HAZARI PRASAD ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner has filed the present writ application for a declaration that he may he allowed to continue as a member of the Block Panchayat Samiti as well as a member of the Zila Parishad at the same time after his election to the said posts and the direction issued by the State Election Commission in exercise of the power under Rule 121 of the Bihar Panchayat Election Rules (hereinafter referred to as 'the Rules'), as contained in Memo No. 4563 dated 24 -5 -2001 in Clause (da) providing that if one candidate has been elected for more than one post in the Panchayat Election then, he will be administered oath on all the elected posts but within fifteen days of taking oath the candidate has to express his willingness to continue on one post in writing to the concerned authority and, thereafter, his election to other posts shall stand cancelled, is invalid as the same is contrary to the provisions contained in Section 139(3) of the Bihar Panchayat Raj Act, 1993 (hereinafter referred to as 'the Act').

(2.) THE facts necessary for disposal of the present writ application are that in accordance with the provisions of the Act and Rules, the Panchayat election was held in the State of Bihar. The writ petitioner contested the election for two posts. He was a candidate from Dariapur Block Panchayat Samiti, Constituency No. 25 Bela Part I as well as for the Zila Parisad, Saran, Constituency No. 41. Election for both to have been elected as a member of the Dariapur Block Panchayat Samiti and so also from the Zila Parisad, Saran.

(3.) LEARNED Counsel for the petitioner submitted that there is no legal bar in holding two posts as a member of the Block Panchayat Samiti and the Zila Parisad for the reason that no such bar is created under Section 139 (3) of the Act. The instruction issued by the State Election Commission, as contained in Annexure 3, is contrary to the provision of Section 139(3) of the Act and as such the same has to be declared invalid and a direction may be issued to the authorities to allow the petitioner to continue on both the posts.