IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5632 of 2010 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 Elecition 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. The Headmaster, Girls Middle School, Anchal-K. Nagar, District- Purnea. 7. Ishrat Parveen, 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. 8. The Bihar School Examination Board, Sinha Library Road, Patna through its Secretary. ….Respondents. ----------- For the petitioner : Mr. S.B.K.Manglam, Advocate. For respondent no.7. : Mr.Shashi Anugrah Narain, Senior Advocate. M/s. K.N.Sahay & Brajesh Kumar, advocate. For Zila Parishad,Katihar : Mr. K.B.Nath, Advocate. For State Election Commission: Mr. Sanjeev Nikesh, Advocate. For the State : Mr. A.Amanullah, S.C.-17. For respondent No.8 : Mr. Girijesh Kumar, Advocate. -------- O R D E R 08/ 20.07.2010 This writ petition has been filed for quashing order dated 28.08.2009 (Annexure-5) passed by the Secretary, State Election Commission (Panchayat), Patna issued vide letter no.1587 rejecting the application filed by the petitioner for declaration that respondent no.7 had not attained the age of 21 years on the date of her election - 2 - as a member of the Katihar Zila Parishad and as such her election as a member and subsequently as the Chairman of the Zila Parishad was void. 2. Admittedly, the election for the Katihar Zila Parishad was held in the year 2006 in which the petitioner as well as respondent no.7 were elected as its members. Thereafter, election for the post of Chairman, Katihar Zila Parishad was held in which the petitioner and respondent no.7 both contested and finally respondent no.7 succeeded. The said election was never challenged before any authority nor any election petition under the provisions of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as „the Act‟ for the sake of brevity) was filed. However, the petitioner claims that he had filed a case on 25.08.2009 (Annexure-4) under Section 136(2) of the Act before the State Election Commission, Patna for disqualifying respondent no.7 from continuing as a member and the Chairman of the Katihar Zila Parishad. The said case was dismissed by the State Election Commission on merits vide the impugned order which was communicated to the petitioner by the Secretary of the Commission vide Letter no. 1587 dated 28.08.2009 (Annexure-5). 3. Subsequently in the year 2009, a no confidence motion was brought at the instance of the petitioner against respondent no.7 in which the petitioner lost and the motion failed as majority of the Parishad supported respondent no.7. Only thereafter the petitioner filed CWJC No.12775 of 2009 challenging the election of - 3 - respondent no.7 as Chairman of Katihar Zila Parishad on the ground that on the day she stood in the election in the year 2006, respondent no.7 was below the age of 21 years. The said writ petition was dismissed on contest by a bench of this court vide order dated 17.03.2010 (Annexure-1 to I.A.No.4759 of 2010) after arriving at the following findings:- “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 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 - 4 - 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 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.” 4. The aforesaid order was passed after full consideration of the points raised by the petitioner in that case which have been reiterated in the instant writ petition again claiming that respondent no.7 had not attained the age of 21 years in the year 2006 when the election was held for Katihar Zila Parishad. 5. So far the date of birth of respondent no.7 is concerned, the birth certificate (Annexure-A at page 73 of the writ petition) granted by the Directorate of Statistics and Evaluation under the Department of Planning and Development, Government of Bihar, clearly shows that the date of birth of respondent no.7 was - 5 - 25.02.1984. Affidavit no.1509/2003 ( Annexure-A series at page 77 of the writ petition ) sworn by the father of respondent no.7 before the Executive Magistrate, Purnea also shows that the date of birth of respondent no.7 was 25.02.1984. Furthermore, in the voter list of 2003 (Annexure-C at page 78 of the writ petition) the age of respondent no.7 has been shown as 21 years. Apart from other documents, these papers were quite sufficient to show that respondent no.7 was above 21 years of age in the year 2006 and hence when the elections were held she had rightly mentioned her age as above 21 years in the required papers in the said election. 6. Learned counsel for the petitioner has relied only upon a transfer certificate dated 05.03.2002 (Annexure-8 at page 89 of the writ petition) said to have been issued by the Principal of the Middle School showing the date of birth of respondent no.7 as 25.02.1986, but there is another transfer certificate of the same Principal dated 05.03.2002 (Annexure-A series at page 74 of the writ petition) in which the date of birth of respondent no.7 has been recorded as 25.02.1984. The comparative perusal of those two certificates clearly show that the date of birth given in the certificate at page 74 of the writ petition is given both in numbers as well as in letters and the said certificate contains the seal of the Principal below his signature and also contains the details of joining and leaving the school by respondent no.7, but in the certificate at page-89 of the writ petition neither the date of birth of respondent no.7 is mentioned in letters, nor any seal of the Principal was given below - 6 - his signature nor even the details of joining and leaving the school have been mentioned . Mere attestation by subsequent incumbent to the post cannot make the said certificate at page 89 of the writ petition reliable and trustworthy also because the certificate at page 89 of the writ petition was shown to