ORDER The question of law that has arisen in these batch of cases is whether the State Election Commission (hereinafter referred to as ‘the Commission’) can hear issues with respect to disqualification as mentioned under Sections 135 and 136 of the Bihar Gram Panchayat Act, 2006 (hereinafter referred to as ‘the Act of 2006’) under sub-Section (2) of Section 136 of the Act of 2006 after the elections? 2. The issue as to whether the Commission has the power to adjudicate in matters relating to pre-election disqualifications has already been decided by a Bench of this Court recently in the case of Geeta Gupta Vs. The State of Bihar (CWJC No. 20564 of 2011) on 21.02.2012. This Court has held that the Commission in view of Article 243-F of the Constitution of India read with Section 136 (2) of the Act of 2006 is competent to decide the question regarding qualification or disqualification of a candidate. 3. The argument raised on behalf of the petitioners is that there is a total bar imposed by Article 243-O of the Constitution of India, which envisages that all disputes arising out of an election are to be decided by filing an election petition. Various arguments have been raised in this context, especially with respect to interpretation of the provisions of Chapter III and Part IX of the Constitution of India, the provisions of the Act of 2006 and the Rules made there under. Counsel for the petitioners specifically Senior Counsel Mr. Chittaranjan Singh has gone so far as to submit that even if the disqualification is apparent and undisputed, the power to declare such an election as void, can only be done by filing an election petition and this Court cannot interfere in such matters by issuing a writ of quo warranto. 4. It may be clarified that the petitioners do not challenge the virus of the provisions of sub-Section (2) of Section 136 of the Act of 2006, rather they contended that the provisions must be read down and the provisions must be interpreted in consonance of the provisions of Constitution of India as well as Section 137, 138 and 139 of the Act of 2006. 5. 5. Counsels appearing on behalf of the respondents and the Commission, on the other hand, have pointed out that there is no conflict in the interpretation of the provisions of the Constitution of India and the provisions of the Act of 2006. A distinction has been drawn between the qualification / disqualification to stand and contest elections, and dispute arising out of the manner in which an election is conducted! In this context, it would be relevant to refer to some of the important decisions on the subject matter to highlight the manner by which the provisions relating to election disputes has evolved for the amendment of Section 136 of the Act of 2006. 6. Prior to the enactment of the Act of 2006, the provisions relating to disqualification were enumerated in Section 139 and 139 (1) of the 1993 Act, which reads as follows :– “139. 6. Prior to the enactment of the Act of 2006, the provisions relating to disqualification were enumerated in Section 139 and 139 (1) of the 1993 Act, which reads as follows :– “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 (3) If a person who is chosen as a member of Panchayat is or becomes Member of the Lok Sabha, Rajya Sabha, the State Legislature Assembly or the State Legislative Council, or is or becomes a municipal councilor or a councilor of a municipal corporation or a Member of a Sanitary Board, any other Panchayat or a notified area committee, then within fifteen days from the date of commencement of the term of office of a member of the Lok Sabha, the Rajya Sabha, the State Legislative Assembly or State Legislative Council or of a Municipal Councillor or Councillor of a Municipal Corporation or a member of a Sanitary Board or a Town Board or a Notified Area Committee or such other Panchayat his seat in the Panchayat shall become vacant unless he had previously resigned his seat in the Lok Sabha, the Rajya Sabha, the State Legislative Assembly or the State Legislative Council or the Municipal Council or the Municipal Corporation or the Sanitary Board or such other Panchayat or the Notified Area Committee, as the case may be.” 7. Before the enactment of the Act of 2007, the provisions of clause (2) of Section 139 of the Bihar Panchayat Raj Act, 1993 which is relevant for consideration envisaged that if any person whether a member of Panchayat or at any level becomes subject to the disqualifications mentioned in clause (1) of Section 139 of the Act of 1993, the issues were to be decided by an authority as prescribed by law by the State Government. Section 139 (1) was substituted later on and disqualifications were enumerated by the substituted section 139 (1) of the Act. 8. By rule 122 of the Bihar Panchayat Election Rules, 1995 (hereinafter referred to as ‘the Rules of 1995’) the power to decide a case relating to disqualification vested with Munsif in case of elections relating to Panchayat Samiti/Gram Kutchahary and before the Subordinate Judge in the case of Panchayat Samiti/Zila Parishad. Rule 122 of the Rules of 1995 was subsequently amended on 28.02.2002 and read as follows:– “122. Decision of disqualification.–For a decision of 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 Kutchery before such munsif and in the case of Panchayat Samiti/Zila Parishad before such subordinate Judge under who’s jurisdiction it falls.” 9. The virus of the amended rule 122 of the Rule of 1995 was challenged in the case of Shri Bhagwan Singh Vs. The State of Bihar [2004 (4) PLJR 482]. The question before the Division Bench was whether Rule 122, as amended by notification dated 28.02.2002 is ultra virus of the provisions of Article 243-O of the Constitution of India and Section 140 and 143 of the Bihar Panchayat Raj Act, 1993, besides the challenge on merits of the order passed by the Commission. The Division Bench held that those persons “who have incurred disqualification prior to the election, their cases cannot be considered in terms of Section 139 (2) and the only mode of challenging their election is by filing an election petition”. I may quote here paragraph 19 of the judgment in the case of Bhagwan Singh. “19. The Division Bench held that those persons “who have incurred disqualification prior to the election, their cases cannot be considered in terms of Section 139 (2) and the only mode of challenging their election is by filing an election petition”. I may quote here paragraph 19 of the judgment in the case of Bhagwan Singh. “19. So far as the provision of Rule 122, which authorizes the State Election Commission to decide the question of disqualification, which was incurred by a member of the Panchayat after election, is concerned, it is valid one and consistent with the provision of section 139 (2) of the Act and this view is fully supported by the aforesaid Constitution Bench Judge where similar provision under Article 192 (1) was under consideration.” (Their Lordships referred to the case of Mohinder Singh Gill Vs. The Chief Election Commissioner [ (1978) 1 SCC 405 ]. 10. After the decision of this Court in the case of Shri Bhagwan Singh (supra), several other matters came before this Court challenging the competency of the Commission to hear matters with respect to disqualifications regarding age or caste of the elected Mukhiya. One such matter was decided by this Court in the case of Kahkashan Parveen Vs. The State of Bihar and Others [ 2007 (1) PLJR 616 ], wherein there was a complaint that the elected Mukhiya of Dumri Gram Panchayat (Darbhanga) had not attained the age of 21 years as per the provisions of the Act of 2006, so as to entitle her to contest the elections. As there were many disputed facts involved in this case, the Court came to the conclusion that the question of disqualification ought to have been raised prior to the start of the election process, which would have been legitimately considered by the Commission. It was also held that where there was the disputed question of fact, the Commission had no authority or jurisdiction to decide the same, especially when the process of election had concluded. 11. Similarly, in another case of Kiran Kumari @ Kiran Devi Vs. It was also held that where there was the disputed question of fact, the Commission had no authority or jurisdiction to decide the same, especially when the process of election had concluded. 11. Similarly, in another case of Kiran Kumari @ Kiran Devi Vs. The State of Bihar and Others [ 2007 (4) PLJR 442 ], this Court set aside the order of the Commission holding that it did not have the jurisdiction or authority to decide contested matters with respect to the age of a candidate, who had already won the election for the post of Mukhiya as it was in contravention to the provisions of Article 243-O of the Constitution of India and Section 136 (2), 137 and 138 (b) of the Act of 2006. 12. These issues were not set to rest, but were again raised before this Court when the election to the post of Mukhiya of a particular Panchayat was challenged on the ground that it was reserved for Extremely Backward Class Community and was being occupied by a person who did not belong to the said community.[(a) The State Election Commission and Others vs. Punam Kumari and Another; (b) Farzana Saba Vs. The State Election Commission and Others, 2009 (1) PLJR 712 ]. A complaint was made before the Commission who failed to address the problem. The complainant there after filed a writ application and the learned Single Judge directed the Commission to decide the merits of the complainant. The Commission filed a Letters Patent Appeal before the Court and at the same time applied its mind to the complaint and ultimately declared that the person elected did not belong to the caste for which the post in question was reserved. 