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2011 DIGILAW 2382 (PAT)

Mahendra Narayan Das v. State of Bihar

2011-11-30

SHIVA KIRTI SINGH, SHIVAJI PANDEY

body2011
ORDER Heard the parties. 2. This writ petition was referred to a Division Bench by a detailed order dated 16-9-2010. In that order the writ court has noticed that the writ petitioner has been held disqualified to hold the post of Pramukh of Chhatapur Panchayat Samiti in the district of Supaul on account of impugned order passed by the State Election Commission on 4-8-2010. The State Election Commission has held that the writ petitioner did not belong to the Extremely Backward Class (E.B.C.) and, hence, he was not entitled to be elected to the post in question which was reserved for Extremely Backward category. 3. Learned Single Judge has noticed several judgements of this court, particularly, the Division Bench judgement in the case of The State Election Commission & Ors. Vs. Punam Kumari & Anr. reported in 2009 (1) PLJR 712 . In that case a similar issue had arisen and the Division Bench held that so far as the qualification on the basis of caste covered by Section 135 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) is concerned, the State Election Commission will have no jurisdiction to decide whether a returned candidate had the necessary qualification or not. According to Division Bench such an issue, on account of wordings of Section 135 and 136 of the Act, has to be decided only by the Election Tribunal, if raised, through an election petition and only those disqualifications which find mention under Section 136 of the Act can be looked into by the State Election Commission. 4. It is not in dispute that subsequently the State Legislature made amendments through Bihar Panchayat Raj (amendment) Act, 2009 and Sub section (2) of Section 136 was substituted with retrospective effect, that is, 10-4-2006. From the order of learned Single Judge referring the matter to the Division Bench, it appears that a doubt had arisen in the mind of learned Single Judge whether views of the Division Bench in the case of The State Election Commission & Ors. Vs Punam Kumari & Anr. (supra) will still hold the field or the amendment of 2009 confers the State Election Commission with power to decide even the disqualifications mentioned in Section 135 along with those in Sub section (1) of Section 136. Vs Punam Kumari & Anr. (supra) will still hold the field or the amendment of 2009 confers the State Election Commission with power to decide even the disqualifications mentioned in Section 135 along with those in Sub section (1) of Section 136. Learned Single Judge noticed several judgements of Single Judges rendered after the amendment in which, on account of amendment, a view has been taken that the State Election Commission shall have competence to decide even with respect to disqualifications mentioned in Section 135 of the Act. 5. Learned counsel for the petitioner very fairly submits that the petitioner has completed his tenure on the post in question on account of stay order by the writ court. However, after addressing the Court at length he ultimately prayed for withdrawing the writ petition on the ground that it has become infructuous. 6. No doubt on facts the case has become infructuous and the petitioner is entitled to withdraw the writ petition. However, since the learned Single Judge referred the matter to the Division Bench with the purpose of seeking views of the Division Bench as regards the effect of the amendment of 2009 upon the Division Bench judgement in the case of The State Election Commission & Ors. Vs Punam Kumari & Anr. (supra), we are indicating our views in brief only on account of submissions advanced by the parties. 7. Sub- section (2) of Section 136 introduced through the Bihar Panchayat Raj (Amendment) Act, 2009 reads as follows:- (2) “If any question arises as to whether Member of Panchayat at any level including Mukhiya of Gram panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Kutchahry or Panch of Gram Kutchahry was disqualified before election or has incurred disqualification after election as provided in Article 243-F of Constitution of India and subject to any disqualifications mentioned in Section 135 or sub-Section (1) of Section 136, the question shall be referred for the decision of State Election Commissioner. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The State Election Commission may also take suo-motu cognizance of such disqualification and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard: Provided that the State Election Commission shall not be entitled to entertain any complaint or petition subject matter of which is purely an election dispute such as corrupt practice, wrongful rejection of nomination etc. in accordance with Article 243-O of the Constitution of India read with Section 137 of the Act.” 8. In our view, the amendment in Section 136 of the Act has taken away the basis for the judgement of the Division Bench in the case of The State Election Commission & Ors. Vs Punam Kumari & Anr. and, hence, that judgement cannot appropriately be followed when the law has been amended by substituting Sub section (2) of Section 136 of the Act with retrospective effect. If occasion arises, the effect of such amendment in law may require a fresh look on other grounds, if found relevant. 9. As to whether some judgements rendered by learned Single Judges taking a view contrary to that of Division Bench noticed above, deserve to be affirmed or not will be another new issue and should not be gone into in the present case because it has become infructuous. It was hinted by learned counsel for the petitioner that the amendment of 2009 has to be interpreted in a restricted manner otherwise it may offend Article 243 O of Constitution of India. While leaving this issue open, we could only indicate that the Legislature appears to have made a distinction between decision in respect of qualification of a candidate to contest the election and decision in an Election Petition calling in question the election process which includes the process of determining qualification for acceptance of nomination and also electoral practices, counting of votes and declaration of result. 10. Constitution of India also appears to make a distinction between disqualification for membership as mentioned in Article 243 F which can be determined by such authority as the Legislature of a State may by law provide and calling in question election to any Panchayat which is separately provided in Article 243 O. 11. 10. Constitution of India also appears to make a distinction between disqualification for membership as mentioned in Article 243 F which can be determined by such authority as the Legislature of a State may by law provide and calling in question election to any Panchayat which is separately provided in Article 243 O. 11. Since we have held that it would not be proper to go into such issues in detail in the present case which has become infructuous, we dispose of the writ petition as infructuous with the observations made above. ?