IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17388 of 2009 1. NILU DEVI W/O SURAJ KUMAR CHOUBEY R/O MISHRAULI, P.S.- BIHIYA, DISTT.- BHOJPUR (ARA) Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY DEPARTMENT OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR, PATNA 2. THE DISTRICT MAGISTRATE DISTT.- BHOJPUR AT ARRAH 3. THE DISTRICT PANCHAYAT RAJ OFFICER DISTT.- BHOJPUR AT ARRAH 4. SUB-DIVISIONAL MAGISTRATE JAGDISHPUR, DISTT.- BHOJPUR AT ARRAH 5. THE BLOCK DEVELOPMENT OFFICER - CUM - EXECUTIVE OFFICER PANCHAYAT SAMITI BIHIYA, BLOCK- BIHIYA, DISTT.- BHOJPUR AT ARRAH 6. STATE ELECTION COMMISSION, BIHAR THROUGH ITS SECRETARY STATE ELECTION COMMISSION, BIRCHAND PATEL MARG, PATNA-1 7. URMILA DEVI W/O KRISHNA BIHARI SINGH R/O VILL.- VARASHRA, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH 8. KANHAIYA SINGH S/O SHIV MANGAL SINGH R/O VILL.- KUNDESHAR, P.S.- SHAHPUR, DISTT.- BHOJPUR AT ARRAH 9. SAROJ PANDEY S/O SHIV BHIBUTI PANDEY R/O VILL.- SHIVPUR, P.S.- SHAHPUR, DISTT.- BHOJPUR AT ARRAH 10. CHUNNU CHOUBEY S/O LATE KESHWAR CHOUBEY R/O VILL.- BIRPUR, P.S.- SHAHPUR, DISTT.- BHOJPUR AT ARRAH 11. RAJIV THAKUR S/O SHIVJI THAKUR R/O VILL.- SIKARIA, P.S.- TIAR, DISTT.- BHOJPUR AT ARRAH 12. ANITA DEVI W/O SURENDRA SINGH R/O VILL.- KAMARION, P.S.- TIAR, DISTT.- BHOJPUR AT ARRAH 13. AKHILESH KUMAR S/O PARAS SINGH R/O VILL.- YADAVPUR, P.S.- TIAR, DISTT.- BHOJPUR AT ARRAH 14. SANTOSH DEVI W/O KAMESHWAR SHARMA R/O VILL.- GAUDAR, P.S.- SHAHPUR, DISTT.- BHOJPUR AT ARRAH 15. DHURENDRA DUSADH S/O JAGNARAYAN PASWAN R/O VILL.- OSAI, P.S.- BIHIA, DISTT.- BHOJPUR AT ARRAH 16. ANSHARUL HAQUE KHAN S/O AJIJ KHAN R/O VILLAGE AND P.O.- RANI SAGAR, P.S.- SHAHPUR, DISTT.- BHOJPUR 17. MANJU DEVI W/O UPENDRA THAKUR R/O VILL.- CHAKWATH, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH 18. RAM LAL PRASAD S/O BUNALA RAM R/O VILL.- BELAUNA, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH - 2 - 19. MIRA DEVI W/O RAM JIWAN RAM R/O VILL.- KALYANPUR, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH 20. RAMAKANT THAKUR S/O GUPTESHWAR THAKUR R/O VILL.- DHOGRA, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH 21. SANJU DEVI W/O LAL BABU R/O VILL.- KATIYA, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH 22. RAFIQUE ANSHARI S/O MD. WAJIR ANSHARI R/O VILL.- KUMARDAH, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH 23. ARTI DEVI W/O UMESH KUMAR R/O VILL.- GHAGHA, P.S.- BIHIYA, DISTT.- BHOJPUR AT ARRAH ----------- 3 28.1.2010 I.A.No. 8562 of 2009 has been filed on behalf of respondent no.7 for vacating the interim order passed by this Court on 16.12.2009.By the interim order, this Court has stayed the election result, as declared in favour of respondent no.7, by draw of lots. From the order of this Court, it is clear that it was primarily based on consideration of the facts, as asserted in the writ petition, that there was no notice to either of the two contesting candidates, whose fate has to be decided by draw of lots, they were not noticed nor they were present and manner prescribed for drawing such lots has not been followed. On behalf of respondent no.7, Mr.S.N.P. Sharma, learned Senior Counsel submits that a reference to Annexure C of the counter affidavit of respondent no.7 would show that notices were duly issued and served on the petitioner with regard to fixing the date and venue where lots would be drawn. Learned counsel for the petitioner submits that notice aforesaid is not in the prescribed format. Learned counsel emphasizes that the petitioner and respondent no.7 were both not present. Mr. S.N.P.Sharma, learned Senior Counsel, on behalf of - 3 - respondent no.7 then points out that the petitioner admits that as contemplated under the procedure prescribed by the State Election Commission in relation to Section 40(iv) of the Gram Panchayat Act , petitioner had already raised this dispute before the Collector of the district, who is the competent authority in the matter. In my view, a reference to notice, as contained in Annexure C, would show that it clearly indicates that there is a tie between the petitioner and the respondent no.7, which would be decided in accordance with draw of lots , as prescribed on a fixed date at a venue disclosed. This notice may not be verbatim notice of that statutory notice but in my view what has to be looked into the substance of the matter, which is lacking if petitioner choose not to be present, he cannot complain of the notice not being served. Further as petitioner has already filed dispute case before the Collector, who is the statutory authority to decide such dispute, in my view, the writ petition itself cannot be maintained because it is well settled that if a statutory remedy has already been availed and is pending the writ petition for the same relief should not be entertained. In view of the aforesaid, the interim order , as aforesaid, is vacated and the writ petition is itself disposed of with a direction to the respondent- Collector, Bhojpur at Ara to dispose of the dispute case, as filed by the petitioner, as early as possible, preferably within a period of three months from the date of production of a copy of this Court before him without being prejudiced by the order of this Court in any manner. singh (Navaniti Prasad Singh,J)