IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14847 of 2006 SANJAY SINGH Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Kamal Nayan Chaubey,Sr.Adv. Mr. Ganesh Pd.Singh & Mr. Surendra Kr. Singh, Advocates For the State : G.P.II For respondents no. 3 & 4 : Mr. Mr. Rajiv Lochan, Adv. For respondent no.8: Mr. Rakesh Kumar & Mr. Aditya Nr.Singh, Advocates For respondent no.9: Mr. Shashi Anugrah Narain,Sr.Adv. Mr. Prakash Srivastava,Adv. ----------- 10 22/1/2009 In this writ application the petitioner has made a prayer to the following effect: “(i) To issue an appropriate writ, order or direction commanding the respondents treat the office of Mukhiya of Nehusa Panchayat under Harnaut block in the District of Nalanda as vacant due to taking oath within 3 months of the election by the respondent no.8. (ii) To issue a further writ, order or direction commanding the respondents to take affective steps for the purpose of re-election for the post of Mukhiya of Nehusa Panchayat under the Harnaut Block in the District of Nalanda forthwith, so that the citizen of Panchayat may not suffer. (iii) To issue a further writ, order or direction commanding the respondents to hand over the charge 2 of office of Mukhiya of Nehusa Panchayat under Harnaut Block in the district of Nalanda to Up Mukhiya, so that the work of petitioner may not hamper in the meantime.” The facts giving rise to the present writ application at the instance of a voter is that in the last Panchayat election for the post of Mukhiya in Nehusa Gram Panchayat under Harnaut block in the district of Nalanda on 11.6.2006 respondent no.8 (Shampu Devi @ Simpu Devi)was declared elected on 19.6.2006 but then as on 21.6.2006 she had been made accused in Harnaut P.S.Case No. 104/2006 for the offences under section 307 and other allied offences of the Indian Penal Code and section 27 of the Arms Act in which the police after conducting investigation had submitted a charge sheet, whereafter the court had taken cognizance for those offences including section 307 of the Indian Penal Code and section 27 of the Arms Act against the petitioner and others. It is the further case of the petitioner that the 3 anticipatory bail application of respondent no.8, the elected Mukhiya, was rejected by the District and Sessions Judge on 29.8.2006 and warrant of arrest against respondent no.8 was issued by the Chief Judicial Magistrate, Nalanda and as such, despite her being elected on 19.6.2006 she could not take oath of the office of Mukhiya of Nehusa Gram Panchayat and as such, when a period of three months had expired from such date of her being elected, the post of Mukhiya would be deemed to have become vacant in terms of section 136(4) of the Bihar Panchayat Act, 2006 (hereinafter referred to as „the Act‟). The petitioner in this context has placed reliance on an administrative circular of the State Election Commission, Bihar dated 1.7.2006 directing all the District Magistrate and the Returning Officers of the Panchayat to treat the post of Muykhiya vacant if the elected candidate did not take oath within three months of being elected. It is the specific assertion of the petitioner that whereas the other elected persons in the 4 said election took oath on 28.7.2006, respondent no.8, the elected Mukhiya being an absconder in the aforementioned criminal case could not take oath and as such the post of Mukhiya would be deemed to have become vacant on or after 19.9.2006, on completion of a period of three months in terms of section 136(4) of the Act. The petitioner in this regard claims that repeated representations filed to the District Magistrate and the State Election Commission for declaring the post of Mukhiya to have become vacant having been not disposed of he had been left with no remedy except to file this writ application for the reliefs already quoted above. When this case came for hearing in admission matter and the notices were issued to respondent no.8 by an order dated 7.3.2007, she had appeared and had filed a counter affidavit claiming that she had taken oath on 28.6.2006 and in support thereof an oath certificate by the Returning Officer cum Block Development Officer dated 28.6.2006 was produced, this 5 Court by an order dated 16.7.2008 had directed the Block Development Officer, Harnaut to produce the original records and registers with regard to administering of oath with regard to Nehusa Gram Panchayat within a period of ten days. This Court had to do so