13. The two appeals, one by the State Election Commission and another by Farzana Saba were filed. The question in the appeals was whether the Commission had the competency to decide the complaint of the petitioner/respondent. While addressing this issue, after considering the provisions of Articles 191 and 243-O and 243-F of the Constitution of India, the Court held as under :– “There is no dispute that the State Legislature has provided in Section 135 of the Bihar Panchayat Raj Act, 2006 that a person, who does not belong to a reserved category, shall not be qualified to be elected to a seat which is reserved for such category. In that view of the matter, if the person does not belong to the reserved category but is occupying a reserved seat, though through election, the dispute in relation thereto would not be an election dispute, but would be a qualification dispute, unrelated with election. Such a dispute, being not an election dispute, is not covered by Article 243 (O) of the Constitution. It has been held by a Constitutional Bench of the Hon’ble Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner; (1978) 1 SCC 405 , that the immunity of Article 329 (b) is conferred only if the act is done for the apparent object of furthering a free and fair election and the protective armour drops down ‘if the act challenged is either unrelated to or thwarts or taints the course of election’. Therefore, in the event such a matter is highlighted before the Court exercising jurisdiction under Article 226 of the Constitution, unless there is a bar, the Court under Article 226 of the Constitution can certainly go into the question as has been squarely held by the Hon’ble Supreme Court in the case of K. Venkatachalam Vs. A. Swamickan; (1994) SCC 526. 14. After the discussions in the case of Punam Kumari, it would be proper for this Court to quote Section 135 of the Act of 2006, which deals with the qualifications for being elected to a post in any Panchayat and at the same time provides that only candidates who belong to a particular caste can contest the election for seats reserved by the Commission. “135. Qualification for Membership.–Every person whose name is in the list of voters of 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 Schedule 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.” 15. In this context, paragraphs 6, 8 and 9 of the judgment of the Division Bench of this Court in the case of The State Election Commission & Others Vs. Punam Kumari & Another and analogous case [ 2009 (1) PLJR 712 ] are relevant, I have been quoting this judgment extensively due to the fact that it was because of this judgment that an amendment was brought in the Act of 2006, and sub-section (2) of Section 136 of the Act was inserted. “6. There is no dispute that while one of the disqualifications prescribed in Section 135 of the Act made by the Legislature is election of a person to a reserved post when he does not belong to the community for whom the reservation has been made, the legislation in Section 136 of the Act has laid down other disqualifications and at the same time directed that the disqualifications laid down in Section 136 of the Act should be decided by the Commission by providing the same in sub-section (2) of Section 136, but specifically mandated that the disqualification mentioned in Section 135 of the Act shall be decided by the Election Tribunal provided that such disqualification the returned candidate had on the date of his election by providing the same in Clause (a) of sub- section (1) of Section 139 of the Act. 8. The disqualifications mentioned in Section 136 are specific and do not cover the disqualification mentioned in Section 135. If a Forum does not possess the power to decide a disqualification it cannot be directed to decide the same. In the instant case, the State Legislature has decided that disqualification matters should be decided by two Forums. As regards a type of disqualification a Forum has been selected and for other types of disqualifications another. Such Forums being available and the same having been established on the basis of a Constitutional mandate the judgment of the Hon‘ble Supreme Court in K. Venkatachalam (supra) has no application as there is provisions for taking recourse for appropriate relief and, accordingly, it must be construed that the court under Article 226 of the Constitution would not at the thresh-hold go into that question. 9. 9. That being the situation, it appears to us that if disqualification as on the date of election based on the allegation that the person seeking election or having been elected was not a member of the community for whom the reservation was made, is the dispute, the same can only be sorted out by an election petition to be presented before the Election Tribunal and not by presenting a writ petition.” 16. In fact, the case of Poonam Kumari (supra) although justifies the interference of the State Election Commission and Courts as far as disqualification is considered, has decided that the ‘qualification’ to contest the election, if challenged, can only be done by filing an election petition. I shall specifically meet the reasoning at paragraph 9 of the judgment by explaining that when his Lordship delivered the judgment, Section 136 of the Act of 2006 had not been amended. By the amendment, Section 135 of the Act of 2006 has been included in the ambit of Section 136 (2). The State Election Commission has specifically been given power to the State Election Commission to consider the challenge to the disqualification of the candidate. It is based on the premise that a stated qualification is a condition precedent, to holding a post or appointment, it would be void if such a person does not meet or hold the condition precedent. 17. I may here quote Section 136 (1) and (2) of the Act. I am referring this section in contest what has been argued in the present case at various places in this order. “136. 17. I may here quote Section 136 (1) and (2) of the Act. I am referring this section in contest what has been argued in the present case at various places in this order. “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 Mukhiya, 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 a 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 aid 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. (2) If any question arises as to whether a Member of a Panchayat at any level or Mukhiya of Gram Panchayat or Sarpanch of Gram Katchahri was before election or has become after election subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of the State Election Commission. 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. (3) xx xx xx (4) xx xx xx 18. By introduction of sub-section (2) to Section 136 of the Act of 2006 by Amendment Act 10 of 2009, which was made effective from 10th April, 2006, the power to hear disputes with respect to disqualification or qualification vested in the State Election commission. Sub-section (2) of Section 136 envisages that if any question arises whether Member of a Panchayat at any level was disqualified before election or has incurred disqualification after election as provided under Article 243-F of the 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 the State Election Commission. This provision has been challenged in the present set of writ applications before this Court on various grounds. Before referring to the provisions and the arguments placed in this case, I would also refer to two judgments, both of the Division Bench, directly covering this question raised before this Court, which were delivered after the Amendment of Section 136 of the Act, by Amendment Act 10 of 2009. 19. In the case of Vijay Kumar Choudhary Vs. the State Election Commissioner [ 2009 (4) PLJR 282 (DB)], the facts were that the appellant was elected to the post of Mukhiya in the district of Madhubani (Bihar), soon thereafter a Complaint Case No. 2 of 2007 was filed before the Commissioner who after hearing the parties held that the appellant had acquired Nepali Citizenship when he attained the age of 17 years. The order of the Commissioner was passed in exercise of powers under Section 136 (1) (a) of the Act of 2006. The order of the Commissioner was passed in exercise of powers under Section 136 (1) (a) of the Act of 2006. The Commissioner held that the post should be treated to be vacant. During the pendency of the writ application, the respondent no. 4 was elected to the post. The Division Bench, after considering the provisions of sub-section (2) of Section 136 of the Act held that the Commissioner had the power to decide the issues. The judgment was delivered relying on the case of Hari Shanker Jain Vs. Sonia Gandhi [ (2001) 8 SCC 233 ]. Thus the competency of the Commission to consider and decide issues with respect to the qualification as mentioned in sub-section (1) (a) of Section 136 of the Act of 2006 was within the competency of the Commission under Section 136 (2) of the Act of 2006. 20. This Judgment was followed by another judgment of this Court in the case of Dinesh Kumar Sah Bharti Vs. The State of Bihar & Others [ 2011 (1) PLJR 297 ]. The facts of this case were that one Ram Babu Kamat had challenged the issuance of a caste certificate in favour of the appellant, which led to the cancellation of the caste certificate by the District Magistrate. The order of the District Magistrate was assailed in CWJC No. 4272 of 2007, wherein the Court vide order dated 13.05.2008 held that the order has been passed without issuing notice to the appellant and accordingly remitted the matter to the District Magistrate for fresh adjudication as regards the caste status of the appellant in accordance with law. The District Magistrate thereafter found that the appellant did not belong to the ‘Kanu’ caste, but belonged to ‘Halwai’ caste which is categorized as Backward Class and not an Extremely Backward Class. On the basis of the earlier order passed by the District Magistrate, the Commission had passed an order removing the appellant from the post of Mukhiya. Before the learned Single Judge, it had been argued that the order had been passed on a total non-consideration of the materials brought on record and that the Commission had no jurisdiction to disqualify him on the ground of caste in view of the provisions of the Act of 2006. Two cases were referred to while the case was argued before the Division Bench, namely, State Election Commission & Others Vs. Two cases were referred to while the case was argued before the Division Bench, namely, State Election Commission & Others Vs. Punam Kumari and Another (supra) and the case of Arun Singh @ Arun Kumar Singh Vs. State of Bihar & Others [2006 (3) PLJR (SC) 17]. This Court while considering the findings of the Division Bench in the case of Punam Kumari (supra), ‘admitted’ the writ application on the submissions made on behalf of the Counsel for the appellant that there is a distinction between Section 135 and 136 of the Act of 2006. Section 135 of the Act of 2006 deals with the qualifications to be elected on a reserved seat. It may be noted that in the case of Dinesh Kumar Sah Bharti (supra), the Division Bench takes into consideration the case of Punam Kumar (supra), has not considered or in fact had no occasion to consider at the stage of admission the fact that there had been an amendment in Section 136 by adding Section 136 (2). In the background aforesaid, the position as far as the judicial pronouncements are concerned, it would appear that it has not been held that Section 136 (2) is not in accordance with the provisions of the Constitution of India or is in conflict with Sections 137, 138 and 139 of the Act of 2006. As indicated above, it has already been held by a Bench of this Court in the case of Geeta Gupta Vs. The State of Bihar and Another (CWJC No. 20564 of 2011) that the Commission has the competency to decide matters relating to disqualification, both pre and post election. 