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2014 DIGILAW 171 (PAT)

Jaimala Devi v. State Of Bihar

2014-02-05

KISHORE K.MANDAL

body2014
ORDER The writ application springs up a question as to whether the petitioner was guilty of impersonation in contesting the election to the post of Mukhiya of Gram Panchayat Raj Gwalpara in the district of Madhepura held in the year 2011 and if so whether on this count, she can be declared disqualified to hold the said post as has been done by the impugned order passed by the State Election Commission (for short the Commission) (respondent no. 5) under order dated 4.12.2013 (Annexure-1) passed in Miscellaneous Case no. 17 of 2011 (Dushyant Kumar versus Jaimala Devi)? Related question to be answered is whether the respondent Commission was justified in setting aside the election of the petitioner to the said post on the ground that the petitioner was guilty of impersonation and committed fraud? Factual background:- 2. Under the orders of the respondent Commission, election to the post of Mukhiya of the said Gram Panchayat was held in 2011. The petitioner filed her nomination to contest the said election in the name of Jaimala Devi wife of Late Bharat Yadav, resident of Gwalpara in the district of Madhepura. The Respondent no. 6 was also a candidate for the said post. The nomination paper filed by the petitioner having been accepted as valid, the election was held whereat the petitioner was declared elected having secured the highest number of valid votes. The Respondent no. 6 lodged a complaint before the respondent Commission seeking disqualification of the writ petitioner to hold the said post alleging inter alia that the writ petitioner had committed fraud since in the name of Pramod Ranjan, wife of Late Bharat Yadav having disclosed her date of birth as 18.10.1970 she was selected and worked on the post of Anganwari Sahayika within Gwalpara Panchayat in the year 2004. She later on resigned from the said post to contest election to the post of Mukhiya of the said Gram Panchayat in 2006 as Jaimala Devi wife of Late Bharat Yadav and was declared elected. In the recent 2011 election also she posed herself as Jaimala Devi, wife of Late Bharat Yadav and contested the election whereat she was declared elected. The actual date of birth of the writ petitioner is 1.2.1971. The petitioner carries alias name of Jaimala Kumari @ Jaimala Devi. On such complaint made by Respondent no. 6 a Misc. Case no. In the recent 2011 election also she posed herself as Jaimala Devi, wife of Late Bharat Yadav and contested the election whereat she was declared elected. The actual date of birth of the writ petitioner is 1.2.1971. The petitioner carries alias name of Jaimala Kumari @ Jaimala Devi. On such complaint made by Respondent no. 6 a Misc. Case no. 17 of 2011 was instituted by the respondent Commission. A report on the said allegation/charge levelled by the Respondent no. 6 was called for from the respondent Block Development Officer, Gwalpara. The Block Development Officer, Gwalpara made an enquiry and submitted the report dated 10.11.2011 (Annexure-9) through the District Panchayat Raj Officer, Madhepura concluding therein that the writ petitioner being wife of late Bharat Yadav and daughter of Yogendra Prasad Yadav had also a nick name of Jaimala Devi. In the educational certificates, her name is Pramod Ranjan, wife of Bharat Yadav and daughter of Sri Yogendra Prasad Yadav. On the strength of her name appearing in the educational certificate as Pramod Ranjan, wife of Bharat Yadav, she had applied for the post of Sahayika in the said Gram Panchayat and on being selected, she worked on the said post. Having resigned therefrom, she contested the post of Mukhiya of the said Gram Panchayat in the year 2006 and was declared elected. This was due to reason that her nick or alias name Jaimala Devi was entered in the voter list which is continuing till date. The petitioner holds a savings bank account in the State Bank of India in the name of Smt. Jaimala Devi. Upon death of her husband in a road accident, she had lodged a claim for compensation as Jaimala Devi, wife of Late Bharat Yadav in which the award was prepared in the name of Jaimala Devi, wife of Late Bharat Yadav. It was thus opined that Smt. Jaimala Devi and Smt. Pramod Ranjan is one and the same person being the wife of Late Bharat Yadav and it was not a case of impersonation. Even if the two dates of birth one appearing in the educational certificate and the another in the voter list are taken into consideration, she was eligible to contest the election. The respondent Commission called for yet another report from the Block Development Officer of the adjoining Block namely Bihariganj. Even if the two dates of birth one appearing in the educational certificate and the another in the voter list are taken into consideration, she was eligible to contest the election. The respondent Commission called for yet another report from the Block Development Officer of the adjoining Block namely Bihariganj. The Block Development Officer, Bihariganj again made an enquiry and submitted the report dated 16.10.2011 (Annexure-10). In the report, he also referred to some other documents