JUDGEMENT 1. Heard learned counsel for the parties. 2. The petitioner seeks setting aside of the order dated 22.12.2008 passed in Case No. 25/2008 by the State Election Commission, Bihar (respondent no. 3) in exercise of power under Section 136(1) & (2) of the Bihar Panchayat Raj Act, 2006 holding that the petitioner is a citizen of Nepal and therefore he is not eligible to continue on the elected post of Mukhiya of Bihar and accordingly disqualified him and held that the post of Mukhiya had become vacant from the date of order and to be filled up in accordance with law. 3. The short facts are that the petitioner was elected as Mukhiya of Gram Panchayat, Dangraul, Block-Gaunaha, District-West Champaran in the election held in the year 2006 and thereafter assumed the office. It appears that a complaint was filed by respondent no. 7 Baliram Yadav before the State Election Commission with a prayer to declare that the petitioner is not eligible to hold the post of Mukhiya of Gram Panchayat, Dangraul alleging that he is a citizen of Nepal and suppressing the said fact has declared himself as a citizen pf India and contested the election for the post of Mukhiya of the said Gram Panchayat and was elected to the same. It is further alleged enclosing photocopy of the electoral roll of Nepal that the name of his entire family finds place in the same Further document regarding registration of land is also alleged in which citizenship number of the petitioner was stated, in addition photocopy of the certificate of citizenship giving the citizenship number of the petitioner was also enclosed. 4. The petitioner was duly noticed by letter dated 23.9.2008 issued by the Deputy Secretary of the Commission and on receipt of the same filed his show cause stating that the petitioner was born in undivided India and thus he became a citizen of India by birth under Articles 5 to 9 of the Constitution of India. It was further submitted that he has never renounced his citizenship as provided under Section 8 of the Citizenship Act in order to acquire citizenship of a foreign country under Section 9 of the said Act. It is further stated that the petitioner did not hold passport of any country and was married to citizen of India and is ordinarily/permanently resident in India since birth. It is further stated that the petitioner did not hold passport of any country and was married to citizen of India and is ordinarily/permanently resident in India since birth. It was further, claimed that the father of the petitioner was also a citizen of India and had been getting privy purse from the Government of India and it was alleged that due to political rivalry between the complainant and the petitioner and due to dispute with his brother living in Nepal who is also well known to the complainant, he was trying to deprive him of his elected post. It was admitted that the petitioner is a descendant of Nepalese grandparents belonging to royal family of Nepal from whom he has got some property as a bequest. The identity card and other documents were alleged to be fabricated, manipulated and forged by the complainant in collusion with his enemies. Subsequently another show cause was filed by the petitioner in which apart from repeating the aforesaid facts it was stated that citizenship of the uncle of the petitioner Sri Narayan Vikram Sah was challenged by Sri Kedar Pandey and in the judgment reported in AIR 1966 SC 160 the Supreme Court has held that his uncle was a citizen of India. It was further submitted that under the provisions of Section 9(2) of the Citizenship Act the Central Government alone is empowered to decide the matter. It is also stated that a certificate has been issued by the District Administration, Bara, Kaleya, Nepal stating that the petitioner was not a citizen of Nepal. 5. In view of the aforesaid conflicting stand of the parties the State Election Commission directed the District Magistrate to send a report in the matter. The District Magistrate, West Champaran, Bettiah by his letter dated 3.12.2008 submitted his report before the Commission stating that a report had been sent from the District Administration, Bara (Kalaiya), Nepal and the said District Administration of Nepal has reported that the petitioner had filed an application on 2065/5/18 (September, 2008) for renouncing his Nepali citizenship which has not been accepted till then; the original report of the authorities of Nepal was enclosed with the D.M.s letter. The petitioner filed another show cause on 22.12.2008 on which the matter was fixed for final hearing by the State Election Commissioner in which it is stated that the report sent by the District Magistrate, West Champaran, Bettiah appears to be manufactured and collusive at the behest of the complainant. It was further alleged that the complainant had filed a report of the Nepal District Administration on 28.11.2008 whereas the same was received in the office of District Magistrate on 1.12.2008 and thus the same was manufactured by the complainant who collusively managed to send the report through the District Magistrate, West Champaran, Bettiah which should not be relied upon. It was further submitted that the petitioner after his birth studied up to Class-VIII in the Rajkiya Middle School, Harinagar, West Champaran, Bettiah till 30.12.1973 for which school leaving certificate issued by the District Superintendent of Education, Rajkiya Madhya Vidyalaya, Nepali Tola, Ramnagar was enclosed. It was further stated that the petitioner was issued a family ration card showing him as a resident of Village Dagraul, Gram Panchayat, Raj Darol, District-West Champaran. It was also stated that the own uncle of the petitioner, namely, Arjun Vikram Shah was twice Minister of State (Sports & Exercise), Government of Bihar. The other facts stated earlier were also reiterated. 