Dismissed

Sanjiv Kumar Singh v. The State Of Bihar and Ors.

Patna HC7 Mar 2014CWJC/29/2013

Case brief

AI extract

What is this about?

The High Court of Patna dismissed a writ petition seeking to declare the election of a Panchayat Samiti member null and void due to alleged concealment of criminal antecedents. The court held that under Article 243-O and the Bihar Panchayat Raj Act, 2006, election disputes must be challenged via an election petition, not a writ.

What did the court decide?

The writ petition for declaring the election of the respondent null and void was dismissed.

Sanjiv Kumar Singh Vs The State Of Bihar… — Constitutional and Fundamental Rights | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.29 of 2013

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====================================================== . Sanjiv Kumar Singh Son Of Shri Bipin Bihari Singh Resident Of Village- Ami, P.O.Ami, P.S.- Dighwara, District- Saran

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.... .... Petitioner/s Versus 1. The State Of Bihar, Through the Chief Secretary, Government of Bihar, Patna 2. The Commissioner, State Election Commission, Bihar, Patna 3. The District Election Officer (Panchayat)-Cum-District Magistrate, Saran, Chapra 4. The Sub-Divisional Magistrate, Sadar Chapra, Saran

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The Block Development Officer, Dighwara, Saran

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Shri Ritesh Kumar Singh Son Of Amardeo Singh Resident Of Village- Ami, P.O.- Ami, P.S.- Dighwara, District- Saran

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.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Madhaw Prasad Yadaw For the Respondent no. 6 Mr. Y.V.Giril, Sr. Advocate Mr. Ishwari Singh & Mr. Manish Kr. Singh For the State G.P.2 For the State Election Commission : Mr. Amit Kr. Malik ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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7 07-03-2014 This writ petition filed under Article 226 of the Constitution of India seeks the following relief(s):-

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“1. That this is an application for issuance of writ in the nature of mandamus or any other appropriate writ(s)/direction(s)/order(s) commanding the State respondents to declare the election of the respondent no.6 null and void as a member of Panchayat Samiti of Rampur Ami as well as Pramukh of Dighwara Prakhand under Saran district as the respondent no.6 had concealed his criminal antecedents and had given his false affidavit during the course of nomination for election of member of Panchayat Samiti in the year of 2011.”

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Patna High Court CWJC No.29 of 2013 (7) dt.07-03-2014

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In the year 2011 election to fill up several posts of member(s) of Rampur Ami Panchayat Samiti was held. Respondent no.6 became one of the candidates. It is the case of the writ petitioner who claims himself to be a voter of the said Panchayat that respondent no.6 while filing the affidavit along with his nomination paper concealed his criminal antecedents and misrepresented before the Returning Officer that he was not involved in any serious/heinous crime. The nomination papers filed by respondent no.6 was accepted and he was allowed to contest the election. Having been elected as the Member he was subsequently declared elected as Pramukh of Dighwara Panchayat Samiti. The petitioner, in such circumstance, filed the present writ application for declaring the election of respondent no.6 as member of the said Panchayat Samiti null and void. It has further been submitted that the matter was represented by the petitioner before the State Election Commission (respondent no.2) whereafter an FIR has also been lodged against respondent no.6 under sections 177 & 181 IPC (Annexure-4). The petitioner has set out criminal antecedents of the petitioner in paragraph 7 of the writ petition. It is, however, not the case of the petitioner that, in any of the cases so cited in paragraph 7, the respondent no.6 was tried and convicted.

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Patna High Court CWJC No.29 of 2013 (7) dt.07-03-2014

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Heard Mr. Yadav for the petitioner, Mr. Y.V. Giri for respondent no.6 as also the counsel for the respondent State Election Commission. Respondent no.6 has opposed the writ petition and contended that such writ petition directly before this Court is not maintainable.

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The question before this Court is whether the relief prayed for in this writ petition, on the facts stated therein, is maintainable in this Court. In other words, whether relying on the averments made in the writ petition the election of respondent no.6 can be declared null and void or set aside.

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In order to appreciate the aforesaid question/issue it is vital to note few relevant provisions of the Constitution of India and the Bihar Panchayat Raj Act,2006 (for brevity „the Act‟) having bearing on the said issue.

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Article 243-O of the Constitution of India states as

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under:-

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“243-O. Bar to interference by Courts in electoral matters. — Notwithstanding anything in this Constitution-

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(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243-K, shall not be called in question in any Court;.

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(b) no election to any Panchayats shall be called in question except by an

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Patna High Court CWJC No.29 of 2013 (7) dt.07-03-2014

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election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State .”

