IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12775 of 2009 Rukmini Devi, wife of Ashok Kumar Mehta, resident of village-Mohammadpur, P.O.-Durgaganj, P.S.-Kadwa, District-Katihar, presently a Member of Katihar Zila Parishad from Katihar Zila Parishad Territorial Constituency No.17. -Petitioner. VERSUS 1. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna, through the State Election Commissioner. 2. The State Election Commissioner, The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna. 3. The Secretary, The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna. 4. The District Magistrate, Katihar, District-Katihar. 5. The Deputy Development Commissioner-cum-Executive Officer, Zila Parishad, Katihar, District-Katihar. 6. Ishrat Praveen, wife of Sri Jakir Hussain, resident of village-Nimol, P.O.-Nimol, P.S.-Ajam Nagar, District-Katihar, presently the Chairman of Katihar Zila Parishad, District-Katihar. -Respondents. ----------- Counsel for the Petitioner : Mr. S.B.K. Manglam. Counsel for the Zila Parishad : Mr. K.B. Nath. Counsel for the respondent no.6 :Mr. Shashi Anugrah Narain, Sr. Adv. Mr. K. N. Sahay. Counsel for the Election Commission : Mr. Rajeev Lochan. ------------ 04 17.03.2010 The petitioner, by this writ petition, challenges the election of respondent no.6 as the Chairman of Katihar Zila Parishad. The ground for challenge is that respondent no.6, on the day she stood for election in the year 2006, was below the age of 21 years. The challenge has been made by the writ petition in the year 2009. Having been moved the Election Commission, without the matter being decided on merit, even before the Election Commission, the matter was moved in the year 2009. Respondent no.6 has appeared and Mr. S.A. Narain, - 2 - learned Senior Counsel appears to oppose the writ petition. Heard the parties and with their consent, the writ petition is being disposed at this stage itself. The solitary ground for challenging the election of respondent no.6 is that in the year 2006 she had not attained the age of 21 years, which is a minimum age, as prescribed under Section 136(1)(b) of the Bihar Panchayat Raj Act. As to the reason why the challenge was made after more than 3 years of the election, it is stated on behalf of the writ petitioner that subsequent to the election of the respondent no.6, as the Chairman of the Katihar Zila Parishad, respondent no.6 filed nomination paper in the year 2009, for standing in the election as a member of the Legislative Council. In support of her application, she had filed an affidavit allegedly giving the age as 23 years. Calculating the age backwards, it would be obvious that if this statement is true then in the year 2006, she was surely below 21 years, thus, disqualified. On these findings, the petitioner approached the State Election Commission in terms of Section 136(2) of the Bihar Panchayat Raj Act, 2006, but in view of the judgment of this Court the State Election Commission refused to entertain the same and hence the writ petition. In my view, the question whether respondent no.6 committed a fraud and vehemently got elected on a mis declaration of age is a question which is highly disputed. Further, as held by the Apex Court in the case of Shri Krishan Vs. The Kurukshetra - 3 - University, Kurukshetra since reported in AIR 1976 SC 376 where a person on whom fraud is committed is in a position to discover the truth by due diligence and does not do so fraud is not established. Here, when the election process was set in motion, petitioner who was also a contesting candidate right from the primary election as a Ward Councillor up to the election of the Chairman, she was aware that respondent no.6 was contesting on the ground that she was above 21 years that was a question of basic qualification and/or disqualification. Due diligence requires petitioner to make enquiry regarding that and not sit for 3 years and then discover the fraud and move a writ petition. Thus, in my view, the proper remedy for petitioner was an election petition and not this writ petition. The petitioner cannot claim discovery of fact after 3 years, and make it as a ground to get fresh lease of life to challenge the same. Due diligence required him to act otherwise. Further, respondent no.6 has brought on record various documents to show that she was 21 years of age when she fought election in the year 2006. Documents, some of which are voters list of the year 2005, prepared in the year 2003, showed her age to be 21 years. The document was prepared long before the questioned election. She has explained that 23 years was written for the MLC election nomination paper because the 2009 electoral roll showed her age to be 23 years wrongly, the application had to be consistent with the voters list and thus the mistake. Petitioner, on the other hand, has brought on record the - 4 - cross-list of matriculation examination which showed that respondent no.6 was about 18 years old in the year 2006. Respondent no.6 states that necessary steps have been taken for its corrections. In my view, these facts are facts seriously in controversy for which this Court in this summary jurisdiction is ill- equipped to decide. Thus, in my view, writ is not the remedy for the reliefs sought for by the petitioner. The writ petition is, accordingly, dismissed. Trivedi (Navaniti Prasad Singh, J.)