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2013 DIGILAW 1313 (PAT)

Sunil Kumar v. State of Bihar

2013-11-19

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORDER This Appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the order dated 30th January, 2013 made by the learned single Judge in CWJC No. 23325 of 2012. 2. The matter at dispute is the disqualification of the appellant as a Member of the Lakhisarai Municipality under order dated 12th November 2012 made by the State Election Commission (hereinafter referred to as “the Commission”). The challenge to the order of the Commission in above CWJC No. 23325 of 2012 has failed before the learned single Judge. Therefore, this Appeal. 3. Learned advocate Mr. Shri Prakash Srivastava has appeared for the appellant. He has assailed the judgment and order of the learned single Judge. 4. The Appeal is contested by the Commission. Learned advocate Mr. Amit Srivastava has appeared for the Commission. 5. It appears that pursuant to the complaint made by the respondent nos. 9 to 14 in the Writ Petition in connection with certain acts of commission and omission allegedly committed by the appellant, the Commission, in exercise of power conferred by Section 18(2) of The Bihar Municipal Act, 2007 (hereinafter referred to as “the Act of 2007”), held enquiry against the appellant and made the above referred order dated 12th November, 2012 to hold that the appellant was guilty of the acts of commission and omission amounting to misuse/abuse of power and of corrupt practices. Pursuant to the said finding, the Commission has held that the appellant would not be qualified to contest the next election. 6. We may note here that the appellant was elected as a Member of the Municipality in 2007 and his term of office expired in June 2012. Hence, the above referred order disqualifying the appellant made on 12th November, 2012 had no consequence as far as the appellant’s election and functioning as the Member of the Municipality was concerned. However, in view of the finding of corrupt practices recorded by the Commission, the appellant would not be entitled to contest the election for five years from the date of the order as envisaged by Section 482 of the Act of 2007. 7. Ordinarily, the appellant having been found guilty of corrupt practices, he could not have continued to hold the office as the Member of the Municipality. 7. Ordinarily, the appellant having been found guilty of corrupt practices, he could not have continued to hold the office as the Member of the Municipality. We are informed at the Bar that on expiry of the term of the Municipality in June 2012, the next election was conducted. The appellant contested the said election and won the election prior to the above referred order dated 12th November 2012. In view of the finding of corrupt practices, the appellant could not have been continued as the Member of the Municipality. Nevertheless, we are informed, the State Government has not taken any action pursuant to the aforesaid report dated 12th November 2012. The appellant continues to function as Member of the Municipality without any hindrance. 8. Although the appellant has been alleged to have committed the acts of commission and omission amounting to abuse of power as envisaged by Section 18(1)(l), and of corrupt practices as envisaged by Section 18(1)(j) of the Act of 2007; and although the Commission has made a long and reasoned order holding the appellant guilty, we find no materials on the record either in the complaint made against the appellant or in the report submitted by the Commission which would amount to abuse of power or corrupt practice as held by the Commission. 9. The phrase “corrupt practice” has been defined in Section 481 of the Act of 2007. In the entire report, not a single incidence is referred to which may fall within the ambit of “corrupt practice” as defined in Section 481 of the Act of 2007. It is also suggested that the brother of the appellant is a Cashier in the Municipality. The appellant has, in connivance with his brother, committed financial irregularities. The contention has no legs to stand on. There is not an iota of material to even remotely suggest that the appellant is guilty of financial irregularities. The factum of the appellant’s brother having been employed by the Municipality and posted as the Cashier in the Municipality would not disqualify the appellant to contest the election or to continue to be the Member of the Municipality. 10. In our view, the order of the Commission is based on belief. In absence of any concrete material against the appellant, the appellant could not have been held disqualified as envisaged by Sections 18(1)(l) and 18(1)(j) of the Act of 2007. 10. In our view, the order of the Commission is based on belief. In absence of any concrete material against the appellant, the appellant could not have been held disqualified as envisaged by Sections 18(1)(l) and 18(1)(j) of the Act of 2007. In our opinion, the entire exercise undertaken by the Commission is futile. Although the learned single Judge has discussed the authority of the Commission to enquire into the conduct of the Members of the Municipality, the learned single Judge has overlooked the fact that the report was based on no materials. Such an order can not be sustained. 11. Ordinarily, in the challenge to the order of the Commission, the complainants would be property party. The appellant did implead the complainants in the Writ Petition as respondent nos. 9 to 14. However, in his wisdom, later on he deleted the said respondent nos. 9 to 14 from the cause title of the Writ Petition. As we have upset the finding recorded against the appellant, the said complainants-respondent nos. 9 to 14 would be a necessary and property party to this appeal. However, since the term of the Municipality was already over before the date of the order; and in spite of the order, the appellant has been allowed to continue as member of the Municipality, we see necessity to implead the said respondent nos. 9 to 14 once again and to call them before this Court. 12. For the aforesaid reasons, the Appeal is allowed. The impugned order dated 30th January 2013 made by the learned single Judge in CWJC No. 23325 of 2012 is set aside. CWJC No. 23325 of 2012 is allowed. The order dated 12th November 2012 made by the Commission is quashed and set aside. 13. Interlocutory Application stands disposed of. ?