IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10410 of 2006 Ranjeet Kumar –II, son of Shri Saket Bihari Sharma, resident of village- Bhalwa, P.O. and P.S. Hasua, District- Nawada Versus 1. The State of Bihar, through Secretary, Rural Development Department, Bihar, Patna 2. The District Magistrate, Nawada 3. The District Panchayat Officer, Nawada 4. The Sub-Divisional Officer, Sadar, Sub-Division, Nawada-cum- Returning Officer for Panchayat Election held in 2006 5. The Block Development Officer, Nardiganj Block-cum-Assistant Returning Officer, Nardiganj Block under Nawada District 6. The Bihar State Election Commission, Sone Bhawan, Patna 7. The Commissioner, Bihar State Electio Commission, Sone Bhawan, Patna 8. Ramesh Prasad, son of Hari Kishor Singh, resident of village Nardi Dih, P.O. & P.S. Nardiganj, District-Nawada, elected candidate for Zila Parishad, Nardiganj-II. ----------- For the petitioner:- M/S Bankey Bihari Singh, Sanjay Kumar and Shailendra Prasad, Advocates For Resp. No.8:- M/S S.B.K.Mangalam & Gopal Bohra, Advocates For the State Election Commission:- M/S K.B.Nath & Sanjeev Nikesh,Advocates For the State :- Mr. Awadhesh Kumar Singh, JC to SC 21. ----------- 4. 04.02.2009 Heard learned counsels for Respondent No.8, the State Election Commission and the State of Bihar. The petitioner being aggrieved by the order dated 4.8.2006 passed in case No. 20/06 by the State Election Commission, has approached this Court for quashing the same. The stand of the petitioner is that the respondent no. 8 being a dismissed employee of the Bihar State Co-operative Land Development Bank Limited was disqualified from contesting the election to the post of member of Zila Parishad from Nardiganj-II in the district of Nawadah from which he was subsequently elected. In this regard learned counsel for the petitioner relies upon the provision - 2 - of Section 136(1)(f) of the Bihar Panchayat Raj Act, 2006 which is quoted below:- “136. Disqualification for Membership – (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person – ………. ……….. ……….. (f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service;” It is contended that the Land Development Bank is a Local Authority in terms of the provisions of Section 4(30) of the Bihar and Orissa General Clauses Act, 1917 which is in the following terms:- “4(30) “Local authority” shall mean a Municipal Committee, District Board, or any other authority entrusted (by any Government) with, or legally entitled to, the control or management of a Municipal or local fund:” In support of the said proposition, learned counsel relies upon a decision of the Supreme Court in the case of Union of India and others Vs. R.C. Jain & ors: AIR 1981 SC 951, in para-2 of which the term “Local Authority” as defined in the similar Section 3(31) of the General Clauses Act, 1897 has been considered. Para-2 of the said judgment is quoted below:- “Let us, therefore, concentrate and confine our attention and enquiry to the definition of „Local Authority‟ in Section 3(31) of the General Clauses Act. A proper and careful scrutiny of the language of Section 3(31) suggests that an authority, in order to be a local Authority, must be of like nature and - 3 - character as a Municipal Committee, District Board or Body of Port Commissioners, possessing, therefore, many, if not all, of the distinctive attributes and characteristics of a Municipal Committee, District Board, or Body of Port Commissioner, but, possessing one essential feature, namely, that it is legally entitled to or entrusted by the Government with, the control and management of a municipal or local fund. What then are the distinctive attributes and characteristics, all or many of which a Municipal Committee, District Board or Body of Port Commissioners shares with any other local authority? First, the authorities must have separate legal existence as Corporate bodies. They must not be mere Governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be. Next, they must be entrusted by Statute with such Governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, markets, transportation, social welfare services etc. etc. Broadly we may say that they may be entrusted with the performance of civic duties and functions which would otherwise be Governmental duties and functions. Finally, they must have the power to raise funds for the furtherance of their activities and the fulfillment of their projects by levying taxes, rates, charges, or fees. This may be in addition to moneys provided by Government or obtained by borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority. Based upon the criteria laid down in the above judgment in R.C.Jain‟s case learned counsel has sought to argue that all the said criteria apply in the case of Land Development Bank and - 4 - thus the respondent no. 8 would have to be treated as dismissed from service of a Local Authority and accordingly disqualified for holding the office as a member of the Zila Parishad. It is sought to be argued that the Land Development Bank is a corporate body which is legally independent from the Government and its functionaries are substantially elected by the inhabitants of the area in which it operates i.e., whole of the State of Bihar and it also enjoys sufficient degree of autonomy. It is also contended that it can be entrusted with Governmental functions by bye-law 38 of the Land Development Bank read with Sections 14 and 44(A)(I) of the Act and performs civic duties. It is also stated that under the said provisions it has power to raise and manage its own funds which it does by issuing shares and debentures. For the said reasons, learned counsel argues that the Land Development Bank is a Local Authority. Learned counsel also argues that the respondent no. 8 is a public servant in accordance with what has been laid down by the Apex Court in the cases of State of Punjab Vs. Karnail Singh: (2008) 9 SCC 114 and National Small Industries Corporation Limited Vs. State (NCT of Delhi) and others: (2009) 1 SCC 407. Learned counsel has also sought to rely upon a decision of the Division Bench of this Court in the case of Suo Motu action by the High Court Vs. The State of Bihar & Ors.: 2002 (1) PLJR 495 for the proposition that any person fighting election must come with clean hands and since the petitioner did not disclose the fact of his having been dismissed from service for having committed assault on a manager of the Kodarma Branch of the - 5 - Bank, he was disentitled from contesting the election and liable to be disqualified after contesting the same. Learned counsel for respondent no. 8, on the other hand, submits that in terms of Section 136(1)(f) of the Bihar Panchayat Raj Act, 2006 apart from