Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 830 (PAT)

Sushila Devi v. State of Bihar

2012-06-20

SAMARENDRA PRATAP SINGH

body2012
ORDER 1. In the instant writ application, the petitioner challenges the entire proceedings initiated by the State Election Commission including order dated 30.08.2011 passed by respondent no.3, by which he directed the District Magistrate-cum-District Returning Officer, Muzaffarpur to investigate whether the petitioner belongs to Extremely Backward Class category. 2. The petitioner challenged the jurisdiction of State Election Commissioner to decide the issue of disqualification arising prior to Election. Challenge is also made to the competence of State Election Commission to direct the District Magistrate-cum-District Returning Officer, Muzaffarpur to investigate whether the petitioner belongs to Sinduriya Bania, a caste under Extremely Backward Class category. 3. The facts of the case in short is indicated herein below: The petitioner claiming herself to be Sinduriya Bania by caste under E.B.C. category applied for issuance of a caste certificate for filing nomination for contesting the post of Mukhia of Pakri Gram Panchayat. The out going Mukhia, respondent no.6, endorsed that petitioner belongs to that caste. On reports of the Halka Karamchari and Circle Inspector, the Circle Officer, Motipur, district Muzaffarpur, issued caste certificate certifying that petitioner belongs to Sinduriya Bania caste, which is a caste under EBC category. The certificate is annexed as Annexure-2 to this application. 4. The election took place on 30.04.2011 and the result was pronounced on 24.05.2011 declaring the petitioner as duly elected. The petitioner took oath as Mukhia on 24.06.2011 and started functioning. In course of verification of relief works, the petitioner noticed large scale of bungling perpetrated by the erstwhile Mukhia Sulekha Devi (respondent no.6) and others. It is the case of the petitioner that Sulekha Devi apprehending stern actions, filed a complaint before respondent no.3 alleging that the petitioner did not belong to Sinduriya Bania, by caste and as such she was not qualified to contest election from the seat reserved for EBC category. Respondent no.6 stated in her complaint that Khatian entry described her husband as Karta Bania, which does not come under E.B.C. category. 5. Respondent no.3 vide letter dated 28.06.2011 directed the District Magistrate-cum-District Returning Officer, Muzaffarpur to hold an enquiry whether petitioner belonged to Sinduriya Bania, by caste or not. The respondent no.3, State Election Commission also issued notice to the petitioner to appear before him on 04.08.2011 for hearing. 6. 5. Respondent no.3 vide letter dated 28.06.2011 directed the District Magistrate-cum-District Returning Officer, Muzaffarpur to hold an enquiry whether petitioner belonged to Sinduriya Bania, by caste or not. The respondent no.3, State Election Commission also issued notice to the petitioner to appear before him on 04.08.2011 for hearing. 6. On receipt of notice, the petitioner filed petition raising preliminary objections to the maintainability of the case before State Election Commission and also asserted that caste certificate issued in her favour is legal and valid. In the meantime, respondent no.5, the Circle Officer, Motipur issued notice to her to appear and participate in enquiry with respect to correctness of caste certificate issued in her favour. 7. The petitioner appeared and filed show-cause before respondent no.5 asserting that caste certificate has rightly been issued, as she belongs to Sinduriya Bania, by caste. It is the case of the petitioner that respondent no.5 did not pass any final order in the matter. 8. As no enquiry report was submitted by the District Magistrate, Muzaffarpur, the respondent no.3 adjourned the case to 30.08.2011. The petitioner again raised the issue of jurisdiction of Commission to decide the issue of disqualification arising prior to election and power to direct respondent no.4 to make an enquiry whether petitioner belonged to Sinduriya Bania by caste or not. The case of the petitioner is that there cannot be a part enquiry by the Election Commission and part enquiry by the District Magistrate. On 01.09.2011, the District Magistrate issued notice to the petitioner to appear before him on 03.09.2011 and submit her reply regarding belonging to Sinduriya Bania by caste. The petitioner appeared on 03.09.2011 before respondent no.4 and made a prayer for time to enable her to file reply in the matter. The respondent no.4, the District Magistrate, adjourned the matter by two days to 05.09.2011, on which date the petitioner filed her detailed reply. Since respondent no.4 was not available in his office, the District Panchayat Raj Officer, Muzaffarpur on enquiry stated that the future date would be duly communicated either by office or by letter. On 19.09.2011, the petitioner heard rumour that the District Magistrate-cum-District Returning Officer, Muzaffarpur on 17.9.2011 has held that she does not belongs to Sinduriya Bania Caste. A copy of order dated 17.09.2011 has been annexed as Annexure-8. 