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2012 DIGILAW 290 (PAT)

Geeta Gupta v. State of Bihar

2012-02-21

SAMARENDRA PRATAP SINGH

body2012
Order The petitioner prays for quashing of the order dated 4.11.2011 of Respondent No.2, State Election Commissioner, whereby he has been disqualified for election to the post of Mukhiya of Gram Panchayat, Amba South and authorities were directed to undertake steps for fresh election as the post of Mukhiya of the Gram Panchayat has fallen vacant. 2. Before I discuss the grounds on which the impugned order has been challenged, it would be necessary to notice the relevant facts and provisions of law. The petitioner, respondent no. 6 and one Phool Kumari Devi, mother of respondent no. 6 and few others contested the post of Mukhiya of Gram Panchayat, Amba South. The last date for filing nomination was 1 .3.2011, the date of scrutiny was 8.3.2011 and date of election (voting) was 24.4.2011. The petitioner having secured highest votes was declared elected and a certificate was duly issued in her favour Respondent No. 6 objected the acceptance of nomination of petitioner in his application dated 9.3.2011 to the Secretary, State Election Commission. The Respondent No. 6 stated that petitioner was working as a Asha Worker on the date of election (polling) and thus holding office of profit, which is a disqualification for contesting election for the post of Mukhiya under Section 136(1) of 2006 Act A copy of protest application is annexed as Annexure-8 to the writ petition. One Phool Kumari Devi, mother of respondent no. 6 too filed an election petition bearing Election Petition No. 2/11 in the Court of Munsif, Sheohar-cum-Election Tribunal at Sitamarhi on 9.6.2011 for declaring the entire election process bad. 3. It is relevant to state here that both in the election petition as well as in complaint to the State Election Commission, the election of the petitioner was challenged on the same ground that the latter was disqualified to contest election as she was holding post of profit on the date of nomination (8.3.2011) as well as on date of polling (24.4.2011). 4. On the basis of complaint of Respondent No.6, the State Election Commissioner registered Case No. 71/2011 and directed the District Magistrate-cum-District Returning Officer Panchayat, Sheohar to depute a competent officer to appear in hearing on 8.9.2011 with all relevant papers including inquiry report after making necessary enquiry. 4. On the basis of complaint of Respondent No.6, the State Election Commissioner registered Case No. 71/2011 and directed the District Magistrate-cum-District Returning Officer Panchayat, Sheohar to depute a competent officer to appear in hearing on 8.9.2011 with all relevant papers including inquiry report after making necessary enquiry. The State Election Commissioner vide his order dated 4.11.2011 after considering enquiry report and papers produced by parties and after giving them due opportunity of hearing came to a finding that the petitioner was an Asha Worker on the date of filing of nomination and as such she was disqualified to contest election and hold post of Mukhiya. He further observed that on account of disqualification of petitioner, the post of Mukhiya of Gram Panchayat, Amba South has fallen vacant and steps be taken for fresh election. 5. The petitioners have assailed the impugned order of the State Election Commissioner on the following grounds:- (i) The Election Commission has no jurisdiction to decide qualification or disqualification of a candidate occurring prior to election. (ii) The Election Commissioner has no authority to examine the validity of election and cancel the same. (iii) The order of Election Commissioner is perverse and the findings are not conclusive. (iv) Even assuming he has jurisdiction to decide the issue of qualification or disqualification occurring before election, whether he ought to have entertained the complaint when the election petition also on the same ground filed by the mother of Respondent No.6 is pending before the Election Tribunal. 6. The stand of Counsels for the private respondent and State Election Commission are common. They submit that the State Election Commissioner is authorized under Section 136(2) of the Bihar Panchayat Raj Act, 2006 to decide qualification and disqualification mentioned in Sections 135(1) and 136(1) of the Bihar Panchayat Raj Act. They state that the petitioner was holding office of profit as she was working as Asha Worker in the same Panchayat on the date of nomination as well as date of polling. Even the petitioner admits to the extent that she was working as Asha Worker in the Panchayat, but she has resigned before filing nomination. 