Allowed

Dharmsheela Devi v. The State Election Commission and Ors.

Patna HC9 Apr 2014CWJC/16861/2013

Case brief

AI extract

What is this about?

The Patna High Court allowed a writ petition challenging the disqualification of a ward councillor. The Court held that the State Election Commission erred in law by disqualifying the petitioner for non-payment of taxes on properties not in her name or that of her spouse/dependants, violating settled election law principles.

What did the court decide?

The order dated 07.08.2013 passed by the respondent Commissioner in Case No. 02 of 2013 is quashed and set aside.

Dharmsheela Devi Vs The State Election Commission and Ors. — Election Law | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16861 of 2013

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====================================================== 1. Dharmsheela Devi Wife Of Ashok Kumar Yadav Resident Of Mohalla - Salimpur Ahara, Ward No. 37, P.O. Kadam Kuan, P.S. Gandhi Maidan, District – Patna. .... .... Petitioner/s Versus 1. The State Election Commission (Municipality), Sone Bhawan, Birchand Patel Path, Through The State Election Commissioner. 2. The State Election Commissioner, the State Election Commission (Municipality), Sone Bhawan, Birchand Patel Path, Patna 3. The Secretary, the State Election Commission (Municipality), Sone Bhawan, Birchand Patel Path, Patna 4. The Additional Secretary, the State Election Commission (Municipality), Sone Bhawan, Birchand Patel Path, Patna 5. The District Magistrate-Cum-District Election Officer (Municipality), Patna, District - Patna 6. The Additional District Magistrate, Patna, District - Patna 7. Jyoti Gupta Daughter Of Panna Lal Gupta Resident Of Mohalla - Daldali, P.O. Kadam Kuan, P.S. Gandhi Maidan, District - Patna 8. Purohit Lal Gupta Son Of Panna Lal Gupta Resident Of Mohalla - Daldali Road (Nav Durga Mandir), Bakarganj, P.O. Kadam Kuan, P.S Gandhi Maidan, District – Patna. 9. The Patna Municipal Corporation through Municipal Commissioner, Patna. .... .... Respondent/s ======================================================

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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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8 09-04-2014 In this writ application filed under Article 226 of the Constitution of India the petitioner has questioned the pregnability of the order dated 7.8.2013 passed by the respondent State Election Commissioner in case No. 02 of 2013 which was communicated to the petitioner under memo no. 1865 dated 08.08.2013 copy whereof has been enclosed at Annexure-8. The said application was preferred under Section 18(2) of the Bihar

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Municipal Act, 2007 ( for short „the Act‟) by respondent no.8 and his wife (respondent no.7). Section 18(2) of the Act confers jurisdiction on the State Election Commission ( for short „the Commission‟) to consider and decide whether a member of a Municipality at any level was disqualified before election or has incurred disqualification after election as mentioned in Sub Section 1 of Section 18. On a question being referred in this regard or even suo motu the State Election Commission can decide such matter after allowing opportunity to the affected parties of being heard.

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Factual matrix of the case may briefly be noted.

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The election was conducted in the year 2012 to elect Ward Councillors of Patna Municipal Corporation ( for short „the Corporation‟) consisting of several wards. The petitioner as well as the respondent no.7 filed nomination(s) to contest from ward no. 37 of the Corporation. The copy of the nomination paper filed by the petitioner has been enclosed at Annexure-1. The same was accepted after scrutiny and the petitioner was allowed to contest the election. It is to be noted here that along with her nomination paper the petitioner had enclosed the certificate dated 16.4.2012 (part of Annexure-1) issued by the Senior Deputy Collector Incharge Revenue, New Capital Circle of the Corporation

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certifying that there is no dues of holding tax or any other dues against the writ petitioner of the respondent Corporation. The petitioner had also enclosed receipt showing payment of holding tax of Rs. 202/- of the holding No. 544/235A. The contestant is also required to disclose the details of his/her property or the property of his/her dependants. After the polls the petitioner was declared elected as the Councillor from ward No. 37 of the Corporation. The respondent no.7 filed an application before the Commission for declaring the petitioner as disqualified to hold the elected post which gave rise to case No. 02 of 2013 on the file of the respondent Commission wherein notice was issued to the writ petitioner. The respondent no.7, in her application, raised a grievance that husband of the writ petitioner owns a residential house in mohalla- Salimpur, Ahra situated within Gandhi Maidan P.S. in the city of Patna which was not declared in the affidavit. It appears that no issue with regard to any default of payment of municipal tax was alleged therein rendering her disqualified. The respondent Commission in the said proceeding directed the District Magistrate- cum- District Election Officer, Municipality to submit his enquiry report about the default of the petitioner for payment of tax of holdings owned by her or her husband to the respondent Corporation. On an enquiry made in this regard the

