In the case of Shri Chandra Sekhar Sinha v. The State of Tripura & Ors., Hon’ble Justice Akil Kureshi dealt with a writ petition challenging the office of a municipal council member on the ground of disqualification due to defection.
Facts
Petitioner has through Public Interest Litigation under Art 226 challenged Respondent No.6 holding the office of a member of Kailashahar Municipal Council which he had won as an independent candidate on the ground that he subsequently had won the State Legislative Assembly election under the symbol of BJP and hence incurred disqualification under Sec 59A(2) of Tripura Municipal Act, 1994(hereinafter referred to as “the Act”). The Executive Officer of Kailashahar Municipal Council who is entrusted to deal with the question of disqualification held that the Respondent No. 6 did not incur disqualification observing that the Respondent No. 6 was in the BJP party even while he fought and won the municipal council election as an independent candidate, though later he contested Assembly Election on the nomination by his party i.e. BJP. Thus, it is clear that he did not join any political party for contesting the Assembly election while he was a Municipal Councilor(independent).
Arguments Advanced
Respondents contend that no disqualification has been incurred since he joined the BJP even before his election to the Municipal Council as an independent candidate and also challenged the locus standi of the petitioner contending that the petition has been filed with an oblique motive to vindicate personal grievance. Further that the competent authority under Sec 58(3) of the Act has finally decided the matter of disqualification.
Petitioners contend that the Respondent No. 6 contested the municipal elections as an independent candidate against candidates belonging to several parties including BJP and subsequently contested the assembly election as a BJP candidate which clearly disqualifies him as a member of the municipal council under Sec 59A(2) of the Act which prohibits a member of the Municipal Council elected otherwise than as a candidate set up by any political party from joining any political party after his election as such
Court’s Observation and Conclusion
Court holding that the Petitioner who is a social worker does have locus standi observed that the petitioner has brought before us an issue pertaining to breach of a Constitutional provision having a reflection on democracy and governance by the rule of law and we need not be guided by any narrow pedantic view in entertaining such petition.
Examining the propriety and correctness of the decision by the authority under the Act held that it suffers from material illegality as it has arrived at a decision not by providing any reasons but by complete reliance on opinion gathered from the law secretary and has not discharged the obligations of a quasi-judicial authority which is required to give a reasoned impartial decision which is a sine qua non. Considering the decision in terms of the Statute, the Court referred to the test laid down in the case of Jagjit Singh vs. State of Haryana and Ors. reported in (2006) 11 SCC 1, which states that “to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party.
The test is whether he has given up his independent character on which he was elected by the electorate.” The court observed that Respondent No. 6 has during the continuation of his membership in the Municipal Council as an independent candidate contested the State Assembly Election in 2018 from Kailashahar Constituent Assembly as a candidate set up by BJP.
There is, therefore, no doubt that Respondent No. 6 who was elected to the Municipal Council as an independent candidate formally joined a political party so as to incur disqualification under Section 59A(2) of the Act. Accepting the plea that the candidate was a member of BJP even while he contested municipal elections as an independent character would defeat the purpose of anti-defection law and would fail the expectations of the electorate. Therefore the Respondent No. 6 has incurred disqualification as per law.
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