ORAL JUDGMENT

Date : 25-06-2024 Heard Mr. S.B.K. Mangalam, the learned counsel for the petitioner, Mr. Ashok Kumar Singh, the learned counsel for the private respondent no. 3, assisted by Mr. Parmeshwar Vishwakarma, the learned Advocate and Mr. Prem Ranjan Raj, the learned AC to SC-7 for the State.

2. The present writ petition has been filed for quashing the judgment and order dated 19.08.2023 passed by the learned Munsif, Shahpur Patori, District - Samastipur in Election Petition No. 02 of 2022 (Annexure- P-9), whereby the learned Munsif has been pleased to dismiss the Election Petition filed by the petitioner, challenging the election of Respondent No. 3, who was elected as the Mukhiya of Gram Panchayat Raj- Harail under Mohiuddin Nagar Block of Samastipur District on the ground that even though she was not a voter in the voter list of Gram Panchayat, however, she impersonated herself as Happy Nitu Singh and contested the election and won it and according to the petitioner, the election of Respondent No. 3 is fit to be declared void under Section 139(1)(a) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Gram Panchayat Act).

3. Learned counsel for the petitioner submits that the State Election Commission has decided to conduct the Panchayat Election 2021 and State Election Commission had issued notification in accordance with law and as per the schedule of election notified by the State Election Commission, the election in the petitioner’s Gram Panchayat was conducted according to the following schedule:

Last date for filing of nomination paper : 24.11.2021 Date for Scrutiny of nomination paper : 27.11.2021 Date for withdrawal of candidature : 29.11.2021 Date of Poll : 12.12.2021 Date of counting : 14.12.2021 Date of election of result : 14.12.2021 Altogether, eleven candidates had filed their nomination to contest for the post of Mukhiya of the said Gram Panchayat, including the petitioner and Respondent No. 3.

4. Learned counsel for the petitioner submits that the Respondent No. 3 had filed her nomination in the name of Happy Nitu Singh wife of Dharmendra Kumar and according to declaration made by her in her bio-data, she claimed her name to be appearing at serial no. 536 of the Panchayat Voter List of Harail Gram Panchayat pertaining to Territorial Constituency No. 5.

5. Learned counsel for the petitioner submits that on 26.11.2021, the petitioner had filed an objection before the Returning Officer to reject the nomination of Respondent No. 3 on the ground that there is no voter in the name of Happy Nitu Singh in the voter list of Gram Panchayat Raj, Harail and the nomination filed by the Respondent No. 3 cannot be accepted. But, the Returning Officer has not taken cognizance of the objection filed by the petitioner and Returning Officer has allowed the Respondent No. 3 to contest the election.

6. Learned counsel for the petitioner submits that the petitioner had no other remedy under the law to challenge the illegality committed by the Returning Officer at the time of the scrutiny of nomination paper and he had no other option but to wait until the election is concluded and the result of the election is declared by the Returning Officer. The result of the election was declared by the Returning Officer on 14.12.2021 and the Respondent No. 3 was declared elected by a margin of 354 votes.

7. The election of Respondent No. 3 was challenged by the petitioner before the learned Munsif, Shahpur Patori by filing a duly constituted election petition under Section 137 of the Gram Panchayat Act, on the ground that in view of the provisions contained under Section 135 of the Gram Panchayat Act, since the name of the Respondent No. 3 was not there in the voter list of any Gram Panchayat, therefore, she was disqualified to contest the election and since she had contested and won the election, her election is fit to be declared void under Section 139(1)(a) of the Gram Panchayat Act.

8. The election petition filed by the p