Patna High Court - Orders
Rita Devi vs The State Of Bihar & Ors on 21 August, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12072 of 2014
With
I.A. No.5090 of 2014
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Rita Devi, wife of Sujit Kumar Singh, resident of Mohalla- New Area,
Ward No. 6, Nawada, Police Station- Nawada, District- Nawada.
.... .... Petitioner/s
Versus
1. The State of Bihar through Secretary, Urban Development
Department, Bihar, Patna.
2. The State Election Commission Soan Bhawan, Bir Chand Patel Path,
Patna through its Commissioner.
3. The Chairman, State Election Commission, Soan Bhawan, Bir Chand
Patel Path, Patna.
4. The District Magistrate, Nawada-cum-District Election Officer,
Nawada.
5. The Senior Deputy Collector, Nawada Collectorate, Nawada.
6. The Executive Officer, Nawada Municipal Council, Nawada.
7. The Deputy Secretary, State Election Commission, Bihar, Patna.
8. Sunit Devi, wife of Bhola Singh, Ward No.6 Ex-Counselor, Ward No.
6, New Area, Post and Police Station- Nawada, District- Nawada.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jitendra Kumar Roy
For the Respondent-State : Mr. Amresh, AC to SC-11
For State Election Commission : Mr. Amit Srivastava
Mr. Girish Pandey
For the private Respondent No.8: Mr. Siya Ram Shahi with
Mr. Sunil Kumr
Mr. Gopal Bohra
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
3 21-08-2014Heard Mr. Jitendra Kumar Roy, learned counsel appearing for the petitioner, learned counsel for the State, learned counsel for the State Election Commission and Mr. Siyaram Shahi, learned counsel appearing for the private respondent no.8.
Although this matter has been listed under the heading 'For orders on petition' but with consent of the parties it Patna High Court CWJC No.12072 of 2014 (3) dt.21-08-2014 2 has been taken up with a view to its final disposal at this stage itself.
The petitioner is aggrieved by the order dated 26.6.2014 passed by the State Election Commission in Case No.26 of 2013, whereby the petitioner has been removed from the post of Ward Councillor, Ward No.6, Nawada Municipal Council, District Nawada in exercise of powers vested under section 18(2) and section 447 of the Bihar Municipal Act, 2007 (hereinafter referred to as 'the Act') and the Rules framed thereunder.
The facts of the case briefly stated is that the petitioner was elected as a Ward Councillor pursuant to the election held in the year 2012 for Ward No.6, Nagar Parishad, Nawada in the town and district of Nawada. The election of the petitioner was challenged by the private respondent before the State Election Commission alleging suppression of material facts by the petitioner while filing the nomination form and which was registered as Case No.26 of 2013. There were four allegations set up against the petitioner, namely:-
(a) That the petitioner though has admitted to ownership of 3 acres and 9.5 decimals of land but she has not mentioned about the house though the same is registered in the name of her husband Sujit Kumar Patna High Court CWJC No.12072 of 2014 (3) dt.21-08-2014 3 Singh;
(b) Although the petitioner has answered in the negative in respect of other assets but her husband owns a tractor and motorcycle which have not been mentioned;
(c) As against the liabilities, although the petitioner has answered in the negative but there is a tractor loan in the name of her husband and in which an amount of Rs.4,13,701/- remains outstanding as on 11.6.2012;
and
(d) The seconder of the petitioner, namely, Birendra Prasad Singh alias Birendra Singh is involved in criminal case arising from Nawada Town P.S. Case No.402 of 2008 and Complaint Case No.534 of 2004. The State Election Commission after hearing the parties and on the basis of the material on record was of the opinion that there was suppression of facts by the petitioner and thus in exercise of power vested under section 18(2) of 'the Act' the State Election Commission while cancelling the election of the petitioner, has also directed the authorities to register a criminal case against the petitioner under section 447 of 'the Act'.
I have heard learned counsel for the parties and I Patna High Court CWJC No.12072 of 2014 (3) dt.21-08-2014 4 have perused the materials on record.