and came to the conclusion that Jaimala Devi and Pramod Ranjan is one and the same person. In the year 2006, she had filed an affidavit (Annexure-12) wherein it was stated that her nick name is Jaimala Devi whereas in the educational certificates, her name was correctly recorded as Pramod Ranjan. Since Jaimala Devi, wife of Bharat Yadav appeared in the election records/voter list, she was advised to file nomination paper in the name of Jaimala Devi, wife of Late Bharat Yadav. It was further declared therein that henceforth, she should be known as Jaimala Devi. The respondent Commission again directed the respondent District Magistrate to hold an enquiry into the said aspect of the matter and submit a report. The District Magistrate got the enquiry made by the Additional Collector of the district who submitted his report dated 12.1.2012 which was forwarded to the respondent Commission by the District Magistrate vide letter dated 18.1.2012. The Additional Collector made a detailed enquiry in which both the parties were given opportunity to support their claims/contention. The Respondent no. 6 (complainant) did not produce any document/material to prove that Jaimala Devi and Pramod Ranjan are two different persons or Jaimala Devi is a non-existent person. On the other hand, the petitioner produced several documents including the voter list, the award passed by Motor Accident Claim Tribunal in Case No. 22 of 2006, the Revenue Records and the Voters Identity Card issued by the Commission. The respondent Commission having discussed the materials placed before him and after hearing the parties held in the order impugned that the petitioner had furnished incorrect/misleading facts to the Returning Officer in contesting the said election and, as such, she had graduated herself for being proceeded against in terms of Section 125(A)(1)(3) of the Act. Having held so, the Commission further proceeded to examine/consider as to whether Jaimala Devi and Pramod Ranjan was one and the same person. Having held so, the Commission further proceeded to examine/consider as to whether Jaimala Devi and Pramod Ranjan was one and the same person. It was found that the petitioner had changed her name from Pramod Ranjan to Jai Mala Devi without resorting to the procedure laid down therefor including publication in the newspaper. The Commission also found that no one called Jaimala Devi actually exists. The petitioner was, therefore, an imposter who contested the said election to the post of Mukhiya of the Gram Panchayat as a Ghost candidate. She was guilty of committing fraud in contesting the said election in the ghost name of Jaimala Devi and therefore, she suffered disqualification in terms of the provision of the Act and accordingly her election to the said post of Mukhiya was annulled/set aside and the said post was treated as vacant to be filled up again in accordance with the Act. Aggrieved by the said order, the present writ petition has been filed challenging the sustainability/legality of the said conclusion/finding of the respondent Commission in the order dated 4.12.2013 (Annexure-1). 3. Heard Mr. Rajendra Prasad Singh, learned Senior Counsel for the petitioner, counsel for Respondent no. 4, Mr. Girish Pandey for the State Election Commission and A.C. to G.P. 4 for the State. 5. While assailing the order passed by the respondent Commission, it has been submitted that in a matter like this where evidence was required to be led/produced and a finding on appraisal thereof was required to be made regarding the status of the petitioner, the Commission erred in exercising its jurisdiction under Section 136(2) of the Act. It is next submitted that even if the said conclusions arrived at by the respondent Commission are accepted argumenti causa, the respondent Commission was not justified in passing the impugned order. The grounds on which she has been held disqualified and her election has been set aside/annulled are not specifically set out in Section 135 or Section 136(1) of the Act. In other words, only upon reaching a conclusion that the petitioner was disqualified to hold the post strictly in terms of Section 135 or 136(1) of the Act, the respondent Commission is conferred the jurisdiction to hold her disqualified for the post. In other words, only upon reaching a conclusion that the petitioner was disqualified to hold the post strictly in terms of Section 135 or 136(1) of the Act, the respondent Commission is conferred the jurisdiction to hold her disqualified for the post. The respondent Commission completely erred in holding that the petitioner was guilty of impersonation as there is/are more than adequate materials/evidence on record to establish that Jaimala Devi and Pramod Ranjan is one and the same person. The learned counsel for the petitioner, in the same vein, urged that it was not the case of the complainant (respondent no. 6) that Jaimala Devi and Pramod Ranjan are/were two different persons. The respondent Commissioner has, therefore, no occasion to make out a third case in order to hold the petitioner disqualified for the post. If the parties before the Commission were not at variance on the said issue, then it was wholly unjust on the part of the respondent