21. This Court will now refer to the arguments that were raised before this Court in the present writ applications which were not argued in the case of Geeta Gupta. 22. A comparison has been made between the provisions of the Constitution of India under Articles 191 and 192 as well as Article 243-F, 243-K (1), 243-K(4) and 243-O. At this stage, I may state that Chapter IX of the Constitution of India was inserted by the 73rd Amendment Act of 1992 introducing the concept of Self-Governance at the grass root level. For the purposes of these cases, the following provisions of the Constitution of India are relevant. For the purposes of these cases, the following provisions of the Constitution of India are relevant. 191- Disqualifications for Membership.–(1) A 243-F.- Disqualifications for membership.– person shall be disqualified for being chosen (1) A personal shall be disqualified for as, and for being, a member of the Legislative being chosen as, and for being, a member Assembly or Legislative Council of a State- of a Panchayat- (a) if he holds any office of profit under the (a) If he is so disqualified by or under any Government of India or the Government of law for the time being in force for the any State specified in the First Schedule, purposes of elections to the Legislature of other than an office declared by the Legisl- the State concerned; ature of the State by law not to disqualify Provided that no person shall be disqualified its holder; on the ground that he is less than twenty- (b) if he is of unsound mind and stands so five years of age, if he has attained the age declared by a competent court; of twenty-one years; (c) if he is an undischarged insolvent; (b) if he is so disqualified by or under any (d) if he is not a citizen of India, or has law made by the Legislature of the State. voluntarily acquired the citizenship of a for- (2) If any question arises (2) If any question eign State, or is under any acknowledgement arises as to whether a member of a of allegiance or adherence to a foreign State; Panchayat has become subject to any of (e) if he is so disqualified by or under any the disqualifications mentioned in clause law made by Parliament. (1), the question shall be referred First (2) A person shall be disqualified for being Information Report for the decision of such a member of the Legislative Assembly or authority and in such manner as the Legislative Council of a State if he is so Legislature of a State may, by law, provide. disqualified under the Tenth Schedule. (1), the question shall be referred First (2) A person shall be disqualified for being Information Report for the decision of such a member of the Legislative Assembly or authority and in such manner as the Legislative Council of a State if he is so Legislature of a State may, by law, provide. disqualified under the Tenth Schedule. 192.- Decision on questions as to disqualifi- 243-K-Elections to the Panchayats- (1) The cations of members.-(1) If any question superintendence, direction and control of arises as to whether a member of a House the preparation of electoral rolls for, and the of the Legislature of a State has become conduct of, all elections to the Panchayats subject to any of the disqualifications menti- shall be vested in a State Election oned in clause (1) of article 191, the qu- Commission, consisting of a State Election estion shall be referred for the decision of Commissioner to be appointed by the the Governor and his decision shall be final. G overnor. (2) Before giving any decision on any such (4) Subject to the provisions of this question, the Governor shall obtain the op- Constitution, the Legislature of a State may, inion of the Election Commission and shall by law, make provision with respect to all act according to such opinion. matters relating to, or in connection with, elections to the Panchayats. 23. As the chart discloses, Article 191 refers to disqualification for being chosen as Members of the Legislative Assembly or Legislative Council of a State in the following conditions as specified thereafter. If Article 191 of the Constitution of India is to be compared with Section 136 of the Act of 2006, it would appear that apart from the four common grounds which are contained in Section 136 (a), (b), (c), (d), (e) and (h), there are other grounds which disqualify a person from being elected to the post of a Mukhiya etc. Article 192 of the Constitution of India specifically provides that if a person elected to the House of Legislature or Assembly is subject to the disqualifications as mentioned in clause (1) of Article 191 of the Constitution of India, the question would be referred to the decision of the Governor and his decision shall be final. Whereas Article 243-F of the Constitution of India deals with the disqualification of Members of a Panchayat. Whereas Article 243-F of the Constitution of India deals with the disqualification of Members of a Panchayat. It provides (a) that he is disqualified by any law which is enforce for the purpose of elections of the Legislature of the State concerned, the proviso thereto indicates that a person would be qualified if he attained the age of 21 years and Article 243-F of the Constitution of India, (b) it further provides that if a candidate incurs any of the disqualification as mentioned in clause (1), the question should be referred for the decision of such authority and in such a manner as the Legislature of the State by law may provide. 24. It would be apparent from the plain reading of Section 243-F of the Constitution of India that the disqualification could arise, if there is a law enacted by the State concerned with respect to any law enacted for the purpose of election; the section also provides that a person would be disqualified by virtue of any law made by the Legislature of the State. Therefore, the power to disqualify a person seeking to be elected to the post of Mukhiya and the like is subject to the law laid down by the State Government for the purpose of holding election. The matter of deciding disqualifications is also subject to the law as enacted by the State Legislature. Much emphasis has been placed on sub-clause (b) of Article 243-O of the Constitution of India. It has been argued that Article 243-O begins with non-obstante clause. For the purpose it would be proper to quote Article 243-O of the Constitution which reads as follows:– “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 Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 25. For the purpose of this case sub-clause (b) to Article 243-O is of importance. For the purpose of this case sub-clause (b) to Article 243-O is of importance. It envisages that “Notwithstanding” anything in the Constitution, no election shall be called in question except (a) by an election petition presented to an authority as prescribed by the Legislature of the State. It is argued by virtue of this Article that there is only one forum for calling in question an election dispute i.e. by filing an election petition. The provisions of the other Chapter IX which deal with the manner and procedure of conducting elections has an over-riding effect, specifically it is argued that Article 243-O would also govern the field in matters relating to disqualification of persons seeking to be a member of the Panchayat. The provisions of sub-section (2) which entitle the State Government to make laws and refer disputes relating to disqualification to an authority as provided under the law framed by the State Government, should necessarily have to be decided by filing of an election petition. 26. For distinguishing and giving a true meaning to the interpretation of the provisions of Articles 243-K and 243-O, in context with the provisions of Section 136 (2) of the Panchayat Act, the Courts may look into the purpose of the enactment of Article 243-K. By virtue of this article, the Constitution has created the State Election commission for conduct of elections, conferred on them vast powers for the purpose of conducting elections, and finally sub-section (4) provides that the Legislature shall have the power to make laws in ‘all matters’ relating to, or in connection with elections to the Panchayats. The laws are in place by virtue of enactment of the Bihar Panchayat Act. As far as qualifications and disqualifications are concerned, they are dealt with in Sections 135 and 136 of the Act. The law distinguish between an election dispute and a dispute arising out of qualification and disqualification of a candidate seeking to be elected as a Mukhiya of a Panchayat, whereas Article 243-O bars the interference of Courts in electoral matters except in the manner as prescribed by the Legislature of State, which is to provide resolution of electoral matters by filing election petitions. Ordinarily, there is a close proximity between non-obstinate clause and the enacting part of the section/article, and the non-obstinate clause will throw some light on the scope and the ambit of the enacting part in case of its ambiguity. Further, the wide amplitude of a non-obstinate clause must be confined to the legislative policy and must be given effect to the extent the Parliament intended and not beyond the same. To hold that all other provisions by which Parliament has given the power to the State Legislature to frame law under Article 243-K are non-est, or that laws to framed would be contrary to Article 243-O, would amount to over reaching the ambit of the intention of the Parliament. 