6. As against the aforesaid stand of the petitioner the complainant respondent had taken the stand, apart from the allegations made in the complaint, that the petitioner had filed an explanation before the Block Development Officer, Gounaha, District-West Champaran, copy of which was before the State Election Commission in which he had admitted that till 1998 he was a citizen of Nepal and subsequently became a citizen of India. It was the further stand on behalf of the complainant respondent that the registration certificate was sent by the Nepalese authorities on 17.11.2008 and the same was received in the District Magistrates office but the petitioner managed to get the same suppressed and on learning about the same the respondent obtained a copy of the same from the office and also alerted the District Administration about the said fact, as a result of which the said letter was belatedly received in the Panchayat Section of the D.Ms office on 1.12.2008 and the same was sent by the District Magistrate alongwith his letter dated 3.12.2008 to the State Election Commission. It was the further stand that the petitioner has failed to produce anything to show that his father has received privy purse. It was thus submitted that the petitioner had failed to produce any document to show that he was born in India and his father had received privy purse. 7. In view of the allegations and counter allegations made by the parties the State Election Commission issued direction to contact the Collector telephonically as to how the letter of the Nepal District Administration was received in his office, on which it was informed that the letter was received lawfully by registered post and the same was not forged. On a consideration of the aforesaid facts and the materials on the record the State Election Commission came to the conclusion that neither the school leaving certificate nor the other documents produced by the petitioner were able to show that he was a citizen of India by birth. It also took into account the fact that the petitioner had some property in Nepal and some in West Champaran and thus the petitioner was unable to satisfy the Commission that he was citizen of India by birth on the basis of the said documents. The Commission came to the conclusion on the basis of the materials that the petitioner is a citizen of Nepal and accordingly declared him disqualified to hold the elected post of Mukhiya in India and declared the post to be vacant and to be filled up in accordance with law by the impugned order dated 22.12.2008. 8. Learned counsel for the petitioner has assailed the impugned order of the State Election Commission by making three broad submissions. The first submission of learned counsel is that in view of Section 9(2) of the Citizenship Act, 1955 read with Rule 30 of the Citizenship Rules and Schedule-Ill thereof as also Entry 17 of the Union List read with Article 11 of the Constitution of India it is the prescribed authority under the said Act and Rules which alone is competent to decide whether a person has acquired citizenship of another country and a decision on the said point is beyond the authority of the State Election Commission under Section 136 of the Bihar Panchayat Raj Act, 2006. 9. 9. The second submission of learned counsel is that in any view of the matter the disability of the petitioner being prior to election on the post of Mukhiya cannot be questioned by way of complaint before the State Election Commission under Section 136 of the Act in view of Sections 137, 138 and 139 of the Bihar Panchayat Raj Act read with Article 243-0 of the Constitution and the same could only be challenged by filing an election petition under the Bihar Panchayat Raj Act. 10. The third submission of learned counsel is that even if it is assumed that the State Election Commission was within the authority to adjudicate and decide the matter, on the facts of the case no proper enquiry has been held and thus the order passed is illegal and non est. 11. With regard to the first submission learned counsel refers to Article 11 of the Constitution which provides that nothing in the provisions of the Constitution relating to citizenship would derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. It is submitted that pursuant to the said provisions and Entry 17 of the Union List, Parliament has enacted the Citizenship Act, 1955 . It is submitted that under Section 3(1)(a) of the Act every person born in India is a citizen by birth and the petitioner having been born in India and there being no finding to the contrary is accordingly a citizen by birth. Learned counsel further refers to Section 8 of the Act relating to renunciation of citizenship which provides that if any citizen of India of full age and capacity makes in the prescribed manner a declaration renouncing his Indian citizenship, the declaration shall be registered by the prescribed authority and upon such registration that person shall cease to be a citizen of India. Learned counsel submits that there is no renouncing of Indian citizenship by the petitioner. The main thrust of submission of learned counsel however is regarding Section 9 of the Citizenship Act which lays down that any citizen of India who by naturaliza on, registration or otherwise voluntarily acquires the citizenship of another country shall upon such acquisition or as the case may be such commencement cease to be a citizen of India. The main thrust of submission of learned counsel however is regarding Section 9 of the Citizenship Act which lays down that any citizen of India who by naturaliza on, registration or otherwise voluntarily acquires the citizenship of another country shall upon such acquisition or as the case may be such commencement cease to be a citizen of India. Learned counsel submits that any question as to whether, when or how any person has acquired citizenship of another country can only be determined by the prescribed authority. Learned counsel urges that under Rule 30 of the Citizenship Rules, 1956 the Central Government has been prescribed as the competent authority to determine any question for the purpose of Section 9(2) of the Act. It is also submitted that under Schedule- Ill paragraphs 1, 2 & 3 of the Rules the procedure has been laid down in accordance with which the said question has to be determined. 