ORAL ORDER Heard learned counsel for the petitioners and learned counsels for the State Election Commission and for respondent Nos. 6 and 7. 2. The petitioners, who are husband and wife, seek a direction upon the respondents to produce on record the letter dated 12.5.2012 issued by the State Election Commission and the letter dated 13.5.2012 issued by the District Election Officer, Municipality, Madhepura by which they had directed the respondent No.5, the Returning Officer, Madhepura Municipal Council Election, 2012 to reject the nomination paper of the petitioners which they had filed to contest Madhepura Municipal Council Election, 2012 for the post of Ward Councilors from Ward Nos. 19 and 26 respectively which was accepted by the Returning Officer on the date of scrutiny and symbol was also allotted to the petitioners. They further seek quashing of the order dated 13.5.2012 passed by the Returning Officer by which he had rejected the nomination papers of the petitioners on the ground that they had more than two living children. 3. The facts of this case are not in dispute. Briefly stated, both the petitioners had filed their respective nomination papers to contest the Municipal Election, 2012 from Madhepura Nagar Parishad on the post of Ward Councillor for Ward Nos. 19 and 26 respectively by filing their nomination papers on 24.4.2012. Both the petitioners were called for scrutiny on 26.4.2012. 4. It is the stand of the respondents that certain persons had raised objection to their nomination on 26.4.2012 before the Returning Officer and had filed their written objection but the same was not taken into consideration by the Returning Officer and therefore, they had faxed the said written objection to the State Election Commission on 26.4.2012 itself at 1.16 P.M.. The admitted fact however, remains that the Returning Officer upon scrutiny overruled the objection. It is admitted by the petitioners also that one Saibun Khatoon had filed objection regarding the candidature of petitioner no. 2 on the ground that she had more than two living children but no document was produced before the Returning Officer at the time of scrutiny in support of her objection that the 3rd child of the petitioner was born after 4.4.2008. The petitioner no. 2 denied the allegation made in the objection by filing an affidavit that the last child was born before 4.4.2008 and therefore she was not disqualified. The petitioner no. 2 denied the allegation made in the objection by filing an affidavit that the last child was born before 4.4.2008 and therefore she was not disqualified. The Returning Officer overruled the objection and the nominations of the petitioners were accepted. After expiry of last date of withdrawal of nomination form, he published the list of contesting candidates in proper proforma in which the names of the petitioners were also mentioned in the list of contesting candidates in their respective wards and both of them were allotted separate election symbols by the Returning Officer. Thereafter by letter dated 12.5.2012 issued by the State Election Commission, the District Magistrate-cum-District Election Officer (Municipality), Madhepura was informed that on the basis of complaint received, it was found that the petitioners had filed false affidavit regarding the date of birth of their 3rd child who was in fact born on 8.9.2010. Accordingly, he was directed to pass a reasoned and speaking order rejecting the nomination papers of the petitioners and remove their names from Form 14 B as also their symbols, whereas the names of the other contestants shall remain as it is and only Sl. No. would change and accordingly, ballot papers should be printed. It was further directed that FIR should be lodged under the provisions of the Indian Penal Code and the Bihar Municipal Act against the petitioners. The District Election Officer and the Returning Officer acted accordingly and the nomination papers of the petitioners were rejected and their names removed from the Form 14B and they were not allowed to contest the election. Aggrieved by the same the petitioners have approached this Court. 5. Learned counsel for the petitioners relies upon the provisions of Rules 46(4) and 47 of the Bihar Municipal Election Rules in support of his stand that the actions of the respondents State Election Commission, District Election Officer as also the Returning Officer are illegal and without jurisdiction as the order of the Returning Officer after scrutiny is a final order and it is not open to either the Returning Officer or any of his superior authorities to interfere with the same. It is contended that after the nomination has once been accepted then the only remedy of any person aggrieved is by filing an election petition under Section 479 of the Bihar Municipal Act. It is contended that after the nomination has once been accepted then the only remedy of any person aggrieved is by filing an election petition under Section 479 of the Bihar Municipal Act. It is thus, submitted by learned counsel that the impugned orders passed by the respondents being without jurisdiction are fit to be set aside. 