IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.225 of 2010 AJAY KUMAR SHARMA S/O LATE SITA RAM SHARMA R/O VILL- KAMP, P.O- BALIA, P.S-RUPAULI, DISTT- PURNEA. VERSUS 1. THE STATE OF BIHAR THROUGH THE SECRETARY, BIHAR PANCHAYAT RAJ, BIHAR , PATNA 2. STATE ELECTION COMMISSION, BIHAR, PATNA 3. THE DISTRICT ELECTION OFFICER (PANCHAYAT)-CUM- DISTRICT MAGISTRATE, PURNEA 4. THE RETURNING OFFICER CUM-SUB-DIVISIONAL OFFICER, DHAMDAHA, P.S- DHAMDAHA, DISTT- PURNEA 5. DISTRICT DEVELOPMENT OFFICER -CUM-OBSERVOR PURNEA 6. PINGLA DEVI W/O DHIRENDRA SINGH R/O VILL-DHUSAR, P.O AND P.S- TIKAPATTI, DISTT- PURNEA 7. BRAHMDEO MAHTO S/O LATE RAM SWAROOP MAHTO, R/O VILL-TELIDIHA, P.O AND P.S- TIKAPATTI, DISTT- PURNEA. ----------- For the Petitioner : Mr. Sanjeev Ranjan. Mr. Rampravesh Kumar. For the State Election Commission: Mr. R.S. Pradhan, Sr. Adv. Mr. Sanjeev Nikesh. ------------ 03 28.04.2010 The petitioner has challenged the election of respondent no.6 as Pramukh of Rupauli Panchayat Samiti in the district of Purnea. He has not filed any election petition in terms of Section 137 nor he has moved before the State Election Commission nor has he filed any such application before the District Magistrate- cum-Collector, Purnea in terms of rules and procedures laid down by the State Election Commission. Learned counsel for the petitioner relies on a judgment of this Court in the case of Vijay Kapari Vs. The State of Bihar & Ors. since reported in 2009(3) BBCJ 584 wherein in paragraph- 19, it has been held that no election petition would lie because no rules have been provided, as contemplated under Section 40(4) of - 2 - the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) and, election petition in terms of Section 137 of the Act would not lie. The writ petition was only the remedy. Having heard the parties on this issue, the view as taken by this Court in Vijay Kapari’s case (supra) is correct. But, since the aforesaid judgment, there have been certain changes which are necessary to be noted. Under the Bihar Panchayat Raj Act, 2006 the Panchayats have a primary membership and from the elected primary members Pramukh and Up-Pramukh; Adhyaksha and Upadhyaksha, as the case may be, in respect of Panchayat Samiti and Zila Parishad respectively are elected. Thus, the primary members’ election is a direct election by the electorate, whereas the elections of the officer-bearers, as aforesaid, are not by the electorate but by their elected representative. After the Vijay Kapari’s case (supra) the State Election Commission on 3rd June, 2009 framed set of procedures for election and resolution of such disputes in respect of such elected office-bearers. These procedural rules have been made with reference to Section 40(4) and Section 67(4) of the Act, which reads as follows:- 40. Election of Pramukh and Up-Pramukh-……… (4) The election of Pramukh and Up-pramukh, filling up of vacancies in the said offices and determination of disputes relating to such election shall be in accordance with such rules or procedure as may be prescribed by the State Election Commission. - 3 - 67. Election of Adhyaksha and Upadhyaksha-…… (4) The election of the Adhyaksha or the Upadhyaksha of Zila Parishad and filling up of vacancies in the said offices and determination of disputes relating to such election shall be in accordance with such rules or procedures as may be prescribed by the State Election Commission. From the aforesaid provisions, it would be seen that the State Election Commission in matters of election of Pramukh and Up-Pramukh; Adhyaksha and Upadhyaksha, a reference to these provisions would show that statutorily it has been provided that dispute in relation to such election has to be dealt with in accordance with such rules or procedures as may be prescribed by the State Election Commission. From this, two things flow. Firstly, the matter has to be determined in the manner as prescribed by the State Election Commission and not as per rules framed by the State Government. Thus, the provisions of Section 137 of the Act filing of election petition would not apply because those elections petitions referable to Section 137 are to be found in the Bihar Panchayat Election Rules, 2006, which rules are framed by the State Government and not by the State Election Commission. At the time when the judgment was delivered in Vijay Kapari’s case (supra), which was on a writ petition filed in the year 2006, the position has since changed. Section 136(2) has been replaced by new Sub-section by Amendment Act 10 of 2009. A - 4 - reference to the amended