27. At this stage reference may be made to the provisions of sections 137, 138 and 139 of the Bihar Panchayat Raj Act, 2006, as it has been argued that the provisions are in consonance with Article 243-O of the Constitution. Section 137 reads as follows:– “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. “(2) “Parties to the petitioner – A petitioner shall joint as a respondent to his petition- “(a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and “(b) Any other candidate against whom allegations of any corrupt practice are made in the petitioner.” It has been argued that the provisions of section 137 contemplates that an election to an office of Panchayat shall not be called in question except by an election petition in the manner as enumerated in the proviso to section 137. Sub-section (2) specifies the necessary parties to an election petition. Section 138(b) is relevant in this case, which reads as follows:– “138. Bar to interference by Courts in electoral matters.–Notwithstanding anything contained in this Act- “(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 of the Constitution of India shall not be called in question in any court? “(b) No election to any Panchayat shall be called in question except by an election presented to the prescribed authority under this Act.” 28. It has been emphasized that section 138 provides that no election to any Panchayat shall be called in question except by an election petition presented to the prescribed authority. It has been argued that the language of Article 243-O of the Constitution and sections 137 and 138 of the Act of 2006 specify that no election dispute will be entertained except by way of an election petition (emphasis added). The word ‘except’ means (words and phrases – Vol. 15A) to exclude from enumeration, the scope of statement or enactment, a privilege etc; it would also mean ‘not including’. There is no gainsaying that the meaning of the word ‘except’ means that it does not include any other procedure. However, what is to be examined in this case is, whether an election dispute and a dispute with respect to disqualification are one and the same thing? There is no gainsaying that the meaning of the word ‘except’ means that it does not include any other procedure. However, what is to be examined in this case is, whether an election dispute and a dispute with respect to disqualification are one and the same thing? Section 139 of the Act of 2006 is being quoted below as it has been argued that the word ‘prescribed authority’ would refer to the authority prescribed under the proviso to section 137. Section 139 of the Act of 2006 reads as follows:– “139. Grounds for declaring election to be void.–(1) Subject to the provisions of sub section (2) if the prescribed authority is of the opinion – “(a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or “(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or “(c) that any nomination paper has been improperly rejected; or “(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- “(i) by the improper acceptance of any nomination; or “(ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or “(iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or “(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. “(2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied- “(a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; “(b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and “(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidate is not void.” Section 136 (2) and Section 137 define what is meant by prescribed authority. For the purpose of deciding the qualification and disqualification, the authority is the State Election Commission. For other disputes, it is the authority as prescribed under Section 137. 29. Section 139 on the other hand specifies the ground on which an election can be declared as void. It does not restrict itself to Section 137 (b) only. Sub-section (1) of section 139 specifies that subject to the provisions of sub section (2) to section 139, the prescribed authority may declare an election of the returned candidate to be void under the conditions as mentioned in (a) to (d) of sub section 139 of the Act of 2006. This court would emphasize sub-section (2) which qualifies that if in the opinion of the prescribed authority any agent of the returned candidate has been found guilty of corrupt practice, that he was not guilty of corrupt practice, that the candidate had taken reasonable measures for preventing commission of corrupt practice, that in all respect the election was free from any corrupt practice on the part of the candidate or his agent, then the prescribed authority may decide that the election of the returned candidate is not void. Therefore, emphasis has been placed on corrupt practice utilized by the candidate or his agent for the purpose of the prescribed authority holding that an election is void or not void. It has been contended that section 139 includes a qualification or a disqualification of a member chosen under this Act and as such this question can only be decided by filing an election petition and not in any other manner. 30. It has been contended that section 139 includes a qualification or a disqualification of a member chosen under this Act and as such this question can only be decided by filing an election petition and not in any other manner. 30. In this context, it would only be proper to point out that there is some dichotomy between the provisions of Section 136 (2) and Section 139 (1) (a) of the Act of 2006 when it says that one of the grounds for holding an election to be void is if on the date of election, a returned candidate, was not qualified or disqualified. On the basis of this factor, the provisions of Section 136 (2) of the Act cannot be struck down. This Section, firstly speaks of the ground for holding that the election is void. Sub-section (2) of Section 139 uses the term “prescribed authority” for the purpose of deciding whether the agent of the returned candidate is guilty of corrupt practices. Sub-section (1) (a) of Section 139 must be read harmoniously so as to make the provisions of Section 136 (2) of the Act of 2006 workable. It should be read in a manner so as to achieve the purpose for which the section was introduced in the Act. Therefore, there is no real conflict between the provisions of Section 136 (2) and Section 139 of the Act of 2006. 31. This court will consider the submissions in this manner that before the amendment of section 136 of the Act of 2006, the only provisions with respect to the prescribed authority was under the proviso to section 137 of the Act of 2006. With the introduction of section 136(2), the State Election Commission has been given certain powers to decide the question of qualification and disqualification which is distinguishable from an election dispute. With the introduction of section 136(2), the State Election Commission has been given certain powers to decide the question of qualification and disqualification which is distinguishable from an election dispute. Turning to the language of section 136(2) of the Act of 2006 which has been quoted earlier in this order, it specifically states that any question arising out of whether a member of Panchayat at any level including the Mukhiya of Gram Panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Katchahry or Panch of Gram Katchahry was disqualified before election or has incurred disqualification after the election as provided under section 135 or sub section (1) of section 136, the question would be referred for a decision to the State Election Commission. Thereby, the legislature has distinguished between disputes arising out of qualification and disqualification and a dispute arising out of an election process or manner of holding the election. The provisions of Article 243-F (2) of the Constitution may be noted in this context wherein it has been provided that if any question arises as to whether a member of Panchayat has become subject to any disqualification mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as a legislature of the State, by law, provide. Therefore, the power to legislate with respect to deciding the qualification or disqualification of members of local bodies finds it source in Article 243-F (2) of the Constitution. This aspect may further be explained by referring to the provisions of Article 243-K, sub clause (4) of which reads as follows:– “Subject to the provision of this Constitution the Legislature of a State may, by law, make provisions with respect to matters relating to, or in connection with, election to the Panchayats.” Thus, the source of making the law cannot be doubted. 32. 32. Examining this question from the aforesaid perspective, it may be noted that there is a difference in the relief sought for before the State Election Commission, when there is a challenge to the qualification or where it is contended that the candidate concerned was/is disqualified to hold the post of a local body, the State Election Commission can merely pass an order that the person was duly qualified and does not possess the disqualification as alleged or can hold that the person was not qualified or was disqualified on any of the grounds mentioned in section 136(1) of the Act of 2006 to hold the post of a Mukhiya. The State Election commission does not set aside or hold that the election is void. The scope of the relief is different, although the ultimate result may be the same but the reasons are clearly distinguishable. The purpose of the State legislature in enacting these provisions as stated earlier was after the judgment delivered in the case of Poonam Kumari (supra) where the division bench has distinguished between the election dispute and a disqualification incurred by a candidate. 