SYED MOHAMMAD JAWAID EQBAL Vs. STATE OF BIHAR

JUDGEMENT

(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 Section 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 Section 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 Article 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. .