IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1429 of 2009 MUSTARI KHATOON, wife of Md. Akbar Ali, Resident of village Garhani, P.S. Charpokhari, District Bhojpur … Respondent No.5A-Appellant Versus 1. THE STATE OF BIHAR 2. The State Election Commissioner, Birchand Patel Path, Sone Bhawan, 3rd Floor, Patna 3. The District Magistrate cum District Election Officer, Gram Panchayat, Bhojpur 4. The Sub Divisional Officer, Sadar cum Returning Officer, Ara 5. The Block Development Officer cum Assistant Returning Officer, Garhani, Block, Bhojpur 6. Afsana Khatoon, wife of Jiyoul Haque, resident of village and post Baligawan, District Bhojpur 7. Parwati Devi, wife of Dwarika Prasad, Resident of village Tenuni Lalganj, Post Baligawan, P.S. Ayer, District Bhojpur 8. Kamroon Nisha, wife of Md. Mumtaz, resident of village and Post Sheopur, P.S. Agioan Garhani, District Bhojpur 9. Reena Devi wife of Chaneshwar Prasad, R/o village and Post Garhani, P.S. Charpokhari, District Bhojpur … Respondents. ----------- 2. 2.2.2010 The factual scenario which have been sought to be projected in an extremely zigzag manner, simply stated, is that an election was held for the post of Member, Zila Parishad of Constituency No.9 for Bhojpur, and Reena Devi, the 9th respondent herein, was declared elected for the said post. Being dis-satisfied with her election one Afsana Khatoon, another candidate who had contested the election, preferred Election Petiton No. 12/2006 2 challenging the election of the returned candidate. The returned candidate being aggrieved by such initiation invoked the jurisdiction of this Court under Article 226 of the Constitution of India forming the subject matter of C.W.J.C.No. 12003/2007 and a Bench of this Court by an order dated 3.10.2007 allowed the writ petition on the foundation that the election petition was presented beyond a period of limitation of 30 days and the delay could not be condoned. While allowing the writ petition the Bench granted liberty to the Election Commission to take appropriate action as postulated under section 136 of the Act. The Commission taking recourse to the said provision disqualified Reena Devi, the returned candidate. The said fact has been brought on the record by way of supplementary affidavit before this Court. After the order of the Election Commission come into existence the present appellant Mustari Khatoon, who had secured second position in the election, approached the Election Tribunal by filing an application under section 151 of the Code of Civil Procedure read with section 140 of the Bihar Panchayat 3 Raj Act, 2006 (for short „the Act‟) with a prayer that in view of the subsequent events she should be declared as the winner for the post of the Member of Zila Parishad, Constituency No.9. The tribunal by the order dated 25th February, 2009 allowed the prayer and directed that she should be treated as the returned candidate. Being aggrieved by the same the elected candidate preferred C.W.J.C.No. 5613/2009 and the learned Single Judge by the impugned order has set aside the order passed by the Tribunal. While setting aside the order he has observed as follows: “If there is no other impediment or restraint of judicial kind, then it is needless to say that the petitioner will be free to perform her duty as a Zila Parishad member.” We have heard Mr. Roy, learned counsel for the appellant and Mr. S.P.Singh, learned counsel for the State. It is submitted by Mr. Roy that a piquant situation has cropped up and therefore, the order passed by the tribunal cannot be faulted and the learned Single Judge has erred in interfering with the said order. Mr. Singh, learned counsel for the State, 4 supported the order passed by the learned Single Judge. If the submission of Mr. Roy that the situation is quite piquant is accepted, it can be said without any fear of contradiction that Mustari Khatoon is the architect and the sole protagonist for creating such a situation. It is well-nigh in conceivable that in an election proceeding where it ceased to exist by virtue of interference by this Court an application can be filed under section 151 of the Code of Civil Procedure and 140 of the Act seeking that she should be declared as a returned candidate. The applicant, if allow ourselves to say so, had harboured the notion which has in the realm of absurdity and the order has been soundly and correctly set aside by the learned Single Judge. At this juncture Mr. Roy submitted that Reena Devi has been disqualified by the Election Commission in exercise of power under section 136(2) of the Act and, therefore, she cannot be allowed to perform. The submission might have weighed with us but the learned Single Judge has passed the order which is reproduced hereinabove. It is couched in an extremely guarded manner and there is no command. Once there is 5 no command there is no question of interference. We do not intend to comment on the order passed by the Election Commission as that is not the lis before us. In the result, the appeal being, devoid of merit, stands dismissed. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/