Jharkhand High Court
Chars Pahan vs The State Of Jharkhand on 26 September, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1068 of 2021
Chars Pahan ... ... Petitioners
Versus
1. The State of Jharkhand
2. Additional Secretary-cum-Inquiry Officer, Urban Development and
Housing Department, Government of Jharkhand, Ranchi
3. The Secretary, Chief Election Officer, Jharkhand State Election
Commission, Ranchi
4. District Election Officer-cum-Deputy Commissioner, Khunti
5. Election Returning Officer-cum-Sub-Divisional Officer, Khunti
6. Barika Munda ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. S.K. Vishwakarma, Advocate
For the Respondent-State : Mr. Nehru Mahto, AC to GP-IV
For Election Commission of India:Ms. Madhu Priya, AC to
Dr. Ashok Kumar Singh, Advocate
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Order No. 09 Dated: 26.09.2022
Learned counsel for the petitioner is permitted to change
the nomenclature of the respondent no. 6 as "Barika Munda".
The present writ petition has been filed for quashing letter
no. 627 dated 19.02.2021 (Annexure-3 to the writ petition) issued by
the respondent no. 2 - Additional Secretary-cum-Inquiry Officer,
Urban Development and Housing Department, Government of
Jharkhand as, according to the petitioner, the same is without
jurisdiction keeping in view the letter no. 83/Pan. dated 20.02.2020
(Annexure-2 to the writ petition) issued by the respondent no. 4,
wherein it has been clearly observed that the petitioner may file an
election petition under Section 580 of the Jharkhand Municipal Act,
2011 (hereinafter referred to as "the Act, 2011") in the court of
Munsiff, Khunti.
2. Learned counsel for the petitioner submits that the
impugned letter dated 19.02.2021 issued by the respondent no. 2 is
completely without jurisdiction as any matter with respect to
disqualification of the Ward Councillor has to be raised by way of
filing an election petition under Section 580 of the Act, 2011 on the
grounds mentioned in Section 584 of the said Act. Learned counsel
for the petitioner refers to letter dated 20.02.2020 issued by the
respondent no. 4 and submits that on a complaint filed by the
respondent no. 6 for taking appropriate action against the petitioner
with respect to allegedly furnishing false information in his
nomination form, the respondent no. 4 informed the respondent no.
6 vide the said letter that for disposal of the matter raised by him, he
may prefer an election petition under Section 580 of the Act, 2011 in
the court of Munsiff, Khunti, which is the competent authority to hear
the same. It is thus submitted by learned counsel for the petitioner
that if at all the respondent no. 6 is aggrieved with election of the
petitioner as Ward Councillor, Ward No. 5, Khunti Nagar Panchayat in
Municipal Election - 2018, he should file an election petition under
Section 580 of the said Act instead of filing a complaint before the
respondent no. 2 in pursuance of which the impugned letter dated
19.02.2021 has been issued to the petitioner directing him to appear
before him on 26.02.2021 at 1:00 p.m. Learned counsel for the
petitioner, on instruction, submits that no effective step has been
taken by the respondent no. 2 in the matter subsequent to issuance
of the letter dated 19.02.2021.
3. Mr. Nehru Mahto, AC to GP-IV appearing on behalf of the
State respondents, submits that the issue with respect to exercise of
powers under Section 18(2) and Section 580 of the Act, 2011 has
already been set at rest by this Court holding inter alia that both the
powers operate parallel and independent to each other. Hence,
issuance of letter dated 19.02.2021 by the respondent no. 2 to the
petitioner is legal and justified.
4. Heard learned counsel for the parties and perused the
content of the writ petition. The issue raised in the present writ
petition first fell for consideration of this Court in the case of "Md.
Aftab Ansari Vs. The State Election Commission, Jharkhand &
Ors." reported in 2018 (2) JBCJ 453, wherein it was held as
under:
"13. Both Section 18 and 584 of the Act, 2011 speak
that if it is found that the elected member is guilty of
corrupt practice, then he may be declared disqualified
but for the disqualification enumerated in Section 18,
the power has been conferred to the State Election
Commission under sub-section 2 of section 18 itself
which contains non-obstante clause. Thus, it cannot
be said that question as to the disqualification can
only be determined by the Munsif or Sub-Judge as the
case may be. The basic distinction between Section
580 and section 18(2) of the Act, 2011 is that the
State Election Commission while exercising power
under Section 18(2) of the Act, 2011 can declare a
person, before or after the election is conducted, as
disqualified on the conditions enumerated in sub-
section(1) of Section 18 of the Act, 2011, whereas
Section 580 of the Act, 2011 confers power to the
appropriate court to declare the election of a
candidate null and void on the conditions mentioned
in the relevant provisions. The power conferred under
Section 18(2) of the Act, 2011 to the State Election
Commission and the power to try an election petition
by the appropriate Court under Section 580 of the Act,
2011 operate parallel and independent of each other.
However, if the State Election Commission assumes
power under Section 18(2) of the Act, 2011 with
regard to the question of disqualification of a
Councilor, the same cannot be put to question merely
because some of the said powers of the State Election
Commission declaring a member to be disqualified as
a Councilor is also one of the grounds for declaring
the election to be null and void by way of an election
petition."
5. The said judgment rendered by this Court was
subsequently affirmed by learned Division Bench in L.P.A No. 377 of
2018. Subsequently, similar matter came up for consideration of this
Court in the case of "Ved Prakash Singh Vs. The State of
Jharkhand & Ors.", [W.P.(C) No. 5616 of 2021] wherein, after
considering the earlier judgment rendered in the case of "Md. Aftab
Ansari" (supra), it was held that power conferred under Section
18(2) of the Act, 2011 to the State Election Commission and the
power to try an election petition by the appropriate court under
Section 580 of the Act, 2011 operate parallel and independent of
each other. It was, however, observed that Section 18(2) under
Chapter 3 of the Act, 2011 was subsequently amended by the State
legislature vide Jharkhand Municipal (Amendment) Act, 2017 notified
on 19.01.2018 and the power of disqualification earlier given to the
State Election Commission relating to the allegations as mentioned
under Section 18(1) was conferred to the Urban Development and
Housing Department, Government of Jharkhand.
6. Considering that the issue with respect to exercising
respective power/jurisdiction under Section 580 and Section 18(2) of
the Act, 2011 by the appropriate court as well as by the Government
is no more res-integra, issuance of the impugned letter dated
19.02.2021 by the respondent no. 2 calling upon the petitioner to
appear in pursuance of complaint made by the respondent no. 6
seeking disqualification of the petitioner as Ward Councillor, Ward No.
5, Khunti Nagar Panchayat, cannot be said to be without jurisdiction.
7. The writ petition is accordingly dismissed.
(Rajesh Shankar, J.)
Manish
