IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4027 of 2010 Mulchand Golchha, son of Late Gobardhan Das Golchha, resident of Ward No.4, P.O. & P.S.-Forbesgaj, District-Araria. -Petitioner. VERSUS 1. The State of Bihar, through the Secretary, Panchayat Raj, New Secretariat, Patna. 2. The State Election Commission, Sone Bhavan, 3rd Floor, Birchand Patel Patna, through the Secretary. 3. The State Election Commissioner, Sone Bhavan, 3rd Floor, Birchand Patel Patna. 4. The District Magistrate, Araria. 5. The Sub Divisional Officer, Forbesganj, District-Araria. 6. Shri Umesh Kumar, son of Satya Narayan Yadav, Ward No.1, Mela Road, P.O. & P.S.-Forbesgaj, District-Araria. -Respondents. ----------- Counsel for the Petitioner : Mr. Suraj Samdarshi. Mr. Sajal Kumar Sinha. Counsel for the Commission : Mr. R.S. Pradhan, Sr. Adv. Mr. Sanjeev Nikesh. Counsel for the State : Mr. Ansur Rahman, A.C. to G.P.-6. ------------ 02 09.03.2010 The petitioner was a Ward Councillor of Nagar Parishad, Forbesganj, Araria. By this writ application, he challenges the order of the State Election Commission, by which he has been declared disqualified in terms of Section 18(1)(n) and Section 18(2) of the Bihar Municipal Act, 2007, for having failed to attend three consecutive meetings of the Nagar Parishad. Heard learned counsels for the petitioner, State Election Commission and the State, with their consent, the writ application is being disposed of at this stage itself. Learned counsel for the petitioner has raised simple issues which had involved disputed questions of facts. He - 2 - asserts that the consequences of the action taken by the State Election Commission (hereinafter referred to as Commission) are grave, inasmuch as, a Councillor duly elected is disqualified for the entire period. That being so, the conditions for disqualifications and the procedure therein must be strictly followed. Here, it is pointed out with reference to the order of the Commission that when the petitioner took the plea that notice of meeting was not validly served upon him in terms of Section 49 of the Act, the Commission holds that on an earlier occasion another person had received his notice, pursuant to which, he appeared in the meeting. It would, thus, be deemed as per Commission that that person is authorized agent to receive notice on behalf of the petitioner. On behalf of petitioner, it is also submitted that this assumption, as made by the Commission, has no legal foundation nor is it factually correct. The other person who had received the notice is husband of another Councillor. It has never been petitioner’s case that in earlier meeting notice was validly served and it is on basis of that notice he participated in the meeting. He knew of the meeting and participated. The assumption drawn by the Commission that only because of service of notice he participated is, thus, factually incorrect nor law authorizes such an assumption. In my view, a reference to Section 49 of the Act would show as to who are the persons and on whom notices can - 3 - be validly served. Husband of another Councillor, even though, living in the neighbourhood, does not fall under any of the categories of person competent to receive notice. If the Nagar Parishad sought to serve notice by service on third person, they did so and on their own peril the notice is for the benefit of the Ward Councillor and it is he who has right of waiver. There cannot be a presumption or assumption of waiver by a third person. Thus, if there was no valid service of notice on the petitioner, then he cannot be faulted for being absent from the said meeting. If that be so then petitioner cannot be said to be absent from three consecutive meetings and, thus the condition precedent for Section 18(1)(n) read with Section 18(2) of the Act is not fulfilled. Petitioner can thus not be disqualified. Before parting, I would also notice one important issue. Petitioner is said to have been absent on 28.06.2008, 31.07.2008 & 25.09.2008, but the action to disqualify him is initiated by notice dated 11.01.2010. Having permitted the Councillor to participate in subsequent meetings for almost one and half years, this clearly smacks of arbitrariness and shows lack of bona fide. If the disqualification, as contemplated under Section 18(1)(n) read with Section 18(2) is automatic and mechanical, as submitted on behalf of the Commission, then the action must also come immediately thereafter and not almost one and half years thereafter. The very fact that the compliant on basis of which Commission decided to proceed was dated - 4 - 15.10.2009, shows it was actuated more by malice than by bona fide. The Commission must keep this in mind that the disqualification is not a weapon in hand of an opposition or the Commission to be used as and when found to be used at leisure. Thus, on these facts alone, without going into other issues, the writ application has to be allowed and the disqualification of the petitioner from the primary membership of the Nagar Parishad, as held by the Commission, is set aside. As the order is being passed in presence of the Counsels for the State and the Commission, it would be their responsibility to communicate to the District Authorities so that there is no impediment upon the petitioner in contesting election of the Nagar Parishad, which is scheduled to be held tomorrow. With the aforesaid observations and directions, the writ application is allowed. Trivedi (Navaniti Prasad Singh, J.)