have been obtained much subsequently on 27.03.2010 for the purposes of this case whereas the certificate at page 74 appears to have been granted in the year 2002 itself. Respondent no.7 has also challenged the transfer certificate annexure at page 89 of the writ petition to be fraudulent and collusive in paragraph-9 of her I.A.no.4759 of 2009 which statement has not been contradicted by the petitioner by any rejoinder or reply. In the said circumstances, this court finds that the transfer certificate annexed at Page 74 showing the date of birth of respondent no.7 as 25.02.1984 is reliable and correct and is also fully supported by other documents. In the aforesaid facts and circumstances as well as the materials on record, the date of birth of respondent no.7 given in the list of matriculation examinees (Annexure-2 at page 43 of the writ petition) as 24.11.1989 cannot be legally relied upon as the date given in the said list does not tally with the claim of either of the parties or with either of the aforesaid certificates. Absence of any step for correction of the date mentioned in the list of matriculation examination cannot legally change the actual date of birth of respondent no.7 fully proved by the above mentioned valid and reliable materials. 7. The Apex Court in case of Sushil Kumar V. Rakesh - 7 - Kumar, reported in AIR 2004 Supreme Court 230, as well as in case of Brij Mohan Singh V. Priya Brat Narain Sinha, reported in AIR 1965 SC 282, observed that in actual life it often happens that persons give false age of the child at the time of admission in a school so that child may have an advantage at the time of seeking public service for which a minimum age for eligibility is often prescribed and hence entry of the date of birth made in the school register in terms of Section 35 of the Act should be considered from that perspective. 8. Furthermore, the Hon‟ble Apex Court in case of Birad Mal Singhvi v. Anand Purohit, reported in 1988 Supp SCC 604, held that an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the date of birth was recorded. The said principle has been reiterated by the Apex Court in case of Chittaranjan Das Vs. Durapore Project Limited and others, reported in 1999 CWN 897 and also in case of Coal India Limited v. Arun Kumar Sinha and others, reported in 1999 (1) SLR 151. 9. In the instant case also there is absolute absence of any material on which the date of birth of respondent no.7 was recorded in the matriculation examination (Annexure-2 at page 43 of the writ petition), whereas there is sufficient material, as discussed above, to show that the said entry was not correct and the date of birth of the - 8 - petitioner was 25.02.1984. 10. Learned counsel for the petitioner has relied upon a decision of the Supreme Court in case of K.Venkatachalam Versus A. Swamickan and another, reported in (1999) 4 SCC 525, in which it has been held that if an M.L.A is elected by impersonation, the High Court is not powerless to grant the relief in such matters. Learned counsel for the petitioner has also relied upon a decision of a single bench of this court in case of Punam Kumari Vs. State Election Commission, Bihar, & ors, reported in 2007(4) P.L.J.R.787, holding that the eligibility of a candidate to contest the election can be challenged in writ jurisdiction after the election and a writ in the nature of quo-warranto can be filed at any time and by any person. 11. So far the reliance placed by learned counsel for the petitioner on the aforesaid decisions are concerned, either learned counsel for the petitioner should have cited those decisions before the court which was hearing his earlier filed writ petition bearing CWJC No.12775 of 2009 or should have taken that point by way of challenging order passed in the said writ case before any higher/ appellate forum. Not having done that, the petitioner cannot be allowed to take those points as a challenge to the earlier order passed by another Bench of this court in the abovementioned CWJC No.12775 of 2009 because this court cannot sit in appeal against the order passed in the aforesaid writ case. 12. Learned counsel for the petitioner has also relied upon - 9 - a decision of the Apex Court in case of Dalip Singh Vs. State of Uttar Pradesh and others, reported in (2010) 2 SCC 114, in which it was held that the very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts and if the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. In the instant case, this court does not find any suppression or distortion of facts by respondent no.7, as has been discussed above on the basis of materials on record, whereas on the other hand, it is the petitioner who has not candidly stated and has suppressed and has distorted the relevant facts of this case because she neither annexed order dated 17.03.2010 passed in CWJC No.12775 of 2009 nor stated any detail about the nature of the said order passed by this court, which was essential for proper adjudication of this case. It was respondent no.7 who brought the said order of this court on record vide Annexure-1 of her I.A.No.4759 of 2010. 13. Considering the aforesaid settled principles of law as well as the materials on record and also considering the order passed by another bench of this court on 17.03.2010 in CWJC No.12775 of 2009 rejecting similar writ petition of the petitioner by a well discussed and reasoned order considering in detail the relevant facts involved in the case, this writ petition appears to be absolutely frivolous and mischievous filed with malafide and ulterior motive abusing the process of law and wasting the valuable time of this court. - 10 - 14. In the said circumstances, this writ petition is dismissed with cost of Rs.10,000/- (Rupees Ten thousand) to be paid by the petitioner to respondent no.7 within four weeks. Sunil ( S.N.Hussain,J.)