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. 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. 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 Sanitar