dismissal from service of a local authority there has to be declaration of disqualification for employment in public service but in the case of the petitioner no such further declaration is contained in the order. It is however, sought to be argued that the Land Development Bank is not a local authority in terms of the definition contained in Section 4(30) of the Bihar & Orissa General Clauses Act and thus there is no question of the case of the respondent no. 8 being covered by the provisions of Section 136(1)(f) of the Panchayat Raj Act. It is also argued by learned counsel for respondent no. 8 that the reliance upon bye-law 38 is not of any avail to the petitioner because it merely provides for the purposes for which loans can be advanced by the Land Development Bank. It is submitted that it is not at all the function of the Land Development Bank to carry out any functions of providing civic amenities, etc. to the residents of any local area rather it is only an institution like any other Bank to provide loans to the agriculturists which loans are ultimately recovered by it like loans disbursed by any other Bank. Learned counsel also sought to argue that in the earlier election held in the year 2000 also the same issue was raised against the respondent No. 8 and the matter was challenged before this Court also by filing CWJC No. 754/2003 but after argument at length - 6 - the writ petition was permitted to be withdrawn by the order dated 29.4.2003 (Annexure-B) with a liberty to raise all points by challenging the final order of the Election Tribunal, but subsequently the said points were not raised. Learned counsel for the State Election Commission submits that the only issue as per the impugned order and the provisions of Section 136(1)(f) of the Panchayat Raj Act, is as to whether the Land Development Bank is a Local Authority or not in terms of Section 4(30) of the Bihar and Orissa General Clauses Act and since evidently in terms of the definition given therein it is not a Local Authority there can be no question of applying the provisions of disqualification to a dismissed employee of such Bank. On a consideration of the aforesaid submissions of the parties, this Court does not find any force in the submission of learned counsel for the petitioner. It is true that the State Election Commission by the impugned order dated 4.8.2006 has held that the Land Development Bank is not a Local Authority and therefore Section 136(1)(f) of the Panchayat Raj Act, 2006 cannot apply to his case since the same applies to the employees of the State Government, Central Government and Local Authorities but he has further stated that such an employee of a co-operative Society registered under the Co- operative Societies Act does not come within the category of employee of Local Authority since he is not a public servant. So far as the finding of the State Election Commission that such employees are not public servant is concerned, - 7 - the same has no relevance to the decision of the present matter since the disqualification as laid down under Section 136(1)(f) of the Act only pertains to a dismissed employee of the Central Government or State Government or a local authority. The said provision does not refer to the issue as to whether such a person is a public servant or not. Hence, the finding in this regard by the State Election Commission is wholly superfluous and irrelevant for the decision of the matter. The only question to be considered is as to whether an employee of the Land Development Bank can be considered an employee of a Local Authority. It is evident from the decision of the Supreme Court in R.C. Jain‟s case (supra), cited by learned counsel for the petitioner, that hardly any of the criteria laid down therein with respect to a Local Authority are satisfied by the Land Development Bank. It is obvious that the Land Development Bank does not function in a defined area rather the said Bank operates throughout the State of Bihar for providing loans to the agriculturists within the State. Its functionaries also are not elected wholly or partly by inhabitants of any area rather in terms of bye-law 29 they are elected from the delegates representing „A‟ class members in accordance with the rules framed by the bye-law 21 (iii). Further, the Land Development Bank does not perform any function and duties as are usually entrusted to Municipal Bodies rather its functions pertain only to advancing loans to the agriculturists. The funds of the Bank also cannot be raised by levying taxes, rate, charges or fees rather, as argued by learned counsel for the petitioner himself, by issuing shares and debentures. It is thus, evident - 8 - that the Land Development Bank can in no sense be considered a Local Authority within the ambit of Section 4(30) of the Bihar and Orissa General Clauses Act and hence an employee of such an organization would not come within the purview of Section 136(1)(f) of the Panchayat Raj Act and no disqualification would attach to him on account of his dismissal by an organization like the Land Development Bank. So far as the question of persons fighting elections coming with clean hands is concerned, it is evident that the legislature in its wisdom has laid down conditions with respect to different classes of persons as to what would disqualify them for the purpose of fighting elections and it is not for this Court to add to such disqualification on the basis of any views or submissions of learned counsel for the petitioner which has not found acceptance with the legislature. It is necessary at this stage to deal with the submission of learned counsel for the respondent No. 8 that even if it were held that there has been dismissal from service of a Local Authority, etc.for misconduct, there ought to be a further declaration regarding disqualification for employment in the public service. It is true that clause (f) of Section 136(1) of the Act has used the said words but by long line of decisions the Apex Court and this Court has pointed out the distinction between dismissal from public service and removal from public service and it has been clearly held that a dismissal entails debarring from future public employment whereas a removal from service does not carry any such consequence. In that view of the - 9 - matter, a mere order of dismissal has to be treated as carrying with it without any specific words being used a declaration regarding disqualification for employment in public service as the same is implied in the use of the term „dismissal from service‟. Thus, in the light of the aforesaid discussions, this Court does not find any merit in the writ petition and it is accordingly dismissed. S.Pandey (Ramesh Kumar Datta, J.)