Sri Saryug Mochi @ Saraug Mochi vs The State Election Commission & Ors.

Heard Mr. Pushkar Narain Shahi, learned Senior counsel assisted by Dr. Ranjeet Kumar, learned counsel for the petitioner, Mr. Ravi Ranjan, learned counsel for the State Election Commission, Mr. Yogendra Prasad Sinha, learned Additional Advocate General for the State of Bihar and Mr. S.B.K. Manglam, learned counsel for the respondent no.7.

The petitioner has filed the instant application for the following reliefs :

The interlocutory application filed by the petitioner for amending the prayer in the writ application being allowed by order dated 23.6.2026, the following relief was added :

The case of the petitioner in brief is that pursuant to the election held in the year 2020, the petitioner was elected on the post of Chief Ward Councillor of Naubatpur Nagar Panchayat.

One Usha Kaushik challenged the election of the petitioner on the ground that the petitioner had more than two children after the cut-off date ie 4.4.2008 and thus was disqualified to contest the elections. By order dated 2.3.2022 passed in Case no.12 of 2020, the State Election Commissioner, Bihar disqualified the petitioner and his election was quashed.

The petitioner moved the Patna High Court against the order dated 2.3.2022 by filing CWJC no.4175 of 2022. A Division Bench of this Court by its judgment dated 9.5.2022 quashed the order dated 2.3.2022 of the State Election Commissioner, Bihar passed in Case no.12 of 2020.

The State Election Commission moved the Supreme Court against the order dated 9.5.2022 passed in CWJC no.4175 of 2022, vide SLP(C) no.10862-10864 of 2022. Smt. Usha Kaushik also moved the Supreme Court against the same judgment by filing SLA(C) no.10563-10565 of 2022. By order dated 13.7.2022, the Hon'ble Supreme Court while issuing notice in the appeals proceeded to pass the following order :

Subsequently the Hon'ble Supreme Court was pleased to pass order dated 1.9.2022 in the aforesaid appeals, relevant portion of which is to the following effect:

It is further case of the petitioner that in the meantime the tenure of the petitioner expired and fresh elections were conducted in the year 2025 when the petitioner was once again elected as Chief Ward Councillor of Naubatpur Nagar Panchayat.

Respondent no.7 filed a fresh complaint before the State Election Commissioner against the election of the petitioner on identical grounds as before. The complaint was registered as Case no.26 of 2025.

It is the case of the petitioner that as the State Election Commissioner appeared to be in haste in deciding Case no.26 of 2025 without giving proper opportunity to the petitioner to file his reply. The petitioner moved the Patna High Court by filing a writ application being CWJC no.13160 of 2025. The writ application was dismissed by order dated 19.8.2025 granting him liberty that in case the petitioner is aggrieved by the order passed by the authority concerned, then he may take legal recourse in accordance with law.

In the meantime, the tenure of the State Election Commissioner was extended. The petitioner filed two petitions praying for stay of the proceedings of Case no.26 of 2025 and the second petition challenging the maintainability of the case. By order dated 10.9.2025 passed in Case no.26 of 2025, the State Election Commission, Bihar was pleased to reject both the petitions filed by the petitioner.

The petitioner preferred the instant writ application against the order dated 10.9.2025 passed in Case no.26 of 2025 by the State Election Commissioner, Bihar. During pendency of the instant writ application, the State Election Commissioner by order dated 17.10.2025 was pleased to allow Case no.26 of 2025 and once again disqualified the petitioner for having violated the provisions contained in section 18(1)(m) read with section 18(2) of Bihar Municipal Act, 2007 (‘the Act’ in short) and quashed his election. On the final order dated 17.10.2025 having been passed allowing Case no.26 of 2025, the petitioner filed an interlocutory application for amending his prayer and challenging the said order, which was allowed by this Court by order dated 23.6.2026.

Mr. Pushkar Narain Shahi, learned Senior counsel appearing for the petitioner submitted that the grounds on which the petitioner has been disqualified by the order impugned dated 17.10.2025 of having violated section 18(1)(m) read with section 18(2) of the Act, is identical to the ground of his disqualification by order dated 2.3.2022 passed by the State Election Commission in Case no.12 of 2020. The order dated 2.3.2022 was set aside by the Division Bench of this Court in its judgment dated 9.5.2022 passed in CWJC no.4175 of 2022 and analogous cases. It was submitted that while passing the order dated 17.10.2025, no fresh material had been referred to or examined by the State Election Commission.