7. Now I will take up the first point raised by the petitioner. Even the petitioner admits to the extent that she was working as Asha Worker in the Panchayat, but she has resigned before filing nomination. 7. Now I will take up the first point raised by the petitioner. The main contention of the petitioner is that the State Election Commission has no jurisdiction to entertain issues of qualification or disqualification under Sections 135(1) and 136(1) occurring prior to the datl3 of election. The petitioner submits that the State Election Commissioner can decide issues of qualification or disqualification arising only subsequent to the election in view of explicit bar under Article 243-O of the Constitution of India and Section 137 of the Bihar Panchayat Raj Act, 2006. In support of his submissions, the petitioner has relied upon decision in the case of Sri Bhagwan Singh vs. State of Bihar, reported in 2004(4) PLJR 483 and the decision in the case of State Election Commission vs. Punam Kumari & Am., reported in 2009(1) PLJR 712 . The petitioner states that Section 136(2) of 2006 Act which authorizes State Election Commission to examine disqualification prior to election is similar to Section 139(2) of 1993 Act read with Rule 122 of 1995 Rules which has been held ultra vires Article 243-O to the extent it has conferred such power. The petitioner contends that proviso to Section 136(2) substituted vide Amendment Act, 2009 prohibits State Election Commission from entertaining any complaint or petition, subject matter of which is purely an election dispute, such as corrupt practice, wrongful rejection of nomination etc. According to the petitioner, wrongful rejection of nomination would include wrongful acceptance of nomination paper. The petitioner next submits that Article 243-0 puts a bar to interference by courts in electoral matter Article 243-O states that no election to any Panchayat shall be called in question except by way of election petition. Furthermore, Section 137 of the Bihar Panchayat Raj Act, 2006 states that the election to any office of a Panchayat shall not be called in question except by way of election petition to the prescribed authority. He contends that Section 138(b) states that no election to any Panchayat shall be called into question except by way of election petition presented to prescribed authority. Furthermore Section 138 starts with a non-obstante clause which would have an overriding effect over the other provisions in the Act. He contends that Section 138(b) states that no election to any Panchayat shall be called into question except by way of election petition presented to prescribed authority. Furthermore Section 138 starts with a non-obstante clause which would have an overriding effect over the other provisions in the Act. Section 139 states that the prescribed authority which is a Court of Munsif can declare an election void on any of the grounds enumerated therein, which also includes grounds in respect of qualification and disqualification of a candidate under Section 139(1)(a) of the Act, 2006. Thus, he submits that only the Court of Munsif in Election Petition would be competent to decide disqualification occurring prior to election in view of the overriding provision of Sections 137 and 138 read with Article 243-0 of the Constitution. 8. On the other hand Mr. Rana Pratap Singh, learned Senior Counsel appearing for respondent no. 5 submits that Article 243-F of the Constitution of India read with Section 136(2) of Bihar Panchayat Raj Act, 2006 empowers the State Election Commission to decide the dispute relating to qualification and disqualification of a Mukhiya even prior to election. In support of his submission, learned counsel relied upon a decision of the Division Bench in the case of Mahendra Narayan Das vs. State of Bihar passed in C.W.J.C. No. 13669 of 2010 disposed of on 30.11.2011 as well as decision in the case of Champa Devi @ Champa Kumari vs. State of Bihar & Ors., reported in 2007(4) PLJR 619 . 9. The State Election Commission while adopting the arguments of learned counsel for the Respondent no. 6, also placed reliance upon a Division Bench judgment in the case of Vijay Kumar Choudhary VS. State Election Commission reported in 2009(4) PLJR 619 (sic-282) as well as case of Prabhat Vikram Sah vs. State Election Commissioner, reported in 2009(2) PLJR 161 . 