JUDGMENT
Pratap Kumar Ray, J.
1. The appeal and the connected stay application both were taken up together for final hearing and it was heard on several dates.
2. This present appeal being MAT No. 38 of 2006 has been preferred by one Shri Sudip Rai Sharma, Councillor of Ward No. 7 of Port Blair Municipal Council (hereinafter referred to as ‘said Council’ for brevity), Port Blair, A&N islands assailing the Judgment and order dated 17.11.2006 passed by D.P. Sengupta, J. In WP No. 20034 (W) of 2006 whereby and whereunder the writ application was allowed by quashing and setting aside the impugned order in the writ application dated 19.8.2006 passed by the Administrator, A&N Islands disqualifying the writ petitioners who are respondent Nos. 1 to 4 in this appeal, on taking a decision under Regulation 12(4) of the Andaman and Nicobar Islands (Municipal) Regulation, 1994 (hereinafter referred to as ‘said Regulation’ for brevity).
3. The present appellant was one of the elected councillor of the said Council. The learned Trial Judge allowed the writ application on the premises that since under the Regulation 203 of the said Regulation there was no prescribed form relating to the submission of the declaration of assets of the elected Councillors in terms of the Regulation 21(1) of the said Regulation and as there was a discrimination in the decision of disqualification by pick and choose policy though many other Councillors defaulted to submit the declaration of assets within the period of 30 days from the date of taking oath or affirmation in terms of Regulation 21(1) of the said Regulation.
4. In this appeal, the appellant has raised three questions which requires to be addressed namely,
(i) That the writ application was not maintainable in view of the provision of referring an election dispute by way of the election petition under Regulation 37 of the said Regulation before the learned District Judge concerned.
(ii) That the reasoning of the learned Trial Judge that in absence of any prescribed format the Councillors failed to submit declaration of assets in time cannot be a good reasoning to allow the writ petition for quashing the decision of the Administrator disqualifying the writ petitioners.
(iii) That the decision of the Administrator is final and once such decision has been reached on the basis of the opinion of the Election Commissioner who opined in favour of such disqualification, the Court of law should not interfere with such decision.
5. This appeal has been opposed by the writ petitioners/respondents, who succeeded before the learned Trial Court below, by contending inter alia, that the opinion of the Election Commission was not to disqualify the writ petitioners as the writ petitioners submitted their declaration of assets which might be in belated time than 30 days in view of different reasons as stated thereof before the Election Commission namely, falling of the Sunday which was the last day as per the Regulation and/or other valid reasons of illness and other factors which upon being considered as reasonable and sufficient and having regard to the fact that the Chairperson did not issue any receipt of submission of such declaration of assets as well as there was no prescribed format, the decision of the learned Trial Judge was justified on quashing the decision of the Administrator disqualifying the writ petitioners.
6. For effective adjudication of the issues involved in this case, the statutory interpretation of the relevant provisions vis-a-vis, the factual matrix are required to be canvassed.
7. This Court is taking the first point namely, the maintainability of the writ petition for decision as a first item.
8. It has been urged that the writ petitioners ought to have preferred a election petition under Regulation 35 which was required to be dealt with under Regulation 37 of the said Regulation.
9. The Regulations 35, 37 and 40 of the said Regulation are set out hereunder for effective adjudication:
35(1) The election of any person as a member may be questioned by an election petition on the ground–
(a) that such person has committed during or in respect of the elections any corrupt practice as herein after defined;
(b) that such person was declared to be elected by reason of the improper rejection or admission of one or more voters or that, for any other reason, he was not duly elected by a majority voting of lawfull votes; or
(c) that such person was disqualified for being elected as a member under any of the provisions of this Regulation.
(2) The election of any person as a member shall not be questioned–
(a) on the round that the name of any person qualified to vote has been omitted from all the name of any person not qualified to vote has been inserted in, the elector roll or rolls; or
(b) on the ground of any non-compliance with this Regulation or any rule, or of any mistake in the forms required there by or of any error irregularity or informality on the part of the officer or officers charged with carrying out this Regulation or any rule, unless such non-compliance, mistake, error the result or the elections.