because there were oath against oath, inasmuch as the official respondents no. 5 and 6 in their counter affidavit had also taken a plea of respondent no.8 to have been subscribed oath on 28.6.2006. The fact was seriously disputed by the petitioner by filing a rejoinder affidavit enclosing a large number of documents. It has to be noted that thereafter this Court on receipt of the record through the State counsel had retained them on record by an order dated 6.8.2008 and after hearing the parties had passed an order dated 27.8.2008 for adding Santosh Kumar Srivastava, the then Election Officer cum Block Development Officer, Harnaut as respondent no.9, who is said to have subscribed oath to respondent no.8 on 28.6.2006. It has to be 6 noted that since Santosh Kumar Srivastava, the then Block Development Officer, subscribing the oath had stood transferred and affidavits were filed by the successor Block Development Officer, this Court in view of the allegations made by the petitioner of conniving and callusing with respondent no.8 had not only added Mr. Srivastava as a party respondent no.9 by name but had also directed Ram Swaroop Choudhary, the Gram Panchayat Supervisor and Jai Prakash Singh, the Block Statistic Supervisor to produce the oath register and the certificate which is said to be in their custody and to that effect the District Magistrate, Nalanda was directed to ensure that the said papers were produced to this Court by the said person. From the order of this Court dated 10.9.2008 it also becomes clear that respondent no.9 on service of notice had appeared, whereafter this Court by an order dated 13.1.2009 in view of conflicting affidavits had directed for personal appearance of Santosh Kumar Srivastava, the then Block Development 7 Officer cum Election Officer, Harnaut, Ram Swaroop Choudhary, Gram Panchayat Supervisor and Jai Prakash Singh, Block Statistic Supervisor in person. It has to be noted that respondent no.9 in his separate counter affidavit had also taken a specific stand that respondent no.8 was subscribed oath of office of Mukhiya by him on 28.6.2006 and that on that day he was neither aware of the F.I.R. nor was aware of any warrant of arrest issued against respondent no.8. Respondent no.8 in his affidavit had given the details of such oath ceremony which is said to have taken in Sabhagar Bhawan, Harnaut on 28.6.2006. Respondent no.9 had also explained that initially as per directive of the Election Commission the oath of Mukhiya was subscribed on 28.6.2006 and the oath of other office bearers was subsequently subscribed on 28.7.2006 and therefore, it was not correct on the part of the petitioner to have amalgamated the oath of two separate set of office bearers. Respondent no.9 in his affidavit had also placed reliance on a detailed 8 enquiry report of the District Magistrate, Nalanda dated 4.11.2007 which was conducted in view of the direction of the Election Commission dated 11.10.2006 holding that respondent no.8 had been subscribed oath on 28.6.2006 in a valid and legal manner. In view of the claim and counter claim when this matter has been heard today and there has been oath against oath as with regard to actual subscribing of the oath to respondent no.8 by respondent no.9, this Court keeping in view of the earlier order dated 27.8.2008 had not only heard the parties but also Santosh Kumar Srivastava, the then Block Development Officer, Jai Prakash Singh, the Block Statistic Supervisor, who have appeared in person. It has to be noted that Ram Swaroop Choudhary, Gram Panchayat Supervisor, has not appeared and an explanation has been offered that he has been repatriated by way of transfer of his service by the State of Bihar to the State of Jharkhand. Mr. Kamal Nayan Chaubey, learned 9 Senior counsel for the petitioner, at the out set had submitted that this Court in view of the production of records and the affidavits filed by the parties must hold that the oath certificate given by respondent no.9 in favour of respondent no.8 was not only an ante-dated document but the whole story of subscribing oath to a person (respondent no.8) who was absconding ever since, the institution of the criminal case on 21.6.2006 must be disbelieved and consequently this Court should hold that the post of Mukhiya became vacant as no oath by respondent no.8 was subscribed in a period of three months. Counsel for the respondents, on the other hand, had not only supported the facts stated in the counter