Rajani Kumari, Daughter Of Paras Kumar Yadav vs State Election Commission, Bihar, Patna Through Its Secretary

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Pat) 675

IN THE HIGH COURT OF JUDICATURE AT PATNA
AMRESHWAR PRATAP SAHI, ANJANA MISHRA, RAJEEV RANJAN PRASAD, JJ.
Rajani Kumari, Daughter Of Paras Kumar Yadav — Appellant
Versus
State Election Commission, Bihar, Patna Through Its Secretary — Respondent
Letters Patent Appeal No. 566 of 2017, 391 of 2016, 242 of 2017, 329 of 2018, 272 of 2017, 1425 of 2014; Civil Writ Jurisdiction Case No. 507 of 2013, 11445 of 2018, 20234 of 2014, 68 of 2017
Decided on : 17-09-2019

Advocates:
Advocate Appeared:
Y.V. Giri, Adv., Ashok Kumar, Adv., Bibhuti Narayan, Adv., Kaushal Kumar Jha, Adv., Amit Shrivastava, Adv., Sanjay Kumar, Adv., Girish Pandey, Adv., Pranav Kumar, Adv., Ashish Giri, Adv., Md Ziaul Quamar, Adv., Manish Kumar, Adv., Krishna Chandra, Adv., Pratik Kumar Sinha, Adv., Rakesh Kumar Ranjan, Adv., Jaishankar Barnwal, Adv., Shivendra Kumar Sinha, Adv., Shilpa Sinha, Adv., Bindeshwar Sah, Adv., Yogendra Prasad Sinha, Adv., Anita Kumari, Adv., S.B.K. Mangalam, Adv., Pushkar Narayan Shahi, Adv., Ram Sandesh Roy, Adv., Lalit Kishore, Adv., Aditya Abhishek, Adv., Santosh Bharti, Adv., Navjot Yeshu, Adv., Rajeev Lochan, Adv., Ram Prawesh Kumar, Adv., P.K. Verma, Adv., K.N. Pandey, Adv., Dhananjay Kumar, Adv., Nasim Yahya, Adv., Prem Ranjan Kumar, Adv., Dharmendra Kumar, Adv., K.P. Yadav, Adv.

