BABITA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) ALL these writ petitions are being disposed of by a common order at the stage of admission because of a preliminary objection raised by learned counsel appearing for State Election Commission (hereinafter referred to as &aposthe Commission&apos). The common preliminary objection is to the effect that after issuance of notification by the State Election Commission dated 25.2.2006 in exercise of power under section 140 of the Bihar Panchayat Raj Ordinance, this court should not interfere in the election process by issuing order or direction at the instance of writ petitioners whose grievances are of similar nature that their nomination paper has been improperly or illegally rejected by the respective returning Officers. Learned counsel for the Commission has submitted that power available to the Commission under Article 243 -K of the Constitution of India is similar in nature as the power available to the Election Commission of India under Article 324 of the Constitution of India and therefore if the elections are notified this court should restrain its hand in such matters in view of law laid down by the Supreme Court in various judgments, the latest being in the case of Election Commission of India V/s. Ashok Kumar, reported in 2000(8) SCC 216. He also placed reliance upon A.I.R. 1988 S.C. 61 (Election Commission of India V/s. Shivajee) and a judgment of this court in the case of Om Prakash Tiwary V/s. Election Commission, reported in 2002 (2) PLJR 620.

(2.) LEARNED counsel appearing for the writ petitioners, on the other hand, submitted that the Constitutional power of this court under Articles 226 and 227 of the Constitution of India will always be available to deal with grave violation of law and injustice and such power can be exercised in appropriate cases even after an election has been notified by the Commission. By way of instance, reliance was placed upon a judgment of a Single Judge reported in 2001(2) PLJR 227 (Shri Chand Prasad V/s. State of Bihar). However, no useful purpose will be served by discussing that judgment because the same is overruled by a Division Bench in the judgment reported in 2001(3) PLJR 677 (State Election Commission V/s. State of Bihar). The Division Bench in paragraph -14 of the report relied upon judgment of the Supreme Court in the case of Election Commission of India V/s. Ashok Kumar, [2000(8) SCC 216] and quoted paragraph -32 of that judgment and on that basis held in paragraphs 1 that "once the process of election has started, any interference by the Court under Article 226 of the Constitution with the process of election on the ground of breach of statutory provision in preparation of voter list is not permissible in law. If this will be allowed to be done, the same will delay the election, in other words, it will interrupt and obstruct the process of election. Such question has to be postponed till the election is over".

(3.) IN fairness to learned counsel for the petitioners it is deemed necessary to mention that they had placed reliance upon a Division Bench Judgment of this Court in the case of Rama Ballabh Singh Keshan V/s. State of Bihar & Ors., reported in 2001(2) PLJR 267. That judgment of Division Bench was considered in the case of Om Prakash Tiwari vs. Election Commission (supra) and the view taken in that judgment that if there was non -application of mind in rejecting the nomination paper then this court may interfere, was not accepted by learned Single Judge because it was rendered without noticing the law laid down in the earlier judgment in the case of State Election Commission vs. State of Bihar (supra) by a Division Bench of this Court. It was also mentioned that the judgment in the case of Rama Ballabh Singh Keshan vs. State of Bihar & Ors., was not in line with judgments of the Supreme Court. Following the judgment of the Supreme Court in the case of Election Commission of India vs. Ashok Kumar (supra) and the Division Bench Judgment of this court in the case of State Election Commission vs. State of Bihar. This court finds that preliminary objection raised by learned counsel for the Commission that the remedy through writ petition cannot be made available to the petitioners when the election process has already been notified and it is not concluded is correct. These writ petitions are dismissed on preliminary objection raised by the learned counsel for the Commission.