IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1681 of 2010 1. MAHENDRA NARAYAN DAS S/O SRI YUGESHWAR PRASAD DAS R/O VILL BHAWANIPUR, GOALPARA, P.S.CHATAPUR, DISTT-SUPAUL Versus 1. THE STATE OF BIHAR 2. THE STATE ELECTION COMMISSIONER, SONE BHAWAN, BIRCHND PATEL MARG,PATNA-1 3. THE SECRETARY , STATE ELECTION COMMISSION BIHAR,PATNA 4. THE DISTRICT MAGISTRATE SUPAUL-CUM-DISTRICT ELECTION OFFICER(PANCHAYAT) SUPAUL 5. THE DEPUTY DEVELOPMENT COMMISSIONER SUPAUL 6. THE ADDITIONAL COLLECTOR SUPAUL 7. THE DISTRICT PANCHAYAT RAJ OFFICER SUPAUL 8. THE S.D.O. TRIVENIGANJ, DISTT- SUPAUL 9. THE B.D.O. CHHATAPUR, DISTT-SUPAUL 10. RAMESH KUMAR , MUKHIYA S/O SRI MHADEV MUKHIYA VILL +P.O.GIBBACHHAPUR, VIA PRATAPGANJ, DISTT-SUPAUL 11. FEK NARAYAN MANDAL S/O KALAM MANDAL R/O VILL CHHATAPUR,P.S.CHHATAPUR, DISTT-SUPAUL 12. ABDUL HAKIM, S/O SAKUR, PRAMUKH, PANCHAYAT SAMITI- CHHATAPUR, DISTRICT- SUPAUL. ----------- 8. 6.05.2010 The petitioner was elected member of Panchayat Samiti of village- Chhatapur in the district of Supaul. He was then elected as Pramukh of the said Panchayat Samiti under the provisions of the Bihar Panchayat Raj Act, 2006. This election took place on 28.06.2006. By Bihar Panchayat Raj Amendment Act, 2009 Sub- section 2 of Section 136 of the Act was replaced. Now under the new Sub-section 2 of Section 136, the State Election Commission was vested with the jurisdiction to decide questions as to disqualifications as specified in Section 135 as well as in Section 136 (1) of the Act apart from disqualifications as stated in Article 243 (F) of the Constitution. The proviso to Section 135 of the Act 2 states that where any seat is reserved for any category of a person, it will be occupied by that person alone. Thus, in terms disqualification is provided for restraining person from any other category in occupying that reserve seat. The petitioner claiming himself to be a “Sinduria Bania” got a caste certificate issued showing himself to be “Sinduria Bania”. “Sinduria Bania” it is not disputed is Extremely Backward Class. The post of Pramukh was reserved for Extremely Backward Class. Thus, petitioner got elected as a Pramukh on that reserved category. On 8.12.2009 one Ramesh Kumar Mukhiya, respondent no.10, who has since appeared, filed an application in terms of Section 136 (2) of the Act before the State Election Commission complaining that petitioner was wrongly occupying the post of Pramukh which was reserved for Extremely Backward Class, as he was not of Extremely Backward Class, but he was of Backward Class. The Commission noticed the petitioner and asked the Collector of the District to make enquiry and send a report. The Collector entrusted the enquiry to the Additional Collector. The Additional Collector noticed the parties and heard the parties. He examined various documents and then opined that the petitioner was “Kaithal Bania” which is Backward Class and not “Sinduria Bania” which is Extremely Backward Class and submitted his 3 report to the Collector. The Collector then entrusted the matter to the Deputy Development Commissioner. The Deputy Development Commissioner having perused the records and report of the Additional Collector was of the view that the cadastral survey entries in the draft notification should be taken into consideration and submitted his report pointing to the fact that the petitioner was E.B.C. It does not appear that whether the Collector’s attention was drawn to the notings of the Deputy Development Commissioner in his order. He does not even now mentioned D.D.C. report. He noticed only Additional Collector’s report and agreeing with it forwards it to the State Election Commission. The State Election Commission in its turn virtually takes it to be report of the Collector and accept the same. On that finding, the State Election Commission holds that though the petitioner is competent to the member of the Panchayat Samiti, he is not competent to be the Pramukh thereof. This post is reserved for Extremely Backward Class to which petitioner does not belong. It is this order of the State Election Commission that is challenged before this Court. During the pendency of the writ petition, as a consequence of removal of the petitioner, a vacancy has been caused. Fresh elections were held and one Abdul Hakim has been elected as Pramukh, who is respondent no.12 is represented in the Court. 4 As all pleadings are complete and all interested parties are represented and with their consent the writ petition is being disposed of at the stage of admission itself. Mr. M.P.Jha, learned Senior Counsel submits that a perusal of the order of the State Election Commission would show that even though the statute invested it with authority to decide the issue by virtue of Section 136 (2) of the Act, it had virtually abdicated its authority and function to the Collector. The Collector in turn had abdicated the enquiry and his authority to the Additional Collector and in the process forgot the subsequent comments of the Deputy Development Commissioner. Thus, a serious question which would have serious repercussion not only so far as the present is concerned but with regard to the petitioner and his future generation, the question was not properly considered in its true prospective. He submits that the order passed under Section 136(2) is the original order as also the final order against which there is not appeal because of which he submits that the considerations have to be with caution and in more detail. Having heard the parties and having perused the order of State Election Commission, in my view, the argument of Mr. Jha has to be accepted in view of the repercussion, this order would have. It is only expected that the State Election Commission would decide the issue in greater detail rather than abdicating its 5 functioning and delegating power virtually to the Collector of the District. It must remember that there is no appeal from such an order. Thus two circumstances must prevail upon the mind of the State Election Commission when it decides such an issue. It must not give chance to any person to be in a position to allege that it has abdicated its statutory responsibility and duty. Thus, in my view, a fresh look at the thing may be necessary. I, therefore, deem to appropriate to direct the State Election Commission to reconsider the matter afresh, but the order of the State Election Commission is not set aside. It would continue to operate till it is replaced by a fresh reasoned order which may be the same result of the earlier order or may differ from the earlier order in which case alone, respondent no.12 would consequently be unseated and petitioner restored. The State Election Commission shall not be prejudiced in any manner by the order earlier passed and it would proceed to examine the matter de novo all afresh. Before concluding, I may point out one relevant fact for taking into consideration. These issues were of little importance prior to the Constitution coming into force. Earlier they may have had civil ramnification, but for such elected offices, Government jobs, education facility etc. it was of little relevance then. Thus, in various records various entries by themselves would not be the 6 sole criteria for determination one way or the other. The sub- qualification not being very relevant at that point of time, when those entries were made, the Election Commission would consider this aspect and keep it in mind while deciding the issue. With direction, as aforesaid, the writ application stands disposed of. It is expected that the Election Commission would notice the parties and after hearing the parties and making such inquiries as it may deem fit, take a final decision in the matter as early as possible but not later than 3 months from today. V.K. Pandey (Navaniti Prasad Singh, J.)