IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4 of 2009 GEETA DEVI, wife of late Ramchandra Sahani, resident of Ward No.5, Belsand, P.O.Belsand, P.S. Belsand, District- Sitamarhi. Versus 1. THE STATE Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner. 2. The Secretary, State Election Commission, Sone Bhawan, Birchand Patel Path, Patna. 3. The Deputy Secretary, State Election Commission,Sone Bhawan, Birchand Path Patna, Patna. 4. The District Election Officer (Municipality)-cum- District Magistrate, Sitamarhi, District- Sitamarhi. 5. The Returning Officer, Nagar Panchayat By- election, Belsand-cum- Block Development Officer, Riga, District- Sitamarhi 6. Md. Faiyaz, son of Md. Kazim, resident of Ward No.5, Belsand, P.O. Belsand, P.S. Belsand, District-Sitamarhi. 7. Shyam Babu Prasad, son of Sri Baidyanath Prasad, resident of Ward No.3,Belsand, P.O.Belsand, P.S. Belsand, District- Sitamarhi. With CWJC No.549 of 2009 SHYAMBABU PRASAD,son of Baidyanath Prasad, resident of village-Belsand, Ward No.3, P.S. Belsand, P.O. Belsand,District- Sitamarhi. Versus 1.THE STATE OF BIHAR 2.State Election Commission, Bihar, Patna through its Commissioner, Sone Bhawan, 3rd Floor, Veerchand Patel Path, Patna-8000001. 3.TheSecretary, State Election Commission, Sone Bhawan, 3rd Floor, Veerchand Patel Path, Patna- 8000001. 4.Joint Election Commissioner, State Election Commission, Bihar, Sone Bhavan, 3rd Floor, Veerchand Patel Path, Patna-8000001 5.District Election Officer ( Nagar Palika)-cum- District Magistrate, Sitamarhi. 6.Sub-divisional Officer, Belsand, District- Sitamarhi 7.Executive Officer, Nagar Panchayat, Belsand, District- Sitamarhi 8.Election Officer of Nagar Panchayat, Belsand, (Upchunav of 2008) of Ward No.6)-cum- Block Development Officer, Riga, District- Sitamarhi. 9. Smt. Geeta Devi,wife of late Ram Chandra Sahani, resident of village-Belsand, Ward No.5, P.S. Belsand, P.O. Belsand, District Sitamarhi. ----------- For the petitioner: Mr. S.B.K.Manglam,Advocate (In CWJC No.4/2009) For the petitioner: Mr.Bindhya Kershari Kumar,Senior Advocate (In CWJC No.549/2009)Mrs. Ranjana Sinha,Advocate Mr. Neeraj Kumar,Advocate Mr. Radheshyam Kumar,Advocate 2 For State Election Commission:Mr. R.S. Pradhan,Senior Advocate (In both cases:) Mr. Rajeev Lochan,Advocate. For Respondent No.9: Mr. S.B.K. Manglam,Advoate (In CWJC No.549/2009) For the State : Mr. Prashant Kashyap,A.C. to AAG IV (In C.W.J.C. No.549/2009 --- 6. 9.4.2009 Heard learned counsels for the parties. Both the writ applications arise out of the same election process pertaining to Ward No.6 of Belsand Nagar Panchayat and they have been, accordingly, heard together and are being disposed of by this common order. In C.W.J.C. No.4 of 2009, the petitioner Geeta Devi seeks quashing of letter No.3192 dated 15.12.2008 issued under the signature of respondent No.2, the Secretary, State Election Commission, by which a direction was issued for acceptance of nomination paper of respondent No.6, Md. Faiyaz, which was earlier rejected by respondent No.5, the Returning Officer and also for quashing the part of the letter dated 26.12.2008 issued under the signature of respondent No.2, by which he has directed the respondent No.4, the District Election Officer to hold an election on 15.1.2009 in between the petitioner and respondent No.6, despite the fact that the nomination paper of respondent No.6 was earlier rejected by the Returning Officer and after scrutiny and hearing the respondent No.6, the State Election Commission should not have directed the Returning Officer to accept the nomination paper of respondent No.6 and for a further declaration that since the petitioner had become the only candidate whose nomination paper was validly accepted she deserves to be declared 3 elected uncontested in the bye-election in question from Ward No.6 of the Nagar Panchayat. C.W.J.C. No.549/2009 has been filed by the petitioner, Shyam Babu Prasad, for quashing the order dated 26.12.2008 passed by respondent No.2, Secretary, State Election Commission, by which the earlier order passed under the provision of Section 18 (m) of the Bihar Municipal Act, 2003 has been reviewed and a direction was given to the District Election Officer to allow the nomination of respondent No.9, Smt.Geeta Devi as valid and proceed with the election. The grievance of the petitioner, Geeta Devi, is that the Returning Officer having once rejected the nomination paper of respondent No.6, then in terms of Rule 47 of the Bihar Municipal Election Rules, 2007 such decision of the Returning Officer, shall be final and it was not open to the State Election Commission to pass an order countermanding the same and directing the Returning Officer to accept the nomination of respondent No.6. It is submitted that if the said illegal action has not been taken by the State Election Commission then the petitioner, Geeta Devi, being the only remaining candidate whose nomination paper was accepted as valid, ought to have been declared elected from Ward No.6 of the Nagar Panchayat. Learned counsel for the State Election Commission, on the other hand, submits that the Election was notified on 22.11.2008 and, thereafter, at the stage of scrutiny of nomination papers, various complaints and cross-complaints had arisen in which the State Election Commission in exercise of its powers under Article 243ZA of the 4 Constitution and the corresponding provisions of the Bihar Municipal Act, 2007 had considered the said complaints and though initially it rejected the nomination paper of the petitioner, Geeta Devi, on the ground of being disqualified in terms of Section 18 (1) (m) of the Bihar Municipal Act but after further consideration of the matter it came to the conclusion that she was not disqualified and, accordingly, directed that her nomination paper should be accepted. Similarly, on a consideration of the complaints