12. It is thus contended by learned counsel that the Central Government alone is competent to decide the question of citizenship of the petitioner and it was not open to the State Election Commission to decide the said issue. According to learned counsel if at all the said matter was to be decided then the same ought to have been referred to the Central Government by the State Election Commission and only on receipt of order from the Central Government it ought to have proceeded further in the matter; until there was adjudication by the Central Government under Section 9(2) the presumption in favour of the petitioner that he was citizen of India would continue and on this score alone the impugned order is wholly without jurisdiction. In support of the same learned counsel relies upon a Constitution Bench decision of the Supreme Court in the case of Md. Ayub Khan V/s. Commissioner of Police, Madras and Others: AIR 1965 SC 1623 , in paragraph 9 of which it has been held as follows: "9. Section 9(1) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso which is not material) by naturalization, registration or otherwise, voluntarily acquired citizenship of another country. Subject to the exception in the proviso, therefore, naturalization, registration or acquisition of citizenship of another country operates to terminate the citizenship of India. Subject to the exception in the proviso, therefore, naturalization, registration or acquisition of citizenship of another country operates to terminate the citizenship of India. Acquisition of citizenship of another country to determine Indian citizenship must, however, be voluntary. By sub-s. (2) provision is made for setting up an authority to determine the question where, when and how citizenship of another country has been acquired, and by R. 30 the Central Government is designated as the authority which is invested with power to determine the question in such manner, and having regard to such rules of evidence as may be prescribed. Provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a passport of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of each case." 13. In this regard learned counsel also relies upon a decision of the Apex Court in the case of Bhagwati Prasad Dixit Ghorewala V/s. Rajeev Gandhi: AIR 1986 SC 1534 , in paragraph-11 of which it has been held as follows: "11. These cases clearly lay down that when the matter falls within S. 9(2) of the Citizenship Act, 1955 , all other provisions of law are excluded. These cases clearly lay down that when the matter falls within S. 9(2) of the Citizenship Act, 1955 , all other provisions of law are excluded. The authority prescribed under the Citizenship Act, 1955 alone can decide the questions arising under S. 9(2) and the rules of evidence which should govern that decision shall be those prescribed for the purpose under that Act.............. For the purpose of deciding the question arising under S. 9(1) of that Act, the Central Government by virtue of the power conferred on it by S.9(2) has been given an exclusive power to determine in accordance with the rules of evidence provided for the purpose whether a person has acquired the citizenship of another country. It follows that when once a person is admitted or held to be a citizen of India, unless there is a decision of the Central Government under S.9(2) of the Citizenship Act, 1955 that he has acquired the citizenship of a foreign country, he should be presumed to be an Indian citizen. Section 9 of the Citizenship Act, 1955 is a complete code as regards the termination of Indian citizenship on the acquisition of the citizenship of a foreign country............... The policy behind S.9(2) appears to be that the right of citizenship of the person who is admittedly an Indian citizen should not be exposed to attack in all forums in the country, but should be decided by one authority in accordance with the prescribed rules and that every other Court or authority would have to act only on the basis of the decision of the prescribed authority in that behalf and on no other basis. That being the mandate of the law, even the High Court, trying an election petition can declare an Indian citizen as having acquired the citizenship of a foreign State only on the basis of a declaration made by the Central Government. If such a declaration made by the Central Government is produced before a High Court trying an election petition the High Court has to give effect to it. If such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned has not ceased to be an Indian citizen. It cannot independently hold an enquiry into that question on its own..............." 14. If such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned has not ceased to be an Indian citizen. It cannot independently hold an enquiry into that question on its own..............." 14. Regarding the second submission that the disability being prior to date of /election could only have been challenged by filing an election petition and not by complaining before the State Election Commission, learned counsel relies upon a decision of a Division Bench of this Court in the case of Sri Bhagwan Singh V/s. The State of Bihar and Others: 2004(4) PLJR 482, paragraphs 16 (relevant part), 18 and 19 of which are quoted below: "16. So far as the post election disqualification is concerned, Rule 139(2) provides that such question shall be referred for decision to such authority and in such manner the Government may by law provides under Rule 122 for dealing with such matters. 