Mr. Shahi, appearing for the petitioner further submitted that in S.L.A (C) Nos. 10563-10565 of 2022, by order dated 13.7.2022, the Hon'ble Supreme Court issued notice, stayed the operation of the impugned judgment of the Division Bench, however observed that the elected persons will continue to participate as members of the panchayat. It was submitted that the Hon'ble Supreme Court had only stayed the operation of the judgment of the High Court. The Division Bench judgment of the High Court was not extinguished, quashed or set aside but only its effect was kept in abeyance. The Division Bench judgment of the Court dated 9.5.2022 continued in existence and thus no additional evidence having been led by the parties in this second round of litigation before the State Election Commission started on the complaint filed by respondent no.7, judicial discipline required that the State Election Commissioner should have held his hand and awaited the decision of the Hon'ble Supreme Court in S.L.A. preferred by Usha Kaushik (the first complainant) as also the State Election Commission. It was submitted that for these reasons, in deciding the case registered on the complaint filed by respondent no.7 solely based on the evidence/material which had transpired in course of hearing of Case no.12 of 2020 (initiated on complaint by Usha Kaushik), the State Election Commission had erred both in fact as also in law. For these reasons, the order impugned dated 10.9.2025 rejecting the two petitions filed by the petitioner as also the final order dated 17.10.2025 allowing Case no.26 of 2025 filed by respondent No. 7 are both unsustainable and thus be set aside.

In support of his submissions, reliance was placed by Mr. Shahi, learned Senior counsel for the petitioner on the judgments in the case of Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras; (1992) 3 SCC 1, Union of India vs. Jaiswal Coal Co. Ltd. & Ors.; (1999) 5 SCC 733, State of Uttar Pradesh & Ors. vs. Hirendra Pal Singh & Ors.; (2011) 5 SCC 305, State of Punjab vs. Davinder Pal Singh Bhullar & Ors.; (2011) 14 SCC 770, Alka Gupta vs. Medical Council of India and Anr.; 2014 SCC Online Delhi 2866, judgment dated 2.2.2018 in Central Excise Appeal no.20 of 2017 (Commissioner, Customs, Central Excise & Service Tax, Indore vs. M/s. Ultratech Cement Limited) and Globe Capital Market Limited vs. Vineet Securities Private Limited and Anr.; 2022 SCC Online Delhi 2932.

The application was opposed by Mr. S. B. K. Manglam, learned counsel appearing for the respondent no.7. It was submitted that the writ petitioner had a child after the cut-off date of 4.4.2008 ie on 5.3.2010. The date of birth of the younger child was changed from 5.3.2010 to 15.3.2008. The interpolation in the date of birth would be evident from the fact that the certificate was issued by the Secretary of Nisarpura Panchayat in September 2010 which was not possible as in March 2010 itself the said panchayat merged with Naubatpur.

Mr. Manglam, learned counsel further submitted that a detailed finding had already been given by the State Election Commission in the earlier case initiated on the complaint filed by Usha Kaushik. Though the Division Bench of the High Court by its judgment dated 9.5.2022 passed in CWJC no.4175 of 2022 set aside the order dated 2.3.2022 of the State Election Commission, however on appeals being preferred, the Hon'ble Supreme Court by its order dated 13.7.2022 stayed the operation of the Division Bench judgment of this Court. Thus, in effect, the judgment dated 2.3.2022 of the State Election Commission in Case no.12 of 2020 revived and no reliance can be placed by the petitioner on the Division Bench judgment of the High Court with respect to the qualification or disqualification of the writ petitioner so long as the interim order of the Hon'ble Supreme Court is in operation.

Mr. Manglam, learned counsel further submitted that there being no dispute with respect to the fact/evidence/material brought on record in the first round of litigation before the State Election Commission in Case no.12 of 2020, the disqualification of the writ petitioner on the ground of violation of the provisions contained in section 18(1)(m) of the Act shall remain forever, the younger child of the writ petitioner having been born on 5.3.2010 ie after the cut-off date of 4.4.2008.

