IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.72 of 2009 AKHILESH KUMAR SINGH, son of Basudev Singh, Ward Councillor, Ward No.2, Nagar Panchayat, Bodh Gaya, P.S. Bodh Gaya, District Gaya … Appellant-Petitioner Versus 1. THE STATE OF BIHAR 2. State Election Commissioner, Bihar, Patna 3. District Magistrate-cum- District Election Officer (Municipality), Gaya 4. Chairman, Nagar Panchayat, Bodh Gaya 5. Executive Officer, Nagar Panchayat, Bodh Gaya … Respondents-Respondents. ----------- For the Appellants : Mr. Yogesh Chandra Verma, Sr. Adv. with Mr. Indradeo Prasad, Advocate. For the State Election : Mr. R.S. Pradhan, Sr. Advocate with Commission Mr. Rajeev Lochan, Advocate. For the State : Mr. Vikas Kumar, Advocate. ------------ PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR.JUSTICE MIHIR KUMAR JHA O R D E R (21.05.2010) As per Mihir Kumar Jha,J. Heard counsel for the parties. 2. In this intra-Court appeal, the appellant-writ petitioner has assailed the order of the learned Single Judge dated 18.12.2008 in C.W.J.C.No. 16055/2008 whereby and whereunder his writ application assailing the order dated 15.10.2008 passed by the State Election Commissioner, Bihar disqualifying him from holding the post of Ward Councillor of Bodh Gaya Nagar Panchayat 2 under section 18(1)(n) of the Bihar Municipal Act, 2007 (hereinafter referred to as ‘the Act’) has been dismissed. 3. Inasmuch as a subsequent event has made this appeal infructuous, we are not really called upon to decide the question involved in the main writ application. Suffice to note that a proceeding under section 18(n) of the Act was initiated against the appellant- writ petitioner on the ground that he had remained absent from the meeting of Nagar Panchayat on five dates, namely, 9.12.2007, 14.12.2007, 8.12.2007, 20.2.2008 and 27.2.2008 which automatically rendered him disqualified from holding the post as a Ward Councillor of Bodh Gaya Nagar Panchayat. The appellant- writ petitioner had filed his reply on 25.7.2008 to the show cause notice dated 18.7.2008 and the State Election Commission by its order dated 8.9.2008 had again given opportunity to the appellant- writ petitioner to explain his case. It is only thereafter that the State Election Commissioner in the light of the stand taken by the petitioner as also perusing the records of the case has passed the impugned order on 15.10.2008 holding that the petitioner had remained absent from the meeting of the Nagar 3 Panchayat on 9.12.2007, 14.12.2007, 8.2.2008 and 20.2.2008 without obtaining prior leave from the Nagar Panchayat and as such, he had incurred the disqualification clause 18(1)(n) of the Act. 4. It is to be noted that on 6.11.2008 the appellant- writ petitioner had filed the connected writ application, C.W.J.C.No. 16055/2008 but before the writ petition could be finally disposed of an election programme for filling up the vacancy caused on account of disqualification of the appellant- writ petitioner had been sought to be notified by the Election Commission. In the fresh election process the appellant- writ petitioner had filed his nomination along with Gunjan Devi, Abhiranjan Kumar, Sunil Kumar and Mahendra Pratap Singh and his nomination was rejected by an order of the Returning Officer dated 3.12.2008, whereafter Mahendra Pratap Singh has been elected on the vacancy caused on the post of Ward Councillor on account of the order of disqualification passed by the State Election Commissioner against the appellant- writ petitioner. 5. The appellant- writ petitioner, however, did not choose to reveal the aforesaid subsequent event as with 4 regard to notifying the fresh election programme his filing of nomination and its rejection on or after 3.12.2008 all of which had taken place during the pendency of the writ petition, which came to be dismissed by the impugned order dated 18.12.1008 of the learned Single Judge upholding the order of disqualification passed against the appellant- writ petitioner by the State Election Commissioner. In this context it has to be noted that the appellant- writ petitioner had filed supplementary affidavits at every stage of pendency of the connected writ petition including also on 12.12.2008 bringing on record the order of the State Election Commissioner dated 30.7.2008 to 5.9.2008 (Pir Mohammad vs. Naziya Anzum) for supporting is own case but he did not choose to reveal this fact before the learned Single Judge that a fresh election programme had already been notified in which he had also submitted his nomination paper which was rejected on 3.12.2008 as has now been projected by him by filing I.A.No. 5233/2009 with a prayer to implead the said Mahendra Pratap Singh as respondent no.6 for setting aside his election on the ground that the 5 nomination paper of the appellant- writ petitioner was wrongly rejected on an invalid ground. 