IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.616 of 2007 USHA SINHA Versus THE STATE ELECTION COMMISSION & ORS ----------- 04. 28/07/2008 Petitioner wants quashing of a part of the order dated 7.11.2006 issued by respondent no.4 which is contained in annexure- 10 to the writ application. This is an order by virtue of which the State Election Commission has refused to take cognizance of the complaint of the writ petitioner for setting aside the election of respondent No.10 namely, Najnin Praveen and advised the petitioner to file an election petition under section 137 read with section 139 of the Bihar Panchayat Raj Act, 2006. The brief background in the present litigation is that respondent No.10 was elected as a Mukhiya of Gajipur Gram Panchayat. After the declaration of the result the petitioner learnt from reliable sources that the name of private respondent No.10 had been fraudulently entered in the voter list of the Gram Panchayat. Since she was not a bonafide voter of the village in question she was ineligible to stand for the election. The petitioner gathered some material in this regard and she approached the State Election Commission. Some inquiry was also held in the mater but ultimately the State Election Commission refrained from passing an order in the matter because in their opinion the remedy for the petitioner was by way of an election petition. It is not in dispute that thereafter the petitioner filed an election petition namely, Misc. Case No.15 of 2006 before the court of - 2 - Munsif-I, Munger. The said election petition has been dismissed on 5.1.2007. Certified copy of the order of dismissal of the election petition has been made available to the Court. The election petition of the petitioner has been dismissed on the ground that it was barred by limitation. Learned counsel appearing on behalf of the petitioner thereafter submits that mere dismissal of the election petition will not come in the way of challenging the election of the private respondent especially when there is evidence that she was not a properly enrolled voter for the said constituency and that she had managed to manipulate the voter list and there is sufficient material in support of the said assertions. In view of a decision rendered in the case of K. Venkatchalam v. A. Swamichan and another, (1999) 4 SCC 526 where a candidate by impersonating as a voter of a particular constituency had managed to get himself elected, Hon`ble Supreme Court has held that despite constitutional and statutory bar the Courts could still examine such actions. Learned counsel appearing on behalf of the official respondents as well as private respondent raises objection to the maintainability of the present writ application. The primary contention is that once election petition on the issue has already been dismissed, it is not open to the Court to sit in appeal over the same or investigate the same allegation. State respondent also submits that there was no occasion for the State Election Commission to adjudicate on such issue even though the matter was looked into by the State Election - 3 - Commission on the administrative side. Remedy for the petitioner was an election petition. If the election petition has been dismissed on the ground of limitation the matter rests at that. Contention of the private respondent No.10 is that the petitioner cannot avail two forums for the same relief. The writ application is innovation to overcome the frustration of getting the election set aside either from the State Election Commission or the Election Tribunal. The Court has taken notice of some of the disputes and the evidence which has come on record. There are certain contentious areas with regard to enrolment of respondent No.10 as a voter of the constituency. But it is also a fact that the final voter list contained in annexure-4 does contain the name of the respondents. This is a voter list which has been published in the year 2005 based on which the 2006 election has been held. Though perusal of annexure-3 does given an impression that some kind of interpolation has been made in the draft publication. Be that as it may, the question is that these are matters which should have been resolved by a proper adjudication after leading evidence in the election petition. This Court shall not examine these issues based on affidavits which fall totally within the domain of an election dispute. There are inherent bars both under the Constitution and the Panchayat Raj Act. If the petitioner did not invoke the right jurisdiction at the right time and her election petition has been dismissed, writ application under Article 226 is not a remedy for her. - 4 - The writ application in the opinion of this Court is, therefore, misplaced and the same is dismissed. rkp (Ajay Kumar Tripathi, J)