IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8895 of 2011 Vijay Kumar Sinha, S/o Late Chandeshwar Prasad, resident of Village- Sabanhua (Baban Bigha), P.S.Harnaut, District- Nalanda. …………………………………………….Petitioner. Versus 1. The State Election Commission (Panchayat), through its Secretary, Sone Bhawan, B. C. Patel Path, Patna. 2. The State Election Commissioner (Panchayat) Sone Bhawan, B.C. Patel Path, Patna. 3. The Secretary, State Election Commission (Panchayat), Sone Bhawan, B.C. Patel Path, Patna. 4. The District magistrate-cum-District Election Officer (Panchayat), Nalanda, Biharsharif. 5. The Sub Divisional Officer, Nalanda, Bihar Sharif. 6. The Block Development Officer-cum-Returning Officer, Harnaut, Nalanda. …….Respondents. ----------- 2. 18. 05. 2011. Heard learned counsel for the petitioner and the State. 2. This is a petition for issuing a writ in the nature of mandamus commanding the respondents to dispose of the petitioner’s representation. 3. The grievance of the petitioner is that Booth No. 103, Ward No. 4 of the Panchayat has total number of voters are 626. However, the Election Commission has violated the circular that if at the polling booth, number of voters are more than 500, then there will be arrangement of two polling booths, one for ladies and one for gents and has annexed the said circular as annexure to this petition and has contended that since there was only one polling booth 2 hence only 341 voters are only caste their vote. It has further been contended that petitioner filed a representation on 04. 05. 2011 for re-polling, but the said representation has not been disposed of. 4. Learned counsel for the Election Commission has however contended that under Article 243 O of Constitution of India this Court in a writ jurisdiction has no power to interfere the process of election in view of non- obstinate clause of Article 243 O. Further, it has been pointed out Rule 71 of Bihar Panchayat Election Rules 2006 that re-poll can only be taken for consideration by the State Election Commission on the report of the Presiding Officer- District Magistrate-cum- District Election Officer. 5. However, having regard to the respective submissions, question for consideration whether the writ is maintainable and whether the grievance of the petitioner can be redressed in this forum. 6. However, since Article 243 O starts with non- obstinate clause “notwithstanding anything in this Constitution” and hence Article 243 O shall prevail over other part of the Constitution. Further Article 243 O (b) provides that no election of any Panchayat was called in 3 question except by an election petition as enshrine the legislature and Section 137 and 138 of Bihar Panchayati Raj Act provides if any grievance raised concern with Panchayat Election, then file a election petition. Hence, having alternative remedy provides, this Court has no jurisdiction to interfere in the process of election under Article 226 of the Constitution of India. The fixing of booth in Panchayat election is domain of State Election Commssion or the election petition before concern Munsif. Hence no remedy by writ petition is sustainable. 7. In that view of the matter learned counsel for the petitioner submits that he has already filed a petition before the Election Commission. However, the petitioner may raise his grievance before the Election Commission and the Election Commission may consider the petition filed by the petitioner. 8. In view of above observations/directions, the writ petition is disposed of. m.p. ( Gopal Prasad, J.)