MD ALAMGIR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned counsel for the respondent State Election Commission, for the State and for private respondent No. 7. The petitioner seeks quashing of the order dated 31.10.2012 passed by the State Election Commissioner in Case No. 129 of 2011 by which he has declared the petitioner as disqualified under Sections 135, 136(2) of the Bihar Panchayat Raj Act, 2006, read with Rule 117 of the Bihar Panchayat Election Rules and has further held that the post shall be treated as vacant and steps shall be taken to fill it up.

(2.) The petitioner claims to be Momin by caste and a member of the Extremely Backward Class for which he was issued Extremely Backward Class Certificate dated 19.2.2010 by the District Magistrate, Banka on the basis of the report of the Sub-Divisional Officer, Banka. The petitioner contested the election on the post of Mukhiya of Gram Panchayat Kath Bangaon which was a reserved seat for the members of Extremely Backward Class. Subsequently the petitioner was declared elected defeating the respondent No. 7 in the said election. The respondent No. 7 filed a complaint under Section 136(2) of the Bihar Panchayat Raj Act, 2006 with a prayer to disqualify the petitioner from holding the post of Mukhiya on the ground that the post was reserved for the members of Extremely Backward Class to which the petitioner does not belong since he is "Sheikh" by caste. In support of the same a Cadastral Survey Khatian in the name of the great grandfather of the petitioner was produced in which the caste of the great grandfather was mentioned as "Sheikh". The District Magistrate, Banka was directed by the State Election Commissioner to make an enquiry and submit a report regarding the caste of the petitioner. The report of the District Magistrate dated 19.12.2011 was submitted to the State Election Commissioner. Both the petitioner and the respondent No. 7 were heard by the District Magistrate and only thereafter the report was prepared. The said report of the District Magistrate came to the conclusion that the caste of the great grandfather of the petitioner mentioned in the Cadastral Survey Khatian as "Sheikh" which is not included in the Extremely Backward Class (Annexure-1) by the Government of Bihar since as per Serial 94 of the same only "Momin" (Muslim) (Julaha and Ansari)" has been mentioned and the caste "Sheikh" is not mentioned therein, from which it was clear that in the list of Extremely Backward Class (Annexure-1) notified by the State Government the Sheikh caste was not included. Aggrieved by the said report, copy of which was sent to the petitioner also, the petitioner approached this Court by filing CWJC No. 2747 of 2012 and in the said writ application the further proceeding of Case No. 129 of 2011 pending before the State Election Commissioner was stayed. However, ultimately on 9.10.2012 after some argument learned counsel for the petitioner chose to withdraw the writ application with liberty to raise the contentions raised in the said writ application before the State Election Commission against the enquiry report of the District Magistrate and by order dated 9.10.2012 the writ application was disposed of by this Court with the leave aforesaid. Thereafter, again on hearing learned counsel for the petitioner and respondent No. 7 and after considering the report dated 19.12.2011 of the District Magistrate-cum-District Election Officer (Panchayat), Banka by the impugned order dated 31.10.2012 the Commission referred to its earlier order dated 12.4.2012 passed in the said case in which it was stated on the basis of the said report of the District Magistrate that the petitioner earned the disqualification for being disqualified from the post of Mukhiya. The Commission also referred in detail to the report of the District Magistrate and the conclusions that had been drawn therein quoting the main part in the said order dated 31.10.2012 and thereafter disqualified the petitioner from the post of Mukhiya. Aggrieved by the said order the petitioner has come to this Court.

(3.) Learned counsel for the petitioner submits that Sections 137, 138(2) and 139 of the Bihar Panchayat Raj Act, 2006 are special provisions laying down that no election of any Panchayat shall be called in question except by an election petition presented to an election authority under the Act and further specifically mentioning as one of the grounds for declaring the election of the returned candidate as void as that on the date of his election a returned candidate was not qualified or was disqualified to be chosen as a member under the Act, which according to learned counsel read with the proviso to Section 136(2) which lays down that the State Election Commission shall not be entitled to entertain such complaint which is subject matter of purely election dispute, would override Section 136(2) under which the question of disqualification is to be referred for decision of the State Election Commissioner. It is urged by learned counsel that Section 137 of the Act is a special provision to set aside the election and it would prevail over any general provision like Section 136 which being a general provision must accordingly be read down. In support of the same learned counsel relies upon a decision of the Supreme Court in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of Uttar Pradesh and Others;, 1961 AIR(SC) 1170 in paragraphs 9 & 10 of which it has been held as follows:--