37(1) An election petition or any application relating to the hearing of an election petition shall be presented to the District Judge within seven days from the date on which the result of the election was notified and shall specified the ground or grounds on which the election is questioned, and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds.
(2) The petition may be presented by the candidates in which favour votes have been recorded and who claims in the petition to be declared elected in place of the person those election is questioned, or by ten or more voters of the Municipal area.
(3) The person whose election is questioned and there the petitioner claims that any other candidate shall be declared elected in place of such person, every unsuccessful candidate who was polled more votes than such other candidate, shall be made a respondent to the petition.
40.(1) If the District judge after making such inquiry as he thinks necessary finds in respect of any person whose election is called in question by petition, that his election was valid, the petition all be dismissed against such person with costs.
(2) If the District judge finds that the election of any person was invalid, he shall either–
(a) declare a casual vacancy to have arisen, or
(b) declare another candidate to have been duly elected, which even course appears, in the particular circumstances of the case, to be more appropriate; and in either case the District judge may award costs in his discretion.
(3) In the event of the District judge declaring a casual vacancy to have arisen, he shall direct the Municipality to take proceedings, for filling the vacancy.
10. Before interpreting the said Regulation about its applicability the factual matrix is required to be discussed.
11. The factual matrix of the writ application was in brief to this effect that the elected Councillors of the said Council had taken their oath/affirmation of the offence as elected Members on 24.9.2005. The Body of the said Municipal Council was constituted consisting of 18 members on 26.9.2005. On 23.1.2006 a No Confidence Motion was initiated by eight Councillors against the then Chairperson Smt Zubaida Begum and soon thereafter before putting the said No Confidence Motion for decision, on 10.2.2006, the said Smt. Begum wrote a letter to the Secretary, Municipal Council to intimate the Administrator, Deputy Commissioner and Election Commissioner that all the elected Members except herself did not submit the declaration of assets owned by the respective Members including their family members within the stipulated period of 30 days in terms of the Regulation 21(1) of the said Regulation and as such those members since became disqualified for remaining as a Member, the issue should be decided under Regulation 12(4) of the said Regulation by the Administrator for his necessary decision.
12. On 12.2.2006, a special meeting was held when 15 members out of 18 members voted in favour of No confidence motion and Smt. Begum was ousted from the post of Chairperson. Lastly the matter was referred by the Administrator to the Election Commissioner for his opinion about the disqualification of the members of the said Municipal Council. The Election Commission heard the matter and referred an opinion “not to disqualify the errant members, but a mere caution would be sufficient as all the members submitted their assets belatedly and there are many members who failed to do such within 30 days even as prescribed”. The Administrator passed a decision thereafter disqualifying the writ petitioners only and directing them to vacate their office as Councillors.
13. The disqualification issue under Regulation 12(4), 12(5) and 21 of the said Regulation reads as follows:
12(4) If a question arises as to whether a member of a Municipality has become subject to any disqualification mentioned in Sub-section (1) or Sub-section (1) of Section 21 the question shall be refered for the decision of the Administrator and his decision shall be final.
(5) Before giving any decision on any such question, the Administrator shall obtain the opinion of the Election Commissioner and shall act according to such opinion.
21(1). Every member shall not later than thirty days after making and subscribing the oath or affirmation under Sub-section (1) of Section 20 and before the last day of the same month in each succeeding year file with the Chairperson a declaration in such form as may be prescribed of all the assets owned by him and any member of his family and such declaration shall form part of the records of the Municipality.
(2) A person shall be disqualified for being a member –
(a) if he fails to file a declaration referred to in Sub-section (1) or
(b) if he files a declaration under that Sub-section which is either false or which he knows or believes to be false.
Explanation-For the purpose of this section “family” means a spouse and dependent children of the member.
14. On the reflection of the said issues involved on the factual matrix it appears that under Regulation 35, there was no question of referring any election petition assailing the decision of the Administrator dated 19.8.2006 for the simple reason that under Regulation 35, it provides that the election of any person as a member may be questioned by an election petition on the grounds as stipulated thereto namely, (a), (b) and (c) thereof, which already quoted above. In the instant case, it appears that there was no question of charge of corrupt practice in terms of Clause (a) of Regulation 35(1) of the said Regulation, there was no case of improper rejection or admission of one or more votes in terms of Clause (b) and also in terms of Clause (c) there was no question of disqualification for being elected under the provisions of the said Regulation. The Regulation 35(1)(c) has been brought to our notice by the learned Advocate of the appellant to contend that there was a decision of disqualification of the writ petitioners, which was declared by the Administrator and as such it could be the subject matter of election dispute.
