State Election Commission has power to disqualify local body poll candidates: Patna HC

In a significant judgement, the Patna High Court has ruled that the State Election Commission has the power to declare a municipal or panchayat candidate in Bihar disqualified before or after being elected.

The poll panel, however, cannot attend to a pure election dispute which may be raised only by filing an election petition, the high court said.

The order was passed by a three-judge bench comprising Chief Justice A P Sahi and Justices Anjana Mishra and Rajiv Ranjan Prasad on Wednesday while deciding references made by different benches.

The benches had raised the question "as to whether the State Election Commission is empowered to dwell upon and declare a candidate elected (to the municipal or Panchayat bodies) as disqualified".

In the order which is more than 200 pages long, the court made it clear that the State Election Commission had powers, as per the Bihar Municipal Act, 2007, and the Bihar Panchayat Raj Act, 2006 to consider a question of pre or post-election disqualification.

The court, however, underscored that after taking cognizance of a complaint against the election of a candidate, suo motu or made by any other person, "the Commission shall proceed to consider the same on the basis of unimpeachable material" only after "it is found that the dispute brought before it is not a purely election dispute".

"Whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified, the Commission would be required to relegate the parties to a competent court/tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo motu or otherwise," the court added.

"We, however, hold that a person pursuing an election petition on the ground of a disqualification that was existing on the date of election of the returned candidate, cannot simultaneously pursue a complaint before the State Election Commission as two parallel statutory remedies cannot be applied and proceeded with at the same time," the court pointed out.

Since the post-election disqualification is not a ground to challenge the election before the election tribunal and a pre-election disqualification may come to the notice of the State Election Commission either suo motu or through a complaint after expiry of the period of limitation for filing the election petition, "we hold that the State Election Commission shall be competent to declare a candidate disqualified by entertaining a complaint or suo-moto acting on the basis of an information even after limitation for filing of an election petition has come to an end," it added.

"We have held that the State Election Commission does have the power to declare a candidate disqualified...but a pure election dispute which may be raised only by filing an election petition cannot be a matter of reference before the State Election Commission," the court said.