6. Thus, in the opinion of this Court the suppression of a most material fact by the appellant- writ petitioner by itself is sufficient to uphold the impugned order of the learned Single Judge dismissing his writ application. It is well settled that a writ petition can be dismissed on the ground of suppression of material facts alone irrespective of its merits. Reference in this connection may be made to the judgment of the Apex Court in the case of State of Haryana vs. Karnal Distillery, (1977) 2 SCC 431, as also in the case of Vijay Kumar vs. State of Haryana, (1983) 3 SCC 333, Welcom Hostel vs. State of A.P., (1983) 4 SCC 575, Agricultural & Process Food Products vs. Oswal Agro Furane, (1996) 4 SCC 297, State of Punjab vs. Sarav Preet, (2002) 9 SCC 601, Union of India vs. Muneesh Suneja, (2001) 3 SCC 92 and All India State Bank Officers Federation vs. Union of India, 1990 Supp. SCC 336, wherein it has been held that: “The petitioner, who invokes extraordinary jurisdiction of the High Court under Article 226 of the Constitution must come with clean hands, must not suppress any material or 6 relevant fact from the court, must refrain from making misleading statements and from giving incorrect information to the court, Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining orders by suppression, misinterpretation or misstatement of facts. The petitioner should not be allowed to play „hide and seek‟ and to abuse the process of the court inasmuch as it is not open to him to „pick and choose‟ his own facts to determine in advance what is relevant and material or to omit to mention all complete and full facts and then claim that he has acted bona fide even though he has made untrue statements, omitted to inform the court of all the proceedings and the orders passed at different stages in the proceedings up to date and claim indulgence. The petitioner must disclose all the facts having a bearing of the relief sought without mental reservation.” 7. It has to be also kept in mind that this Court while admitting this appeal by an order dated 9.2.2009 had refused to grant stay of the operation of the impugned order passed by the learned Single Judge and therefore, it has to be held that the election of the said 7 Mahendra Prasad Singh is a fate accompli and by the conduct of the appellant writ petitioner of participating the fresh election process he has also waived his right in challenging the earlier order of his disqualification passed by the State Election Commissioner dated 15.10.2008 which was the subject matter of the connected writ petition. 8. It is well settled that the result of any election has to be assailed in an election petition even on the ground of rejection of nomination paper on an invalid ground. The appellant- writ petitioner, therefore, cannot be permitted to implead the said Mahendra Pratap Singh for setting aside either the order of rejection of his own nomination paper or assailing the election of Mahendra Pratap Singh, inasmuch as Rule 102 of the Bihar Municipal Election Rules, 2007 completely prohibits calling any election in question save and except by an election petition under the aforesaid rules. For the sake of clarity Rule 102 of the Bihar Municipal Election Rules, 2007 is quoted hereinbelow: “102. Election petitions.- No election to the office of the Municipal Councillor, Chief Councillor or Deputy Chief Councillor under 8 these rules shall be called in question except by an election petition presented in accordance with this part.” 9. Added to it when the appellant- writ petitioner had himself voluntarily participated in the by-election against the post of Ward Councillor on the vacancy caused by his disqualification which was subject matter of the connected writ petition, he must have deemed to have waived his right to challenge such order of disqualification. 10. This aspect of the matter has been gone into by us in a recent judgment dated 20th April, 2010 in L.P.A.No. 525/2010 (Sanjay Kumar Mahajan vs. State of Bihar & ors.), wherein this Court had held as follows: 10. We note with profit that there is no dispute with regard to the factual matrix. The gravamen of the matter is whether the doctrine of waiver gets attracted and if the same principle is invoked whether the erstwhile Chief Councillor can be allowed to continue after losing in the election. In Sanjay Singh Som, 2002(3) PLJR 589, Aftab Alam, J, (as his Lordship then was) , while dealing with a similar situation has held as follows: “8 Even if the election was held disregarding 9 the petitioner‟s request there was no compulsion for him to take part in the election. Had the petitioner not participated in the election of 6.5.2002 or even if he had participated in the election putting it clearly on the record that his participation was under protest and without prejudice to his claim and subject to the result of his writ petition in the High Court, the matter might have been different. But the petitioner did not do any such thing. He participated in the election unconditionally, with his eyes open and took a chance of winning the election. Now having been defeated in that election he may not be allowed to question the earlier resolution removing him from the office of Pramukh. 