A person who participates in an election is estopped from challenging the validity of the election on any ground, including illegalities.

1. This application under Articles 226 and 227 of the Constitution of India relates to election to the post of Mukhia of Ramabandh Gram Panchayat. The election programme was published on the 23rd March, 1971. Item No. 15 of the programme, viz., the date for the election of Mukhia, was later on revised to be the 5th of June, 1971. The petitioner as well as respondents Nos. 4 and 5 filed their respective nomination papers but before scrutiny respondent No. 5 withdrew his nomination. On the 2nd April, 1971, the petitioner objected to the acceptance of the nomination paper of respondent No. 4 (Satrughan Narain Singh) on the grounds envisaged in Rule 89 (b) of the Bihar Panchayat Election Rules, 1959, but his objections were overruled by the Election Officer by his order dated the 3rd April, 1971. The petitioner preferred an appeal to the Sub-divisional Officer under Rule 23 (4) of the Bihar Panchayat Election Rules. The appeal was allowed on the 15th April, 1971. It was allowed in the sense that the nomination paper of respondent No. 4 was rejected and, as a result thereof, the petitioner was elected uncontested as the Mukhia of Ramabandh Gram Panchayat on the 19th April, 1971, and he assumed charge of the office.

2. Respondent No. 4 filed an application before this Court (C.W.J.C. No. 525 of 1971) and prayed therein that the order passed by the Sub-divisional Officer rejecting his nomination paper be set aside. The said application came up for final hearing before B. N. Jha, J. who quashed the order of the Sub-divisional Officer, dated the 15th April 1971, rejecting the nomination paper of respondent No. 4 and also set aside the election of the petitioner (respondent No. 4 to that application) as Mukhia. A direction was also given for the election to proceed in accordance with law. In consequence of that order, the election for the post of Mukhia of Ramabandh was fixed for the 5th of June, 1971, which was later on changed to the 9th of June, 1971. The petitioner, however filed the present application on the 1st of June, 1971.

3. The point urged on behalf of the petitioner is that the election having been set aside there ought to have been a fresh election from the very beginning and the issuance of the programme for the election of Mukhia on the 5th of June, 1971, was not according to law. It was also urged that the programme for election to the post of Mukhia having been published for holding it on the 5th of June, 1971, the date could not have been abruptly changed to the 9th of June, 1971, without following the mandatory provision mentioned in Rule 17 of the Rules.

4. So far the present application is Concerned, it is not necessary to examine the submissions of learned counsel for the petitioner on merits. Mr. Birendra Prasad Sinha, appearing for the State, drew our attention to paragraph five of the counter-affidavit filed on behalf of respondent No. 4 on the 7th December, 1971. It is to the effect that the petitioner (Deosaran Yadav) having participated in the election held on the 9th of June, 1971, he was estopped from taking any objection regarding the legality or otherwise of the election. When this application was being heard on the 26th April, 1972, it was adjourned till today (29-4-72). In the meantime, on the 28th April, 1972 a reply to the counter-affidavit has been filed on behalf of the petitioner. Paragraph two of the reply to the counter-affidavit is to the effect that the petitioner took no part in the polling and the election held on the 9th June, 1971. It may be of some use to know that although the counter-affidavit on behalf of respondent No. 4 was filed on the 7th of December, 1971, the facts stated in paragraph five thereof were not controverted on behalf of the petitioner till the case itself had been heard for two days. Be that as it may, it is now a disputed question of fact as to whether the petitioner had or had not taken part in the election. Counsel for the petitioner took exception to the w