Jharkhand High Court
Smt Rama Khalko vs Urban Development Department on 14 May, 2013
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2787 of 2013
with
W.P.(C) No. 2659 of 2013
---
Smt. Rama Khalko --- --- ---- Petitioner (WPC 2787/13)
Naveen Lakra --- --- --- Petitioner (WPC 2659/13)
Versus
The State of Jharkhand through
its Chief Secretary, Government
of Jharkhand & others --- --- --- Respondents (both cases)
---
CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: M/s Delip Jerath, Rajesh Kr., Mohini Gupta, Vineet
Kr. Vashishtha, Veervijay Pradhan and Alok
Anand, Advocates (WPC 2787/13)
For the Petitioner: Mrs. J.K. Mazumdar, Advocate (WPC 2659/13)
For the State: Mr. M.S. Anwar, AG, Mr. Ajit Kr., AAG, Mr. Rohit,
JC to AG
For the EC: Mr. Sumeet Gadodia & Mr. Anurag Kashyap, Advocates
---
02/ 14.05.2013The petitioners have sought quashing of the notification bearing no. 05/election/105/2013-1547 dated 22.04.2013 issued by the Urban Development Department, Government of Jharkhand as referred to in the Gazettee no. 263 dated 22.04.2013 whereby the earlier notification issued by it on 6th March 2013 so far as it relates to the election for the post of Mayor of Ranchi Municipal Corporation, has been cancelled. A challenge to the recommendation made by the State Election Commission seeking rescission of the said election notification for the post of Mayor of Ranchi Municipal Corporation has also been made. The petitioner has prayed for issuance of mandamus directing the respondent authorities to order for the counting of the votes and declaration of result for the post of Mayor, Ranchi Municipal Corporation held on 8th April 2013. The two petitioners were the candidates contesting the election for the post of Mayor of Ranchi Municipal Corporation apart from other, notified by the Urban Development Department vide notification dated 6th March 2013.
2. The facts as stated on behalf of the petitioner in WPC No. 2787 of 2013 are being noticed hereunder for appreciating the controversy raised herein. Under notification of 6th March 2013 issued by the Urban Development Department, Government of Jharkhand, election for the Ranchi Municipal Corporation and other Municipal Corporations / Municipalities were notified to be held as per the schedule indicated in the 2 said notification for different local bodies. The election for the post of Mayor in the Ranchi Municipal Corporation was scheduled to be held on 8th April 2013. However, a raid was conducted in the City Palace Hotel, Ranchi by the district officials along with the police team who recovered Rs. 22,31,000/- from different places of hotel and certain election materials relating to the petitioner-Rama Khalko was also recovered. On account of the aforesaid raid and the seizure of documents, the respondent State Election Commission suspended the counting of votes for the post of Mayor. Thereafter, the State Election Commission in an arbitrary, irrational and malafide manner made recommendation to His Excellency The Governor of Jharkhand that the candidates in the election for the post of Mayor for Ranchi Municipal Corporation had tried to influence the result of the election by use of money power; as such it was apprehended that the electorate could not exercise their franchise in a free, fair, independent and impartial manner. Therefore, the State Election Commission made recommendation to His Excellency The Governor of Jharkhand to rescind the notification dated 6th March 2013 issued by Urban Development Department so far as it relates to calling upon the voters of Ranchi Municipal Corporation to elect the Mayor of Ranchi Nagar Nigam. On the basis of such recommendation, the notification for election to the post of Mayor for Ranchi Municipal Corporation has been rescinded vide notification dated 22nd April 2013 issued by the Urban Development Department, Government of Jharkhand.
