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 postelection 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 contentious issu