2006. In LPA no. 1015 of 2007 ******* THE STATE ELECTION COMMISSION & Ors. v. PUNAM KUMARI & ANR & Ors.

drops down if the act challenged is either unrelated to or thwarts or taints the course of election. Therefore, in the event such a matter is highlighted before the Court exercising jurisdiction under Article 226 of the Constitution, unless there is a bar, the Court under Article 226 of the Constitution can certainly go into the question as has been squarely held by the Hon’ble Supreme Court in the case of K. Venkatachalam (Supra). 12

5. While specifying disqualifications in Article 191, the Constitution did not mandate the method of sorting out disputes pertaining thereto. Creation of a Forum by the Representation of People Act, 1951 did not bar the jurisdiction under Article 226 of the Constitution, since a law made by Legislatures cannot affect the Constitution. However, while prescribing disqualifications for membership of a member of Panchayat by Article 243(f) the Constitution mandated that questions relating to disqualification shall be referred for the decision of such Authority and in such manner as the Legislature of the State may by law provide.

6. There is no dispute that while one of the disqualifications prescribed in Section 135 of the Act made by the Legislature is election of a person to a reserved post, when he does not belong to the community for 13 whom the reservation has been made, the legislation in section 136 of the Act has laid down other disqualifications and at the directed disqualifications laid down in Section 136 of the Act should be decided by the Commission by providing the same in Sub- Section (2) of Section 136, but specifically mandated that the disqualification mentioned in Section 135 of the Act shall be decided by the Election Tribunal provided that such disqualification the returned candidate had on the date of his election by providing the same in Clause (a) of Sub-Section (1) of Section 139 of the Act.

7. When the Constitution has empowered the State Legislature to provide for a mode and method of deciding a particular dispute, the mandate of the Constitution should be construed as a direction to have a decision 14 in such manner and method and not through the plenary power of the writ court vested in it by Article 226 of the Constitution. The plenary power can be used to question the decision rendered by the Authority prescribed by the State but the writ court cannot assume to itself such a power.

8. The disqualifications mentioned in Section 136 are specific and do not cover the disqualification mentioned in Section

135. If a Forum does not possess the power to decide a disqualification it cannot be directed to decide the same. In the instant case, the State Legislature has decided that disqualification matters should be decided by two Forums. As regards a type of disqualification a Forum has been selected and for other types of disqualifications another. Such Forums being available and the same having been established on the 15 basis of a Constitutional mandate the judgment of the Hon’ble Supreme Court in K. Venkatachalam (Supra) has no application as there is provisions for taking recourse for appropriate relief and, accordingly, it must be construed that the court under Article 226 of the Constitution would not at the thresh-hold go into that question.

9. That being the situation, it appears to us that if disqualification as on the date of election based on the allegation that the person seeking election or having been elected was not a member of the community for whom the reservation was made, is the dispute, the same can only be sorted out by an election petition to be presented before the Election Tribunal and not by presenting a writ petition.

10. As noted above, on the basis of the judgment and order under appeal the matter 16 has been gone in by the Commission and the Commission has rendered a decision. The question is whether the decision is valid or not. For what we have discussed above it appears to us that the disqualification mentioned in section 135 of the Act cannot be gone in by the Commission. The Commission being a creature of the Statute can function and discharge its duties within the four corners of the Statute and cannot assume or be vested with any power which has not been vested in it by the Statute. If the Commission had no authority to go into the question, as was decided by it, such authority could not be vested in it by exercising power under Article 226 of the Constitution of India, for the simple reason that the Article 226 authorizes the Court to uphold legal right of a citizen which right stands vested in the citizen and 17 that signifies that the writ court cannot vest any right in a citizen which does not vest in him. That being the situation, the conclusion would be that the decision of Election Commission rendered on the basis of the command of the writ court being a decision rendered by a Forum non-juris, the same is invalid.

11. Accordingly, we allow the appeals, set aside the judgment and order under appeal, dismiss the writ petition and at the same time set aside the order of the Commission rendered on the basis of the judgment and order under appeal. There shall be no order as to costs.

12. We think, it would be appropriate on our part to record, at this stage, that the learned counsel for the appellant in LPA no. 548 of 2008 wanted to cite an unreported judgment before us but inasmuch as we had 18 started rendering the judgment, we could not look into the same.

13. Having regard to the questions raised in these appeals, as narrated above, we have condoned the delay in preferring the appeal registered as LPA no. 584 of 2008. (Barin Ghosh, J.) (C.M. Prasad, J.) Patna High Court, The 22nd August, 2008. AAhmad/ (NAFR).