IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6415 of 2011 1. Om Prakash Giri, son of Ram Nihora Giri. 2. Pawan Kumar Singh, son of Parmanand Singh Both resident of Village- Aswari, Banjaria, P.S. Kathaiya, District- Muzaffarpur. …………..Petitioners. Versus 1. The State of Bihar. 2. Election Commission, Gram Panchayat Raj, Bihar,Patna. 3. The District Officer-cum-Election Officer, Muzaffarpur. 4. The Election Officer, Block Motipur. 5. Pratima Devi, wife of Waki Singh, resident of Village- Ashwari, Banjaria, P.S. Kathiya, District- Muzaffarpur. ………Respondents. ----------- 2. 13. 04. 2011. Heard learned counsel for the petitioner and the State. 2. This is a petition for issuing direction in the nature of mandamus or any other writ to the respondents to cancel the nomination of Pratima Devi on the ground that petitioner no. 1 is not proposer and petitioner no. 2 is not witness of the nomination. 3. Learned counsel for the Election Commission however, submits that process of election has been set in and the election has been notified and now it is domain of the election Commission. There is bar under Article 243 O of Constitution of India read with under Sections 137 and 138 of Panchayat Election Act. However, it is relevant to quote; 2 "Article 243 O notwithstanding anything in this Constitution;- (a) the validity of any law relating to the delimitation of Constituency or the allotment of seat to such Constituency made or purported to be made of under Atricle 243 K shall not be called in question any court, (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided by or under any law made by the legislature of a State." 4. However, admittedly the matter concerned with a prayer to issue mandamus for rejection of nomination of Pratima Devi and hence it concerned with a Election Commission. Article 243 O starts with a non- obstinate of clause hence Article 243 O of Constitution of India shall prevail over other part of Constitution even on Article 226 of Constitution of India since the election has been notified. Hence this Court has no jurisdiction to 3 entertain the writ with regard to the matter of election of Panchayat election. 5. Learned counsel for the petitioner however contends that under Rule 116 of Bihar Panchayati Raj Election Rules, there is provision that the Election Commission may issue necessary instruction or direction in this regard. However, in view of Article 243 O this Court has no power under Article 226 of the Constitution of India to issue mandamus in this regard for change of booth and it concerns with election and hence there is no merit in this petition. 6. However, the petitioner, if so advised, may file a petition before the Election Commission under 116 of Bihar Panchayat Election Rules and Election Commission may consider it in accordance with law expeditiously. m.p. ( Gopal Prasad, J.)