10. I will first refer to the Division Bench judgment relied upon by the petitioner in case of Bhagwan Singh vs. State of Bihar, reported in 2004(4) PLJR 483 . In the aforesaid case, the petitioner Bhagwan Singh challenged the vires of Rule 122 of Bihar Panchayat Election Rules, 1995 as amended by notification dated 28.2.2002 primarily on the ground that the same is ultra vires Article 243-O of the Constitution of India and Sections 140 and 143 of the Bihar Panchayat Raj Act, 1993. In the aforesaid case, the petitioner Bhagwan Singh challenged the vires of Rule 122 of Bihar Panchayat Election Rules, 1995 as amended by notification dated 28.2.2002 primarily on the ground that the same is ultra vires Article 243-O of the Constitution of India and Sections 140 and 143 of the Bihar Panchayat Raj Act, 1993. The scope of Section 139(1) and (2) of Bihar Panchayat Raj Act, 1993 was also considered by the Division Bench Before we advert to the decision of Bhagwan Singh (supra), it would be necessary to notice Section 139(1) & (2) of 1993 Act and Rule 122 of Bihar panchayat Election Rules, 1995 as they existed originally, and on the date of judgment in the year 2004 on account of subsequent amendments. Section 139(1) & (2) of Bihar Panchayat Raj Act, 1993 and Rule 122 of Bihar Panchayat Election Rules, 1995 which would be relevant in context of the case are quoted here-in-below:- "139. Disqualification for Membership.-(1) A person shall be disqualified for being elected as and for being a member of a Panchayat if:- (a) he is so disqualified by or under any law for the time being in force for the, purposes of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; and (b) he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat at any level has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Government may by law provide. (2) If any question arises as to whether a member of a Panchayat at any level has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Government may by law provide. Section 139(1) was substituted later on is quoted here-in-below:- "139 Disqualification.-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhia, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person- (a) is not citizen of India; (b) is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years; (c) is in the service of Central or State Government or any local authority; (d) is in service of any such institution receiving aids from Central or State Government or any local authority; (e) has been adjudged by a competent court to be of unsound mind; (f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behavior under Section 109 or Section 110 of the Code of Criminal Procedure 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profit under the Panchayat; (j) has been found guilty of corrupt practices : Provided that on being found guilty of corrupt practices, the disqualification shall cease after six years of general election", Rule 122 of Bihar Panchayat Election Rules, 1995 is quoted here-in-below:- 122, Decision of disqualification.- For a decision on any question of disqualification mentioned in sub-section (1) of Section 139 of the Act the election petition may be filed in the case of Gram Panchayat/Gram Kutcherry before such munsif and in the case of Panchayat Samiti/Zila Parishad before such Subordinate Judge under whose jurisdiction it falls." 11. On 28.2.2002, Rule 122 of the Bihar Panchayat Election Rules, 1995, was amended empowering the State Election Commission to decide as to whether a member of the Panchayat at any level has become subject to any of the disqualifications mentioned in Section 139(1) of the Act. Rule 122 of Bihar Panchayat Election Rules, 1995 as amended on 28.2.2002 is quoted here-in-below:- "Rule 122. Under provisions of Section 139(2) of the Bihar Panchayat Raj Act, 1993, the State Election Commission shall be the competent authority to decide whether a member of a Panchayat at any level has become subject to any of the disqualifications mentioned in Section 139(1) of the Act. The matter of disqualification may be brought to the notice of the State Election Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard." 12. The Division Bench in paragraph 15 of the judgment stated that the question of disqualification falls into two categories, one is with regard to disqualification prior to the election and the other disqualification post election. The learned Judges observed that so far as the disqualification prior to the election is concerned, Sections 140 and 143 of Bihar Panchayat Raj Act, 1993 state that no election of any Panchayat shall be called in question except by election petition presented to the prescribed authority. In paragraph 16, the Division Bench observed that so far as the post election disqualification is concerned, Rule 139(2) provides that such question shall be referred for decision of such authority and in such manner the Government may by law provides under Rule 122 for dealing with such matters. The Division Bench in paragraph 18 observed that the case of persons, who have incurred disqualification prior to election, cannot be considered in terms of Section 139(2) and only mode of challenging their -election is by filing an election petition. Thus the provisions of