6. In support of his aforesaid stand, learned counsel for the petitioners relies upon a decision of a Division Bench of this Court in the case of Prafful Chandra Sudhanshu Vs. The State Election Commission (Municipality) & Ors.: 2013 (2) PLJR 114 , in paras 6 to 9 of which it has been held as follows:- “6. Rule 46 of the Rules of 2007 provides for scrutiny of nomination papers. Specific directions are issued to the Returning Officer as to the matters which he should scrutinize. Rule 47 of the Rules of 2007 gives finality to the decision of the Returning Officer. Rule 51(2) thereof provides for declaration forthwith of candidates to be duly elected when the number of candidates are equal to number of seats. 7. In the present case, it is not in dispute that the appellant was the only candidate whose nomination was accepted by the Returning Officer. The Returning Officer, having accepted his nomination, was under obligation to declare him elected uncontested. The power conferred upon the State Election Commission to issue direction for efficient conduct of the election under Rule 92 of the Rules of 2007 cannot be utilized for issuing instruction in the individual cases. The said power is meant for general instructions. Whether or not to accept a nomination of an individual candidate cannot be the matter covered by the words “efficient conduct of the election”. Moreover, the said Rule 92 does not confer power upon the State Election Commission to issue direction contrary to statutory provisions. 8. In view of the above provisions, we are of the opinion that it was the duty of the Returning Officer to declare the appellant elected once his nomination was accepted and he was the only candidate whose nomination was accepted. State Election Commission had no authority to issue direction to scrutinize the nomination once again as was done in the present case. If aggrieved, the respondent no. State Election Commission had no authority to issue direction to scrutinize the nomination once again as was done in the present case. If aggrieved, the respondent no. 5 would have the remedy to file election petition against the election of the appellant on the ground that may be available to him under Section 479 of the Act of 2007. 9. For the aforesaid reasons, the Appeal is allowed. The impugned judgment and order dated 29th June, 2012 made by the learned single Judge in CWJC No. 9061 of 2012 is set aside. CWJC No. 9061 of 2012 is allowed. The order dated 29th April, 2012 made by the Returning Officer is quashed and set aside. The respondents will declare the appellant elected from Ward No.40, Danapur Nagar Parishad as envisaged by Rule 51(2) of the Bihar Municipal Election Rules, 2007.” 7. Learned counsel for the petitioners further relies upon a decision of the Apex Court in the case of K.Venkatachalam Vs. A. Swamickan and Another: (1999) 4 SCC 526 , specially upon para-27 thereof for the proposition that the writ application is maintainable in an election matter in an appropriate case. 8. Learned counsels for the State Election Commission and for the private respondent Nos. 6 and 7 who are the successful candidates in the election, on the other hand, rely upon Sections 479 of the Bihar Municipal Act, 2007 read with Rule 102 of the Bihar Municipal Election Rules, 2007 for the proposition that the writ application is not maintainable since the elections have already been held in which the respondent nos. 6 and 7 have been declared elected and thus any remedy of the petitioners is by way of filing an election petition on the ground of Clause (c) of sub-Section (1) of Section 479. It is submitted that the petitioners having allowed their remedy to be barred by the passage of time, cannot be permitted to raise the same issue by way of writ application. 9. It is further submitted by learned counsels that in Prafful Chandra Sudhanshu’s case (supra) the facts were not identical to that of the present case as the appellant of that case was the sole remaining candidate whose nomination was earlier accepted by the Returning Officer and subsequently rejected. 10. 9. It is further submitted by learned counsels that in Prafful Chandra Sudhanshu’s case (supra) the facts were not identical to that of the present case as the appellant of that case was the sole remaining candidate whose nomination was earlier accepted by the Returning Officer and subsequently rejected. 10. It is submitted that in the present matter the elections have been finally held and candidates have been elected and similar directions as issued in Prafful Chandra Sudhanshu’s case (supra) cannot be given in the present matter. 11. I have considered the submissions of learned counsels for the parties. Section 479(1)(c) of the Act and Rules 46(4) along with its proviso and Rule 47 as also Rule 102 are as follows:- “Section 479. Grounds for declaring election to be void.- (1) Subject to the provisions of sub section (2) if the prescribed authority is of opinion- (a) …… ……….. ……… (b) …… ……….. ……… (c) that any nomination paper has been improperly rejected; or …….………… the prescribed authority shall declare the election of the returned candidate to be void.” “Rule 46(4) The Returning Officer shall hold the scrutiny on the date appointed and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control; Provided that in case an objection is made, the candidate concerned may be allowed time to rebut it not later than the following day on which scrutiny is held and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. 47. Decision of Returning Officer to be final.