3. The grounds for assailing the impugned notification on the part of the petitioner primarily are as follows:
The Jharkhand Municipal Act clearly provides as to when an election can be held void on the ground of any corrupt practices having been committed by a returned candidate or his Agent or by any 3 other person with the consent of the returned candidate or his Agent. Elaborate statutory provisions are contained in the Act, Niyamavali and Guidelines for rendering the accounts by the candidates as to the election expenditure to the appropriate authority within 30 days of the declaration of the results. To the knowledge to the petitioner Rama Khalko, money recovered from the hotel has been claimed by someone else. It is further submitted that the corrupt practices has been defined under section 123 of the Representation of Peoples Act, 1951 as also under section 586 of the Jharkhand Municipal Act, 2011. Section 587 of the Act of 2011 provides for consequences of indulging in such corrupt practices which entails disqualification from the Membership of any local authority for a period of five years. It is submitted that the Jharkhand Municipal Act, 2011 under the various provisions contained under Chapter-45 provides for such eventuality and penalties have been laid down for the electoral offences prescribed therein. It is further submitted that section 584 of the said Act provides for ground of declaring the election to be void which includes the resort to any corrupt practices by a returned candidate or his Agent.
4. It is therefore submitted that the State Election Commission did not have the power to recommend the rescission of the election notification itself to His Excellency The Governor of Jharkhand. As such, the power is not conceived under the provisions of the said Act. In such circumstances, the impugned notification by which the election notification of 6th March 2013 has been rescinded so far as it relates to the post of Mayor of Ranchi Municipal Corporation is without jurisdiction and authority of law. Learned counsel appearing on behalf of the petitioner submits that the stand of the State Election Commission relying upon section 21 of the General 4 Clauses Act, 1897 is wholly misplaced. In support of his aforesaid contention, he has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Indian National Congress (I) vs. Institute of Social Welfare and others reported in (2002) 5 SCC
685. It has been submitted by relying upon the opinion of the Hon'ble Supreme Court as contained in Para-37 to 39 that the Commission was acting quasi judicially while making such a recommendation and therefore, there is no application of provisions of section 21 of the General Clauses Act, 1897. Counsel for the petitioner submits that a detailed procedure has been prescribed under the Jharkhand Municipal Act, 2011 and there are no gaps in the law. The State Election Commission cannot be said to have plenary powers, as may be available to the Election Commission of India to make such recommendation as its power is to be exercised subject to the law made by the State Legislature. Therefore, the impugned notification based upon the recommendation made by the State Election Commission is fit to be quashed and the respondents should be directed to undertake counting of the votes and declare the results for the post of Mayor of Ranchi Municipal Corporation held on 08th April 2013.
So far as the petitioner in WPC No. 2659/13 is concerned, learned counsel appearing on behalf of the said writ petitioner, fully adopted the submission advanced by Mr. Delip Jerath, learned counsel appearing on behalf of the petitioner Rama Khalko. He however submits that so far as this petitioner is concerned, there are no allegations of recovery of any money from him or his agents, neither are there any allegation of use of money power or undue influence on his behalf in relation to the process of election for the post of Mayor to which he is also a candidate. He submits that the provisions under 5 the Jharkhand Municipal Act, 2011 do take care of such an eventuality if the election of other petitioner is found to be vitiated by use of corrupt practices and unfair means. Therefore, the entire election process should not be rescinded as for not fault of the present petitioner, he is being made to suffer.
