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2020 DIGILAW 443 (JHR)

Sunil Kumar Paswan v. State of Jharkhand

2020-03-04

RAJESH SHANKAR

body2020
ORDER : 1. The present writ petition has been filed for quashing the letter no.52 dated 20th January, 2020 issued under the signature of the Secretary, State Election Commission, Jharkhand in purported exercise of power conferred under rule 112(1) of the Jharkhand Nagar Palika Nirwachan Evam Chunao Yachika Niyamawali, 2012 (hereinafter to the referred as ‘the Rules, 2012’), whereby the petitioner has been directed to appear before the State Election Commissioner, Jharkhand for hearing on the complaint lodged against him. 2. Learned counsel for the petitioner submits that the petitioner has been elected as Mayor of Giridih Municipal Corporation in the year 2018. The respondent no.2 issued the impugned letter dated 20th January, 2020 to the petitioner, informing inter alia that a complaint was lodged against him by some organization with a direction on him to remain present on the date of hearing of the complaint with supporting evidence and documents. The aforesaid impugned letter has been assailed on the ground that the respondent no.2 has no jurisdiction to entertain any complaint challenging the election of the petitioner as Mayor of Giridih Municipal Corporation. It is further submitted that earlier in view of the provisions enshrined in Section 18 of the Jharkhand Municipal Act, 2011 (hereinafter to be referred to as ‘the Act, 2011’) the power to entertain the complaint was with the respondent no.2, but now by virtue of amendment carried out in sub-section (2) of Section 18 of the Act, 2011 by Jharkhand Municipal (Amendment) Act, 2017 (Jharkhand Act No.01 of 2018)], the power to entertain a complaint for setting aside the election of a member of municipal body has been taken away from the respondent no.2 and such power has been conferred to the concerned department. As per the said amendment, the role of the respondent no.2 is merely advisory in nature. Thus, pursuant to the said amendment, the respondent no.2 has no jurisdiction to issue such notice to the petitioner. It is also submitted that the petitioner has not suppressed any fact at the time of contesting the election for the post of Mayor of Giridih Municipal Corporation. He belongs to scheduled castes category and is a permanent resident of Jharkhand and in this regard a residential certificate has also been issued to him. It is also submitted that the petitioner has not suppressed any fact at the time of contesting the election for the post of Mayor of Giridih Municipal Corporation. He belongs to scheduled castes category and is a permanent resident of Jharkhand and in this regard a residential certificate has also been issued to him. It is, however, submitted by the learned counsel for the petitioner that the issue with regard to issuance of caste certificate to the petitioner is subjudiced before this Court in W.P.(C) No.3734 of 2019. The election of any returned candidate, who is elected by the mandate of people cannot be questioned save and except by way of filing election petition under rule 116 of the Rules, 2012. As such, the issuance of the impugned notice dated 20th January, 2020 by the respondent no.2 is not only arbitrary but the same is also without jurisdiction and a glaring example of colourable exercise of power. 3. On the contrary, learned counsel for the respondent no.2 submits that the power conferred under Section 18 of the Act, 2011 to the department and the power conferred under rule 112 of the Rules, 2012 to the respondent no.2 are different and distinct which operate completely in different fields. There is no inconsistency between both the aforesaid provisions and as such mere amendment carried out in sub-section (2) of Section 18 of the Act, 2011 does not invalidate the power of the respondent no.2 under rule 112 of the Rules, 2012. It is also submitted that the petitioner has sufficient opportunity to defend himself before the respondent no.2 and as such the present writ petition is not maintainable. 4. Heard learned counsel for the parties and perused the materials available on record. The main submission of learned counsel for the petitioner is that in view of the amendment carried out in sub-section (2) of Section 18 of the Act, 2011 by virtue of Amendment Act No.01 of 2018, the respondent no.2 has no jurisdiction to entertain any complaint, questioning the election of the petitioner as Mayor of Giridih Municipal Corporation. 5. It would thus be relevant to examine the pre-amended and post-amended provisions of Section 18 of the Act, 2011. 5. It would thus be relevant to examine the pre-amended and post-amended provisions of Section 18 of the Act, 2011. On perusal of the pre-amended provision of Section 18 of the Act, 2011, it would be evident that for any of the grounds for disqualification mentioned in sub-section (1), the respondent no.2 was conferred with the power to take decision either on the reference or on a complaint made by any person or on its own motion after providing sufficient opportunity to the affected party. However, by virtue of Amendment Act No.01 of 2018, sub-section (2) of Section 18 of the Act, 2011 has been amended according to which if at any stage a question arises that any member of the municipality before or after its election is disqualified in view of sub-section (1), then the final decision for disqualification of such member shall be taken by the “Department” provided that the suggestion of the respondent no.2 will be taken before publication of the final notification with a further proviso that if the respondent no.2 does not send any information within fifteen days, it will be deemed that it has no objection in the matter. 