IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6085 of 2011 Narayan Sharma, son of Bhutto Sharma, resident of Village- Chhoti Sakarpura, Panchayat- Rani Sakarpura, P.S. and Block-Khagaria, District- Khagaria. ……….Petitioner. Versus 1. Bihar State Election Commissioner, Election Commission, Bihar, Patna. 2. The State of Bihar through the Collector-cum-District Election Officer, Khagaria. 3. The Block Development Officer-cum-Block Election Officer, Khagaria. …….Respondents. For the petitioner :- Mr. Prabhakat Jha, Advocate. Dr. Chandrashekhar Azad, Advocate. For the Election Commission :- Mr. Sanjiv Nikesh, Advocate. For the State :- Mr. N. K. Singh, G.P. 26. Mr. S. K. Giri, Advocate A.C. to G.P. 26. ----------- 3. 20. 04. 2011. Heard learned counsel for the petitioner and the State. 2. This writ petition has been filed for issuing a writ in the nature of mandamus or any other appropriate writ commanding the respondent-State Election Commissioner to stay the schedule of Panchayat election at Ranipur Sakarpura Panchayat under Khagaria Block, District-Khagaria, on the ground that the nomination paper of the petitioner has wrongly been cancelled arbitrarily with ulterior motive. 3. The case of the petitioner that he filed a nomination in the office of the Block Development 2 Officer-cum-Block Election Officer, Khagaria to contest the election of Mukhiya in Ranipur Sakarpura Panchayat under Khagaria Block in the District of Khagaria in view of announcement of Panchayat election by the State Election Commission. The election was notified and announced on 22. 03. 2011. The date published for filing of nomination from 28. 02.2011 to 07. 03. 2011. The further case is that the petitioner that according to schedule, 10. 03. 2011 was the date fixed for the correction of nomination paper, 12. 03. 2011 was date fixed for allotment of symbol and 24. 04. 2011 is the date fixed for voting. 4. The further case of the petitioner is that petitioner filed nomination on 07. 03. 2011. However, in the nomination paper the column for the proposer was left vacant. Hence, on the date fixed for correction of nomination paper, the petitioner went to office of Block Development Officer-cum-Block Election Officer and remained there from 10.30 A.M. to 4 P.M., but the signature of the proposer was not taken or corrected in the nomination paper and hence nomination paper of the petitioner was cancelled. 3 5. The grievance of the petitioner is that he was not given opportunity to fill up the vacant column with the signature of the proposer and nomination paper of the petitioner has been cancelled without giving any opportunity to the petitioner. The petitioner thereafter approached the Collector-cum- District Election Officer, as well as Office of the Election Commission, Bihar, Patna, and even filed a petition before the District Election Officer as well as the State Election Officer by FAX, but in vain and hence has filed the writ petition to ventilate the grievance for a direction or issuance of writ by this Court to make correction in nomination so that he may contest the election. 6. Learned counsel for the petitioner submits that petitioner has got right to contest the election and petition for nomination has wrongly been rejected malafidely and arbitrarily and hence there is violation of Article 14 of the Constitution of India as he has been devoid to contest the election, if the nomination paper is not accepted. 7. Learned counsel for the State Election Commission however, raised preliminary objection that 4 since the election has been announced and notification for the election has already been notified, hence, process of the election has set in. Hence this Court has no jurisdiction under Article 226 of the Constitution of India to entertain any application which touches the election of the Panchayat in view of Article 243 O of the Constitution of India and has placed reliance unreported decision in C.W.J.C. No. 5234 of 2011 (Palti Devi Vrs. The State of Bihar & Ors.) & 2006 (2) PLJR 482 and 483. 8. Hence in view of respective submission the question for consideration whether the rejection of nomination by the Returning Officer is regard of election of Mukhiya when Panchayat election has been notified and announced can be interfere in writ jurisdiction. 9. However in this regard the fact undisputed that Panchayat election has been notified. In pursuance of Panchayat election, nomination has been filed by Mukhiya which has been rejected by the Block Development Officer-cum-Block Election Officer who is Returning Officer. However, rejection of nomination by a Returning Officer is a definite steps toward the election of the candidate concern as election may be taken to embrace the 5 whole procedure which consists of several stages whereby person is declared elected. 10. However it is relevant to quote; "Article 243 O- Notwithstanding anything in this Constitution;- (a) the validity of any law relating to the delimitation of Constituency or the allotment of seat to such Constituency made or purported to be made of under Atricle 243 K shall not be called in question any court, (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided by or under any law made by the legislature of a State. 11. However Article 243 O starts with a non obstinate clause and Article 243 O (b) provides that election of Panchayat shall only be called in question by an election petition presented to such authority and in such manner as provided by legislature of a State. The legislature has provide the mode, to challenge election 6 under Section 137 and Section 138 of the Bihar Panchayat Raj Act by election petition before the Munsif within whose jurisdiction such Gram Panchayat is situated. 12. Hence the non-obstinate clause with which the Article 243 O begins debar the High Court power of writ jurisdiction or any other court in the land to entertain a suit or proceeding calling in question the election of Gram Panchayat. 13. The restriction impose by Article 243 O in harmony with the principle at hand, if a right is creation of special statute where in a remedy is provided for enforcement of such right then that remedy is alone and no other remedy is available to the person who has been denied the exercise of that right. 14. Hence Article 243 O shall prevent over other part of the Constitution to debar any court, even the High Court in its jurisdiction of under Article 226 to provide remedy in case if dispute is with regard to Panchayat election. 15. Hence the petitioner whose nomination has been rejected has a remedy by election petition before Munsif. He is not entitled to seek remedy by means of a 7 writ for the purpose of doing that for which there is a remedy only by way of election petition. 16. Hence the High Court has no power under Article 226 of the Constitution of India. 17. Hence the writ petition is hereby dismissed. m.p. ( Gopal Prasad, J.)