18. Thus, it is clear that those candidates, who have incurred disqualification prior to election, their cases cannot be considered in terms of Section 139(2) and only mode of challenging their election is by filing an election petition. The provision as contained in Rule 122, which authorizes the State Election Commission to decide even the matter of disqualification prior to the election, is, thus, ultra vires the provisions contained in Article 243-0 of the Constitution and Sections 140 and 143 of the Act and to that extent, it is declared ultra vires. 19. So far as the provision of Rule 122, which authorizes the State Election Commission to decide the question of disqualification, which was incurred by a member of the Panchayat after election, is concerned, it is valid one and consistent with the provision of Section 139(2) of the Act and this view is fully supported by the aforesaid Constitution Bench judgment where similar provision under Article 192(1) was under consideration." 15. It is thus submitted by learned counsel that the similar provision of Rule 122 of the Bihar Panchayat Election Rules, 1995 framed under the Bihar Panchayat Raj Act, 1995 having been declared ultra vires the provision contained under Article 243-0 of the Constitution and Sections 140 and 143 of that Act, the said powers could not have been exercised by the State Election Commission in the present matter and admittedly the disqualification being a pre-election disqualification the same could only have been challenged by filing an election petition and the order of the Election Commission is without jurisdiction for the said reason also. 16. On the third submission learned counsel submits that the State Election Commission has failed in the task of making an enquiry as is expected of a quasi- judicial authority. It is submitted that although under Section 9 of the Foreigners Act burden of proof is upon the foreigner but once the basic details are provided by the person concerned, then the State has to lead evidence to rebut the same whereas in the present matter the onus was thrown upon the petitioner to show that he is an Indian citizen without the State leading evidence in rebuttal of the facts provided by the petitioner. In support of the said proposition learned counsel relies upon a decision of the Supreme Court in the case of Sarbananda Sonowal V/s. Union of India & Another: (2005)5 SCC 665 , paragraphs 21 and 26 of which are quoted below: "21. The legislature then enacted the Foreigners Act, 1946 which repeated the 1940 Act/Section 2(a) of this Act defines a "foreigner" and it means a person who is not a citizen of India ............... Section 9 of this Act. is important and it reads as under. "9. Burden of proof.If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person." 26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish ones citizenship, normally he may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 17. It is further contended by learned counsel that the Commission did not advert to the materials placed by the petitioner regarding his being citizen by birth of India. It is further argued that the petitioner was not asked to explain nor the alleged materials of the Nepal authorities were shown to him. It is also urged that acquisition of citizenship of a foreign country, has to be voluntary before it comes within the mischief of Section 9(1) of the Citizenship Act whereas if without the petitioner applying, his name is entered in the electoral roll and identity card issued by the foreign country, the same cannot amount to an acquisition of citizenship of that country. It is also the stand of learned counsel that in a similar case of Pramod Kumar Chouhan the State Election Commission got the matter enquired by the District Administration which made local enquiries as to the place of birth, etc. It is also the stand of learned counsel that in a similar case of Pramod Kumar Chouhan the State Election Commission got the matter enquired by the District Administration which made local enquiries as to the place of birth, etc. on the claim of the person concerned and only on the basis of the same the matter was adjudicated whereas the petitioner was discriminated against and without getting any such local enquiry made but only on the basis of collusive, forged and manipulated documents in the matter the case of the petitioner has been decided. 18. Learned counsel for the complainant respondent nos. 6 & 7, on the other hand, submits that under the preamble to the Constitution this country is a democratic republic and free and fair elections are basic feature of democracy and a disqualified person should be removed since he is a usurper and his illegal occupation of the office by suppression of basic facts should not be allowed to be perpetuated. It is urged that purity of elections stands on a higher footing than even secrecy of ballot and the Supreme Court has held that the whole purpose of the Representation of the Peoples Act is to maintain the purity of the elections. In support of the said proposition learned counsel cites the following decisions: Peoples Union for Civil Liberties and Another V/s. Union of India and Another: (2009)3 SCC 200 ; R.M. Seshadri V/s. G. Vasantha Pai and Others: AIR 1969 SC 692 and A. Neelalohithadasan Nadar V/s. George Mascrene and Others: 1994 Supp.(2) SCC 619. 19. The further contention of learned counsel for the respondents is that the petitioner has not filed a single document to show whether he was a citizen of India or not. There is no document to show as to when and where he was born. The school leaving certificate that too of Class- VIII has no consequence as receiving the educational qualification within the country is not an indication that the person concerned is a citizen of that country. It is further submitted that the petitioner has failed to show that the father of the petitioner was a citizen of India or that he was receiving privy purse from the Government of India. It is further submitted that the petitioner has failed to show that the father of the petitioner was a citizen of India or that he was receiving privy purse from the Government of India. It is further submitted that receipt of privy purse has been denied by these respondents at all stages including in the counter affidavit filed by them to the writ petition but nothing has been brought on the record in support of the same. 20. Learned counsel contends that the very fact that the petitioner has filed an application in September, 2008 for renouncement of citizenship of Nepal goes to show that he was a citizen of Nepal admittedly to his own knowledge, and once the said fact is found admitted on the basis of the documents received from the District Administration concerned of Nepal, such admitted fact need not be proved in terms of the well established principles of appreciation of evidence. 