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2012 DIGILAW 759 (PAT)

Balendu Bharti v. State Of Bihar

2012-05-10

SHEEMA ALI KHAN

body2012
ORAL ORDER Heard Counsel for the parties. 2. The petitioner is aggrieved by Anexure-7, the order issued by the Secretary, State Election Commission on 29.05.2012 rejecting the nomination of the petitioner and further ordering for criminal prosecution not only of the petitioner, but of respondents 7 and 8 also, who are the Secretary and the Principal of the Dwarika Nath College, Masaurhi, Patna (hereinafter referred to as the College). 3. The facts reveal that the petitioner was working as a Lecturer of English in the said College. He resigned on 25th January, 2012 from the post of a Lecturer. The Secretary of the College accepted his resignation on 27th January, 2012. After accepting the resignation, the College issued advertisements for filling up the vacant posts of Lecturers in various faculties including English, i.e. the subject of the petitioner. In the mean time, the Municipal Elections were announced and 24th April, 2012 was the date fixed for filing of the nomination. The petitioner filed his nomination on the appointed day, which was scrutinized on 25th April, 2012 and thereafter his nomination was accepted. 4. One Krishna Chandra Jha filed an objection before the State Election Commission, stating therein that the petitioner who was Lecturer had resigned. His resignation was accepted by the Secretary of the College and he was relieved from the post. However, since, the Governing Body/Adhoc Committee had not accepted the resignation of the petitioner, it would be deemed that the petitioner had not effectively resigned and as such he had suppressed the fact that he was a Government Employee in his nomination paper. For the reasons aforesaid, the State Election Commission has rejected the nomination paper of the petitioner. It may be stated at this juncture itself that the meeting of the Governing Body was held on 05th May, 2012. In the said meeting, it was resolved by Annexure-9 (supplementary affidavit) by the Governing Body that the acceptance of the resignation of the petitioner by the Secretary of the College and the action of the Principal of the College in relieving the petitioner from the post of the Lecturer in English was in accordance with the rules and the resignation has been correctly accepted by the Secretary of the College in anticipation of the approval of the Governing Body. 5. Three questions arise in this writ application. 5. Three questions arise in this writ application. Firstly, whether the petitioner has committed fraud by withholding the information that he had resigned from the post of Lecturer of the College; secondly, whether the State Election Commission has the power to reject a nomination or entertain a complaint, and reject a nomination and thirdly, whether this Court can interfere with the order of the State Election Commission under Article 226 of the Constitution of India? 6. The arguments on behalf of the State Election Commission is that the petitioner had committed fraud by suppressing the information that he was a Lecturer in the College and as such, the State Election Commission has the power to interfere in the election process by rejecting the nomination of the petitioner and ordering for criminal prosecution. 7. On merits, this Court would consider the fact that the petitioner had resigned much earlier i.e. in the month of January, 2012. Since, his resignation was accepted by the Secretary and Principal of the College, he was not allowed to perform the work and in fact, he has ceased to be the member of the faculty. The said decision was taken in anticipation of the approval of the Governing Body. Therefore, it cannot be said that it would amount to a fraud. “Fraud” means (i) a criminal deception with intention to gain money or personal advantage, & (ii) a person intending to deceive. The meaning of the word, therefore envisages that there must be an intention on the part of the person making such statement or committing an act to deceive another i.e. deliberately cause the other to believe something false or to give a mistaken impression. The question of fraud would have certainly arisen, if the College had denied any such resignation or had denied that the petitioner was relieved from his post after offering his resignation, but as it happens, the College authorities support the stand of the petitioner. 8. In the present facts, it cannot be held that the petitioner had intentionally deceived anybody, much less, the Returning Officer as it is a fact that he had resigned and he was no longer working as a Lecturer and had been relieved from the post, in pursuance of which an advertisement was issued for filling up the vacancy in the English Department along with the vacancies in the other Departments of the College. 9. 9. Counsel for the State Election Commission relied on certain judgments to substantiate is arguments that fraud vitiates all actions and as such, the State Election Commission has rightly interfered in the election process. One judgment relied upon is the case of Ram Chandra Singh vs. Savitri Devi and Others [2003 (4) PLJR (SC) 208]. The appellant had filed Title (Partition) Suit No. 17 of 1976 on the ground that the decree was obtained by fraud. The Court while considering fraud came to the conclusion that once there is a finding that the decree has been obtained by practicing fraud, then the question that the principles of res judicata would apply to the suit would not arise. Therefore, the Supreme Court held that there must be a finding of fraud. The finding of fraud can only be achieved by conducting a thorough enquiry. The question is not at all relevant in this particular case. Normally, however if the “act” of fraud is writ large on face of records, then may be the Commission could interfere, but in a given facts of a case, it may be that the fraudulent act requires evidence, then it will be beyond the purview of the State Election Commission, and could only be challenged by filing an election petition before the competent authority. 10. In the present case, therefore, this Court concludes that it was not for the State Election Commission to hold that the nomination was bad due to suppression of facts. 