IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 16221 of 2008 Raj Kumar Singh, son of Baliram Singh, resident of village – Parsurampur, P S – Barhara (Sinha), District – Bhojpur at Ara - Petitioner Versus 1 The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner 2 The State Election Commissioner, The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna 3 The Returning Officer, Barhara Block, District – Bhojpur at Ara 4 Rajendra Singh, son of late Ramchandra Singh, resident of village – Nurpur (Sahjahanpur), P O – Mehulighat, P S – Barhara, District – Bhojpur at ARa 5 Ram Suresh Singh, son of late Nandji Singh, resident of village – Kudariya, P O – Parsurampur, P S – Barhara (Sinha), District – Bhojpur at Ara 6 Dinesh Singh, son of late Ramadhar Singh, resident of village – Jokhari, P O – Mahuli Ghat, P S – Mahuli Ghat, P S – Barhara (Sinha), District – Bhojpur at Ara 7 Dharamraj Singh, son of Raghubans Singh, resident of village – Jokhari, P O – Mahuli Ghat, P S – Barhara (Sinha), District – Bhojpur at Ara 8 Triloki Singh, son of Rameshwar Singh, resident of village – Nargada, P O – Blua, P S – Barhara (Krishgarh), District – Bhojpur at Ara 9 Lalan Chaudhary, son of Jagdish Chaudhary, resident of village – Nargada, P O – Balua, P S – Barhara (Krishgarh), District – Bhojpur at Ara 10 Saroj Devi, wife of Shri Deo Ballabh Singh, resident of village – Moazampur, P O – Mahulighat, P S – Barhara (Sinha), District – Bhojpur at Ara - Respondents *** For the petitioner : M/s S B K Manglam & Anamika Dubey, Advocates For the Commission : M/s K B Nath & Sanjeev Nikesh, Advocates For respondent No 4 : M/s S N P Sharma, Sr Advocate & Makardhwaj Upadhyay, Rajeev Roy, Advocates For respondent No 5 : M/s Rajendra Narayan, Sunil Prasad Singh, Advocates For respondent No 11 : Mr Sanjay Kumar, Advocate *** 11 06.01.2010 Petitioner was elected Mukhiya of Nargada Gram 2 Panchayat under Barhara Block of district – Bhojpur. The elections were held in the year, 2006. After the election, respondent No 4 filed an election petition challenging the election of the petitioner. Parties appeared, issued were framed and ultimately the election petition was allowed. The election of the petitioner was set aside on ground of wrong acceptance of his nomination on primarily three grounds to which I will advert later. Once this judgment was passed, the election petitioner sought a clarification and most curious thing happened. The judgment having been delivered holding the election of petitioner invalid now, by a subsequent order, the Election Tribunal corrects its judgment and declares the election petitioner (respondent No 4 here) as elected. This Court fails to understand how this could be done because once nomination of petitioner is held to be invalid then the whole election process has to undergo fresh contest because it is not known as to for whom the voters, who had voted in favour of the petitioner, would vote in event of reelection. Thus, at the outset itself, I have to hold that the subsequent order of the Election Tribunal which had already become functus officio cannot be sustained. Respondent No 4 has, thus, been wrongly declared elected by the Election Tribunal that is Munsif I, Ara. That order is, thus, set aside. In fairness to Mr Sharma, learned Senior Counsel appearing for respondent No 4, I must note that he does not support that part of the order. Now coming to the substantive order by which 3 petitioner’s election has been set aside on the ground that his nomination was wrongly accepted. The three grounds are (i) petitioner was required by rules to declare his criminal antecedent. He disclosed that he was accused in a case but did not disclose that he was accused of offences under Section 307, IPC read with Section 27 of the Arms Act. Non-disclosure of these Sections was held to be violation of disclosure norm invalidating his nomination. The (ii) being wrong disclosure of his assets. The Tribunal found that petitioner had failed to disclose his deposits with Sahara India Limited and his asset declaration was false and that being so his nomination was wrongly accepted. Lastly (iii), it is said that petitioner’s name figured in Ara Assembly Constituency as well as Nargada Gram Panchayat showing his residence in Barhara Block. Thus, he was shown resident of two different places. His nomination was, thus, invalid. Mr Sharma, learned Senior Counsel for respondent No 4, the election petitioner submits that the findings given by the Election Tribunal should not be and cannot be interfered by this Court. Mr Mangalam in support of the writ petition submits that in fact and in law, the findings are unsustainable. As against the decision of the Election Tribunal, there being no appellate authority prescribed, writ petition under Article 226 is the only remedy. That being the only remedy, the writ Court would be competent and is obliged to go into all questions of fact and law as this is the first appellate and/or the only remedy available. In my view, Shri Mangalam, learned 4 counsel for the petitioner is correct. If what is submitted by Mr Sharma appearing for respondent No 4 is accepted then, however perverse the findings of fact may be, the writ Court would not be competent to interfere. Thus, effectively