provisions of Section 136(2) would show that so far as matters of disqualification of a person as specified in Section 135 and Section 136(1) of the Act is concerned, they are now subject matter of decisions of the State Election Commission. Thus seen, where a dispute in relation to election is raised, there are three jurisdictions available. But, in my view, they are mutually exclusive jurisdiction. Thus, where the dispute is with regard to election of Pramukh and Up-Pramukh; Adhyaksha and Upadhyaksha of Panchayat Samiti or Zila Parishad, the dispute would be referred to the Collector-cum- District Magistrate of the district or to the Divisional Commissioner of the division, as the case may be, in terms of Rules and procedures laid down by the State Election Commission on 3rd June, 2009. If the dispute relates to disqualifications, as prescribed under Section 135 or 136(1) of the Act, the matter subject to proviso to Section 136(2) be referred to the State Election Commission. Where the two contingencies, as aforesaid, does not apply and the dispute simplictor is with regard to the election process of any member who are elected directly by persons, such matter would go to the Election Tribunals constituted with reference to Section 137 and the Rules framed by the State Government in that regards. While holding so, I would like to observe that in terms of Section 40(4) read with Section 67(4) of the Act the State Election Commission is mandated to prescribe rules and procedures. If we refer to Sub-section (aa) of - 5 - Section 2 of the Act “Prescribed” means prescribed under this Ordinance or rules or regulations or notifications or orders made thereunder. Thus, prima facie, the order as issued on 3rd June, 2009 by the State Election Commission would come within this prescription and would be valid rules and procedure. But, if citizens are expected to follow the said procedure and the said procedure confers jurisdiction to determine disputes, in my view, it must also be published in a manner known to law for general notice. It has only been sent to Divisional Commissioners, District Magistrates and to the Secretary Panchayati Raj for communication leaving the entire litigants with no knowledge of the same. As held by the Apex Court in the case of Harla Vs. The State of Rajasthan since reported in AIR (38) 1951 Supreme Court 467 that if obedience is sought for then it must be published in a lawful manner and that publication must be in official Gazette and in the present case it would be in the Gazette of State of Bihar. The State Election Commission would, thus, be obliged to ensure the publication of such statutory rules and orders in Gazette to ensure proper compliance. In the present case, petitioner challenges the election of the Pramukh, as noted above, on the ground that the post of Pramukh was reserved for an extremely backward caste person. When the respondent no.6 allegedly filed her nomination in support of the same she did not annexed any caste certificate but merely an affidavit was filed duly sworn by her. The requirement - 6 - of caste certificate is prescribed by Rule 39(1)(f)(iii) of the Bihar Panchayat Raj Election Rules, 2006 and it prescribed the person who are authorized to grant the said certificate. It is submitted that in absence of such a certificate her nomination itself ought to have been rejected, as she was disqualified in terms of Section 136(1) of the Act. Such a dispute, in my view, would squarely lie to the State Election Commission in terms of Section 136(2) of the Act. Petitioner points out that the election took place in the year 2008 and he had immediately moved the Election Commission, but no action has been taken and the matter is pending. In my view, Election Commission cannot be faulted because prior to the amendment of Section 136(2) of the Act in the year 2009 such a dispute could not be taken up by the Election Commission. Now, it is vested with the authority and the jurisdiction in this regard. Therefore, I have no option but to direct the State Election Commission to take up the matter of the petitioner immediately. If the application as earlier filed is not available, the petitioner is granted liberty by this Court to file an application afresh along with a copy of this order and the Election Commission would endeavour to decide the dispute after hearing the parties, in question, at the earliest possible time but not later than three months from the date of receipt of application. The writ petition, thus, stands disposed of. Trivedi (Navaniti Prasad Singh, J.)