IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16239 of 2011 Ajay Kumar S/O Sri Uma Shankar Rai Resident Of Village-Hardaspur, P.S. Bakhtiyarpur, District-Patna. ………… Petitioner Versus 1. The State Election Commission, Bihar at Patna. 2. The State Election Commissioner, The State Election Commission, Bihar At Patna. 3. The State Of Bihar Through District Magistrate-Cum-District Election Officer (Panchayat), Patna. 4. The Returning Officer (Panchayat), Bakhtiyarpur, Distt.-Patna. 5. Jagdeep S/O Late Jagdish Rai Resident Of Village-Hardaspur, P.S. Bakhtiyarpur, District-Patna. ….. Respondents For the Petitioner : Mr. Rajiv Kumar Verma, Sr. Advocate M/s Alok Kumar Sinha-1, Bhola Kumar For the State : Mr. Kamlesh Kumar Sharma, AC to SC 22 For Respondents 1 &2: Mr. R.S. Pradhan, Sr. Advocate Mr.Sanjiv Nikesh, Advocate For Respondent No.5 : Mr. Vinay Kirti Singh, Advocate Mr.Santosh Kumar Sinha-2,Advocate Dr.Vidyanand Kumar, Advocate Mr.Suresh Singh, Advocate O r d e r 3 18.10.2011 The petitioner prays for quashing the order dated 30.8.2011 passed by the State Election Commission, Patna in Case No.31 of 2011, disqualifying him to hold the post of Mukhiya of Hardaspur Diara Gram Panchayat, as he was under age on the date of filing of nomination on 23.3.2011. 2. The prayer is founded on the following grounds: (i) The State Election Commission cannot decide the question of disqualification of a member of Panchayat incurred before election after conclusion of the electoral process (ii) The State Election commission is not competent to decide the contested question of fact which requires evidence and is best left to be tried by the Election Tribunal. 2 3. Before we examine the issues involved in this case, the brief facts of the case are being indicated. The petitioner filed his nomination paper on 23.3.2011 for election to the post of Mukhiya of Hardaspur Gram Panchyat within Bakhtiarpur Block. The date of birth mentioned in the nomination paper as well as in affidavit appended to it, is given as 15.2.1988, as per which the petitioner would be of 23 years of age. The petitioner having polled highest number of votes was elected Mukhiya. Respondent no.5 Jagdeep Rai filed a complaint petition under section 136(2) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as „the Act‟) before the State Election Commission on 13.6.2011 for declaring that the petitioner incurred disqualification mentioned under sub-section (1)(b) of Section 136 of the Act, as he was below 21 years on the date of filing of nomination. The complainant also alleged that the petitioner also did not disclose that he has an alias name of Shekhar Suman. The State Election Commission issued notice to the petitioner and also directed the District Magistrate cum District Returning Officer (Panchayat), Patna to authorize a competent officer to appear before the Commission on 27.7.2011 along with relevant documents after making due enquiry. As per the direction of the District Magistrate, one Shri Ravi Bhushan, Senior Deputy Collector conducted an enquiry and submitted his report vide letter no.2252 dated 25.7.2011 contained in Annexure-R-5/C. Before the Enquiry Officer, the petitioner admitted that his date of birth was entered in school register on the basis of date of birth given by his parents. The State Election Commission after perusal of materials on 3 record and after giving due hearing to the parties came to a finding that the petitioner was below 21 years of age on the date of filing nomination paper, as such was ineligible to contest election inviting disqualification under section 136(1)(b) of the Act. 4. The State Election Commissioner observed that the petitioner had mentioned his date of birth in his nomination paper as well affidavit annexed to it as 15.2.1988, whereas the documents on which he placed reliance showed his date of birth as 30.11.1987. The State Election Commission noticed that the matriculation marks sheet, admit card of matric examination, school register, all showed the date of birth of the petitioner as 18.10.1992. He found that the enquiry report and other documents amply proved that the petitioner had concealed the fact that his real name is Shekhar Suman. The Commission concluded that the date of birth of the petitioner is 18.10.1992 and not 30.11.1987. On these findings, the Commission allowed the complaint petition and held that the petitioner is not qualified to hold the post of Mukhiya under section 136(1)(b) of the Act. 5. Mr. Rajiv Kumar Verma, learned Senior Counsel appearing for the petitioner submits that the State Election Commission over looked various documents filed by the petitioner which would go to prove that his date of birth is 30.11.1987. He drew my attention to three documents, namely Voter list of Panchayat Election of the year 2011, Voter Identity Card issued by the State Election Commission in the year 2005, and Birth and Death Certificate dated 5.10.2008 issued by the Deputy Superintendent, Birth & Deaths under Birth & 4 Death Registration Act, 1969. In nut shell, Mr. Verma submitted that the State Election Commission erred in deciding contested question of fact requiring evidence. In support of his submissions, he has relied upon a decision in the case of Rekha Kumari Vs State of Bihar & Ors, reported in 2006(4) PLJR 634; Birad Mal Singhvi vs Anand Purohit, reported in A.I.R. 1988 SC 1796 and State Election Commission & Ors Vs Poonam Kumari, reported in 2009(2) PLJR 189. 