5. Counsel for the respondent State Election Commission has forcefully opposed the contention of the petitioner that the State Election Commission cannot resort to making recommendation for rescission of the election notification itself as there are no plenary powers conferred upon it. In support of the aforesaid argument, learned counsel for the respondent State Election Commission has relied upon the provisions of Article 243-ZA(1) read with Article 243 K(1) of the Constitution of India as contained in Part-IX(A) and IX of the Constitution. Counsel for the Commission has drawn the attention of this Court to the provisions of Article 324 of the Constitution contained in Part-XV of the Constitution. It is submitted by comparing the aforesaid two provisions of the Constitution i.e. Article 243 ZA(1) and Article 324(1) that these provisions are pari materia and they relate to the powers of the Election Commission of India and the State Election Commission, so far as the conduct of all elections under the respective jurisdictions of the Election Commission of India and State Election Commission is concerned. It is submitted that the State Election Commission has been conferred absolutely similar powers as that of the Election Commission of India, in so far as the preparation of electoral rolls and the conduct of all elections to the municipalities are vested in the State Election Commission under Article 243ZA. It is submitted that as per the provisions of Article 243ZA (1), the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the municipalities are 6 vested in the State Election Commission. It therefore derives the plenary powers for the superintendence, direction and control for conduct of all elections to the municipalities, apart from what may be prescribed by the Legislature of the State with respect to all matters relating to or in connection with, elections to the municipalities. Learned counsel has referred to the decision of the Hon'ble Supreme Court rendered in the case of Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad and others reported in (2006) 8 SCC 352, para-23 to 25 to submit that in the said case the Hon'ble Supreme Court while dealing with the powers of the State Election Commission under Article 243 (K) and Article 243 ZA(1) of the Constitution vis-a-vis the powers conferred to the Election Commission of India under Article 324 of the Constitution, have held that the powers of State Election Commission in respect of conduct of election is no less than that of the Election Commission of India in their respective domains. These powers are of course subject to the law made by the Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions. He further submits that the State Election Commission is to function independent of the State Government in the matters of their powers of superintendence, direction and control of all elections and preparation of electoral rolls and conduct of all elections to the Panchayats and municipalities. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi reported in (1978) 1 SCC 405 which also finds mention at para-24 of the judgment referred to in the case of Kishansing Tomar (Supra) to submit that the superintendence, direction and control as well as conduct of elections have been held to be in the broadest of terms. 7
6. Learned counsel for the State Election Commission submits that the Election Commission received reports from the district Election Officer-cum-Deputy Commissioner and Senior Superintendent of Police, Ranchi and confidential report of Income Tax Department on 08th April 2013 in the late evening. The report and the copy of the documents attached thereto revealed that a meeting of about 150 people have been organized at hotel City Palace, Ranchi in which the petitioner Rama Khalko, a candidate for the post of Mayor of Ranchi Municipal Corporation, was present. An amount of Rs. 22.31 lakhs in cash packed in envelops on which ward no. and the amount of cash for each ward was recorded, were seized from the premises of the hotel. Apart from that, polling materials including voter slip, banners and poster carrying picture of Rama Khalko, a candidate for the post of Mayor of Ranchi Municipal Corporation, were seized from the hotel premises. An FIR was also registered in which the petitioner Rama Khalko has also been made an accused. These facts prima facie point out use of money/cash to influence the voters. In these circumstances, counting of votes for the post of Mayor of Ranchi Municipal Corporation (RMC) was deferred till further orders.
In the meantime, several memorandums were received from other candidates as also delegation of political parties. Reports were perused by the Commission carefully and the same was analyzed and examined and it was found that the process of election for the post of Mayor of Ranchi Municipal Corporation have been substantially influenced by use of money power which affected the entire exercise of holding of free and fair election. Apart from that, the Commission had also received information that several candidates of the post of Mayor have been spending huge money to influence the election in their favour.
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7. In these circumstances, the State Election Commission under the Constitutional and legal duty to conduct free and fair election, found that the current election process for the post of Mayor of Ranchi Municipal Corporation has been seriously vitiated. Therefore, in exercise of powers conferred on it under Article 243 ZA read with 243 K(1) of the Constitution read with section 21 of the General Clauses Act, 1897 and by all other powers enabling it in this behalf, it recommended to His Excellency The Governor of Jharkhand to rescind the notification dated 6th March 2013 of Urban Development Department, Government of Jharkhand, so far as it related to calling upon the voters of the Ranchi Municipal Corporation to elect the Mayor for the Ranchi Nagar Nigam.
8. Mr. Sumeet Gadodia, learned counsel appearing on behalf of the State Election Commission, submits that pursuant to the said recommendation and the decision of His Excellency The Governor of Jharkhand, the State Government has issued the impugned notification dated 22nd April 2013 to rescind the aforesaid notification dated 6th March 2013, so far as it relates to the election to the post of Mayor of Ranchi Municipal Corporation.