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Relevant part of section 137 of the Act reads as

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under:-

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“137. Election petition.-(1) The election to any office of a Panchayat or a Gram Kachahry shall not be called in question except by an election petition as prescribed.

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Provided that if an election to any office of a Gram Panchayat or Gram Katchahry is under dispute, the election petition shall lie before such Munsif within whose jurisdiction such Gram Panchayat or Gram Katchahry is situated and if the election to any office of Panchayat Samiti or to a Zila Parishad is under dispute, the election petition shall lie before such sub-judge within whose jurisdiction such Panchayat Samiti or Zila Parishad, as the case may be, is situated. …….”

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In 2001 (4) PLJR 613 (Uma Sharan Gupta vs. State

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of Bihar) 613 , on which reliance has been placed by the counsel

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for respondent no.6, this Court held as under in paragraph 9:-

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“9. The State Government enacted the Bihar Panchayat Raj Act, 1993, in conformity with the provisions contained in Part IX of the Constitution. Section 136 provides for Constitution of State Election Commission by the Governor for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayat bodies in the State. Section 140

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Patna High Court CWJC No.29 of 2013 (7) dt.07-03-2014

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of the Act provides that the election to any office of a Panchayat of a Gram Katchahry shall not be called in question except by an election petition as prescribed and provisions have been made under the Rules for presentation of the election petition. Section 143(b) of the Act provides that no election to any Panchayat shall be called in question except by an election petition presented to the prescribed authority under the Act.”

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The petitioner, on the other hand, has relied on a judgment of the Supreme Court in Resurgence India vs. Election Commission of India (2014(1) PLJR (SC) 55 in order to submit that such writ petition is maintainable before this Court for the relief prayed for in this writ petition Regretfully, I am unable to accept the submissions of the petitioner that in the light of the ratio laid down in Resurgence India (supra) the writ petition shall be directly maintainable before this Court for setting aside the election of respondent no.6. Firstly, the Apex Court in the said case crystallized the constitutional right of the voter to know about the candidate emerging from Article 19(1) (a) of the Constitution of India. Having held so, the Hon‟ble Apex Court set out the duties of the Returning Officer to check the relevant information required to be furnished at the time of filing affidavit along with the nomination papers. It does not appear therefrom that in case there is certain misrepresentation of the facts in fling such

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Patna High Court CWJC No.29 of 2013 (7) dt.07-03-2014

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nomination papers and the affidavits to be filed therewith the writ court shall entertain such election dispute and pass appropriate order invoking its writ jurisdiction under article 226 of the Constitution of India.

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Counsel for the petitioner in support of his contention has also relied on Sri Bhagwan Singh vs. State of Bihar (2004(4) PLJR 482). On perusal of the aforesaid order/judgment, it appears that this Court was called upon to consider the virus of Rule 122 as amended by the notification dated 28.02.2002 on the ground that the same was ultra vires Article 243-O of the Constitution of India. The reliance on the said judgment of this Court appears to be misplaced. Even in the said judgment this Court observed as under in paragraph 15:-

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“15. As stated above, the question falls into two categories; one is with regard to disqualification prior to the election and the other disqualification post election. So far as the disqualification prior to election is concerned, section 140 of the Act clearly says that election to any office of a Panchayat or Gram Katchahri shall not be called in question except by an election petition as prescribed and section 143 of the Act says that no election of any Panchayat shall be called in question except by election petition presented to the prescribed authority under this Act and the authority has been prescribed. Section 144 contains grounds for declaring election to be void. Thus, after the election on any of the grounds,

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Patna High Court CWJC No.29 of 2013 (7) dt.07-03-2014

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including the grounds of disqualification, has to be made by an election petition presented in terms of the aforesaid provisions, which have been enacted in the light of the provisions contained in Article 243-O of the Constitution.”

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The petitioner has alleged in the writ application that respondent no.6 is/was facing certain criminal charges when he filed the nomination papers. It is not the case of the writ petitioner that the said respondent was tried and convicted in any of those criminal cases. Even in the light of the provisions contained in section 136(1) of the Act the petitioner cannot be held disqualified to hold the elected post until he is tried and convicted in any criminal case. The petitioner, if desirous, could have challenged the election of respondent no.6 by filing election petition which does not appear to have been done in the present case. Instead he has filed the writ application in this Court for setting aside the election of respondent no.6 which, in my view, is not maintainable.

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The application is dismissed.

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No costs.

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(Kishore Kumar Mandal, J)

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HR/-

Sanjiv Kumar Singh v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Sanjiv Kumar Singh v. The State Of Bihar and Ors.

Case brief

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