Commission to pose a third question (not at issue) and record a finding thereon. Counsel for Respondent no. 6 supported the impugned order. Drawing attention of the Court to the Annexure-13 and the declaration made by her on affidavit in course of election held in 2006, it has been submitted that the petitioner had two dates of her birth. She also carries two names. While serving as Aanganwari Sahayika, she utilized her name as Pramod Ranjan but for contesting the election, she posed herself as Jaimala Devi. A fraud was, therefore, played by her which has rightly been appreciated by the respondent Commission to disqualify her for the said elected post. 6. Learned counsel for the Respondent Commission also supported the order passed by the respondent Commission. He emphasized that by virtue of amendment made in sub-section (2) of Section 136 of the Act, the Commission has been given wide power to consider whether the elected candidate suffered any pre or post ineligibility or disqualification enumerated in Section 135 and 136(1) of the Act. Learned counsel also emphasized that purity of election lies in true presentation of relevant facts which was not so in the case of the writ petitioner. Before dealing with the submissions, it is vital to note relevant provisions of the Act. Section 135 of the Act states as under: “135. Learned counsel also emphasized that purity of election lies in true presentation of relevant facts which was not so in the case of the writ petitioner. Before dealing with the submissions, it is vital to note relevant provisions of the Act. Section 135 of the Act states as under: “135. Qualification for Membership.- Every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member or office bearer of the Panchayat: Provided that in the case of seats reserved for Scheduled Castes or Scheduled Tribes or Backward Classes or Women, no person who is not a member of any of the Scheduled Castes or Scheduled Tribes or Backward Classes or is not a woman, as the case may be, shall be qualified to be elected to such seat.” Section 136(1) and (2) of the Act read as under:- “136. Disqualification for Membership.-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post of Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person- (a) is not a citizen of India; (b) is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age; if he has attained the age of twenty one years; (c) is in the service of Central or State Government or any local authority; (d) is in service of any such institution receiving aid from Central or State Government or any local authority; (e) has been adjudged by a competent court to be of unsound mind; (f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behaviour under Section 109 or Section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profit under the Panchayat; (j) has been found guilty of corrupt practices; Provided that on being found guilty of corrupt practices, the disqualification shall cease after six years of general election. (2) If any person arises as to whether Member of Panchayat at any level including Mukhiya of Gram Panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Kutchahry or Panch of Gram Kutchahry was disqualified before election or has incurred disqualification after election as provided in Article 243-F of Constitution of India and subject to any disqualifications mentioned in Section 135 or sub-Section (1) of Section 136, the question shall be referred for the decision of State Election Commissioner. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such disqualification and decide such matters expeditiously after following sufficient opportunity to the affected parties of being heard: Provided that the State Election Commission shall not be entitled to entertain any complaint or petition subject matter of which is purely an election dispute such as corrupt practice, wrongful rejection of nomination etc. in accordance with Article 243-O of the Constitution of India read with Section 137 of the Act.” 9. There is no controversy that the petitioner had served as Aanganwari Sahayika as Pramod Ranjan, wife of Late Bharat Yadav. In order to contest the election she resigned from the said post and contested the election to the post of Mukhiya of the said Gram Panchayat held in the year 2006 as Jaimala Devi wife of Late Bharat Yadav. The petitioner has asserted that she is registered as a voter in the name of Jaimala Devi, wife of Bharat Yadav. The voter list prepared by the respondents for the said election is enclosed as Annexure-7. The case of the Respondent no. 6 who had contested the said election unsuccessfully is that Smt. Jaimala Devi and Pramod Ranjan were two different persons. This is evident from the recital of the complaint made by the Respondent no. 6 as noticed by the respondent Commission in its order dated 4.12.2013. Reports were called for at least on three occasions. In those reports, it was found that Pramod Ranjan and Jaimala Devi is one and the same person being wife of Late Bharat Yadav. The respondent Commission in the order found that all relevant details pertaining to the candidate were not correctly furnished/filed by the petitioner which was found to be in breach