Patna High Court
Kismati Devi vs The State Of Bihar on 26 June, 2025
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19245 of 2024
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Kismati Devi W/O Krishna Prasad R/o Village-Man Road Mairwa, P.S
Mairwa, District - Siwan.
... ... Petitioner/s
Versus
1. The State of Bihar through its Additional Chief Secretary cum Principal
Secretary, Urban Development and Housing Department Bihar, Patna.
2. The Additional Chief Secretary cum Principal Secretary, Urban
Development and Housing Department Bihar, Patna.
3. The State Election Commissioner, Patna.
4. The District Magistrate, Siwan, Bihar.
5. The Municipal Executive Officer, Nagar Panchayat Mairwa, Siwan, Bihar.
6. Durgesh Kumar S/o Late Dulare Prasad, R/o Ashok Medical Hall, Adarsh
Nagar, Loharpatti, Mairwa, P.S.- Mairwa, District- Siwan, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amit Srivastava, Sr.Advocate
: Mr.Anuj Kumar, Advocate
For the State : Mr. Abbas Haider, S.C.-6
For respondent No.5 : Mr.Siddarth Shankar Pandey, Advocate
For respondent No.6 : Mr. Sanjay Kumar, Advocate
For State Election Commission: Mr. Ravi Ranjan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
CAV JUDGMENT
Date : 26-06-2025
Heard Mr. Amit Srivastava, learned senior counsel
appearing for the petitioner, Mr. Abbas Haider, learned S.C.-6 for
the State, Mr.Siddarth Shankar Pandey, learned counsel for
respondent No.5, Mr. Sanjay Kumar, learned counsel for
respondent No.6 and Mr. Ravi Ranjan, learned counsel for the
State Election Commission.
2. The respondent No.3 in its order dated 06.12.2024
disqualified the petitioner from the post of Chief Councillor for
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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
aforesaid order of the respondent No.3 by which the petitioner has
been disqualified for the post in question. The order dated
06.12.2024
is arbitrary, illegal and based on without jurisdiction.
The petitioner was not served any demand notice, hence, the
aforesaid order is in complete violation of principles of natural
justice.
3. The petitioner filed her nomination paper for the post
of Chief Councillor of Nagar Panchayat Mairwa, Siwan on
12.09.2022 in which it was mentioned that the petitioner is own
three houses. Before the nomination, the holding tax was paid for
one holding registered at House No.46 in Ward No.6, Nagar
Panchayat Mairwa, Siwan by the petitioner. The petitioner was
elected as Chief Councillor in the Municipal Election and the
election member of the Nagar Panchayat Mairwa, Siwan took
their oath on 13.01.2023 the holding tax for Holding No.221 and
Holding No. 298 was deposited by the petitioner on 12.04.2023.
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Both the holdings are located in Ward No.12 Holding No.221 is
registered in the name of the petitioner’s hhusband vide Holding
No.298 is registered in the name of the petitioner. On 05.03.2024
a complaint was made by the private respondent before the State
Election Commission seeking the removal of the petitioner from
the post of Chief Councillor, Nagar Panchayat Mairwa, Siwan on
the ground of disqualification under Section 18(1)(k) of the Bihar
Municipal Act. Learned counsel for the petitioner submits that
under Section 479(1)(a) and (d) (i) of the Bihar Municipal Act,
2007. There is specific allegation for filing complaint petition
under Sections 476 and 477 of Bihar Municipal Act, 2007. It is
well settled principle that when the statute provides for general
remedy and also special remedy. The special remedy has to be
preferred/prevailed as such the election petition should have been
entertained and adjudicated the said complaint dated 05.03.2024 of
the private respondent. Learned counsel for the petitioner submits
that on 12.04.2023, the petitioner voluntarily deposited the holding
tax for the remaining two holdings i.e. House No.221 (in the name
of her husband) and House No.298 (in the name of the petitioner
herself) before filing of the complaint filed by the private
respondent. The private respondent has filed a complaint petition
on 05.03.2024 but before filing of the aforesaid complaint the
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petitioner had already deposited the holding tax for the remaining
two holdings i.e. House No.221 and House No.298 respectively.
Apart from that, there was no prior notice or demand was ever
issued by the municipal authorities for payment of remaining two
holdings i.e. House No.221 and House No.298. From a bare
perusal of the complaint petition of the private respondent, the
private respondent has alleged in the complaint petition that the
petitioner had not paid the holding tax for House Nos.221 and 298
and also alleged that the petitioner had not disclosed the deposit of
said holding taxes in her nomination papers. The complaint against
the petitioner was filed much later on 05.03.2024 i.e. nearly eleven
months after the voluntary payment was already made. The
appropriate remedy available to the complainant (respondent No.6)
was to file an election petition under Sections 476 and 477 read
with Section 479(1)(a) and (d) (I) of the Bihar Municipal Act,
2007.