6. Thus, so far as the grounds mentioned in sub-section (1) of Section 18 of the Act, 2011 for disqualification of any elected member of municipal body, the power to take final decision on disqualification has now been vested with the department. 7. On bare perusal of rule 112 of the Rules, 2012, it would be evident that the said rule provides two grounds for disqualification of any elected member by the respondent no.2- (i) any person has been election by giving false certificate or evidence on the reserved seat of Scheduled Castes, Scheduled Tribes or Backward Classes or Women, who did not belong to that caste or class; and (ii) a person has been elected by furnishing wrong information which he knows to be false or has the reasons to believe the same to be false or has knowingly concealed any information in his affidavit or nomination form which he was required to furnish. 8. The grounds for disqualification so enumerated in rule 112 of the Rules, 2012 are thus distinct from what has been enumerated in sub-section (1) of Section 18 of the Act, 2011. 8. The grounds for disqualification so enumerated in rule 112 of the Rules, 2012 are thus distinct from what has been enumerated in sub-section (1) of Section 18 of the Act, 2011. While amending sub-section (2) of Section 18 of the Act, 2011, the State Government must be aware of existence of rule 112 of the Rules 2012 which empowers the respondent no.2 to disqualify an elected member for the grounds mentioned in rule 112 itself. However, despite amendment carried out in sub-section (2) of Section 18 of the Act, 2011, the State Government did not choose to amend the provision of Rule 112 of the Rules, 2012. As such, I do not find any merit in the contention of the learned counsel for the petitioner that in view of Amendment Act No.01 of 2018, the power of the respondent no.2 conferred under rule 112 of the Rules, 2012 has been taken away. 9. In the case of Commissioner of Customs (Import), Mumbai Vs. Dilip Kumar & Co. & Ors., reported in (2018)9 SCC 1 , the Hon’ble Supreme Court has held as under :- “21. The well-settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the legislature. 22. In [Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907 ], it was held that if the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.” 10. In the aforesaid case, the Hon’ble Supreme Court has specifically held that if the word of the statute is clear and unambiguous, the same should be expounded in its natural sense and it is not proper for the Court to adopt any other hypothetical construction. 11. In the aforesaid case, the Hon’ble Supreme Court has specifically held that if the word of the statute is clear and unambiguous, the same should be expounded in its natural sense and it is not proper for the Court to adopt any other hypothetical construction. 11. In the present case, rule 112 of the Rules, 2012 explicitly empowers the respondent no.2 to disqualify any member of the municipal body on the grounds enumerated therein and, therefore, there is no reason to make any other construction of the said rule otherwise than what is apparent from plain reading of the same. 12. It has also been contended by the learned counsel for the petitioner that the election of the petitioner at best can be challenged by way of filing an election petition in the Court prescribed under Section 580 of the Act, 2011 read with rule 116 of the Rules, 2012 and all other forums are excluded from entertaining the election dispute arising in relation to a municipal body. 13. I have perused the provisions of Sections 580, 583 and 584 of the Act, 2011, which read as under:- “S. 580. Election Petition- (1) The election to any office of a municipality shall not be called in question except by an election petition as prescribed: Provided that if an election to any office of a Nagar Panchyat is under dispute, the election petition shall lie before such Munsif within whose jurisdiction such Nagar Panchyat is situated and if the election to any office of Municipal Council and Municipal Corporation is under dispute, the election petition shall lie before such Sub-Judge within whose jurisdiction such municipality is situated. 583. Bar to interference by courts in electoral matters- Notwithstanding anything contained in this Act – (a) the validity of any law relating to the delimitation of wards or the allotment of seats to such wards, made or purporting to be made under Article 243 ZA of the Constitution of India shall not be called in question in any court; (b) no election to any municipality shall be called in question except by an election petition presented to the prescribed authority under this Act. 584. 