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respondent District Magistrate submitted a report through the respondent no.6 on 9.1.2013.The respondent no.8 ( husband of respondent no.7) had also filed an application before the respondent Commission for unseating the petitioner under Section 18(1)(K) of the Act alleging therein that the holding no. 243(New)/186(old) situated at Salimpur Ahra stood in the name of Saheb Gope and Ganesh Gope and that Mahesh Gope is grand father of husband of the petitioner. Similarly Holding no. 700 (new)/357(old) situated in the same Mohalla was running in the name of Ganesh Gope who is grand father-in-law of the petitioner. Holding no. 250(new)/191 (old) situated in the same Mohalla was running in the name of Ramchandra Gope who is father- in- law of the petitioner. The copy of the said complaint is enclosed at Annexure-4. Having said so, it was alleged that petitioner‟s husband is/was defaulter in payment of municipal tax in respect of aforesaid holdings and as such she was fit to be declared disqualified to hold the elected post. Copy of the report was made available to the counsel for the petitioner . Earlier to this the petitioner had filed a written statement in respect of the complaint filed by respondent no.7 on entirely different allegations. Upon receipt of the report when the case was considered on 12.2.2013 the petitioner appeared in the case filed

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by the husband of respondent no.7 i.e. respondent no.8 and a request for adjournment was made to file rejoinder . The matter was ultimately considered on 10-07-2013 and the Commission by the impugned order disqualified the petitioner to continue as the Ward Councillor of the Corporation. The order was communicated to the petitioner vide letter dated 8.8.2013. The Commission in the impugned order found that the petitioner had not paid the holding tax of the other holdings/property in particular holding no. 250(new)/191(old) and 700(new)/ 357(old) inasmuch as she had not detailed those holdings in the affidavit filed along with the nomination paper. She was, accordingly, declared defaulter in payment of holding tax and, therefore, ineligible to hold the post in terms of section 18(1)(K) of the Act. The conclusion/finding of the Commission in the impugned order is extracted hereinbelow:-

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“fo}ku ftyk inkf/kdkjh&lg&ftyk fuokZpu inkf/kdkjh ¼uxjikfydk½] iVuk ds i=k a d 79@fuokZ- fnuk a d 19-01-2013 ,o a i=k a d 364@fuokZ- fnuk a d 05-03-2013 ds lkFk l a yXu dk;Zikyd inkf/kdkjh] uwru jkt/kkuh] iVuk ds i=k a d 264 fnuk a d 02-03-2013 ds izfrosnu ls Li"V gksrk gS fd uxjikfydk vke fuokZpu] 2012 es a uke funsZ'ku i= nkf[ky djrs le; gksfYM a x l a -250 ¼u;k½@ 191 ¼iqjkuk½ ,o a 700 ¼u;k½@357 ¼iqjkuk½ ij gksfYM a x VSDl cdk;k Fkk vkSj iwjh lquokbZ es a izfroknh us bl cdk;k jkf'k dh lR;rk dks dksbZ pqukSfr ugh a nh gSA muds }kjk

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uxjikfydk vke fuokZpu] 2012 es a nkf[ky uke funsZ'ku i= ds lkFk l a yXu 'kiFk i= e a s mijksDr nksuks a gksfYM a x ij cdk;s gksfYM a x VSDl dk fooj.k ugh a fn;k x;kA Iyk W V l a -&1014] lfdZy u a -&1] okMZ l a -&2] jdck&18 dM+h Hkwfe ,o a vius llqj ds uke lEifÙk dk Hkh fooj.k ntZ ugh a fd;k x;kA izfroknh }kjk fn;k x;k cpko c;ku Lohdkj djus ;ksX; ugh a ik;k x;k gSA bl izdkj izfroknh Jherh /kEkZ'khyk nsoh }kjk fcgkj uxjikfydk vf/kfu;e]2007 ¼;Fkk l a 'kksf/kr½ dh /kkjk 18 ¼1½¼V½ vUrxZr v;ksX;rk vftZr dj yh xbZ gS rFkk mDr vf/kfu;e dh /kkjk 445 ds mYy a ?ku dh Hkh izfrok a nh nks"kh gS a A