9. On 19.09.2011, the petitioner heard rumour that the District Magistrate-cum-District Returning Officer, Muzaffarpur on 17.9.2011 has held that she does not belongs to Sinduriya Bania Caste. A copy of order dated 17.09.2011 has been annexed as Annexure-8. 9. The grievance of the petitioner is that there are overwhelming documents to support her claim of belonging to Sinduriya Bania by caste, which she could not produce on account of inadequacy of opportunity before the District Magistrate. 10. The Circle Officer thereafter issued notice to the petitioner to appear and file a detailed show-cause. The petitioner states that she filed a number of documents in support of her claim. The petitioner’s reply is annexed as Annexure-9 to the supplementary affidavit. The Circle Officer vide Memo no.1042, dated 19.10.2011 informed the petitioner that her caste certificate has been cancelled. 11. The petitioner states that her caste certificate has illegally been cancelled in face of overwhelming materials on record. The Khatian of 1898 would show that the caste of her husband’s great grandfather Moti Das has been recorded as Sinduriya Bania in the record of rights. 12. The respondent Election authority namely the State Election Commissioner could not direct another authority e.g. the District Magistrate or Circle Officer to make an enquiry regarding her caste in administrative capacity. 13. The petitioner has raised the following issues before this Court. (i) Whether the State Election Commission can entertain a dispute with respect to qualification or disqualification of a candidate occurring before election. (ii) Whether purported exercise of power under section 136 (2) is contrary to decision of Division Bench of this Court in case of Sri Bhagwan Singh Vs. State of Bihar & Ors, reported in 2004(4) PLJR 482. (iii) Whether respondent no.3 can ask the District Magistrate to investigate the matter and collect evidence which requires to be done under the Indian Evidence Act. (iv) Whether the exercise of power by District Magistrate is without jurisdiction. 14. Issue nos.1 and 2 are taken up together for consideration as they are interlinked. At the outset, it is stated that this court need not go into these issues once again, as the matter was examined in detail in case of Geeta Gupta Vs State of Bihar, reported in 2012 PLJR (2) 285. 14. Issue nos.1 and 2 are taken up together for consideration as they are interlinked. At the outset, it is stated that this court need not go into these issues once again, as the matter was examined in detail in case of Geeta Gupta Vs State of Bihar, reported in 2012 PLJR (2) 285. In the case, the court examined the issue whether the State Election Commission can look into disqualification occurring prior to election in matters arising under the Bihar Panchayat Raj Act, 2006. The court after considering the legislative changes in the Bihar Panchayat Raj Act and noticing a number of decisions including the one rendered by the Division Bench in the case of Bhagwan Singh Vs State of Bihar and others, reported in 2004(4) PLJR 482 observed that State Election Commission is empowered to decide disputes occurring prior to election in view of mandate of section 136(2) of 2006 Act read with Article 243F of the Constitution. Paragraph 24 of the judgment which is relevant in the context is quoted hereinbelow: “24. Thus, Article 243-F and section 136(2) confer power on State Election Commissioner to decide the issue relating to disqualification occurring prior and after election The provision refers both to disqualification before election or has incurred disqualification after election. A Division Bench of this court in the case of Manoj Bind Vs State of Bihar, reported in 2009(4) PLJR 35 observed that section 136(1)(g) is in consonance with Article 243-F. Again in the case of Vijay Kumar Choudhary Vs State Election Commissioner, a Division Bench observed that the State Election Commission can take suo moto cognizance under section 136(2) in respect of disqualification mentioned in section 136(1) occurring both before and after election. Section 136(1) which begins with a non-obstante clause speaks clearly of disqualification both before and after election. Here I would use a word of caution. There may be cases which would involve facts which are complicated and in serious dispute which may necessarily require the documents to be examined in accordance with Evidence Act, in such cases the functions of examining the matter is best left to the Civil Court/Election Tribunal. This Court in case of Ajay Kumar Vs. State Election Commission passed in C.W.J.C.No.16239 of 2011 while relying upon a decision in case of Rekha Kumari Vs. This Court in case of Ajay Kumar Vs. State Election Commission passed in C.W.J.C.No.16239 of 2011 while relying upon a decision in case of Rekha Kumari Vs. The State of Bihar & Ors., reported in 2006(4) PLJR 634 , observed that the commission ought not to go into the question of facts which are in serious dispute and such matter ought to be left to be decided by the Election Tribunal”. 