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2012 DIGILAW 891 (PAT)

Gajala Khatoon @ Gajala Praveen v. State of Bihar

2012-06-28

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner, the State Election Commission (hereinafter referred to as the Commission) and Respondent no.6. 2. Petitioner was elected as Ward Member from Ward No. 26 of Katihar Municipal Corporation. She has filed this writ petition questioning the validity of the order dated 22.12.2011 passed in Case No. 56 of 2011, Annexure-1 to the writ petition, whereunder Election Commissioner, Bihar (hereinafter referred to as the Commissioner) exercising power under sub-section (2) of Section 18 of the Bihar Municipal Act, 2007 (hereinafter referred to as the Act) disqualified the petitioner on the ground of being underage on the date of nomination for the election as Ward Member in terms of sub-section (1), (b) of Section 18 of the Act holding the petitioner to be less than 21 years of age. Aforesaid finding has been recorded by the Commissioner relying on the information issued under the Right to Information Act by the authorities of MBTA Islamia Senior Secondary School, Katihar (hereinafter referred to as the Senior Secondary School) dated 18.2.2010, perusal whereof indicates that the date of birth of the petitioner as recorded in the transfer certificate issued by the authorities of the Urdu Middle School, Kadwa Rampara, Katihar (hereinafter referred to as the Urdu Middle School) under certificate letter serial No. 40/06 dated 30.1.2005 is 25.4.1992 on the basis of which she was admitted in the Senior Secondary School recording her date of birth as 25.4.1992. 3. It is submitted on behalf of the petitioner that reliance placed by the Commissioner on the information given by the authorities of the Senior Secondary School is wholly improper as while doing so, the Commissioner failed to appreciate the contents of the affidavit sworn by the father of the petitioner dated 28.2.1997, Annexure-4 in which it has been categorically stated that the date of birth of the petitioner is 10.1.1985. Learned counsel for the petitioner also submitted that other documents like Voter Identity Card, Annexure-6, Ration Card, Annexure-7, Nikahnama, Annexure-8 and the Certificate issued by the authorities of Qazi-a-Shariat, Katihar, an organization affiliated to Imart-e-sharia, Bihar, Annexure-9 would further confirm that the date of birth of the petitioner is 10.1.1985 and the Commissioner placing reliance on Annexures 4, 6 to 9 should have rejected the complaint filed by Respondent no.6 directing him to impugn the election of the petitioner by filing election petition, but without effecting trial to test the correctness of the entries made in the register of Senior Secondary School on the basis of which information dated 18.2.2010, Annexure-3 has been issued by the authorities of Senior Secondary School, the Commissioner ought not to have recorded a finding that petitioner was underage on the date of nomination for the election as date of birth entry is disputed by the father of the petitioner under affidavit dated 28.2.1997 which was affirmed by him more than 10 – 12 years earlier when there was hardly any likelihood of petitioner contesting the impugned election and the finding of the Commissioner that affidavit dated 28.2.1997 is a self-serving document is wholly misconceived as when affidavit dated 28.2.1997 was affirmed by the father of the petitioner she was about 12 years of age and there was not even distant possibility of petitioner contesting the present election. In this connection, learned counsel for the petitioner further pointed out that without examining the parents of the petitioner in support of the age recorded in the information dated 18.2.2010 reliance on the age indicated therein could not have been placed. In this connection, reliance is also placed on Section 35 of the Evidence Act and it is submitted that entry in the school register is not of much evidentiary value as there is no evidence, material to show on what basis entry has been recorded about the age of the petitioner in the school register. In support of the aforesaid submission, learned counsel for the petitioner relied on the judgment of the Hon’ble Supreme Court in the case of Birad Mal Singhvi Vs. In support of the aforesaid submission, learned counsel for the petitioner relied on the judgment of the Hon’ble Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit, reported in AIR 1988 Supreme Court 1796, paragraph 15, relevant portion whereof is quoted hereunder:– “The Courts have consistently held that the date of birth mentioned in the scholar’s register of secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined.” 4. Learned counsel for the petitioner further submitted that perusal of the impugned order would indicate that the Commissioner relied on the judgment of the Hon’ble Supreme Court in Cr. Appeal No. 1531 of 2011 dated 5.8.2011 and