MANOJ KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD counsel for the parties.

(2.) PETITIONER filed the writ application to stop counting of votes of Kumkum Panchayat, which was held on 27.5.2006 and for which the counting was scheduled for 16.6.2006. During the pendency of the writ application and in absence of any stay order by this Court respondent no. 7 was elected from the said constituency as a member of the Panchayat Samiti and, therefore, an I.A. No. 5015 of 2007 has also been filed. Petitioner claims himself to be a voter as well as a public spirited person and he is aggrieved because of delimitation exercise of wards which was carried out just before the election which according to him has caused serious prejudice not only to the voters but also the candidates as such. According to him since an illegal delimitation in conflict with the law had been carried out, therefore, this was no election in the eye of law and the remedy available for the petitioner is by filing a petition under Article 226 of the Constitution of India. He submits that there has been violation of Section 127 of theBi har Panchayat Raj Act, 2006(h ereinafter to be referred to as the Act).

(3.) LEARNED counsel for the Election Commission as well as the private respondent have appeared and made their submissions on the issue both on the merits as well as a primary objection with regard to the maintainability of the writ itself. According to them the present writ application is not maintainable in view of the fact that an election petition under Section 139. is the only remedy available in such a matter in view of the bar under Section 138 of the Act. There is nothing to show that any election petition has been filed challenging the said election by any person so aggrieved. It is a proxy litigation which is being carried out by the petitioner under the garb of objection with regard to delimitation of certain wards.