9. Mr. Sharma further submitted that the subsequent development will not disentitle the petitioner to the relief claimed in this writ petition and in support of his submission he relied upon a constitution bench decision of the Supreme Court in The United Commercial Bank Limited Vs. Their Workmen, A.I.R. 1951 SC 230. That case was under the Industrial Disputes Act and on an entirely different set of facts and I see no application of that decision to this case. 10. In the facts and circumstances stated 10 above, any interference by this Court in the petitioner‟s favour will give a very wrong message to the public. To a layman it would appear that taking advantage of some loop- hole in the law the petitioner was able to persuade the court to reinstate him in the office of Pramukh even though he lost the election in full public gaze in the meeting of 6.5.2002.” 11. In Nirmala Singh and another, 2006(1) PLJR 129, the learned Single Judge while dealing with the similar fact situation, has expressed the view as follows:- “Be that as it may, the meeting was convened pursuant to the notice as aforesaid. At the meeting the petitioners were removed from the posts of Pramukh as well as Uppramukh. Neither in the requisition, nor in the notice, any reason in support of the motion had been mentioned, which appears to be a requirement of law. However, for that reason the petitioners did not suffer any prejudice inasmuch, none of the petitioners attended the meeting. After the meeting was held and they were removed, again a meeting was held for the purpose of supplying the vacancy caused by such removal and both the petitioners participated in the said meeting proceeding on the basis that the same was a 11 valid and legal meeting. While the petitioner no.1 participated in the meeting, the petitioner no.2 even offered himself for one of the posts for which election was to be held. In such a situation, if I interfere either with the requisition or with the notice or with the meeting being the subject matter of challenge in the instant writ petition, that would be travesty of justice and would permit the petitioner to have the status restored despite having had participated in the meeting by which with the mandate of the majority the status has been altered.” 12. In Smt. Shamshad Khatun, 2010(1) PLJR 929, a Division Bench while dealing with the concept of acquiescence and waiver after referring the decisions in Shalimar Tar Products Ltd. vs. H.C. Sharma, ( 1988 ) 1 SCC 70 and Pulin Behari Lal Vs. Mahadeo Dutta & Ors., ( 1993) 1 SCC 629, Bibi Amna Khatun & Ors. Vs. Zahir Hussain & Anr., AIR 1981 Patna 1(FB), Krishna Bahadur Vs. Purna Theatre ( 2004) 8 SCC 229, Babulal Badriprasad Varma Vrs. Surat Municipal Corpn., (2008) 12 SCC 401, Jaswantsingh Mathurasingh & Anr. Vs. Ahmedabad Municipal Corporation, 1992 Suppl. (1) SCC 5 and Krishna Lal Vs. State of J & K ( 1994) 4 SCC 422 Vellayan 12 Chettiar vs. Government of the Province of Madras, AIR 1947 PC 197; Bhagchand Dagadusa Vs. Secretary of State for India in Council, 54 IA 338; Dhirendra Nath Gorai Vs. Shudhir Chandra Ghosh, AIR 1964 SC 1300; Lachoo Mal Vs. Radhey Shyam, AIR 1971 SC 2213 and Smt. Bhulin Dewangan Vs. State of M.P. & Ors., 2000(4) M.P.H.T. 69 ( FB) has expressed that: “21- Applying the aforesaid principle to the facts of the present case there can be no room for doubt that the right could be waived by the elected candidate and she has done so by her express conduct. Quite a part from the above this Court cannot be oblivious of the fact that the appellant had participated in the meeting by taking a chance and 12 members voted against her. It is also apt to note all the members had been served and they had participated. The requisite majority had voted against her. Ergo, there is no justification or warrant to interfere in the proceeding of No Confidence Motion in exercise of the extraordinary and equitable jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.” 13 11. Thus, this Court without going into the merits of the order of the learned Single Judge would hold that the petitioner’s own conduct of participating in the election process on the post of Ward Councillor against the vacancy caused of his own disqualification had made the writ application infructuous, inasmuch as he had waived his right to assail the order of the State Election Commissioner on account of his subsequent conduct of participating in the fresh election process. 12. Thus, following the ratio of Sanjay Kumar Mahajan (supra) this Court has no option but to dismiss this appeal though on a different ground. There would be, however, no order as to costs. I agree. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 21st May, 2010 N.A.F.R./Surendra.