Headnote:
Bihar Panchayat Raj Act, 2006 – Sections 135 and 136(2) – Bihar Municipal Act, 2007 – Section 18(2) – Power of State Election Commission to disqualify a candidate elected to Office of a member or Office bearer of a municipality under Bihar Municipal Act, 2007 or to any Office under Bihar Panchayat Raj Act, 2006 and Rules framed thereunder – Word qualification denotes existence of fitness and eligibility – Unqualified, means not having necessary qualifications or endowed with specific qualities as prescribed – To disqualify means to make a person unqualified or pronounce him unqualified – It is declaration of disability or legal incapacity – These words have different meanings and Legislature has separately used and defined word qualification in Section 135 and word disqualification in Section 136 of 2006 Act – Disqualification entails characteristic of a person who is declared unqualified or becomes unqualified – Disqualification may have been existing from before but its discovery after election or acquisition of any disqualification after election seems to be stipulated for being dealt with by way of a reference to such authority and in such manner as State Legislature may provide. (Paras 12, 13 and 14)
Bihar Panchayat Raj Act, 2006 – Sections 135 and 136(2) – Bihar Municipal Act, 2007 – Section 18(2) – Constitution of India – Article 243-O (b)/Article 243-ZG (b) – Power of State Election Commission to disqualify a candidate elected to Office of a member or Office bearer of a municipality under Bihar Municipal Act, 2007 or to any Office under Bihar Panchayat Raj Act, 2006 and Rules framed thereunder – State Election Commission will have power and authority to consider qualification of a candidate excluding matters relating to qualification of a returned candidate which can be subject matter of challenge only through an election dispute – Power of State Election Commission to declare a returned candidate disqualified as per provisions of disqualification extends to any point of time during his entire tenure on the basis of either uncontested or clinching evidence which may not require any adjudication or which may be subject matter of an election petition. (Para 34)
Case Referred:
Commissioner of Income Tax, Delhi vs. S. Teja Singh, AIR 1959 SC 352 – Relied.
Per Anjana Mishra, J.
Bihar Municipal Act, 2007 – Section 476 read with Section 479 – Bihar Panchayat Raj Act, 2006 – Section 136 – Constitution of India – Article 243-F – Power to declare a candidate disqualified when limitation for filing election petition has come to an end – In each of Acts, Constitution had clarified that no election viz. either to House of Parliament or to House or either House of Legislature of State shall be called in question, be it an election under Representation of People Act or election of a Member of any Municipal Body under Bihar Municipal Act or election of Member of Panchayat under Bihar Panchayat Raj Act – Returned candidate democratically elected cannot be dislodged and their election shall not be called in question in any Court except by an election petition presented to prescribed authority under respective Acts. (Para 30)
Constitution of India – Article 243-F – Bihar Municipal Act, 2007 – Section 476 read with Section 479 – Bihar Panchayat Raj Act, 2006 – Section 136 – Power to declare a candidate disqualified when limitation for filing election petition has come to an end – Election Commission is empowered to consider disqualifications before or after election and even if said disqualifications were inhering in candidate even prior to election – Under Section 136(2) of Bihar Panchayat Raj Act, 2006, State Election Commissioner has authority to examine validity of election of Mukhiya and cancel the same – If an elected representative is declared to be disqualified by a competent authority, natural corollary would be that said elected representative becomes unseated from post – State Election Commission does have power to entertain disputes which were inhering in it so far as disqualification enumerated in Section 136(1) are concerned, as also disqualification under Section 135 – State Election Commission under Section 136(2) duly supported by Article 243-F(2) (which is enabling part by which Legislature can make Laws) has power to decide issue relating to disqualification occurring prior and after election – There are two Fora available for deciding disputes which have occurred pre and post-election; one being State Election Commission (SEC) and other Election Tribunal which deals with purely election disputes. (Paras 49, 52, 55 and 68)
Bihar Panchayat Raj Act, 2006 – Sections 136 and 139 – Constitution of India – Article 243-F – Power to declare a candidate disqualified when limitation for filing election petition has come to an end – Election Commissioner is an Additional Forum for remedying election wrongs – However, State Election Commissioner shall not entertain any dispute which is already subject-matter and is a dispute pending before any Election Tribunal as it would not be open to complainant to avail two statutory remedies – Remedy available or opted by complainant earlier would have to be pursued instead of filing complaints under Section 136(2) as having once been treated in accordance with proviso to Section 136(2), complainant should not be permitted to pursue a parallel remedy – State Election Commissioner must not entertain purely election disputes referred to in Section 139 and it must decide as a preliminary issue as to whether complaint filed before it relates to and arises out of only those disqualifications which have been clearly enunciated under Sections 135 and 136(1) of Panchayat Raj Act and is not subject to bar as contained in Article 243-O of Constitution after putting parties to notice – Powers of State Election Commissioner to "suo motu" take notice of any disqualification of a Member either before or after election, however, should not be circumscribed into a strait-jacket formula so as to render the proviso redundant – Question of wrong acceptance of nomination does not come within grounds mentioned under Section 137(1) – Pre and post-qualification and disqualification disputes, which surface after period of limitation has exhausted may be looked into by State Election Commission – Disputed question of facts relating to disqualification, where there are unimpeachable materials before State Election Commission should be entertained by Commission but in matters where it is difficult for State Election Commission to come to a finding regarding question of disqualification, be it either of question of age or of question of caste of a returned candidate, same should be subjected to strict enquiry and be entertained only when such facts can be determined on the basis of unimpeachable document. (Para 72)
