The court affirmed the legislative authority of the Election Commission to remove elected officials for disqualifications and established the burden of proof for authenticity rests on the individual.

JUDGMENT :

Mr. Sureshwar Thakur, J.

Through the instant writ petition, the petitioner herein prays for the issuance of a writ of Certiorari for setting aside order dated 28.11.2022 (Annexure P-7), wherebys the State Election Commission has removed the petitioner from the post of President, Municipal Council, Sohna.

Factual Background

2. The State Election Commission, Haryana, vide notification No. SEC/1 ME/2022/1481 dated 23.05.2022, issued a programme for conducting general elections for the post of President and Members of all wards of 28 Municipal Committees and 18 Municipal Councils in the State. The petitioner contested the election for the post of President, Municipal Council, Sohana, Gurugram. The elections for the said municipal committee was conducted on 19.06.2022 and the result was declared on 22.06.2022 whereby the petitioner was declared as the winner by securing 12185 votes.

3. Thereafter, Smt Lalita-respondent No.8, resident of Sohana, Gurugram vide complaint dated 28.06.2022, rather allegedly raised frivolous allegation against the petitioner, that the petitioner, at the time of filing of nomination for the post of the President, rather had attached therewith an invalid/fake mark sheet for Class VIII. Resultantly, in the complaint, it was alleged that the petitioner suffers from a disqualification, as contemplated under Section 13A (1)(h) of the Act of 1973 and also under Rule 21(1)(p) of the HARYANA MUNICIPAL ELECTION RULES , 1978 (hereinafter referred to as the ‘Rules of 1978’). Therebys, the petitioner was served with a show cause notice dated 21.09.2022 (Annexure P-4) by the State Election Commissioner, exercising the powers under Section 13I of the Act of 1973, and therefore, she was directed to give reply till 28.10.2022, to the aforementioned allegations. Consequently, acting upon the said show cause notice, the petitioner gave a comprehensive reply on 28.10.2022.

4. The complainant had also approached this Court vide CWP No.14020 of 2022, which was disposed of vide order dated 14.10.2022 with directions to conclude the proceedings expeditiously. Accordingly, the Deputy Commissioner, Karnal, vide Memo No.1127/L.B dated 06.09.2022, sent a copy of the inquiry report to the State Election Commission, whereupon the impugned show cause notice has been issued to the petitioner.

5. In furtherance of the impugned show cause notice dated 21.09.2022, the proceedings commenced before the State Election Commission Haryana and upon culmination of the inquiry proceedings, thus the impugned order became rendered wherebys the present petitioner has been ordered to be removed from the post of President.

Submissions of the learned counsel for the petitioner

6. Though the learned counsel for the petitioner submits, that though through the provisions engrafted in Section 131 of the Act of 1973 provisions whereof becomes extracted hereinafter, thus the State Election Commission becomes enabled to remove any democratically elected President or a Member to a Municipal Council and to the Municipal Committee concerned. However, he submits, that the said vested empowerment in the State Election Commission, does untenably undoes the effect of Rule 85 of the Rules of 1978, provisions whereof also becomes extracted hereinafter. He submits that the said emanates, thus on the premise t