MD. AFTAB ANSARI Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dated 25.02.2016 passed by the State Election Commissioner, Jharkhand (respondent no. 2) in Case No. 15 of 2015 whereby the petitioner has been disqualified from holding the post of Ward Councilor of Ward No. 40 of Dhanbad Nagar Nigam with immediate effect and further ordered that the disqualification shall cease after 6 years of the General Municipal Election, 2015.

(2.) The factual background of the case as stated in the writ petition is that the petitioner was elected on the post of Ward Councilor of Ward No. 40, Dhanbad Nagar Nigam, Dhanbad in pursuant of the election conducted for the said post in the year 2015. The respondent no. 3 alongwith others made a complaint against the petitioner before the State Election Commission, Jharkhand alleging inter-alia that the petitioner has concealed the fact about the criminal cases against him at the time of filing of nomination form and has contested the election by changing his name. Pursuant to notice dated 24.08.2015 issued by the respondent no. 1, the petitioner submitted his reply dated 05.10.2015 before the State Election Commission, Jharkhand and denied the allegations levelled against him and also filed documents in support of his contention. The respondent no. 2 vide order dated 25.02016 disqualified the petitioner from holding the post of Councilor of Ward no. 40 of Dhanbad Nagar Nigam with a further direction that the disqualification shall cease after six years of the General Municipal Election, 2015.

(3.) Mr. R.N. Sahay, learned Senior Counsel for the petitioner submits that the State Election Commission had no jurisdiction to proceed with the case and thereby to declare the petitioner disqualified from being Ward Councilor of Ward No. 40 of Dhanbad Municipal Corporation. Mr. Sahay while inviting attention of this Court to section 580 of Jharkhand Municipal Act, 2011 (in short ' the Act, 2011') submits that if the election to an office of a Municipal Corporation is under dispute, the election petition would lie before the Sub-Judge within whose jurisdiction the Municipal Corporation is situated. Mr. Sahay further submits that Sec. 584 of the Act, 2011 deals with the ground for declaring the election to be void. Sub-section (1) of Sec. 584 of the Act, 2011 refers to the prescribed authority for declaring the election to be void and if the same is read with the provision of Sec. 580 of the Act, 2011, the prescribed authority can only be said to be the Sub-Judge of competent jurisdiction. Since the petitioner has been alleged to have adopted corrupt practice, the situation provided in Sec. 584(1)(b) of the Act, 2011 would be applicable and, thus, his candidature would have only been challenged by way of an election petition. Even after the acceptance of the nomination of the petitioner for the post of Ward Councilor, the affected party could have filed an election petition in view of the provisions of Sec. 584(1)(d)(i)(ii)(iv) of the Act, 2011. It is also submitted that Sec. 586 of the Act, 2011 deals with corrupt practice. If the omission on the part of the petitioner in filling up the nomination form is treated to be a corrupt practice, it was under the jurisdiction of the concerned Sub-Judge to adjudicate upon the same in an election petition preferred by the affected person/candidate. The condition of disqualification of Councilor has been provided under Sec. 18 of the Act, 2011. Sec. 18(1)(k) of the Act, 2011 provides one of such conditions that if the councilor has been found guilty of corrupt practice, he would be disqualified as a councilor. However, if the provision of Sec. 587 of the Act, 2011 is simultaneously looked into, it would be apparent that the councilor would be disqualified on the finding of the prescribed authority with regard to commission of the said corrupt practice and since the prescribed authority in this case is the Sub-Judge of its jurisdiction, the State Election Commission could not have assumed jurisdiction, declaring the petitioner disqualified from being Ward Councilor of Ward No. 40 of Dhanbad Municipal Corporation and debarring him for six years. Even as per the mandate of Art. 243(V) of the Constitution of India, since the aforesaid provisions of the Act, 2011 confer jurisdiction upon the Sub-Judge of the competent jurisdiction to try the matters relating to disqualification of Ward Councilor, the impugned order passed by the State Election Commission is without jurisdiction. Moreover, in terms with Art. 243(Z)(G) of the Constitution of India, the election of any municipality cannot be put to question except by way of an election petition presented to such authority in such manner or in terms with any law made by the state legislature. Since the provision seeking challenge to any election has been made under Sec. 580 of the Act, 2011 by way of an election petition, the State Election Commission has no jurisdiction to declare the petitioner disqualified from the election of Ward Council of Dhanabad Municipal Corporation. It is further submitted that the provision of Art. 243 (Z)(G) of the Constitution of India is similar to that of Sec. 583 of the Act, 2011. Since Art. 243(Z)(G) of the Constitution of India and Sec. 583 of the Act, 2011 start with non-obstante clause, these have overriding effect over the other related provisions of the Constitution and the Act, 2011 and thus, there cannot be any other mode to disqualify the petitioner, who has already been elected as Ward Councilor in Municipal Election, 2015.