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vr% Jherh /kEkZ'khyk nsoh] ik"kZn] okMZ l a -&37] iVuk uxj fuxe] iVuk dks fcgkj uxjikfydk vf/kfu;e 2007 ¼;Fkk l a 'kksf/kr½ dh /kkjk 18 ¼1½¼V½ ,o a 18¼2½ vUrxZr v;ksX; ?kksf"kr fd;k tkrk gSA bl vkns'k ds lkFk gh ;g in fjDr ekuk tk,xk] ftls fu;ekuqlkj Hkjus dh dkjZokbZ dh tk,xhA”

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Aggrieved by the aforesaid order the present writ

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petition has been filed.

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Heard Mr. Mr. J.S. Arora counsel for the petitioner, counsel for the respondent State Election Commission, Mr. S.P. Srivastava for the respondent no.8 and AC to GA-3 for the State.

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Parties have exchanged pleadings.

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Learned counsel for the petitioner while assailing the impugned order passed by the respondent Commission submits that on perusal of the order it would appear that the petitioner has

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been unseated after being held disqualified on account of breach of the provisions contained in Section 18(1)(K) of the Act. In other words, the petitioner was held defaulter in payment of holding tax which was due and payable by him for the preceding year of the election in respect of these holdings/plots referred therein. In so far as the finding with regard to breach of the provisions contained in Section 445 of the Act it has been contended that for violation, if any thereof, the Commission is not entitled to pass order under Section 18(2) of the Act as the same is not covered by any provisions contained in Section 18(1) of the Act. The Commission, therefore, has only referred to the aforesaid fact but has not relied thereon for passing the impugned order. As a matter of fact, no holding tax whatsoever is due and payable by the petitioner. He, therefore, cannot be held defaulter in payment of holding/municipal tax. The report of the Executive Officer of the Corporation (Annexure A to the counter affidavit of respondent nos. 5 and 6) states that the owner of holding No. 250/191 recorded with the Corporation is Ramchandra Gope and an amount in the sum of Rs. 1891/- was found due /payable to the Corporation as municipal/holding tax. Similarly in respect of holding No. 700/357 Ganesh Gope was recorded as the owner and against him an amount in the sum of Rs. 1245/- was found due and

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payable. In so far as the holding no. 243/186 which stood recorded in the joint names of Saheb Gope and Ganesh Gope no amount was found due until 31.3.2012. Admittedly, those holdings were not running in the name of the petitioner or her husband or her dependants and as such the amount, if any, found due and payable as holdings/municipal tax cannot be said to be an amount due and payable by the petitioner. Even otherwise according to the said report there was no tax outstanding against holding no. 243/186 held by Saheb Gope and Ganesh Gope. So far as the holding no.250/191 held by Ranchandra Gope is concerned, it is submitted that Ramchandra Gope is not family member or relative of the petitioner. Even the Municipal records (Annexure7) would show that the said holding stands in the name of one Vijay Shankar S/o Naresh Mohan Saha having been mutated as such by order dated 21.6.2011 passed in Mutation case no. 147 of 2011-12. In so far as the Holding No. 700/357 standing in the name of Ganesh Gope is concerned, a sum of Rs. 1245/- was found due and payable up to 31.3.2012. This is factually incorrect as the tax of the said holding was already paid for the year 2011-12 on 20.3.2012 as would appear from the tax receipt dated 20-03-2012 (Annexure-6) granted by the respondent Corporation. The aforesaid contention of the petitioner borne out

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from the record has not been controverted by the Corporation which was impleaded as respondent no.9 and was called upon to file counter affidavit. No counter affidavit has been filed by the Corporation denying the aforesaid contention of the petitioner. The order passed by the Commission is, therefore, bad in law based on factually wrong facts rendering it unsustainable in law. Even otherwise the impugned order is not sustainable in law in view of the fact that under Section 18(1)(k) read with Section 445 of the Act Municipal Tax payable by the candidate and/or of his/her spouse or their dependants are only to be taken into account. It is also urged that the impugned order passed by the Commission is also vitiated in law for not affording reasonable opportunity to the petitioner to contest the application in the light of facts noticed above.