regarding wrongful rejection of nomination of respondent No.5, Md. Faiyaz, the Commission came to the conclusion that on the ground of his age as mentioned in the electoral roll he was qualified for being a candidate and directed that his nomination should be accepted. It is submitted by learned counsel that both the decisions were taken by the Election Commission in exercise of its powers of superintendence, direction and control under the provisions of the Constitution and the Bihar Municipal Act as also Rule 92 of the Bihar Municipal Election Rules, 2007, which provides that the State Election Commission may issue from time to time such directions as it deems fit for the efficient conduct of the election. The main contention of learned counsel for the State Election Commission, however, is that the writ petition itself is not maintainable in view of the bar contained in Article 243ZG(b) of the Constitution, which is pari materia with Article 329 (b), and the corresponding Section 478 (b) of the Bihar Municipal Act, 2007. It is submitted that the election process has been started with the notification 5 dated 22.11.2008 and is yet to be completed by the final declaration of the result and thus in view of the said Constitutional and statutory provisions, this Court ought not to interfere with the same by exercising its discretionary jurisdiction under Article 226 of the Constitution. It is further submitted that as has been held in a catena of decisions of the Constitution Bench of the Supreme Court as also of this Court, an election to the municipal bodies can only be challenged by filing an election petition after the results have been declared and not by approaching this Court in its writ jurisdiction. In support of the aforesaid proposition, learned counsel for the State Election Commission relies upon various decisions of the Constitution Bench in the case of N.P.Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and others : A.I.R. 1952 SC 64, in paragraph No.13 of which it has been laid down as follows:- “13. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Art.226 of the Constitution. This argument however is completely shut out by reading the Act along with Art. 329 (b). It will be noticed that the language used in that article and in S.80 of the Act is almost identical, with this difference only that the article is preceeded by the words “notwithstanding anything in this Constitution”. I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.” He also relies upon a decision of a learned single Judge of this Court in the case of Babita Devi Vs.The State of Bihar and others and analogous cases: 2006 (2) PLJR 483, paragraph No.3 of which is quoted below:- “3. In fact, paragraph -32 of the judgment of the 6 Supreme Court in the case of Election Commission of India Vs. Ashok Kumar (supra) is itself sufficient to accept the preliminary objection raised by learned counsel for the Commission. Sub-paragraph -1 of paragraph 32 makes it clear that the Apex Court wanted to clarify that the term election has to be widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result. If the election or such steps or proceedings are called in question and the questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completion of proceedings in elections.” Learned counsel for the petitioner in the first case, on the other hand, submits that the interference under the writ jurisdiction even while election process is on is not absolutely barred. In this regard, he relies upon the decision of the Constitution Bench in the case of Mohinder Singh Gill and another Vs. The Chief Election Commisioner, New Delhi and others: A.I.R. 1978 SC 851, in paragraph No.35 of which it has been held as follows:- “35.A poll is part- a vital part- of the election but with the end of the poll the whole election is not over ballots have to be assembled, scrutinized, counted, recount claims considered and result declared. The declaration determines the election. The conduct of the election thus ripens into the elector‟s choice only when processed, screened and sanctified, every escalatory step up to the formalized finish being unified in purpose, forward in movement, fair and free in its temper. Art. 329 (b) halts judicial intervention during this period, provided the act possesses the pre-requisites of „election‟ in its semantic sweep. That is to say, immunity is conferred only if the act impeached is done for the apparent object of furthering a free and fair election and the protective armour drops down if the act challenged is either unrelated to or thwarts or taints the course of the election.” He also relies upon a Division Bench decision of this Court in the case of Rama Ballabh Singh Keshari Vs. State of Bihar and others : 2001 (2) PLJR 267, paragraph No.1 of which is quoted herein below:- “1. This appeal is directed against the order dated 7 13.3.2001, passed by a learned single Judge of this Court dismissing the writ petition filed by the appellant challenging the order passed by the Returning Officer, Kutumba, district Aurangabad, rejecting the nomination paper filed by the appellant for election to the post of Mukhiya on the ground of contravention of Rule 39 (2) of the Bihar Panchayat Election Rules, 1995 ( hereinafter referred to as „the Rules‟). The law is well settled that when the election process has started, this Court will not interfere in the matter unless the same has resulted in manifest injustice. In the present case, the nomination paper of the appellant has been rejected on the ground of violation of Rule 39 (2) of the Rules which provides that no candidate will file more than two sets of nomination papers. In this case, the appellant has filed four sets of nomination papers. In our view, the appellant has filed two more sets than required according to the aforesaid Rules and in that case the Returning