584. Grounds for declaring election to be void – (1) Subject to the provisions of sub-section (2) if the prescribed authority is of opinion – (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a councillor under this Act; or - (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected – (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. (2) If in the opinion of the prescribed authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied - (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; the prescribed authority may decide that the election of the returned candidate is not void.” 14. I have also perused rule 116 of the Rules, 2012, which provides that an application under Section 580 of the Act, 2011 shall be presented before the competent court within thirty days of the result of the election. 15. However, so far as rule 112 of the rules, 2012 is concerned, the same provides two specific grounds as mentioned hereinabove under which the membership of an elected candidate can be put to an end by the respondent no.2. 15. However, so far as rule 112 of the rules, 2012 is concerned, the same provides two specific grounds as mentioned hereinabove under which the membership of an elected candidate can be put to an end by the respondent no.2. Sub-rule (4) of the Rules, 2012 provides that while conducting enquiry, the State Election Commission will exercise the power conferred to the Civil Court under Civil Procedure Code, 1908 as also the provisions of Indian Evidence Act, 1972 are applicable while hearing the matter. Rule 112 of the Rules, 2012 is, thus, complete in itself and is not dependent upon any other provision of either the Act, 2011 or the Rules, 2012. 16. This Court in the case of Md. Aftab Ansari Vs. The State Election Commission, Jharkhand, through its Secretary & Ors., reported in 2018(3) JBCJ 453 , while dealing with the scope of power of the State Election Commission, Jharkhand under pre-amended provisions of section 18(2) of the Act, 2011 vis-à-vis the power of the Court to hear election petition under Section 584 of the Act, 2011, has held that both the provisions are parallel and independent to each other. The relevant paragraph of the said judgment is quoted herein below:- “13. Both Section 18 and 584 of the Act, 2011 speak that if it is found that the elected member is guilty of corrupt practice, then he may be declared disqualified but for the disqualification enumerated in Section 18, the power has been conferred to the State Election Commission under sub-section 2 of section 18 itself which contains non-obstante clause. Thus, it cannot be said that question as to the disqualification can only be determined by the Munsif or Sub-Judge as the case may be. The basic distinction between Section 580 and section 18(2) of the Act, 2011 is that the State Election Commission while exercising power under Section 18(2) of the Act, 2011 can declare a person, before or after the election is conducted, as disqualified on the conditions enumerated in sub-section(1) of Section 18 of the Act, 2011, whereas Section 580 of the Act, 2011 confers power to the appropriate court to declare the election of a candidate null and void on the conditions mentioned in the relevant provisions. The power conferred under Section 18(2) of the Act, 2011 to the State Election Commission and the power to try an election petition by the appropriate Court under Section 580 of the Act, 2011 operate parallel and independent of each other. However, if the State Election Commission assumes power under Section 18(2) of the Act, 2011 with regard to the question of disqualification of a Councilor, the same cannot be put to question merely because some of the said powers of the State Election Commission declaring a member to be disqualified as a Councilor is also one of the grounds for declaring the election to be null and void by way of an election petition.” 17. In the aforesaid case, this Court has declined to accept the challenge to the exercise of power by the State Election Commission, Jharkhand as was conferred to it then under sub-section (2) of Section 18 of the Act, 2011. It has specifically been held that the power under Section 18 of the Act, 2011 for disqualification of a member of the municipal body and the power of the court conferred under Section 580 of the Act, 2011 to entertain any election dispute operate parallel and independent to each other. 18. In the case of Ashok Shankarrao Chavan Vs. Madhavrao Kinhalkar & Ors., reported in (2014)7 SCC 99 , the factual matrix of the case was that complaints were lodged against a successful candidate before the Election Commission alleging that such candidate had not included the expenditure incurred on the publication of the paid news in his account of election expenses as was required under Section 77 of the Representation of People Act, 1951 (hereinafter to be referred as ‘the Act, 1951’). One of the complainants also filed an election petition for the same allegation before the High Court as an Election Tribunal. The Election Tribunal (the High Court) dismissed the said petition and the said order was confirmed up to the Hon’ble Supreme Court. The candidate raised preliminary objection before the Election Commission from holding an enquiry under Section 10-A of the Act, 1951. The said objection was rejected by the Election Commission, which was upheld by the Delhi High Court. When the matter travelled to the Hon’ble Supreme