9. In the aforesaid facts and circumstances, learned counsel for the Commission submits that in more or less similar circumstances, during the course of Rajya Sabha Election, 2012 from Jharkhand, an amount of Rs. 2.15 crore was recovered from a car coming from Jamshedpur to Ranchi and it came to the notice of the Election Commission of India that the same was being carried to be handed over to one Mr. R.K. Agrawal who was contesting the election as an independent candidate. In such circumstances, on the recommendation of the Election Commission of India, the notification for election of Rajya Sabha from Jharkhand was rescinded. It is 9 submitted that the recommendation of the Election Commission of India to the President of India to rescind the notification calling upon the elected members of the Jharkhand Legislative Assembly to elect two members of the Council of State was also challenged in two writ petitions vide WP(PIL) No. 1801/12 and WPC No. 1802/12. Counsel for the Commission submits that the very question relating to the powers of the Election Commission of India to recommend rescission of the election notification were the subject matter of consideration before Division Bench of this Court. By relying upon the opinion of the Division Bench of this Court, as contained in Para-19 and 20 thereof, it is submitted that the power of the Election Commission of India of superintendence, direction and control as well as conduct of elections, have been held to be in the broadest of terms. It is submitted that the Division Bench of Court held that the Election Commission of India has the plenary powers apart from the law laid down by the Parliament to ensure free and fair conduct of election. He also submitted that such exercise of power has been held to be under administrative and supervisory jurisdiction for which no opportunity of hearing can be demanded and neither can it be said to be a quasi judicial act when the Commission is making a recommendation to the President of India, in such circumstances where the use of unfair means and corrupt practices have vitiated the purity and sanctity of the entire election process. Learned counsel for the Commission therefore submits that the State Election Commission having the same power as that of the Election Commission of India, has the full jurisdiction and authority to make such a recommendation to ensure that the election process is not vitiated by use of unfair means and corrupt practices to influence the voters as has happened in the instant case. He submits that the reports which have come before the 10 Commission and referred to in the recommendation of the State Election Commission are sufficient to show that the election process for the post of Mayor of Ranchi Municipal Corporation have been vitiated on account of use of money power to influence the voters. The impugned notification issued is therefore also wholly just, proper and within jurisdiction and power and based upon sufficient and relevant materials on record. The impugned notification therefore does not suffer from any lack of power on the part of the State Government and such power can also be read under the provisions of section 21 of the General Clauses Act, 1897 which also includes the power to modify, amend or even order rescission of any such notification issued by the competent authority, in the present case, the Urban Development Department, Government of Jharkhand.
10. Learned Advocate General, appearing on behalf of the State, submits that the reliance upon the provisions of Municipal Act, 2011 by the petitioner is wholly misplaced. Under section 539 and under Chapter-45 of the Act of 2011, the State Government has been conferred with the power for constituting the municipalities through notification published in the official Gazette on the recommendation of the State Election Commission. In the present case, the materials which have come across to the notice of the State Election Commission and the State Government on the recommendation made by the Commission, show that the entire electoral process has been vitiated because of use of money power. He submits that the provisions contained in the Act of 2011 under Chapter-45 thereof so far as it relates to the corrupt practices or electoral offences and grounds for declaring the election to be void, are primarily concerned with the election of returned candidate whose election has been found to be vitiated by corrupt practices or such other reasons, as indicated 11 therein. In the instant case, the malice is so widespread that the impartiality and fairness of election process itself for the post of Mayor of Ranchi Municipal Corporation has been vitiated on account of undue influence by use of money power as revealed by the materials collected by the investigating agency and the District Electoral Officer-cum- Deputy Commissioner, Ranchi as also reports of Income Tax Department, Observers of the State Election Commission as well. He also adopted the submission of the counsel for the State Election Commission, so far as the power of the State Government to rescind the notification of election is concerned, on the recommendation of the State Election Commission.