affidavit but had also sought to place reliance on the records showing subscribing of oath to respondent no.8 on 28.6.2006. Mr. Shashi Anugrah Narain, learned Senior counsel appearing on behalf of respondent no.9, the Block Development Officer, Harnaut, who is said to have 10 subscribed the oath to respondent no.8, had submitted that such a dead lock of a disputed question of fact ordinarily could not be decided in a writ proceeding but then as this Court has already issued notice for personal appearance of respondent no.9 to explain as to whether the oath was subscribed or not and further as to whether under what circumstances such oath could be subscribed to respondent no.8 when a warrant of arrest had already been issued against respondent no.8 could be easily verified by examination and cross-examination of respondent no.9. In this context reliance was placed by him on the judgment of the Apex Court in the case of Md. Ikram Hussain vs. The State of U.P. & ors., reported in AIR 1964 S.C. 1625, wherein the Apex Court had held that “Where it is not possible for the court to arrive at a definite conclusion on account of allegations and counter allegations of the parties before it, it is not only the power but the duty of the court in the interest of justice to summon a deponent for cross- 11 examination in order to arrive at the truth and that all procedure is always open to a court which is not expressly prohibited and no rule of the court has laid down that evidence shall not be received, if the court requires it.” Mr. K.N.Chaubey, learned Senior counsel, however, in reply has submitted that this Court should not examine respondent no. 9 and that he would not cross-examine respondent no.9 because the writ proceedings have to be decided on the basis of admitted facts or on affidavits. Ordinarily in view of such stand taken by the counsel for the petitioner himself this Court could have dismissed the writ application as disputed question of fact normally cannot be gone into by a writ Court as was held in a large number of cases by the Apex Court, some of them being in the case of Kathi Raning Ravat vs. State of Saurashtra, reported in AIR 1952 S.C. 123, in the case of Sohan Lal vs. Union of India, reported in AIR 1957 S.C. 529, in the case of Ram Krishna vs. 12 Tendolkar, reported in AIR 1958 S.C. 538, in the case of Union of India vs. Mohd. Ghaus, reported in AIR 1961 S.C. 1526, in the case of Bokaro vs. State of Bihar, reported in AIR 1962 Suppl. (3) SCR 831, in the case of Thansingh vs. Superintendent of Taxes, reported in AIR 1964 S.C. 1419 and in the case of Hindustan Steel Ltd. vs. Kalyani, reported in AIR 1973 S.C. 408. The law in this context in fact that a writ Court ordinarily will not go into the disputed question of fact and relegate the parties to avail remedy of suit however cannot be made applicable in the present case as section 138 of the Act bars a suit before the civil court by providing that no election to any Panchayat shall be called in question except by an election petition presented before the prescribed authority under the Act. Precisely speaking the post election disqualification on account of non-subscribing of oath may not strictly fall within the ambit of section 138(b) of the Act and a suit may be held to be 13 maintainable, inasmuch as the petitioner actually does not intend to call in question the result of the election of the Panchayat rather claims that after such election as the oath was not subscribed in terms of section 136(4) of the Act within a period of three months his seat on expiry of the period shall be deemed to have become vacant. In that view of the matter, this Court having found that there is serious dispute in subscribing of oath could have left the matter by the petitioner to be raised before a civil court where the parties could have led evidence as was held by the Apex Court in the case of Union of India vs. T.R. Verma, reported in AIR 1957 S.C. 882, in the following terms: “This is a question on which there is serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of the courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned judges had referred the respondent to a suit … ” 14 The question, however, would be that when all this exercise has been done by this Court in the last two years as noticed in the earlier part of the judgment and all important person, who had subscribed oath is present before this Court, can this Court not take recourse of recording