IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1423 of 2009 1. UDAYMAL CHAUDHARY S/O SRI CHANDAN CHAUDHARY R/O VILL.- DOOMARIA, P.O. AMWA NAKSHID, P.S. GOPALGANJ, DISTT.- GOPALGANJ…..Appellant Versus 1. THE STATE OF BIHAR 2. THE STATE ELECTION AUTHORITY, BIHAR, PATNA THROUGH THE STATE ELECTION 3. THE SECRETARY, STATE ELECTION AUTHORITY, BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, GOPALGANJ DISTT.- GOPALGANJ 5. THE RETURNING OFFICER, GOPALGANJ BLOCK, GOPALGANJ, DISTT.- GOPALGANJ-CUM-BLOCK DEVELOPMENT OFFICER, GOPALGANJ DISTT.- GOPALGANJ 6. THE BLOCK CO-OPERATIVE EXTENSION OFFICER, GOPALGANJ BLOCK DISTT.- GOPALGANJ 7. SRI BIRESH SINGH S/O RAMASHRAY SINGH R/O VILL.- CHAIN PATTI, P.O. GOPALGANJ, P.S. AND DISTT.- GOPALGANJ 8. SHEOJI RAI S/O LATE HAKIM RAI R/O VILL.- AMWA MOUZA, P.O. AMWA DAKSHIN, P.S. GOPALGANJ, DISTT.- GOPALGANJ…..Respondents ----------- 2. 11-01-2010 Heard Mr. S.B.K. Mangalam, learned Counsel for the appellants and Mr. Maruth Nath Roy, A.C to S.C-XI , learned counsel for the Respondents. Pregnability of the order dated 13.10.2009 passed by learned single Judge in CWJC No.13237 of 2009 is called in question in this appeal on the foundation that the learned Single Judge should have dwelled upon the merits of the case as an election be it in respect of Co-operative Society, has its sacrosanctity and cannot be guillotined by the State Election Authority by showing total indifference by not interfering at the appropriate stage. As is perceived from the order passed by the 2 learned Single Judge, he has declined to interfere as disputed questions have been raised making colossal allegations against returned candidate which could be agitated in the election petition. It is not disputed that the appellant contested for the post of Chairman of the Society, namely, Konhawa PACS and he was dissatisfied by the act of the Election Commission as regards the consideration of the ballot papers in respect of booth no.23 despite the factum that the said votes were not signed by the Presiding Officer. Be it noticed, the Bihar State Election Authority Act, 2008 has come into existence and Section 11 of the said Act deals with the election petition which stipulates with regard to the power of interference by Court in electoral matters. It is fruitful to reproduce the said provision which reads as such: “ Section-11, Bar to interference by Courts in electoral matters:- Notwithstanding any thing contained in this Act- (a) The validity of any order relating to the delimitation of constituencies or the allotment or seats a such constituencies, made or purporting to be made shall not be called in question in any court; 3 (b) No election to any body shall be called in question except by an election petition presented to the prescribed authority under this Act. A set of rules have been prescribed, how election dispute is to be filed. Learned counsel for the appellant has commended us to the decisions rendered in the case of M.S. Gill & Other Appellants Vs. Chief Election Commissioner, New Delhi and Ors reported in AIR 1978 SC 851 specially paragraph 35 to highlight that this Court can interfere when the election process is not just and fair. Learned counsel has also placed reliance upon the decision in K. Venkatchalam Vs. Swamickan and Another, 1999 4 SCC 526 . Learned counsel for the State has supported the order passed by the learned Single Judge and has urged that there is no warrant to interfere in exercise of the jurisdiction under Article 226 of the Constitution of India. On a perusal of the grounds mentioned in the memorandum of appeal as well as grounds urged in the writ petition, it is quite clear that the basic grievance of the petitioner relates to counting of certain votes. This could have been raised in an election dispute. In this context, we may 4 refer to the decision rendered in Nanhoo Mal & Others Vs. Hiramal & Others, AIR 1975 SC 2010 wherein their Lordships have held thus: “ The election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provided at any intermediate stage. The election itself can be questioned only on one or more of the three grounds mentioned in sub-section (2) of Section 43B. The only ground in the present case on the basis of which the election of the President was questioned in writ jurisdiction of High Court was that there was a non- compliance with the provisions of R. 6 made under the Act. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.” In our considered opinion the present case attracts the ratio of the said decision. As far as the case of M.S. Gill (supra) is concerned, it dealt with the role of Election Commission and dealt with the subject which is not the controversy in the case at hand. As far as the decision in K. Venkatchalam (supra) is concerned it directly invited the wrath of Article 179 of the 5 Constitution of India and therefore the Apex Court interfered. That apart, their Lordships also opined in absence of other remedy. Article 226 could be invoked. In the case which pertains to individual dispute, we are of the considered opinion that there is no justification to interfere in the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and accordingly, the LPA stands dismissed without any order as to costs. Be it clarified, we have not expressed any opinion whatsoever as regards the merits of the case but left it open for the appellant to avail the statutory remedy. Needless to emphasize, the prescribed tribunal shall dwell upon the controversy with utmost objectivity in quite promptitude. perwez (Dipak Misra, C.J.) (Shiva Kirti Singh, J.)