Rule 122 of 1995, amended in 2002 authorizing State Election Commission to decide even matter of disqualification prior to the election is ultra vires the provisions contained in Article 243-O of Constitution and Sections 140 and 143 of 1993 Act to that extent. Paragraph 18 of judgment is quoted here-in-below:- "18. Thus the provisions of Rule 122 of 1995, amended in 2002 authorizing State Election Commission to decide even matter of disqualification prior to the election is ultra vires the provisions contained in Article 243-O of Constitution and Sections 140 and 143 of 1993 Act to that extent. Paragraph 18 of judgment is quoted here-in-below:- "18. Thus, it is clear that those candidates, who have incurred disqualification prior to election, their cases cannot be considered in terms of Section 139(2) and only mode of challenging their election is by filing an election petition. The provision as contained in Rule 122 which authorizes the State Election Commission to decide even the matter of disqualification prior to the election is, thus, ultra vires the provisions contained in Article 243-0 of the Constitution and Sections 140 and 143 of the Act and to that extent, it is declared ultra vires." , 13. The case of the petitioner is that Section 136(2) of 2006 Act is more or less akin to amended Section 139(2) of 1993 Act. In my view the amended Section' 139(2) of 1993 Act is not akin to Section 136(2) of 2006 Act, which authorizes the State Election Commission to look into the question of disqualification occurring even prior to election engrafted in terms of Article 243-F of the Constitution. Section 136(1) and (2) of 2006 Act are quoted here-in-below for easy reference:- "136. In my view the amended Section' 139(2) of 1993 Act is not akin to Section 136(2) of 2006 Act, which authorizes the State Election Commission to look into the question of disqualification occurring even prior to election engrafted in terms of Article 243-F of the Constitution. Section 136(1) and (2) of 2006 Act are quoted here-in-below for easy reference:- "136. Disqualification for Membership.-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhia, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person- (a) is not citizen of India; (b) is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years; (c) is in the service of Central or State Government or any local authority; (d) is in service of any such institution receiving aids from Central or State Government or any local authority; (e) has been adjudged by a competent court to be of unsound mind; (f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behavior under Section 109 or Section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profit under the Panchayat; (j) has been found guilty of corrupt practices: Provided that on being found guilty of corrupt practices, the disqualification' shall cease after six years of general election. 136 (2). 136 (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 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." (Underlining is mine for emphasis) 14. Section 136(2) states that if a person is disqualified under Section 136(1) or qualification under section 135 before election as provided in Article 243-F of the Constitution, the State Election Commission can decide such matters. The use of expression "was disqualified before election" as provided in Article 243-F of Constitution of India and subject to any disqualification mentioned in Section 135 or sub-section (1) of Section 136 incorporated in Section 136(2) is of utmost relevance. Article 243-F states that if any person is so disqualified by any law made for purposes of election the dispute can be referred to prescribed authority. Section 136(2) of 2006 Act in consonance with provision of Article 243-F authorized State Election Commission to consider disqualification under Section 136(1) and qualification under Section 135 to decide dispute occurring prior to election. This provision is materially different than Section 139(2) of 1993 Act which authored a prescribed authority to decide disqualification occurring prior to election without aid of constitutional provision of Article 243-F. As such the authority of State Election Commission to decide dispute of disqualification occurring prior to election under Rule 122 amended in 2002 read with Section 139(2) of 1993 Act was declared ultra vires Article 243-O as well as Section 140 and Sections 143 of 1993 Act. Here Section 136(2) of 2006 Act has mandate of Article 243-F which Section 139(2) of 1993 Act did not have at the time of consideration of Bhagwan Singh case. 15. Here Section 136(2) of 2006 Act has mandate of Article 243-F which Section 139(2) of 1993 Act did not have at the time of consideration of Bhagwan Singh case. 15. Furthermore, Section 136 has an overriding effect as it starts with a non-obstante clause and as such would not be undermined by Sections 137 and 138 of 2006 Act to the extent mentioned therein. It is relevant to state that Section 137 and Section 138(6) of 2006 Act is more or less in substance akin to Sections 140 and 143 of 1993 Act. Furthermore, the vires of Section 136(2) has not been challenged by the petitioner. Besides, this it is relevant to state that Section 136(2) has been framed as per provisions of Article 243-F of Constitution to which I would be adverting later on in the judgment. 