IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.633 of 2011 SUNAINA DEVI, WIFE OF SRI ANIL KUMAR SINGH, RESIDENT OF VILLAGE-SALEPUR, P.O. NAILI, P.S. CHANDI, DISTRICT-NALANDA AT BIHARSHARIF. ……………………………………….PETITIONER-APPELLANT. Versus 1. THE STATE ELECTION COMMISSION (PANCHAYAT), SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONER. 2. THE STATE ELECTION COMMISSONER, THE STATE ELECTION COMMISSION (PANCHAYAT), SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 3. THE SECRETARY, THE STATE ELECTION COMMISSION (PANCHAYAT), SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 4. THE DISTRICT ELECTION OFFICER (PANCHAYAT), NALANDA AT BIHARSHARIF, DISTRICT-NALANDA AT BIHARSHARIF. 5. THE RETURNING OFFICER (PANCHAYAT), CHANDI BLOCK, DISTRICT-NALANDA AT BIHARSHARIF. ……………………………..RESPONDENTS-RESPONDENTS. ----------- For the Appellant : Mr. S.B.K. Manglam and Mrs. Anita Kumari, Advocates. For the State Election : Mr. Sanjeev Nikesh, Advocate. Commission. ------------- 2. 20.4.2011. Heard learned counsel for the appellant and learned counsel for the State Election Commission. This appeal has been preferred against an interlocutory order passed by the Writ Court on 4.4.2011, whereby the writ petition bearing C.W.J.C. No.5688 of 2011 2 has been adjourned for four weeks to enable the counsel for the Commission to file counter affidavit. The Writ Court has not granted interim relief to the appellant and has observed that unless the Court is satisfied on merits and hears the concerned parties, question for considering the interim prayer would virtually amount to allowing the writ petition and, hence, refused to grant the interim relief. The appellant has preferred the writ petition against the rejection of her nomination for the post of Member Panchayat Samiti in Chandi Block, District-Nalanda. Learned counsel for the appellant has placed reliance upon a judgment of the Supreme Court in the case of Deoraj Vs. State of Maharashtra and others, (2004) 4 SCC 697, to submit that in appropriate cases where withholding interim relief would amount to dismissal of the main writ petition itself, the Court has discretion in exercise of power under Article 226 of the Constitution of India to grant interim relief which may tantamount to a mandamus at an interim stage. We have gone through the aforesaid judgment and we find that the Apex Court has no doubt upheld the power of this Court in exercise of Article 226 of the Constitution of 3 India to issue mandamus even at an interim stage in appropriate cases but it has cautioned that granting such relief, which has effect of rendering the main matter almost infructuous at the time of final hearing, must be only in rarest of the rare cases having regard to strong prima facie case, balance of convenience and irreparable injury. In our considered opinion, the order of the Writ Court clearly shows that the Court was not satisfied on merits at the interim stage and, hence, time was granted to the State Election Commission to file counter affidavit. Hence, we do not find any legal infirmity in the order under appeal so as to interfere with the same. We have been informed that the election in question is scheduled for 30th of April, 2011. The writ petition is likely to be taken up in the month of May, 2011, when the process of election may virtually be over. In that situation, the appellant may have no case to be decided because after holding of the election, ordinarily he will have to take recourse to the Election Tribunal under the Act. In that view of the matter and having regard to the fact that the Bihar State Election Commission has supervisory and superintending power in such matters and there is some 4 time still left for the Commission to apply its mind, while disposing of this appeal, we direct the State Election Commission that since the appellant has already approached the Commission on 23.3.2011 as per the averment in the writ petition, the grievance of the appellant should be considered by the Commission expeditiously and, preferably, within one week from today in accordance with law. Let a copy of this order be given to the learned counsel for the State Election Commission. P.S. (Shiva Kirti Singh, J) ( Dr. Ravi Ranjan, J)