SANJAY DAS Vs. STATE OF BIHAR WITH

JUDGEMENT

(1.) ALL the writ applications raise the common issue pertaining to the power of the State Election Commission to cancel the election of Pramukh/Up -Pramukh of a Panchayat Samiti in a special meeting convened by the Sub -Divisional Officer on the ground that the State Election Commission was not informed about the vacancy and no direction sought from it for proceeding to fill up the vacancy by holding election for the said post and accordingly they have been heard together and are being disposed of by this common order.

(2.) THE facts of the cases lie within a narrow compass. In all the writ petitions the offices of the Pramukh and/or Up -Pramukh became vacant due to the resignation of the said office bearers or their removal from the said office by motion of No confidence. After the vacancies arose it is alleged that a notice in Form 24 was issued by the respondent Sub -Divisional Officer under Rule 87 of the Bihar Panchayat Election Rules convening a meeting of the Panchayat Samiti concerned. In the said meeting the petitioners were elected or granted certificates and took oath of their respective offices. The matter was communicated to the District Magistrate -cuim -District Election Officer who reported the matter to the State Election Commission. Subsequently by the impugned orders the said elections were cancelled on the ground that the Election Commission was not communicated about the vacancy and no direction was taken from it for holding fresh election on the post of Pramukh/Up -Pramukh and fresh elections were called for. Aggrieved by the said orders issued by the State Election Commission cancelling the elections of the petitioners on the posts of the Pramukh/Up -Pramukh and directing the holding of fresh elections to the said offices the petitioners came to this Court.

(3.) LEARNED counsel for the petitioners submit that under Rule 87 of the Bihar Panchayat Election Rules power has been conferred upon the Sub -Divisional Officer to fix the date, time and place for holding a meeting of the Panchayat Samiti for the election of Pramukh and Up -Pramukh and the information with regard to it has to be given to the members in Form 24. Thereafter on the date fixed the meeting is held under the Chairmanship of the Sub -Divisional Officer as laid down in Rule 88. and it is open to the interested candidates from among the directly elected members to file their nominations and after scrutiny of the nominations the election takes place either uncontested if there is only one candidate for one post or on a contest by secret ballot. In a case of contest the entire process commencing from the filing of nominations to the counting and declaration of results is to be conducted under the Chairmanship of the Sub -Divisional Officer who also gives the elected candidate a certificate in Form 22 for such election. It is thus submitted by learned counsel for the petitioners that in view of the fact that the elections have been conducted in terms of the statutory rules by the statutorily authorized officer, namely, the Sub -Divisional Officer and the certificates regarding the election have also been issued, hence valuable rights have accrued in favour of the petitioners on the basis of such election and the said election can only be challenged by filing an election petition under Section 137 of the Bihar Panchayat Raj Act, 2006. It is submitted that under Section 137 of the said Act the election to any office of the Panchayat shall not be called in question except by an election petition as prescribed and further under Section 138. of the Act there is a bar to call in question any election to any Panchayat except by an election petition presented to the prescribed authority. It is submitted that the said bar flows from Article 243 -O(b) of the Constitution which contains a similar bar.