Cases Referred:
2009(1) PLJR 712 (State Election Commission vs. Poonam Kumari); Md. Alamgir vs. State of Bihar & Ors., 2014(1) PLJR 562; Md. Shakil vs. The State of Bihar & Ors., 2014(3) PLJR 624; L.P.A. No.1615 of 2014; AIR 1959 Allahabad 357 (Ghulam Mohiuddin vs. Election Tribunal for Town Area Sakit and another); Shyamdeo Prasad Singh vs. Nawal Kishore Yadav, (2000) 8 SCC 46; Roop Lal Mehta vs. Dhan Singh [AIR 1968 Punjab 1 (FB)]; J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of U.P. and others, AIR 1961 SC 1170; Union of India vs. Brigadier P.S. Gill, (2012) 4 SCC 463; Bharati Reddy vs. State of Karnataka & Ors, (2018) 6 SCC 162; Vijay Kumar Choudhary vs. State Election Commissioner, 2009(4) PLJR 282; Md. Alamgir vs. State of Bihar & Ors., 2014(1) PLJR 562; Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and Anr. [(2014) 8 SCC 319] – Referred.
(1999) 4 SCC 526 (K. Venkatachalam vs. A. Swamican & Anr.); Geeta Gupta vs. The State of Bihar, 2012(2) PLJR 285; Manoj Bind vs. State of Bihar, 2009(4) PLJR 35; Indian National Congress (I) vs. Institute of Social Welfare and Ors., (2002) 5 SCC 685; Cooper vs. Wilson [(1937) (2) All England Reports 726]; R. vs. Electricity Commrs.,1923 All England Reports 150; Province Of Bombay vs. Khushaldas S. Advani (AIR 1950 Court 222; Indian National Congress (I) vs. Institute of Social Welfare and Ors., (2002) 5 SCC 685; Arun Singh vs. State of Bihar, 2006(3) PLJR (S.C.) 17; Kumari Madhuri Patil & Anr. vs. Additional Commissioner Tribal Development & Ors., (1994) 6 SCC 241; Welfare Association A.R.P. Maharashtra vs. Ranjit P. Gohil, (2003) 9 SCC 358 – Relied.
Bhagwan Singh vs. State of Bihar, 2004(4) PLJR 483 – Distinguished.
2014(1) PLJR 489 (Suresh Baitha vs. State of Bihar); A.I.R. 2015 Patna 154 (Neelam Devi vs. The State of Bihar); Vijay Kumar Choudhary vs. State Election Commissioner, 2009(4) PLJR 282 – Referred with Approval.
Per Rajeev Ranjan Prasad, J.
Bihar Municipal Act, 2007 – Sections 18 and 475 – Bihar Panchayat Raj Act, 2006 – Section 135 – Constitution of India – Articles 243-F and 243-O – Power of State Election Commission to declare a candidate disqualified – Any person who has no judicial training may be appointed as State Election Commissioner – In absence of there being a specific provision of Law providing for the manner in which matters relating to disqualifications may be considered by State Election Commission, State Election Commissioner cannot be taken as competent body to adjudicate issues which are seriously contested between parties and involves adjudication of disputed question of facts – Issues of qualifications prescribed under Section 135 of Act of 2006 and in its corresponding provision under Act of 2007 may be raised only before Election Tribunal in a duly constituted election petition – Complaints with regard to entry of name of a returned candidate in voter list of constituency and/or a challenge to his caste certificates cannot be gone into by State Election Commission – If limitation for filing election petition has expired and thereafter issue of qualification under Section 135 are to be raised, such issues may be first adjudicated before a competent court/forum where parties can legally adduce evidences – Based on such adjudication only State Election Commissioner may be moved for declaring a returned candidate disqualified for holding the post – Amendment brought in sub-section (2) of Section 136 in so far as it confers power upon State Election Commissioner to look into question of pre-election disqualification has to be construed as only those disqualification which were already present in returned candidate prior to election, but neither complainant nor State Election Commission had any knowledge of those existing pre-election disqualifications of candidate. (Paras 47, 51 and 52)
Bihar Municipal Act, 2007 – Sections 18 and 475 – Bihar Panchayat Raj Act, 2006 – Section 135 – Constitution of India – Articles 243-F and 243-O – Power of State Election Commission to declare a candidate disqualified – State Election Commission will have power to declare a returned candidate disqualified if matter of disqualification Pre-election/as on date of election is referred to him after limitation for filing election petition has come to an end and materials placed before him are uncontested, clinching and needs no adjudication on the issue – State Election Commission can neither entertain nor any matter relating to Pre-election disqualification may be referred to State Election Commission before expiry of limitation period for filing of an election petition – Where an election petition has already been filed on the ground of pre-election disqualification and is pending adjudication before Election Tribunal, a separate complaint on those very issues cannot be entertained by State Election Commission – Since Post-election disqualification is not a ground of challenge before Election Tribunal, a complaint raising question of Post-election disqualification shall be directly raised before Commission. (Para 56)
Cases Referred:
Md. Alamgir vs. State of Bihar and Ors., 2014 (1) PLJR 562 – Dissented.
Resurgence India vs. Election Commission of India & Anr., (2014) 14 SCC 189; Vijay Kumar Choudhary vs. State Election Commissioner, 2009 (4) PLJR 282; Md. Shakil vs. State of Bihar and Ors., 2014(3) PLJR 624; Ghulam Mohiuddin vs. Election Tribunal, AIR 1959 Allahabad 357; Kumari Madhuri Patil vs. Additional Commissioner, (1994) 6 SCC 241; Roop Lal Mehta vs. Dhan Singh, AIR 1968 Punjab 1 (FB); State Election Commission and Ors. vs. Punam Kumari and Anr. 2009(2) PLJR 189 – Referred.
Shyamdeo Prasad Singh vs. Nawal Kishore Yadav, (2000) 8 SCC 46 – Relied.