6. Mr. R.S. Pradhan, and Mr. Sanjiv Nikesh, appeared on behalf of the State Election Commission, whereas Mr. Vinay Kirti Singh, appeared on behalf of Respondent no.5. Mr. Kamlesh Kumar Sharma, AC to SC 22 appeared on behalf of the State. They state that section 136(2) of the Act authorized the State Election Commission to decide questions involving disqualification falling within section 136(1) of the Act. They submit that a candidate below 21 years of age is disqualified to contest election of Mukhiya, Sarpanch, Panch of Gram Katchahry etc. as it is one of the disqualifications mentioned in section 136(1) of the Act. They further state that the petitioner has not disputed the admit card of Matric examination wherein his date of birth is mentioned as 18.10.1992. In fact, the petitioner has himself annexed the admit card issued by the Bihar School Examination Board as Annexure-2 to the writ application. They state that the petitioner has tried to hide that his real name is Shekhar Suman which fact would be appear from the admit card of matric examination, school leaving certificate of Sir Ganesh High School, Bakhtiarpur as well as school register. 5 7. Mr. Vinay Kirti Singh has annexed the copy of the enquiry report prepared by Senior Deputy Collector pursuant to the direction of the District Magistrate cum District Returning Officer as well as the State Election Commission. The enquiry report dated 25.7.2011 contained in letter no.2107 has been annexed as Annexure-R-5/C to the counter affidavit filed by respondent no.5. It would appear from the enquiry report that the petitioner appeared and admitted that his name is Shekhar Suman. He further admitted that the certificate issued by Sir Ganesh High School in the name of Shekhar Suman is in respect of him. The date of birth was entered in the school register at the time of admission on the statement of his parents who got a lesser age entered in the school register. 8. I have heard learned counsel for the petitioner and the respondents. The issue involved is, whether after completion of electoral process, the State Election Commission is competent to decide the question whether a Mukhiya, a Member of Panchayat, Pramukh of Panchayat Samiti or Adhyaksha of Zila Parishad or Panch/Sarpanch of Gram Katchahry was not qualified to contest election, as one suffered a disqualification mentioned in section 136(1) of the Act. 9. The disputes centers round section 136(1)(a)(b) and 136(2) of the Act, which I find relevant to quote: “136. Disqualification for Membership- (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person- (a) is not a citizen of India; 6 (b) is so disqualified by or under any law for the time being in force for the purposes of election to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years. (c) xx xx xx (d) xx xx xx (e) xx xx xx (f) xx xx xx (g) xx xx xx (h) xx xx xx (i) xx xx xx (j) xx xx xx (2) If any question arises as to whether Member of Panchayat at any level including Mukhiya of Gram Panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Kutchahry or Panch of Gram Kutchahry was disqualified before election or has incurred disqualification after election as provided in Article 243-F of Constitution of India and subject to any disqualifications mentioned in Section 135 or sub-section (1) of Section 136, the question shall be referred for the decision of the State Election Commissioner. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such disqualification and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard”. 10. Learned counsel for the petitioner has argued that sections 137 and 138 of the Bihar Panchayat Raj Act, 2006 as well as Article 243-O of Constitution of India bars interference by Courts in electoral matters of Panchayat. Article 243-O of the Constitution is quoted hereinbelow: “243-O. Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies, made or purporting to be made under article 243-K, shall not be called in question in any Court; (b) no election to any Panchayats shall be called in 7 question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State”. 