Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Pat) 251

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, MADHURESH PRASAD, JJ.
Saryug Mochi Son of Ganauri Mochi – Appellant
Versus
The State of Bihar through Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna. - Respondents
Civil Writ Jurisdiction Case No.4175, 4030, 4358 of 2022
Decided on : 09-05-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. P.N. Shahi, Mr. Ranjeet Kumar, Advocate
For the Respondent:Mr. P.K. Shahi, Mr. Abbas Haider, Mr. Sanjeev Nikesh, Mr. Girish Pandey, Advocate

The main legal principle established in the judgment is that the State Election Commissioner must consider disqualification issues based on unimpeachable materials and relegate parties to a competent court or tribunal for deciding contentious issues after taking evidence, as per the legal framework set out by the Full Bench decision in the case of Rajani Kumari.

Headnote:
Bihar Municipal Act - Disqualification of Candidates - Section 18(1) - Rajani Kumari Vs. The State Election Commission and Ors. - The court discussed the disqualifications of a person for election or holding the post as a member of municipality under Section 18(1) of the Bihar Municipal Act, 2007. The court highlighted the power of the State Election Commission to consider pre or post-election disqualification of a candidate, subject to the requirement of unimpeachable materials and the need to relegate parties to a competent court or tribunal for deciding contentious issues after taking evidence.
Fact of the Case:

The petitioners, elected as Ward Councillors, were declared disqualified by the State Election Commissioner due to having more than two children born after the cut-off date of 05.04.2008. The petitioners challenged the order, arguing that the Commissioner should not have entertained the complaint without unimpeachable materials and should have relegate the parties to a competent court or tribunal for deciding the issue.
Finding of the Court:

The court found that the State Election Commissioner proceeded casually in considering the disqualification issue and ignored the law laid down by the Full Bench in the case of Rajani Kumari. The court held that the impugned order was unsustainable, illegal, arbitrary, and in violation of principles of natural justice, setting it aside and allowing the applications with a cost of Rs. 5,000 each payable to the petitioners by the State Election Commission.
Issues: The key issue was whether the State Election Commissioner's decision to disqualify the petitioners was based on unimpeachable materials and whether the Commissioner followed the legal framework set out by the Full Bench decision in the case of Rajani Kumari.
Ratio Decidendi: The court emphasized that the State Election Commissioner must consider disqualification issues based on unimpeachable materials and relegate parties to a competent court or tribunal for deciding contentious issues after taking evidence. The Commissioner's failure to adhere to this legal framework rendered the impugned order unsustainable and in violation of principles of natural justice.
Final Decision: The court set aside the impugned order and allowed the applications with a cost of Rs. 5,000 each payable to the petitioners by the State Election Commission.

JUDGMENT :

CHAKRADHARI SHARAN SINGH, J.

Sub-section (1) of Section 18 of Bihar Municipal Act, 2007 (‘Act’ for short) lays down the disqualifications of a person for election, or after election for holding the post, as a member of municipality. One of such disqualifications is laid down as:

“(m) If he is more than two living children:-Provided that a person having more than two children on or up to the expiry of one year of the commencement of the Act, shall not be deemed to be disqualified.”

2. The Act came into force with effect from the date of its publication in Bihar Gazette (Extraordinary) dated 05.04.2007. Clearly thus, a person having more than two children up to 05.04.2008 does not suffer disqualification by operation of Clause (m) of sub-section (1) of Section 18 of the Act. Sub-section 2 of the Act empowers the State Election Commission to decide the matters of disqualification on a complaint, application or information by any authority or upon taking suo motu cognizance of such matters, after allowing sufficient opportunity to the affected parties of being heard. The scope of the jurisdiction of the State Election Commission under sub-section 2 of Section 18 of the Act has been conclusively decided by a Full Bench of this Court in the case of Rajani Kumari Vs. The State Election Commission and Ors. reported in 2019 (4) PLJR 673. While answering the question of whether the State Election Commission will have the power to consider disqualification of a candidate after election as such Election Commission is constituted for conduct of elections, the Full Bench in case of Rajani Kumari (supra) has held in no uncertain terms as follows:-

“184. We are in agreement that the State Election Commission has got power under sub-section

(2) of Section 18 of the Bihar Municipal Act, 2007 and sub-section (2) of Section 136 of the Bihar Panchayat Raj Act, 2006 to consider an issue of pre or post-election disqualification of a candidate subject to a caution which we have pointed out in our judgments in respect of a case which is in the nature of a purely election dispute and then a matter which cannot be decided without adducement of evidence by a competent court and authority in accordance with law. The State Election Commission shall entertain and consider the 'disqualification' issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suomoto or by any other person, the Commission shall at the first instance 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. Whenever a disputed question of facts 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-moto or otherwise.”

It can be easily culled out from what has been laid down in case of Rajani Kumari (supra) that;

(i) The Election Commission has the power under sub-section (2) of Section 18 of the Act to consider the issue of pre or post election disqualification of a candidate subject to a caution that a case which is in the nature of purely election dispute, it cannot be decided without adducement of evidence by a competent court and authority in accordance with law.

(ii) The State Election Commission, shall, at the first instance, inquire whether it is a purely election dispute only 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 material.

(iii) Whenever a disputed question of facts and contenti