S.N. Hussain, J.
1. Heard learned Counsel for the petitioner, learned Counsel for the respondent-authorities as well as learned Counsel for the private respondent No. 6.
2. This writ petition has been filed by the petitioner for declaring the election of respondent No. 6 Meena Devi for the post of the member of Kurma Panchayat Samiti, territorial Constituency No. 13 as well as her election for the post of Pramukh of Kahalgaon block in the district of Bhagalpur as void and also for quashing the result of the meeting dated 23.6.2006 electing her as the Pramukh and for further directions that when the post of Pramukh was reserved for the female belonging to backward class, no other persons from any other class or caste is entitled to contest the same.
3. Learned Counsel for the petitioner submits that the post of Pramukh was reserved for extremely backward class but respondent No. 6 was Chandel Chhatri, namely Kurmi, by caste as her father belonged to that cast, but she had produced a certificate of Dhanuk caste which is an extremely backward cast, as her husband belonged to that cast. Learned Counsel for the petitioner relies upon two decisions of the Hon'ble Apex Court in the case of Sandhya Thakur v. Vimla Devi Kushwah and Ors. reported in : AIR2005SC909 and also in case of Meera Kanwaria v. Sunita and Ors. reported in 2005(10) SCALE 39 in which it has been specifically held that only by marriage the caste of the female will not change and she will remain a member of the caste to which her parents belonged. Learned Counsel for the petitioner further submits that it has also been held by the Hon'ble Apex Court in the case of K. Venkatachalam v. A. Swamickan and Anr. reported in : [1999]2SCR857 that if such persons are allowed to continue to sit and vote it amounts to fraud on the Constitution and in such circumstances the High Court is not powerless to grant the relief. He further contends that in a similar case in the case of Ram Ratan Yadav v. The State Election Commission and Ors. reported in 2002(1) PLJR 192 writ petition in the similar matter was held to be maintainable and was to be decided and the said view was affirmed by a Division Bench of this Court in the case of Ram Ratan Yadav v. The State Election Commission, Bihar and Ors. reported in 2002(2) PLJR 380.
4. Learned Counsel for the petitioner further avers that as per the provision of Sections 123 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as 'the Act' for the sake of brevity) State Election Commission has been formed for superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the Panchayat bodies in the State under this Act and the rules made thereunder, whereas Section 136 of the Act provides that the State Election Commission shall disqualify a person for election or even after election for holding the post as Mukhiya, member of the Gram Panchayat, member of the Panchayat Samiti and member of the Zila Parishad if such person does not fulfil he criteria fixed including the criterion that under any law for the time being in force he/she become ineligible to be a member of the any local authority, but inspite of there being a case of clear facts the Election Commission is shirking to act instead of repeated representations filed by the petitioner and hence the petitioner has got no other remedy except by way of moving this Court.
5. On the other hand, learned Counsel for the Bihar State Election Commission submits that the entire claim of the petitioner is frivolous as first the question of membership of the Panchayat Samiti has to be challenged before the Tribunal and only thereafter the question of election of respondent No. 6 to the post of Pramukh can be legally considered because respondent No. 6 has succeeded as a member of the Panchayat Samiti as well as the Pramukh thereof, both as a candidate of extremely backward class. Learned Counsel for the respondent No. 6 objects to the claim of the petitioner and submits that the petitioner is challenging the election of respondent No. 6 on the basis of an alleged fraudulent certificate and hence unless the said certificate is set aside no order can be legally passed against respondent No. 6 and this can be done only by the Election Tribunal considering all the evidence on record, hence claim of the petitioner raised in this writ petition cannot be allowed.
6. Considering the facts and circumstances of the case, the arguments raised by the parties and the materials on record, it is quite apparent that the petitioner has claimed that respondent No. 6 was Chandel Chhatri, i.e. Kurmi, by caste, which comes under other backward classes, whereas she has produced a forged certificate that she was a Dhanuk by caste which comes under the extremely backward class. It is further claimed by the Petitioner that the election of respondent No. 6 as member of the Panchayat Samiti as well as her election to the post of Praniukh were both illegal as in both respondent No. 6 was elected as a member of the extremely backward class although she did not belong to that class, whereas, on the other hand, the claim of respondent No. 6 is that she is Dhanuk by caste and belongs to the extremely backward class, which is proved by the certificate granted to her by the authorities concerned. Hence the matter in dispute is clearly with respect to the legality or otherwise of the caste certificate issued in favour of respondent No. 6 and unless that is decided no order can be passed in this regard. Furthermore, since respondent No. 6 was elected as extremely backward class candidate on the post of the member of the Panchayat Samiti, only on that basis she was subsequently elected as a Pramukh of that Samiti, which post was also reserved for extremely backward class candidate. Hence unless the election of respondent No. 6 for the post of the member of Panchayat Samiti as a candidate of extremely backward class is set aside, her election to the post of Pramukh of the Samiti cannot be challenged.
7. In the aforesaid circumstances, before challenging the election of the petitioner for the post of Pramukh of the Samiti two issues have to be decided as to whether the caste certificate issued to respondent No. 6 was valid and genuine and whether her election as a member of the Panchayat Samiti was legal and proper and unless these two issues are decided the first issue cannot be decided.
8. So far these two issues are concerned with respect to the genuineness of the certificate of respondent No. 6 as well as her election as member of the Panchayat Samiti, they are complicated questions on facts, which have to be considered by the authority concerned provided under the law and hence it would be proper in the interest of justice that the same are decided by way of an election petition before the authority concerned under the provisions of Section 137 of the Act and Rule 106 of the Bihar Panchayat Election Rules, 2006.
9. Accordingly this writ petition is disposed of with the aforesaid observations.