With respect to the judgments relied upon by learned Senior counsel appearing for the petitioner, it was submitted by Mr. Manglam, that the judgments have to be examined in the light of the facts of the case of which they have been passed and the judgments relied upon on behalf of the petitioner are not applicable in the facts of the instant case. It was submitted that for these reasons there is no illegality in the order impugned passed by the State Election Commission allowing Case no.26 of 2025, no merit in the instant application, and the same be dismissed.

Mr. Manglam, learned counsel for the respondent no.7 in support of his submissions relied upon the judgment of the Hon’ble Supreme Court in the case of Haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr.; (2002) 3 SCC 496, Dr Prodip Kumar Biswas vs. Subrata Das & Ors.; (2004) 4 SCC 573, V.P Sheth vs. State of M.P & Ors.;(2004) 13 SCC 767 and Commnr. of Central Excise, Bangalore vs. Srikumar Agencies Etc. Etc.; 2008 (16) SCR 720.

Mr. Ravi Ranjan, learned counsel appearing for the State Election Commission, adopted the argument made by Mr. S. B. K. Mangalam, learned counsel for respondent no. 7. Further, referring to the counter affidavit filed on behalf of the respondent State Election Commission, it was submitted that by order dated 3.3.2022 passed in Case no. 12 of 2020, the respondent Commission disqualified the petitioner under section 18(1)(m) read with 18(2) of the Act. The said order was set aside by judgment dated 9.5.2022 passed in CWJC no. 4175 of 2022. The respondent Commission as also the complainant filed appeals before the Hon'ble Supreme Court wherein an interim order staying the impugned judgment dated 9.5.2022 was passed. Later by order dated 1.9.2022, the interim order was made absolute.

Learned counsel for the State Election Commission further submitted that the Full Bench of this Court in the case of Rajani Kumari vs. The State Election Commission and Ors.; 2019 (4) PLJR 673 (FB), though upheld the powers of the State Election Commission to disqualify both pre and post-election, however it put a small rider on exercise of such powers, that it is to be done only on existence of unimpeachable evidence. In view of the difficulty faced as a result of the said rider, the respondent Commission challenged the Full Bench judgment by filing an S.L.P in the Hon'ble Supreme Court, which was numbered as Diary no. 18118/2022 and by order dated 14.7.2022, the same has been tagged along with SLP (C) no. 10862–10864 of 2022. It was further submitted that the writ petitioner had already been disqualified in terms of section 18(1)(m) of the Act by order dated 2.3.2022 passed in Case no. 12 of 2020 by the State Election Commission. This order had been set aside by the Division Bench of this Court by its order dated 9.5.2022 passed in C.W.J.C. no. 4175 of 2022, relying upon the Full Bench judgment in the case of Rajani Kumari (supra). With the stay of the Division Bench judgment dated 9.5.2022 passed in C.W.J.C. no. 4175 of 2022 by the Hon'ble Supreme Court, the effect would be of putting the order dated 2.3.2022 passed in Case no. 12 of 2020 by the State Election Commission back to life, and the writ petitioner who stood disqualified by virtue of the said order, cannot be allowed to continue. It was thus submitted that on a fresh objection having been filed by the respondent no. 7, by order dated 17.10.2025, the State Election Commission correctly decided Case no. 26 of 2025 and on the basis of the evidence led in the earlier case (Case no.12 of 2020) correctly decided to disqualify the petitioner in view of section 18(1)(m) read with 18(2) of the Act. There is no illegality in the said order and thus the application be dismissed. Learned counsel also placed reliance upon the judgment in the case of V.P Sheth vs. State of M.P & Ors.; (2004) 13 SCC 767.

Heard learned counsel for the parties and perused the material on record.

The relevant facts in brief are that the petitioner having been elected on the post of Chief Ward Councillor of Naubatpur Nagar Panchayat, his elections were challenged in an election petition (Case no. 12 of 2020) by one Usha Kaushik on the ground that the petitioner had more than two children after the cut-off date, i.e., 4.4.2008 and thus praying for his disqualification in view of section 18(1)(m) read with 18(2) of the Bihar Municipal Act, 2007 (‘the Act' in short).

