IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.393 of 2010 LAL BABU S/O ISHAK MIAN R/O GODOWN TOLA, WARD NO.- 12, P.O.+P.S.- SUGAULI, DISTT.- EAST CHAMPARAN. ---------- Respondent/Appellant Versus 1. THE STATE ELECTION COMMISSION THROUGH STATE ELECTION COMMISSIONER SONE BHAWAN, BIRCHAD PATEL PATH, PATNA. 2. THE STATE ELECTION COMMISSIONER STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 3. THE SECRETARY STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. --------- Respondent/Respondent 1st Set 4. THE EXECUTIVE OFFICER NAGAR PANCHAYAT SUGAULI, P.O.+P.S.- SUGAULI, DISTT.- EAST CHAMPARAN, MOTIHARI. ---------- Respondent/Respondent 2nd Set 5. SHAKUNTALA DEVI W/O SRI RAM NARAYAN SAHNI R/O WARD NO.- 13, P.O.+P.S.- SUGAULI, DISTT.- EAST CHAMPARAN. 6. NASIMA KHATOON W/O MD. IMAM R/O WARD NO.- 18, P.O.+P.S.- SUGAULI, DISTT.- EAST CHAMPARAN. 7. NOORBANO KHATOON W/O LATE MUJAHAR MIAN R/O WARD NO.- 12, P.O.+P.S.- SUGAULI, DISTT.- EAST CHAMPARAN. ------------- Petitioners/Respondent 3rd Set ----------- For the Appellant :- Mr. Y.V. Giri, Sr. Adv. Mr. Rajiv Giri, Adv. For the Respondents :- Mr. S.B.K. Manglam, Adv. Mr. R.S. Pradhan, Sr. Adv. ----------- PRESENT: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MIHIR KUMAR JHA J U D G M E N T (28.04.2010) 2 As per Mihir Kumar Jha, J. Heard Mr. Y.V. Giri, learned senior counsel along with Mr. Rajiv Giri, learned counsel for the appellant and Mr. S.B.K. Manglam, learned counsel for the contesting respondent writ petitioners as also Sri Rama Sankar Pradhan, learned Senior Counsel on behalf of the State Election Commission. 2. In this intra-court appeal, the appellant has assailed an order dated 4.2.2010 passed by the learned single Judge allowing the writ petition of the respondent writ petitioners by quashing an order dated 27.7.2009 passed by the Election State Commission disqualifying them to be the members of the Municipality on the ground that they had been absent from three consecutive meetings. 3. Mr. Giri, learned senior counsel, while assailing the aforementioned order of the learned single Judge, has submitted that once there was an admitted fact that the three respondent writ petitioners had absented themselves from three consecutive meetings of the Municipality, they had automatically incurred disqualification in terms of Section 18(1)(n) of the Bihar Municipal Act, 2007 (hereinafter to be referred to as „the Act‟) and as such, this Court ought to have not gone into the nitty grity of mode and manner of service of the notices on such meetings personally on the respondent writ petitioners. He has further submitted that the order of the State Election Commissioner, being an speaking order with elaborate reasons, 3 the same ought to have not been interfered by this Court in exercise of power under Article 226 of the Constitution of India as this Court was only required to go into the decision making process and not the merits of the decision. In this context, he has also submitted that the principles of natural justice and the requirement of Section 18(2) of the Act were fully complied with, inasmuch as, the respondent writ petitioners were given show-cause notice and they had also filed their reply as well as supplementary show cause reply which were also taken into consideration by the State Election Commissioner while passing the impugned order of termination of their membership of the municipality. 4. Per contra, Mr. S.B.K. Manglam, learned counsel for the respondent writ petitioners while supporting the order of the learned single Judge has submitted that the power vested under Section 18(1)(n) read with Section 18(2) of the Act as with regard to terminating the membership of a municipality on the ground of his or her being absent from three consecutive meetings of the municipality having a drastic power as with regard to the removal of an elected public representative, the same has to be always exercised in a sparing manner and only when the requirement of the statute as with regard to the disqualification of continuing as a member of municipality is fulfilled in all respect. He has further submitted that the findings of the learned single Judge in this regard that notices of the three meetings of the 4 municipality were never served personally on the respondent writ petitioners and the claim of the authorities of service of such notice on minor family members could not have been held to be a sufficient proof of the service of notice of convening of the meetings of the municipality on the respondent writ petitioners. In this regard, he has also submitted that the specific defence of the respondent writ petitioners in their show cause reply and supplementary show cause reply were not at all gone into much less considered by the State Election Commissioner in course of passing the impugned order. In this context, he has also placed reliance on the judgment of the Apex Court in the case of Tarlochan Dev Sharma Vs. State of Punjab reported in 2001(6)SCC 260 as also in the case of Sharda Kailash Mittal Vs. State of Madhya Pradesh & Ors. reported in 2010(2)SCC 319. 5. In order to appreciate the aforementioned submissions, it would be necessary to take into consideration the statutory provisions as with regard to the disqualification and/or termination of membership of an elected member of the municipality. Section 19 of the Act which enumerates the disqualification of a person either seeking election as a member of the municipality or for holding the post of member of the municipality after election in a very clear terms lays down that an elected member of the municipality after election could still become disqualified for holding the post as a member of municipality in certain contingency as enumerated under 5 Section 18(d)(m) of the Act. For the sake of clarity, Section 18 as a whole is quoted hereinbelow:- “18. Disqualifications .