Friday, July 11, 2025

Justice Rajesh Kumar Verma sets aside order of Bihar State Election Commissioner

In Kismati Devi vs. The State of Bihar through its Additional Chief Secretary cum Principal Secretary, Urban Development and Housing Department, Bihar & Ors. (2025), Justice Rajesh Kumar Verma of Patna High Court delivered a 21-page long judgement dated June 26, 2025 setting aside the order dated December 6, 2024 by Bihar State Election Commission disqualifying the the petitioner from the post of Chief Councillor. He allowed the writ application. 

The State Election Commission in its order dated December 6, 2024 disqualified Kismati Devi, the petitioner from the post of Chief Councillor for violation of Section 18(1)(k) read with Section 18(2) of the Bihar Municipal Act, 2007. The disqualification of the petitioner was based on the ground that the petitioner was participated in election process for the post of Chief Councillor without paying holding tax for other two properties even though no demand for the same was ever made by the respondent authority to the petitioner. The Court found that the State Election Commission's order dated by which the petitioner was arbitrary, illegal and based on without jurisdiction. It noted that the petitioner was not served any demand notice, hence, the order is in complete violation of principles of natural justice.

The petitioner relied upon para-12 of the judgment in the case of C.M.D., City Union Bank Limited Vs. R. Chandramohan, reported in AIR 2023 SC 1762, questions can't be agitated when substantive proceeding is same statue, that substantive procedure has to be followed.

Under Section 18(1)(k) of the Bihar Municipal Act, 2007, provides that a person is disqualified 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." The word "due" implies a formal assessment and demand from the authority concerned. Since no such demand was ever made against the petitioner, the taxes cannot be considered to be “due”. The Petitioner has acted in bonafide and voluntarily deposited the holding tax for the remaining two holdings on 12.04.2023, well before the complaint dated 05.03.2024. Although the State Election Commission is empowered under section 18(2)(k) of the Bihar Municipal Act, 2007 to entertain the Complaint date 05.03.2024 as the said complaint is based upon not filing nomination paper in accordance with law. The only remedy available to respondent No.6 with the Election Petition.

The Court observed: "7. The State Election Commission has exceeded its jurisdiction by deciding a disputed question of fact without referring the matter to a competent tribunal, as required under law... "

It observed: "the Commission not only initiated proceedings based on the complaint but also conducted a full-fledged enquiry by collecting evidence from various authorities. It sought reports from the Sub-Divisional Officer and the District Officer, assessed those reports, made factual determinations, and acted upon them to the detriment of the petitioner. By doing so, the Commission went beyond its statutory mandate under the Bihar Municipal Act, 2007, and effectively assumed the role of an enquiry agent. Such conduct amounts to a colourable exercise of power and violates the basic principles of adjudication."

The counsel for the petitioner has relied upon the judgment of the Full Bench of this Hon'ble Court in the case of Rajani Kumari v. State of Bihar, LPA No. 566 of 2017, since reported in 2019 (4) PJLR 673 (Para 181 and 184), has held that “where a disputed question of fact arises, the Commission must refer the matter to a competent forum and not decide it itself.” 

The petitioner's counsel relied upon the judgment of this Court in the case of Purohit Lal Gupta vs. Dharamsheela Devi, passed in LPA 812 of 2014 in CWJC 16861 of 2013, has held that “disqualification under Section 18(1) must be based on clear, undisputed material and cannot be determined summarily where facts are contentious”.

The counsel for the petitioner has also relied upon the judgment in the case of State Election Commission vs. Manager Prasad in LPA No. 443 of 2014 in CWJC No.17493 of 2013, it was held that "unless an assessment of property tax is done and demand raised, the Commission cannot conclude that taxes were concealed or unpaid". 

The Interpretation of "taxes due" has been Judicially clarified to mean only those taxes which are either demanded or assessed and not hypothetical dues under Rule 13 of the Bihar Municipal Property Tax Rules, 2013.

The  petitioner also relied upon para-17 of the judgment in the case of Karim Uddin Barbhuiya vs. Aminul Haque Laskar, reported in AIR 2024 SC 2193.



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