SUNIL KUMAR PASWAN Vs. STATE OF JHARKHAND

JUDGEMENT

(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, 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.