2004 Supreme(Pat) 1068

PATNA HIGH COURT
Nagendra Rai and S.N.Hussain JJ.
Bhagwan Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 8145 of 2002 ; 9013 of 2002 ; 9361 of 2002 ; 9364 of 2002 ; 9471 of 2002 ; 10101 of 2002 ; 10697 of 2002 ; 10831 of 2002 ; 10975 of 2002 ; 11154 of 2002 ; 11536 of 2002 ; 11919 of 2002 ; 12580 of 2002 ; 12696 of 2002 ; 13141 of 2002 ; 13205 of 2002 ; 13576 of 2002 ; 13388 of 2002 ; 13589 of 2002 ;
Civil Writ Jurisdiction Case No. 246 of 2003 ; 2377 of 2003 ; 3205 of 2003 ; 4647 of 2003 ; 9509 of 2003 ; 9853 of 2003 ; 10646 of 2003 ; 12390 of 2003 ; 12954 of 2003 ;
Civil Writ Jurisdiction Case No. 9230 of 2004 ;
Decided On : OCTOBER 04, 2004

Headnote:Election Laws-Election-Meaning of The word election begins from issuance of the notification and ends with the declaration of result.

       (Para 12)

       Bihar Panchayat Raj Act, 1993-Sections 140 and 143-Disqualification prior to election shall not be called in question except by an election petition presented to prescribed authority-After the election is over challenge to the election on any of the grounds including the ground of disqualification has to be made by an election petition-Provisions of the Act has been inacted in the light of provisions contained in Article 243-O of the constitution.

       (Para 15)

       Bihar Panchayat Raj Act, 1993-Sections 139(2) and Rule 122-Those candidates who have incurred disqualification prior to election their cases can not be considered in terms of section 139(2) and only mode of challenging their election is by filing an election petition-Rule 122 which authorises the State Election Commission to decide the matter of disqualification prior to election is thus ultravires the provisions contained in Article 243-O of the constitution and sections 140 and 143 of the Act and to that extent it is declared ultravires-Provisions of Rule 122 authorising State Election Commission to decide question of disqualification incurred after election is valid one and consistent with section 139(2).

       (Paras 18 & 19)

       AIR 1953 SC 210- Relied upon.

       AIR 2002 All 257- Referred to.

       Bihar Panchayat Raj Act, 1993-Sections 140, 143 and 144-Power of court with regard to disqualified person holding the post-Where a person has been elected suppressing the fact of his disqualification specially with regard to conviction and sentence in a criminal case and the same is not challenged within 30 days after the election due to the fact that his disqualification not known to other candidate-The same may be challenged under article 226 before High Court-Court is not debarred from considering the question of disqualification especially after the election on the ground of availability of an effective remedy of election petition-Court will issue a writ of quowarranto restraining the office bearers.

       (Paras 21 & 22)

       (2000) 8 SCC 216, (2001) 7 SCC 213- Relied upon.

       Constitution of India-Article 226-Judicial review of election is possible provided it does not retard, interrupt, protract or stall the election proceedings-If a disqualified person is holding an office his matter can be challenged by a writ of quowarranto for maintaining purity and perfection in the democratic process.

       (Paras 24 & 25)

       Bihar Panchayat Raj Act, 1993-Section 139(1)(g)-In regard to cases where State Election has disqualified the candidates on the ground that they have been convicted and sentenced for more than a period of six months which is a disqualification in terms of section 139(1)(g) even though the State Election Commission has no power to disqualification with regard to pre-election matters the fact that these candidates have suppressed the factum of their conviction and sentence and by playing a fraud, they got their nomination paper accepted as valid and were elected to the election-Fraud vitiates everything even the solemn proceedings of the court-Fraud is sworn enemy of justice and equity-In exercise of equitable jurisdiction court will not interfere with the order of Election Commission as that will amount to perpetuating an illegality and allowing a person not authorised to continue to hold office.

       (Paras 26 & 28)

       Bihar Panchayat Raj Act, 1993Section 139(1)(f)-The word "misconduct" has not been defined but when an employee who has to do public work has absented himself from duty and that allegation has been proved and he has been dismissed, then his dismissal is on ground of misconduct-Election of such person is void.

       (Para 36)

       Bihar Panchayat Raj Act, 1993-Petitioner a Reader in college receiving hundred percent financial aid from the State Govt.-Petitioner debarred by Election Commission of India from contesting any election to State Legislature for three years-Election of Zila Paris had held within three years-Case is covered u/s 139(1)(d)-His election is void.

       (Paras 37 & 39)

       Bihar Panchayat Raj, Act, 1993-Sections 139, 140, 143-Bihar Panchayat Election Rules, 1995-Rule 122-Constitution of India-Articles 243-O, 243-B, 243-K and 226-Disqualification of members of panchayat prior to election and post election-To maintain the purity in the election in the Panchayat, Part IX has been inserted in the constitution and it provided that the persons incurring disqualification should not enter into the election arena-Even if they have not incurred disqualification at the time of election, but have incurred disqualification after election, they should not continue to hold the office-Those candidates, who have incurred disqualification prior to election, their cases cannot be considered in terms of Section 139(2) and only mode of challenging their election is by filing an election petition-The provision as contained in Rule 122 authorizing the State Election Commission to decide even the matter of disqualification prior to the election, is thus ultra vires Article 243-O of the Constitution and Sections 140, 143 of the Act and to that extent it is declared ultra vires-However the High Court is not debarred from considering the question of disqualification, specially after the election on the ground of availability of an effective remedy of election petition-In such cases this Court will be failing in duty in preventing the public injury in case of refusal to interfere and will issue a writ of quo war-an-to restraining the office bearers to function as members of panchayat-Such candidates suppressing their disqualification and by playing a fraud got their nomination papers accepted and were elected-fraud vitiates everything, even the solemn proceedings to the Court-In exercise of equitable jursidiction, this Court will not interfere with the order of the State Election Commission as that will amount to perpetuating an illegality and allowing a person not authorized to continue to hold the office-So far as the post election disqualification is concerned It shall be referred for decision to such authority and in such manner, the State Govt. may by law provides under Rule 122 for dealing with such matters-C.W.J.C. Nos. 10101/02 and 3205/02 allowed C.W.J.C. No. 10646/03 disposed of and rest petitions dismissed. (Paras 9, 10, 11, 15, 16, 18, 24, 26 & 39)

       (1978) 1 SCC 405, AIR 1953 SC 210, AIR 2002 All 267, (2000) 8 SCC 216, (2001) 7 SCC 231-Referred to.