15. We are afraid to accept such preposition. On a bare reading of the Clause (c) of Regulation 35(1) of the said Regulation it appears that the ground of election petition should be that a person was disqualified “for being elected as a member”. The word “for being elected” and the word “elected” there is a gulf of difference in between the two.
16. Furthermore, under Regulation 35 it provides that any election of any person as a member could be questioned by election petition which clearly presupposes the contingency that ‘X’ being a person may file an election petition assailing and/or questioning the election of a elected member ‘Y’. But it does not mean that a member being elected when suffers disqualification by a decision of the Administrator on application of Regulation 12(4) would be able to file an election dispute. Furthermore, under Regulation 37 of the said Regulation, it appears that time limit for filing election petition was seven days from the date of declaration of result, which does not naturally attract the provision of filing an election dispute by a member who has been disqualified for non-declaration of assets within 30 days from the date of taking oath as a member of the said Municipal Council. The date of holding the election and declaration that one is elected is one thing that the date of taking oath/affirmation as elected member of the said Council is a different thing which may be even after seven days of declaration of result of election. In that view of the matter, it appears that the Regulation 37 of the said Regulation also got no applicability to file an election petition on the factual matrix of this case, as the cause of action herein happened long after declaration of result.
17. Furthermore, under Sub-clause (2) of Regulation 37 it appears that election petition may be presented by the candidates in whose favour votes have been recorded and who claims in the petition to be declared elected in place of the person whose election is questioned. This clause is also not attracted in the factual matrix herein. Furthermore, Clause (3) of Regulation 37 is also not attracted on the factual matrix herein which provides that a person whose election is questioned and the petitioner claims that any other candidate should be declared elected, every unsuccessful candidates shall be added as party. This clause is also not satisfying the applicability of filing an election dispute on the present factual matrix of the case.
18. Further under Regulation 40 of the said Regulation, it appears that the finding of the District Judge is limited only with reference to declaring an election as valid and/or invalid.
19. Here there is no question of declaring the election of any candidate as valid or invalid. The dispute raised about the disqualification of the members to remain as a members of the Municipal Council which has no nexus with the election as already held wherein such disqualified members by majority votes have been elected.
20. Having regard to such literal interpretation of the statutory provision, there is no doubt before this Court that on the factual matrix of the case, there is no scope of filing any election petition and as such the submission of the learned Advocate of the appellant, that there ought to have an election dispute in terms of the provision stands rejected.
21. On the factual matrix of the case, it appears that the decision of the Administrator is under challenge on the ground that the Administrator did not follow the opinion of the Election Commission. Hence, it is case of judicial review of the decision of the Administrator to identify whether in terms of the opinion action was taken or not, or there was breach of any statutory provision.
22. In view of such legal campus, this Court is of the view that the writ application was maintainable assailing the decision of the Administrator on the factual grounds as mentioned.
23. The point No. (i) is accordingly answered against the present appellant.
24. The point Nos. (ii) and (iii) are taken up together for adjudication. Before answering those points, the relevant statutory Regulation requires an interpretation about the power and jurisdiction of the Administrator concerned to decide such type of issue namely, disqualification issue in terms of Sub-section (1) of Regulation 21 by applying his power under Regulation 12(4) of the said Regulation read with Regulation 12(5) thereof.
25. As already quoted that Regulation 12(4) and (5) is relevant provision for a decision on disqualification issue in terms of the disqualification mentioned in Sub-section (1) and (2) of Regulation 21.
26. In the instant case, it is not such type of case where the members concerned against whom a dispute was raised for attraction of the disqualification Regulation namely, Regulation 21 of the said Regulation did not file any declaration of assets of themselves and their family members. But it is the case of the petitioners that they filed their assets, some on 25.10.2005, as the last date as fixed under Regulation 21(1) was a Sunday being 23.10.2005 and the other writ petitioners submitted their declaration of assets belatedly in view of contingency as mentioned namely their illness and/or remaining out side of the Port Blair for their personal family matters.
