Patna High Court
Udai Bhan Singh vs The State Of Bihar And Ors. on 27 April, 1965
Equivalent citations: AIR1965PAT415, AIR 1965 PATNA 415
ORDER
1. Four nomination papers were filed for the office of Mukhiya of Harhachcha Gram Panchayat in the district of Darbhanga, out of which the nomination papers of respondent No. 3 and one other candidate, with whom we are not concerned in the present application, were rejected, and one of the candidates withdrew his nomination paper. The petitioner was, accordingly, declared elected uncontested as Mukhiya of that Gram Panchayat. On the 11th of March, 1960, respondent No. 3 filed an objection before the Elections Officer, namely, the Block Development Officer of Bahera, but his objection was rejected by him. He then filed Objection under Rule 28(4) of the Bihar Panchayat Election Rules before the Sub-Divisonal Magistrate. Darbhanga, but that objection was also rejected on the 17th of March, 1960.
On the 6th of April, 1960, respondent No. 3 filed an election petition under Rule 72(2) of the Bihar Panchayat Election Rules before the Deputy Collector-Election Tribunal. Since, however, the impugned order was passed by the Sub-divisional Magistrate, an officer superior in rank to the Deputy Collector-Election Tribunal, the election petition was transferred to the additional Collector-Election Tribunal, Darhltanga, for disposal. Two objections were raised on behalf of the petitioner in regard to the election petition, namely, (i) that the election petition was time-barred, and (ii) that the nomination of respondent No. 3 had been rightly rejected, as he was a disqualified candidate, The Election Tribunal held that, in view of Section 14(2) of the Limitation Act, the election petition was within time, and that respondent No. 3 was not disqualified and his nomination paper had been wrongly rejected. Consequently, the election of the petitioner was set aside. Being thus aggrieved, he has filed this writ application under Articles 226 and 227 of the Constitution.
2. This case came up lor hearing before a learned Single Judge of this Court, and the learned Single Judge was of the opinion that there is a clear conflict between the provisions of Section 79(1) (c) and 79(1) (g) of the Bihar Panchayat Raj Act (hereinafter referred to as 'the Act'). He, therefore, referred the case to a Division Bench for an authoritative decision.
3. Mr. Jha, appearing for the petitioner, has contended that the finding of the Election Tribunal that respondent No. 3 was not a disqualified candidate is wrong in law, inasmuch as the Election Tribunal did not examine the disqualification mentioned in Section 79(1) (g) of the Act and proceeded to decide the question only on the disqualification mentioned in Section 79(1) (e) of the Act. His contention is that under Section 79(1) (g) respondent No. 3 was disqualified and his nomination paper was rightlv rejected by the Elections Officer.
4. In order to appreciate the above argument, it may, perhaps, have to be noticed that respondent No. 3 was employed in the service of the Darbhanga Muncipality and he was dismissed from service on account of his having committed forgery with respect to certain papers. On this ground, it is urged on behalf of the petitioner that he had become disqualified for being a candidate for the office of Mukhiya. The argument is well-founded "and must prevail.
5. Rule 6 (b) (v) of the Bihar Municipal Elections and Election Petitions Rules lays down that a person shall be disqualified for being a candidate for election as a commissioner if he is a dismissed servant of the Government or a dismissed employee of a local body. Section 4 (3) of the Bihar and Orissa General Clauses Act stales that local authority shall mean a municipal committee. District Board of any other authority entrusted by the Government with, or legally entitled to the control or management of a municipal fund. In the Act itself, section 2 (i) defines "Local authority" to mean, "a Municipal Committee, district hoard of any other authority entrusted by the Government with or legally entitled to, the control or management of a municipal or local fund and includes any authority constituted under any law for the time being in force to administer a 'Chaukidari" Fund'"
It is, therefore, manifest that a servant dismissed from the employ of the municipality is a servant dismissed from the employ of a local authority.
Section 79 (1) (e) of the Act lays down that, notwithstanding anything contained in this Act, a person shall be disqualified for election, nomination, or appointment as a Mukhiya. member of the Executive Committee. Sarpanch or Panch if such person has been dismissed from the service, of the Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service. Clause (g) of that Sub-section lays down that a person shall be disqualified for election, nomination or appointment to the posts referred to above if he has under any law for the lime being in force become ineligible to be a member of any local authority. The learned Single Judge appears to have taken the view that there was a conflict between these two provisions. We, however, do not see any conflict if the two clauses arc read together along with the provisions of the Bihar Municipal Elections and Election Petitions Rules and the provisions of the Act itself.
6. Section 79 (1) (e) of the Act contemplates a case of a person who has been dismissed from the service of the Central or the State Government or any local authority for misconduct and has been declared to he disqualified for employment in the public service. In other words, the disqualification laid down in Clause (e) of Section 79 (1) relates only to the dismissal of a servant for misconduct and that also when he has been declared to be disqualified for employment in the public service. So far as Clause (g) of that Sub-section is concerned, the dismissal of the person should not necessarily be on account of misconduct, but for any other reason that may have brought about his dismissal, and it is not necessary in that case that he should have been declared to be disqualified for employment in the public service. Clause (g) disqualifies a person from being elected Mukhiya etc. under the Act if he has become ineligible to be a member of any local authority, such as, municipality. Under Rule 6 (b) (v) of the Bihar Municipal Elections and Election Petitions Rules, as stated above, a person is disqualified to be a candidate for election as a commissioner of the municipality if he is a dismissed servant of the Government or a dismissed employee of a local authority, such as, municipality.
Respondent No. 3 had been dismissed from the employ of the municipality, and, therefore, he is a person who is disqualified for being a candidate for election as commissioner of a municipality or a member of a local body; and as he has become ineligible for election as a commissioner under this rule, his case comes directly under Clause (g) of Section 79(1) of the Act. He, therefore, becomes disqualified for election, nomination, or appointment as a Mukhiya, member of the Executive Committee, Sarpanch or Panch of a Gram Panchayat under the Act. His nomination was, therefore, rightly rejected by the Elections Officer. On this around alone, the order of the Election Tribubunal has to be held to be bad in law and must be set aside.
7. The result, therefore, is that, acting tinder the authority conferred on this Court under Article 227 of the Constitution of India, we allow this application, set aside the order of the Election Tribunal (Annexure "B") and hold that respondent No. 3 was disqualified from filing his nomination paper for the office of Mukhiya. There will, however, be no order as to costs as there is no contest on behalf of respondent No. 3.