BASUDEO RAI Vs. BASUDEO NARAIN KUAR

JUDGEMENT

(1.) This application by Basudeo Rai under Articles 226 and 227 of the Constitution of India is directed against the order dated the 16th April, 1973 passed by the Election Tribunal (respondent No. 2) whereby the election of the petitioner as Mukhiya was set aside.

(2.) In order to appreciate the point involved in this case, it will be necessary to state briefly the facts. By notification No. 5854 dated the 30th September, 1954, as published in the Bihar Gazette (Part II) dated the 15th December, 1954, Dhekeha Gram Panchayat consisting of village Dhekeha only was constituted. About six years later another notification No. 6805 dated the 26th May, 1960 published in the Bihar Gazette (Part II) dated the 13th July, 1960, another village known as Manjharia was also tagged with village Dhekeha and both the villages constituted Dhekeha Gram Panchayat, on the basis of which an earlier election was held on the 14th July, 1962, which was challenged by some interested persons in this court in M. J. C. No. 755 of 1962. This Court was pleased to quash the said notification No. 6805. In that view of the matter, according to the petitioner, the previous notification No, 5854 stood revived, namely, the Gram Panchayat consisted only of Dhekeha village on the basis of which the present election took place in which the petitioner was elected as the Mukhiya of the said Gram Panchayat. Subsequently, Basudeo Narain Kuar (respondent No. 1) challenged the election of the petitioner before the Election Tribunal (respondent No. 2) who held that after notification No. 6805 was quashed by this Court in M. J. C. No. 755 of 1962, it was incumbent upon the authority to have re-constituted the Gram Panchayat by fresh notification. According to the Tribunal, the old notification No. 5854 did not survive in the circumstances.

(3.) Learned counsel appearing on behalf of the petitioner has submitted that the Tribunal has committed an error by thinking that the old notification No. 5854 did not survive. In my view, the submission of the learned counsel for the petitioner is not tenable. By subsequent notification No. 6805 a new Gram Panchayat was created under Section 3 (I) of the Bihar Panchayat Raj Act, 1947, as it appears from the very notification. In that view of the matter, the old notification No. 5854 did not exist, when the latter notification No. 6805 came into existence. In my opinion, therefore, the finding of the Tribunal is well founded.