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Respondent no.8 has contested the application. Counsel for the respondent no.8 while supporting the impugned order contended that the District Magistrate submitted the report in the light of the report submitted by the Executive Officer of the Corporation wherein it was reported to the Commission that three holdings stood in the name of the family members of the petitioner who had substantial interest therein and Municipal tax was not paid up to the date in respect thereof. It has further been

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submitted that the petitioner had not disclosed details of the aforesaid holdings/plot /land in her affidavit filed along with her nomination paper. The documents showing deposit of tax in respect of one of the holdings is forged and fabricated.

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Learned counsel for the respondent nos. 1 to 4 also supported the impugned order.

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On bare perusal of the impugned order passed by the respondent Commission, relevant findings recorded therein is/are noticed hereinabove, it appears the petitioner was found defaulter in making payment of holding tax of holding nos. 250/191, 700/357 and plot no.1014 ( ward no. 2) standing in the name of father-in-law of the petitioner was not even disclosed. Having found so, the Commission held that the petitioner was disqualified under Section 18(1) (k) of the Act. In case of any violation of the provisions contained in Section 445 of the Act the Commission is not conferred with jurisdiction under Section 18(2) of the Act to annul the election. A prosecution, if permissible could have been lodged or at best a case of rejection of nomination paper of the petitioner could have been made providing a ground for getting the election set aside by filing the election dispute/petition in terms of the relevant provisions of the Act. This Court would, therefore, treat the order as having been passed

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under Section 18(2) of the Act for breach of the conditions spelt out in Section 18(1)(K) thereof. Law is settled in this regard. Validity of the order requires to be judged by the reasons mentioned therein which cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Reference in this regard be made to celebrated judgment passed by Apex Court in the case of

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Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner & Ors. [AIR 1978 SC 851] .

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Section 18(1)(K) of the Act reads as under:-

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“If he has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election is held.”

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It, therefore, clearly flows therefrom that the tax which is only due and payable by him i.e. the contesting candidate requires to be paid at the end of the financial year immediately preceding the year in which the election is held. The words „due by him‟ appearing in Section 18(1)(K) of the Act are, if considered along with Section 445 of the Act, then it would mean and denote the tax which is payable by the candidate, his/her spouse or their dependants. A contesting candidate may have some coparcenary interest in some other property which, however, is not standing in the Municipal records in the name of

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the candidate his/her spouse or their dependant(s) although he or she may have some defined or undefined interest or share therein. In that case can it be said that the phrase „due by him‟ in Section 18(1)(K) will extend to those holding(s) also. In my view, the answer would be in negative. Even going by the facts on record and the conclusion recorded in the impugned order, those holdings were not recorded either in the name of the petitioner or her spouse or their dependants. The father/ father –in-law/grand father/ grand father-in-law in whose name the concerned holdings were recorded against which there is/are certain outstanding dues cannot be treated in law the dues of the holding(s) recorded in the name of the husband or the dependant(s) of the writ petitioner. Respondent Commission, in my view, fell in error in concluding that for non payment of Municipal dues of those holdings the petitioner graduated for being disqualified under Section 18(1)(K) of the Act.

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Even otherwise also from the statements made in the writ petition which have not been disputed by the respondent Corporation, there was no outstanding dues in respect of holding no. 243/186 standing in the name of Saheb Gope and Ganesh Gope and that Municipal tax in respect of holding no. 700/357 standing in the name of Ganesh Gope was paid on 20.3.2012

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(Annexure-6). It has candidly been asserted in the writ petition that Ram Chandra Gope in whose name holding no. 250/191 stood is/was not a family member of the petitioner. The said holding already stood alienated and mutated in the name of one Vijay Shankar S/o Naresh Mohan Saha well before the date of filing her nomination paper. Copy of the mutation order passed by the Corporation to support the aforesaid contention has been enclosed at Annexure-7 which has not been disputed by the respondent Corporation.

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In view of the aforesaid, I am unable to find any substance to uphold the impugned order passed by the respondent Commissioner as contained in Annexure-8.

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Accordingly, the writ petition is allowed. The order dated 07.08.2013 passed by the respondent Commissioner in Case No. 02 of 2013 is quashed and set aside.

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No order as to cost(s).

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(Kishore Kumar Mandal, J)

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Shyam/-

Dharmsheela Devi v. The State Election Commission and Ors.

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Dharmsheela Devi v. The State Election Commission and Ors.

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