- The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected or is accepted after objection has been taken to its validity, shall record in writing a brief statement of his reason for such rejection or acceptance, and the decision of the Returning Officer shall be final. 102. Election petitions.- No election to the office of the Municipal Councillor, Chief Councillor or Deputy Chief Councillor under these rules shall be called in question except by an election petition presented in accordance with this part.” 12. 102. Election petitions.- No election to the office of the Municipal Councillor, Chief Councillor or Deputy Chief Councillor under these rules shall be called in question except by an election petition presented in accordance with this part.” 12. I will first consider the issue as to whether the Returning Officer having given his decision accepting the nomination of the petitioners even after the objection was raised before him could have subsequently on the direction of the State Election Commission and the District Election Officer reviewed the same and passed a fresh order rejecting the said nomination and removed the petitioners from the list of contesting candidates in Form-14 B. It is evident from a consideration of the facts and discussions made in the Division Bench decision in Prafful Chandra Sudhanshu’s case (supra) that the ratio of the said decision is that Rule 46 read with Rule 47 of the 2007 Rules give a finality to the decision regarding acceptance or rejection of nomination of the Returning Officer once taken and thereafter it is not open to him to change the said decision on his own or even on the directions of the State Election Commission exercising its powers under Rule 92 for efficient conduct of the elections. It has been clearly held by the Division Bench that the said power of the State Election Commission cannot be utilized for issuing instructions in individual cases and it is meant for general instructions and the acceptance or rejection of a nomination of an individual candidate cannot be a matter covered by the words “efficient conduct of the election”. It has been further clarified by the Division Bench that the power under the Rule cannot be exercised contrary to the statutory provisions. The other part of the decision in Prafful Chandra Sudhanshu’s case (supra) directing the said appellant to be elected as he was the only candidate remaining after nomination was accepted, is merely a consequential one and does not form the crux or the ratio of the decision of the Division Bench. It is evident from the said decision that the order of the Returning Officer being final any other order passed by the Returning Officer on his own or on direction of the superior authority would be without jurisdiction. 13. It is evident from the said decision that the order of the Returning Officer being final any other order passed by the Returning Officer on his own or on direction of the superior authority would be without jurisdiction. 13. That being the position, the objections of learned counsels for the respondents on the ground of Section 479 read with Rule 102 of the Rules that an election can only be challenged and set aside by an Election Tribunal through an election petition cannot be accepted. The existence of alternative remedy if at all is never an absolute bar to the jurisdiction of this Court under Article 226 of the Constitution. The said proposition has been laid down by the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.: (1998) 8 SCC 1 . The Supreme Court has also held that in an appropriate case the jurisdiction of this Court under Article 226 of the Constitution can be exercised even where challenge is to the election of a returned candidate. 14. I am further of the view that this is not really a case where nomination papers of the petitioners have been improperly rejected so as to bring it within the ground (c) of sub-section (1) of Section 479 of the Bihar Municipal Act. It is in fact a case where the nomination papers of the petitioners had been accepted on 26.4.2012 and thereafter an order without jurisdiction has been subsequently passed on 13.5.2012 rejecting the nomination of the petitioners and their names removed from the list of contesting candidates in Form 14B. The subsequent order is wholly without jurisdiction and it cannot be considered to be a case of improper rejection of nomination and would thus be amenable to challenge under Article 226 of the Constitution. 15. In the light of the aforesaid discussions the order dated 12.5.2012 of the State Election Commission, the order dated 13.5.2012 of the District Election Officer (Municipality) Madhepura as also the order dated 13.5.2012 of the Returning Officer, Madhepura Municipal Election, 2012 are fit to be quashed and they are accordingly, quashed. The consequential actions including the elections held subsequent to the said order are held to be illegal and invalid including the elections of respondent nos. 6 and 7 which are quashed. The consequential actions including the elections held subsequent to the said order are held to be illegal and invalid including the elections of respondent nos. 6 and 7 which are quashed. The respondents are directed to proceed afresh with the elections from the stage of acceptance of the nomination papers of the petitioners. 16. The writ application is, accordingly allowed with the aforesaid observations and directions.