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2014 DIGILAW 491 (PAT)

Shagufta Tarannum v. State of Bihar

2014-04-23

KISHORE KUMAR MANDAL

body2014
ORDER Election to the post of Mukhiya of Sahebpur Kamal Gram Panchayat in the district of Begusarai was held in the year 2011. The petitioner and twelve other candidates including private respondent no.11 contested the same on being duly nominated. The petitioner was declared elected to the post of Mukhiya of the said Gram Panchayat having polled highest number of valid votes. The respondent no.11 several months after declaration of the election result filed an application (Annexure 2) before the State Election Commissioner, Bihar, (for short ‘the Commissioner’) under section 136(2) of the Bihar Gram Panchayat Raj Act, 2006 (For short ‘the Act’) giving rise to Election Case No. 135 of 2011 on the file of respondent Commissioner alleging, inter alia, that the petitioner was unqualified to contest the election owing to her date of birth recorded in Faukania examination as 12.4.1992. She was ineligible to contest the election being less than twenty one years of age on the date she contested the election. 2. The proceeding instituted before the respondent Commissioner by respondent no. 11 was challenged by the petitioner in which notice was also directed to be issued on her in CWJC No. 1324/2012. This court initially granted an interim order in the said proceeding and ultimately by order dated 24.9.2012 (Annexure 3) disposed of the writ petition taking into account the fact that the proceeding filed by respondent no. 11 before the respondent Commissioner was yet to be finally decided. This court further observed that the respondent Commissioner shall take into account the relevant materials to be produced by the petitioner while deciding the said proceeding. The respondent Commissioner thereafter heard the matter and by order dated 17.7.2013 (Annexure 1) allowed the said application and unseated the petitioner from the elected post of Mukhiya of the said Gram Panchayat. The respondent Commissioner in the light of the findings recorded therein further directed for taking punitive action against the petitioner under section 125(A) (1) and (3) of the Act. Aggrieved by the said order the present writ petition has been filed. 3. As per the writ petition, the petitioner had appeared at the Wastania examination and was registered for the said examination depicting her date of birth as 12.4.1982. The admit card was issued by the Bihar State Madrasa Board (For short ‘the Board) wherein her date of birth was recorded as 12.4.1982. 3. As per the writ petition, the petitioner had appeared at the Wastania examination and was registered for the said examination depicting her date of birth as 12.4.1982. The admit card was issued by the Bihar State Madrasa Board (For short ‘the Board) wherein her date of birth was recorded as 12.4.1982. She was declared to have passed the said examination for which mark sheet was issued by the Board in which her date of birth was wrongly recorded as 12.4.1992. On an application filed by her, the same was corrected as 12.4.1982 under the orders of the Controller of Examination of the Board on 4.11.2008. The pass certificate of the examination was issued by the Board depicting her correct date of birth (12.4.1982). The petitioner thereafter again appeared at the Faukania examination (equivalent to matriculation). A mark sheet was issued to her showing her date of birth as 12.4.1982, followed by the pass certificate of the said examination again showing her date of birth as 12.4.1982. It has further been asserted that she was married on 19.1.1999. The marriage certificate discloses her twenty seven years of age. For holding election of the year 2003 (as corrected up to 1.1.2003) the petitioner was registered as an elector at serial no. 423 showing her 25 years of age. The said voter list was again updated and published for the 2005 election. The name of the petitioner appeared as an elector at serial no.423 showing her 25 years of age as on 1.1.2003. The voter list of the said constituency was again prepared for the subsequent election in which the petitioner was shown aged 26 years (as on 1.1.2004). Again in the year 2008 the voter list was prepared and published in which the name of the petitioner appeared at serial no. 481 showing her 30 years of age (as on 1.1.2008). In similar manner the voter list of the year 2010 was also published in which the petitioner appeared at serial no. 481 showing her 30 years of age. The petitioner contested the election in which she disclosed her age as per the voter list to which no objection was filed by respondent no.11. The nomination paper filed by the petitioner having been accepted she contested and won the election. Heard 4. Mr. Y.V. Giri, learned senior counsel for the petitioner, Mr. S.B.K. Mangalam for respondent no.11 and Mr. The petitioner contested the election in which she disclosed her age as per the voter list to which no objection was filed by respondent no.11. The nomination paper filed by the petitioner having been accepted she contested and won the election. Heard 4. Mr. Y.V. Giri, learned senior counsel for the petitioner, Mr. S.B.K. Mangalam for respondent no.11 and Mr. Amit Srivastava for respondents 3 and 4. 5. The parties have exchanged pleadings. 