16. Learned counsel for the petitioner next relied upon a Division Bench decision in the case of State Election Commission vs. Punam Kumari & Anr. (supra). In the aforesaid case, the Division Bench was considering the issue, whether the State Election Commissioner is competent to decide the issue relating to qualification of a candidate mentioned under Section 135 of the Bihar Panchayat Raj Act, 2006. In the aforesaid case, one Punam Kumari made a complaint before the State Election Commissioner that the seat of Mukhiya of a particular panchayat which was reserved for extremely backward class is occupied by a person who does not belong to that category. Against refusal to entertain such application, Punam Kumari filed writ application in this court which was allowed and the State Election Commission was directed to decide the issue. The State Election Commission moved the Division Bench against the order of learned Single Judge in L.P.A. which set aside the judgment and order under appeal holding that State Election Commission was not vested with power to decide matters covered under Section 135(1) of 1he Bihar Panchayat Raj Act, 2006 which is quoted here-in-below :- "135(1). The State Election Commission moved the Division Bench against the order of learned Single Judge in L.P.A. which set aside the judgment and order under appeal holding that State Election Commission was not vested with power to decide matters covered under Section 135(1) of 1he Bihar Panchayat Raj Act, 2006 which is quoted here-in-below :- "135(1). Every person whose name is in 1he list of Voter& 9f any Panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member or office bearer of the Panchayat: Provided that in the case of seats reserved for Scheduled Castes or Scheduled Tribes or Backward Classes or Women, no person who is not a member of any of the Scheduled Castes or Scheduled Tribes or Backward Classes or is not a woman, as the case may be, shall be qualified to be elected to such seat." 17. The Division Bench noticed that Section 136(2) as it originally stood prior to Amendment in 2009 authorized the State Election Commission to decide question relating to disqualification as enumerated in Section 136(1) of the Act. The Act as it originally stood at the time of decision of the case (State Election Commission vs. Punam Kumari), Section 136(2) did not empower the State Election Commission to decide dispute of qualification for membership provided under Section 135 of the Act on the ground that such person contested election such seat which was reserved for other category e.g. SC/ST. 18. It is relevant to state that only after the judgment dated 22.8.2008 rendered in the case of State Election Commission vs. Punam Kumari that the State Legislature made an amendment in Section 136 by Amendment Act 10/09. The substitution was made effective from 10th April, 2006. The amended Section 136(2) empowered the State Election Commission by virtue of Article 243-F of the Constitution of India also to decide qualification under Section 135 as well as disqualification under Section 136(2) occurring prior to election. By amendment, the State Election Commissioner was now empowered to decide the question relating to qualification mentioned under Section 135 occurring both prior and after the election. Thus, I find that the Division Bench was not considering the issue whether the State Election Commissioner can decide the dispute relating to qualification or disqualification arising prior to election. By amendment, the State Election Commissioner was now empowered to decide the question relating to qualification mentioned under Section 135 occurring both prior and after the election. Thus, I find that the Division Bench was not considering the issue whether the State Election Commissioner can decide the dispute relating to qualification or disqualification arising prior to election. The Division Bench was confined only with the issue whether State Election Commissioner under Section 136(2) as the provision existed prior to amendment, was empowered to consider the matter relating to qualification mentioned under Section 135(1) of the Act. 19. On the other hand, counsel for