33. Attention may be drawn to the fact that sub section (2) of section 136 qualifies and distinguishes between a matter relating to disqualification and matters relating to an election dispute. The proviso to sub section (2) of section 136 specifically bars the State Election Commission to entertain any complaint or petition, the 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 as well as Section 139 of the Act of 2006. The question of disqualification goes to the root of the matter and a person who is ab initio disqualified either before the election is held or is held to be disqualified after the election is held, should not be allowed to occupy a post as it would be a fraud on the people and on the Constitution. 34. Referring to the arguments made in passing to the non-obstante word ‘notwithstanding’ used in Article 243-O of the Constitution, the question has been answered by this court by distinguishing between an election dispute and a matter arising out of qualification/disqualification to hold a post. 34. Referring to the arguments made in passing to the non-obstante word ‘notwithstanding’ used in Article 243-O of the Constitution, the question has been answered by this court by distinguishing between an election dispute and a matter arising out of qualification/disqualification to hold a post. A clause beginning with notwithstanding anything contained in an Act, or in this case Constitution, when appended to a section/Article in the beginning is ordinarily mean to give an overriding effect to the provisions of an Act, Article mentioned in the non-obstante clause. However, it should be read harmoniously and unless there is a conflict, the court should not interfere by holding a particular section to offend the provisions of the said clause/section/Article. In this particular case, as indicated, the distinction lies in the word ‘election dispute’ as opposed to a dispute arising out of ‘qualification/disqualification’. The Constitution has provided that the State legislature has the power to make laws with respect to qualification and disqualification under Article 243-F as well as make laws and legislate with respect to matters relating to disputes raised during an election under Article 243-O of the Constitution. Thus, there is no conflict with the provisions of Article 243-F (2) and Article 243-O of the Constitution. 35. Counsel for the petitioners submit that section 136(2) of the Act of 2006 should be read down to make it workable so that it is in consonance with the provisions of sections 137, 138 and 139 of the Act of 2006. For this purpose, counsel for the petitioners has relied on the case of Brij Kishore Singh Vs. State of Bihar [ 1997 (1) PLJR 509 ]. In this case the court was interpreting the provisions of section 35 of the Bihar Universities Act which provides that the posts in the university and colleges require a sanction of the State Government. The court held that once the State government had approved the staffing pattern in the Universities of Bihar, no further approval was required for the purpose of holding that the post were in accordance with the sanctioned strength. It was held that in the present case in view of the inherent ‘unworkability’ of the impugned provisions regarding prior approval of the State Government, the provisions can be read down in the manner indicated above. It was held that in the present case in view of the inherent ‘unworkability’ of the impugned provisions regarding prior approval of the State Government, the provisions can be read down in the manner indicated above. Thus, in the facts of the aforesaid case, the Court rightly applied the principle of reading down in order to make the provision workable. This case does not apply in the facts of the present case as there is a clear distinction between an election dispute and a person who has the qualification or is disqualified for standing in the election. 36. It was also contended that the use of the word ‘manner’ has a special meaning in Article 243-O of the Constitution. It indicates that an election petition can only be filed in such manner as is provided for by or in any law made by the State legislature. The manner in which an election dispute is to be filed has been described in section 137 of the Act. It really needs no explanation to hold that the word „manner’ and ‘form’ refer only to the mode in which the thing is to be done (SHO UDS Shrouds’ Dictionary). It does not require any reference to a case law to explain this word. However, it is not very relevant as a distinction has already been made between an election dispute and a dispute arising regarding a qualification or disqualification. 37. As indicated earlier in this order an argument was raised Article 243-O of the Constitution bars the jurisdiction of the High court under Article 226 to hear matters arising out any type of dispute which may arise in an election. Referring to the case of Election Commission Vs. Venkata Rao [AIR 1953 SC 510], it was argued that the Supreme court has held that the High Court was not competent under Article 226 to issue any prerogative writ to the appellant Commission. The facts of the case indicate that a writ was filed in the High court contending that Article 192 of the Constitution was applicable only where a member became subject to a disqualification after he was elected but where, as the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an election tribunal. The case was under the Representation of Peoples Act. The case was under the Representation of Peoples Act. There is a bar under section 7 of the said Act to contest election before five years had elapsed after being awarded a punishment by the Sessions Judge for a criminal offence. The question of disqualification was raised before the Speaker of the Assembly who referred the question to the Governor of Madras, which was forwarded to the Commission for its opinion as required by Article 192 of the Constitution. The reference to the Commission was challenged by the respondent candidate. The candidate also challenged the matter before the High court asking for a direction prohibiting the Commission from proceeding with the reference made by the Governor. A rule was issued in favour of respondent Venkata Rao. A preliminary objection was raised before the Supreme court by the State that the High Court had no power to interfere in election disputes. Ultimately, the Supreme court held that Articles 193 and 192 (1) of the Constitution were applicable only to disqualification to which a member becomes subject after he is elected. As such, neither the Governor nor the Commission had the power to interfere into the disqualification that arose long before his election. It was also held that application under Article 226 of the Constitution was not maintainable. It has, therefore, been argued that the High court cannot interfere by issuing writs of quo warranto even if the person occupying a constitutional post is not qualified or is disqualified under any law to hold such post. 38. The order passed in the case of Venkata Rao (supra) was subsequently considered by a judgment of the Supreme Court in the case of K. Venkatachalam Vs. Swamicklan [(1994) 4 SCC 526]. The facts of the case reveal that a Division Bench of the Madras High court declared that K. Venkatachalam was not qualified to sit as a member of the Legislative Assembly in Tamil Nadu as he did not possess the basic qualification prescribed under clause (c) of Article 173 of the Constitution. Swamicklan [(1994) 4 SCC 526]. The facts of the case reveal that a Division Bench of the Madras High court declared that K. Venkatachalam was not qualified to sit as a member of the Legislative Assembly in Tamil Nadu as he did not possess the basic qualification prescribed under clause (c) of Article 173 of the Constitution. After discussing the rival contention of the parties including various judgments with respect to the power of the High Court to interfere with matters relating to election disputes including disqualification of the candidate in question and after taking into account the provisions of Articles 190 to 193, it was held that Article 226 of the Constitution is couched in the widest possible term and unless there is a clear bar to the jurisdiction of the High court, its power under Article 226 of the Constitution can be exercised when there is any Act which is against any provisions of law or violative of constitutional provisions and that recourse cannot be had to the provisions of the Act for appropriate relief. 39. Although in this case the virus of section 136(2) of the 2006 Act has not been challenged in this court but it is well settled that introduction of an amendment in a section should be examined in the proper context. In this context, reference may be made to the case of B.K. Garad Vs. Nasik Merchants cooperative Bank Limited, [ AIR 1984 SC 192 ]. Section 73(b) was added in the Maharashtra Cooperative Societies Act, 1960 which introduced that there should be two seats reserved, one for members belonging to the scheduled caste or scheduled tribes and one for the weaker section of the society. The election held in the bank was challenged on the ground that the provisions of section 73B had not been followed. A division bench of the Bombay High court held that there was some confusion between the procedure for election prescribed in the rules and the by-laws and the one prescribed in section 73B and, therefore, the Collector did not take steps to hold election to the reserved seats. In this case the amendment was upheld and the election quashed. A division bench of the Bombay High court held that there was some confusion between the procedure for election prescribed in the rules and the by-laws and the one prescribed in section 73B and, therefore, the Collector did not take steps to hold election to the reserved seats. In this case the amendment was upheld and the election quashed. The court has to examine as to what was the situation prior to the provisions introduced by the legislature, it must examine what was the mischief or defect, it seeks to cure before introducing the provisions to judge whether it was remedial and the reasons for such remedy. 