Judgment B.D.Singh, J. 1. The petitioner in this case obtained a rule from this Court under Articles 226 and 227 of the Constitution of India calling upon the Election Officer, respondent No. 3 and the Sub-divisional Officer, respondent No. 5 to show cause why the orders passed by them should not be quashed. The order of respondent No, 3 was passed on 3-3-1970 (annexure 2). As against that the petitioner preferred an objection before the Subdivisional Officer, respondent No. 5 who by his order dated 9-3-1970 (annexure 1) rejected the objection filed by the petitioner. Therefore the petitioner has come up before this Court for quashing both the orders contained under Annexures 1 and 2. 2. The petitioner along with respondents 1 and 2 were candidates for the election of Mukhia of Amarpur Gram Panchayat in the district of Saharsa, and they filed their nomination papers before respondent No. 3. The nomination papers of the petitioner and respondent No. 2 were rejected on 3-3-1970, as mentioned above by respondent No. 3. The petitioner thereafter filed an objection before the Subdivisional Officer, respondent No. 5 under Rule 23, Clause (3) of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules). The rejection of the nomination paper of the petitioner was mainly on the ground that his name was entered in the electoral roll of the two Gram Panchayats, namely Amarpur Gram Panchayat and Sonbarsa Gram Panchayat contrary to the provisions of Rule 5, Clause (3) of the Rules. It appears that the Block Development Officer had rejected the nomination of the petitioner mainly on the ground that the petitioner failed to establish that his resignation from the post of a clerk of Amarpur H.E. School had been accepted by the Managing Committee of the said school. Although the petitioner had filed before the Election Officer the paper to show that he had already tendered his resignation and the Secretary of the said school had accepted his resignation, but the Election Officer was of the view that the resignation had to be accepted by the Managing Committee of the said School. Therefore, he held that the petitioner failed to establish that his resignation was legally accepted by the said school. Therefore, he held that the petitioner failed to establish that his resignation was legally accepted by the said school. As regards the objection made by the respondent No. 1 to the nomination of the petitioner on the ground that his name was entered in the electoral roll of the two Gram Panchayats namely, Amar-pur Gram Panchayat and Sonbarsa Gram Panchayat, the Election Officer held that the said objection was not based on a good ground for rejecting the nomination of the petitioner. 3. The impugned order of the Subdivisional Officer, however, shows that he was satisfied that the petitioner has been able to establish that he had no concern with the school on the date when he filed the nomination. However, he held that since he was a voter of both the Gram Panchayats, namely, Amarpur and Sonbarsa his nomination was vitiated. In the result, he agreed with the conclusion of the Election Officer and thereby held that the petitioners nomination had been rightly rejected. On notice having been served a cause has been shown on behalf of respondent No. 1 alone, and no cause has been shown in this case on behalf of respondents 3 and 5. 4. In paragraph 6 of the petition, the petitioner has categorically stated that he had filed an affidavit before the Sub-divisional Officer, that he had never voted at Sonbarsa, and his name was wrongly entered in the electoral roll of Sonbarsa, and the same was done without his knowledge. He further stated in paragraph 7 that he had always been a voter from Amarpur, where he had been exercising his right of franchise, and he is an Up-Mukhia of Amarpur Gram Panchayat. As against these assertions, respondent No. 1 in paragraph 7 of his counter-affidavit simply stated that the statements made by the petitioner in paragraphs 6 and 7 of bis petition are vague and they further involve examination of controversial question of facts. The respondent No. 1 has nowhere categorically stated in his counter-affidavit that the petitioner ever voted at Sonbarsa. 5. Learned counsel, appearing on behalf of the petitioner has assailed the two orders referred to above, and submitted that the Subdivisional Officer has erred in rejecting the nomination of the petitioner, on a wrong interpretation of Rule 5, Clause (3) of the said Rules. 