of the provisions contained in Section 125A(1) and (3) for which action was directed to be initiated. This Court, in the present writ petition, is not concerned with the said finding of the Commission. The question is whether it was within the competence of the respondent Commission to consider and decide that the petitioner was an imposter and therefore she was liable to be removed from the elected post of Mukhiya on account of such fraud. This Court, in the present writ petition, is not concerned with the said finding of the Commission. The question is whether it was within the competence of the respondent Commission to consider and decide that the petitioner was an imposter and therefore she was liable to be removed from the elected post of Mukhiya on account of such fraud. The Commission is creature of the Statute. It has to function within the four corners of the Act under which it has been constituted. The respondent Commission has no plenary jurisdiction. The Commission gets jurisdiction to unseat or disqualify an elected candidate strictly as per the provision of the Act. In terms of the provisions contained in Section 136(2) of the Act, the Commission can, of course, examine whether the elected candidate had suffered any pre or post disqualification under any of the circumstances enumerated in Section 136(1) of the Act and/or was not qualified to contest the election in terms of Section 135 of the Act. In the impugned order, the enquiry report(s) submitted by the diverse authorities suggest that the Pramod Ranjan being wife of Late Bharat Yadav had also a nick name as Jaimala Devi which was popular. The Commission, however, proceeded to consider diverse other materials in order to record a finding with regard to the status of the petitioner and to hold that no one called Jaimala Devi ever existed. The petitioner was, therefore, treated as a Ghost candidate. If any evidence is required to demonstrate a particular fact then the Tribunal would not be justified in doing so in exercise of its power conferred under the Act. Let it be recorded that this Court is not supporting the proposition that under Section 136(2) of the Act, the Commission is not empowered to determine the eligibility of the candidate in the light of provisions of the Act. The question is whether the Commission can go into a dispute of the nature involved in this case and hold that the petitioner being Pramod Ranjan was not Jaimala Devi, however, both being wife of Late Bharat Yadav. There is no material on record to suggest that Late Bharat Yadav had two wives. The question is whether the Commission can go into a dispute of the nature involved in this case and hold that the petitioner being Pramod Ranjan was not Jaimala Devi, however, both being wife of Late Bharat Yadav. There is no material on record to suggest that Late Bharat Yadav had two wives. The Commission in the impugned order having considered diverse reports called for by it and submitted by the concerned Block Development Officers as well as the District Magistrate has held that Pramod Ranjan taking name of Jaimala Devi had contested the said election. The petitioner has not changed her name after taking recourse to the relevant procedure including publication of such change or adoption of name in the newspaper. A Bench of this Court in Rekha Kumari versus the State of Bihar reported in 2006 (4) P.L.J.R. 634 , in paragraph nos. 17 and 18 held as under: “17. From a perusal of the aforesaid provision two aspects are quite apparent. Firstly that if the disqualification is from the date prior to the start of election process, such objection should have been raised before the Commission during the election process itself. Secondly that where the matter is with respect of a disputed question of fact, which is contested and contradicted by the concerned person and which requires evidence to decide the same, the Commission has got no authority or jurisdiction to decide the same specially when the process of election has concluded. In such circumstances, only option left for respondent no. 7 was to file an election petition before the prescribed authority under the provision of Section 137 of the Act, which clearly provides that the election to any office of a Gram Panchayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed. The specific wordings of the aforesaid section read with the provisions of Article 243-O of the Constitution provided a bar to interference by Courts in electoral matters. It reads as follows:- “243-O. Bar to interference by Courts in electoral matter.- Notwithstanding anything in this Act- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituents, made or purporting to be made under Article 243-K, shall not be called in question in any Court. It reads as follows:- “243-O. Bar to interference by Courts in electoral matter.