11. It is true that Article 243-O (b) bars calling in question an election to a Panchayat except by way of an election petition. However, Article 243-O (b) also provides that such dispute can also be questioned in such manner as is provided for by or under any law made by the legislature of the State. 12. Article 243-F of the Constitution refers to disqualifications for membership of a Panchayat. The article states that a person shall be disqualified for being chosen as and for being a member of Panchayat, if he disqualifies under any law for the time being or if he has not attained the age of 21 years. Sub-Article(2) of Article 243(e) states that if any question arises as to whether a member of Panchayat has become subject to any of disqualifications under the law, the question shall be referred to for the decisions of such authority and in such manner as the legislature of a State may, by law, provide. 13. Article 243-F of the Constitution provides that State legislature can frame law for referring questions relating to disqualification for decision of a prescribed authority. 14. Section 136(1) of the Act enumerates a list of disqualifications which would disqualify a person for election for holding the post of Mukhiya etc. Section 136 (2) is in tune with authorization conferred under Article 243-F(2). Sub-section (2) of Section 136 of the Act states that if a member of Panchayat at any level including Mukhiya, 8 is disqualified before election or has incurred disqualification after election as provided under Article 243-F of the Constitution and subject to any disqualification mentioned in section 135 or sub- section (1) of Section 136 of the Act, the question shall be referred for the decision of the State Election Commissioner. The provision also provides that matter of disqualification before or after election may be brought to the notice of the State Election Commissioner either in form of complaint, election or information. The provision which has been engrafted in terms of Article 243-F (2) does not restrict the State Election Commissioner to look into such complaint or information given during electoral process only. The amendment to section 136(2) of the Act which was incorporated vide Amending Act 10/2009 is in wider term and cannot be given restrictive meaning so as to limit the examination of complaint regarding disqualification filed during the electoral process. The decision on the point in case of Rekha Kumari (supra) was rendered prior to amendment. 15. The reliance of the petitioner on a Division Bench judgment in the case of State Election Commission and others Vs Poonam Kumari (supra) would be of no help, as the Division Bench was examining the power of State Election Commissioner to look into the question of disqualification enumerated in section 135(1) prior to Amending Act 10/2009. In the aforesaid case, the State Election Commission went into the issue of disqualification mentioned under section 135 of the Act. The Division Bench observed that disqualification mentioned in section 135 of the Act cannot be gone 9 into by the Commission as it was not authorized by the Act to decide such issues. In the instant case, the Commission has gone into the issue of disqualification covered under section 136(1) for which it was duly authorized under section 136(2) of the Act. 16. The petitioner while relying upon decision of Rekha Kumari Vs State of Bihar, reported in 2006(4) PLJR 634 stated that the Commission cannot go into the contested question of facts which would require evidence and it is best to be left to be decided by the Election Tribunal. I am in agreement with the observation made by the learned Judge in the case of Rekha Kumari (supra) in this regard. However, if the relevant documents are not disputed, then the State Election Commissioner would be in his right to decide such question. The State Election Commissioner has observed in the impugned order that the relevant documents involving determination of age have not been disputed by the petitioner. 