5. Learned counsel, appearing on behalf of the petitioner has assailed the two orders referred to above, and submitted that the Subdivisional Officer has erred in rejecting the nomination of the petitioner, on a wrong interpretation of Rule 5, Clause (3) of the said Rules. In order to support his contention he has relied on a decision of this Court in the case of Rajendra Prasad Pandey V/s. State of Bihar, 1965 BLJR 271. Anant Singh, J. while considering the provision under Rule 5, Clause (3) of the Rules held that the petitioner should not be debarred from contesting for the office of the Mukhia of a Gram Panchayat, only because his nomination finds place in the voters list of two different Gram Panchayats. His Lordship, further, after reviewing a Bench decision of this Court in the case of Gouri Shankar Pd. Singh V/s. State of Bihar, 1961 BLJR 710 and one of his own decision in M.J.C. No. 231 of 1961 decided on 3-11-1961, laid down, that a candidates name may be recorded in two different Gram Panchayats, but that fact alone is not enough to debar him from contesting as a candidate for the office of Mukhiaship. It has to be seen whether he actually exercised his franchise in both the Gram Panchayats. If he has not exercised his franchise in one Gram Panchayat, he should not be debarred from contesting for the office of Mukhiaship in the other Gram Panchayat. In paragraph 3 of the said judgment he observed that the petitioner had filed a sworn affidavit before the Subdivisional Officer, saying that he was the sitting Mukhia of Mirpur Bagahin Gram Panchayat. where he was permanently residing having had no connection with Hisar, where his name as a voter appeared in the voters list. He also said in that affidavit that he had never exercised any right, nor did he intend to do so as a voter of Hisar Gram Panchayat, even if his name was found in the voters list of that Gram Panchayat. The affidavit was not repudiated on behalf of the opposite party. He also said in that affidavit that he had never exercised any right, nor did he intend to do so as a voter of Hisar Gram Panchayat, even if his name was found in the voters list of that Gram Panchayat. The affidavit was not repudiated on behalf of the opposite party. In that circumstance, his Lordship held that when the petitioner clearly stated that he had never exercised his franchise; nor did he intend to do so in Hisar Gram Panchayat, he should not have been debarred from contesting for the office of Mukhia of the Mirpur, Bagahin Gram Panchayat of which he was still a sitting Mukhia. 6. In the instant case also, in my opinion, the petitioner has, in substance, made similar statement in the affidavit that he had not exercised his franchise in Sonbarsa Gram Panchayat, besides, he was always a voter in the Amarpur Gram Panchayat, where he was an Up-Mukhia there. Learned counsels contention also finds favour in another unreported decision of this Court in M. J. C. No. 1024 of 1963 (Pat), Hira Lal Singh V/s. State of Bihar disposed of on 19-3-1964, where Ramaswami, C. J. and Untwalia J., were considering the provision of Rule 5, Clause (3). Their Lordships in that judgment observed that petitioner No. 1 of that case in paragraph 12 of his petition had stated that he had no concern with village Nadhari, He had no house or property there, and he had never taken part in any Gram Panchayat election from that village. On behalf of respondent No. 5 there was a counter-affidavit stating that petitioner No. 1 had also participated in the election of Nadhari Gram Panchayat previously held from his village home. Even then their Lordships held that in their opinion the allegation in the counter-affidavit was vague, and did not sufficiently rebut the statement of the petitioner in paragraph 12 of the main application. Therefore, it was held that the Subdivisional Officer of Sadar, Patna, committed an error of law in holding that the nomination paper filed by the petitioner, was not valid in view of the provision of Rule 5 (3) of the Rules. 7. It may be noted that Ramaswami, C. J. was a party along with Choudhury J., in 1961 BLJR 710 supra, which was also referred to in 1965 BLJR 271, as mentioned above. 7. It may be noted that Ramaswami, C. J. was a party along with Choudhury J., in 1961 BLJR 710 supra, which was also referred to in 1965 BLJR 271, as mentioned above. Therefore, it is clear that whatever has been held in 1961 BLJR 710 by Ramaswami, C. J. and Choudhury, J. they have not laid down any general principle of law. The principle laid down there was dependent on the facts of that case, which were rightly distinguished by Anant Singh, J. in 1965 BLJR 271, and by Ramaswami, C. J. sitting with Unt-walia, J. in M. J. C. No. 1024 of 1963 (Pat). 