27. The Regulation 12(4) and (5) of the said Regulation practically is parimateria with the constitutional provision for disqualifying the State Legislators and/or Members of Parliament as it appears in Article 192 of the Constitution of India in respect of State Legislators and Article 103 of the Constitution of India in respect of the disqualification of a Member of Parliament under the contingency as mentioned save and except the change of the words Governor/President as Administrator in Regulation 12(4) and (5) and change of word Legislators/Members of Parliament as Councillors.
28. Article 103 and the Article 192 of the Constitution of India are set out hereinbelow:
103. Decision on questions as to disqualifications of members.–(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
192. Decision on questions as to disqualifications of members.-(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) bf Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
…
29. It appears by mere reading of the aforesaid Constitutional provisions for disqualification in respect of the members of the Houses namely the State Legislation and/or the Parliament, it appears that the power of the Governor of the State to take decision on such issue of disqualification is controlled by the opinion of the Election Commission in terms of the Article 192(2) and the power of the President of India is also accordingly controlled on the basis of the opinion of the Election Commission in terms of Article 103(2) of the Constitution and similar to the constitutional provisions which provides that the concerned authorities shall act according to opinion of the Election Commission, in the Regulation 12(5), the identical provision has been made that the Administrator shall obtain opinion of the Election Commission and shall act according to such opinion.
30. On a mere interpretation of the statutory provision, it appears that ‘shall act according to such opinion’ clearly has controlled the entire decision making process of the Administrator concerned similar to the decision making process of the Governor and the President of India in respect of the cases of State Legislators or Members of Parliament, as the case may be under the relevant constitutional provisions.
31. The issue as to whether the Governor or the President can make an independent decision without any opinion of the Election Commission and/or as to whether the opinion of the Election Commission is a decisive factor to pass such a declaration by the Governor/President of India are not at all res integra in view of the settled Judgments in the field as passed by the Apex Court.
32. In the case of Election Commission of India and Anr. v. Dr. Subramaniam Swamy and Anr. , the Three Judges Bench of Apex Court dealt with the matter by interpreting the constitutional provision of Article 192 that the decisive factor for taking decision by Governor is the opinion of the Election Commission and the final order would be based solely on that opinion. The relevant paragraph from the said report namely, paragraph 7 is quoted hereinbelow:
7. It is thus clear on a conjoint reading of the two clauses of Article 192 that once a question of the type mentioned in the first clause is referred to the Governor, meaning thereby is raised before the Governor, the Governor and the Governor alone must decide it but this decision must be taken after obtaining the opinion of the Election Commission and the decision which is made final is that decision which the Governor has taken in accordance with the opinion of the Election Commission. In effect and substance the decision of the Governor must depend on the opinion of the Election Commission and none lese, not even the Council of Ministers. Thus the opinion of the Election Commission is decisive since the final order would be based solely on that opinion.
33. The Apex Court in the said case relied the case Election Commission of India v. N.G. Ranga and the decision passed in the case of Brundaban Nayak v. Election Commission of India . The Apex Court further discussed the said point in paragraph 8 and 9 in details. The relevant portion of the said report namely, the entire paragraph 8 and some portion of paragraph 9 of said Report is quoted hereinbelow:
8. The same view came to be expressed in the case of Election Commission of India v. N.G. Ranga while interpreting Article 103(2) of the Constitution, the language thereof is verbatim except that instead of the Governor in Article 192 (2), here the decision has to be made by the President. So also the language of Articles 192(1) and 103(1) is identical except for the same change. The Constitution Bench of this Court reiterated that the President was bound to seek and obtain the opinion of the Election Commission and only thereafter decide the issue in accordance therewith. In other words, it is the Election Commission’s opinion which is decisive.
9. Having realised that the opinion of the Election Commission is a sine qua non for the Governor or the President, as the case may be, to give a decision on the question whether or not the member concerned of the House of the Legislature of the State or either House of Parliament has incurred a disqualification, the next question is, can the Election Commission take a decision if one of its members is disqualified from participating in the decision making?