4. Learned counsel for the petitioner submits that it is
very surprising that upon receipt of the complaint, the State
Election Commission initiated proceedings in the matter and
sought a report from the concerned authorities. In compliance
thereof the Sub Divisional Officer, Siwan (Sadar) submitted his
report to the District Officer, Siwan dated 02.07.2024 and the said
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report was subsequently forwarded by the District Officer, Siwan
(Sadar) to the Officer on Special Duty, State Election Commission,
Bihar Patna vide letter No.1614/Panchayat dated 03.07.2024. It is
most surprising that the base solely on this inquiry report, the
respondent No.3 has passed the impugned disqualification order
dated 06.12.2024 against the petitioner under Section 479 of the
Bihar Municipal Act, 2007 provides for ground for declaring
election to be void and the dispute in the present petition will fall
under Section 479(1)(d)(i) and therefore the appropriate remedy is
to file election petition under Section 476 and 477 of the Bihar
Municipal Act, 2007 and not under Section 18(2) of the Bihar
Municipal Act, 2007.
Section 479 of the of Bihar Municipal Act, 2007 is as
follows:
“Section 479 of The Bihar Municipal Act, 2007 –
Grounds for declaring election to he void.
(1) Subject to the provisions of sub Section (2) if the
Prescribed Authority is of opinion-
(a) that on the date of his election, a returned
candidate was not qualified or was disqualified, to be
chosen as a member under this Act; or
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(b) that any corrupt practice has been committed by
a returned candidate or his agent or by any other
person with the consent of a returned candidate or
his agent; or
(c) that any nomination paper has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
(i) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interests
of the returned candidate by an agent; or
(iii) by the improper reception, refusal or rejection of
any vote or reception of any vote which is void; or
(iv) by any non-compliance with the provisions of
this Act or of any Rules or orders made thereunder;
the Prescribed Authority shall declare the election of
the returned candidate to be void.”
5. Learned counsel for the petitioner has relied upon the
judgment in the case of C.M.D., City Union Bank Limited Vs.
R. Chandramohan, reported in AIR 2023 SC 1762, para-12
wherein it has been held in summary proceeding that disputed
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questions can’t be agitated when substantive proceeding is same
statue, that substantive procedure has to be followed.
Para-12 of the said judgment, which is being quoted
herein below:
“The proceedings before the Commission being
summary in nature, the complaints involving highly
disputed questions of facts or the cases involving
tortious acts or criminality like fraud or cheating,
could not be decided by the Forum/Commission
under the said Act. The “deficiency in service”, as
well settled, has to be distinguished from the criminal
acts or tortious acts. There could not be any
presumption with regard to the wilful fault,
imperfection, shortcoming inadequacy in the quality,
nature and manner of performance in service,
contemplated in Section 2(1)(g) of the Act. The
burden of proving the deficiency in service would
always be upon the person alleging it”.
“Summary Jurisdiction” is defined in BLACK’S LAW
DICTIONARY, SEVENTH EDITION:
1. A court’s jurisdiction in a summary proceeding.
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2. The court’s authority to issue a judgment or order
(such as a finding of contempt) without the necessity
of a trial or other process.
3. English law… (not relevant for the present writ
application).
6. 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 was 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.
7. The State Election Commission has exceeded its
jurisdiction by deciding a disputed question of fact without
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referring the matter to a competent tribunal, as required under law
In the present case, 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.
8. Learned counsel for the petitioner has relied upon the
judgment of the Hon’ble 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.” “…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
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contentious issues after taking evidence and till such time the
commission shall not decide on such complaint either suo-motu or
otherwise.”
9. Learned counsel for the petitioner has also relied upon
the judgment of this Court in the case of Purohit Lal Gupta v.
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”.
10. Learned counsel for the petitioner has also relied
upon the judgment in the case of State Election Commission v.
Manager Prasad, passed 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”. “
“Disqualification on ground of non-payment of
holding tax a candidate would be deemed to be
disqualified only if he failed to comply with the
provision of Section 18(1) there was no assessment
made in respect of holding respondent no. 1 prior to
election and there was no demand raised and no
notice was given to him to make the payment of tax
Patna High Court CWJC No.19245 of 2024 dt.26-06-2025
11/21duty in respect of said holding therefore, it could not
be held that respondent no. 1 had not paid all taxes
due to him to the municipality as per Section 18(1)(k)
further, Single Judge rightly held that there were
serious contentious issues which were unfit to be
entered into and determined by the State Election
Commissioner in a proceeding which is summary in
nature no infirmity in order of Single Judge”.
11. 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.
