Pushpa Gupta vs The State Election Commission & Ors on 11 August, 2014

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Patna High Court - Orders

Pushpa Gupta vs The State Election Commission & Ors on 11 August, 2014

The petitioners in the three writ petitions are aggrieved by the order bearing Memo No. 43 dated 7.01.2013 passed by the respondent No.2, the State Election Commission, Bihar, Patna in Case No. 79 of 2011 whereby the petitioners have been held disqualified under Section 18(1) (l) and Section 18(2) of the Bihar Municipal Act, 2007(hereinafter referred to as 'the Act') for misusing their power as Ward Councillors and by virtue of the provisions underlying Section 475 of the Act read with Rule 46(1) of the Bihar Municipal Rules 2007 (hereinafter referred to as 'the 3 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P3 / 11 Rules'), have been disqualified from contesting future elections.

For the sake of convenience I shall be referring to the pleadings made in C.W.J.C. No. 6333 of 2013 unless clarified by the specific reference to the other writ petitions.

The facts are in narrow compass. All these petitioners were elected in the Nagar Panchayat Election held in the year, 2006. During their tenure as Ward Councillors, certain allegations were levelled against them for abusing their powers as Ward Councillors by interpolating the list of beneficiaries under the BPL/APL list as well as the Antyodaya Scheme. It is following the allegation made by the Chief Councillor on 2.8.2011 that the case was registered by the State Election Commission giving rise to Case No. 79 of 2011 during their tenure.

The allegations as stated hereinabove, against all these petitioners is of interpolating the BPL/APL list and while providing benefits to some undeserving persons, the petitioners deprived some others of the benefits so granted. It is a matter of record that complaints were filed before the appropriate authority as well as criminal cases were also instituted against some of petitioners and which are pending adjudication. It is in the backdrop of the nature of complaint and the evidence available on record that the State Election Commission by the order impugned 4 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P4 / 11 dated 7.1.2013 as contained in Annexure-11 taking note of the fact that the tenure of these petitioners stood exhausted in the year 2012 while holding the petitioners disqualified under the provisions of Section 18(1)(l) and Section 18(2) of the Act, by same order also sought information from the District Magistrate as to whether these petitioners had been reelected for passing appropriate orders under Section 475 of the Act read with Rule 46(1) of the Rules in respect of their ineligibility to contest future election. It is a matter on record that following the information received, the petitioners were heard and vide order passed on 4.11.2013 the petitioners in C.W.J.C.No.6333 of 2013 and C.W.J.C.No.1906 of 2013 were held disqualified to hold the post of Ward Councillor. The said order dated 4.11.2013 has been brought on record vide Annexure-18 to I.A. No. 1914 of 2014.

I have heard learned counsel for the parties and I have perused the materials on record.

The substance of argument of Mr. Shardanand Mishra, learned counsel for the petitioners is that since the petitioners were Members of the Committee formed for Scrutiny of the applicants seeking benefit under the BPL/APL as well as under the Antyodaya Scheme, they made appropriate corrections in the list on the basis of their assessment as to the eligibility and such 5 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P5 / 11 corrections were not in the nature of interpolation even if the estimation of these petitioners were not correct. He submits that being part of the committee constituted for preparation of such list, it was a part of their duty to make corrections and which is not attached with any motive. He further questions the impugned order on grounds of having been passed on the complaint by a person aggrieved i.e. the respondent No.7 who happened to be the Chief Councillor at the relevant time and against whom a no confidence motion had been moved by these petitioners. It is stated that since the Chief Councillor had become biased against these petitioners that the complaint was instituted belatedly on 2.8.2011 and which has been acted upon. Learned counsel on the strength of the judgment of this Court reported in 2010(2) PLJR 435 (Mulchand Golchha Vs. The State of Bihar) has submitted that the exercise of powers under Section 18 of the Act has to be immediate upon such discovery of misuse and cannot be at the whims and fancies of a person who is biased towards the petitioners. It is further submitted by Mr. Mishra that since admittedly the complaint is in relation to an act done during the previous tenure, the tenure having ended in the year, 2012 no such disqualification order could have been passed after the tenure itself exhausted. For his submission learned counsel has relied upon a 6 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P6 / 11 bench decision of this Court rendered in the case of Dinesh Pandey Vs. State of Bihar reported in 2010(3)PLJR 149. It is thus submitted that the orders impugned in the writ petition cannot be upheld and is fit to be set aside. It is further the submission of Mr. Mishra that initial list was prepared in the year, 2007 and it is by virtue of the communication placed at Annexure- 8 dated 5.12.2007 that the said list underwent a review and it is whereafter the corrections were made. He thus submits that the list even if corrected has not been published finally thereafter. He further submits that there is no individual complaint in the matter and the proceeding has been initiated merely on the complaint of the Chief Councillor-the respondent No.7, who had been voted out of office.

The argument of Mr. Mishra has been contested by Mr. Rajiv Kumar Singh, learned State counsel, the State counsel appearing in the other writ petitions as well as counsel for the State Election Commission.