11. I have heard learned counsel for the parties at length and gone through the relevant materials on record.
12. The essential question raised on behalf of the petitioner for consideration in the instant case is, whether the State Election Commission had the power and jurisdiction to make recommendation for rescission of the election notification to His Excellency The Governor of Jharkhand, whereupon the election notification has been rescinded by the Urban Development Department, Government of Jharkhand? Whether such decision was based upon material foundation which were relevant for taking a decision in that regard? Learned counsel for the petitioner has relied upon the provision contained in Chapter- 45 of the Jharkhand Municipal Act, 2011 to submit that the provisions contained therein do provide complete answer to such an eventuality where any corrupt practices or use of undue influence are found, established against a candidate in such election. Therefore, the State Election Commission has no such plenary powers like the Election Commission of India to make recommendation for rescission of the election notification itself in the 12 face of such an eventuality. In this regard, it is appropriate to quote the relevant provisions of Article 243K(1) and Article 243 ZA (1)(2) as also the provisions under Article 324 (1) of the Constitution of India which confers power upon the State Election Commission and the Election Commission of India to conduct elections to the Panchayats and urban local bodies and the Parliament and State Legislatures as also to the office of the President and Vice President under their respective domains.
PART IX THE PANCHAYATS .........................
"243K. Elections of the Panchayats. - The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor."
PART IXA THE MUNICIPALITIES .........................
"243ZA.- Elections to the Municipalities.-(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243K.
(2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, election to the Municipalities."
PART XV ELECTIONS "324. Superintendence, direction and control of elections to be vested in an Election Commission.-(1) The superintendence direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution, shall be vested in a Commission (referred to in this Constitution as the Election Commission)."
13. A perusal of the aforesaid provisions under Article 243ZA(1) and Article 324(1) would clearly show that they are in Pari materia with the other. Article 243ZA(1) clearly provides that the superintendence, direction and control of the preparation of electoral 13 rolls for, and the conduct of, all elections to the municipalities, shall be vested in the State Election Commission referred to in Article 243K. Sub-section 2 thereof provides that subject to the provisions of Constitution, the Legislature of State may, by law, make provisions with respect to all matters relating to or in connection with, elections to the Municipalities. The reading of Article 324 shows that it confers power upon the Election Commission of India for the superintendence, direction and control of preparation of the electoral rolls for, and the conduct of all elections to the Parliament and to the Legislature of every State, and all elections to the office of the President and Vice President held under the Constitution.
14. The powers of the State Election Commission as conferred under Article 243K(1) and Article 243ZA were also the subject matter of consideration by the Hon'ble Supreme Court in the case of Kishansing Tomar (supra). The Constitution Bench of the Hon'ble Supreme Court while discussing the aforesaid issue has, in its opinion contained at paragraphs-23 to 26, held as follows:
23. In terms of Article 243-K and Article 243-ZA(1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provisions.
24. The words, "superintendence, direction and control" as well as "conduct of elections" have been held in the "broadest of terms" by this Court in several decisions including Special Reference No. 1 of 2002, in re1 and Mohinder Singh Gill case4 and the question is whether this is equally relevant in respect of the powers of the State Election Commission as well.
25. From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by the Parliament or by State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions.
26. The State Election Commissions are to function 14 independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities."
15. From perusal of the opinion of the Hon'ble Supreme Court, it is beyond doubt that the powers of the State Election Commission in respect of the conduct of election is no less than that of the Election Commission of India in their respective domains. Further, "superintendence, direction and control" as well as "conduct of election" has been held to be in the broadest of terms by the Hon'ble Supreme Court in several decisions including Special Reference No. 1/02 in re1 in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi (Supra). The Hon'ble Supreme Court in the said case has held in no uncertain terms that the Election Commission of India had plenary powers to act in the absence of specific legislation, though not contrary to valid legislation. It has been vested with the plenary powers to exercise in areas which are left unoccupied by legislation so as to take prompt action to reach the goal of free and fair election. However, if such power is misused, the Courts have the power to strike down the act.
