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THE BIHAR PANCHAYAT RAJ (AMENDMENT) ACT, 2009

(Bihar Act 10, 2009)

THE BIHAR PANCHAYAT RAJ (AMENDMENT) ACT, 2009

An Act to Amend the Bihar Panchayat Raj Act, 2006 (Act 6, 2006)

Be it enacted in the 60th year of the Republic of India by the State Legislature of Bihar as follows :-

1. Short name, extent and commencement.—

(1) This act may be called the Bihar Panchayat Raj (Amendment) Act, 2009.

(2) It shall extend to the whole of the State of Bihar.

(3) It shall come into force at once.

2. Amendment of Section-2 of the Bihar Act 6, 2006.—Section-2 of the Bihar Panchayat Raj Act, 2006 shall be substituted by the following:-

"2 (a m) - "Village" means all revenue villages or group of adjoining revenue villages or part thereof falling within a Gram Panchayat."

3. Amendment of Section-13 of the Bihar Act 6, 2006.—(i) In the second paragraph of section-13 (1) of the Bihar Panchayat Raj Act, 2006 (Bihar Act 6, 2006) (herein after referred to as the Act), the words "after two consecutives general elections" shall be inserted after the words "in the prescribed manner."

(ii) In second sentence of third paragraph of section-13(1) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-13(4) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) The explanation mentioned after section -13(4) of the Act "For the removal of doubts it is hereby, declared that the principle of rotation for the purpose of reservation of offices for the scheduled castes and scheduled Tribes under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 1993." shall be substituted as under :-

"For the removal of doubts it is, hereby, declared that the principle of rotation for the purpose of reservation of offices for the Scheduled Castes, Scheduled Tribes, Backward classes, Women of Backward classes and Women of unreserved category under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 2006."

4. Amendment of Section-15 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-15 (5)(i) of the Act, the words "after two consecutives general elections" shall be inserted after the words "control and supervision."

(ii) In second sentence of third paragraph of section-15 (5)(i) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-15 (5)(iv) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) The explanation mentioned after section -15 (5)(iv) of the Act "For the removal of doubts it is hereby, declared that the principle of rotation for the purpose of reservation of offices for the scheduled castes and scheduled Tribes under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 1993." shall be substituted as under :-

5. Amendment to the section 28 of Bihar Act, 6, 2006.—

English version does not need any amendment.

6. Amendment of Section-38 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-38(1) of the Act, the words "after two consecutives general elections" shall be inserted after the words "in the prescribed manner."

(ii) In second sentence of third paragraph of section-38(1) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-38(4) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) The explanation mentioned after section -38(4) of the Act "For the removal of doubts it is hereby, declared that the principle of rotation for the purpose of reservation of offices for the scheduled castes and scheduled Tribes under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 1993." shall be substituted as under :-

7. Amendment of Section-40 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-40(2) of the Act, the words "after two consecutives general elections" shall be inserted after the words "in the manner prescribed."

(ii) In second sentence of third paragraph of section-40(2) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-40(2)(iv) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) The explanation mentioned after section -40(2)(iv) of the Act "For the removal of doubts it is hereby, declared that the principle of rotation for the purpose of reservation of offices for the scheduled castes and scheduled Tribes under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 1993." shall be substituted as under :-

8. Amendment of Section-65 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-65(1) of the Act, the words "after two consecutives general elections" shall be inserted after the words "in the prescribed manner."

(ii) In second sentence of third paragraph of section-65(1) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-65(4) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) The explanation mentioned after section -65(4) of the Act "For the removal of doubts it is hereby, declared that the principle of rotation for the purpose of reservation of offices for the scheduled castes and scheduled Tribes under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 1993." shall be substituted as under :-

9. Amendment of Section-67 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-67(2) of the Act, the words "after two consecutives general elections" shall be inserted after the words "Zila Parishads."

(ii) In second sentence of third paragraph of section-67(2) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in subsequent elections."

(iii) In section-67(2)(iv) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in the manner as may be prescribed."

(iv) The explanation mentioned after section -67(2)(iv) of the Act "For the removal of doubts it is hereby, declared that the principle of rotation for the purpose of reservation of offices for the scheduled castes and scheduled Tribes under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 1993." shall be substituted as under :-

10. Amendment of Section-91 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-91(1) of the Act, the words "after two consecutives general elections" shall be inserted after the words "in the prescribed manner."

(ii) In second sentence of third paragraph of section-91(1) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-91(4) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) After sub-section - (4) of section – 91 of the Bihar Panchayat Raj Act, 2006 the following explanation shall be inserted :-

"Explanation — For the removal of doubts it is, hereby, declared that the principle of rotation for the purpose of reservation of offices for the Scheduled Castes, Scheduled Tribes, Backward classes, Women of Backward classes and Women of unreserved category under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 2006."