11. Counsel for the parties referred to Rules 46 and 47 of the Bihar Municipal Election Rules, 2007 to submit that the State Election Commission does not have the power to interfere in the election process, whereas Counsel for the State Election Commission refers to Rule 92 of the Rules, Article 243ZA of the Constitution of India and Section 445 of the Act to support the order of the State Election Commission. 12. Rule 46 of the Rules deals with the scrutiny of the nomination paper. Specifically sub-rule 4 of Rule 46 envisages that the Returning Officer shall hold the scrutiny on the date appointed and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot. 12. Rule 46 of the Rules deals with the scrutiny of the nomination paper. Specifically sub-rule 4 of Rule 46 envisages that the Returning Officer shall hold the scrutiny on the date appointed and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot. The proviso of sub rule (4) of Rule 46 is important and it has been quoted herein below:- “Provided that in case an election is made, the candidate concerned may be allowed time to rebut it not later than the following day on which scrutiny is held and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.” 13. On perusal of Rule 46 of the Rules, it would appear that the right to hold scrutiny and decide whether the nomination has been properly filed is with the Returning Officer. It is also clear that any candidate concerned would have the right to file an objection to any other candidate’s nomination on the day on which the scrutiny is held or on the following day. Rule 47 envisages that the decision of the Returning Officer accepting or rejecting the nomination paper would be final. On the basis of the aforesaid rules, it is submitted that the State Election Commission could not have entertained the complaint petition. If at all, the complainant had a right to file the complaint before the Returning Officer or else, he could have challenged the acceptance of the nomination by filing an election dispute after the election was over. It has been argued that the complaint was filed before the State Election Commission, however, this fact has been rebutted by the petitioner by annexing a document in the writ application which indicates that the Returning Officer has specifically denied before the State Election Commission that an objection was filed before him. At this juncture, it would be relevant to refer to the judgment in the case of State Election Commission vs. Ras Bihari Raghuwanshi and Others [ AIR 1995 MP 245 (DB)]. The facts reveal that the election was for the post of Sarpanch in three Panchayats and the nomination papers of two candidates were rejected by the Returning Officer, thereby leaving only one candidate with a valid nomination paper. The reason for rejection was unauthorized overwriting in the nomination papers. The facts reveal that the election was for the post of Sarpanch in three Panchayats and the nomination papers of two candidates were rejected by the Returning Officer, thereby leaving only one candidate with a valid nomination paper. The reason for rejection was unauthorized overwriting in the nomination papers. The sole candidate left over was declared as elected. A voter complaint to the District Returning Officer regarding the rejection of nomination papers and also to the Secretary of the State Election Commission. The State Election Commission took a decision to countermand the election and to order re-election on the ground that nomination paper had been tampered with by an Election Officer. The order was challenged by filing the writ application. The Election Commission had argued that the general power of superintendence or control vested in it, including the power to countermand the election and order fresh election and such an act cannot be challenged in Court by the petitioner. Therefore, the very questions that have been raised in this writ application were raised before the Division Bench. The Division Bench held that the order passed by the Returning Officer accepting or rejecting the nomination paper is not susceptible to review at any other stage or by any other authority than the Election Tribunal. It is significant to note that the rules do not provide for an appeal before the Commission or revision suo motu or otherwise to the Commission against the order of the Returning Officer. The argument that the State Election Commission that by virtue of Article 243 ZA of the Constitution of India, it would be entitled to pass an order and interfere with the election process would, in the opinion of this Court, be an excessive use of the power delegated to the State Election Commission. Article 243 ZA of the Constitution of India provides that the State Election Commission has the power of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities. Clause (2) of Article 243 ZA further provides that “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, elections to the Municipalities”. Clause (2) of Article 243 ZA further provides that “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, elections to the Municipalities”. The power of superintendence and directions vested in the State Election Commission is subject to the provisions of the Constitution and the laws laid down by the Legislature of the State. The power of superintendence and directions cannot be against the rules and regulations made by the State Legislature. Therefore, it cannot be argued that the power under Article 243 ZA of the Constitution and rule 92 of the Bihar Municipal Election Rules would include the power of review or the power to reject the nomination paper of the candidates. Rule 92 of the Rules gives the power to the State Election Commission to issue directions for efficient conduct of election. It does not envisage that the State Election Commission has the power to reject or accept the nomination papers filed by candidates during the elections. This Court, however, would not go to the extent of holding that the State Election Commission in appropriate cases cannot hear matters relating to rejection of nomination papers, especially in those cases where there is grave irregularities and the Returning Officer has refused to consider those irregularities. However, in the facts of the present case, it cannot be contended that a complaint was filed before the Returning Officer who did not consider it or was wrongly rejected by him, to warrant any sort of interference by the State Election Commission. The remedy, according to the Act, would be by filing an election petition before the Election Tribunal. 