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2004 DIGILAW 1258 (PAT)

Syed Mohammad Jawaid Eqbal v. State Of Bihar

2004-12-17

R.N.PRASAD, R.S.GARG

body2004
Judgment Ram Nandan Prasad, J. 1. In both the writ petitions similar questions are involved. They have been heard together and are being disposed of by this common judgment. 2. The petitioner in CWJC No. 2339 of 2002 is a Demonstrator in Millat College, Darbhanga a constituent college under Lalit Narayan Mithila University Darbhanga, he was elected Ward Councillor in 1986 and again in 1992 in of Darbhanga Municipal Corporation and was working as Deputy Mayor since 1992. He was intending to contest election to the Darbhanga Municipal Corporation. Petitioner No. 1 in CWJC No. 2437 of 2002 is an Advocate practicing in Patna High Court and petitioner No. 2 is engaged in service in the R.B. College, Dalsingsarai, a constituent college, under the Lalit Narayan Mithila University, Darbhanga and is also a social worker. He is interested in development of the society and was also intending candidate of Ward Commissioner of Nagar Panchayat, Dalsingsarai. They have approached this Court for declaration that Sec. 17(1)(c) and (d) as incorporated in the Bihar a Orissa Municipal Act, 1922 by amendment vide Ordinance of 2001 is arbitrary, unreasonable and ultra vires to the Constitution of India. 3. The case of the petitioners is that they were eligible to contest the election for Ward Commissioner of the Municipal Corporation and the Nagar Panchayat under the provisions of the Bihar and Orissa Municipal Act, 1922, hereinafter referred to as "Act 1922" for brevity. The Act, 1922 has been amended and sec. 17 has been substituted vide Ordinance No. .3 of 2001 which deals with disqualification for election or after election of for holding post as a member of the Municipality. Sub-clause (c) says that if a person is in service of the Central or State Government or any local authority, sub-clause (d) says if a person is in service of any such institution receiving aids from the Central or the State Government or any local authority he would be disqualified to contest the election for holding the post as member of the Municipality. The said provision is beyond the scope of Art. 243-V and 243-ZA (2) of the Constitution of India. The said provision is beyond the scope of Art. 243-V and 243-ZA (2) of the Constitution of India. The said provision is also violative of Articles 14 and 19(1 )(g) of the Constitution as no such restriction has been provided for a member of either House of the Parliament or for a member of the Legislative Assembly or the Legislative Council of the State and also that there was no such restriction prior to Bihar Municipal (Amendment) Ordinance of 2001. 4. A counter affidavit has been filed on behalf of the respondent No. 2 in CWJC No. 2427 of 2002. Learned counsel for the respondents stated that the same be treated as counter affidavit in both the writ petitions. In the counter affidavit it has been stated that the provisions u/s. 17(1 )(c) and (d) of the Bihar Municipal Act, 1922 as brought by amendment are not in conflict, rather they are consistent with the provisions and spirit of Art. 243-V of the Constitution as they provide explicitly that a person shall be disqualified for being Member of the Municipality of he is so disqualified by or under any law made by the Legislature of the State. Art. 102 of the Constitution deals with disqualification for membership of either House of Parliament, Art. 191 of the Constitution deals with disqualification in case of membership of Legislative Assembly or Legislative Council of the State. In the aforesaid articles there is no provision for disqualification of a person seeking election to any municipality. It was the 74th Constitutional Amendment which spelt out grounds for disqualification in case of municipal election. Art. 243-V (1)(b) provides that a person shall be disqualified for being a member of Municipality if he is so disqualified by or under any law made by the Legislature of the State. sec. 17(1)(c) and sec. 17(1)(d) of the Act, 1922 as incorporated by State amendment say with respect to disqualification for being elected as member of the Municipality and no person of the category of the petitioners, or of any category who is in employment of the Central Government of the State Government or any local authority or in service of any such institution which receives Government grants or Local authority has been exempted. The aforesaid provisions of sec. 17(1)(c) and (d) are intra vires to the Constitution. 5. The aforesaid provisions of sec. 17(1)(c) and (d) are intra vires to the Constitution. 5. The contention of the learned counsel for the petitioners is that the provisions of sec. 17(1 )(c) and (d) as incorporated by the Bihar Municipal (Amendment) Ordnance 2001 in Bihar and Orissa Municipal Act, 1922 are ultra vires to the Constitution of India and also beyond the competence of the State to legislate the sarra. In this regard it would not be out of place to mention herein that right to be elected is not a fundamental right under the Constitution. It is purely a statutory right and is also subject to the statutory limitations. It is also not a common law. It is a special law and equity under the common law is stranger to the election law and as such the Court has to consider the same as required under the statute. The law made by the Parliament or the Legislature of the State can be struck down by the Courts on two grounds i.e. lack of legislative competence and violation of any of the fundamental rights guaranteed in Part hi of the Constitution of India or any other Constitutional provisions. In the case of State of Andhra Pradesh and Ors. v. Mc. Dowell and Co. and Ors., AIR 1996 Supreme Court 1627, the Apex Court has held that a law made by the Parliament or the Legislature can be struck down by Courts on two grounds and two grounds alone, viz, (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in part-Ill of the Constitution or of any other constitutional provision. There is no third ground. If an enactment is challenged as violative of Art. 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Art. 19(1), it can be struck down only if it is found not saved by any of the Clauses (2) to (6) of Art. 