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2004 DIGILAW 810 (PAT)

Arunjay Ram @ Rai v. State of Bihar

2004-08-11

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JUDGMENT CHANDRAMAULI KR. PRASAD, J. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated 24.2.200: passed by the Munsif, Aurangabad in Election Petition No. 20 of 2001 whereby the election petition filed by the petitioner to declare the election of respondent no. 5 to be void, has been rejected. 2. Short facts giving rise to the present application are that the petitioner filed nomination to contest the election to the office of the Mukhiya of Gram Panchayat, Karma in Basantpur Block of the district of Aurangabad. In the said application respondent no. 5 Surendra Yadav was also a candidate and he has been declared elected as Mukhiya of the Gram Panchayat. According to the petitioner he had filed only two nomination papers for contesting the election to the office of the Mukhiya but on the purported ground that he had filed three nomination papers, his nomination was rejected and in the election held on 11.4.2001 respondent no. 7 has been declared elected. 3. Petitioner aggrieved by the rejection of his nomination filed CWJC No. 2987 of 2001 (Arunjay Ram alias Raj Vs. The State of Bihar and Ors.) before this Court. A learned single Judge of this Court by order dated 15.3.2001 disposed off the writ application with liberty to the petitioner to raise his grievance before the Electoral Officer who, in turn, was directed to consider the prayer of the petitioner for accepting the nomination paper and may direct the Returning Officer to restore the petitioner's nomination. This Court further observed that after the election is over, he may take recourse to the remedy as provided under Section 140 of the Bihar Panchayat Raj Act. 4. Petitioner aggrieved by the same, preferred LPA No. 295 of 2001 (Arunjay Ram alias Rai Vs. State of Bihar and Ors.) and a Division Bench of this Court by order dated 28.3.2001 dismissed the appeal observing that the date of election being 11th of April, 2001. It is not possible to print ballot papers and take other steps but simultaneously observed that rejection of the nomination paper of the petitioner is not valid and should have been ignored. Relevant portion of the said order reads as follows :- "...... The nomination paper of the appellant has been rejected on the ground that he has submitted more than two nomination papers. Relevant portion of the said order reads as follows :- "...... The nomination paper of the appellant has been rejected on the ground that he has submitted more than two nomination papers. In similar cases we have held that rejection of nomination paper on such ground is not valid for the reason that such mistake is to be ignored under the provisions of Rule 41 (3) of the Rules." 5. Petitioner did not succeed in getting his nomination restored and therefore could not contest the election. As stated above, election was held on 11.4.2001 and in the said election respondent no. 7 has been declared elected. 6. Petitioner challenged the said election by filing election petition as provided under Section 140 of the Bihar Panchayat Raj Act (for short the Act) inter alia contending that rejection of his nomination paper was bad and on this ground alone the election of respondent no. 7 has to be declared as void. Plea of the petitioner in the election petition was that in fact he had filed only two nomination paper and rejection of his nomination on the purported ground that he had filed three nomination papers, is illegal. The learned Munsif by the impugned order has held that the nomination of the petitioner was rightly rejected and accordingly the election petition was dismissed. 7. Aggrieved by the same petitioner has filed this application and by order dated 20.10.2003 this Court directed for issuance of notices to respondent nos. 7 to 16. In spite of service of notice on them, although a Vakalatnama has been filed on behalf of respondent no. 8, but nobody has chosen to appear on their behalf. 8. Mr. Sharma appearing on behalf of the petitioner submits that even if it is assumed that the petitioner has file three nomination papers to contest the election to the office of the Mukhiya, his nomination ought not to have been rejected on that ground. He points out that the filing of three nominations is not such a material defect which would have entailed its rejection and in fact the same ought to have been ignored in view of Rule 41 (3) of the Bihar Panchayat Election Rules (hereinafter referred to as the Rules). In support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of Rama Ballabh Singh Keshari Vs. In support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of Rama Ballabh Singh Keshari Vs. State of Bihar and Ors. ( 2001 (2) PLJR 267 ) and my attention has been drawn to the following passage from the said judgment:- ".... In the present case; the nomination paper of the appellant has been rejected on the ground of violation of Rule 39(2) of the Rules which provides that no candidate will file more than two sets of nomination paper. In this case, the appellant has filed four sets of nomination papers. In our view, the appellant has filed two more sets than required according to the aforesaid Rules and in that case Returning Officer should have rejected the excess sets of nomination papers instead of rejecting the nomination paper of the appellant. The present case is one case where no interference will result in miscarriage of justice and is unconscionable. There appears to be complete non-application of mind on the part of the Returning Officer." 9. Mr. Mahesh Prasad, G.P. III as also Mr. Nath appearing on behalf of the State Election Commission contend that the nomination of the petitioner was rightly rejected. 10. Having considered the rival submission, I find substance in the submission of Mr. Sharma. Even if it is assumed against the petitioner that he had filed three nomination papers, his nomination ought not to have been rejected on the said ground. Rule 41 of the Rules, inter alia, provides for scrutiny of nomination papers and Rule 41 (1) thereof, in no unoartain terms provides that no nomination paper shall be rejected for any clerical or printing error or on the ground of any discrepancy which is not material in my opinion, filing of three nomination papers was not material so as to justify the rejection of the nomination paper of the petitioner. In fact, in the case of the petitioner, itself, it has been held so and further in the case of Rama Ballabh Singh Keshari (supra), the act of Returning Officer rejecting the nomination paper on the ground that excess nomination papers were filed, was found to be illegal. Thus, I am of the opinion that the nomination of the petitioner was wrongly rejected. 11. Section 144 of the Act, inter alia, enumerates the ground for declaring the election to be void. Thus, I am of the opinion that the nomination of the petitioner was wrongly rejected. 11. Section 144 of the Act, inter alia, enumerates the ground for declaring the election to be void. Section 144(1) (c) of the Act which is relevant for the purpose, reads as follows :- "144. Grounds for declaring election to be void : xx xx xx (c) that any nomination paper has been improperly rejected; or xx xx xx 12. From the plain reading of the aforesaid provision, it is evident that rejection of the nomination paper is the ground for declaring the election to be void. Undisputedly, the nomination of the petitioner was improperly rejected and in that view of the matter, I have no Option than to declare the election of Respondent No.7 as Mukhiya of Karma Basantpur Gram Panchayat to be void and I order accordingly. 13. In the result, the application is allowed. The impugned order is set aside and the election of Respondent NO.7 as Mukhiya of the Gram Panchayat is declared void. The State Election Commission shall now proceed to hold the electon of the said Panchayat in accordance with law. As the respondents have not chosen to appear, I am not inclined to award cost of the litigation.