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2023 DIGILAW 685 (PAT)

Khushboo Ara v. State of Bihar

2023-06-27

RAJIV ROY

body2023
Rajiv Roy, J.—Heard learned counsel for the parties. 2. The petitioner has challenged the order dated 27.03.2023 passed by the respondent no. 8, the State Election Commissioner, Bihar, Patna in Case No. 43 of 2021 communicated vide memo no. 1000 dated 27.03.2023 by which she has been disqualified to hold the post of ‘Mukhiya’ of Gram Panchayat Raj, Bishariya under Bhargama Block in the District of Arariya on the findings arrived that she belongs to ‘Sheikh’ caste and not ‘Sheikhra’ caste and thus is not a member of Extremely Backward Class. 3. The matrix of facts giving rise to present present writ petition is/are enumerated hereinbelow. 4. The petitioner claims herself to the caste belonging to the extremely backward class (Sheikhra Caste) who contested the 2016 election for the post of ‘Mukhiya’ of Bishariya Gram Panchayat reserved for the female extremely backward class and was declared elected. 5. Subsequently, a complaint was filed against her before the State Election Commission (henceforth for short ‘the Commission’) under section 136(2) of the Bihar Panchayat Raj Act, 2006 (henceforth for short ‘the Act’) to declare her disqualified to hold the post of ‘Mukhiya’ from Bishariya Gram Panchayat on the ground that she is a member of ‘Sheikh’ caste and not ‘Sheikhra’ caste which comes under the extremely backward class category. 6. Accordingly, ‘the Commission’ registered a case vide Complaint Case No. 03 of 2017 against her. Further, as the State Government under the General Administration Department had constituted a Caste Scrutiny Committee (henceforth for short ‘the Committee’) in the light of the order of the Hon’ble Apex Court in Kumari Madhuri Patil vs. Additional Commissioner reported in (1994) 6 SCC 241 , ‘the Commission’ requested the said Committee to decide the dispute regarding her social status. 7. The General Administration Department, Bihar, Patna (henceforth for short ‘the Department’) accordingly referred the matter to the Criminal Investigation Department for an enquiry relating to the social status of the petitioner. As per the case, the petitioner appeared along with the documents to support her case whereafter the CID submitted its report dated 05.02.2018 to ‘the Department’ enclosing memo no. 166 dated 16.02.2018 recording its finding that she belongs to ‘Sheikh’ caste under general category (Annexure-P-1 and P-1/1 to the writ petition). 8. Pursuant thereto ‘the Department’ issued notice to the petitioner vide letter no. 166 dated 16.02.2018 recording its finding that she belongs to ‘Sheikh’ caste under general category (Annexure-P-1 and P-1/1 to the writ petition). 8. Pursuant thereto ‘the Department’ issued notice to the petitioner vide letter no. 2919 dated 01.03.2018 to submit her show cause (Annexure-P-2 to the writ petition). Accordingly, a show cause was filed by the petitioner before the Caste Scrutiny Committee on 19.04.2018 along with supporting documents. The said Committee in its meeting dated 03.05.2018 held and subsequently, vide memo no. 6036 dated 11.05.2018 declared the petitioner to be a member of ‘Sheikh’ caste and her claim of belonging to the ‘Sheikhra’ caste was rejected. Copy was thus forwarded to ‘the Commission’ for necessary action (Annexure P-8 to the writ petition). 9. However, ‘the Commission’ vide its order dated 28.12.2019 ignoring the said findings came to a conclusion that in absence of unimpeachable material available on record, the complaint stands disposed of. 10. Aggrieved, the complainant-respondent no. 11, Rukhsana Praveen approached Patna High Court in CWJC No. 5136 of 2020 in which after issuing notice to the petitioner, the same was heard and allowed vide an order dated 14.12.2020 setting aside the order passed by ‘the Commission’ (in Complaint case no. 03 of 2017) with further direction to it to pass fresh order after taking into account the findings recorded by ‘the Committee’ considering it as an unimpeachable material. 