21. Learned counsel further submits that the identity card issued to the petitioner by the Nepal authorities which has also been brought on the record from the very beginning (Annexure-R6/A) clearly shows that the petitioner has been allotted Citizenship Identification No. 215 by the authorities and the same citizenship number finds place in the registered sale deed (Annexure-R6/B) executed by the petitioner in Nepal. It is further submitted that the existence of such multiple documents is sufficient proof of his Nepalese citizenship, contrary to the mere allegations of the petitioner without any iota of documentary proof against the same or in support of his stand. 22. It is urged that the petitioner has also admitted in his show cause filed before the State Election Commission that his grandparents have Nepali citizenship and there being no proof that his parents have Indian citizenship, he cannot come within the definition of an Indian citizen as provided under Section 3(1)(a) of the Citizenship Act. 23. It is further contended by learned counsel that the petitioner is unable to show that he was at any time a citizen of India; that being the position, it cannot be considered to be a case of his having subsequently acquired citizenship of Nepal and thus there can be no application of the provisions of Section 9(1) & (2) of the Citizenship Act to his case as it is not a case of renouncing his citizenship and acquiring that of another country. 24. In this regard learned counsel also refers to a decision of a learned Single Judge of this Court in a similar matter in the case of Narendra Narayan Das V/s. The State of Bihar & Ors.: 2008(3) PLJR 412 , in which the identity card of the person was produced and this Court has upheld the decision of the State Election Commission holding the petitioner of that case to be a Nepali and therefore not entitled to occupy the elected office under the Panchayat. 25. Learned counsel for the Siate Election Commission, while adopting the said submissions of learned counsel for the complainant respondent, further submits that the decision of this Court in Sri Bhagwan Singhs case (supra) cannot be relied upon by the petitioner as in the said matter it is Rule 122 of the Bihar Panchayat Rules, 1995 which has been struck down as being violative not only of Article 243-0 of the Constitution but also Sections 140 and 143 of 1993 Act itself whereas in the present matter the provision has been incorporated in the Bihar Panchayat Raj Act, 2006 itself and not by statutory rules and thus in no view of the matter the same can be held to be ultra vires other provisions of the Act. 26. Moreover, it is submitted that the petitioner has not challenged the provisions of Section 136(2) of the Act as ultra vires and thus it is not open to him to argue to the contrary and he has to make his submissions on the basis of the provisions as they exist and he cannot be permitted to argue to the contrary. 27. It is also the contention of learned counsel that the entire order-sheet of the State Election Commissioner starting from 19.9.2008 till the impugned order dated 22.12.2008 go to show that every opportunity was given to the petitioner to produce all materials on his behalf and his counsel was also heard on different dates and all the documents and other materials brought by the petitioner on the record have been considered. It cannot be said to be a case where there is any violation of the principles of natural justice or rules of evidence. 28. It cannot be said to be a case where there is any violation of the principles of natural justice or rules of evidence. 28. It is submitted that it is the petitioner who has completely failed to produce a single cogent material on the record in support of his stand that he is a citizen of India. It is urged that once the petitioner has failed to show that he is a citizen of India, the question of application of Section 9(1) & (2) of the Act does not arise at all. 29. It is further submitted that the findings of the Commissioner are based on the materials on the record and also on the report received from the District Administration concerned of Nepal and upon due verification, from the District Magistrate, West Champaran about the authenticity of the same on the basis of which the only conclusion that could be drawn is that the petitioners application for renunciation of citizenship of Nepal is still pending with the Nepalese authorities and therefore he was a citizen of Nepal at the time when he contested the election. 30. It is further submitted that no discrimination has been practiced in the case of the petitioner vis-a-vis that of Pramod Kumar Chouhan which was decided on the basis of the facts and allegations and counter allegations in that case. In the present matter the only relevant question is that the petitioner had applied for renunciation of his Nepalese citizenship and failed to produce any document regarding the place where he was born. The said fact of application for renunciation of Nepalese citizenship having been duly verified the same was sufficient to disqualify him for the post of Mukhiya. 