of the Act empowers the Government to entrust the Gram Panchayat to enter into a contract for certain purposes indicated therein. Section 34 of the Act further provides the liability against the members of the committee of the Gram Panchayat including the Mukhiya. It makes it clear that if there is any misappropriation or misconduct or neglect on the part of the members of the committee including the Mukhiya, Government shall have the power to institute a suit or case under the said section on its own initiative. Obviously, therefore for the alleged misdeed and acts of commission and omission on the part of the petitioner, there is ample power provided under Section 34 of the Act. In that view of the matter it was not the intention of the Legislature under Section 79(1)(i) of the Act to disqualify a Mukhiya for misappropriation or his neglect or for not entering the amount in the ‘Lekha Nidhi Bahi’. If the petitioner had some definite share in the contract which he had taken on behalf of the government then of course he might have been disqualified but there is no evidence on the record to establish that he had any definite share or profit or interest in the contract which he had entered into on behalf of the said Gram Panchayat.
8. It was further contended on behalf of respondent No. 4 that the impugned order was passed on the clear finding of facts, which should not be interfered with by this Court under Articles 226 and 227 of the Constitution as it requires investigation, since it is a disputed question of facts. In my opinion respondent No. 2 has erred in coming to the conclusion on those findings of facts, and the error is apparent on the impugned order itself. Therefore, this Court has ample jurisdiction under those articles to interfere with the said order. I find support of my views from the series of cases decided by this Court (Vide unreported judgment D/- 12-12-1961 by Untwalia, J. in Damodar Pd. Singh v. S.D.O Muzaffarpur, (Misc. Judl. Case No. 583 of 1961 (Pat)), and also vide unreported judgment D/- 20-4-1970 in Jahuri Mandal v. Chandramauleshwar Singh, (C.W.J.C No. 514 of 1970) (Pat) by Kanhaiyaji, J.)
9. Lastly, it was contended on behalf of respondent No. 4 that since respondent No. 4 was already elected as Mukhiya, and since he was functioning, as such, the petitioner's remedy was not under writ jurisdiction, but the petitioner has alternative remedy, before the election tribunal. In a normal case no doubt I would have accepted, this contention of the learned counsel, but in the instant case as stated earlier, respondent No. 4 was elected, as Mukhiya in spite of the stay order passed by this Court. In this view of the matter the election of respondent No. 4, so held cannot be sustained, and it has got to be quashed. The impugned order dated 14-3-1970, passed by respondent No. 2 rejecting the nomination paper of the petitioner cannot be upheld and the same has also got to be quashed.
10. It is obvious that as a result of my order the declaration of respondent No. 4 as the duly elected Mukhiya of the said Panchayat shall stand cancelled, and the impugned order dated 14-3-1970 shall also stand quashed. It will now be for the appropriate authority to decide, and take such steps as it may deem fit and proper to take in the matter for holding fresh election in accordance with the rules in consequence of my order. In the result, the application is allowed and the impugned order is quashed with the above direction. There will be no order as to costs, in the circumstances of the case.
11. Application allowed.
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