A comprehensive counter affidavit under the orders of this court was filed in C.W.J.C. No. 8930 of 2013 and a copy whereof was also served on the counsel for the petitioner appearing in the other writ petitions since it covered the issues raised in all the cases.

With reference to the counter affidavit it was submitted by 7 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P7 / 11 Mr. Singh that initially the process for preparation of the list began on 17.10.2006 and since Birpur Nagar Panchayat at the relevant time comprised of only 10 wards, which was later increased to 13 wards hence fresh instructions were issued on 5.12.2007 by the Department of Urban Development, Government of Bihar for identification of beneficiaries. He thus submits that there was no review of any list rather because the size of the Panchayat had increased that the exercise was undertaken and since a list had already been prepared in the meanwhile, hence the exercise for modifying the list was also undertaken. It is stated that vide letter bearing No. 1026 dated 17.12.2007, some further directions were issued with regard to publication of the list and which was served on the Ward Councillors on 3.1.2008 inviting objections. A copy of the letter dated 3.1.2008 issued in this regard is placed at Annexure-8. It is stated that in consideration of the objections received pursuant to the directives dated 3.1.2008 that the list was finally published and put up on the Board of the Nagar Panchayat. It is stated that on 29.12.2008 in the meeting of the Board, the Nagar Panchayat approved the final survey list after meeting the objections. He thus submits that the exercise being completed at this stage, the list was finally put up on the website. It is stated that around the same time, vast areas of the Supaul District 8 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P8 / 11 including the area of the Panchayat in question came under floods and it is during this time and taking advantage of the situation that the petitioners made the interpolations in the list. He thus submits that since the final BPL/APL list is available on the official website after obtaining approval of the Board of the Nagar Panchayat on 29.12.2008, the interpolations made in the list thereafter was detected as it is not found in the final list available on the website. He submits that these infirmities led to filing of complaints as well as F.I.R. by the persons who had been deprived of the benefits and which is pending consideration before the appropriate Court. It is thus stated that since apparently the signatures of these petitioners appear on the interpolated BPL/APL list and there is nothing on record to demonstrate any recommendation by the Nagar Panchayat for making corrections in the final list, the allegations stood proved. It is thus submitted that in the circumstances discussed, the order impugned at Annexures-11 and 18 requires no interference.

The arguments have also been advanced by the learned State Election Commission who has submitted that since the interpolations are a finding of fact on the basis of the materials on record, the order does not require interference.

I have heard learned counsel for the parties and I have 9 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P9 / 11 perused the materials on record.

That the signatures of these petitioners appear on the BPL/APL list is apparent from the document itself and the petitioners cannot escape this liability. Though some of the petitioners sought to seek cover on plea of alibi but there being a finding of fact by the State Election Commission upon verification of the signatures, the argument again would not survive.

Whereas it is the specific case of the State that the final list was published in the year 2008 after approval by the Board of the Nagar Panchayat on 29.12.2008 placed at Annexure-6 series, the petitioners have failed to bring on record any such resolution of the Nagar Panchayat which warranted a correction of the APL/BPL list. Even if the argument of Mr. Mishra is to be taken on its face value that the alleged corrections are mere recommendation of the petitioners as Member of the Committee constituted in this regard, certainly the Ward Councillors could not have made corrections with the list itself rather recommendation if any, had to be on a separate sheet. There is again nothing on record to support as to why no recommendations were issued by the Nagar Panchayat for correcting the list available on the website of the Department. The result of such interpolation which is termed as corrections by the petitioners, is that there is two 10 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P10 / 11 separate list of which one is on the official website which is on the basis of the list approved by the Board of the Nagar Panchayat and the second one available at the local office which has corrections and whereby while depriving some of the beneficiaries to the benefit, it extends benefits to some others.

The argument of Mr. Mishra relying upon the bench decision rendered in the case of Mulchand Gulchha (supra) on the issue of delay effecting the conclusion, arrived at by the Election Commission, would not answer to the issue posed before this Court for the issues in the case relied upon and posed before this Court are different. Whereas the case relied upon by the learned counsel was on the issue of removal of Mukhiya under Section 18(5) of the Bihar Panchayat Raj Act 2006, the present case borders on disqualification under Section 18(1)(l) read with Section 475 of the Act whereunder a Ward Councillor stands disqualified from contesting election or from holding the post if found guilty of abuse of power or of misconduct and Rule 46(1) of the Rules empowers the returning Officer to ensure that a disqualified applicant does not contest the elections.

Considering the circumstances that the allegation against these petitioners' stands proved on the basis of the materials on record, there could not have been any other conclusion drawn by 11 Patna High Court CWJC No.6333 of 2013 (11) dt.11-08-2014 P11 / 11 the Election Commission than as passed under the impugned orders placed at Annexures-11 and 18 of the writ petition.

This Court not being persuaded with the arguments of learned counsel for the petitioners, these writ petitions are dismissed accordingly.

(Jyoti Saran, J) Bibhash/-

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Patna High Court - Orders