JUDGMENT :

Amreshwar Pratap Sahi, J.

This reference raises a question of seminal importance as to whether the State Election Commission is empowered to dwell upon and declare a candidate elected to be disqualified to the Office of a member or Office bearer of a local body, namely, that of a municipality under the Bihar Municipal Act, 2007 or to any Office under the Bihar Panchayat Raj Act, 2006 and the Rules framed thereunder. The moot question is as to whether the Legislature has transgressed the constitutional mandate contained in Article 243-O (b) of the Constitution of India or Article 243-ZG (b) thereof where there is a complete bar of calling in question any elections to the Panchayat or Municipality except by an election petition before such authority and in such manner as may be provided under law.

2. The argument advanced on behalf of the petitioners resulted in the framing of the questions that have been referred to for being answered primarily on a challenge raised to the provisions introduced under Section 136(2) of the Bihar Panchayat Raj Act, 2006 and the provisions of Section 18(2) of the Bihar Municipal Act, 2007 whereunder a power has been conferred on the State Election Commission to declare a member of the Panchayat or Municipality as the case may be to be disqualified on a receipt of a complaint, allegation or information by any person or authority since both the provisions are pari materia. I would be referring the provisions of Section 136(2) for the purpose of answering the reference which would also answer the construction of Section 18(2) of the Bihar Municipal Act, 2007. In order to understand the issue, the relevant provisions of the Act are referred to hereinafter.

3. Section 135 of the Bihar Panchayat Raj Act, 2006 reads as under:-

"135. Qualification for Membership - Every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member or office bearer of the Panchayat : Provided that in the case of seats reserved for Scheduled Castes or Scheduled Tribes or Backward Classes or Women, no person who is not a member of any of the Schedule Castes or Scheduled Tribes or7Backward Classes or is not a woman, as the case may be, shall be qualified to be elected to such seat."

4. The said Section describes a qualification that if person whose name is in the list of voters shall be qualified to be elected as a member or office bearer of the Panchayat unless disqualified under the Act or under any law for the time being in force. The disqualification if incurred under the Act would be a bar for qualification.

5. Section 136 of the Act reads as under:-

"136. Disqualification for Membership - (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person-

(a) is not a citizen of India ;

(b) is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State : Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years;

(d) is in service of any such institution receiving aid from Central or State Government or any local authority;

(e) has been adjudged by a competent court to be of unsound mind;

(f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service;

(g) has been sentenced by a criminal court whethe