…
34. The decision passed in the case or Election Commission of India v. N.G. Ranga (supra) as referred to is also a decision passed by the Constitution Bench wherein in paragraph 7, the Apex Court held to this effect:
Article 103(2), as it stood then, required the President to obtain the opinion of the Election Commission before deciding the question referred to in Clause (1) of that article. The President was bound to act according to the opinion given by the Commission. By the Forty Second Amendment, Article 103(2) requires the President to consult the Election Commission.
35. The Judgment passed in the case of Brundaban Nayak v. Election Commission of India (supra) is also the Judgment of the Constitution Bench wherein in para 15 and 16, the Apex Court in detail discussed the issue and held:
15… The next point which Mr. Setalvad has raised is that even if a question is held to have arisen under Article 192(1), it is for the Governor to hold the enquiry and not for the Governor to hold the enquiry and not for the Election Commission. He contends that Article 192(1) requires the question to be referred to the Governor for his decision and provides that his decision shall be final. It is a normal requirement of the rule of law that a person who decides should be empowered to hold the enquiry which would enable him to reach his decision, and since the Governor decides the question, he must hold the enquiry and not the Election Commission. That, in substance, is Mr. Setalvad’s case. He concedes that Article 192(2) requires that the Governor has to pronounce his decision in accordance with the opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor. He however, argues that the Election Commission which has to give an opinion, is not competent to hold the enquiry, but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to form its opinion and communicate the same to the Governor.
(16) We are satisfied that this contention also is not well-founded. The scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of the provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the mater himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, “he shall act according to such opinion”. In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Article 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad’s contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that the respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof….
36. Having regard to the aforesaid settled legal position interpreting the weightage, gravity and contextual purpose and value of the opinion of the Election Commission to disqualify a member which is a decisive factor for the decision of the concerned Governor or the President of India as the case may be, the present issue could be resolved.
37. As identical provision is there under Regulation 12(4) and (5), this Court does not require any further interpretation since the Apex Court has already settled the law in that respect. In that view of the matter, this Court is of the view that having a conjoint reading of Regulation 12(4) and (5) of the said Regulation, the Administrator has no independent decision making power but his decision must be based on the opinion of the Election Commission and the opinion of the Election Commission is the only and only decisive factor to declare a decision, otherwise it could be said that the decision of the Election Commission has got primacy in the decision making process of declaring any member disqualified even on breach of Regulation 21 and the Administrator only is required to put a seal over such opinion as given by the Election Commission by passing a mere declaration.
38. Power of Election Commission in connection with enquiries to disqualifications of members’ has been stipulated in chapter IX, Rule 121 ofAndaman & Nicobar Islands (Municipal) (Preparation of Electoral Rolls & Conduct of Elections) Rules, 1995, which read such:
121. Powers of Election Commission:- (1) Where in connection with the tendering of any opinion to the Administrator under Sub-section (5) of Section 12 of the Regulation, the Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such enquiry by the parties concerned of their own accord, it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purpose of such inquiry, the powers of a Civil Court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document or other material object producible as evidence;
(c) receiving evidence on affidavits;
(d) requisiting any public record or a copy thereof from any Court or office;
(e) issuing Commissions for the examination of witnesses or documents.
(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as in the opinion of the Commission may be useful for, or relevant to the subject matter of the inquiry.
(3) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860).
39. For effective adjudication, now we have to look into the opinion of the Election Commission. In para 13.0 of the opinion, the Election Commission opined to this effect;
13.0 Keeping in view what has been stated above, especially the fact that no rules have been framed under Section 203 of the Regulation in regard to the filing of declarations of assets by members, the past practice and the fact that most of the members have been elected for the first time, this Commission is of the opinion that it would not be appropriate to take a very harsh view of the matter and disqualify the errant members under Sub-section (2) of Section 21 of the regulation. They may however, be cautioned to be more careful in future.
40. The Election Commission further made some recommendations in view of the fact that there was no prescribed format for filing the declaration of assets by the members of the Council, in terms of Regulation 203 and some procedural follow up for accepting such declaration from the members by the Chairperson and/or other matters.
41. To form the opinion, the Election Commission discussed the matter in depth. Now the question is whether on the basis of such opinion whereby the Election Commission did not opine to disqualify, whether the Administrator was competent to pass a decision disqualifying the writ petitioners to remain as Councillors.