40. It is not disputed that prior to the amendment of section 136 of the Act by introducing section 136(2) of the 2006 Act, the only procedure for challenging an election of a candidate was by filing an election petition. The procedure for filing an election petition takes a long time to conclude and more often than not by the time it is concluded, the term of the candidate comes to an end. Under such circumstances the courts find that where there is a dispute with respect to ‘mal’ and ‘corrupt’ practice allegedly committed by a returned candidate, an election petition would be the appropriate remedy as it requires that evidence be recorded and sometimes require both documentary and oral evidence. The question of disqualification, however, is well defined. There are laws in place which defines a disqualification under the Act. The aim of any legislation of this nature is obviously to not allow a person who is not qualified or disqualified as per the provisions of Sections 135 and 136(1) of the 2006 Act, to hold the post even for a day. An election petition before the State Election Commission is both an effective and efficacious remedy. 41. Counsel for the petitioner has relied on two judgments delivered by the High Court at Allahabad and the Uttrakhand High Court. The Allahabad High Court has struck down the provisions of sub clause (iii-a) of clause g of sub section (1) of section 95 of the U.P. Panchayat Raj Act. The facts of this case were that the returned candidate had won the election on the basis of the fact that the seat was a reserved seat. His caste certificate was cancelled by the Tehsildar, Deoria by an ex-parte order. The facts of this case were that the returned candidate had won the election on the basis of the fact that the seat was a reserved seat. His caste certificate was cancelled by the Tehsildar, Deoria by an ex-parte order. The candidate challenged the order which was subsequently set aside and it was held that he belonged to a backward class. The District Magistrate issued a show-cause and thereafter without looking into the reply of the candidate, cancelled his order for removal of the candidate from the post of Pradhan of the village Panchayat. Similarly, the order of the District Magistrate has been challenged in the case of Hori Lal Vs. State of U.P. [AIR 2002 Allahabad 257]. On facts, it would appear that the order of the District Magistrate was not in accordance with law. However, the learned Single Judge has further held that Article 243 (O) of the Constitution starts with a non obsante clause and the State Government does not have the jurisdiction to remove the elected candidate from the said post. 42. In the case of Puja Rajpur Vs. State of Uttrakhand [AIR 2010 Uttrakhand] the vires of sub clause (iii-a) of clause (g) of sub-section (1) of section 95 of U.P. Panchayat Raj Act, 1947 adopted by Uttranchal Adoption and Modification Order, 2001 has been challenged on the ground that it is ultra vires to Article 243(O) of the Constitution of India. The facts are that the District Magistrate, Dehradun issued a show-cause to the petitioner as to why she may not be removed from the post of “Gram Pradhan” on the ground of submission of false declaration and also on the ground that she had furnished her caste certificate which was obtained by her by playing fraud. The Court did not decide the issue regarding validity of the order by which the caste certificate had been cancelled. The Court did not decide the issue regarding validity of the order by which the caste certificate had been cancelled. The provisions of sub section (iii-a) of clause (g) of sub-section (1) of section 95 of the Panchayat Raj Act aforesaid provides that the State Government may remove a Pradhan, Up-Pradhan or Member of a Gram Panchayat or joint committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyay Panchayat if he has taken benefit of reservation under sub-section (2) of section 11(a) of sub-section (5) of Section 12, as the case may be on the false declaration subscribed by him that he is member of a scheduled caste, the scheduled tribe or backward classes as the case may be. Section 12(c) of the U.P. Panchayat Raj Act provides that the election of a person on any of the aforesaid posts as described above shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed. One of the grounds for challenging the election is by the improper acceptance or rejection of any nomination. The Court held that the provision of sub clause (iii-a) of clause (g) of sub-section (1) of section 95 of the Panchayat Raj Act was ultra vires of Article 243(O) of the Constitution of India. These cases may be distinguished on the ground that there is no provision under the U.P. Panchayat Raj Act such as section 136 (2) of the Bihar Panchayat Raj Act. In any event, the question of acceptance or rejection of nomination would not come within the criteria “of a disqualification”. 43. I may in passing refer provisions of the guidelines issued by the State of Bihar while issuing caste certificate. The Circle Officers in Bihar have been given the power to issue caste certificate which can only be cancelled by him. Thus, these cases are distinguishable to the extent aforesaid. However, if the nomination is rejected on any other ground apart from the grounds mentioned in Sections 135 and 136 (1) of the Bihar Panchayat Raj Act, it could only be challenged by filing an election petition. 44. As already pointed out both these cases are distinguishable on the ground that there is no provision such as Section 136(2) of the Bihar Panchayat Raj Act in the U.P. Panchayat Raj Act. 44. As already pointed out both these cases are distinguishable on the ground that there is no provision such as Section 136(2) of the Bihar Panchayat Raj Act in the U.P. Panchayat Raj Act. In this context however, it would be relevant to quote paragraph 36 of the order passed in the case of Hori Lal Vs. State of U.P. [AIR 2002 Allahabad 257] which distinguishes between a pre-election disqualification and a post-election disqualification and vests the power with the State Election Commission to decide the disqualification. Paragraph 36 is quoted below:– “36. Similarly, a disqualification of a person elected as Office bearer of Village Panchayat if it exists at the time of filing of nomination and continue to exist up to declaration of his result, then such disqualification is to be agitated by way of filing an election petition before the Election Tribunal under Section 12-C of U.P. Panchayat Raj Act but if such disqualification is earned by a person after filing of nomination paper and declaration of results, then State Legislature, if feels, may make law prescribing authority to undergo whether a person is disqualified to continue as a member of Panchayat or not and such authority before passing an order disqualifying an elected office bearer of a village Panchayat is to obtain opinion of the State Election Commissioner and such authority shall be bound to act according to such opinion tendered by a State Election Commissioner and an argument contrary to it is not acceptable to maintain dignity of conduct of election by independent Election Commissioner and declaration of results by Returning Officers of Village Panchayats.” 45. As mentioned aforesaid, the facts of these two cases cannot be the basis of barring the Commission to hear disputes relating to qualification or disqualification under Section 136 (2) of the Act of 2006. 46. This Court, therefore, concludes that the State Election Commission has the power to entertain and decides issues relating to qualification and disqualification of a returned candidate under Section 136 (2) of the Bihar Panchayat Act,2007. CWJC No. 20273 of 2011 47. 46. This Court, therefore, concludes that the State Election Commission has the power to entertain and decides issues relating to qualification and disqualification of a returned candidate under Section 136 (2) of the Bihar Panchayat Act,2007. CWJC No. 20273 of 2011 47. Apart from the legal issues which have already been decided by a Bench of this Court and referred to above, wherein this Court has held that the State Election Commission has the power to hear disputes regarding matters relating to the issues under Sections 135 and 136(1) of the Act of 2006 and decide the powers vested by way of provisions of Section 136(2), whether it concerns a dispute arising pre-election or post-election. 48. In the present case, a complaint was filed both before the State Election Commission (which is prior in time) and before the Munsif by way of an election petition. It goes without saying that the same man cannot take recourse to two forums. He has to choose one or the other. Since respondent no. 7 has preferred to pursue the matter before the State Election Commission, the election petition would automatically become infructuous. 49. The dispute in this case arises out of a disqualification inasmuch as it is alleged by the complainant-respondent no. 7 that the petitioner is below the age of 21 years and is thus disqualified from contesting the election to the post of Mukhiya. 50. The petitioner filed his nomination for the post of Mukhiya of Panchayat Raj Tetariya, which was reserved seat for the scheduled caste. He succeeded in the election and was declared as returned candidate. The complaint petition has been filed on the basis of a document obtained from the Bihar School Examination Board showing the petitioner had taken the matriculation examination through the Government S.R.B. High School, Koirigawan Balakothi, East Champaran. This certificate indicated that the petitioner could not succeed in the examination and, therefore, was shown as non-matric. The date of birth mentioned in the certificate was 2.1.1992. The certificate was duly signed by the Incharge Headmaster. In support of the certificate, respondent no. 7 also produced a document under the Right to Information Act which also indicated that the petitioner had sat for the exams and not succeeded, his date of birth was 2.1.1992. 