-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as member of the Municipality if such person- (a) is not a citizen of India; (b) is so disqualified by or under any law, for the time being in force, for the purpose of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty one years of age, if he has attained the age of twenty one years; (c) is in the service of the Central or State Government or any local Authority; (d) is in the service of any such institution receiving aids from the Central or State Government or any local authority. (e) has been adjudged by a competent court to be of unsound mind; (f) has been dismissed from the service of the Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service. (g) has been sentenced by a criminal court, whether within or without India, to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for keeping good behaviour under section -109 or section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; or absconding being an accused in a criminal case for more than six months. (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profit under the Municipality. (j) has been found guilty of corrupt practices; Provided that on being found guilty of corrupt practices, the disqualification shall cease after 6(six) years of general election; 6 (k) 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. (l) has been wilfully omits or refuses to perform his duties and functions or abuses the power vested in him or is found to be guilty of misconduct in the discharge or his duties or become physically or mentally incapacitated for performing his duties. (m) If he has more than two living children:- provided that a person having more than two children on or upto the expiry of one year of the commencement of the Act, shall not be deemed to be disqualified. (n) Has been absent from three consecutive meetings or sitting of the Municipality without having previously obtained permission from the councilors at a meeting. (2) If any question arises as to whether a Member of a Municipality at any level was before election or has become after election subject to any of the disqualifications mentioned in sub-section (1), the question shall be referred for the decision of State Election Commission. The matter of disqualification may be brought to the notice of the State Election Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo-muto cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard. (3) If a person, who is chosen as a member of a Municipality, is or becomes a member of the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council; or is or becomes a member of a Panchayat or Mukhia or Sarpanch then within fifteen days from the date of commencement of the term of office of a member of the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council or a member of a Panchayat or Mukhia or Sarpanch, his seat in the Municipality shall become vacant unless he has previously resigned his seat in the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council or Panchayat, as the case may be.” 6. From reading of the aforementioned disqualification clause, it thus 7 becomes clear that even an elected member of municipality can be disqualified if he or she either willfully omits or refuse to perform his or her duties and function or abuses the power vested in him/or or is found to be guilty of misconduct in the discharge of his or her duties or becomes physically or mentally incapacitated for performing his or her duties. Additionally, such elected member of the municipality can still be disqualified only on the ground that he or she has been absenting from three consecutive meetings or sittings of the municipality without being previously obtained permission from the counselor at a meeting. 7. As is apparent from the aforementioned provisions under Section 18(1) and (n), the removal of a member of the municipality after his or her election by way of disqualification is of a very severe and serious consequences and therefore, the requirement of those provisions have to be fulfilled in letters and spirit and it is for this purpose that the independent body of State Election Commission has been vested with power to decide the qualification of an elected member of the municipality. 8. In the present case, as the action of the State Election Commission is one under Section 18(1)(n), the charge of the three respondent writ petitioners of being absent from three consecutive meetings of the municipality had to be proved beyond reasonable doubt, inasmuch as, such absence from the meetings can only be held to be willful if the concerned member of the 8 municipality had been given prior information/notice of such meetings. In other words such disqualification would not be incurred by a member if he/she had no notice of the meeting and/or such absence was not on three consecutive dates or that such absence was duly condoned by the counselors at the meeting. Moreover, these different aspects are also in terms of Section 18(2) required to be gone into in the process of deciding such matter after “allowing sufficient opportunity to the affected parties of being heard”. 