Court, their Lordships while dismissing the appeal preferred by the elected candidate held as under:- “70. The said objection was rejected by the Election Commission, which was upheld by the Delhi High Court. When the matter travelled to the Hon’ble Supreme Court, their Lordships while dismissing the appeal preferred by the elected candidate held as under:- “70. As compared to the nature of proceedings of an election petition, when we examine the scope and jurisdiction of the Election Commission under Section 10-A, at the outset it must be stated that the power and jurisdiction therein does not clothe the Election Commission to deal with the successful election of the candidate concerned. In other words, exercising power under Section 10-A, the Election Commission cannot set aside the election of a successful candidate. Section 10-A talks of only an order of disqualification that can be passed by an Election Commission. Further, such disqualification order can be passed for failure to lodge an account of election expenses and such failure was within the time and in the manner required by or under the Act. Therefore, the scope of an election petition to be tried by an Election Tribunal (the High Court) and the scope of an order of disqualification to be passed under Section 10-A are entirely different and it must be stated that one does not conflict with the other. The very same allegation of a corrupt practice may form part of the failure to lodge the account in the manner required by or under the Act as has been specified in Sections 77 and 78 of the Act in an election petition. Therefore, simply because such an issue may form part of a corrupt practice as provided under Section 123(6) and the failure may be in contravention of Section 78 of the Act, it may also be one of the grounds in challenging the successful election of a candidate concerned in an election petition. On that score, it cannot be held that the area of disqualification to be considered by the Election Commission, under Section 10-A, is fully covered in an election petition and thereby, the power and jurisdiction of the Election Commission would stand excluded. It cannot therefore, be contended that once the election petition having been rejected for want of particulars, which order has become final, a complaint under Section 10-A cannot be pursued. We, therefore, reject the said contention raised on behalf of the appellant.” 19. It cannot therefore, be contended that once the election petition having been rejected for want of particulars, which order has become final, a complaint under Section 10-A cannot be pursued. We, therefore, reject the said contention raised on behalf of the appellant.” 19. In the aforesaid case, the Hon’ble Supreme Court, after analysing the power of the Election Commission under Section 10-A of the Act, 1951 for making an enquiry so as to disqualify any person for failure to lodge an account of election expenses vis-à-vis the power of Election Tribunal to decide the election dispute, has held that Article 329(b) of the Constitution of India specifically stipulates that no election can be questioned except by way of an election petition and the power of the Election Commission under Section 10-A does not empower the Election Commission to set aside the election of a successful candidate. On the other hand, Section 10-A of the Act, 1951 speaks only for an order of disqualification which can be passed for failure to lodge an account of election expenses and such failure was within the time and in the manner required by or under the Act. Thus, the scope of both these provisions is entirely different. Simply because such an issue may form part of a corrupt practice which may also be one of the grounds for challenging the successful election of a candidate concerned in an election petition on that score, it cannot be said that the area of disqualification to be considered by the Election Commission under Section 10-A of the Act, 1951 is fully covered in an election petition and thereby the power and jurisdiction of the Election Commission would stand excluded. 20. Thus, in my view even if an election is called in question by filing an election petition, the same does not make any other provision whereby the Election Commission is empowered to make an enquiry and to disqualify an elected candidate for the alleged default committed by him, to be redundant. Moreover, the petitioner has not challenged the vires of rule 112 of the Rules, 2012, which explicitly provides the grounds for disqualification under which the power is to be exercised by the respondent no.2. Moreover, the petitioner has not challenged the vires of rule 112 of the Rules, 2012, which explicitly provides the grounds for disqualification under which the power is to be exercised by the respondent no.2. So far as the contention of the learned counsel for the petitioner touching the merit of the case is concerned, I am of the opinion that the same cannot be entertained at this stage, as the respondent no.2 has merely issued a notice to the petitioner and, thus, he has an ample opportunity to place the grounds in his defence before the respondent no.2. 21. In view of the aforesaid discussions, I find no merit in the present writ petition and the same is, accordingly, dismissed.