Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1132 (PAT)

Sushila Devi, W/O Sri Sunil Das v. State of Bihar

2013-09-17

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORDER : R.M. Doshit, J. Feeling aggrieved by the order dated 20th June 2012 made by the learned single Judge in CWJC No. 17461 of 2011, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. The writ petitioner is an elected Mukhiya of the Gram Panchayat - Pakri, Block - Motipur, District - Muzaffarpur. Her election came to be questioned by one Sulekha Devi, the respondent no. 6, on the premise that the appellant does not belong to the community of "Sinduria Bania", an extremely backward class, as professed by the appellant. Pursuant to the said complaint lodged by the aforesaid Sulekha Devi, the State Election Commission (hereinafter referred to as "the Commission") on 27th June 2011 directed the District Magistrate to make enquiry in respect of the caste of the appellant. On 28th June 2011 the Commission also called upon the appellant to remain present for hearing on 4th August 2011. The notice was answered by the appellant. She raised a preliminary objection in respect of the jurisdiction of the Commission to hold enquiry under Section 136(2) of the Bihar Panchayat Raj Act, 2006. The said objection has been rejected by the Commission under its order dated 30th August 2011. 3. Pursuant to the said direction, the District Election Officer-cum-District Magistrate, Muzaffarpur made a report on 17th September 2011. According to the said report, in the revenue records, the word "Sinduria" was interpolated. According to the said report, the appellant belongs to the community "Karth Bania" or "Kayasth Bania" a caste not recognised as extremely backward class. 4. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 17461 of 2011 Reported in 2012(3) PLJR 799 , to challenge the aforesaid action of the Commission in issuing direction to the District Magistrate to examine the validity of the caste certificate issued in respect of the appellant; the notice of hearing dated 28th June 2011 issued by the Commission in exercise of power conferred by Section 136(1) of the Bihar Panchayat Raj Act, 2006; the report of the District Magistrate dated 17th September 2011 and the order dated 30th August 2011 made by the Commission. 5. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. 6. Learned advocate Mr. Yogendra Mishra has appeared for the appellant. Mr. 5. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. 6. Learned advocate Mr. Yogendra Mishra has appeared for the appellant. Mr. Mishra has submitted that the Commission has no authority to order enquiry in respect of the caste certificate produced by the writ petitioner; nor the Commission has authority to entertain complaint against the election of a Mukhiya. He has submitted that the only remedy against the election of a Mukhiya lies before the election Tribunal. He has also submitted that the order of the District Magistrate cancelling caste certificate of the appellant is erroneous and is made without the authority of law. He has taken us through the reply submitted by the appellant before the District Magistrate and the documents produced by the appellant. He has submitted that the District Magistrate has made the impugned order dated 17th September 2011 without affording hearing to the appellant in contravention of the principle of natural justice. He has vehemently submitted that the ancestors of the appellant had been known to be "Sinduria Bania" since 1898; the same cannot be altered or the appellant cannot be deprived of the benefit of being extremely backward class at the whims and caprice of the Commission or the District Magistrate. 7. The Appeal is contested by the Commission. Learned advocate Mr. Amit Shrivastava has appeared for the Commission. Mr. Shrivastava has submitted that the issue whether the District Magistrate has an authority to consider the genuineness of the caste certificate produced by a candidate or to substitute his own finding is now put to rest. A Division Bench of this Court has decided the matter and has upheld the jurisdiction of the District Magistrate to cancel the caste certificate issued in favour of a candidate. He has also submitted that the matter whether the Commission has an authority to examine the validity of the election of an elected candidate is also put to rest by a Bench of this Court. In support of this submissions, Mr. He has also submitted that the matter whether the Commission has an authority to examine the validity of the election of an elected candidate is also put to rest by a Bench of this Court. In support of this submissions, Mr. Shrivastava has relied upon the judgment of this Court in the matter of Jahedi Begum (L.P.A. No. 1271 of 2012 arising from CWJC No. 10236 of 2012 decided on 18th December 2012) and the order dated 14th March 2013 made in the matter of Devaki Devi @ Debaki Devi (L.P.A. No. 1841 of 2012 arising from CWJC No. 1065 of 2012, Reported in 2013(1) PLJR 223 ). 8. In the above referred matters, this Court has upheld the authority of the District Magistrate to consider the genuineness of the certificate of caste produced by a candidate and has also upheld the power of the Commission to disqualify an elected Mukhiya. The matter at issue has thus been put at rest by this Court. 9. This leaves us with the question whether the District Magistrate, Muzaffarpur had authority to decide the matter without personal hearing to the appellant. The principle of natural justice requires that the person concerned be notified about the action proposed to be taken against him/her and is given adequate opportunity of defence. 10. In the present case, it cannot be gainsaid that the appellant had been given notice and the appellant also submitted the reply to the notice. In our opinion, right to representation answers the requirement of natural justice. Personal hearing is not an integral part of the principle of natural justice. 11. On perusal of the order dated 17th September 2011 made by the District Magistrate, it is apparent that all the defences raised by the appellant have been considered and answered. The District Magistrate has recorded a finding that there was interpolation in the revenue records in respect of the caste of the appellant and that there was some erasure. The District Magistrate has given cogent reasons for holding that the caste certificate of "Sinduria Bania" issued in favour of the appellant was erroneous. The District Magistrate has also recorded that all relatives of the appellant, both on parental and matrimonial side were "Kayastha or Karth Bania". 12. In our opinion, no case for interference is made out. Appeal is dismissed in limine. 13. Interlocutory Application stands disposed of.