Section 18(2) of the Act empowers the State Election Commission to decide matters of pre or post-election disqualification of a candidate on a complaint being filed or even upon taking suo motu cognizance. A Full Bench of this Court in the case of Rajani Kumari (supra), while upholding the powers of the State Election Commission to consider the issue of pre or post-election disqualification of a candidate, added a caution that the State Election Commission shall entertain and consider the disqualification issues on the basis of unimpeachable materials placed before him. It further observed that on a complaint being filed, the State Election Commission at the first instance will enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials.

The Full Bench in the case of Rajani Kumari (supra) further held that whenever a disputed question of fact and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified, the Commission would be required to relegate the parties to a competent Court/Tribunal or a fact-finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo motu or otherwise.

Relying upon the Full Bench judgment in the case of Rajani Kumari (supra), the Division Bench of this Court by its order dated 9.5.2022 in C.W.J.C. no. 4175 of 2022 set aside the order dated 2.3.2022 passed by the State Election Commission in Case no. 12 of 2020.

It would be relevant to observe here itself that in paragraph no.35 of the judgment dated 9.5.2022, the Division Bench of this Court took note of the fact that the authority exercising powers under section 18(2) of the Act by invoking section 18(1)(m) must always keep in mind the disastrous consequences of a declaration made in respect of the date of birth of a child to a person before or after the cut-off date of 4.4.2008 for the reason that a disqualification under section 18(1)(m) of the Act would permanently debar him from contesting a Panchayat/Municipal election. It further observed that more serious the consequences, stricter must be the degree of proof. In the said case, the State Election Commissioner had not only overlooked the Full Bench decision in the case of Rajani Kumari (supra) in deciding the dispute, but had undertaken a casual procedure of causing an ex-parte fact-finding inquiry through the District Magistrate-cum-District Election Officer (Municipality). The impugned order did not even disclose issuance of any notice to the writ petitioner/candidate or their participation in the inquiry.

The complainant Usha Kaushik preferred SLA (C) no. 10563-10565 of 2022 in the Hon'ble Supreme Court. The State Election Commission also preferred SLP (C) no. 10862-10864 of 2022.

By order dated 13.7.2022, the Hon’ble Supreme Court (in SLA (C) no. 10563-10565 of 2022 and SLP (C) no. 10862-10864 of 2022) issued notice and further ordered that in the meantime the operation of the impugned judgment is stayed but the elected persons will continue to participate as members of the Panchayat. Later by order dated 1.9.2022, the interim order was made absolute during pendency of the appeals.

In the meantime, the tenure of the petitioner having expired, he participated in the fresh elections held in the year 2025 and was again elected as Chief Ward Councillor of Naubatpur Nagar Panchayat.

Another complaint was filed by the respondent no. 7 before the State Election Commission which was registered as Case no. 26 of 2025. The petitions filed by the petitioner for stay of the proceeding and challenging the maintainability of the said case were both rejected by order dated 10.9.2025.

By order dated 17.10.2025 the State Election Commissioner was pleased to allow Case no. 26 of 2025 of the respondent no.7, hold the petitioner disqualified under section 18(1)(m) read with 18(2) of the Act and set aside the petitioner's election as the Chief Ward Councillor.

A perusal of the order dated 17.10.2025 would show that the State Election Commissioner observes that the writ petitioner already stood disqualified under section 18(1)(m) of the Act vide order passed in the earlier Case no. 12 of 2020. He further observes that no further evidence is to be lead or examined in the present case (Case no. 26 of 2025), the instant case is dependent upon the earlier order and as such the Commission is in a position to immediately decide the instant case. He further observes that by order dated 2.3.2022 passed in Case no. 12 of 2020 (Usha Kaushik vs. Saryug Mochi), on the basis of a categorical finding disqualifying him under section 18(1)(m) of the Act, the writ petitioner had once again sworn an incorrect affidavit. Though the earlier decision of the State Election Commission had been set aside by the Patna High Court in CWJC no. 4175 of 2022, however, in view of the absolute stay granted by the Hon'ble Supreme Court in SLA (C) no. 10563-10565 of 2022, the order passed in Case no. 12 of 2020 by the State Election Commission had again come in force.