12. Learned counsel for the petitioner respectfully
submits that the impugned disqualification of the Petitioner under
Section 18(1)(k) of the Bihar Municipal Act, 2007 is vitiated by
arbitrariness, lack of jurisdiction, and procedural impropriety,
inasmuch as it is based on vague, unsubstantiated allegations and
was passed without conducting a fair and lawful summary
proceeding as contemplated under the statutory scheme. The
respondent No.3 instead of referring the matter for adjudication by
a competent authority, the respondent No.3 assumed the role of an
enquiry agent and undertook a full-fledged fact finding exercise as
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it actively collected evidence by calling for reports from the Sub
Divisional Officer and the District Officer.
13. Learned counsel for the petitioner has relied upon
the judgment in the case of Karim Uddin Barbhuiya vs. Aminul
Haque Laskar, reported in AIR 2024 SC 2193, para-17 of the
said judgment, which is quoted hereinbelow: –
“17. As transpiring from the Election Petition, the
Respondent No. I along with 13 other candidates
including the present Appellant had submitted their
nomination papers for LA-10 Senai LAC, however
according to the Respondent No. 1, the affidavit in
Form 26 filed by the Appellant along with his
nomination paper was invalid and defective as the
same contained false statements, and suppression
and misrepresentation of facts with regard to the
educational qualification and suppression of facts
with regard to his liability in respect of the loan
availed by him by way of a Cash Credit Limit (CCL)
for a partnership firm namely M/s. Allied Concern of
which he was an active partner, and suppression of
facts with regard to his default in deposit of
employer’s contribution of provident fund in respect
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13/21of the employees of the said Ms. Allied Concern. As
regards the false claim of educational qualification,
the Respondent No. I has alleged in the Election
petition inter alia that the Appellant had mentioned
in Column No. 9 of his affidavit in Form 26
appended to his nomination paper that his
educational qualification was Bachelor of Arts (BA.)
which he passed from Chaudhary Charan Singh
University, Meerut in Unar Pradesh in the year
2019, but the Appellant had never passed B.A. from
the said University or from any other Institution or
University. It is further alleged in the Election
petition that the Appellant did not mention about his
so called technical qualification of diploma in Civil
Engineering in the nomination paper, which he had
mentioned in the affidavit in Form 26 when he
contested 2016 General Election. The Respondent
No. 1 has also alleged that though the Appellant was
a partner in Ms. Allied Concern, which availed a
loan from United Bank of India (PNB), Tarapur
Branch at Silchar, the Appellant had deliberately
suppressed the details of the CC Limit Loan Account
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repayment of the said loan. The Respondent No. 1
has also alleged that the Appellant had deliberately
not mentioned about the liabilities of the Appellant
as the partner of Ms. Allied Concern with regard to
the employer’s contribution of provident fund for its
employees. According to the Respondent No. 1 he
had raised an objection before the returning officer
on the date of scrutiny that is on 15.03.2021 that the
Appellant did not possess the educational
qualification of B.A. from Chaudhary Charan Singh
University, Meerut and therefore his nomination
paper was liable to be rejected. According to him,
another independent candidate Karim Uddin
Barbhuiya, (the Respondent No. 8 in the Election
petition) had also raised an objection by submitting a
written complaint dated 15.03.2021 before the
returning officer, however the returning officer had
failed to exercise his jurisdiction and authority
Under Section 36 of the RP Act and refused to make
even a summary enquiry by calling upon the
Appellant to meet with the objections raised by him.
Patna High Court CWJC No.19245 of 2024 dt.26-06-2025
15/21Thus, according to the Respondent No. 1, there was
an improper acceptance of the nomination paper of
the Appellant. He also alleged that the
misrepresentation and false representation of
educational qualification by the Appellant in the
affidavit in Form 26 and suppression and
misrepresentation of the liability of the Appellant in
the said affidavit in respect of the cash credit facility,
and non- disclosure of the default of the Appellant in
respect of his liabilities towards employer’s
contribution to the provident fund tantamount to
commission of “Corrupt practice” of undue influence
within the meaning of Section 123(2) of the RP Act.
The Respondent No. 1 therefore has filed the Election
Petition Under Section 100 of the Act seeking
declaration that the election of the Appellant-the
returned candidate, was void”.
14. Learned counsel for the petitioner submits that
Sections 30,35 and 36 of the Representation of the People Act,
1951 are in principle and intent same on Rules 43 to 47 of Bihar
Municipal Election Rules, 2007 and paragraphs-8,17 and 23 of the
judgment in the case of Karim Uddin (Supra) squarely
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completely applicable to the case of the petitioner as admittedly no
objection was ever raised by any person much less the respondent
No.6 at the time of presenting of nomination paper of petitioner.
15. Learned counsel for the petitioner submits that
applying the aforesaid principles to the facts of the present case,
the impugned disqualification of the petitioner under Section 18(1)
(K) of the Bihar Municipal Act, 2007 is legally unsustainable,
being based on vague and unsubstantiated allegations.