quoted paragraph 3 (a) (i) that the matriculation or equivalent certificates, if available and in the absence whereof the date of birth certificate from the school other than a play school first attended or the birth certificate given by a Corporation or Municipal Authority or Panchayat should be relied on to ascertain the age of the child. It is further submitted that the aforesaid observation has been made in connection with Juvenile Justice (Care and Protection of Children) Act, 2000 as for assessing the age of a child under the aforesaid Act, aforesaid criteria has been provided for in the rules which cannot be a ground for considering the question of disqualification in the light of the provisions contained in sub-section (2) of Section 18 of the Act which is to be considered in terms of sub-section (1)(b) of Section 18 of the Act. 5. Learned counsel for the Commission and Respondent no.6 have opposed the submission by submitting that Commission is empowered to consider the disqualification of the Candidate before or after the election on the ground of underage which would appear from conjoint reading of sub-section (2) and Section 18(1)(b) of the Act. It is further submitted that while considering disqualification on the ground of underage, any material which is relevant under Section 35 of the Evidence Act can be taken into account provided the material is taken from official book, register maintained in discharge of official duty. It is further submitted that while considering disqualification on the ground of underage, any material which is relevant under Section 35 of the Evidence Act can be taken into account provided the material is taken from official book, register maintained in discharge of official duty. In the instant case, the age of the petitioner 25.4.1992 is recorded in the register of Senior Secondary School on the basis of transfer certificate issued by the authorities of the Urdu Middle School bearing Transfer Certificate Serial No. 40/06 dated 30.1.2005. In this connection, it is further pointed out that the reliance placed by the learned counsel for the petitioner on the affidavit No. 28 dated 28.2.1997, Annexure-4 stating the date of birth of the petitioner as 10.1.1985 is wholly misplaced as perusal of the said affidavit would indicate that in paragraph 3, the father has claimed that he is affirming affidavit for the admission of petitioner in Urdu Middle School, but in spite of the said affidavit, date of birth of the petitioner in the school register of Urdu Middle School remained as 25.4.1992. It is also submitted that the father of the petitioner himself did not pursue the matter in the light of affidavit dated 28.2.1997, Annexure-4 and allowed the date of birth of the petitioner as entered in the records of Urdu Middle School to remain as 25.4.1992. Learned counsel for the respondents further submitted that other certificates relied on by the counsel for the petitioner i.e. Voter Identity Card, Voter List, Ration Card and the Nikahnama, including the certificate granted by Qazi-a-Shariat is an evidence indicating the fact that petitioner is a voter, member of the family which has a ration card and that she was married but the age recorded in the other documents referred to above cannot have precedence over the date of birth of the petitioner recorded in the school register as the father of the petitioner himself having sworn affidavit dated 28.2.1997, Annexure-4 that the date of birth of the petitioner is 10.1.1985, allowed her date of birth to remain as 25.4.1992 in the records of Urdu Middle School. 6. 6. Having heard counsel for the parties and having perused the provisions contained in Section 18 of the Act, I am satisfied that the Commissioner is empowered to consider and disqualify a Candidate before or after the election and exercising such power, the Commissioner entertained the request of Respondent no.6 dated 21.6.2011 and considered the age of the petitioner on the date of nomination for the election of ward member and having relied on the information received from the authorities of the Senior Secondary School dated 18.2.2010 found the petitioner to be less than 21 years of age on the date of nomination for the said election and rightly held that she was not qualified to contest the election. Failure of the Commissioner to rely on the affidavit dated 28.2.1997 cannot be faulted as father of the petitioner himself did not pursue for change of date of birth of the petitioner in the light of affidavit dated 28.2.1997 from 25.4.1992 to 10.1.1985. There cannot be any exception for the failure of the Commissioner to rely on the other documents as the other documents are evidence of the fact that petitioner is a voter, member of the family which has ration card and that she is married but the age indicated in those documents may not have precedence over the age recorded in the Senior Secondary School register. The writ petition is, accordingly, dismissed.