31. Learned Advocate General appearing for the State of Bihar has also supported the stand taken by learned counsel for the State Election Commission. It is submitted by learned Advocate General that in a Division Bench decision of this Court in the case of State Election Commission & Ors. 31. Learned Advocate General appearing for the State of Bihar has also supported the stand taken by learned counsel for the State Election Commission. It is submitted by learned Advocate General that in a Division Bench decision of this Court in the case of State Election Commission & Ors. V/s. Punam Kumari & Anr.: 2009(2) PLJR 189 this Court has drawn a distinction between a disqualification dispute unrelated with election and an election dispute and held that if it was dispute relating to qualification unrelated with election it would not be covered by Article 243-0 of the Constitution and it is further held therein that if the disqualification falls under Section 136 then it is for the State Election Commission to adjudicate the same. It is submitted that the earlier Division Bench in Sri Bhagwan Singhs case (supra) did not consider that a dispute may not be a pure election dispute but only a disqualification dispute which has been considered by the subsequent Division Bench. 32. Learned Advocate General also submits that once the power is conferred by the Legislature regarding disqualification both prior and subsequent to the election the same can be exercised. 33. I have considered the submissions made by learned counsel for the parties. So far as the submission of learned counsel for the petitioner on the applicability of Section 9(2) of the Citizenship Act is concerned, the same would depend basically upon the question as to whether the petitioner has succeeded in showing that he was at all a citizen of India by birth as he claims. In this regard it would be worthwhile to quote Sections 3(1) and 9 of the Citizenship Act: " 3. In this regard it would be worthwhile to quote Sections 3(1) and 9 of the Citizenship Act: " 3. Citizenship by birth.(1) Except as provided in sub-section (2), every person bom in India, (a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987; (b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth; (c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where (i) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth. 9. Termination of citizenship. (1) Any citizen of India who by naturalization, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India: Provided that nothing in this sub- section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence. as may be prescribed in this behalf." 34. It is clear from a reading of Section 3 that, inter alia, in order to be a citizen of India the person must be born in India and either of the parents of such a person must be a citizen of India at the time of his birth before he acquires citizenship of this country by birth. From the materials on the record there does not appear to be any cogent document to show that the petitioner was born in India. There is also nothing on the record to show that either of his parents was a citizen of India at the time of his birth. From the materials on the record there does not appear to be any cogent document to show that the petitioner was born in India. There is also nothing on the record to show that either of his parents was a citizen of India at the time of his birth. It is admitted by the petitioner that his paternal grandparents were citizens of Nepal. It also appears from the materials on the record including on a reference of the Supreme Court decision in the case of Kedar Pandey V/s. Narain Bikram Sah: AIR 1966 SC 160 that the paternal family of the petitioner has properties both in Nepal and in India and one or more of his uncles had come and settled down in this country even prior to the coming into force of the Constitution. It was on the basis of the facts relating to one of his uncles that the Supreme Court had held that he was a citizen of India. However, the said finding would not automatically apply to all the other sons and descendants of the petitioners grandfather as each case would be covered by its own facts, when admittedly the grandparents themselves were citizens of Nepal. The petitioner has failed to establish that both or either of his parents were citizens of India. Mere existence of name in a voters list of 1966, not brought to the notice of the State Election Commission but belatedly brought on record before this Court, cannot lead to any conclusion in favour of the fact that the petitioners parents were citizens of India as there is no dearth of citizens from across the border getting their names registered as voters in this country. Much more cogent materials were required of the petitioner to prove the fact that he is a citizen of India. 35. In this regard it is also interesting to note that from the very beginning repeatedly and even before this Court the stand of the petitioner has been that the petitioners father was a recipient of privy purse from the Government of India, but not a shred of evidence has been produced at any stage for proving the said fact and hence the said plea can only be treated as a false plea. 36. 