9. In the present case, it was the appellant, a busy body, who had filed an application on 27th of May, 2009 before the State Election Commission wherein it was alleged that the respondent writ petitioners were absent in three consecutive meetings of the municipality dated 15.7.2008, 28.8.2008 and 28.11.2008 and as such they had incurred disqualification under Section 18(1)(n) of the Act. It appears that on receipt of the application filed by the appellant, a notice was issued by the Secretary to the State Election Commission on 28.5.2009 to the respondent writ petitioners enclosing the application of the appellant by treating the same to be charge against them. In the show-cause reply filed by the respondent writ petitioners, they had categorically asserted in paragraph no.16 that no notice of such meeting of Municipal Board was served on them and therefore, there was no question of their being disqualified in terms of Section 18(1)(n) of the Act. A further plea was taken by all of them in their combined show-cause reply and 9 supplementary show-cause reply that as a matter of fact, the claim of service of notice was also wholly unsustainable, inasmuch as, none of the notices of the meeting were personally served on any of the three respondent writ petitioners and the claim of service of notice on some family members including minors in fact would not amount to valid service of notice in terms of Section 376 of the Bihar Municipal Act. 10. The Election Commission appears to have decided the whole thing within a span of actual one date of hearing, inasmuch as, in course of preliminary hearing on 1.7.2009, 6.7.2009 and 20.7.2009 when specific objections were raised by the respondent writ petitioners as with regard to the absence of valid service of notice on them, the State Election Commissioner had passed an order for supplying the actual proof of service of notice on them and thereafter, the whole proceeding was decided on 27.7.2009 itself i.e. within a space of seven days from the order of supplying of document relating to service of notice on them. 11. The manner in which the petition of the appellant was treated to be the charge against the respondent writ petitioners and they were not even provided with the basic materials to defend themselves, at least till 27.7.2009 would go to show that they were not provided with sufficient opportunity of being heard before passing of the impugned order. This aspect of the matter becomes also clear from the complaint filed by the appellant before the State 10 Election Commission wherein not a word was said as to the manner of service of notice on the respondent writ petitioners and actually when they (respondent writ petitioners) had challenged that no notice of the meeting of the three dates were served on them, some document with regard to the service of notice was brought on record which by themselves do not inspire confidence. The service of notice normally may not be of any fatal consequence, inasmuch as, the presence of members in the meeting can be achieved by a fixed number of quorum but when a members is said to be disqualified on account of his/her being absent on three consecutive meetings of the municipality, the person alleging it or the authority holding so will be required to prove it beyond reasonable doubt that despite service of notice on the member concerned, he or she remained absent on three consecutive dates. 12. This aspect of the matter with regard to mode of service of notice has been in fact gone into by the learned single Judge in the impugned order in a graphic manner wherein it has been held as follows:- “--------It is not in dispute that this supplementary show cause was indeed filed. In the supplementary show cause, it was specifically averred that so far as meeting dated 28.11.2008 is concerned, they had no valid notice. If this fact be correct then the very foundation for an action under Section 18 (1) (n) vanishes. In support of the said assertion in the supplementary show cause, grounds are clearly mentioned. In respect of one, it is pointed out that the notice is shown to have been served on Izhar Alam, who is 11 years old nephew. In another case, the notice was served on Ajit Kumar, who is a nephew living separately. So far as Tabasum Ara is concerned, there is specific denial that lady is an adult member of the family. The notice is thus invalidly 11 served and, as such, there cannot be infraction and Section 18 (1) (n) would not apply. With reference to the order of the State Election Commission, it is submitted that nowhere these issues have at all been noticed, much less discussed. All that is discussed is that notice was issued 72 hours prior to the date of meeting. Firstly, I must notice that in terms of Section 377 (1) (d), unlike other statutory provisions, a notice served on an adult male member of the family is a valid service of notice. If the respondents state that notice was validly served then it was for them to establish that the three said persons were the adult male member of the family. Having not said anywhere that being the position and there being categorical denial even before the authority in this regards, it cannot be said that Section 377 (1) (d) is complied with, as such, notices cannot be deemed to be validly served. Thus, if this be the finding of the Court, which it is, then Section 18 (1) (n) has no application and cannot be invoked. The order, thus, cannot be sustained in law and has to be quashed as such. Here, I may also notice one other contention. Section 49 of the Act provides for issuance of notice 72 hours before the date and time of meeting. Mr. Mangalam rightly submitted that the true import and meaning of this provision is that notice must be served at least 72 hours before the meeting is convened. Why this Court feel that Mr. Mangalam is right, can