IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6049 of 2009 MITHLESH PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: Mr. Saket Tiwary, Advocate For the State: Mr. Sajal Kr. Sinha, AC to GP-17 For the BSEC: Mr. R.s.Pradha,Sr.Advocate Mr. Rajeev Lochan, Advocate For the Respondent no.5: Mr. S.K.Yadav,Advocat ---------- 4 16.9.2009 Heard learned counsel for the parties. By way of the present writ application the petitioner wants disqualification of respondent no.5 from the post of Mukhiya of gram Panchayat Lakhaipur, Block Mohanpur, District–Gaya. Submission of learned counsel for the petitioner is that the respondent no.5 is not eligible to have been elected on the post of Mukhiya as she does not belong to the same village or Panchayat and also in terms of interpretation of section 135 of Bihar Panchayat Raj Act, 2006 read with Rule 41(5) she was ineligible to stand for the said election. His contention is that ineligible person or persons cannot be allowed to keep the post. Learned counsel representing respondent no.5 has filed counter affidavit. His first objection is that the petitioner having failed to challenge the election of respondent no.5 by an election petition, in terms of section 137 of the Act has now challenged his election by way of the present writ application which is not permissible. A plain reading of section 135 of the Act would indicate that there is no bar to a person to contest the election merely because he or she does not belong to the - 2 - Panchayat in question. The name of person or persons must figure of the voterlist to any Panchayat Samittee and that would entitle the person concerned to contest the election. The section does not put any bar on the person to stand merely because he is not enrolled as voter in the voterlist of the same Panchayat. Learned counsel for the petitioner relies on a decision rendered in the case of K. Venkatachalam vrs. A. Swamickan & Anr. reported in (1999) 4 SCC 526 and submits that power of the Court is not barred under Article 226 and 329 of the Constitution of India to make such challenge if the glaring instance of fraud on the constitution is alleged. He also relies on a decision of this Court rendered in the case of Shailendra Pratap Singh vs. State of Bihar 2007 (3) PLJR 204. Learned counsel representing the Bihar State Election Commission informs the Court that the decision of Shailendra Pratap (Supra) has been challenged before the Hon’ble Supreme Court and the order has been stayed. In that view of the matter the said decision of Shailendra Pratap Singh is of no avail to the petitioner. Keeping the rival contentions and submissions of learned counsel for the parities and on plain reading of section 135 of the Act what has been urged on behalf of the petitioner is not found in the intent of the legislature and respondent no.5 cannot be not said to have been disqualified in the eye of law. It is also a fact that remedy of the kind lies under - 3 - section 137 of the Act by way of an election petition. If no challenge of the kind is made by the petitioner on declaration of result of respondent no.5 no amount of improvisation can allow him to challenge the election now by way of writ application. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi,J.)