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principle of proportionality when its applicability even in Administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. The two rules stated above for striking down of enactments are however confined to an Act made by the Legislature. In view of the law laid down by the Apex Court as indicated above I proceed to examine the validity of sec. 17(1)(c) and (d) as incorporated by amendment in the Bihar and Orissa Municipal Act, 1922. For better appreciation sec. 17(1)(c) and (d) are quoted hereinbelow :- "77 Disqualification.-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Member of the Municipality if such person........... (c) is in service of Central or State Government or any Local Authority; (d) is in service of any such institution receiving aids from the Central or State Government or any Local Authority." 5. It is obvious from the aforesaid provisions that if a person is in service of the Central Government or State Government or any local authority or such person is in service of any institution receiving aids from the Central Government or the State Government or any local authority he shall be disqualified for election or after election for holding posts as a member of the Municipality. To deal with the question it would be appropriate to discuss whether the State Government is competent to legislate with respect to disqualification of a person for election or after election for holding the post as Member of the Municipality. To deal with the question it would be appropriate to discuss whether the State Government is competent to legislate with respect to disqualification of a person for election or after election for holding the post as Member of the Municipality. By 74th Amendment of the Constitution of India Art. 243-V has been incorporated which deals with disqualification for membership which reads as follows : "243-V. Disqualification for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a Municipality (b) if he is so disqualified by or under any law made by the Legislature of the State." Similarly, Art. 243-ZA deals with the election which reads as follows :- "243-ZA Elections of the Municipalities.-(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Art. 243-K. (2) Subject to the provisions of the Constitution the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities." 6. It is evident from Art. 243-V(1)(b) that a person shall be disqualified for being chosen as, and for being a Member of the Municipality if he is so disqualified by or under any law made by the Legislature of the State. Similarly, 243-ZA(2) says that subject to the provisions of the Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities. Thus, it is obvious that the Constitution of India empowers the State Government to legislate with respect to the disqualification for being chosen as or for being-member of the Municipality and also to legislate with respect to all matters relating to, or in connection with the election to the municipalities. Therefore, competency of the State to legislate with respect to election/disqualification for being chosen as or for being member of the Municipality cannot be doubted. 7. Learned counsel for the petitioners further contended that the provisions of Sections 17(1 )(c) and (d) are discriminatory as no such restriction has been prescribed for member of either House of the Parliament or member of the Legislative Assembly or the Legislative Council of the State. 7. Learned counsel for the petitioners further contended that the provisions of Sections 17(1 )(c) and (d) are discriminatory as no such restriction has been prescribed for member of either House of the Parliament or member of the Legislative Assembly or the Legislative Council of the State. In this regard it would be pertinent to mention herein that Art. 102 deals with disqualifications of the member of either House of Parliament and Art. 191 deals with disqualification for being a member of the Legislative Assembly or the Legislative Council of State. They do not deal with disqualification of the member of the Municipality. It is a well established rule of law that discrimination can be considered amongst the same class and category and members of a class/category cannot be compared with the members of the other class/category. The members of. either House of the Parliament are of a separate class/category, similarly members of the Legislative Assembly or the legislative Council of the State also constitute a separate class/category. They cannot be compared with the members of the Municipality. The statutory provision can be struck down if it is discriminatory amongst the same class. By sec. 17(1 )(c) and (d) no person of the same category of the petitioners has been exempted and as such there is no discrimination amongst the same class/category and as such the provision cannot be held to be discriminatory. 8. Learned counsel for the petitioners, however, also contended that the provisions of sec. 17(1)(c) and (d) of the Act, 1922 as incorporated by amendment are unreasonable as they put restriction on a person to choose his occupation. The contention of the learned counsel for the petitioners is fallacious. Art. 19 of the Constitution of India is a fundamental right and it deals with protection of certain right regarding freedom of the citizen. Article 19(1 )(g) says that all citizens shall have right to practise any profession, or to carry on any occupation, trade or business. Art. 19 (6) says that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. 9. Art. 19 (6) says that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. 9. It is, thus, evident that no doubt the right to practise any profession, or carry on any occupation, trade or business is a fundamental right but it is subject to Art. 19 clause (6) of the Constitution of India, which says that a reasonable restriction can be imposed by legislation by the State. The restriction imposed for election or after election for holding the post as member of the Municipality by sec. 17(1 )(c) and (d) of the Act, 1922 as incorporated by the Amendment therefore, cannot be said to be unreasonable one. The restriction is only on such persons who are in service of the Central or State Government or any Local Authority or in service in such institution which receives aids from the Central or the State Government or any Local Authority and as such it is a reasonable restriction. Since persons of the same category have not been exempted from disqualification clause and, as such, it cannot be said that the provisions is an infringement of Art. 19(1 )(g) of the Constitution rather it can safely be said to be a reasonable one and it satisfies the equality clause also. 10. Thus, on consideration as discussed above, I find no merit in these writ petition. Both the writ petitions are accordingly dismissed.