All Orders By Court/ Tribunal Including Ex Parte Are Amenable To Writ Jurisdiction U/Art 226 & 227 Of Constitution: Patna HC

Referring to the Supreme Court's 2020 decision in the case of N. Mohan Vs. R. Madhu, Justice Harish Kumar observed, “The analogy, which is deducible from the judgments referred hereinabove, this Court is of the opinion that any order/judgment passed by a Court or Tribunal even if it is ex parte is amenable to writ jurisdiction under Article 226 and 227 of the Constitution of India and such power cannot be scuttled nor any embargo be fixed thereupon, on the plea of remedy provided under Order IX Rule 13 of the C.P.C.”

The Court asserted that the availability of remedies under the CPC does not diminish this inherent power.

The aforementioned ruling stems from a writ petition challenging the decision made by the Sub-Judge-I, Civil Court, Benipatti, in an Election Suit, whereby, the court granted the Election Petition filed by Respondent No.5, thereby annulling the petitioner's election as a Member of Madhubani Zila Parishad Territorial Constituency No.12. The court further directed the State Election Commission to conduct a fresh election within six months.

As per the factual matrix of the case, the election for Constituency No. 12 of Madhubani Zila Parishad, which was reserved for Extremely Backward Classes. The petitioner, along with respondents 6 and 5, submitted nominations. Despite initially winning, the petitioner faced a challenge from respondent 5, who alleged the use of a forged caste certificate by respondent 6. Although the election tribunal initially leaned in favor of the petitioner, it ultimately nullified the election results.

The petitioner argued that the tribunal's decision relied on presumptions and underscored the citizens' right to choose their representative. Conversely, the respondent contended that, according to Order IX Rule 13 of the Civil Procedure Code (C.P.C), the petitioner's absence lacked justification, rendering the writ petition inapplicable.

The Court noted, "The finding of the Election Tribunal does not stand to any reason as to how he came to the conclusion that to what number of votes would be cast in favour of the returned candidate, the election petitioner and other candidates, who were contesting the election."

The Court pointed out that it is well settled that an election cannot be set aside and declared void merely an assumption and presumption, rather its void character should be clear as a crystal and be staring at a returned candidate.

“Admittedly, there is no evidence of corrupt practice at the hands of returned candidate nor there is any issue of rejection of valid votes in favour of respondent no.5 nor improper reception of votes in favour of the returned candidate (petitioner) and thus the learned Tribunal has erred in law in coming to the conclusion based on hypothetical assumption and presumption and on this score alone the same is fit to be set aside,” the Court noted while allowing the petition.

Counsel/s For the Petitioner/s : Mr. Kalyan Shankar, Advocate

Counsel/s For the Respondent/s : Mr. Ajay, GA-5 Mr. Prateek Kumar Sinha, AC to GA-5 For the B.S.E.C. : Mr. Girish Pandey, Advocate

Counsel/s For the Resp No.5 : Mr. Shankar Kumar Thakur, Advocate

Counsel/s For the Resp No.6 : Mr. S. N. Yadav, Advocate Mr. Saroj Kumar, Advocate

Case Title: Md. Tazuddin vs. The State of Bihar & Ors.

LL Citation: 2023 LiveLaw (Pat) 144

Case No.: Civil Writ Jurisdiction Case No.1717 of 2023