14. Counsel for the State Election Commission refers next to the provisions of Section 445 of the Bihar Municipal Act, 2007. Section 445 of the Act of 2007 reads as follows:- 445. The remedy, according to the Act, would be by filing an election petition before the Election Tribunal. 14. Counsel for the State Election Commission refers next to the provisions of Section 445 of the Bihar Municipal Act, 2007. Section 445 of the Act of 2007 reads as follows:- 445. Furnishing of certain information essential for candidates.—(1) A candidate shall, apart from any information which he is required to furnish in his nomination papers delivered under the Act or the rules made thereunder, also furnish information on affidavit on the following aspects in relation to his/her candidature– (i) Whether he is convicted/acquitted/discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine; (ii) Prior to six months of filing of nominations, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for more than six months, and in which a charge has been framed or cognizance has been taken by a competent court of law. If so, the details thereof. (iii) The assets (including movable, immovable and Bank balances, etc.) of a candidate, and of his/her spouse and that of dependants. (iv) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues. (v) The educational qualifications of the candidate. (2) In case of non-furnishing of the affidavit by any candidate, the nomination of the concerned candidate shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit. (3) xx xx xx (4) xx xx xx 15. Counsel for the State Election Commission argues that there would be no purpose of inserting Section 445 in the Statute if no remedy was available for non-compliance of the provisions of the section. The section itself envisages that the Returning Officer would have the right to reject any such nomination paper if it was not duly filled or was filed without an affidavit. This section does not empower the State Election Commission to intervene in the matter, in the manner in which it has been done. The section itself envisages that the Returning Officer would have the right to reject any such nomination paper if it was not duly filled or was filed without an affidavit. This section does not empower the State Election Commission to intervene in the matter, in the manner in which it has been done. The State Election Commission has the power under Section 18 (2) of the Act of 2007 to decide the question “as to whether a member of the Municipality at any level was disqualified before election or has incurred disqualification after election as provided in Article 243 V of the Constitution of India and subject to any of the disqualification mentioned in Section 475 or the subject to any of the disqualification mentioned in sub-section (1) of section 18, the question shall be referred for the decision of the State Election Commission. The matter of disqualification may be brought to the notice of the State Election Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard”. 16. Thus, the question of disqualification can be considered by the State Election Commission if and when a complaint is filed before the State Election Commission as per the provisions of Section 18 of the Act. 17. Counsel appearing for respondents 6 and 7 submits that the State Election Commission could not have passed an order for institution of criminal proceedings against them. They have neither suppressed any facts nor are they responsible in any manner in the entire process mentioned aforesaid. I find no difficulty in holding that respondents 6 and 7 cannot be prosecuted for accepting the resignation of the petitioner as it was within their powers to do so. 18. The third issue that has been raised before this Court is that this Court cannot interfere under Article 226 of the Constitution of India in this matter. 19. Mr. Amit Shrivastava, Counsel appearing on behalf of the State Election Commission and Mr. 18. The third issue that has been raised before this Court is that this Court cannot interfere under Article 226 of the Constitution of India in this matter. 19. Mr. Amit Shrivastava, Counsel appearing on behalf of the State Election Commission and Mr. S. B. K. Mangalam, Counsel appearing for the respondents has submitted that right from the case of N. P. Ponnuswami vs. Returing Officer, Namakkal [ AIR 1952 SC 64 ], the consistent view of the Supreme Court has been that the Courts should not interfere once the election process has commenced. Generally, that is the view of the Supreme Court which cannot be rebutted by this Court. The reasons given by the Supreme Court are that interference by the Court would lead to a situation which would delay the process of election and defeat the very purpose for the enactment of the statutory provisions under the Constitution and the Acts made in this regard. The judgment in the N. P. Ponnuswami’s case has been followed in several other judgments. The principle aforesaid in Ponnuswami’s case, which is applicable for the High Court, would equally apply to the State Election Commission, who should restrain themselves and not interfere with the process of election. 20. I need not refer to the judgments on the issue aforesaid except to say that this Court is not interfering with the election process, rather the order of the State Election Commission is under judicial review on the ground that the State Election Commission did not have the power to interfere in the election process and act beyond the statutory provisions as discussed above. 21. Considering all aspects of the matter, this Court finds that the impugned order Annexure-7 is bad as it dehors the Bihar Municipal Act, 2007 and as such it is quashed. 22. This writ application is accordingly allowed. 23. While passing this order, I may clarify that the petitioner cannot claim that by virtue of the pendency of the matter before the State Election Commission or before this Court, he has been prejudiced and, therefore, did not have the opportunity to canvas for his candidature.