42. From the decision of the Administrator impugned in the writ application, it appears that the Administrator took a further decision by not agreeing with the decision rendered by the Election Commission. The relevant portion reads as such:
As per the record of the Election Commission “(a) (i) Shri S. Jaya Kumaran Nair (ii) Smt. D. Hemlatha, (iii) Smt. Sheela Singh, (iv) Shri Sanjeev Reddy and (v) Shri. M. Bose had filed the declarations of assets within thirty (30) days after making and subscribing the oath or affirmation under Sub-section (1) of Section 20 of the Regulation, (b) In respect of Smt. Zubaida Begum, Election Commission has given benefit of doubt insofar as the date of submission of her declaration of assets is concerned, (c) The declarations of assets filed by (i) Smt. S. Parameshwari, (ii) Shri Sheir Singh and (iii) Shri B. Eswar Rao were after the due date i.e. 24.10.2005. (d) The Election Commission has opined that it is difficult to establish conclusively that (i) Shri Ramzan Ali, (ii) Shri Sudeep Rai Sharma, (iii) Shri C. Karunanidhi, (iv) Smt. M. Vasantha, (v) Shri R. Damodharan, (vi) Smt. S. Setvi and (vii) Shri M. Arumugam had failed to submit their declarations of assets within the stipulated period of thirty (30) days after making and subscribing the oath or affirmation under Sub-section (1) of Section 20 of the Regulation, (e) The Election Commission has opined that there is no documentary evidence to corroborate that Shri K. Krishnan and Shri M. Raja had actually submitted their declarations of assets on the 24th October, 2005 as claimed by them. The veracity of the statements made by them in this regard is not free from doubt”. According to the report of the Election Commission, it is clear that total five persons did not file the declaration of assets within 30 days as required under Sub-section (1) of Section 21 of the Andaman & Nicobar Islands (Municipal Council) Regulation, 1994 are willful and deliberate. I have no hesitation to say that the inaction in respect of not filing the declaration of assets by the defaulting five members within the stipulated period despite reasonable opportunity given to them ought not have been overlooked being matter of grave concern in view of mandatory provisions relating to disqualification of members for not submitting the declaration of assets within the stipulated period.
43. On that basis ultimately, a decision was reached against the five elected Councillors of the Municipality who though submitted declaration of assets of themselves and their family members, have been disqualified and the following decision was passed:
The above noted five elected members of the PBMC having been disqualified under Section 21(1) read with 21(2) of the Andaman & Nicobar Islands (Municipal Council) Regulation, 1994 shall cease to be represented in the Port Blair Municipal Council and vacate their office as such members on and from the date of issue of order.
44. On a bare reading of the decision, it appears that to identify the disqualification to retain Councillorship in respect of the five Councillors including the present four writ petitioners/respondents, the Administrator further opined that “on screening the opinion of the Election Commission to this effect that the non-filing of declaration of assets within the stipulated period ought not to have been overlooked being matter of grave concern”.
45. Hence, it appears that when the Election Commission opined that “no harsh treatment should be imposed” and “there should not be any disqualification of the membership”, the Administrator took a contra decision of disqualification. Here lies the jurisdictional error of the Administrator under the statutory provision of Regulation 12(4) and (5). The Administrator had no independent decisive power, his decision should be on the basis of the opinion of the Election Commission and the opinion of Election Commission is the only “decisive factor” to pass a declaration only in nature of ‘decision’ by the Administrator. The Administrator accordingly went wrong in excess of his jurisdiction by not following the opinion in its letters and spirits as in terms of the Regulation he was mandated to act according to the opinion of the Election Commission only. He had no power to form a further opinion.
46. Hence the decision of the Administrator is in excess of his jurisdiction vested under the Regulation which is not legally sustainable. Further, it appears that the Administrator was not entrusted with any power for passing a further opinion/decision that the elected members who were declared as disqualified should vacate their office from the date of issue of the order and debarred to represent the Municipal Council. This is also outside the arena of the jurisdiction vested under the Regulation.