11. The relevant part of the order dated 14.12.2020 in CWJC No. 5136 of 2020 read as follows:— “13. Caste status of respondent no. 6 in the present case goes to the very root of the matter, as the seat of Mukhiya of Gram Panchayat Raj Bishariya (Block Bhargama), Araria was reserved for a candidate belonging to EBC category. As has been noticed above, it has been concurrently held by the District Magistrate- cum-District Panchayati Raj Officer, Araria and State Level Caste Scrutiny Committee that the respondent no. 6 belongs to 'Sheikh' caste, and not "Sheikhra'. Respondent no. 6 could not question the correctness of the said finding in the proceeding before the State Election Commission, Patna nor before this Court, the finding of the State Level Caste Scrutiny Committee having been accepted by her and thus having attained finality. In the background of admitted facts available before the State Election Commission. Respondent no. 6 could not question the correctness of the said finding in the proceeding before the State Election Commission, Patna nor before this Court, the finding of the State Level Caste Scrutiny Committee having been accepted by her and thus having attained finality. In the background of admitted facts available before the State Election Commission. Patna, the State Election Commission, Patna ought not to have gone into the correctness of finding recorded by the State Level Caste Scrutiny Committee in the absence of any challenge to it by respondent no. 6 herself.” 14. The finding recorded by the State Level Caste Scrutiny Committee on the question of caste status of respondent no. 6, had attained finality and become unimpeachable, respondent no. 6 herself did not question the correctness of the as said finding. 15. In view of the discussions, as noted above, in my opinion, the impugned order dated 28.11.2019 passed by the Chief Election Commissioner, Patna in Complaint case No. 3 of 2017 as contained in Memo No. 2366 dated 30.12.2019, requires interference. The order is accordingly set aside. The Chief Election Commissioner, Patna is directed to pass an order afresh within fifteen days from the date of receipt/production of a copy of this order, treating the finding recorded by the State Level Caste Scrutiny Committee to be final and unimpeachable material, the same having been accepted by respondent no. 6 as regards her own caste status. 16. Since the Court has noticed that respondent no, 6 suffered from inherent lack of eligibility to contest the election in the backdrop of the above noted discussion, the Court in the interest of justice, restrains respondent no. 6 from functioning as ‘Mukhiya’ of Gram Panchayat Raj Bishariya (Block Bhargama), Araria till an order is passed by the Chief Election Commissioner, Fatua in the light of the observations made hereinabove in the present order. The District Magistrate-cum-District Panchayati Raj Officer, Araria is directed to consider the registration of F.L.R. against respondent no. 6, who appears to have fraudulently portraying herself to EBC (female) category candidate contested the election in question. 17. This application is allowed with the aforesaid observation and direction.” 12. Thereafter ‘the Commission’ vide its memo no.1622 dated 31.12.2020 declared the petitioner disqualified to the post she was holding taking into account the findings of ‘the Committee’ (Annexure P-11 to the writ petition). 13. 17. This application is allowed with the aforesaid observation and direction.” 12. Thereafter ‘the Commission’ vide its memo no.1622 dated 31.12.2020 declared the petitioner disqualified to the post she was holding taking into account the findings of ‘the Committee’ (Annexure P-11 to the writ petition). 13. It was only thereafter that the petitioner challenged the findings of the ‘Caste Scrutiny Committee’ by filing CWJC No. 2408 of 2021. The same was heard and allowed by the bench of Patna High Court on 31.08.2021 remanding the matter back to ‘the Committee’ for passing a fresh order. 