IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9588 of 2011 Dhanwarti Devi wife of Jhalak Ram, resident of village and P.O. Agion, P.S. Agion, Garhani, District Bhojpur, Ara …. Petitioner Versus 1.The State Of Bihar through the Chief Electoral Officer, Bihar, Patna 2. The District Magistrate, Patna 3. The District Election Officer, Panchayati Raj, District Bhojpur, Ara 4. The Sub Divisional Officer, Sadar, Ara 5. The Block Development Officer, Agaion Block, Bhojpur 6. Dhanamuni Devi wife of Ramesh Ram, resident of Village & P.O. Agion, P.S. Agion, District Bhojpur ….. Respondents For the Petitioner: Mr. Manoj Kumar, Advocate For the State : Mr. Amaresh Kumar, AC to GP 20 For the State Election Commission: Mr. Sanjeev Nikesh, Advocate For Respondent no.6: Mr. Shabbir Ahmad, Advocate M/s Anil Kumar Saxena, Navin Kumar Singh 4 4.11.2011 Heard counsel for the petitioner and learned counsel appearing on behalf of the State Election Commission as well as learned counsel appearing on behalf of Respondent no.6. The petitioner in effect prays for unseating respondent no.6 and for issuance of certificate of being elected as Mukhiya in her favour. The petitioner along with respondent no.6 and others contested election for the post of Mukhiya of Agion Gram Panchayat held in the year 2011. On 18.5.2011, the counting of the result of Agion Gram Panchayat concluded and the Returning Officer issued details of election result under rule 81(1) of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as „the Rules‟). As per the details of votes secured by the candidate mentioned in declaration form prepared under rule 81(1) of the Rules, the petitioner polled 638 votes, whereas Dhanamuni Devi secured 637 votes. The grievance of the petitioner is that subsequently another declaration under Rule 81(1) of 2006 Rules was issued on 19.5.2011 2 by the same Returning Officer wherein the parties were shown to have polled different votes than the one shown in the earlier declaration issued on 18.5.2011. As per declaration issued on 19.5.2011, the petitioner is shown to have polled 629 votes, whereas Respondent no.6 Dhanamuni Devi was shown to have polled 636 votes. The petitioner states that the number of votes polled by him and that polled by respondent no.6 has subsequently been altered to favour respondent no.6. She submits that the declaration issued on 18.5.2011 showed the total votes polled as 3224, whereas in the declaration dated 19.5.2011, the figure came down to 3216. The petitioner states that the respondents in collusion with each other favoured respondent no.6 and ultimately she has been shown to have secured more votes than the petitioner. The petitioner has annexed newspaper report to show that money exchanged hands in the design to show respondent no.6 victorious. The petitioner thus submits that the election of Respondent no.6 be annulled and she be declared as having been elected as Mukhiya of the Gram Panchayat. Counsel for the Respondent no.6 submits that no final certificate of being elected was issued to the petitioner under Rule 82 of the Bihar Panchayat Raj Rules, 2006. Thus no finality can be attached to the declaration, dated 18.5.2011 issued under Rule 81 in favour of the petitioner. He further submits that the declaration under Rule 81 issued by the Returning Officer only gives the details of votes polled by different candidates which can be corrected, if 3 mistake appears in calculation. He submits that on due calculation, the respondent no.6 was found to have secured more votes than the petitioner and as such certificate under Rule 82 was issued in her favour. She submits that once a candidate is declared elected under rule 82, the remedy before the losing candidate is only by way of filing of an election petition under section 137 of the Panchayat Raj Act, 2006 read with Article 243-O (b) of the Constitution of India. I have heard counsel for the parties. It is not in dispute that certificate of having won the election under Rule 82 of „the Rules‟ was issued in favour of Respondent no.6. On 18.5.2011, the details of votes polled by different candidates were declared under Rule 81 showed the petitioner to have polled the highest votes. On the very next day i.e. 19.5.2011, another declaration was made under rule 81(1) of the Rules which showed that the Respondent no.6 has polled maximum number of votes. The electoral process comes to an end, with the issuance of certificate to the returned candidate under Rule 82 and its publication in the gazette. The petitioner has prayed for setting aside the election of Respondent no.6. She has taken the plea that the results have been maneuvered to favour Respondent no.6. The State Election Commission and Respondent no.6 controverted the stand of writ petitioner. They have taken the stand that it is always open to the Returning Officer/Assistant Returning Officer to correct clerical mistakes incurred in counting of the ballots. The declaration of number of votes polled can always be checked and corrected and fresh 4 declaration can be issued under Rule 81 any time prior to issuance of certificate declaring a candidate to have elected under Rule 82 of the Rules. The issue is whether a challenge can be made in writ jurisdiction under Article 226 and 227 of the Constitution of India once election result is declared under rule 82 on the ground that the counting has not been fair and votes have been manipulated in favour of the other party (Respondent no.6). The panchayat system of local self government covering rural areas was constitutionally recognized by inserting part IX to Chapter V of the Constitution of India. Article 243-O puts a bar to interference by court in electoral matter. Sub-Article (2) of Article 243-O states that an election to the Panchayat can be challenged only way of an election petition and in such manner as provided for by or under any law made by the legislature of the State. Sub-Article (b) of Article 243-O is quoted hereinbelow for reference: “243-O. Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution- (a) xx xx xx (b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State”. In accordance with the mandate of Article 243-O, the State legislature incorporated section 137 in the Bihar Panchayat Raj Act, 2006. Section 137 states that an election to office of a Panchayat and Gram Kutcherry shall not be called in question except by way of an election petition. The proviso to section 137 of the Act provides the 5 details and the manner in which the election petition would be presented. Thus in view of Article 243-O of the Constitution and section 137 of the Bihar Panchayat Raj Act, an election to an office of Panchayat Samiti can be questioned only through an election petition. However, Article 243-F of the Constitution of India provides that a person can be disqualified for being chosen as, and for being, a member of a Panchayat, if he incurs disqualification as provided by or under any law for the time being in force for the purposes of elections to the legislature of the State concerned. Sub-Article (2) of Article 243-F provides that if a question is raised as to whether a Member of the Panchayat suffers from any disqualifications, mentioned in law enacted for the purpose, the question shall be referred for the decision of such authority and in such manner as the legislature of the State, by law, provide. Section 135 of 2006 Act states that every person whose name figures in voter list, unless disqualified under section 136(1) would be qualified to be elected as a member or office bearer of a Panchayat, subject to policy of reservation of seats for Scheduled Caste, Scheduled Tribes or Backward Caste or a Woman. Section 136(1) of the Bihar Panchayat Raj Act states that a person will stand disqualified for or after election for being a member of Panchayat which would include all the three level of Panchayat system of local self government, including election of Mukhiya, Sarpanch and Panch of Gram Kutcherry etc. Section 136(2) of the Act states that if any question arises as to whether Member of Panchayat at any level 6 including Mukhiya of Gram Panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Kutchahry or Panch of Gram Kutchahry was disqualified before election or has incurred disqualification after election as provided in Article 243-F of Constitution of India, the question shall be referred for the decision of the State Election Commissioner. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The allegations of manipulation of votes is not one of the disqualifications under the Bihar Panchayat Raj Act provided under section 135(1) and 136(1) of the Act, though the same may be a ground for setting aside the election through an election petition provided under section 137 of the Act. Thus the petitioner ought to have, preferred an election petition for the reliefs sought for in this application. This writ application is accordingly dismissed as non-maintainable. Md.Jamaluddin Khan (Samarendra Pratap Singh,J)