15. Now I turn to issue nos.3 and 4 which are taken up together. These issues have arisen in view of the complaint made by respondent no.6 before the State Election Commission that the petitioner did not belong to Sinduriya Bania caste which falls under E.B.C. category. The case of respondent no.6 is that as the petitioner did not fall into E.B.C. Category, she was disqualified from the very beginning to contest the election from the constituency reserved for E.B.C. category. The State Election Commissioner referred the matter to the District Magistrate for an enquiry. On due enquiry, after noticing the petitioner, the District Magistrate came to a finding that the petitioner did not belong to Sinduriya Bania caste which would render her disqualified and ineligible to contest the election. The petitioner’s case is that in any view of the matter the State Election Commissioner could not direct any authority to make an enquiry in respect of dispute and decide the question in administrative capacity. The petitioner states that even assuming but not admitting that the State Election Commissioner has authority to decide the dispute of disqualification occurring prior to election, still he could not have directed the District Magistrate to make an enquiry whether the petitioner belongs to Sinduriya Bania caste or not. The main factual issue before the State Election Commissioner was whether the petitioner belongs to Sinduriya Bania caste as claimed by her. Under the law, the competent authority to grant caste certificate is either the Circle Officer or District Welfare Officer or the Sub-Divisional Officer, as the case may be. The district Collector is competent authority to adjudicate whether the Circle Officer, the Sub-Divisional Officer or District Welfare Officer has correctly decided the issue of caste. As the District Magistrate is otherwise also a competent authority to decide the issue of caste certificate, the State Election Commissioner did not err in law in referring the matter to him District Collector for making an enquiry. As the District Magistrate is otherwise also a competent authority to decide the issue of caste certificate, the State Election Commissioner did not err in law in referring the matter to him District Collector for making an enquiry. It is not the case of the respondents that the District Collector cannot decide the issue of caste certificate. Had the State Election Commissioner authorized any other authority who was not otherwise competent to decide the issue of caste certificate, then such enquiry so ordered would not be in accordance with law, which is not the case herein. 16. In this view of the matter, the State Election Commissioner was within his right to ask the District Magistrate to make an enquiry and collect evidence whether the petitioner belonged to Sinduriya Bania caste or not. As such the order dated 30.8.2011 passed by the State Election Commission by which he directed the District Magistrate cum District Returning Officer to investigate whether the petitioner belongs to Sinduriya Bania caste under the E.B.C. Category does not suffer from any infirmity and does not require any interference. 17. It would be relevant to state that in the case of Prabhat Vikram Sah Vs State of Bihar, reported in 2010(2) PLJR 160 , the petitioner sought quashing of the order of the State Election Commissioner in exercise of powers under section 136(1) and (2) of the Bihar Panchayat Raj Act, 2006 holding him to be a citizen of Nepal and therefore is not eligible to continue on the post of Mukhiya. On receipt of complaint by the respondent, the State Election Commission directed the District Magistrate to send a report whether the petitioner was a citizen of Nepal or not. The learned Judge did not find any fault with the direction of the State Election Commissioner directing the District Magistrate to make an enquiry on the point. 18. Again in the case of Vijay Kumar Chaudhary Vs State Election Commission, reported in 2009(4) PLJR 282 , the election of Mukhiya was challenged vide complaint no.2/07 filed before the State Election Commission. The State Election Commission allowed the parties to produce evidence and got the matter enquired by the District Magistrate, Madhubani whether the petitioner had acquired Nepali citizenship or not. The State Election Commission allowed the parties to produce evidence and got the matter enquired by the District Magistrate, Madhubani whether the petitioner had acquired Nepali citizenship or not. The Division Bench did not find any error with the order of the State Election Commission asking the District Magistrate to submit his report on the issue. 19. I thus hold that while considering a complaint under section 136(2) of the Act, the State Election Commissioner in appropriate cases can seek report from authorities who otherwise are also competent to decide such issues, for facilitating collection of relevant facts and datas. I further hold that State Election Commissioner is competent under section 136(2) to decide issues of disqualification occurring prior to the election under Bihar Panchayat Raj Act, 2006. 20. In backdrop of the aforesaid discussions, I do not find any merit in this writ application. It is accordingly dismissed.