the right of judicial review is taken away totally. That cannot be and that is not the situation. Under Article-227 of the Constitution, this Court exercises power of superintendence over all inferior Courts and Tribunals. Learned Munsif exercising jurisdiction in election matters is a subordinate Court over which this Court exercises powers of superintendence and, thus, writ petition impeaching the judgment lies on all questions of fact as well as on questions of law. Now coming to the three issues as decided against the petitioner. The first issue is with regard to non-mentioning of Section 307, IPC and Section 27 of the Arms Act. Shri Mangalam points out and these facts are very fairly not controverted by Shri Sharma appearing for respondent No 4 that the first information report was lodged in the year, 2001. That is an exhibit. The first information report was against the petitioner and several others. It was, inter alia, under Section 307, IPC read with Section 27 of the Arms Act. But, after investigation, upon chargesheet being filed, petitioner was not charged with offence under Section 307, IPC and Section 27 of the Arms Act and was discharged by the trial Court in that regard. This happened in 2003 which order is also on record in the trial. The nominations for the elections were filed in 5 the year, 2006 and that being so by then, the petitioner having been discharged of an offence in relation to Section 307, IPC and Section 27 of Arms Act, petitioner committed no illegality in not mentioning those Sections having mentioned the police case number. In my view, Mr Mangalam is correct. If, on the day when nomination is filed, a person is not charged with certain offences then non-mentioning of offences as initially charged will not be an illegality. Therefore, this issue is decided in favour of the petitioner and the finding of the Election Tribunal is reversed. The second issue is with regard to wrong disclosure of assets. The Election Tribunal, with reference to certificates received from Sahara India Limited, has found that there were several deposits mentioned in those communications which were of petitioner which petitioner failed to disclose. Thus, it was a wrong disclosure of assets rendering the nomination invalid. My attention has been drawn to those certificates which are matter of record before the Tribunal and before this Court as Annexure-7 series. Those communications are in relation to the deposits which petitioner was able to collect for Sahara India Limited as its agent. Those certificates nowhere show that those deposits are of petitioner. They showed to the contrary that deposits belong to the various other named persons but have been collected by the petitioner. Petitioner is a collecting agent on remuneration. The inference is, thus, clearly unwarranted and unsustainable that these deposits are assets of the petitioner. Thus, this issue is also 6 reversed in favour of the petitioner. The third issue is with regard to dual residenceship. The Tribunal holds that for the purpose of Assembly election, petitioner’s residence is shown as Ara but for the Gram Panchayat election, petitioner’s residence is shown as village – Barhara in the Nargada Gram Panchayat. According to the Tribunal, Barhara Block is within Barhara Assemply Constituency. Thus, by analogy, the Tribunal is of the view that petitioner’s name figures in two Assembly Constituencies simultaneously, as such, his nomination for Gram Panchayat election as resident within Nargada Gram Panchayat is invalid. In my view, the finding and the inference sought to be drawn is unsustainable. Firstly, there is no law which provides for a singular residence concept. A person may have multiple residences. Unless any specific provision of any law is shown to the contrary, multiple residenceship per se cannot invalidate a nomination. What is invalid is if petitioner is shown to be resident of two different areas of two different Assembly Constituencies where elections are held simultaneously, he cannot exercise his vote at both places for in an election process, the right of franchise is limited to one vote per person. Similarly in a Gram Panchayat, a person cannot claim residence of more than one place under a Gram Panchayat and exercise voting right for both the places within the same Gram Panchayat. He has to restrict his vote to one even if for any reason, his name has figured at two places under the same Gram Panchayat. There 7 could be possibly a situation where a person could claim to be resident of more than one Gram Panchayat where there is not such a situation then he can exercise voting at both Gram Panchayats because each individual Gram Panchayat is a unit of local self Government. Thus, the finding of the Tribunal that merely because his residence, as per Assembly Constituency voters’ list is shown different, is no ground for holding that his nomination was invalid. Thus, these three being the only issues on which petitioner was declared to be invalidly elected and the three issues being reversed by this Court, the result is that the election petition being Election Petition No 4 of 2006/1 of 2008 before Munsif I, Ara stands dismissed. The writ petition is consequently allowed. M.E.H./ (Navaniti Prasad Singh)