Patna High Court - Orders
Naseema Khatoon vs The State Of Bihar & Ors on 9 September, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15272 of 2014
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Naseema Khatoon
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Adv.
Mr. Uday Pratap Singh, Adv.
For the State : Mr. Shailendra Kumar, A.C. to G.P.20.
For the Election Commission: Mr. Amit Srivastava, Adv.
Mr. Sanjeev Nikesh, Adv.
For the private respondents : Mr. Shankar Kumar Thakur, Adv.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
2 09-09-2014Heard Mr. Rajendra Narain, learned Senior counsel appearing on behalf of the petitioner, Mr. Shailendra Kumar, A.C. to G.P.20 for the State, Mr. Amit Srivastava for the State Election Commissioner- respondent Nos. 2 and 3 and Mr. Shankar Kumar Thakur for the respondent Nos. 9, 10, 12, 16, 17, 23, 25, 26, 31, 32, 34, 37 and 39 who were the petitioners before the District Election Officer-cum-District Magistrate, East Champaran.
Facts of the case briefly stated is that following a no confidence motion passed against the erstwhile Pramukh who is the respondent No.9 herein, an election was notified on 25.10.2013 under the orders of the State Election Commission placed at Annexure-7 and following which the District Magistrate, East Champaran issued guidelines for holding the election, placed at Annexure-8. The observer appointed in this behalf notified the 2 Patna High Court CWJC No.15272 of 2014 (2) dt.09-09-2014 2/5 schedule for election, a copy whereof is placed at Annexure-9 and the election took place on 25.10.2013 in which the petitioner was elected Pramukh and which was followed by the observer's report placed at Annexure-10. The certificate of election is placed at Annexure-11 certifying the election of the petitioner as the Pramukh, Panchayat Samiti, Chiraiya in the District of East Champaran and is dated 25.10.2013. 16 of the members of the Panchayat Samiti moved the District Magistrate -cum- District Election Officer appointed under the provisions of the Bihar Panchayat Raj Act, 2006 by filing an appropriate application questioning the election of the petitioner, the copy whereof is placed at Annexure-12. The contention of these petitioners was that they were deliberately restrained from participating in the election and which resulted in the petitioner being elected to the post.
Two of the petitioners namely Ram Adya and Laljhari Devi who were applicants in the election case filed an application before the District Magistrate charging forging of their signature. The District Election Officer-cum-District Magistrate, East Champaran after hearing the parties vide order passed on 27.12.2013 held the election of the petitioner suffering from procedural lapse and being held in contravention of the guidelines issued vide Circular dated 3.6.2009 and while upholding the 3 Patna High Court CWJC No.15272 of 2014 (2) dt.09-09-2014 3/5 objections raised by the petitioners in the election case, set aside the election and directed for fresh election. The petitioner being aggrieved moved before the State Election Commission in Case No. 7 of 2014, though the same is not reflected in the impugned order but is manifest from the notice placed at Annexure-16 series and vide order passed on 13.8.2014 the Commissioner upheld the order passed by the District Election Officer and dismissed the appeal and while doing so directed for fresh election of Pramukh on 10.9.2014 by issuing appropriate directions to the District Magistrate-cum- District Election Officer in this regard.
Mr. Rajendra Narain, learned Senior counsel appearing on behalf of the petitioner has questioned the orders on the following grounds namely:
(a) The non impleadment of 18 persons who had participated in the election had vitiated the proceedings in their absence.
(b) The District Magistrate even while relying upon Clause 12 of the Circular dated 3.6.2009 has not reproduced the entire provision which while requiring that the proceeding should await the arrival of the members upto 1 hour of the notified time yet provided that once the election process has started, the late comers would not be allowed to 4 Patna High Court CWJC No.15272 of 2014 (2) dt.09-09-2014 4/5 participate.
(c) While upholding the claim of the election petitioners that they were forcibly restrained from participating in the election, no reference has been made to the circumstances taken note of by the returning officer in his report placed at Annexure-10 and which amply explains the circumstances in which the petitioner was elected uncontested.
(d) Even if the claim of these 14 petitioners is to be accepted on the face value, yet it would not make any alteration in the result of the election in view of the fact that there were 18 persons present at the time of election who did not object to the petitioners candidature.
(e) The casual approach by the statutory authorities is reflected from the fact that whereas the election case has not even been registered by the District Magistrate, the appellate order does not express application of mind in as much as no reasons have been assigned to support the conclusions.
As 13 of the 14 election petitioners have appeared, let notice be issued to the non appearing respondent Nos. 11,13,14,15,18 to 22,24, 27 to 30, 33, 35, 36 and 38 both under ordinary process as 5 Patna High Court CWJC No.15272 of 2014 (2) dt.09-09-2014 5/5 well as registered cover with A/D for which requisites etc. be filed within one week, failing which this application shall stand dismissed as against the concerned respondents without further reference to the Bench.
The notice under ordinary process shall be served in the office of the Block Development Officer-cum-Executive Officer who shall effect its service on these respondents and file an affidavit to that effect.
Put up after service of notice/appearance of non appearing respondents whichever is earlier.
The State Election Commission as well as the private respondents who have appeared through Mr. Thakur would be at liberty to file their respective affidavits if so advised.
In the meantime the operation of the orders passed by the District Election Officer-cum-District Magistrate, East Champaran dated 27.12.2013 as contained in Annexure 14 and the order passed by the State Election Commission in Appeal No. 7 of 2014 as contained in Annexure-17 as well as the election notified on 10.9.2014 for electing new Pramukh, shall remain stayed.
Bibhash/- (Jyoti Saran, J)
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