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2013 DIGILAW 1076 (PAT)

Md. Shakil v. State of Bihar

2013-09-02

RAMESH KUMAR DATTA

body2013
ORDER 1. Heard learned counsel for the petitioner and learned counsels for the State Election Commission, Respondent No.7 and for the State of Bihar. 2. Both the writ applications have been filed by the same petitioner for the relief relating to the question of determination of caste of the petitioner which has led ultimately to his disqualification and having accordingly been heard together and are being disposed of by a common order at the stage of admission itself with the consent of the parties. 3. In CWJC No. 9234 of 2012 the prayer is to quash the order dated 24.4.2012 passed by the State Election Commission in Case No. 1 of 2012 by which he has held the petitioner as disqualified to hold the post of Mukhiya on the ground that he does not belong to Extremely Backward Caste of ‘Shekhra’ but belongs to the ‘Sheikh’ caste and consequently declared that the post held by the petitioner shall be treated as vacant for which steps shall be taken to fill up the post in accordance with law. 4. In CWJC No.8544 of 2012 the prayer made by the petitioner is to quash the order dated 12.3.2012 passed by the District Magistrate, Banka by which he has affirmed the order dated 24.4.2011 passed by the Circle Officer, Bounsi cancelling the caste certificate of the petitioner. 5. The short facts leading up to the present matters are that the petitioner who was already holding the post of Mukhiya on the basis of Panchayat Election held in the year 2006 of Gram Panchayat, Kairy again filed his nomination paper for the General Election to the Panchayat in the year 2011 for the same post. Respondent No.7 who was also a candidate in the said election raised objection stating that the petitioner belonged to the ‘Sheikh’ caste which was not categorized in the Extremely Backward Class. The District Election Officer-cum-District Magistrate, Banka on such objection directed the Circle Officer, Bounsi to send the report by his letter dated 22.4.2011. Respondent No.7 who was also a candidate in the said election raised objection stating that the petitioner belonged to the ‘Sheikh’ caste which was not categorized in the Extremely Backward Class. The District Election Officer-cum-District Magistrate, Banka on such objection directed the Circle Officer, Bounsi to send the report by his letter dated 22.4.2011. The Circle Officer by his letter dated 26.4.2011 addressed to the Returning Officer, Panchayat Election, Bounsi and the Block Development Officer, Bounsi stated that the petitioner had wrongly got the caste certificate of ‘Shekhra’ although on the basis of Khatian he belonged to ‘Sheikh’ caste and therefore his caste certificate was cancelled in terms of the power conferred upon him by General Administrative Department’s letter No.673 dated 8.3.2011 requesting him to take appropriate steps in the matter. 6. The petitioner’s grievance is that the Circle Officer did not give him any notice or an opportunity of being heard before cancellation of his certificate of Extremely Backward Class. The petitioner, however, in the meantime, since the nomination of the petitioner had already been accepted had contested the election on the post of Mukhiya of the Gram Panchayat and was declared elected. After the said election one Sanjay Sah filed an Election Petition on 30.7.2011 before the Munsif, Banka in which respondent No.7 Rijwan Ansari was also made party respondent. Subsequently respondent No.7 filed a complaint before the State Election Commission on 14.12.2011 under Section 136 of the Bihar Panchayat Raj Act praying to declare the petitioner as disqualified for the post of Mukhiya since he did not belong to Extremely Backward Class for which the post in question has been reserved. In the said case the State Election Commission directed the District Election Officer-cum-District Magistrate to give full opportunity to both the parties and thereafter submit an appropriate, speaking and clear substantial report to the Commission. The District Magistrate after hearing the parties including the petitioner passed the impugned order dated 12.3.12 and on the basis of the materials on the record and after looking into the old Khatian in the name of the grandfather of the petitioner in which the caste was mentioned as ‘Sheikh’ came to the conclusion that the petitioner did not belong to ‘Shekhra’ caste and thus he has affirmed the order dated 24.4.2011 of the Circle Officer cancelling the caste certificate of the petitioner. Upon considering the aforesaid order/report of the District Magistrate sought by the State Election Commission and after giving full opportunity to the petitioner and respondent No.7 the State Election Commission came to the conclusion that the petitioner did not belong to ‘Shekhra’ caste and therefore he had wrongly obtained the ‘Shekhra’ caste certificate and is disqualified to contest the election for the post reserved for Extremely Backward Class and accordingly declared him to be disqualified on the said post and consequently directed that the post shall be treated as vacant and steps shall be taken to fill up the same. 7. At the outset, learned counsels for the respondent State Election Commission, State of Bihar and respondent No.7 submitted that the present matters are squarely covered by a decision dated 1.7.2013 of this Court passed in CWJC No.22735 of 2012 (Md.Alamgir vs. The State of Bihar & Ors.). It is submitted that all the issues sought to be raised in the present matters are covered by the said decision and thus both the writ applications ought to be dismissed. 8. Mr.Y.V.Giri, learned Sr.Counsel appearing for the petitioner while accepting the position that the present matters are covered by the decision of this Court in the case of Md.Alamgir (supra) submits that he reiterates the points raised therein for the purpose of the record including the fact that the State Election Commission had no jurisdiction to pass any such order which was purely in the domain of the election tribunal. It is submitted by him that in addition to the points raised in Md.Alamgir’s case (supra) the present matters present a few additional points. 