11. Amendment of Section-93 of the Bihar Act 6, 2006.—

(i) In the second paragraph of section-93(5)(i) of the Act, the words "after two consecutives general elections" shall be inserted after the words "in the manner prescribed."

(ii) In second sentence of third paragraph of section-93(5)(i) of the Act, the words "after two consecutive general elections" shall be inserted after the words "during subsequent elections."

(iii) In section-93(5)(i) of the Act, the words "after two consecutive general elections" shall be inserted after the words "in such manner as may be prescribed."

(iv) After clause (iv) of sub-section-(4) of section-93 of the Bihar Panchayat Raj Act, 2006 the following explanation shall be inserted :-

"Explanation —

For the removal of doubts it is, hereby, declared that the principle of rotation for the purpose of reservation of offices for the Scheduled Castes, Scheduled Tribes, Backward classes, Women of Backward classes and Women of unreserved category under this sub-section shall commence from the first election held after the commencement of the Bihar Panchayat Raj Act, 2006."

12. Insertion of a new sub-section after sub-section (8) in section-125 of Bihar Act, 6, 2006.—

After sub-section- (8) in section-125 of the said Act, the following new sub-section shall be inserted, namely :—

“(9) Staff of certain authorities to be made available for election work .—

(a) The authorities specified in clause (b) shall, when so requested by the District Election Officer, (Panchayat), make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election. Duties related with polling, counting of votes, maintenance of law and order, patrolling and magistracy etc. shall be deemed to be included under election duty.

(b) The following shall be the authorities for the purposes of clause (a), namely :

(i) every local authority;

(ii) a Government company as defined in section -617 of the Companies Act, 1956 (1of 1956);

(iii) any other institution, concern or undertaking which is established by or under a Central, provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.

13. Insertion of a new section after section- 125 of Bihar Act, 6, 2006.—

After section- 125 of the said Act, the following new section shall be inserted, namely:—

“125-A – (1) Furnishing of certain information essential for candidates.—

A candidate shall, apart from any information which he is required to furnish in his nomination papers delivered under the Act or the rules made thereunder, also furnish information on affidavit on the following aspects in relation to his/her candidature—

(i) Whether he is convicted/acquitted/discharged of any criminal offence in the past- if any, whether he is punished with imprisonment or fine;

(ii) Prior to six months of filing of nominations, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for more than six months, and in which a charge has been framed or cognizance has been taken by a competent court of law. If so, the details thereof.

(iii) The assets (including movable, immovable and bank balances, etc.) of a candidate, and of his/her spouse and that of dependents.

(iv) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.

(v) The educational qualifications of the candidate.

In case of non-furnishing of the affidavit by any candidate, the nomination of the concerned candidate shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit. The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officer by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to the representatives of the print and electronic media and to any other candidate of person on deposit of fee prescribed by the Commission.

If any rival candidate furnishes information to the contrary by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above.

(2) Candidate to furnish information only under the Act and the rules.—

Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the State Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.

(3) Penalty for filing false affidavit, etc.—

A candidate who himself or through his proposer, with intent to be elected in an election, —

(i) fails to furnish information relating to sub-section(2) or

(ii) gives false information which he knows or has reason to believe to be false; or

(iii) conceals any information, in his nomination paper or in his affidavit which is required to be delivered, as the case may be , shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to one year or with fine, or with both.

(4) Requisitioning of premises, vehicles, etc., for election purposes .—

(i) If it appears to the State Government that in connection with an election within the State —

(a) any premises are needed or are likely to be needed for the purpose of being used as a polling station or for the storage of ballot boxes after a poll has been taken, or

(b) any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election, the government may by order in writing requisition such premises, or such vehicle, vessel or animal, as the case may be , and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning :

Provided that no vehicle, vehicle or animal which is being lawfully used by a candidate or his agent for any purpose connected with the election of such candidate shall be requisitioned under this at such election.

(ii) The requisition shall be effected by an order in writing addressed to the person deemed by the State Government to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed.

(iii) Whenever any property is requisitioned under sub-clause(a) or (b) of clause (i), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-clause.

(iv) In this sub-section —

(a) “Premises” means any land, building or part of a building and includes a hut, shed or other structure or any part thereof;

(b) “Vehicles” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise.

(v) Payment of compensation.—

Whenever in pursuance of clause (i) the State Government requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the (a) rent payable in respect of the premises or if no rent is so payable, the rent payable for similar premises in the locality;

(b) if in consequence of the requisition of the premises, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change:

Provided that where any person interested being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:

Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred by the State Government to an arbitrator appointed in this behalf by the Government for determination, and shall be determined in accordance with the decision of such arbitrator.