respondent no. 6 as well as State Election Commission rightly relied upon Division Bench decisions in the case of Vijay Kumar Choudhary vs. State Election Commissioner, reported in 2009(4) PLJR 282 ; Champa Devi @ Champa Kumari vs. State of Bihar & Ors., 2007(4) PLJR 619 and Prabhat Vikram Sah vs. State of Bihar, reported in 2010(2) PLJR 160 . In all these three cases, the learned Division Bench did not hold that State Election Commissioner under Section 136(2) does not have power to examine the issue of disqualification arising prior to election. In all these cases, disqualification occurring prior to the date of election was challenged before the State Election Commissioner. Furthermore, another Division Bench of this court in the case of Mahendra Narayan Das (supra) has observed that amendment in section 136 of the Act has taken away the basis for the judgment of the Division Bench in the case of State Election Commission vs. Punam Kumari & Ors. and hence that judgment cannot appropriately be followed when the law has been amended by substituting sub-section (2) of Section 136 of the Act with retrospective effect. Learned Judges further observed that if occasion arises, the effect of such amendment in law may require a fresh look on other grounds, if found relevant. Para-8 of the judgment is quoted here-in-below:- "8. In our view, the amendment in Section 136 of the Act has taken away the basis for the judgment of the Division Bench in the case of The State Election Commission & Ors. vs. Punam Kumari & Anr. and, hence, that judgment cannot appropriately be followed when the law has been amended by substituting sub-section (2) of Section 136 of the Act with retrospective effect. vs. Punam Kumari & Anr. and, hence, that judgment 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." 20. The case of Mahendra Narayan Das was referred to the Division Bench by learned Single Judge on the point whether the views of Division Bench in the case d State Election Commission vs. Punam Kumari (supra) still holds the field or the Amendment of 2009 confers a State Election Commissioner with power to decide the disqualification mentioned in Section 135 along with those in sub-section (1) of Section 136. 21. Learned counsel for the petitioner argued that in view of the liberty that the effect of such amendment in law may require a fresh look on other grounds, if found is relevant, has left the entire issue open. It is relevant to state that the aforesaid observation of the Division Bench was in respect of reference made by the learned Single Judge whether the amendment would undo the effect of decision in the case of State Election Commission vs. Punam Kumari which was in respect of Section 135 with which we are not concerned in the instant case.-he Division Bench left the issue of effect of such amendment in law on other grounds to be considered in an appropriate case. 22. The petitioner heavily relied upon the proviso to Section 136(2) which disentitles the Election Commission to entertain any complaint or petition subject matter of which is purely election dispute such as corrupt practice, wrongful rejection of nomination etc. Reliance was also placed on Article 243-0 of the Constitution and Section 137 of the 2006 Act. 22. The petitioner heavily relied upon the proviso to Section 136(2) which disentitles the Election Commission to entertain any complaint or petition subject matter of which is purely election dispute such as corrupt practice, wrongful rejection of nomination etc. Reliance was also placed on Article 243-0 of the Constitution and Section 137 of the 2006 Act. Article 243-0 of the Constitution and Section 137(1) of 2006 Act quoted herein below:- "243-O. Bar to interference by Courts in electoral matters.-Notwithstanding anything in this Constitution(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; (b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as to provided for by or under any law made by the Legislature of a State." 137. Election Petition.--(1) The election to any office of a Panchayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed: 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." 