16. The provisions of Jharkhand Municipal Act, 2011 which have been relied upon by the petitioner, as contained in Chapter-45 and Sections 586 to 587 provides for the definition of corrupt practices and the consequences which entail therein. Section 584 also provides grounds for declaring the election to be void. The corrupt practice defined under section 586 of the Jharkhand Municipal Act, 2011 includes bribery as defined under section 123 of the Representation of Peoples Act, 1951 as also use of undue influence and such other acts as contemplated thereunder which has the effect of prejudicially affecting the election of any candidate. On such acts of 15 corrupt practice being established against any elected Member, consequences are disqualification from Membership of any local authority for a period of five years.
17. It therefore appears that the provisions contained under Jharkhand Municipal Act, 2011 relating to the use of corrupt practices like bribery, are also provided in the Representation of Peoples Act, 1951 under which the election to the Parliament and Legislature of the State are held.
18. However, in the instant case, the facts which have been brought to the notice of the State Election Commission and which have been referred to in its recommendation, are such which appear to vitiate the whole sanctity of the election process for election to the post of Mayor of Ranchi Municipal Corporation. The Commission was confronted with the reports of the District Election Officer-cum- Deputy Commissioner, Ranchi and Senior Superintendent of Police, Ranchi, report of ARO for Mayor post, confidential report of Additional Director of IT (Investigation), Ranchi, five Expenditure Observers of the State Election Commission and three general Observers of the State Election Commission. The essential findings as culled out from the aforesaid report and referred to in para-11 of the recommendation, are worth to be quoted here under to show that the process of election for the post of Mayor of Ranchi Municipal Corporation has been substantially influenced by the use of money power in the election process. The same are quoted hereunder:
11.(i). A meeting of about 150 persons had been organized in the Hotel City Palace where Smt. Rama Khalkho, candidate for the post of Mayor of RMC, Sh. Subodh Kant Sahai, Hon'ble Member of Parliament, Sh. Sunil Sahai, Sh.
Surendra Singh and others were present. This meeting has been stated to be going on their floor of the Hotel. 200 packets of refreshments had also been arranged in the Hotel.
(ii) Cash amounting to Rs. 22.31 lakhs in currency notes in three bags was seized from Room Nos. 205 and 202 of the 16 same Hotel.
(iii) The cash referred to para (ii) above was placed in the envelops on which ward numbers from 1-55 were recorded along with amount of cash for each of the wards. Then there were 8 envelops without any number recorded on them but they carried total cash amount of Rs. 4.00 lakhs. Total amount of cash as per the seizure report of the ARO for Mahapaur, RMC and FIR lodged / FIR and IT Department is Rs. 22,31,000/- in aforesaid envelopes.
(iv) 52 bundles of election / polling materials relating to Smt. Rama Khalkho, the candidate for the post of Mayor of Ranchi Municipal Corporation were seized from the Hall located at first floor of the Hotel and each bundle carried plastic packets containing picture pamphlets of Smt. Rama Khalkho, banners, voter slips and on each of the plastic bags booth number, ward number etc is written in black marker.
(v) FIR was lodged by Asst. Returning Office for the post of Mahapaur, Ranchi Municipal Corporation and FIR no. 0031279 registered under section 171B, 171C, 171H and 414 of IPC, Representation of Peoples Act and Jharkhand Municipal Act, 2011. Sudhir Kumar Sah, Sh. Niranjan Sharma and the candidate for the post of Mayor Smt. Rama Khalkho have been named in the FIR besides unnamed others.
(vi) Two persons namely Sh. Suhir Kumar Sah and Sh.
Niranjan Sharma were arrested by Ranchi Police. Arrest warrants against Rama Khalkho, candidate for the post of Mayor of Ranchi Municipal Corporation have been issued by the court of Judicial Magistrate, Ranchi. Investigation in the case registered by the Police under FIR no. 0031279 dated 07.04.2013 is in progress.
(vii) The Income Tax (Investigation Wing) is pursuing further investigation in the case under the I.T. Act. "
Apart from the above, the Commission had also received information that several candidates of the post of Mayor have spent huge money to influence the election in their favour.