Explanation:—

In this sub-clause, the expression “person interested” means the person who was in actual possession of the premises requisitioned under clause(i) immediately before the requisition, or where no person was in such actual possession, the owner of such premises.

(c) Whenever in pursuance of clause (i) the State Government requisitions any vehicle, vessel or animal, there shall be paid to the owner thereof compensation the amount of which shall be determined by the State Government on the basis of the fares or rates prevailing in the locality for the hire of such vehicle, vessel or animal:

Provided that where the owner of such vehicle, vessel or animal being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:

Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of a hire purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as an arbitrator appointed by the State Government in this behalf may decide.

(vi) Power to obtain information.—

The State Government may with a view to requisitioning any property under clause (i) or determining the compensation payable under clause (v) by order, require any person to furnish to such authority as may be specified in the order such information in his possession relating to such property as may be so specified.

(vii) Powers of entry into and inspection of premises, etc. —

Any person authorized in this behalf by the State Government may enter into any premises and inspect such premises and any vehicle, vessel or animal therein for the purpose of determining whether, and if so in what manner, an order under clause (i) should be made in relation to such premises, vehicle, vessel or animal, or with a view to securing compliance with any order made under that clause14

(viii) Eviction from requisitioned premises.—

Any person remaining in possession of any requisitioned premises in contravention of any order made under clause(ii), may be summarily evicted from the premises by any officer empowered by the State Government in this behalf.

(2) Any officer so empowered may, after giving to any woman not appearing in public reasonable warning and facility to withdraw, remove or open any lock or bolt or break open any door of any building or do any other act necessary for effecting such eviction.

(ix) Release of premises from requisition.—

(1) When any premises requisitioned under clause (ii) are to be released from requisition, the possession thereof shall be delivered to the person from whom possession was taken at the time when the premises were requisitioned, or if there were no such person, to the person deemed by the State Government to be the owner of such premises and such delivery of possession shall be a full discharge of the State Government from all liabilities in respect of such delivery but shall not prejudice any rights in respect of the premises which any other person may be entitled by due process of law to enforce against the person to whom possession of the premises is so delivered.

(2) Where the person to whom possession of any premises requisitioned under clause(ii) is to be given under clause (ix) cannot be found or is not readily ascertainable or has no agent or any other person empowered to accept delivery on his behalf, the State Government shall cause a notice declaring that such premises are released from requisition to be affixed on some conspicuous part of such premises and publish the notice in the official gazette.

(3) When a notice referred to in sub-clause (b) is published in the Official Gazette, the premises specified in such notice shall cease to be subject to requisition on and from the date of such publication and be deemed to have been delivered to the person entitled to possession thereof; and the State Government shall not be liable for any compensation or other claim in respect of such premises for any period after the said date.

(x) Delegation of functions of the State Government with regard to requisitioning —

The State Government may, by notification in the Official Gazette, direct that any powers conferred or any duty imposed on that Government by any of the provisions of clause (i) to (ix) shall, under such conditions, if any, as may be specified in the direction, be exercised or discharged by such officer or class of officers as may be so specified.

(xi) Penalty for contravention of any order regarding requisitioning —

If any person contravenes any order made under clause (i) or (vi), he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

14. Insertion of a new section after section - 126 of Bihar Act, 6, 2006.—After section -126 of the said Act, the following new section shall be inserted, namely :—

“126-A Right to vote —

(1) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in the Act.

(2) No person shall vote at a general or bye election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.

(3) No person shall at any election vote in the same constituency more than one, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.

(4) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police;

Provided that nothing in this subjection shall apply to a person subjected to preventive detention under any law for the time being in force.

(5) Nothing contained in sub-section –

(2) and (3) Shall apply to a person who has been authorized to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector.

15. Amendment of section-130 of Bihar Act, 6, 2006.—

In explanation (1) of sub-section (16) in section 130 of the said Act, the group of words “and section 97(b)” shall be deleted.

16. Amendment of section - 136 of Bihar Act, 6, 2006.—

Sub-Section-(2) of Section – 136 shall be substituted as follows and shall be deemed to have been substituted w.e.f. 10th of April 2006 :-

"If any question arises as to whether Member of Panchayat at any level including Mukhiya of Gram Panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Kutchahry or Panch of Gram Kutchahry was disqualified before election or has incurred disqualification after election as provided in Article 243-F of Constitution of India and subject to any disqualifications mentioned in Section-135 or Sub-section-(1) of Section-136, the question shall be referred for the decision of State Election Commissioner. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such disqualification and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard;

Provided that the State Election Commission shall not be entitled to entertain any complaint or petition subject matter of which is purely an election dispute such as corrupt practice, wrongful rejection of nomination etc. in accordance with Article 243-O of the Constitution of India read with Section-137 of the Act".

(2) In section-136(3), after the word "Sarpanch" the word "or Panch" shall be inserted.

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