IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16313 of 2009 RAM NARESH AZAD, S/o Rajendra Rai, Resident of Village-Badbakhadda, P.S.-Khodabandpur, District-Begusarai . ............Petitioner. Versus 1. The State of Bihar. 2. The State Election Commissioner, Bihar, Patna. 3. The District Magistrate, Begusarai. 4. The B.D.O. Block Chourahi, District-Begusarai. ...........Respondents. ----------- For the Petitioner: Mr. Ram Balak Mahato (Sr. Advocate) Mr. Vijay Anand, Adv. Mr. Binod Kumar, Adv. For the Election Commission: Mr. R. S. Pradhan (Sr. Advocate). Mr. Sanjeev Nikesh, Advocate. For the State: Mr. Madhukar Mishra, AC to GA-7. 2/ 30.11.2009 Petitioner contested the election of Mukhiya on strength of a certificate granted by the Block Development Officer, Chourahi, Begusarai, under which he was declared as a Dhanuk, which is an extremely backward community. After he was elected, it appears that his election as such on the said certificate was challenged before the State Election Commission under the Bihar Panchayat Raj Act, 2006. The State Election Commission was reluctant to entertain the same, as such, the objector filed a writ petitioner in this Court being C.W.J.C. No. 378 of 2007 (Binod Kumar Vs. The State of Bihar & Ors). The said writ petition was disposed of by order dated 11.07.2007 (Annexure-3), by which this Court directed the District Magistrate to hold an enquiry into the validity of the caste certificate, issued in favour of respondent No. 8, petitioner herein and passed appropriate orders in accordance with law. 2 The Collector admittedly issued notice to the petitioner and then, by his order dated 22.05.2008 (Annexure 10) held that the caste certificate was not issued in accordance with law and, as such, it was declared to be invalid. Now, acting in pursuant to the same, the State Election Commissioner in purported exercise of powers under Section 136 as amended with retrospective effect by Bihar Panchayat Raj (Amendment) Act, 2009 with effect from 8th September, 2009, in Case No. 25 of 2009, held that as the caste certificate on basis of which petitioner had contested the election had been held to be illegal and was set aside by the Collector, the election of the petitioner itself stood vitiated as petitioner was, thus, disqualified. Mr. Ram Balak Mahto, learned counsel for the petitioner, firstly assails the order of the State Election Commission and then the order of the Collector. So far as the order of the State Election Commission is concerned, that is virtually a consequential order because if, the caste certificate, on basis of which petitioner was found to be qualified for contesting the election as a Mukhiya is held to be void, then the very basis on which he sought election vanishes, thus, rendering him ineligible. In that view, the order of the State Election Commission would be only consequential. Mr. Mahto submits that this would be a case covered by the proviso to newly introduced Section 136 of the Act wherein the Election Commissioner has been held to have no jurisdiction in matters of illegal rejection or acceptance of nomination paper. 3 In my view, proviso is not attracted. Proviso would be attracted only when the documents on basis of which nomination is accepted or rejected remains unimpeached. It is the action of the accepting or rejecting the nomination which is questioned when proviso to the Section would come into ply. If, the validity of the document, on basis of which the nomination is filed, is in questioned the Election Commission would have jurisdiction to decide and not the Election Tribunal. Thus, the proviso does not stop the Election Commission in the present case. Mr. Mahto, then, challenges the order of the Collector to cancel the caste certificate as granted to him and submits that the action of the Collector was wholly without jurisdiction. In my view, as B.D.O. had granted the caste certificate certainly administratively, the Collector had jurisdiction to go into the validity of that act and further his hands were strengthened by directions of this Court, vide annexure-3, as noted above. Thus, the Collector did have the competence to decide the matter. Mr. Mahto then submits that the decision read as a whole, cannot be sustained i.e. a matter to be considered as these matters are dealt with administratively, though, the power is exercised quasi judicially. In my view, it would first be appropriate for the petitioner to move to the next hierarchy i.e. to the Divisional Commissioner, against the order of the Collector in terms of the rules framed by the Board of Revenue for administrative functions of the Government. On such an administrative appeal being filed, the Commissioner of the 4 Division would entertain the same and decide it at the earliest and preferably not later than three months, after hearing the parties in accordance with law. If, the Divisional Commissioner hold on facts that the caste certificate was validly granted, the petitioner would be entitled to be re-instated as the Mukhiya, but, if the decision goes against the petitioner then the order of the Election Commissioner would continue to operate. But the question remains as would is to be done as interregnum. In my view, as the time limit of three months has been fixed for the Divisional Commissioner to decide the issue, there sould not be any election for filling up the alleged vacancy caused by disqualification of petitioner as the Mukhiya as there are appropriate provisions under the Bihar Panchayat Raj Act, which would permit the Up-mukhiya to function. With these directions, the writ petition stand disposed of. Sanjeet/ (Navaniti Prasad Singh, J.)