- Notwithstanding anything in this Act- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituents, made or purporting to be made under Article 243-K, shall not be called in question in any Court. (b) no election to any Panchayats shall be called in question except by an election petition prescribed to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 18. To sum up the matter, Section 137 of the Act specifically provided that the election to any office of a Panchayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed, whereas, Section 138 of the Act provided that no election to any Panchayat shall be called in question except by an election petition presented to the prescribed authority under the Act, which has been provided in Section 137 of the Act. Section 138 of the Act reads as follows:- “138. Bar to interference by Courts in electoral matters.- Notwithstanding anything contained in this Act- (a) The validity of any law relating to the delimitation of constituencies of the allotment of seats to such constituencies, made or purporting to be made under Article 243K of the Constitution of India shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to the prescribed authority under this Act.” Furthermore, Section 139 of the Act provided the grounds for declaring election to be void by the prescribed authority when the result has been materially affected by the improper acceptance of any nomination; or by any corrupt practice committed in the interests of the returned candidate or on other grounds stated therein. Thus, it is quite clear that the prescribed authority mentioned in the aforesaid provision of law is clearly the authority mentioned in Section 137 of the Act and no one else and hence any application filed after the election process is over before any other authority except the authority prescribed under Section 137 of the Act is not maintainable. Thus, it is quite clear that the prescribed authority mentioned in the aforesaid provision of law is clearly the authority mentioned in Section 137 of the Act and no one else and hence any application filed after the election process is over before any other authority except the authority prescribed under Section 137 of the Act is not maintainable. Article 343-P of the Constitution of India as well as Section 138 of the Act also provides a bar to interference by Courts in electoral matters except by way of an election petition presented to such authority as provided under the law made by the State Legislature.” 10. If there is any misrepresentation or submission of inaccurate fact by the petitioner in contesting the said election, the authority could have directed for taking action as per Section 125A of the Act which appears to have been directed in the present case. If, however, furnishment of incorrect fact or suppression of any relevant fact by the elected candidate is such which per se makes such person or candidate wholly disqualified or ineligible then the Commission would have the jurisdiction to pass appropriate order. The question with regard to the fact that the Pramod Ranjan and Jaimala Devi are not one and the same person for which evidence was required to be led by the parties could not have been gone into by the Commission. Counsel for the petitioner has referred to the affidavit filed by the petitioner while contesting the said post of Mukhiya in the year 2006 wherein it was specifically stated that the petitioner is also known as Pramod Ranjan, both being wife of Late Bharat Yadav. Let it be kept in mind that the Respondent no. 6 having contested the election against the petitioner and lost the same, filed the complaint raising the said grievance instead of filing a petition calling in question the election of the petitioner in terms of Section 137 of the Act. 11. In my view, the respondent Commission should not have gone into the said aspect of the matter and record a finding that the petitioner was not Pramod Ranjan, wife of Late Bharat Yadav and therefore, an imposter or a ghost and directing for her removal from the said post and for taking steps to fill up the said post afresh in accordance with law. It has been strenuously argued by the respondent that it was a case of fraud. Firstly, the said conclusion could not have been drawn exercising the power under the Act since it would require appreciation of evidence and, secondly the said conclusion or finding is not one of the circumstances or condition(s) enumerated in Section 136(1) of the Act. It is not a case here that non-disclosure of the relevant facts in this regard would constitute suppression of vital information rendering her disqualified or ineligible under any provisions of the Act or the Rules framed thereunder. This Court, however, would refrain from making any further comment on the said finding of the Commission since the same may affect the proceeding directed to be launched against the petitioner in the impugned order. This Court would only conclude that the Commission being a statutory authority and its power, duties, function and jurisdiction is confined within the four corners of the statute which has created it. It has no plenary power to travel beyond the terms of the statute/enactment. The question posed at the outset is, therefore, answered accordingly. 12. For the reasons aforesaid, this Court is satisfied that the impugned order dated 4.12.2013 passed in Miscellaneous Case No. 17 of 2011 insofar as it directs for removal of the petitioner from the post of Mukhiya and treating the said post as vacant is quashed and set aside. 13. There shall be no order as to costs.