8. Mr. Radha Raman, learned counsel, appearing on behalf of the respondent had laid great stress upon the observation made by Ramaswami, C. J. and Choudhury, J. in 1961 BLJR 710 and he drew my attention particularly to paragraph 5 of the judgment, where their Lordships observed that it is clear from a perusal of Rule 21(2) that only a person qualified to vote for election from a Gram Panchayat, is qualified for filing nomination paper for being elected as a Mukhia or a member of the Executive Committee or Surpanch or Panch. Their Lordships further observed that it is not denied in that case that the petitioner was enrolled as a voter in both the Gram Panchayats of Kaithir and Orro, and the Subdivisional Officer was, therefore, right in holding that the petitioner was disqualified from filing nomination paper for election as Mukhia of Kaithir Gram Panchayat. Learned counsel for the respondent No. 1 submitted that therefore it is established that if a person who is a voter of two Gram Panchayats, the provisions contained under Rule 5(3) read with Rule 21(2) of the Rules are attracted, and he is debarred. According to him no further investigation is required. In my view that was not the intention of their Lordships. As mentioned earlier, Ramaswami, C. J. sitting with Untwalia, J. observed that where the petitioner had stated in his petition that he had no concern with village Nadhari, and he had taken no part in any Gram Panchayat election from that village, the provision of Rule 5(3) did not apply. As mentioned earlier, Ramaswami, C. J. sitting with Untwalia, J. observed that where the petitioner had stated in his petition that he had no concern with village Nadhari, and he had taken no part in any Gram Panchayat election from that village, the provision of Rule 5(3) did not apply. In another unreported decision of this Court in M. J. C. No. 1022 of 1963 (Pat) decided on 14-5-1964, Jamuna Prasad V/s. Subdivisional Magistrate, Bihar Sharif, Untwalia, J. had an occasion for interpreting the provision contained in Rule 5(3) of the Rules. His Lordship observed that there was nothing on the record of that case that the petitioner had got his name entered in Hilsa Gram Panchayat, as an elector or that he had exercised any right in pursuance of the alleged entry. His Lordship observed that he is not disqualified under Rule 5(3) of the Rules to be a voter of Lohanda Gram Panchayat or to stand as a candidate for the office of Mukhia. His Lordship quoting his own previous judgment, observed that simply because a person has been entered as a voter in the electoral roll of more than one Gram Panchayat and without there being anything further to show that he had exercised his rights as a voter in the other Gram Panchayat, his election or the exercise of his rights as a voter in one Gram Panchayat, in which he had exercised his right as such could be set aside or invalidated. His Lordship further relied upon the judgment in M. J. C. No. 1024 of 1963 (Pat), and also distinguished the facts in M. J. C. No. 1022 of 1963 (Pat) from those in 1961 BLJR 710 (supra). 9. In view of the above observations the contention of the learned counsel for the petitioner in my opinion is well founded. 10. Learned counsel for the respondent No. 1 however has relied upon another decision of this Court. In Ramsaroop Mahto V/s. State of Bihar, 1961 BLJR 298 where Raj Kishore Prasad, J while interpreting Rule 5(3) of the Rules at page 300 in paragraph 11 of his judgment observed that from Rule 5(3), it was manifest that the petitioner could not be a voter from more than one Panchayat. Admittedly, in Udaidih Gram Panchayat election of a Mukhia had already been held. Admittedly, in Udaidih Gram Panchayat election of a Mukhia had already been held. The question whether the petitioner exercised his right of vote from that Panchayat was immaterial for the purpose of deciding the question under consideration. It was enough to state that when the petitioner was a voter from Udaidih Gram Panchayat, he could not be a voter in the second Gram Panchayat. Rule 5(3) was clearly a bar to his being a voter in that Gram Panchayat He could not be a voter in both the Gram Panchayats. Learned counsel for the respondent No. 1 laid emphasis on the said observation. 11. With due respect, I differ from the observation made by his Lordship in 1961 BLJR 298 (supra). If that be so, then in that case an adversary of a candidate could get his name recorded, in two different Panchayats, and thereby without any fault of his own. he would be debarred from contesting as a candidate in a particular Gram Panchayat. Therefore, I am not inclined to agree with the above observation, and following the observations made in other decisions, referred to above, in my judgment, the impugned orders cannot be upheld. 12. In the result, both the orders contained in annexures 1 and 2 are quashed, and the application is allowed. However, in the circumstances of the case, there will be no order as to costs.