19. The Commission analyzed and examined the whole situation and also took into the account the relevant provisions of electoral offence under section 171B of the Indian Penal Code. Bribery in election as defined as corrupt practices under section 123(1) of the Representation of Peoples Act, 1951 read with section 574, 584, 586 and 590 of the Act of 2011. It also took into account the judgments rendered by the Hon'ble Supreme Court in the case of S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra (AIR 1980 SC 1362), Kuldip Nayar vs. Union of India reported in (2006) 7 17 SCC 1 as also in the case of Mohinder Singh Gill (Supra) and the judgment rendered by the Division Bench of Court in the case of Jay Shankar Pathak vs. Election Commission of India & others and analogous case reported in 2012 (2) JLJR 272 in respect of Rajya Sabha election, 2012 on the necessity to ensure conduct of free and fair election as a constitutional duty upon the State Election Commission.
20. In the aforesaid background, the State Election Commission made a recommendation under the relevant provisions of Article 243ZA and Article 243K(1) read with section 21 of the General Clauses Act, 1897 and all other powers available to it to His Excellency The Governor of Jharkhand to rescind the notification dated 6th March 2013 of Urban Development Department, so far as it related to calling upon the voters of Ranchi Municipal Corporation to elect the Mayor for the said corporation. Section 21 of the General Clauses Act, 1897 undisputedly also provides power upon the authority issuing the notification to modify, amend or rescind such notification under such powers. The argument of the counsel for the petitioner that such a power cannot be resorted to, as the act by the State Election Commission amounts to quasi judicial exercise of power is also misconceived as it has also been held by the Division Bench of this Court in the judgment rendered in the case of Jay Shankar Pathak (Supra). Such an exercise of power is not quasi judicial in nature but is under administrative and supervisory jurisdiction.
21. The very question raised by the petitioner herein whether such a recommendation can be made for seeking rescission of the election notification itself, was also under consideration by the Division Bench in the case of Jay Shankar Pathak (supra) which 18 was in relation to the Rajya Sabha election, 2012 from the State of Jharkhand. The Division Bench of this Court after referring to the judgment of the Hon'ble Supreme Court and after framing the issues raised by the petitioner therein at para-19, have specifically answered the same by holding that the Election Commission of India had the plenary powers which is conferred to it for superintendence, direction and control as well as conduct of election to reach the goal of free and fair election. In such circumstances, the Division Bench of this Court, upheld the action of the Election Commission of India recommending the rescission of the election notification itself as recovery of such a huge amount of money had vitiated the entire process of free and fair election. The powers of the State Election Commission in respect of conduct of elections under its domain are no less than the Election Commission of India as has been held by the Hon'ble Supreme Court in the case of Kishansingh Tomar (Supra). It was wholly within its plenary powers and jurisdiction to make such recommendation for rescission of election to the post of Mayor of the Ranchi Municipal Corporation.
22. In the present case, the facts which are brought on record, and are contained in the recommendation of the State Election Commission, do provide sufficient materials relevant for making recommendation for rescission of the election notification for the post of Mayor of Ranchi Municipal Corporation as the entire election process has been substantially influenced by the use of money power. It is not a case of any individual candidate where election is said to have have been vitiated by adopting corrupt practices but the influence of money power upon the voters for electing the Mayor of Ranchi Municipal Corporation has marred the purity and sanctity of the election process itself. In such 19 circumstances, the stand of the State Election Commission to seek rescission of the election notification cannot be found fault with. The impugned notification dated 22nd April 2013 issued by the Urban Development Department, Government of Jharkhand on the basis of the decision of His Excellency The Governor of Jharkhand and based upon the recommendation of the State Election Commission is therefore wholly in accordance with law and within its jurisdiction and based upon sufficient materials on record. The challenge to the same by the petitioners' therefore necessarily has to fail. The writ petitions are accordingly dismissed.
(Aparesh Kumar Singh, J) Ranjeet/