17. The aforesaid aspect would be clear from the following facts; Respondent no.5 filed a complaint before the State Election Commission stating that the petitioner was not of 21 years of age on the date of filing of nomination, as such he should be disqualified for holding the post of Mukhiya. The State Election Commissioner directed the District Magistrate cum District Returning Officer to authorize an officer to appear before him with all relevant documents and enquiry report. The enquiry was entrusted to Senior Deputy Collector. The petitioner appeared before the Enquiry Officer and admitted that the date of birth mentioned in Sir Ganesh High School, Bakhtiarpur was registered on the basis of the 10 statement of his parents. He further admitted that Shekhar Suman is his alias name and the certificate regarding date of birth issued by Sir Ganesh High School is his. The name of parents in the register of Sir Ganesh High School has been recorded as Uma Shankar Rai and Kaushaliya Devi, who admittedly are parents of the petitioner. The School register of Sir Ganesh High School, the matriculation marks sheet, the admit card of matriculation examination issued by the Bihar School Examination Board all prove that the petitioner‟s real name is Shekhar Suman and his date of birth is 18.10.1992. The petitioner as such would be below 21 years of age on the date of filing of nomination on 23.3.2011. The petitioner has not denied the genuineness of these certificates. There is another aspect to this matter. The marks sheet issued by the Bihar School Examination Board inadvertently mentioned his father‟s name as Uma Shankar Devi Yadav which the petitioner got corrected. The marks sheet of matriculation certificate showing correction made in petitioner‟s father‟s name is annexed as Annexure-R-5/F. However, the date of birth of the petitioner continued in the mark sheet of Matric examination as 18.10.1992. This too, shows that had the petitioner disputed the correctness of age mentioned in the marks sheet, he would have made serious endeavors to have it corrected. The petitioner has subsequently laboured to show that he has written to the school for correction of date of birth. It appears that the petitioner has not made any serious efforts to get his date of birth appearing in matric certificate corrected. The State Election Commission has found the documents produced belatedly before the 11 Commission has been procured. I do not find any reason to differ with the conclusion of the Commission. 18. Furthermore, the respondents submit that the petitioner in fact subsequently tried to fabricate the documents to show that it has tried to get his date of birth rectified. I find that the aforesaid plea was not even taken before the State Election Commission at the first instance and only when he was countered with the query, then an adjournment was sought and such application was brought on record to show that a request has been made for correcting the date of birth in his marks sheet. 19. The State Election Commissioner has held that undisputed documents go to show that the date of the birth of the petitioner is 18.10.1992. I do not find any fault with the aforesaid findings. 20. The petitioner himself has admittedly given two dates, as his date of birth; one as 15.2.1988 which finds mentioned in his nomination paper and the other is 30.11.1987 as appearing in Birth & Deaths Certificate. 21. As in this case the relevant documents are not disputed, the decision rendered in the case of Rekha Kumari (Supra) would not be applicable in the instant case. In case of Rekha Kumari, the learned Judge held that the facts are contested and are in serious dispute, as such, the authors of the documents ought to be examined in accordance with the Evidence Act which function is best left to Election Tribunal. 22. Both the petitioner and the State had placed reliance upon a 12 decision in the case of Birad Mal Singhvi vs Anand Purohit, reported in AIR 1988 SC 1796, particularly paragraph 14 which runs as under: “14……………… The date of birth mentioned in the scholar‟s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown tobe made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar‟s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value………….” 23. The decision would be more helpful to the respondents in view of own admission of the petitioner that the date of birth recorded in Sir Ganesh High School which formed the basis for entry of his date of birth in the matriculation certificate was made on the basis of his date of birth itself given by his parents. The Hon‟ble Apex Court has observed in paragraph 14 that if the entry in the school register regarding date of birth is made on disclosure given by the parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. 24. In the case in hand, the petitioner has himself admitted before the Enquiry officer that the entry in the school register regarding his date of birth was made on the basis of information 13 tendered by his parents. 25. For the reasons stated above, I do not find sufficient grounds to interfere with the impugned order dated 30.8.2011, passed by the State Election Commission, Patna disqualifying the petitioner under section 136(1)(b) of the Act for holding the post of Mukhiya being under age on the date of filing of nomination. This writ petition has no merit and it is accordingly dismissed. Md.Jamaluddin Khan AFR (Samarendra Pratap Singh,J)