be easily illustrated. If mere issuance of notice was sufficient, then it really serves no purpose because a person attending a meeting is supposed to comply with the notice for meeting only when he is served a notice. The answer is no. In such a situation would mere issuance of notice be enough? Why 72 hours prior notice is necessary is that the Municipal Councilors are not entitled to remuneration unlike members of legislatures. They have to give up their jobs or their work for which they have to take time to arrange. If on the last moment when they have their urgent private work they are told to turn up for meeting they may not even be in the town. They are not obliged under any law for the time being to be in the town 24 hours, 7 days a week and 365 days a year. They have better things to do also. It is in this view of the matter that legislature has provided for a 72 hours notice. The State Election Authority has proceeded on a totally tangent, which is incorrect. Mere issuance of notice is not enough unless it is shown that it is duly served at least 72 hours prior to the meeting.------” 12 13. This Court also on perusal of materials on record would affirm the aforesaid findings of the learned single Judge, inasmuch as, there was no cogent material before the State Election Commission for holding service of notice on the respondent writ petitioners so as to make them disqualified for not attending the three consecutive meetings of the municipality. As a matter of fact, the whole approach of the State Election Commission in this regard to say the least seems to be perfunctory, inasmuch as, in the impugned order, all that has been said in this regard is that the plea in defence of non-service of notice on the respondent writ petitioner does not inspire confidence. The State Election Commissioner in fact seems to have ignored the most vital aspect that from none of the records produced by the Executive Officer, the service of notice of the three meetings personally on the respondent writ petitioners was proved and in fact service of some notice on their minor family members could hardly be taken to be a valid mode of service of notice of the meetings of the municipality so as to make them incur liability of becoming disqualified as the elected members of municipality on he ground of their being absent from three consecutive meetings. 14. The mode and manner of service of notice under the Act having been specified under Section 377(1)(d) provides interalia:- 377.Service of notices etc.- (1) Every notice, bill, summons, order, requisition or other document required or authorized by this Act or the rules or the regulations made thereunder to be served or issued by or on behalf of the 13 Municipality or by any of the municipal authorities referred to in section 20, or by any officer or other employee of the Municipality, shall, save as otherwise provided in this Act or the rules or the regulations made thereunder, be deemed to be duly served,- (a) ----------------- (b) ----------------- (c) ----------------- (d) in any other case, if the document is addressed to the person to be served, and (i) is given or tendered to him, or (ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the municipal area, or is given or tendered to some adult member of his family, or is affixed on some conspicuous part of the land or building, if any, to which it relates, or (iii) is sent by registered post to such person,” 15. The Election Commission was thus required to go into the aspect as to whether such notice was given or tendered to the respondent writ petitioners or its house service was effected in the manner prescribed or was sent by registered post, inasmuch as, Sub-section 2 of Section 377 of the Act clearly lays down with regard to the manner of service of notice in the following terms:- “377(2) Any document, which is required or authorized to be served on the owner or the occupier of any land or building, may be addressed to “the owner” or “the occupier”, as the case may be, of such land or building (naming such land or building) without further name or description, and shall be deemed to be duly served,- (a) if the document so addressed is sent or delivered in accordance with clause (d) of sub-section (1), or (b) if the document or a copy thereof so addressed, is delivered to 14 some person on the land or the building or, where there is no such person to whom it can be delivered, is affixed to some conspicuous part of such land or building.” 16. Thus it is more than clear from the materials on record that there was no proof of service of notice in the manner prescribed on the respondent writ petitioner and yet the State Election Commission and its Commissioner had chosen to disqualify the respondent writ petitioners, the elected members of the municipality by terminating their membership and discontinuing them to continue as a member of Municipality on mere ipsi dixit of the appellant. Such order of the State Election Commissioner was definitely neither in conformity with the provisions made under Section 18(2) of the Act nor could be said to have fulfilled the requirement of proving the charge under Section 18(1)(n) of the Act and was thus rightly interfered by the learned single Judge by allowing the writ petition. 17. The consequence of an elected member being removed by way of disqualification is virtually calling in question the peoples‟ mandate and therefore exercise of such power can be made in the rare of the rarest case and that too if the statutory requirement for the same is completely fulfilled in all respect. The Apex Court in fact while examining