The State Election Commissioner further observes in his order dated 17.10.2025 that a legal opinion from the advocate for the State Election Commission was obtained, who opined that the order of the State Election Commission dated 2.3.2022 continues to be alive/in effect and have legal force in light of the orders passed by the Hon'ble Supreme Court dated 13.7.2022 and 1.9.2022 in SLP (C) no. 10862-10864 of 2022 and connected petitions. Thus the State Election Commissioner vide his order dated 17.10.2025 based on the evidence led in the earlier case (Case no. 12 of 2020), without taking any evidence whatsoever in the present case proceeded to decide Case no. 26 of 2025, to disqualify the writ petitioner in view of the provisions contained in section 18(1)(m) read with 18(2) of the Act and set aside his election as the Chief Ward Councillor.

The question thus arising is as to what is the effect of a stay order on the judgment, operation of which is stayed.

The Hon’ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. (supra) held as follows :

In the case of Globe Capital Markets Limited (supra), the Delhi High Court held as follows :

As held in the case of Shree Chamundi Mopeds Ltd. (supra), while quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed, the stay of operation of an order does not however lead to such a result. It only means that the order which had been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence.

Thus applying the above decision to the facts of the present case the position as of today is that the order dated 2.3.2022 passed in Case no. 12 of 2020 by the State Election Commission disqualifying the petitioner under section 18(1)(m) read with 18(2) of the Act was set aside by the Division Bench of the Patna High Court by its judgment dated 9.5.2022 passed in C.W.J.C. no. 4175 of 2022. Even though the said judgment dated 9.5.2022 of the Division Bench has been stayed by orders dated 13.7.2022 and 1.9.2022 passed in the appeals pending in the Supreme Court, the effect only would be that the order dated 9.5.2022 of the Division Bench of the Patna High Court would not be operative, but the judgment continues to remain in existence and cannot be treated to have been wiped out.

It would be relevant to take note that even in the order dated 13.7.2022 while ordering the stay of the operation of the impugned judgment, the Hon’ble Supreme Court observed that the elected persons will continue to participate as members of the Panchayat.

On fresh elections being conducted in the year 2025 and the petitioner once again being elected as the Chief Ward Councillor, his elections were once again challenged by respondent no. 7 vide Case no. 26 of 2025. The State Election Commission without taking any evidence whatsoever and on the basis of the evidence led in the previous case, i.e., Case no. 12 of 2020 proceeded to once again disqualify the petitioner under section 18(1)(m) read with 18(2) of the Act on the basis of the legal opinion obtained that the order of stay of the judgment by the Hon’ble Supreme Court in the pending appeals would amount to revival of the order dated 2.3.2022 of the State Election Commission.

As discussed hereinabove, this is a clear error committed by the State Election Commission in interpreting the order of stay passed by the Hon’ble Supreme Court and treating the order of the Division Bench as having been set aside and no longer being in existence.

Submissions have also been made by the learned Senior Counsel appearing for the petitioner on judicial discipline and reliance has been placed on the judgment in the case of Jaiswal Coal Company Limited (supra).

Without going into details of the submissions of the ratio of the judgment, this Court is of the opinion that the matter in issue with respect to disqualification of the petitioner under section 18(1)(m) of the Act being pending before the Hon’ble Supreme Court in the appeals preferred against the judgment of the Division Bench dated 9.5.2022 passed in C.W.J.C. no. 4175 of 2022, the State Election Commission should have awaited the decision of the Hon’ble Supreme Court before proceeding to decide Case no. 26 of 2025 by the order impugned.

So far as the judgments relied upon by the learned counsels for the respondents are concerned, they are mainly on the point that Courts should not place reliance on the decisions without looking into the facts of each case and the observations must be read in the context in which they appear. The observations of Courts are not to be read as Euclid's theorems nor as provisions of a statute. There can be no dispute with respect to the law laid down as cited by the respondents, however, this Court does not find the same to be of any assistance to the respondents in view of the contents of the judgments relied upon on behalf of the petitioner in the instant case.

In view of the facts and circumstances of the case, this Court is of the opinion that both the orders impugned dated 10.9.2025 passed in Case no. 26 of 2025 by the State Election Commissioner (Municipality) as also the final order dated 17.10.2025 passed by the State Election Commissioner allowing Case no. 26 of 2025 are unsustainable and are hereby set aside.

The writ application is allowed.