evidence of respondent no.9 to settle the dispute as to whether respondent no.8 had been subscribed oath on 28.6.2006. This Court in fact having examined the ratio of a large number of cases of the Apex Court beginning from the case of K.K.Kochuni vs. State of Madras, reported in AIR 1959 S.C., Md. Ikram vs. State of U.P., reported in AIR 1964 S.C. 1625, Barium Chemicals vs. Company Law Board, reported in AIR 1967 S.C. 295, I.T.O., Special Investigation Circle vs. Seth Bros., reported in AIR 1970 S.C. 292, Bandhua Mukti Morcha vs. Union of India, reported in AIR 1984 S.C. 802 and Delhi Judicial Service Association vs. State of Gujarat, reported in AIR 1991 S.C. 2176, must hold 15 that it is not only within the power but duty of this Court in the interest of justice to summon the deponent for cross- examination in order to arrive at the truth. As a matter of fact the Apex Court in the case of Union of India vs. Hariram Thakkar, reported in (1974) UJSC 562, had held: “The High Court may, therefore, at a request of the party direct that a person who has filed affidavit be called before the court for cross- examination before his affidavit may be taken into consideration, or the court may allow oral testimony of witnesses to be taken for the purpose of determining any material issue of fact” In that view of the matter, this Court would accept the prayer of Mr.Shashi Anugrah Narain and would proceed to take recourse of recording evidence of respondent no.9. Respondent no.9 accordingly was called to the dock and he had deposed whatever has been stated by him in his counter affidavit with regard to subscribing oath to respondent no.8 on 28.6.2006 was true and 16 correct and to that extent he has fully supported by his following statement in the counter affidavit: “ … The correct fact is, the respondent no.8 was elected for the post of Mukhiya from Panchayat Raj- Nehusa, within the Block of Harnaut. As per schedule notified by the State Election Commission, the respondent no.8 was administered oath of office for the post of Mukhiya on 28.6.2006 (Annexure- A to the counter affidavit filed on behalf of the respondents no. 5 and 6).” It is further stated that this deponent is/was not all concerned with the F.I.R. as incorporated in the writ application or with the proceeding pending in the court of learned C.J.M., Nalanda. Significant to clarify here that the date on which the oath is/are being conducted, the Police officials used to remain present for maintaining law and order situation. This deponent is/was no way concern with the judicial proceeding as there is no mechanism for this deponent to know the respective criminal cases or the processes issued from the court. The oath of the respondent no.8 was conducted on 28.6.2006 and there 17 is/was no illegalities or irregularities conducted. It is again clarified that the respondent no.8 took oath as Mukhiya on 28.6.2006 and a certificate to that effect in form 28 was issued. The oath was taken place in Sabhagar Bhawan, Harnaut … … “ Respondent no.9 in fact has also proved the signature on the oath subscribing certificate issued by him on 28.6.2006 which is Annexure „A” to the counter affidavit and contains signature of both respondent no.8 and respondent no.9 clearly mentioning therein that such oath was subscribed at Shabhagar Bhawan, Harnaut. This Court after recording the aforementioned evidence of respondent no.9 had asked Mr. K.N.Choubey, learned Senior counsel for the petitioner, to cross-examine the said witness. He, however, had refused to do so. Thus, the statement of respondent no.9 in the counter affidavit is duly corroborated in his evidence given in the Court and since the same has not been 18 sought to be contradicted by putting any question in cross-examination, this Court must hold that respondent no.8 was duly subscribed oath for the post of Mukhiya on 28.6.2006 and consequently the prayer made in the writ application to the effect that the post of Mukhiya be made vacant on account of no subscribing oath within a period of three months must be held to be wholly misconceived. That being so, this Court does not find any merit in this application and accordingly, this application is dismissed. There would be, however, no order as to costs. Let the record submitted by the respondents be returned back to the State counsel. The personal appearance of respondent no.9 as also Jai Prakash Singh is also dispensed with. (Mihir Kumar Jha,J.) Surendra/ Abhay Kumar 19