51. In reply to the allegations levelled against the petitioner he has produced three documents. In support of the certificate, respondent no. 7 also produced a document under the Right to Information Act which also indicated that the petitioner had sat for the exams and not succeeded, his date of birth was 2.1.1992. 51. In reply to the allegations levelled against the petitioner he has produced three documents. One is the copy of the admission register of Rajkiya Prarthmic Vidyalaya, Mushar Toli where the date of birth of the petitioner is mentioned as 18.3.1987. It is submitted on behalf of the petitioner that he received his education till Class V from the said school and that he had initially taken admission in the school in question and, therefore, the date of birth mentioned in the admission register is the correct date of birth. 52. On the date on which this case was taken up by the State Election Commission, the petitioner had prayed for one month’s time on the ground that his counsel Sri Sri Prakash Srivastava was unwell. The State Election Commission rejected the time petition on the ground that Sri Sri Prakash Srivastava had not filed Vakalatnama on behalf of the opposite party rather the Vakalatnama was filed on behalf of Rajiv Ranjan and Sri Rajesh Kumar Singh. In this context, I may point out that it is not essential that the person who signs the Vakalatnama should also appear and argue the case. In a given case the person who has signed the Vakalatnama may instruct a person senior to him to appear in the case, therefore, the order impugned was passed ex-parte. While passing the order impugned, the State Election Commission has not reverted or even referred to the facts from the show-cause filed on behalf of the petitioner. Obviously no argument could be made on behalf of the petitioner regarding the allegations levelled against him. It is obvious that the petitioner did not get an opportunity to be heard in this matter. It would have been proper for the State Election Commission which had granted a short time, as a last chance to the petitioner to argue the mater to have granted one last chance so that the petitioner could be properly represented. It is obvious that the petitioner did not get an opportunity to be heard in this matter. It would have been proper for the State Election Commission which had granted a short time, as a last chance to the petitioner to argue the mater to have granted one last chance so that the petitioner could be properly represented. It would have also been proper for the State Election Commission to get the certificate produced on behalf of the complainant verified from the Bihar School Examination Board, as it was produced and verified by the Headmaster, even by the Block Development Officer who has no personal knowledge regarding the aspect could not produce a certificate, it is not the proper procedure for taking away a right of a returned candidate who has get the popular support of the locality. Our constitution gives great importance to persons who are elected by the people as their representatives at different levels and the authority examining the disqualification alleged should be absolutely sure that the allegations are proved beyond reasonable doubt, before passing an order declaring that a candidate is disqualified unless there is impeccable evidence to support such findings. 53. In the result, this Court remands this case back to the State Election Commission. The petitioner/respondent no. 7 is/are directed to produce this part of the order within a period of one week on its receipt before the State Election Commission. The State Election Commission should immediately get the certificate verified and call for the original copy of the certificate from the Board Office by special messenger for verification and after receipt of the report, pass appropriate orders after hearing both the parties. It is expected that the matter shall be concluded within a period of one month after receipt of the report. This writ application is disposed of with the aforesaid observations. CWJC No. 1829 of 2012 54. Considering the merits of this case separately, the State Election Commission has not passed a final order in this case. There are various means of determining the age of a person, the procedure for determination has not been prescribed anywhere except through a judicial pronouncement. CWJC No. 1829 of 2012 54. Considering the merits of this case separately, the State Election Commission has not passed a final order in this case. There are various means of determining the age of a person, the procedure for determination has not been prescribed anywhere except through a judicial pronouncement. Usually, while determining the age of a Juvenile, it has been held by the Supreme Court that (a) (i) the matriculation or equivalent certificates, if available; and in absence thereof; (i) the date of birth certificate from the School (other than the first attended); and in absence thereof (iii) the birth certificate given by a Corporation or a Municipal Authority or a Panchayat, and only in absence of either (i), (ii) and (iii) of (a), the medical opinion will be sought from a duly constituted Medical Board, which may declare the age of a juvenile or child. There being no other rules or regulations by which the age of a CHILD could be determined. The State Election Commission has to consider these aspects. 55. I may point out that the observation of the State Election Commission seems to be tilted in favour of the admission register produced by the complainant. That alone cannot be a basis for holding that the age of the candidate as recorded in the said admission register, is the correct age unless it discloses that the candidate continued to pursue his/her studies in the said school and appear in the Board’s Examination through that school. 56. Another factor which ought to be taken into consideration is the fact that when the electoral roll was prepared and nominations were filed, no objection was made by the complainant. However, all the facts as have been produced would be subject to enquiry and determination. There must be impeccable materials before the State Election Commission before it can come to a finding that the petitioner was underage at the time of filing her nomination. Therefore, the State Election Commission should conduct an enquiry in regard to the documents produced on behalf of the complainant as well as the petitioner before coming to any conclusion in the matter. This writ application is disposed of with the aforesaid observations and directions. CWJC No. 1831 of 2012 57. This writ application has been filed by the candidate who has been elected as Member of the Panchayat Samiti, Bakhtiyarpur Block, District Patna. This writ application is disposed of with the aforesaid observations and directions. CWJC No. 1831 of 2012 57. This writ application has been filed by the candidate who has been elected as Member of the Panchayat Samiti, Bakhtiyarpur Block, District Patna. The petitioner has filed this writ application claiming that the State Election Commission should not entertain the complaint of respondents 7 and 8. 58. This Court has already held that the State Election Commission is competent to consider the question of disqualification as mentioned under Section 136 (1) of the Bihar Panchayat Raj Act, 2006. 59. The issue involved in this case is whether the petitioner was 21 years of age when she stood for election in the year 2011? 60. The petitioner was earlier election as a Pramukh in the year 2006. Her election was challenged by filing a writ application on behalf of one Jhuni Lal Rai and Smt. Kaushalya Devi. In this case, it would appear that Shanti Devi i.e. respondent no. 8 has filed Election Case No. 102 of 2011 and Bhagirath Prasad Rail has filed Election Case No. 105 of 2011 on the same grounds as mentioned in the complaint petition filed before the State Election Commission. 61. It is well settled law that the respondent cannot pursue two forums, they have to choose one or the other forum i.e. they either pursue the case before the State Election Commission or the election petition filed on their behalf. 62. It may be noted that Vidya Rai who had challenged the earlier election of the petitioner was the petitioner before this Court challenging the election of this petitioner in the year 2006. Therefore, it appears that Bhagirath Rai, Vidya Rai and Shanti Devi have been chasing the petitioner since 2006. 63. The question as to whether the petitioner is underage or not, cannot be decided at this stage by the Writ Court. The document on which the petitioner relies is the certificate from Ganesh Adarsh Sanskrit High School, Bakhtiyarpur from where she has passed her Madhyama Examination. The petitioner has also produced the electoral roll of the year 2006 and 2011 to support the fact that her age has been mentioned as 21 years and 26 years in the said electoral rolls. 64. The petitioner has also produced the electoral roll of the year 2006 and 2011 to support the fact that her age has been mentioned as 21 years and 26 years in the said electoral rolls. 64. The respondents, on the other hand, rely on a certificate of the Bihar School Examination Board which shows that her date of birth is 22.05.1991. In this regard, it has been submitted on behalf of the petitioner that the petitioner was expelled from the examination held by the Bihar School Examination Board in the year 2005. It is submitted on behalf of the petitioner that her actual date of birth is 08.12.1984 and because she was expelled, she did not bother to get the date of birth corrected as she subsequently appeared for the Madhyama Board Examination in the year 2006. 