6. Mr. Giri contended that in order to resolve the dispute and in particular to verify the correction in the date of birth of the petitioner in the mark sheet issued to her by the respondent Madrasa Board, a report was called from the Madrasa Board. In response thereof an enquiry without associating the petitioner therewith was held and the report dated 10.5.2013 (Annexure 6) was submitted wherein it was found that owing to confusion on account of two names of the petitioner, namely, Tarannum Jehan and Shagufta Tarannum, the mistake in recording the date of birth of the petitioner had crept in. The actual name of the petitioner recorded in the original tabulation record was Tarannum Jehan and her date of birth was recorded as 12.4.1992. A correction in the mark sheet was carried out under the hand and seal of the Controller of Examination of the respondent Board but the same was not done after obtaining the order of the Chairman of the Madrasa Board. The corrections so made in the date of birth of the petitioner from 12.4.1992 to 12.4.1982, therefore, had no legal value. It has, thus, been submitted that the Madrasa Board accepts such correction having been made in the date of birth of the petitioner from 12.4.1992 to 12.4.1982 albeit without adopting due procedure thereof. It has further been submitted that the respondent Commissioner in the impugned order has not assigned valid reason(s) for not accepting such correction in the date of birth of the petitioner. The respondent Commissioner has also failed to assign valid reasons for not accepting the other documents some of which were in existence much prior to the election in question. In all fairness the respondent Commissioner having appreciated the dispute between the parties ought to have permitted the petitioner to be medically examined for assessment of her age which was denied. The respondent Commissioner has also failed to assign valid reasons for not accepting the other documents some of which were in existence much prior to the election in question. In all fairness the respondent Commissioner having appreciated the dispute between the parties ought to have permitted the petitioner to be medically examined for assessment of her age which was denied. It has also been contended that a serious dispute of fact should not have been gone into by the respondent Commissioner in a summary proceeding. The impugned order is, therefore, not sustainable in law. 7. Per contra, counsel for the contesting respondent and the counsel for the respondent Commissioner supported the impugned order. Both of them have relied on the report of the Secretary of the Madrasa Board (Annexure 6) in order to contend that the petitioner was not qualified to contest the election being less than twenty one years of age when she filed the nomination. 8. Before I proceed further, be it noted that no issue with regard to the name of the petitioner has been raised either by the petitioner or the respondent(s). The respondent Commissioner rejected the contention of the petitioner for assessment of her age by a medical board on the ground that the petitioner was literate and passed school examination(s) and as such the educational certificate certifying the age shall have precedence. After having rejected the said prayer, the respondent Commissioner further found that while filing the nomination paper the petitioner in her affidavit had furnished wrong / incorrect information inasmuch as she had disclosed herself only literate. Thus considering the attending facts of the case the respondent Commissioner directed for taking appropriate punitive action against the petitioner as provided under section 125(A) (1) (3) of the Act. This court is not concerned with the said part of the direction inasmuch as no submission was also made by the parties touching that part of the order. 9. The respondent Commissioner in the light of the report submitted by the Madrasa Board did not accept the case of the petitioner that such correction in her date of birth was made by the Madrasa Board and the petitioner was held not qualified to contest the election being less than twenty one years of age when she contested the election. The respondent Commissioner in the light of the report submitted by the Madrasa Board did not accept the case of the petitioner that such correction in her date of birth was made by the Madrasa Board and the petitioner was held not qualified to contest the election being less than twenty one years of age when she contested the election. The respondents, as noticed above, have heavily relied on the report of the Madrasa Board (Annexure 6) in order to support the finding recorded by the respondent Commissioner in the impugned order. 10. It has been contended by Mr. Srivastava that the age recorded in the voter list(s) is only a conclusive proof of the fact that the person so recorded therein is an elector. He referred in this regard to section 36(7) of the Representation of People Act and section 126 of the Act. Every candidate has to be an elector but the converse is not always true. The reliance of the petitioner on the voter list to demonstrate her age has rightly not been considered by the respondent Commissioner. 11. The question is whether the respondent Commissioner was justified in acting on the report of the Madrasa Board to conclude that the date of birth of the petitioner was 12.4.1992 and not 12.4.1982. Another related issue is whether the respondent Commissioner was justified in brushing aside other documents particularly the voter list(s) of preceding years on which the petitioner placed reliance on the ground that they were self serving documents. The counsel for the petitioner has also raised an issue on the jurisdiction of respondent Commissioner to delve into and decide a serious factual dispute in a summary proceeding relying on the case of Kahkashan Parveen Vs. The State of Bihar and others ( 2007 (1) PLJR 616 ) Mr. Giri submitted that although the jurisdiction of the respondent Commissioner to go into factual dispute cannot be legally questioned but where such dispute is so deep rooted which requires appreciation of both oral and documentary evidence, it was proper and advisable on the part of the respondent Commissioner to deny a finding on such disputed question of fact in a summary proceeding. 