23. It is true that Article 243-O(b) bars calling in question an election to a Panchayat except by way of election petition. Sections 137 and 138 of the Bihar Panchayat Raj Act, 2006 state that no election to any panchayat shall be called in question save and except by way of election petition presented to prescribed authority under the Act. On this basis, the petitioner had also submitted that the State Election Commission cannot decide the question relating to qualification and disqualification arising prior to election. Article 243-F states that a person shall be disqualified for being chosen as, and for being, a member of Panchayat, if he is so qualified (sic-disqualified ?) by or under any law in force. On this basis, the petitioner had also submitted that the State Election Commission cannot decide the question relating to qualification and disqualification arising prior to election. Article 243-F states that a person shall be disqualified for being chosen as, and for being, a member of Panchayat, if he is so qualified (sic-disqualified ?) by or under any law in force. Thus Article 243-F refers to disqualification for being chosen which obviously is pointing to disqualification occurring prior to election which is subject to law framed by State Legislature to that effect. Sub-section (2) of Article 243-F confers power on State Legislature to frame law for referring dispute in respect of disqualification of a candidate of Panchayat to a prescribed authority. In view of mandate of Article 243-F, the State Legislatu re engrafted Section 136(2) of the Bihar Panchayat Raj Act, 2006 authorising State Election Commission to decide question of disqualifications mentioned in Section 136(1) of the Act. Article 243-F is quoted here-in-below: "243-F. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide." 24. Thus, Article 243-F and Section 136(2) confer power on State Election Commissioner to decide the issue relating to disqualification occurring prior and after election. The provision refers both to disqualification before election or has incurred disqualification after election. A Division Bench of this court in the case of Manoj Bind vs. State of Bihar, reported• in 2009(4) PLJR 35 observed that Section 136(1)(g) is in consonance with Article 243F. The provision refers both to disqualification before election or has incurred disqualification after election. A Division Bench of this court in the case of Manoj Bind vs. State of Bihar, reported• in 2009(4) PLJR 35 observed that Section 136(1)(g) is in consonance with Article 243F. Again in the case of Vijay Kumar Choudhary vs. State Election Commissioner, a Division Bench observed that the State Election Commission can take suo mota cognizance under Section 136(2) in respect of disqualification mentioned in Section 136(1) occurring both before and after election. Section 136(1) which begins with a non-obstante clause speaks clearly of disqualification both before and after election. Here I would use a word of caution. There may be cases which would involve facts which are complicated and in serious dispute which may necessarily require the documents to be examined in accordance with Evidence Act, in such cases the functions of examining the matter is best left to the Civil Court/Election Tribunal. This Court in case of Ajay Kumar VS. State Election Commission passed in C.W.J.C. No. 16239 of 2011 while relying upon a decision in case of Rekha Kumari vs. The State of Bihar & Ors., reported in 2006(4) PLJR 634 , observed that the commission ought not to go into the question of facts which are in serious dispute and such matter ought to be left to be decided by the Election Tribunal. 25. Coming to issue no. (ii) the petitioner contends that the State Election Commission has no authority to examine the validity of election and cancel the same. The answer to the issue would be found in a Division Bench judgment in the case of Champa Devi @ Champa Kumari vs. State of Bihar & Ors., reported in 2007(4) PLJR 619 , particularly paragraph 11 which Ls quoted here-in-below:- "11. Sub-section 2 of Section 136 of the Act further contemplates that on disqualification, as referred to above in sub-section 1 of Section 136, the Election Commission would be competent to take a decision in case it would be satisfied that the candidate who was elected as Mukhiya had violated the conditions aforesaid and it may declare the person concerned as not fit for the post aforesaid. The right to set aside the election, thus, also vests in the Election Commission." 26. The right to set aside the election, thus, also vests in the Election Commission." 26. Counsel for the petitioner submits that the observation made in paragraph 11 that the .Election Commission has right to set aside the election was a passing reference as the issue was not raised or canvassed nor decided. He submits that an issue which is raised and decided could be deemed to be laying a law. In the instant case the Election Commissioner did not specifically state that he has set aside the election but has stated that the elected Mukhiya stood disqualified consequent to which the post of Mukhiya became vacant and that now requires to be filled in accordance with jaw. In my view if an elected representative is declared to be disqualified by a competent authority, the natural corollary is that the person becomes unseated. 