47. Under the Regulation 12(4) the Administrator got jurisdiction to decide as to whether a member should be disqualified or not only, if and only if the question arises before him. The question may be referred to by anybody. Hence until and unless a question arises, the Administrator cannot exercise his jurisdiction. But the Administrator got no jurisdiction to declare that the elected members who are disqualified must vacate the office and should cease to be a member. On the Constitutional provisions the issue was answered by the Apex Court in the case P.V. Narashima Rao v. The State (CBI/SPE) , the Judgment of the Constitutional Bench wherein while dealing with the question whether under Article 103(2) of the Constitution of India the same has empowered for a decision of removing a Member of Parliament. In para 93 the issue was discussed and held accordingly:
…In respect of a Member of Parliament the Constitution does not confer on any particular authority the power to remove him Clause (1) of Article 103 lays down that if any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred to the decision of the President and his decision shall be final. The said function of the President is in the nature of an adjudicatory function which is to be exercised in the event of a dispute giving rise to the question whether a member of either House of Parliament has become subject to any of the disqualification mentioned in Clause (1) of Article 102 being raised. If the President holds that the member has become subject to a disqualification mentioned in Clause (1) of Article 102, the member would be treated to have ceased to be a member on the date when he became subject to such disqualification. If it is not disputed that a member has incurred a disqualification mentioned in Clause (1) of Article 102, the matter does not go to the President and the member ceases to be a member on the date when he incurred the disqualification. The power conferred under Article 103(1) cannot, therefore, be regarded as a power of removal of a Member of Parliament….
48. On a bare analysis of the provision of Regulation 12(4) in comparison to the said Constitutional provision as referred to, it appears that the decision of disqualification itself ipso facto does not vest power to the Administrator to direct vacating of the office and cessation of membership but it prescribes other methods if any mentioned in the Regulation. As the same is not the subject matter of this case, the said questions are kept open for decision by scrutiny of regulation as and when the said issue would arise in a given case. Hence the portion of the decision whereby it has been decided that the writ petitioners should vacate office and they ceased to be the members as was taken by the Administrator was of without jurisdiction, besides the answer that the Administrator exceeded his jurisdiction declaring the writ petitioners as disqualified by not following the opinion expressed by the Election Commission against the decision of disqualification.
49. In a nutshell this Court is accordingly of the view that the Administrator has got no independent adjudicatory process or mechanism but his entire decision ought to have been and should have been in accordance with the opinion expressed by the Election Commission.
50. Mr. Roy Choudhary, learned Advocate appearing for the appellant has submitted that if the Election Commission does not address the question as referred to in the proper way though in forming the opinion portion in Clause 13 as already quoted there was discussion earlier about the factual finding of belated filing of the declaration of assets, the Administrator is not helpless to decide the issue independently. Such submission is rejected as the statue never has empowered the Administrator to do such.
51. Furthermore, it is mentioned that had there been any grievance that the Election Commission did not opine in terms of the reference as made by the Administrator and that on the basis of the materials collected by the Election Commission, the Election Commission ought to have opined “disqualification of the members”, the appellant could have filed an appropriate application in the appropriate forum for his remedy in accordance with law.
52. However, from the statutory frame work it appears that the Election Commission was given a top priority and primacy so far of forming an opinion as to whether a member is subject to disqualification under provision of Regulation 21. The disqualification issue simplicitor in terms of Regulation 21 will not invite a penalty of disqualification as under the statutory frame work since there is a provision under Regulation 12(4) & (5) that there should a decision on the dispute as to be raised, as and when such dispute is raised raising the question of disqualification under Regulation 21, the matter is required to be looked into in different angle whereby the legislatures at their wisdom has given a wide discretionary power to the Election Commission to deal with the matter as per his wisdom on taking into consideration of the different factual matrix of the matter.
53. If it is assumed for argument sake, that as soon as the time of 30 days expired from the date of taking oath/affirmation by an elected member who did not file the declaration but filed it on the next date after expiry of such date he would suffer disqualification or if assumed certain contingency namely that even after taking of oath/affirmation someone faced an accident on his way back to home and was hospitalized wherefrom he was released after a long treatment of four or five months resulting automatic disqualification of the member concerned who was remaining in the hospital though by act of God he got no opportunity to file the declaration of assets in right time, it would be nothing but deprivation to exercise a right as elected member on technical ground, despite being succeeded in the election getting the majority votes by a proper election held by the Election Commission. Possibly having regard to those different contingencies which could not be detailed and could not be apprehended or foreseen before hand, it is the view of the Court, that the legislatures at their wisdom made “flexibility of joints” as regards the applicability of the Regulation 21(1) and (2) to appreciate such contingencies by the wisdom and decision of the Election Commission in the form of a opinion.
