IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.6085 of 2011
Narayan Sharma, son of Bhutto Sharma, resident of Village-
Chhoti Sakarpura, Panchayat- Rani Sakarpura, P.S. and
Block-Khagaria, District- Khagaria.
..........Petitioner.
Versus
1. Bihar State Election Commissioner, Election Commission,
Bihar, Patna.
2. The State of Bihar through the Collector-cum-District
Election Officer, Khagaria.
3. The Block Development Officer-cum-Block Election Officer,
Khagaria.
.......Respondents.
For the petitioner :- Mr. Prabhakat Jha, Advocate.
Dr. Chandrashekhar Azad, Advocate.
For the Election
Commission :- Mr. Sanjiv Nikesh, Advocate.
For the State :- Mr. N. K. Singh, G.P. 26.
Mr. S. K. Giri, Advocate
A.C. to G.P. 26.
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3. 20. 04. 2011. Heard learned counsel for the petitioner and the
State.
2. This writ petition has been filed for issuing a
writ in the nature of mandamus or any other appropriate
writ commanding the respondent-State Election
Commissioner to stay the schedule of Panchayat election
at Ranipur Sakarpura Panchayat under Khagaria Block,
District-Khagaria, on the ground that the nomination paper
of the petitioner has wrongly been cancelled arbitrarily
with ulterior motive.
3. The case of the petitioner that he filed a
nomination in the office of the Block Development
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Officer-cum-Block Election Officer, Khagaria to contest
the election of Mukhiya in Ranipur Sakarpura Panchayat
under Khagaria Block in the District of Khagaria in view
of announcement of Panchayat election by the State
Election Commission. The election was notified and
announced on 22. 03. 2011. The date published for filing
of nomination from 28. 02.2011 to 07. 03. 2011. The
further case is that the petitioner that according to
schedule, 10. 03. 2011 was the date fixed for the
correction of nomination paper, 12. 03. 2011 was date
fixed for allotment of symbol and 24. 04. 2011 is the date
fixed for voting.
4. The further case of the petitioner is that
petitioner filed nomination on 07. 03. 2011. However, in
the nomination paper the column for the proposer was left
vacant. Hence, on the date fixed for correction of
nomination paper, the petitioner went to office of Block
Development Officer-cum-Block Election Officer and
remained there from 10.30 A.M. to 4 P.M., but the
signature of the proposer was not taken or corrected in the
nomination paper and hence nomination paper of the
petitioner was cancelled.
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5. The grievance of the petitioner is that he was
not given opportunity to fill up the vacant column with the
signature of the proposer and nomination paper of the
petitioner has been cancelled without giving any
opportunity to the petitioner. The petitioner thereafter
approached the Collector-cum- District Election Officer,
as well as Office of the Election Commission, Bihar,
Patna, and even filed a petition before the District Election
Officer as well as the State Election Officer by FAX, but
in vain and hence has filed the writ petition to ventilate the
grievance for a direction or issuance of writ by this Court
to make correction in nomination so that he may contest
the election.
6. Learned counsel for the petitioner submits
that petitioner has got right to contest the election and
petition for nomination has wrongly been rejected
malafidely and arbitrarily and hence there is violation of
Article 14 of the Constitution of India as he has been
devoid to contest the election, if the nomination paper is
not accepted.
7. Learned counsel for the State Election
Commission however, raised preliminary objection that
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since the election has been announced and notification for
the election has already been notified, hence, process of
the election has set in. Hence this Court has no
jurisdiction under Article 226 of the Constitution of India
to entertain any application which touches the election of
the Panchayat in view of Article 243 O of the Constitution
of India and has placed reliance unreported decision in
C.W.J.C. No. 5234 of 2011 (Palti Devi Vrs. The State of
Bihar & Ors.) & 2006 (2) PLJR 482 and 483.
8. Hence in view of respective submission the
question for consideration whether the rejection of
nomination by the Returning Officer is regard of election
of Mukhiya when Panchayat election has been notified
and announced can be interfere in writ jurisdiction.
9. However in this regard the fact undisputed
that Panchayat election has been notified. In pursuance of
Panchayat election, nomination has been filed by Mukhiya
which has been rejected by the Block Development
Officer-cum-Block Election Officer who is Returning
Officer. However, rejection of nomination by a Returning
Officer is a definite steps toward the election of the
candidate concern as election may be taken to embrace the
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whole procedure which consists of several stages whereby
person is declared elected.
10. However it is relevant to quote;
“Article 243 O- Notwithstanding anything in
this Constitution;-
(a) the validity of any law relating to
the delimitation of Constituency
or the allotment of seat to such
Constituency made or purported
to be made of under Atricle 243 K
shall not be called in question any
court,
(b) no election to any Panchayat
shall be called in question except
by an election petition presented
to such authority and in such
manner as is provided by or
under any law made by the
legislature of a State.
11. However Article 243 O starts with a non
obstinate clause and Article 243 O (b) provides that
election of Panchayat shall only be called in question by
an election petition presented to such authority and in such
manner as provided by legislature of a State. The
legislature has provide the mode, to challenge election
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under Section 137 and Section 138 of the Bihar Panchayat
Raj Act by election petition before the Munsif within
whose jurisdiction such Gram Panchayat is situated.
12. Hence the non-obstinate clause with which
the Article 243 O begins debar the High Court power of
writ jurisdiction or any other court in the land to entertain
a suit or proceeding calling in question the election of
Gram Panchayat.
13. The restriction impose by Article 243 O in
harmony with the principle at hand, if a right is creation
of special statute where in a remedy is provided for
enforcement of such right then that remedy is alone and no
other remedy is available to the person who has been
denied the exercise of that right.
14. Hence Article 243 O shall prevent over
other part of the Constitution to debar any court, even the
High Court in its jurisdiction of under Article 226 to
provide remedy in case if dispute is with regard to
Panchayat election.
15. Hence the petitioner whose nomination has
been rejected has a remedy by election petition before
Munsif. He is not entitled to seek remedy by means of a
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writ for the purpose of doing that for which there is a
remedy only by way of election petition.
16. Hence the High Court has no power under
Article 226 of the Constitution of India.
17. Hence the writ petition is hereby dismissed.
m.p. ( Gopal Prasad, J.)