LAXMI NARAIN GURMAITA Vs. RAM NARAIN MEHTA

JUDGEMENT

(1.) Ram Narain Mehta, a member of the Executive Committee of the Balua Bazar Gram Panchayat, Lakshmi Narain Gurmaita, Lekhanand Mishra and two others filed nomination papers for election to the office of the Mukhiya, Balua Bajar Gram Panchayat in the district of Saharsa. The two ether candidates subsequently withdrew their nomination papers and after scrutiny, the Election Officer, Balua Bajar Gram Panchayat, declared all the three remaining candidates validly nominated. Thereafter on 26-4-1978, Lakshmi Narain Gurmaita filed petitions under Rule 23 (4) of the Bihar Panchayat Election Rules, 1959 (hereinafter called 'Election Rules') before the Sub-Divisional Officer, Birpur (within whose jurisdiction the Balua Bazar Gram Panchayat is situate) praying for rejection of the nomination papers of the other two candidates on the ground that both Ram Narain Mehta as well as Lekhanand Mishra were disqualified for being elected as Mukhiya of thy aforesaid Gram Panchayat as they were not permanent residents of Balua Bazar Gram Panchayat. It was alleged therein that Ram Narain Mehta was a resident of village Garhawa within the jurisdiction of Ratanpur Gram Panchayat. Ram Narain Mehta received the notice of the aforesaid objection petition on 27-4-1978 and appeared before the Sub-Divisional Officer on 28-4-1978 and asserted that he was a resident of village Matiari within the jurisdiction of Balua Bazar Gram Panchayat and not of village Garhawa; chat he had never exercised his franchise in Ratanpur Gram Panchayat nor did he intend to do so in future and that he had merely a farm (Kamath) house at Garhawa for looking after the cultivation of his lands situated nearby. The objector Lakshmi Narain Gurmaita produced before the learned Sub-Divisional Officer copies of the electoral rolls showing that Ram Narain Mehta was enrolled as a voter in both the aforesaid Gram Panchayats and asserted that for more than 180 days in a year the appellant along with members of his family resided at Garhawa. On behalf of the appellant, it was contended that he was a resident of village Matiari and fulfilled the qualification of having resided within the jurisdiction of the Balua Bazar Gram Panchayat for more than 180 days in the year and, therefore, was not disqualified for being elected as Mukhiya of the said Gram Panchayat. An affidavit was also filed on his behalf, after hearing the parties, the learned Sub-Divisional Officer, by his order dated 29 4-1978 upheld the objection raised by respondent No. 2 and set aside the order of the Election Officer accepting the nomination paper of Ram Narain Mehta. By another order, he also upheld the objection regarding the acceptance of the nomination papers of the other remaining candidate, namely, Lekhanand Mishra.

(2.) Being aggrieved by the aforesaid order of the learned Sub-Divisional Officer, Ram Narain Mehta filed an application under Articles 226 and 227 of the Constitution in this Court for quashing the said order by a writ in the nature of certiorari and also for restraining the holding of the election for the post of Mukhiya of Balua Bazar Gram Panchayat which was going to be held on 25-7-1976. This application was filed on 5-5-1978 and was numbered as C. W. J. C. No. 1093 of 1978. It was listed for admission on 9-5-1978 on which date a Bench of this Court admitted the application and stayed the declaration of the result of the election of the office of the Mukhiya of the Balua Bazar Gram Panchayat. It, however, appears that on 5-5-1978 itself, in accordance with the provisions of Rules 26 and 27 of the Election Rules, the Election Officer declared Lakshmi Narain Gurmaita, who was respondent No. 1 in the aforesaid writ petition and who was the only duly nominated candidate for the post in view of the order of the Sub-Divisional Officer dated 27-4-1978, duly elected Mukhiya of the said Gram Panchayat. Cause was shown on behalf of the respondent's and the writ application was heard by a learned Single Judge of this Court.

(3.) At the hearing of the aforesaid writ application a preliminary objection to the maintainability of the writ application was raised on behalf of the respondents. The contention was that as the election petition under Rules 70 and 82 of the Election Rules could be filed before the Election Tribunal for setting aside the election of respondent No. 1 on the ground of improper rejection of the nomination papers of the writ petitioner, an alternative remedy for the redress of the grievance of the petitioner provided by the statute itself was available to the writ petitioner and therefore, in view of the provisions of Article 226 (3) of the Constitution, this Court had no jurisdiction to entertain the aforesaid writ application. The learned single Judge overruled this preliminary objection. He further held that the learned Sub-Divisional Officer acted illegally in rejecting the nomination paper of the appellant merely on the ground that he was recorded as a voter within the jurisdiction of two Gram Panchayats and his finding that the petitioner was not a resident of Balua Bazar Gram Panchayat for the requisite period was also illegal. The learned Single Judge, accordingly, allowed the writ application and set aside the election of respondent No. 1 to the office of Mukhiya and directed the Sub-Divisional Officer who was respondent No. 3 to the writ petition to decide afresh the question whether the nomination paper of the writ petitioner and Lekhanand Mishra who was respondent No. 5 was valid or not and to hold the election for the office of Mukhia only after the fresh determination. Lakshmi Narain Gurmaita (respondent No. 1) appeals.