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2007 DIGILAW 714 (PAT)

Kiran Kumari, Kiran Devi v. State Of Bihar

2007-04-09

NAVIN SINHA

body2007
Judgment 1. Heard learned Counsel for the petitioner, learned Counsel for the Commission and State. None appears on behalf of respondent no. 5 despite valid service of notice. 2. The petitioner and respondent no. 5 were contesting candidates for the post of Mukhiya in Gram Panchayat, Padaria, District Madhepura. They both filed nominations. No objections were filed to the nomination of the petitioner. After scrutiny the nominations including that of the petitioner were accepted. The elections were held. The petitioner was the winning candidate and Respondent No. 5 lost to the petitioner. The petitioner was therefore declared as the elected Mukhiya. 3. The respondent no. 5 then filed a complaint before the Commission on 21.8.2006 that the petitioner was short of the age of 21 years and therefore ineligible under Sec. 136(1)(b) proviso of the Bihar Panchayat Raj Act (hereinafter called the Act). The petitioner was noticed and filed her reply. While respondent no. 5 relied upon an Admit Card of the petitioner issued by the Bihar School Examination Board to contend that her date of birth was 6.5.1985 and therefore the petitioner was short of age by 19 days, the petitioner relied on documentary evidence including the voters list, the voters identity card, the certificate issued by the Bihar School Examination Board, the certificate issued by the Hospital at the time of delivery of her child and her horoscope to contend that she fulfilled the requisite age of 21 years. 4. The official respondents stated that the nomination of tho petitioner was accepted in view of her age mentioned in the voters list. 5. The Commission by order dated 27.10.2006 arrived at a determination that different dates of birth of the petitioner appear to have surfaced at different times and therefore the Commission accepting her date of birth as 6.5.1985 as certified by the Bihar School Examination Board produced by respondent no. 5 finds her short by the requisite age of 21 by 19 days. The election of the petitioner was thus set aside. 6. Learned Senior Counsel Shri Jha submitted that respondent no. 5 was herself a contesting candidate. She did not file any objections to the nomination of the petitioner. The respondent therefore acquiesced on the stand of the petitioner that she was of the requisite age. The subsequent allegations were the ire of a defeated candidate. 6. Learned Senior Counsel Shri Jha submitted that respondent no. 5 was herself a contesting candidate. She did not file any objections to the nomination of the petitioner. The respondent therefore acquiesced on the stand of the petitioner that she was of the requisite age. The subsequent allegations were the ire of a defeated candidate. In any event of the matter, in view of the materials furnished by the parties before the Commission there was a serious dispute with regard to the age of the petitioner. The petitioner was seriously contesting the allegation of her ineligibility. The disqualification alleged against the petitioner under Section 136(1)(b) proviso was a disqualification prior to the election. The proper remedy for respondent no. 5 was therefore an election petition and not the present writ proceedings. He next relied upon a Division Bench judgment of this Court in 1958 BLJR 177 (Raghuni Nayer vs. District Magistrate, Darbhanga & Ors.) and 2007(1) PLJR 617 (Kahkashan Parween vs. State of Bihar & Ors.). 7. Learned Counsel for the Commission supported the impugned order to submit that the Commission had arrived at determination on the basis of confusion created by diverse materials placed before the Commission with regard to the age of the petitioner to support the impugned order. 8. This Court has considered the submissions on behalf of the parties. Respondent No. 5 has chosen not to oppose the application. This Court finds that there was competing evidence before the respondent Commission with regard to the age of the petitioner. The petitioner was seriously disputing the allegation of her being underage on documentary evidences. Respondent No. 5 was a contesting candidate and had not objected to the nomination of the petitioner as being ineligible. The impugned order of the Commission itself acknowledges the serious dispute of age and the competing materials placed before it. It then arrives at a determination on conjectures and surmises of the ineligibility of the petitioner. The order does not consider or discuss why the evidence produced by the petitioner was not acceptable and in contradistinction the evidence produced by the Respondent No. 5 was accepted. 9. It then arrives at a determination on conjectures and surmises of the ineligibility of the petitioner. The order does not consider or discuss why the evidence produced by the petitioner was not acceptable and in contradistinction the evidence produced by the Respondent No. 5 was accepted. 9. In the case of Raghuni Nayer (supra) relied upon by the petitioner, a Division Bench of this Court was considering a challenge on behalf of the defeated candidates to the post of Commissioner of the Darbhanga Municipality on the ground that several names had been omitted from the electoral roll of the constituency. This Court upheld the contention of the respondents that the petitioners of that case having participated in the election were estopped from challenging the validity of that election after having lost. They were therefore not entitled to a writ of qua warranto and the writ petition at their behest was not maintainable. Reliance in turn was placed upon another Division Bench judgment of this Court report in ILR 33 Patna 905 (Bindhyachal vs. S.C. Mukherji). In the latter case of Bindhyachal (supra), in a challenge to the election for the posts of Councillors in the Patna Municipal Corporation on the ground that the electoral rolls had been prepared without authority, that the election was a sham, and the persons elected had no right to hold office, it was urged that the petitioners were not competent to maintain the application when they knew of the illegality and acquiesced or concurred in the election. It was held that the objection was well founded. Having been aware of the illegality of the appointment of the District Magistrate for preparation of electoral rolls, for reason of their conduct in acquiescing in the election and acquiescing in the proceedings that had taken place prior to the election no quo warranto could be issued. 10. In the case of Kahkashan Parween (supra) where the issue of age of the winning candidate was likewise in question and who had been disqualified by the Commission on grounds of being underage. 10. In the case of Kahkashan Parween (supra) where the issue of age of the winning candidate was likewise in question and who had been disqualified by the Commission on grounds of being underage. On consideration of Section 136(2) of the Act, Sections 137 and 138(b) of the Act and Article 243(0) of the Constitution of India, it has been held that when there is a serious dispute with regard to the age requiring consideration of competing claims by evidence the Commission does not have the jurisdiction or authority to decide such contested matters after election process was over. 11. This Court, therefore, find it difficult to sustain the order dated 23.10.2006. The same is accordingly set aside. The petitioner is restored to her position as the elected Mukhiya of the Gram Panchayat, Padaria, District Madhepura.