As I have discussed at the outset it is not the allegation of the complainant who is the private respondent herein that there was any asset and liability in the name of the petitioner and which has been suppressed by her. Rule 46 of the Bihar Municipal Election Rules,2007 (hereinafter referred to as 'the Rules') framed under 'the Act' vests power in the Returning Officer to reject the nomination paper if it is found wanting. Rule 43 of 'the Rules' casts an obligation on the candidate to submit enclosures mentioned under the rule and rule 43(1) (f) of 'the Rules' requires the candidate to give a declaration on oath regarding assets and liabilities, educational qualification etc., of the candidate in a form prescribed by the State Election Commission.
Section 18 of 'the Act' which is the source of power for the State Election Commission for disqualifying a candidate or an elected representative specifically categorises the circumstances in which such power can be exercised. A plain reading of the provision manifests that the allegations set out against the petitioner does not find place in any of the categories so defined.
Now considering the allegations made by the private respondent in the backdrop of the statutory requirements Patna High Court CWJC No.12072 of 2014 (3) dt.21-08-2014 5 underlying rule 43(1) (f) of 'the Rules' read with section 18(1) of 'the Act' leaves no room for confusion that the allegations warranted no indulgence for it did not disclose any suppression of fact by the petitioner as regarding the assets possessed by her or the liabilities in her name. The entire allegations are directed against her husband and the relevant rule 43(1) (f) does not require the petitioner to give any such information.
Even if the State Election Commission has been vested with powers to unseat a candidate under section 18(2) of 'the Act', such power has to be exercised within the parameters described under section 18(1) of 'the Act' and the allegations set out against the petitioner not finding place under any of the circumstances discussed under section 18(1) of 'the Act', in the opinion of this Court there was no occasion to interfere with her election.
Learned counsel for the State Election Commission endeavoured to submit that since the nomination form required the petitioner to also give information as regarding the assets held by the husband and which has not been given by her, such omission was fatal enough to result in the order impugned and to support his submission learned counsel has relied upon the judgment of the Supreme Court rendered in the Case of Resurgence India vs. Election Commissioner reported in Patna High Court CWJC No.12072 of 2014 (3) dt.21-08-2014 6 2014(1) PLJR 55 (S.C).
The nomination form along with affidavit has been placed on record in the counter affidavit filed on behalf of respondent no.8 and it is manifest that the details of assets and liabilities in the name of the spouse have not been filled up. But the issue is whether such omission is sufficient for disqualification.
The circumstances discussed under section 18 of 'the Act' to disqualify a candidate after election does not cover any such instance and even if section 447 of 'the Act' provides for a penalty for concealing any such information, since this is not one of the conditions mentioned in section 18(1) for inviting a disqualification, it could not be a foundation for the impugned order.
The reliance placed by the State Election Commission on the judgment of the Supreme Court rendered in the case of Resurgence India (Supra) would not be applicable to the present case for the case under consideration before the Supreme Court was arising from the provisions of the Representation of the People Act and disqualified the candidate after election, inter alia, on suppression of material fact while filling the nomination paper. There is no such provision under the Bihar Municipal Act, 2007 to disqualify a Councillor on Patna High Court CWJC No.12072 of 2014 (3) dt.21-08-2014 7 grounds of omission to fill up the required information as found under the Representation of the People Act.
For the reasons given hereinabove, this Court is not persuaded enough to uphold that part of the order dated 26.6.2014 passed in Case No.26 of 2013 in so far as it seeks to cancel the election of the petitioner as Ward Councillor, Ward No.6, Nagar Parishad, Nawada and the order passed by the State Election Commission to that extent is set aside. In consequence the petitioner stands restored to her post of Ward Councillor.
In so far as the second part of the order which directs the State authorities to proceed in terms of section 447 of 'the Act' is concerned, this Court without interfering with that part of the order would grant liberty to the petitioner to take recourse to the remedy as may be available to her in law.
The writ petition is allowed in part, to the extent mentioned hereinabove. The interlocutory application stands disposed of.
(Jyoti Saran, J) SKPathak/-
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