IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15215 of 2009 HIRA LAL SAH S/O LATE LAKHAN SAH VILL- KASAP, P.O. KASAP, P.S. UDWANT NAGAR, DISTT. BHOJPUR AT ARA ……PETITIONER Versus 1. THE STATE ELECTION COMMISSION (PANCHAYAT) null SONE BHAWAN, 3RD FLOOR, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONER 2. THE STATE ELECTION COMMISSIONER THE STATE ELECTION COMMISSION (PANCHAYAT), SONE BHAWAN, 3RD FLOOR, BIRCHAND PATEL PATH, PATNA 3. THE SECRETARY THE STATE ELECTION COMMISSION (PANCHAYAT), SONE BHAWAN, 3RD FLOOR, BIRCHAND PATEL PATH, PATNA 4. THE DISTRICT MAGISTRATE BHOJPUR AT ARA, DISTT. BHOJPUR AT ARA 5. THE BLOCK DEVELOPMENT OFFICER UDWANT NAGAR, DISTT. BHOJPUR AT ARA. …….RESPONDENTS ----------- 02. 19.11.2009 Petitioner was admittedly Mukhiya of Gram Panchayat Kasap in the block Udwant Nagar, Bhojpur at Ara. While he was functioning as a Mukhiya he was convicted in a criminal case and sentenced to undergo rigorous imprisonment for one year. He was thereafter granted provisional bail by the Trial Court. This fact having been brought to the notice of the State Election Commission, the Election Commission, in view of Section 136(1)(g) of the Panchayat Raj Act, 2006 disqualified the petitioner. Petitioner was then taken up before learned Sessions Judge, Bhojpur at Ara wherein petitioner prays for suspension of sentence and also for bail. Learned Sessions Judge, Bhojpur at Ara by his order dated 27.10.2009 passed in Criminal Appeal No. 75 of 2009, - 2 - after hearing the petitioner who was appellant as well as the intervener suspended implementation and execution of the order of the learned lower Court till disposal of the Criminal Appeal. It is submitted by Mr. Mangalam, learned counsel appearing on behalf of the petitioner that thereafter he had moved before the State Election Commission for being reinstated and/or recalling the earlier order disqualifying him but the Election Commission has stated that it has no power to restore once it has disqualified a person. Mr. Rajendra Nath Singh, learned counsel seeks to intervene in this matter. He submits that it is his client who had moved the Election Commission for disqualifying the petitioner and as such he may be heard. He has been heard. He submits that this Court should order for early disposal of Criminal Appeal but should not order reinstatement of petitioner. Having considered the matter, in my view, the matter can be disposed off at this stage itself as there is no dispute in fact. By virtue of Section 136(1)(g), once a person is sentenced in any criminal offence not being a political offence and is sentenced to undergo rigorous imprisonment in excess of six months, he is disqualified to - 3 - be a member and hence even he is elected as a Mukhia he seizes to be function like a Mukhiya. This decision has to be taken by the State Election Commission who may act suo-motu also. Thus far there is no difficulty. Once the sentence is suspended in appeal the fact is that there is no sentence. If there is no sentence then Section 136(1)(g) does not come into play. The moment sentence is suspended the disqualification gets erased. Now we come to the contention that the State Election Commission though has a power to disqualify, it has no power to recall its own order. Effectively reinstating a person so disqualified by it, its elementary principle of law says that where a statute confers a power to appoint, it implies power to remove. Similarly where a power to remove is conferred that would automatically within its power to recall its earlier order. The power to pass an order in itself is a power to recall that order. It can not be said that power to destroy is there but power to restore is not there that would be a contradiction in terms. Such an argument was also advanced in several cases but have been constantly negatived by all Courts including the Apex Court. I may only refer to a recent decision in the case of Navjot Singh Sindhu versus the State of Punjab and another since reported in 2007(2) SCC 574 wherein such a situation had arisen and was considered under - 4 - pari-materia provision of the Representation of Peoples Act, 1951. In view of the aforesaid facts I have no option but to hold that once the sentence was suspended by the Court, so far as suspension is concerned, petitioner does not suffer for any disqualification and the disqualification as ordered by the State Election Commission would stand obliterated. Petitioner constantly would be reinstated as Mukhiya and would function as such till by law removed. The writ petition stands allowed. Shageer (Navaniti Prasad Singh, J)