RAM PRAKASH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have moved this Court challenging the election of Patelia Gram Panchayat, in which respondent No. 4 was elected as the Mukhiya and respondents 7 to 15 as office bearers of the said Gram Panchayat.

(2.) In order to appreciate the points which have been raised, it is necessary to state some facts. The petitioners were voters of Patelia Gram Panchayat which is within Bibhutipur Block in the district of Samastipur, and they are also voters of the Bibhutipur constituency of the Bihar Legislative Assembly -- petitioners 1 to 5 are voters of Ward No. 3 and petitioners 6 to 9 are voters of Ward No. 2 of the aforesaid Gram Panchayat. Patelia Gram Panchayat was constituted under the Bihar Panchayat Raj Act, 1947 (hereinafter referred to as the Act). On 11-4-78 in exercise of the powers under Rule 17 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules), the Election Officer of the Bibhutipur Gram Panchayat (respondent No. 2) published an election programme, giving the details of the election. A copy of the said programme has been filed along with the application and marked Annexure 1. It is further stated in the application that in the aforesaid election programme it was not mentioned whether the election was of the Mukhiya, Sarpanch, Panch or members of the Executive Committee which, according to the petitioners is clear violation of Rule 18 of the Rules. Respondents 4, 5 and 6 filed their nomination paper on 19-4-78, and similarly respondents 7 to 15 filed their nomination papers for election to the offices of Sarpanch, Panch and members of the Executive Committee; and nomination of respondents 4, 5 and 6 was declared valid. On 5-5-78, the polling stations were selected for Patelia Gram Panchayat, and a list of the same was published after due approval by the District Magistrate, as required under Rule 31 (1) of the Rules. A copy of the list has been filed along with the application and marked Annexure 2. The polling which was to be held on 19-5-78 was later changed to 13-6-78. A copy of the same has been filed and marked Annexure 1/A. It is also stated in the application that on 30-5-78 some of the polling stations put under Annexure 2 were changed in violation of the Rules. Polling Stations 84 and 85 were changed as polling stations of Ward No. 2, and this affected the voting rights of 2000 voters of Ward No. 3 of the aforesaid Gram Panchayat. It is further stated in the petition that on the date of polling the voters of Wards 2 and 3 were put in utter confusion due to the arbitrary and last minute illegal change, polling station No. 84, which was located in the school was shifted to a portable polling station in Khasra No. 1198, and when they went there they were told that it was shifted to the original place, viz., Kanya Vidyalaya. It is also stated that election authorities acted illegally and mala fide by changing the polling stations and thus depriving the petitioners and others of their right of franchise. The result of the election was declared, and respondent No. 4 was elected as the Mukhiya (Annexure 5). Being aggrieved, the petitioners have moved this Court and challenged the entire election of the aforesaid Gram Panchayat.

(3.) Mr. Basudeva Prasad, learned counsel appearing on behalf of the petitioners, has contended that there has been a clear violation of the mandatory Rules 17, 18, 31 and 50 of the Rules, and thus there was no election in the eye of law and, therefore, the entire election was fit to be quashed. A number of points were raised in the application but at the time of argument learned counsel confined his submission only on two points. Firstly, it has been urged that Rule 18 was violated because there was no mention in the election programme regarding the election of Mukhiya, Sar Panch, Panch and members of the Executive Committee which, according to the learned counsel, was mandatory. Next, it has been contended that the polling booths were changed, in clear violation of Rule 31. The learned Government Pleader appearing for the State has submitted that there has been no violation of the mandatory provisions of the Rules and, therefore, the remedy of the petitioners was by way of election petition and the election of the Gram Panchayat cannot be challenged in this Court. It has also been submitted on his behalf that when the writ was filed and entertained by this Court, 42nd Amendment of the Constitution was in force and there being an alternative remedy by way of election petition, the application was fit to be dismissed. Learned counsel appearing on behalf of respondent No. 4 has also submitted that the points which have been raised in the writ application are all disputed questions of fact which cannot be decided by this Court.