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2006 DIGILAW 302 (PAT)

Birju Paswan v. Bihar State Election

2006-04-05

body2006
ORDER 1. On 25th February, 2006 Panchayat Raj Ordinance, 2006 was promulgated. Section 126 of the said Ordinance is as follows: "126. Electors, of Panchayat-All such persons who are enrolled as electors in the electoral roll or that part of the rolls of the State Legislative Assembly Constituency for the time being in force which is concerned with the territorial constituency of any Gram Panchayat shall be the electors for concerned Panchayat elections. Provided that the State Election Commission Suo Motu or on receipt of written representation from an aggrieved person, is of the opinion that there is sufficient reason for doing so, may direct such changes to be made in the electoral rolls of the concerned territorial constituency of the Panchayat, as it may deem proper. Provided further that no such change of the electoral roll shall be made after the Notification of the date of Panchayat election by the Governor under section 124 of the Ordinance." 2. On 25th February, 2006 the Governor under section 124 of the Ordinance by a Notification notified the date of Panchayat election. 3. Petitioner was enrolled as an elector in the electoral roll of the State Legislative Assembly Constituency in force on 25th February, 2006 and accordingly, by reason of the mandate contained in Section 126 of the said Ordinance became an elector for the concerned Gram Panchayat election as notified by the Governor. 4. In order to submit a nomination the person seeking to submit nomination is required to be an elector. 5. The petitioner went to submit his nomination for in terms of the mandate of the Statute the petitioner was deemed to be an elector of the Panchayat election. At that stage it was held out to the petitioner that the petitioner is not an elector of the Panchayat election, why he is not so was not communicated. It was not said that before the Notification under section 124 of the Ordinance was published the Election Commission either suo motu or on receipt of the written representation from any person removed the name of the petitioner from the electoral roll. 6. The learned counsel appearing on behalf of Election Commission has cited a judgment of a Single Judge of this Court in the case of Om Prakash Tiwary & Ors. Vs. 6. The learned counsel appearing on behalf of Election Commission has cited a judgment of a Single Judge of this Court in the case of Om Prakash Tiwary & Ors. Vs. Election Commission; 2002(2) P.L.J.R. 620 for the proposition that the writ Court has no jurisdiction to interfere with the election. There cannot be any dispute that the writ Court will be the last person to inferfere with an election. However, the writ Court will fail to discharge its duties if it does not protect a legal right of a citizen. When the legislature has given a right to a citizen to become an elector automatically when he is an elector of the Assembly Constituency election for the time being in force, by inaction on the part of the Election Commission or its Officers such right cannot be denied. 7. In those circumstances, by way of an interim order, I direct the Election Commission to accept the nomination of the petitioner without prejudice to the rights and contention of the parties in the writ petition or I direct the stay of the election of the same Panchayat until expressly such stay is vacated in as much as it is not only a question of improper rejection of the nomination paper which would tantamount to declaration of the returned candidate to be void but the more larger question is refusal on the part of the Election Commission to permit the petitioner to exercise his franchise right granted by the legislature by making a law to that effect. 8. Let counter affidavit be filed within two weeks from today, rejoinder thereto may be filed within one week thereafter. 9. Let this case be listed after three weeks to be posted at the top of the list. 10. Let a copy of this order be handed over to the learned counsel for the Election Commission and let a copy of this order be also handed over to the learned counsel for the petitioner upon evidence is produced of applying for a certified copy thereof.