IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10816 of 2010 1. Ashutosh Kumar S/O Ram Pyare Prasad Sinha R/O Vill- Korari, P.S.Belchi, Distt-Patna Versus 1. The State Of Bihar 2. The Registrar, Co-Operative Societies Bihar, New Secretariat, Patna 3. The Sub-Registrar, Co-Operative Societies Patna Division, Patna 4. The Block Development Officer Belchi-Cum- Election Officer, Korari, Pacs 5. The Branch Manager Barh, Patliputra C.C.Bank Ltd, Patna 6. Pushpa Devi W/O Shankar Prasad R/O Vill Jodha Bigha, P.S.Belchhi, Distt-Patna. ---------------------------------- 3. 03.8.2011. Heard Mr. K.N.Diwakar, learned counsel appearing on behalf of the petitioner, Mr. S.P.Parasar, learned Assisting Counsel to G.P.2 for the State and Mr. Ishwari Singh, learned counsel appearing on behalf of the respondent no.6. The writ petition has been filed challenging the order dated 21.6.2010 passed by the Deputy Registrar, Cooperative Societies, Patna Division, Patna in Election Dispute No.120 of 2009/08 of 2010, whereby the election of the petitioner to the post of Chairman, Korari PACS (Belchhi) has been set aside and the respondent no.6 has been declared elected. The matter in issue relates to election to the post of Chairman Korari PACS (Belchi). 2 It is not in dispute that the election was conducted and the petitioner was declared elected. It is thereafter that the respondent no.6 raised a dispute by filing election petition complaining that in fact the petitioner was not eligible for contesting election as he was a defaulter in terms of Rule 23(1)(b) of the Bihar Cooperative Societies Rules, 1959 (hereinafter referred to as ‘the Rules’) framed under the Act. The election petition was referred to the Deputy Cooperative Registrar, Patna Division, Patna for conducting the election dispute and giving his findings thereon. The election authority by the impugned order dated 21.6.2010 as contained in Annexure-1, has upheld the objection raised by the respondent no.6 that the petitioner was a defaulter in terms of the Rules inasmuch as a loan obtained by him from the Patliputra Central Cooperative Bank (for short ‘Bank’) was only deposited on 21.8.2009 when the last date for clearing the outstanding loan was 20.8.2009. While holding the petitioner ineligible and disqualifying him from contesting election, the Election authority has gone ahead to declare the respondent no.6 elected unopposed. Learned counsel for the petitioner submits that although he had made an endeavour to deposit 3 the amount on 20.8.2009 but the same was not accepted by the Branch Manager of the Bank on grounds of closure of his business hours. He thus submits that there was no laches on the part of the petitioner in trying to get his outstanding loan amount cleared, rather it is in the circumstances that the Branch Manager did not accept the deposit of the petitioner on 20.8.2009 which led to the said situation and which could not be attributed to him. Be that as it may, it is not in dispute that admittedly on the last date of filing of the nomination, the petitioner was indeed found defaulter in terms of the Rules and thus not eligible to contest the election. To that extent, no infirmity can be found in the order passed by the election authority i.e. the Deputy Registrar, Cooperative Societies, Patna Division, Patna in rejecting the candidature of the petitioner and holding him ineligible to contest the election on grounds of being a defaulter under the rules. The issue is whether the election authority after holding the petitioner ineligible to contest the election could have declared the respondent no.6 elected unopposed, while setting aside the 4 election of the petitioner. Learned counsel for the petitioner submits that the conclusion drawn by the election authority was beyond the scope of the provisions of section 13 of the Bihar State Election Authority Act, 2008 (hereinafter referred to as ‘the Act’). Section 13 of the Act sets out the grounds on which a candidate other than the returned candidate may be declared elected. A plain reading of the Statutory provision manifests that in either of situation, the claimant has to satisfy the authority that he had received a majority of the votes and he had been wrongfully denied election. This important prerequisite can not be found in the case at hand rather is manifestly absent. Admittedly, the respondent no.6 had obtained 68 votes lesser than the petitioner. It is thus not in dispute that the electorate had not voted for the respondent no.6 as Chairman rather the verdict of the electorates finds favour in the case of the petitioner. Thus, in the circumstance, where the election result had admittedly gone in favour of the petitioner and not the respondent no.6, it was wrong on the part of the election authority to have declared the respondent no.6 elected only by reason of the disqualification of the petitioner. Such 5 power is not vested in the election authority and is beyond the scope of section 13 of the Act. The order dated 21.6.2010 passed by the Election authority as contained in Annexure-1 in so far as the respondent no.6 has been declared elected unopposed, is clearly beyond the scope of Section 13 of the Act and can not be sustained. In the result, the order dated 21.6.2010 as contained in Annexure-1 in so far as the election authority has set aside the election of the petitioner by holding him not eligible to contest the election for the post of Chairman, Korari PACS (Belchi) is upheld. However the order dated 21.6.2010 in so far as it seeks to declare the respondent no.6, elected unopposed, is quashed and set aside. The writ petition is disposed of with the direction aforesaid. Needless to add that the respondents may proceed to hold fresh election for the post of Chairman, Korari PACS (Belchi) in accordance with law. ahk ( Jyoti Saran, J.)