16. Learned counsel for the State Election Commission
submits that in fact the petitioner was duly elected as Chief
Councillor of Nagar Panchayat, Mairwa. The respondent No.6 has
filed a complaint before the State Election Commission for
disqualifying the petitioner from her post by way of
disqualification under Section 18(1)(K) of the Bihar Municipal
Corporation Act, 2007 which stipulates that if any person has not
paid all the taxes due by him to the Municipality at the end of the
financial year immediately preceding that in which the election is
held then she/he is disqualified under the scheme of the Act. A
copy of the complaint was sent to the District Authority for
verification process and notices were issued to both the parties to
participate in the hearing process. Learned counsel for the
Commission submits that it is pertinent to mention here that from a
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bare perusal of the Statute in unambiguous terms states that if any
person who has not paid all taxes due to the Municipality in
previous financial of the year which such election is held meaning
thereby mere fact of non-payment of municipal tax would amount
to disqualification. The election was conducted in the year 2022
and thus any person having municipal dues for the year 2021 it
came to light that since the election was conducted in the year
2022 and thus any person having municipal dues for the year
2021-2022 was disqualified under Section 18 of the Bihar
Municipal Act. As per Section 13 of the Bihar Municipal Property
Tax (Assessment, Collection and Recovery) Rules, 2013, which
states as follows:
“13. Self-declaration /self assessment-(1). Self-
assessing their holding tax and paying it to the
Municipality without waiting for a demand notice
shall be the responsibility of the tax payer or owner
of the building”.
17. Learned counsel for the State Election Commission
submits that it clearly transpires that the petitioner had two
holdings in Nagar Panchayat Mairwa bearing House No.46 and
House No.298 while another Holding bearing House No.221 stood
in the name of her husband. Admittedly the petitioner had paid
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holding tax for House No.46 on 10.09.2022 while for other two
holding she paid holding tax. This fact is even admitted by the
petitioner, thus, it is established that the petitioner failed to pay or
her dues against her holding prior to when she contested election,
the disqualification stipulated under Section 18(K) of Bihar
Municipal Act clearly comes into play. In the present case, there is
clear admission part of the petitioner regarding two holdings in her
name and payment of one of the holdings after the election was
conducted clearly apply the disqualification in the present case.
Although the election petition ought to file within a period of 30
days from the date of declaration of the result but there is no such
limitation for filing such complaint under Section 18 of the Bihar
Municipal Act. In light of the Rule 13 of the Bihar Municipal
Property Tax Rules, it is incumbent upon the person who has a
holding in his or her name to self-determine the holding tax and
pay accordingly and in light of the same the argument that unless
there would be a demand by the authority and failure to pay such
demand will make out a case of dues in not applicable in the
present case. The State Election Commission also come into
existence not only for conducting election to various posts of the
Panchayat as also Municipality but several other functions
connected with same and one of such functions is disqualification
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of an elected representative meaning thereby the power flow from
the Constitution itself based upon which provision were also
inserted in this Statute. The petitioner herself admits of paying
holding tax after the election was conducted. This fact in itself is
unimpeachable evidence to disqualify the petitioner. The order
passed by the Commission is in accordance with law and no
interference is required.
18. Learned counsel for respondent No.6 has submitted
that it is admitted fact that the petitioner has deposited the holding
tax after the election was conducted on 10.09.2022 and the
petitioner was declared elected on 20.12.2022 and for other two
holdings, the petitioner has paid the tax after result of the election.
19. Having heard the learned counsel for the parties,
perused the material available on the record and also come to the
judgment in the case of C.M.D., City Union Bank Limited Vs.
R. Chandramohan, reported in AIR 2023 SC 1762, in para-12 of
the said judgment, it has been held in summary proceeding that
disputed questions can’t be agitated when substantive proceeding
is same statue, that substantive procedure has to be followed and
apart from that, 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
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Sections 476 and 477 of the Bihar Municipal Act, 2007 and not
under Section 18(2) of the Bihar Municipal Act, 2007. In the
present case, the Commission not only initiated proceedings based
on the complaint but also conducted a full-fledged enquiry by
collecting evidence from various authorities. 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 and apart
from that, the judgment of the Hon’ble Full Bench of this Hon’ble
Court in the case of Rajani Kumari v. State of Bihar (Supra),
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.” “…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 evidence and till such time the
commission shall not decide on such complaint either suo-motu or
otherwise.”
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20. Therefore, this Court holds that the order dated
06.12.2024 (Annexure-4) is not in accordance with law and the
same is set aside.
21. Accordingly, this writ application stands allowed.
However, there will be no order as to cost.
(Rajesh Kumar Verma, J)
Nitesh/-
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