Officer should have rejected the excess sets of nomination papers instead of rejecting the nomination paper of the appellant. The present case is one case where non-interference will result in miscarriage of justice and is unconscionable. There appears to be a complete non- application of mind on the part of Returning Officer.” On the basis of the aforesaid decisions it is submitted that in the present case manifest injustice has resulted on account of the interference by the State Election Commission against the order passed by the Returning Officer, who rejected the nomination of respondent No.5, Md. Faiyaz, whereas under Rule 47 of the Bihar Municipal Election Rules, the decision of the Returning Officer is final and had the Election Commission not acted contrary to the said statutory rules, then the results would have been that the petitioner had to be declared as elected unopposed. It is, thus, submitted that the unwarranted order of the State Election Commission in not allowing the order of the Returning Officer to become final under Rule 47 and the same in the interest of justice ought to be set aside by this Court and the necessary consequences directed to follow. On a consideration of the rival submissions of the parties, this Court agrees with the submissions made by learned counsel 8 for the State Election Commission. The law laid down by the Constitution Bench of the Apex Court in the case of N.P. Ponnuswami ( supra) has never been dissented or disagreed to by any subsequent decision and that clearly lays down that once the election process is on, it is not open to this Court to exercise its power under Article 226 of the Constitution to interfere with any action of the election authorities so as to interfere with the conduct of the elections. It is true that in Mohinder Singh Gill‟s case, the Apex Court has held that where an act of the election authorities impeached is either unrelated to or thwarts or taints the course of election, then it is open to this Court to interfere with the same. However, the example given in the said decision clearly shows that only in extreme situations like if the direction is given by the Election Commission to the Returning Officer to accept only one nomination or only those which comes from one party as distinguished from other parties or independents then such order shall not be immune from immediate attack before this Court because in such case the action of the Commission would be preventing an election and not promoting it. In the present matter it is probable that some of the actions taken by the Election Commission in furtherance of the election process may be successfully impugned by the aggrieved party in a subsequent election petition, but the same are not of such a nature as to call for interference by the Court while the election process is still on by exercising its jurisdiction under Article 226 of the Constitution. So far as the reliance placed by learned counsel for the petitioner upon the Division Bench decision in Rama Ballabh Singh 9 Keshari‟s case (supra) is concerned, the said decision has also been considered by a learned single Judge in Babita Devi‟ case (supra) and it was held following the view of another learned single Judge in the case of Om Prakash Tiwary vs. Election Commission: 2002 (2) PLJR 620 that it was rendered without noticing the law laid down in the earlier Division Bench judgment in the case of State Election Commission Vs. State of Bihar & ors: 2001 (3) PLJR 677 and was also not in line with the judgment of the Supreme Court. This Court is in agreement with the observations made in Babita Devi‟s case (supra). In this regard, learned counsel for the petitioner also sought to place reliance on a decision of the Supreme Court in the case of K. Venkatachalam vs. A. Swamickan and anr: (1999) 4 SCC 526, in which it was held that Article 226 of the Constitution is couched in the widest possible terms and the jurisdiction of the Court under Article 226 can be exercised when there is any act which is against any provision of law or violative of Constitutional provisions. This decision does not support the case of the petitioner because as laid down in the said decision itself Article 226 of the Constitution can come into play, if no recourse is left to the parties to obtain an appropriate relilef under the provisions of the Act. In K. Venkatachalam‟s (supra) a candidate who was, as a matter of fact, not qualified to be a Member of the Legislative Assembly had by impersonation got elected and no election petition was or could be filed within the statutory period prescribed and in such circumstances, it was held that the jurisdiction of this Court under Article 226 of the Constitution can be invoked. Even while coming to 10 the said conclusion the Apex Court was of the view that in the circumstances of that case the bar of Article 329 (b) will not come into play since that case fell under Articles 191 and 193 of the Constitution and the whole of the election process was over. In the case of the petitioner her remedy is not at all barred and after conclusion of the election, if so required or advised, she can approach the Election Tribunal for challenging all the matters including the action of the State Election Commission, which she has impugned in the present writ petition under Article 226 of the Constitution. The same also applies to the other writ petitioner, Shyambabu Prasad, in C.W.J.C. No.549 of 2009. Thus, on a consideration of the entire matters, this Court is in agreement with the submissions of learned counsel for the State Election Commission that there should be no interference with the election process when the same has not yet concluded by invoking the jurisdiction of this Court under Article 226 of the Constitution. Both the writ applications are, accordingly, dismissed. VPS ( Ramesh Kumar Datta,J.)