65. This Court finds it really unbelievable that a child of 16 year could have stood for elections, as the very appearance of a girl of 16 years is sufficient ground for the voters to object to the age, but this observation is not the clinching factor, but certainly needs consideration. 66. Bhagirath Prasad, respondent no. 7 has filed a supplementary counter affidavit enclosing the nomination paper of the petitioner which indicates that the petitioner Poonam Kumari has not disclosed her age while filling the nominations. 67. The question of wrong acceptance of a nomination does not come within the grounds mentioned under Section 137 (1) of the Bihar Panchayat Raj Act, 2006 which can be heard by the State Election Commission, rather it would come within the provisions of sub-section (d) (i) of Section 136 (i) of the Bihar Panchayat Raj Act, 2006 i.e. “improper acceptance of any nomination”. In such cases, the State Election Commission does not have the jurisdiction to decide the issue; rather the procedure is by filing an election petition. However, if it is brought on record, as one of the documents in support of the other documents, it may be considered by the Commission. 68. Thus, this aspect of the matter cannot be considered by the State Election Commission for a limited purpose. It will be open to respondent no. 7 to choose the forum which he wishes to pursue. This writ application is disposed of with the aforesaid observations. CWJC No. 2381 of 2012 69. 68. Thus, this aspect of the matter cannot be considered by the State Election Commission for a limited purpose. It will be open to respondent no. 7 to choose the forum which he wishes to pursue. This writ application is disposed of with the aforesaid observations. CWJC No. 2381 of 2012 69. The question as to whether the State Election Commission has the power to decide the matters relating to disqualification of a candidate to stand for election of Mukhiya and alike have been discussed as above and this Court has come to the conclusion that the State Election Commission has the power to decide the issues of disqualification. 70. In the present case, the petitioner is aggrieved by a notice issued to him by the State Election Commission challenging his election to the post of Mukhiya of Baghaili Gram Panchayat, Triveniganj Block, district Supaul. The petitioner has already submitted his written statement before the State Election Commission. 71. The complaint against the petitioner is that he does not belong to the Most Backward Class of Fakira (Muslim). The petitioner has submitted ample documents which are required to be examined by the State Election Commission, which are his caste certificate, genealogical table, copy of nomination paper, Khatiyan etc. To show that he belong to Fakir/Fakira caste. 72. The respondent has relied on Title Suit No. 23 of 2008 (Murtaza Sah Vs. Land Settlement Officer) which according to the petitioner is a forged document because Murtaza Sah died on 03.11.2002. Therefore, he could not have filed Title Suit No. 23 of 2008 under the B. T. Act. The petitioner has annexed the death certificate of Murtaza Sah. 73. It may be noted that the mere fact that the surname of the father/grandfather of the petitioner is “SAH”, has no meaning. There is no such caste as “SAH” in the Muslim Community. “SAH” is adopted as title, but cannot be a ground for holding that it is the caste of the petitioner. This is also certified by the Circle Officer vide Annexure-7. 74. I may point out that the Supreme Court has held in the case of Ramesh Bhai Dabhai Vs. The State of Gujarat and Another (Civil Appeal No. 654 of 2012) that a woman will be governed by the caste of her parents except in cases if she is married with a member of the Scheduled Castes or Scheduled Tribes. 74. I may point out that the Supreme Court has held in the case of Ramesh Bhai Dabhai Vs. The State of Gujarat and Another (Civil Appeal No. 654 of 2012) that a woman will be governed by the caste of her parents except in cases if she is married with a member of the Scheduled Castes or Scheduled Tribes. This case has been referred to as the guidelines to the State Election Commission as several matters with respect to this question arise before the State Election Commission. If the State Election Commission is not prima facie satisfied with the documents of the petitioner, and perhaps rely on the documents of the respondents in the matter of Title Suit No. 23 of 2008, which is supposedly a forged document, then it will involve disputed facts and perhaps it may not be possible for the State Election Commission to address this issue, depending on the facts placed before the State Election Commission. 75. The petitioner, is therefore, directed to appear and co-operate with the State Election Commission with respect to the Election Case No. 33 of 2011. This writ application is disposed of with the aforesaid observations and directions. CWJC No. 19736 of 2011 76. The facts of this case that a complaint was filed by respondent no. 6 that the petitioner who is a returned candidate and the Member of the Sono Panchayat Samiti has wrongly described himself as a Tamaria by caste. It is alleged that he is Tamoli by caste and as such he was not qualified to contest the elections under the proviso of Section 135 of the Act of 2006. The complaint was filed before the Commission. The Circle Officer who is the authority to grant the caste certificate had issued a caste certificate stating that the petitioner was Tamaria by caste, which comes under the category Extremely Backward Class. The matter was referred to the District Magistrate for enquiry. The District Magistrate, Jamui vide Annexure-3 dated 24.07.2011 has come to the conclusion that the petitioner was Tamoli by caste and on the basis of the aforesaid order, the matter is to be heard before the Commission. 77. The matter was referred to the District Magistrate for enquiry. The District Magistrate, Jamui vide Annexure-3 dated 24.07.2011 has come to the conclusion that the petitioner was Tamoli by caste and on the basis of the aforesaid order, the matter is to be heard before the Commission. 77. The order of the District Magistrate indicates that the petitioner in fact, could not, in support of his claim, produce all the documents which he intended to reply on, and as such on the basis of the evidence of the respondent Ram Khelawan Mandal, the District Magistrate has held that the petitioner is Tamoli by caste which comes within the category of Backward Class. 78. The election process under the Constitution of India is an important right to be exercised by the citizens of India. Once a person has been returned as a candidate, the Courts in number of decisions have held that any dispute relating to the corrupt practices by a returned candidate or his agent ought to be challenged by filing an election petition before the appropriate authority under the Act, whereas the Act of 2006 envisages that the question of qualification and disqualification can be heard and decided by the Commission under Section 136 (2) of the Act of 2006. Exercising this authority, the Commission had sent the matter for enquiry to the District Magistrate. The order of the District Magistrate, Jamui has serious consequences as the findings thereof would be considered by the Commission as one of the important considerations for holding that a candidate was disqualified on the ground that he did not belong to the caste for which the seat was reserved. Such matters have to be considered and decided in some details by the District Magistrate as per the guidelines of the State Government in respect of granting caste certificate. The revenue records and the entries made in transactions of lands etc. as well as the caste of the forefathers of the candidate must be taken into consideration in their proper perspective. 79. I find that the enquiry conducted by the District Magistrate, Jamui has not considered the documents of the petitioner. Sufficient opportunities ought to have been granted by the District Magistrate, Jamui to the petitioner. There should be no hurry regarding the conclusion of the enquiry as the consequences are serious and long lasting. 80. 79. I find that the enquiry conducted by the District Magistrate, Jamui has not considered the documents of the petitioner. Sufficient opportunities ought to have been granted by the District Magistrate, Jamui to the petitioner. There should be no hurry regarding the conclusion of the enquiry as the consequences are serious and long lasting. 80. During pendency of this writ application, the Commission has disposed of the matter by its order dated 18.01.2012. Relying on the Enquiry Report of the District Magistrate, the Commission has held that the petitioner does not belong to Extremely Backward Caste. 81. The District Magistrate has relied on the documents produced by respondent no. 6. It would appear that respondent no. 6 has produced some revenue records which have also been annexed in this writ application as Annexure-B series, which shows that his grandfather was Tamoli by caste which does not come within the Extremely Backward Class and as such he had given a wrong declaration regarding his caste. However, the seat was reserved for the Extremely Backward Category only, the petitioner could not have stood for the election for the post of Mukhiya. Annexure-B series indicates that there are some sale deeds supposedly executed by the mother of the petitioner describing herself as Tamoli. These documents if correct would obviously have an important bearing on the issue in question i.e. confirmation of the caste of the petitioner. However, production of photocopy cannot be relied upon. It would have been proper for the District Magistrate to call for the revenue records and the register of sale deeds from the Office of the Registrar or get a certified copy of the same deeds from the Registrar at the cost of the petitioner before passing an order holding that the petitioner is Tamoli by caste. 82. I would, therefore, direct the Commission to ask the District Magistrate, Jamui to rehear the matter after allowing both the parties to produce their documents. This writ application is disposed of with the aforesaid observations and directions.