High Court Patna High Court - Orders

Narayan Sharma vs Bihar State Election Commissio on 20 April, 2011

Patna High Court – Orders
Narayan Sharma vs Bihar State Election Commissio on 20 April, 2011
                       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.
                                                     -----------

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.)