KISMATI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Amit Srivastava, learned senior counsel appearing for the petitioner, Mr. Abbas Haider, learned S.C.-6 for the State, Mr.Siddarth Shankar Pandey, learned counsel for respondent No.5, Mr. Sanjay Kumar, learned counsel for respondent No.6 and Mr. Ravi Ranjan, learned counsel for the State Election Commission.

(2.) The respondent No.3 in its order dtd. 6/12/2024 disqualified the petitioner from the post of Chief Councillor for violation of Sec. 18(1)(k) read with Sec. 18(2) of the Bihar Municipal Act, 2007. The disqualification of the petitioner was based on the ground that the petitioner was participated in election process for the post of Chief Councillor without paying holding tax for other two properties even though no demand for the same was ever made by the respondent authority to the petitioner. The aforesaid order of the respondent No.3 by which the petitioner has been disqualified for the post in question. The order dtd. 6/12/2024 is arbitrary, illegal and based on without jurisdiction.

(3.) The petitioner filed her nomination paper for the post of Chief Councillor of Nagar Panchayat Mairwa, Siwan on 12/9/2022 in which it was mentioned that the petitioner is own three houses. Before the nomination, the holding tax was paid for one holding registered at House No.46 in Ward No.6, Nagar Panchayat Mairwa, Siwan by the petitioner. The petitioner was elected as Chief Councillor in the Municipal Election and the election member of the Nagar Panchayat Mairwa, Siwan took their oath on 13/1/2023 the holding tax for Holding No.221 and Holding No. 298 was deposited by the petitioner on 12/4/2023. Both the holdings are located in Ward No.12 Holding No.221 is registered in the name of the petitioner's hhusband vide Holding No.298 is registered in the name of the petitioner. On 5/3/2024 a complaint was made by the private respondent before the State Election Commission seeking the removal of the petitioner from the post of Chief Councillor, Nagar Panchayat Mairwa, Siwan on the ground of disqualification under Sec. 18(1)(k) of the Bihar Municipal Act. Learned counsel for the petitioner submits that under Sec. 479(1)(a) and (d) (i) of the Bihar Municipal Act, 2007. There is specific allegation for filing complaint petition under Ss. 476 and 477 of Bihar Municipal Act, 2007. It is well settled principle that when the statute provides for general remedy and also special remedy. The special remedy has to be preferred/prevailed as such the election petition should have been entertained and adjudicated the said complaint dtd. 5/3/2024 of the private respondent. Learned counsel for the petitioner submits that on 12/4/2023, the petitioner voluntarily deposited the holding tax for the remaining two holdings i.e. House No.221 (in the name of her husband) and House No.298 (in the name of the petitioner herself) before filing of the complaint filed by the private respondent. The private respondent has filed a complaint petition on 5/3/2024 but before filing of the aforesaid complaint the petitioner had already deposited the holding tax for the remaining two holdings i.e. House No.221 and House No.298 respectively. Apart from that, there was no prior notice or demand was ever issued by the municipal authorities for payment of remaining two holdings i.e. House No.221 and House No.298. From a bare perusal of the complaint petition of the private respondent, the private respondent has alleged in the complaint petition that the petitioner had not paid the holding tax for House Nos.221 and 298 and also alleged that the petitioner had not disclosed the deposit of said holding taxes in her nomination papers. The complaint against the petitioner was filed much later on 5/3/2024 i.e. nearly eleven months after the voluntary payment was already made. The appropriate remedy available to the complainant (respondent No.6) was to file an election petition under Ss. 476 and 477 read with Sec. 479(1)(a) and (d) (I) of the Bihar Municipal Act, 2007.