Sunil Kumar v. The State Of Bihar through Secretary Urban and Housing Development Department & Ors.

Patna High Court CWJC No.23325 of 2012 (3) dt.30-01-2013 Assistant Counsel to Govt. Pleader No. 17 appearing for the State. The challenge in this writ application is to the order dated 12.11.2012 in Case No. 3 of 2012 passed by the respondent-State Election Commission, whereby petitioner who was then a Ward Councilor of Lakhisarai Nagar Parishad was declared disqualified for holding the post of Member of the Municipality/Nagar Parishad in terms of the provisions of Section 18(1) (j) & (l) and section 18(2) of the Bihar Municipal Act, 2007 (hereinafter referred to as the ‘Act’). The short facts are that the petitioner, an elected Ward Councilor of Lakhisarai Nagar Parishad was holding the post of Deputy Chief Councilor, however, approximately after three years on a no confidence motion moved against the petitioner on account of misuse of his power and also on account of his corrupt practices he was removed from the post of Deputy Chief Councilor of the said Nagar Parishad. Subsequently, a complaint of some of the Ward Councilors to the State Election Commission, Bihar (hereinafter referred to as the ‘Commission’) alleging misuse of the power and the post as also on account of corrupt practices the above Case No. 3 of 2012 was registered. The Commission after hearing accepted the complaint and found that the petitioner is guilty of misusing his power as a Member of the Nagar Parishad as also guilty of corrupt practices, and as such, in terms of the Patna High Court CWJC No.23325 of 2012 (3) dt.30-01-2013 aforementioned provisions of the Act the petitioner was held to be disqualified with further finding that the petitioner becomes disqualified in contesting any election of Nagar Parishad in terms of the provisions of Section 475 of the aforesaid Act read with Rule 46(1) of Bihar Municipal Election Rules, 2007. appearing for the petitioner submits that the impugned order is not sustainable in law for the reason that the proceedings of the no confidence motion against the petitioner could not be a ground in law for disqualifying the petitioner in terms of the provisions of section 18 (j) & (l) of the Act. It is further submitted that notwithstanding the above State Election Commission has passed the order without any cogent materials on record in order to hold that the petitioner is guilty of corrupt practices since unless the due procedure in law is followed in order to arrive at the finding that the petitioner is guilty of corrupt practices, petitioner cannot be held to be disqualified on the ground that he is guilty of corrupt practices as enumerated under section 481 of the Bihar Municipal Act,

#2007. It has also been submitted that the criminal cases as mentioned in the order, were not correct which would be evident from the letter of the Police Superintendent, Crime Investigation Department, Govt. of Bihar vide letter no. 1491 dated 10th August, 2009 (Annexure-7). It is accordingly submitted that the order is absolutely illegal and as such Patna High Court CWJC No.23325 of 2012 (3) dt.30-01-2013 deserves to be quashed. Mr. Amit Srivastava, learned counsel appearing for the State Election Commission submits that the State Election Commission did not pass the order on basis of the proceedings of the Municipal House. On perusal of the impugned order, it would appear that the Commission by its detailed order has considered various materials brought on the record including the criminal cases against the petitioner for his riotous behaviour constituting criminal offence. Besides, various reports were brought on the record in which the petitioner was found to have misused his office by illegal means for his ulterior gain as much as in connivance with his brother who was Accountant in Nagar Parishad. In other words, it is submitted that the State Election Commission under the aforesaid provisions of section 18 of the Municipal Act read with Rule 46(1) of the Bihar Municipal Election Rules, 2007 passed the order holding the petitioner disqualified and further disqualified for becoming a candidate for the Election of Ward Councilor in any municipality/Nagar Parishad. Learned Assistant Counsel to Government Pleader No. 17 for the State submits that he also adopted the submissions advanced on behalf of the respondent–State Election Commission. Considering the rival submissions of the parties and on perusal of the impugned order, it would appear that the Patna High Court CWJC No.23325 of 2012 (3) dt.30-01-2013 State Election Commission is authorized in law to declare a person disqualified for holding the post as member of Municipality/Nagar Parishad either before election or even after the election if any of the disqualifications are found as mentioned in sub-section (1) of Section 18 of the Act. The Commission has independent jurisdiction to exercise its power on basis of complaint or suo motu in order to examine as to whether the elected member of the Municipality/Nagar Parishad is disqualified on any of the grounds mentioned in Section 18(1) of the Act. In the present case ingredients relevant for disqualification of the petitioner is on the grounds mentioned in clause (j) & (l) of Section 18(1) of the Act. Sub- section (j) talks of corrupt practices on the part of the person concerned either before or after election and sub-section (l) talks of deficiency in performing the duties and function as the Member of the Municipality willfully or misusing the power vested in him or is found guilty of misconduct in discharge of his duty or becoming physically or mentally incapacitated in performing his duties. The submissions advanced on behalf of petitioner that unless the allegation of corrupt practice is not established in a court of law by the State Election Commission is not correct. In my opinion, on perusal of the provision of Sub Section (2) of Section 18 of the Act, it would appear that the State Election Commission is vested with the power to decide Patna High Court CWJC No.23325 of 2012 (3) dt.30-01-2013 the allegations with respect the disqualification as enumerated in Sub Section (1) of Section 18 of the Act. The State Election Commission is even competent to decide allegation suo motu. This court while considering the impugned order is not exercising appellate jurisdiction. It is not in dispute that the impugned order was passed after elaborate hearing and giving opportunity to the party concerned to adduce their respective evidence. During the hearing materials is produced in support of their respective cases and upon consideration the orders were passed. Notwithstanding, even if the ground with respect to the corrupt practice is taken beyond the competence of the State Election Commission to decide even than if the impugned order can be sustained in law on the other ground with respect to the misuse of the power the order cannot be vitiated in law. In the result, for the reasons and discussions made above, in my opinion, the order cannot be faulted in law. The writ application being devoid of any merit. It is accordingly, dismissed. Manish/- (Shailesh Kumar Sinha, J)