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High Court Of Calcutta
Present: Subhro Kamal Mukherjee, J.
VASANTHA - Appellant
Versus
UEUTENANT GOVERNOR - Respondent
W. P. 051 Of 2006
Decided On : 03/07/2006
ELECTION COMMISSION - POWERS - INQUIRY INTO DISQUALIFICATION OF MEMBER OF MUNICIPALITY - SHOW CAUSE NOTICE - VALIDITY - ELECTION COMMISSION - REFERENCE TO - COMPETENCY - ADMINISTRATOR - DELEGATION OF POWER - VALIDITY.
Fact of the Case:
Petitioner, a member of the municipal council, challenged the show cause notice issued by the Election Commission seeking her disqualification for violating the provisions of Section 21(1) of the Andaman and Nicobar Islands (Municipal) Regulation, 1994, for failing to file a declaration of assets within the prescribed time.
Finding of the Court:
1. The show cause notice issued by the Election Commission is not ultra vires as it was issued to enable the petitioner to explain her stand before the Election Commission for giving an honest opinion to the Administrator. 2. The reference to the Election Commission was competent as the Administrator personally sought the opinion of the Election Commissioner, complying with the requirement of sub-Section (5) of Section 12 of the said Regulation of 1994.
Issues: 1. Whether the show cause notice issued by the Election Commission is ultra vires? 2. Whether the reference to the Election Commission was competent?
Ratio Decidendi: 1. The powers of the Election Commission under Rule 121 of the Andaman and Nicobar Islands (Municipal) (Preparation of Electoral Rolls and Conduct of Elections) Rules, 1995, include issuing show cause notices to members of the municipality to inquire into their disqualification. 2. The Administrator's delegation of power to the Deputy Secretary to make the reference to the Election Commission is valid as the Administrator personally sought the opinion of the Election Commissioner.
Final Decision: All writ petitions are dismissed. The petitioners are granted liberty to submit their replies to the show cause notices within seven days from the date of the order. The Election Commission is requested to proceed with the matter in accordance with law.
( 1 ) ALL these maters are taken up fin: hearing. analogoously as I am informed, by Mr. Amber Majumdar, learned advocate appearing for the petitioners, Mr. Krishna Rao, learned advocate appearing for the respondent Nos. 5 to 7 and Mr. S. K. Mandal, learned Government Header appearing for the respondent Nos. 1 to 4, that similar questions of law and fact are involved in all these matters.
( 2 ) IN order to appreciate the points involved in these writ petitions, i propose to narrate the facts in-relation to W. P. No. 45 of 2006.
( 3 ) BY filing the application under Article 226 of the Constitution of india, the writ petitioner has challenged the show cause notice dated march 1, 2006 issued by the Election Commission, Andaman and Nicobar islands. The Election Commissioner asked her to show cause as to why she should not be disqualified for being a member of the municipal council for violation of the provisions of Sub-section (1) of Section 21 of the andaman and Nicobar Islands (Municipal) Regulation, 1994. She was asked to file her show cause within seven days from the receipt of the said, show cause notice.
( 4 ) SHRIMATI M. Vasantha, the petitioner, was elected as the councilor of Port Blair Municipal Council from Ward No. 11.
( 5 ) SUB-SECTION (1) of Section 21 of the said Regulation of 1994 contemplates- that every member shall, not later than thirty days after making and subscribing the oath or affirmation under sub-Section (1) of section 20 and before the last day of the same month in each succeeding year file with the Chairperson a declaration in such form as may be prescribed of all the assets owned by him and any member of his family and such declaration shall form part of the records of the municipality.
( 6 ) SUB-SECTION (2) of Section 21 of the said Regulation of 1994; prescribes "that a person shall be disqualified for being a member - (a)if he fails to file a declaration referred to in sub-Section (1) or (b) if he files a declaration under that sub-Section which is either false or which he knows or believes to be false.
( 7 ) IN the explanation appended to Section 21, it was explained that for the purpose of the said section "family" means a-spouse and dependent children-of the member.
( 8 ) IT has been alleged that although declaration of assets of the writ petitioner, namely, Shrimati M. Vasantha was dated October 22, 2005, but such declaration was actually filed in the office of the municipal council on February 10, 2006.
( 9 ) SUB-SECTION (4) of Section 12 of the said Regulation of 1994 contemplates that if a question arises as to whether a member of a municipality has become subject to any disqualification mentioned in sub-Section (1) or sub-Section (2) of Section 21, the question shall be referred for the decision of the Administrator and his decision shall be final.
( 10 ) UNDER sub-Section, (5) of Section 12 of the said Regulation of 1994, before giving any decision on any such question, the Administrator shall obtain the opinion of the Election Commission and shall act according to such opinion.
( 11 ) AS it has been alleged that the member concerned did not submit her declaration of assets in time, and as such, she has been disqualified for being a member of the municipal council, the Administrator sought for opinion under sub-Section (5j of Section 12 of the said Regulation of 1994 from the Election Commission.
( 12 ) CHAPTER IX of the Andaman and Nicobar Islands (Municipal) (Preparation of Electoral Rolls and Conduct of Elections) Rules, 1995 deals with, the powers of Election Commission in connection with inquiries as to disqualifications of the members.
( 13 ) RULES 121 and 123 of the said Rules of 1995 are quoted hereunder:
"121. Powers of Election Commission: 1. Where in connection with the tendering of any opinion to the administrator under sub-Section (5) of Section 12 of the regulation, the Commission considers it necessary or proper to make an inquiry, and
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