36. Once it is held that the petitioner has failed to show that he was a citizen of India by birth or became one at any time subsequently then there can be no question of the applicability of Section 9 of the Citizenship Act. The precondition for the application of Section 9 is that the person concerned must be a citizen of India who thereafter voluntarily acquires the citizenship of another country. The moment such question arises when a citizen has acquired the citizenship of another country then the same can only be determined, under sub-section (2) of Section 9 read with Rule 30 of the Citizenship Rules, by the Central Government. In the present matter the said question does not at all arise for consideration in view of there being no finding at any stage that the petitioner was a citizen of India or the petitioner having been able to show by any cogent material that he has been a citizen of India who may have been subsequently by certain actions brought under the purview of Section 9 of the Act. In this connection one may only refer to a decision of the Apex Court in the case of Ibrahim V/s. State of Rajasthan: AIR 1965 SC 618 , in paragraph-8 of which it has been laid down as follows: "8. Lastly, it was submitted that the Courts could have no jurisdiction to determine whether the appellant was a "foreigner" and that their jurisdiction in that regard was barred by the provisions of S. 9(2) of the Citizenship Act, 1955. This argument proceeds upon a misapprehension of the iegal position. In the first place, under S. 9 of the Foreigners Act the onus is upon the person who is accused under the Act to prove that he is not a foreigner. In the present case once the plea regarding the absence of identity of the appellant with the deportee of April, 1957 was rejected it could not be suggested that the appellant was ever an Indian citizen. It is only where there is proof that a person is, to start with, a citizen of India and it is alleged that he has lost his Indian citizenship by reason of acquiring the nationality of a foreign State that any question of invoking the provisions of S. 9(2) of the Citizenship Act arises. That is not the case here. It is only where there is proof that a person is, to start with, a citizen of India and it is alleged that he has lost his Indian citizenship by reason of acquiring the nationality of a foreign State that any question of invoking the provisions of S. 9(2) of the Citizenship Act arises. That is not the case here. The case of the prosecution was that the appellant was a Pakistani national who had come over to India on a valid Pakistani passport in 1957, and had been legally deported out of India in April, 1957. On those facts there is no question of S. 9(2) of the Citizenship Act being invoked or coming into play. The offence charged was that having been deported once out of India he again entered India without proper travel documents in violation of the provisions of S. 3(2)(a) of the Foreigners Act." 37. In view of the aforesaid proposition it cannot be held that any decision has been rendered by the State Election Commission which comes within the purview of Section 9(2) of the Citizenship Act. Thus the challenge to the impugned order on this count must fail. 38. So far as the contention of learned counsel for the petitioner based upon the provisions of Article 243-O is concerned, this Court finds that there is a specific provision in Section 136(2) of the Bihar Panchayat Raj Act, 2006 under which if any question arises as to whether a Member of Panchayat at any level or Mukhiya of Gram Panchayat or Sarpanch of Gram Katchahri was before election or has become after election subject to any disqualification mentioned in Clause (1), it shall be referred for the decision of the State Election Commissioner. One of the disqualifications mentioned in Section 136(1) is that the person concerned is not a citizen of India. It is thus evident that under Section 136(2) of the Act the State Election Commissioner is competent to decide such matter of disqualification even if it pertains to a period prior to election. No benefit can be derived by the petitioner from the provisions of Sections 137, 138 and 139 of the said Act in view of the clear provision of Section 136(2) itself. No benefit can be derived by the petitioner from the provisions of Sections 137, 138 and 139 of the said Act in view of the clear provision of Section 136(2) itself. So far as the reliance on Article 243-O is concerned there is no challenge to the vires of Section 136(2) by the petitioner and thus the matter has to be seen in the light of the statutory provision alone in view of the clear terms in which it is couched. Hence no benefit can be derived by the petitioner on account of the earlier similar Rule 122 df the Bihar Panchayat Election Rules, 1995 having been declared invalid by a Division Bench of this Court in Sri Bhagwan Singhs case (supra) particularly when there is no challenge to the vires of the statutory provision. In this context a submission made by learned counsel for the State Election Commission relying on a decision of the Apex Court in the case of Arun Singh V/s. State of Bihar & Ors.: AIR 2006 SC 1413 [: 2006(3) PLJR (SC)17], has only to be noticed to be rejected. It is submitted that in the said decision the order dated 4.10.2004 passed by the Division Bench in Sri Bhagwan Singhs case was challenged and set aside; hence, the said decision itself stands overruled and no benefit can be derived by the petitioner from the said decision. From a perusal of the decision of the Supreme Court in Arun Singhs case it is evident that the writ petition of the said writ petitioner has been allowed by setting aside the order of the Division Bench of this Court on the specific facts of the case but the broad principles laid down by the Division Bench have not been touched. In fact, by the order dated 4.10.2004 the Division Bench disposed of a large number of writ petitions including that of Sri Bhagwan Singh and after deciding the broad principles had considered individual cases and passed separate orders thereon. It was the separate order passed in Arun Singhs case on the specific facts of that case and not the question of declaring of the Rule 122 as ultra vires that was under challenge before the Supreme Court and question of ultra vires has not at all been considered or touched by the Apex Court while allowing the appeal of Arun Singh. Hence the Division Bench decision in Sri Bhagwan Singhs case continues to be good law so far as the main proposition laid down therein is concerned. Moreover, since the vires of the statutory provisions are not under challenge in the present matter no benefit can be derived by the petitioner on the basis of the said Division Bench judgment. 