27. This takes me to issue no. (iii). The petitioner contends that the order of the State Election Commission is perverse and not conclusive. It is not in dispute that the petitioner was working from before as Asha Worker. The date of filing nomination was 1.3.2008 and there ate of scrutiny was 8.3.2008 as per petit oner's case. The resignation of petitioner as Asha Worker is said to be accepted by the Incharge Medical Officer who is not competent authority to accept the resignation of such worker. On the other hand, it is the Aam Sabha of Gram Panchayat which is competent to accept resignation of a Asha Worker. It is an admitted position that Aam Sabha of the Panchayat has not accepted the resignation of the petitioner. Furthermore, the name of the petitioner figured in the computer list even in August, 2011. The resignation is sought to be accepted by the Incharge Medical Officer on 25.2.2011 and the same was produced after 3 P.M. on 8.3.2008 before the Scrutiny Committee, when the scrutiny had begun at 10.30 A.M. itself. In this view of the matter, I do not find any infirmity in the order of the State Election Commission observing that the acceptance of resignation of the petitioner cannot be held to be valid as it was accepted by the authority which does not have authority to do so. 28. In this view of the matter, I do not find any infirmity in the order of the State Election Commission observing that the acceptance of resignation of the petitioner cannot be held to be valid as it was accepted by the authority which does not have authority to do so. 28. The Division Bench of this court in the case of Champa Devi @ Champa Kumari (supra) held that only resignation accepted in accordance with law would be deemed to be a valid resignation, otherwise not. In absence of acceptance of resignation by an appropriate authority, the incumbent would be deemed to be continuing on the post. Thus, in my view the Election Commission has rightly held that the petitioner continued as Asha Worker on date of nomination and polling, and was rightly held to be disqualified to contest election of Mukhiya as she was holding the post of profit a disqualification under Section 136(1) (i) of the Act. 29. Now I come to the last issue namely issue no. (iv). The petitioner contends that the mother of respondent no. 6 had filed an Election Petition and as such the State Election Commissioner was not entitled to hear the dispute. On the other hand, counsel for respondent no. 6 submitted that they are daggers drawn which is evident from the fact that both of them contested the election causing division and splitting of common votes of family and friends which would directly benefit the other party (the petitioner). 30. Counsel for respondent no. 6 submits that Sections 136 and 139 of the Bihar Panchayat Raj Act, 2006 gives an option to a party to chose a forum challenging the dispute relating to qualification and disqualification. He submits that the situation would have been different if respondent no. 6 alone had moved both the forums i.e. SEC and Election Tribunal. In the instant case, he had preferred to lodge a complaint before the State Election Commission, whereas his mother another defeated candidate, has preferred an election petition. He submits that the situation would have been different if respondent no. 6 alone had moved both the forums i.e. SEC and Election Tribunal. In the instant case, he had preferred to lodge a complaint before the State Election Commission, whereas his mother another defeated candidate, has preferred an election petition. In my view, Section 136(2) of the Bihar Panchayat Raj Act, 2006 provides for a complaint to State Election Commissioner whereas Section 139(1)(a) of the Bihar Panchayat Raj Act, 2006 also gives an option to challenge the election on the ground that a returned candidate was not qualified or was disqualified, in Election Petition in Court However, same person cannot choose both the forums questioning the disqualification under Section 136(1) and qualification under Section 135 of 2006 Act by filing complaint before SEC under Section 136(2) and an election petition in Court under Section 137 and 138 of 2006 Act. However, two aggrieved persons are free to choose either of the alternative forums indicated above. 31. In view of the discussions made above, I hold that the State Election Commissioner in view of Article 243-F of the Constitution of India read with section 136(2) of the Bihar Panchayat Raj Act, 2006 is competent to decide the question regarding qualification or disqualification occurring both prior and after election enlisted in Section 135 or Section 136(1) of 2006 Act. The other point raised by petitioner has already been answered n negative in the foregoing paragraphs. 33. In the result, the writ application is dismissed.