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2006 Supreme(Cal) 821
High Court Of Calcutta
Pratap Kumar Ray And Manik Mohan Sarkar, JJ.
SUDEEP RAI SHARMA - Appellant
Versus
LIEUTENANT GOVERNOR - Respondent
M. A. T. 038 Of 2006
Decided On : 12/22/2006
H.BANERJI, H.R.Bahadur, K.JAYAPAL, KRISHNA RAO, ROSHAN GEORGE, S.K.Mandal, S.ROY CHAUDHARY, UPENDRA ROY
The Election Commission's opinion is decisive in matters of disqualification of members under Regulation 12(4) and (5) of the Andaman and Nicobar Islands (Municipal) Regulation, 1994, and the Administrator's decision must be in accordance with such opinion.
Headnote:
ANDAMAN AND NICOBAR ISLANDS (MUNICIPAL) REGULATION, 1994 - Regs. 12(4), 12(5), 203, 21(1), 21(2) - ELECTION COMMISSION OF INDIA (PREPARATION OF ELECTORAL ROLLS AND CONDUCT OF ELECTIONS) RULES, 1995 - R. 121 - CONSTITUTION OF INDIA - Arts. 103, 192 - Disqualification of Councillors - Election Commission's opinion is decisive - Administrator's decision must be based on such opinion - Administrator has no independent decision-making power - Election Commission's opinion not to disqualify members must be followed by Administrator - Administrator's decision disqualifying members in contravention of Election Commission's opinion is without jurisdiction.
Fact of the Case:
Administrator of the Andaman and Nicobar Islands disqualified certain elected Councillors for failing to submit declarations of assets within 30 days of taking oath, as required by Regulation 21(1) of the Andaman and Nicobar Islands (Municipal) Regulation, 1994. The Election Commission, whose opinion was sought by the Administrator under Regulation 12(5), opined against disqualification, considering that most members were elected for the first time and that there was no prescribed format for filing such declarations. The Councillors challenged the Administrator's decision by way of a writ petition, which was allowed by the High Court, holding that the Administrator's decision was not justified in light of the Election Commission's opinion and the absence of a prescribed format for filing asset declarations.
Finding of the Court:
1. The writ petition was maintainable as it challenged the Administrator's decision on judicial review grounds, to determine whether the decision was based on the Election Commission's opinion as required under Regulation 12(5). 2. The Administrator's decision was not based on the Election Commission's opinion, as the Election Commission had opined against disqualification, while the Administrator had decided to disqualify the Councillors. 3. The Administrator had no independent decision-making power under Regulation 12(4) and (5) and was bound to act according to the Election Commission's opinion, which was the decisive factor in determining the disqualification of Councillors. 4. The Administrator's decision to disqualify the Councillors was therefore without jurisdiction and could not be sustained.
Issues: 1. Whether the writ petition was maintainable, considering the availability of an election petition under Regulation 35 of the Andaman and Nicobar Islands (Municipal) Regulation, 1994. 2. Whether the Administrator's decision was justified in light of the Election Commission's opinion and the absence of a prescribed format for filing asset declarations.
Ratio Decidendi: 1. The maintainability of a writ petition challenging the Administrator's decision was upheld, as the decision was subject to judicial review to determine whether it was based on the Election Commission's opinion as required by Regulation 12(5). 2. The Administrator's decision was held to be without jurisdiction as it was not based on the Election Commission's opinion, which was the decisive factor in determining the disqualification of Councillors under Regulation 12(4) and (5). 3. The Court relied on Supreme Court precedents establishing that the Election Commission's opinion is decisive in matters of disqualification of members under constitutional provisions similar to Regulation 12(4) and (5), and that the Administrator's decision must be in accordance with such opinion.
Final Decision: The appeal against the High Court's judgment was dismissed, upholding the quashing of the Administrator's decision disqualifying the Councillors. The Court found that the Administrator's decision was without jurisdiction as it was not based on the Election Commission's opinion, which was the decisive factor in determining the disqualification of Councillors under Regulation 12(4) and (5).
( 1 ) THE appeal and the connected stay application both were taken up together for final hearing and it was heard on several dates.
( 2 ) THIS present appeal being MAT No. 38 of 2006 has been preferred by one Shri Sudip Rai Sharma, Councillor of Ward No. 7 of Port Blair municipal Council (hereinafter referred to as 'said Council' for brevity), port Blair, Aandn islands assailing the Judgment and order dated 17. 11. 2006 passed by D. P. Sengupta, J. in WP No. 20034 (W) of 2006 whereby and whereunder the writ application was allowed by quashing and setting aside the impugned order in the writ application dated 19. 8. 2006 passed by the Administrator, Aandn Islands disqualifying the writ petitioners who are respondent Nos. 1 to 4 in this appeal, on taking a decision under Regulation 12 (4) of the Andaman and Nicobar islands (Municipal) Regulation, 1994 (hereinafter referred to as 'said regulation' for brevity ).
( 3 ) THE present appellant was one of the elected councillor of the said Council. The learned Trial Judge allowed the writ application on the premises that since under the Regulation 203 of the said regulation there was no prescribed form relating to the submission of the declaration of assets of the elected Councillors in terms of the regulation 21 (1) of the said Regulation and as there was a discrimination in the decision of disqualification by pick and choose policy though many other Councillors defaulted to submit the declaration of assets within the period of 30 days from the date of taking oath or affirmation in terms of Regulation 21 (1) of the said Regulation.
( 4 ) IN this appeal, the appellant has raised three questions which requires to be addressed namely,
(i) That the writ application was not maintainable in view of the provision of referring an election dispute by way of the election petition under Regulation 37 of the said Regulation before the learned District Judge concerned. (ii) That the reasoning of the learned Trial Judge that in absence of any prescribed format the Councillors failed to submit declaration of assets in time cannot be a good reasoning to allow the writ petition for quashing the decision of the administrator disqualifying the writ petitioners. (iii) That the decision of the Administrator is final and once such decision has been reached on the basis of the opinion of the election Commissioner who opined in favour of such disqualification, the Court of law should not interfere with such decision.
( 5 ) THIS appeal has been opposed by the writ petitioners/ respondents, who succeeded before the learned Trial Court below, by contending inter alia, that the opinion of the Election Commission was not to disqualify the writ petitioners as the writ petitioners submitted their declaration of assets which might be in belated time than 30 days in view of different reasons as stated thereof before the Election commission namely, falling of the Sunday which was the last day as per the Regulation and/or other valid reasons of illness and other factors which upon being considered as reasonable and sufficient and having regard to the fact that the Chairperson did not issue any receipt of submission of such declaration of assets as well as there was no prescribed format, the decision of the learned Trial Judge was justified on quashing the decision of the Administrator disqualifying the writ petitioners.
( 6 ) FOR effective adjudication of the issues involved in this case, the statutory interpretation of the relevant provisions vis-a-vis, the factual matrix are required to be canvassed.
( 7 ) THIS Court is taking the first point namely, the maintainability of the writ petition for decision as a first item.
( 8 ) IT has been urged that the writ petitioners ought to have preferred a election petition under Regulation 35 which was required to be dealt with under Regulation 37 of the said Regulation.
( 9 ) THE Regulations 35, 37 and 40 of the said Regulation are set out hereun