9. It is contended by him that the Election Petition No. 11 of 2011 was pending before learned Munsif as the Election Tribunal in which the issue of disqualification on the ground of not belonging to Extremely Backward Class had also been raised and respondent No.7 who made the complaint before the State Election Commission had also been made a party therein which facts have been brought to the notice of the State Election Commission and in the said circumstances the State Election Commission should not have decided the same matter which was pending before learned Munsif. In support of his stand learned counsel for the petitioner has sought to rely upon certain additional decisions of the Supreme Court and other High Courts. 10. In support of his stand learned counsel for the petitioner has sought to rely upon certain additional decisions of the Supreme Court and other High Courts. 10. It is also submitted by learned counsel for the petitioner that the order dated 26.4.2011 passed by the Circle Officer, Bounsi cancelling the caste certificate without issuing any notice to the petitioner and giving him an opportunity of being heard is illegal and fit to be set aside on the ground of violation of principles of natural justice. That being the position, according to him, the order of the District Magistrate affirming the same would also be without jurisdiction and fit to be quashed. In the said circumstances, according to him, the order of the Commission based upon the order of the District Magistrate would itself fall to the ground and shall be automatically liable to be quashed. 11. So far as the facts of the present matters are concerned, I find that they are substantially on the same footing as the facts of Md.Alamgir’s case (supra). So far as the question of jurisdiction of the State Election Commission is concerned, it has been held in Md.Alamgir’s case (supra) that after the amendment of Section 136 of the Bihar Panchayat Raj Act the State Election Commission is to look into any such disqualification with respect to issue of caste of the person in terms of Section 135 of the Bihar Panchayat Raj Act. 12. So far as the question of declaring the petitioner disqualified is concerned, from the materials on the record including the order of the State Election Commission it is evident that the same was based on an old Khatian of the grandfather of the petitioner which mentioned his caste as ‘Sheikh’. As already held in Md.Alamgir’s case (supra) relying upon the decision of the Apex Court any such pre-Independence document has to be given greater credibility and weight than post-Independence or recent document. Thus, so far as the findings of the Commission are concerned, this Court sees no reason to interfere with the same in exercise of power of judicial review as it is based upon materials on the record. 13. Thus, so far as the findings of the Commission are concerned, this Court sees no reason to interfere with the same in exercise of power of judicial review as it is based upon materials on the record. 13. Once the findings of the State Election Commission are held to be not open to challenge then the question of quashing the order dated 12.3.2012 passed by the District Magistrate, Banka and the order 24.4.2011 passed by the Circle Officer, Bounsi cancelling the caste certificate of the petitioner loses all relevance. The order of the State Election Commission is that by a statutory authority under the Bihar Panchayat Raj Act having been conferred the power to disqualify on the ground that a person does not belong to the reserved class for which the seat has been reserved in terms of Section 135 of the Act. By contrast the orders of the District Magistrate and the Circle Officer are only those of administrative authorities in exercise of power conferred upon them by executive instruction and they stand on a much lower footing than any order or finding in this regard by the statutory authority. Thus there can be no occasion for interfering with the order of the District Magistrate and the Circle Officer in view of the decision to the same effect of the statutory authority, the State Election Commission, in the same matter. 14. So far as the question of State Election Commission having proceeded in the matter although prior to filing of complaint before it an Election Petition on the same issue was pending in which respondent No.7 was also a party respondent, the same having been brought on the record before the Election Commission, I am of the view that since the Election Petition was prior to filing of the complaint before the State Election Commission in all propriety the State Election Commission should not have proceeded any further with the complaint and ought to have allowed the matter to be adjudicated by the Election Tribunal. However, the same does not mean that the order of the State Election Commission is without jurisdiction, as it is not even a case where the Election Petition had been filed by respondent No.7, and in any case when the statute confers powers upon two authorities with respect to the same matter the prior order of the subsequently moved authority cannot be held to be illegal. In my view, any such finding arrived at by any of the two statutory authorities would become binding on the other statutory authority. However, as earlier stated by me, in the normal course it is expected that when power is conferred to two different statutory authorities, only one of them should proceed in the matter so as not to give rise to conflicting decisions and in the normal course the statutory authority whose jurisdiction has been invoked later should not proceed further in the matter but await the decision of the other statutory authority. 15. In the light of the aforesaid discussions, this Court does not find any merit in both the writ applications. They are, accordingly, dismissed.