39. At this stage I may also consider the submission of the learned Advocate General regarding the distinction laid down in the subsequent Division Bench decision in Punam Kumaris case (supra) on the basis of which it has been argued by the learned Advocate General that the earlier Division Bench stands diluted and the said decision cannot be considered as binding precedent. 40. On a consideration of the judgment in Punam Kumaris case (supra) it is evident that the same arose on account of the elected candidate not belonging to the reserved category having been elected on a reserved post which aspect is covered specifically by Section 135 of the Act relating to qualification and not Section 136 of the Act relating to disqualification. In Punam Kumaris case the question of interpretation of Section 136 did not directly arise as the matter did not concern Section 136 at all but was solely concerned with Sections 135 and 139 of the Act. Moreover, the decision in Sri Bhagwan Singhs case which also related to disqualification under the parameters of the provisions of the previous Act and Rules was not even cited or considered in the subsequent Division Bench and as a matter of fact was not even required to be considered in view of the very different issue which arose before the subsequent Division Bench. In the said circumstances, it cannot be said that the law laid down in Sri Bhagwan Singhs case (supra) has in any manner been diluted by the subsequent decision of the other Division Bench in Punam Kumaris case (supra). 41. The last submission of learned counsel for the petitioner regarding the absence of a proper enquiry by the State Election Commission also is without any force. From a perusal of the order-sheet of the case it is evident that at all stages the petitioner was afforded full opportunity for presenting his case and at no time he offered any substantial evidence in his favour before the State Election Commissioner. From a perusal of the order-sheet of the case it is evident that at all stages the petitioner was afforded full opportunity for presenting his case and at no time he offered any substantial evidence in his favour before the State Election Commissioner. It is evident from the decision of the Supreme Court in Sarbananda Sonowals case (supra) relied upon by the petitioner that the onus of proving the fact that the person is not a foreigner is upon the person concerned and it was held by the Apex Court that normally it is required in the evidence of the person concerned to establish his date of birth, place of birth, name of his parents and their place of birth and citizenship, evidently since all these facts would be of personal knowledge of the person concerned and not of the authorities of the State and only after he has given evidence on the point the State authorities can verify the same and lead evidence in rebuttal if necessary. The petitioner has not led any cogent evidence regarding his date of birth, place of birth, place of birth of his parents and the citizenship of his parents. Thus he himself has completely failed in producing sufficient evidence which required to be rebutted by the State authorities by leading evidence. In fact he did not produce any material to verify the said facts. Thus, it could not be said that the onus has been wrongly thrown upon the petitioner to show that he has Indian citizenship. It is the petitioner who has failed in producing cogent and reliable evidence in this regard. 42. So far as the reliance by the petitioner on the school leaving certificate is concerned, the same can also be of no help as it does not show that the petitioner had been studying in the said school continuously from his childhood. The certificate only shows that he was admitted in the said school from 15.12.1972 and left the school on 30.12.1973, that is for just one year, being a student of Class VIII. Such certificates issued by the Headmasters of such schools cannot by themselves be really treated as cogent, reliable and sufficient evidence,. and in the case of the petitioner it is insufficient to even show that he had his schooling from the very beginning in the district of West Champaran in the State of Bihar. 43. Such certificates issued by the Headmasters of such schools cannot by themselves be really treated as cogent, reliable and sufficient evidence,. and in the case of the petitioner it is insufficient to even show that he had his schooling from the very beginning in the district of West Champaran in the State of Bihar. 43. Similarly not much weight can be attached to the ration card issued in the individual name of the petitioner around the year 1974. 44. Lastly this Court finds that from the orders of different dates it is evident that it is the petitioner who was insisting that the report of the District Magistrate, West Champaran be called for so as to establish the correct fact regarding the letter received from the concerned District Administration of Nepal, but after the said report was received and it turned out against him, all type of allegations have been made by him even against the District Magistrate. Mere allegations without anything more cannot provide support to the case of the petitioner and rather they show the petitioner in a poor light. The normal rule even under Section 114 of the Evidence Act is to hold that official actions have been regularly performed and when such official records are produced by the proper authorities the Court would normally accept them, unless there is cogent material to show that there has been manipulation, fabrication and forgery. In the present case the petitioner has hopelessly failed to prove any such fact apart from making mere allegations. 45. Thus, in the light of the aforesaid discussions, this Court finds that the petitioner has failed to assail the impugned order of the State Election Commission on any count; hence there is no merit in the writ petition. The writ petition is, accordingly, dismissed.