12. Admittedly the petitioner was not associated with the enquiry said to have been conducted by the respondent Madrasa Board before submitting the report (Annexure 6) which has been accepted and relied upon. 12. Admittedly the petitioner was not associated with the enquiry said to have been conducted by the respondent Madrasa Board before submitting the report (Annexure 6) which has been accepted and relied upon. It is more than evident from the said report (Annexure 6) that such correction in the date of birth of the petitioner was admitted but without adopting the procedure therefor. The respondent Commissioner has preferred to rely on the certificate issued by the Madrasa Board in the light of the decision of this court rendered in the case of a juvenile in conflict with law. In my view, the respondent Commissioner erred in doing so for the simple reason that under the Juvenile Justice (Protection and Care of Children) Act, 2000 the relevant provision itself provide that first preference in determining the age of the juvenile shall be given to the educational certificate and in absence thereof the certificate from the school first attended or in absence thereof the birth certificate given by the Corporation or the Municipal authority whereas there is / are no such provision in the Panchayat Raj Act. Further, the reason assigned in the impugned order to accept the report has seriously been challenged by the petitioner. The request of the petitioner for assessing her age by a medical board in view of the conflicting claims of the parties was rejected primarily on the ground that the petitioner herself filed certificate issued by the Madrasa Board which legally should be preferred in resolution of the dispute. No doubt such certificate was there but the date of birth recorded therein and correction thereof was the real bone of contention between the parties. 13. The dispute raised in the present case can be appreciated and resolved taking a different approach. Reliance on the voter list(s) published for preceding several years beginning from 2004 placed on record by the petitioner has been denied dubbing them as the self serving documents / papers. There cannot be any dispute that they are public documents. Counsel for the respondent(s) have contended that the voter list(s) in view of the provisions of the Act and the R. P. Act can only be considered as the conclusive proof that the person so registered is the elector. An elector has to be of an age so prescribed by law. The petitioner was registered as an elector in 2004. Counsel for the respondent(s) have contended that the voter list(s) in view of the provisions of the Act and the R. P. Act can only be considered as the conclusive proof that the person so registered is the elector. An elector has to be of an age so prescribed by law. The petitioner was registered as an elector in 2004. It can then safely be presumed that in the year 2011 when the petitioner contested the election, she was more than twenty years of age. As per the law any one more than eighteen years of age can be registered as the voter. Taking a view different from those would run contrary to the provisions contained in section 126 of the Act particularly the proviso appended thereto. Secondly, it can not be reasonably inferred that the petitioner in order to contest the election in future got an artificial age entered in the voter list (electoral roll) prepared and published in 2004. The reasons assigned in the impugned order to decline reliance on those documents do not appear to be convincing and sound. Such view of the matter is adequate to dispel the other reason(s) assigned by the respondent Commissioner to reject the case of the petitioner. 14. Furthermore, I have already noticed above that the report of the Madrasa Board (Annexure 6) accepts correction in the date of birth of the petitioner from 12.4.1992 to 12.4.1982 but without obtaining the order of the competent authority. If it is so done but ignoring the procedure for any obvious or oblique reason(s), then the Madrasa Board could have directed an enquiry into the matter as has already been done. This court in this case is not concerned with the said enquiry so ordered by the competent authority of the Madrasa Board. Correction made in the date of birth of the petitioner in the certificate / mark sheet however does not appear to be in dispute. If the respondent Commissioner was still not convinced about the age of the petitioner when she contested the election, he had an option to accept the request of the petitioner to direct assessment of her age by a Medical Board which was unfortunately not acceded to by the respondent Commissioner. 15. Mr. If the respondent Commissioner was still not convinced about the age of the petitioner when she contested the election, he had an option to accept the request of the petitioner to direct assessment of her age by a Medical Board which was unfortunately not acceded to by the respondent Commissioner. 15. Mr. Shrivastava relied on an order dated 6.3.2013 passed by this court in L.P.A. No. 267/2013 to contend that the order passed by the respondent Commissioner does not merit interference by this court exercising its power of judicial review. Mr. Giri has on the contrary contended that the factual profile of the said case is entirely different. An admission regarding the date of birth was later disputed. On a perusal of the said order this court is satisfied that the ratio laid down therein is confined to the attending facts of the said case and shall not have any application to the facts of the present case. 16. In the light of discussions made above, this court is inclined to uphold the submissions of the petitioner to challenge the legality of the impugned order dated 17.7.2013. This writ application succeeds. The impugned order is quashed. 17. Before parting with the case this court clarifies that the contention of the petitioner that the respondent Commissioner, in view of serious dispute of the age of the petitioner, should not have gone into the same in the summary proceeding is not gone into by this court. 18. This writ application is allowed. No order as to costs. ?