54. In that view of the matter this Court is of the view that about the declaration of assets within the time as prescribed that is not later than 30 days, practically has given a scope of consideration of the fact that in the event of any dispute under Regulation 12(4) & (5) there is a scope before the Election Commission to deal with the matter in respect of the members who have already submitted their declaration but belatedly.
55. Furthermore, on analysis of the said statutory provision it further appears before this Court that under Regulation 21(2) after the word “if he fails to file a declaration referred to”, there is no mentioning of the word “within the stipulated period as prescribed”. Under Regulation 21(1), a debarring clause, to disqualify the members practically is a provision to. invite civil consequences of “disqualification to remain as a member” despite election following the Election Rule as held and conducted by the Election Commission.
56. It is settled legal position that when a statue prescribes a rigour of disqualification in the event of failure to do something, it must be clearly stated in clear language by identifying the default provision. Here in the instant case the language of Regulation 21(2) if analyzed, the resultant effect is that if a member fails to fife declaration referred to in Sub-section (1) has to suffer disqualification but there ‘is no mentioning that “within the stipulated time” which keeps a statutory provision ambiguous. Besides such if the aforesaid provision of 21(2) (a) is analyzed it appears that the word ‘fails to file’ practically is identifying the word ‘declaration’ referred to in Sub-section (1) and it is not identifying the “time limit of such declaration”.
57. Having regard to all these statutory provisions this Court is of the view that the statute accordingly has kept the points open for adjudication and decision by the Election Commission by declaring his opinion as prime opinion and a leading opinion for decision as would be taken by the Administrator under the Regulation 12(4) of the said Regulation, in case of a dispute if is raised.
58. Furthermore, it appears that the reasonings as advanced by the learned trial Court below that prescribed format was not there which practically made the members inconvenient to submit the declaration. It was held that there was no procedure for filing such assets to the Chairperson and to grant appropriate receipt by giving date thereof. It appears from the opinion of the Election Commission that two writ petitioners filed their declaration on 25.10.2005, if the time limit is considered as mandatory that is strictly within 30 days as prescribed under Regulation 21(1), the same got a relaxation avenue in view of the fact that the last date was Sunday being a holiday for which there was no scope to file such declaration before the Chairperson.
59. Having regard to all these state of affairs and considering the illness and the absence of the elected Councillors as well as other factors namely many other members did not file declaration in time, when the Election Commission opined not in favour of disqualification, the Administrator accordingly had no jurisdiction to take a contra decision which is impugned in the writ application.
60. The learned Advocate Mr. Roy Choudhary for the appellant urged the principle of ejusdem Generis to rescue this situation of the statutory provision of 12(4) of the Regulation to contend that Regulation 12(5) of the Regulation should be controlled by 12(4) of the said Regulation and the learned Advocate has referred the Craies Interpretation on Statue” to that effect. Having regard to the submission and having regard to the statutory provision we are unable agree with the proposition as advanced, as there is no scope of application of said principle in the factual matrix of the present case. The said principle is applicable only in the premises where a generic word reflects its colour to words which species of such. Here in the instant case there is a clear cut jurisdictional domain identified in the statutory provision namely Regulation 12(4) and (5) to the Administrator to declare a decision on the opinion given by the Election Commission which is required to be followed by the Administrator and to act in accordance with such opinion.
61. Considering all the aspects of the matter and having regard to those relevant provisions as referred to and on the basis of the Apex Court Judgments, this Court is of the view that no interference is necessary to set aside and/or quash the impugned Judgment under appeal. Point No. (ii) and (iii) accordingly is answered against the appellant.
Accordingly, the appeal stands dismissed. However, on the facts and circumstances of the case, no order as to costs.
Manik Mohan Sarkar, J.
62. I agree.