14. The reason for allowing the said writ petition was that the Court came to a conclusion that the document and evidence which formed the part of the Enquiry Report were not furnished to the petitioner. The relevant paragraphs of the said order is/are incorporated herein below:— “12. From perusal of the reply of the petitioner upon the enquiry report, dated 03.05.2018 (Annexure P-12), I find that the petitioner has categorically stated that documents and evidence, which form part of the enquiry report, were not furnished to her. 13. Accordingly, I come to the conclusion that the impugned order, dated 03.05.2018 (Annexure P-13), passed by the General Committee of the State Level Scrutiny Committee, is vioative of principle of natural justice and the same is hereby quashed and the matter is remitted back to the Caste Scrutiny Committee of the General Administration Department to pass a fresh order in accordance with law and after furnishing all the relevant materials/ documents/ evidence/ compact disc (CD) etc. to the petitioner, relied upon by the enquiry committee of the Crime Investigation Department, preferably within a period of three months from the date of receipt/production of a copy of this order. 14. This writ application is allowed to the extent indicate above. 15. However, there shall be no order as to costs.” 15. In the meantime, ‘the Commission’ had notified the Panchayat Election, 2021 and accordingly, the petitioner approached the competent authority for grant of ‘Sheikhra’ caste certificate once again which was granted on 08.09.2020. Subsequently, she filed nomination for the post of ‘Mukhiya’ for Gram Panchayat, Bishariya, contested and was elected again. 16. Meanwhile, the General Administration Department, Bihar, Patna issued notice to the petitioner vide letter no. 12504 dated 25.10.2021 asking her to submit show cause. Subsequently, she filed nomination for the post of ‘Mukhiya’ for Gram Panchayat, Bishariya, contested and was elected again. 16. Meanwhile, the General Administration Department, Bihar, Patna issued notice to the petitioner vide letter no. 12504 dated 25.10.2021 asking her to submit show cause. Accordingly, she appeared before ‘the Committee’ on 22.11.2021 for the purpose of hearing. 17. ‘The Committee’ in its meeting dated 25.11.2021 once again rejected the claim of the petitioner of being part of the ‘Sheikhra caste’ and held that she belongs to ‘Sheikh caste’. The said decision of ‘the Committee’ was communicated to all concerned vide memo no. 14561 dated 07.12.2021 (Annexure P-18 to the writ petition). 18. Aggrieved, the petitioner challenged the said findings by filing CWJC No. 202 of 2022. It is appropriate to bring on record the prayer that was made in the said writ petition. “It is, therefore, most humbly prayed that your Lordships may graciously be pleased to admit this application issue Rule NISI,calling upon the Respondents to show-cause as to why this application be not admitted or disposed of at the time of Admission Stage itself and on return of the Rules if no sufficient cause is shown, make the Rules absolute allow this application and after hearing the parties be further pleased to grant relief to the petitioner as sought vide paragraph No.1 of this writ application. AND/OR Pass such other order or orders as Your Lordships may deem fit and proper in the facts and circumstances of the case. AND During the pendency of the writ application the decision of the Caste Scrutiny Committee communicated under memo no.14561 dated 07.12.2021 issued under the signature of the Joint Secretary 9 the Respondent no.5 (ANNEXURE-P-17) may kindly be stayed.” 19. The said writ petition was taken up by the co-ordinate bench of this Court and on 12.12.2022 and the following order was passed:— “Admit. The writ petition shall be heard. Since the respondents have already tendered their appearance, there is no need to issue fresh notice to the respondents. List in due course.” 20. From the aforesaid order it is clear that no interim protection was granted to the petitioner and/or the decision as communicated vide memo no. 14561 of 02.12.2021 was not stayed. 21. Since the respondents have already tendered their appearance, there is no need to issue fresh notice to the respondents. List in due course.” 20. From the aforesaid order it is clear that no interim protection was granted to the petitioner and/or the decision as communicated vide memo no. 14561 of 02.12.2021 was not stayed. 21. Pursuant to the decision taken by ‘the Committee’, ‘the Commission’ proceeded in the matter and registered a case vide Case No. 43 of 2021 (Rukshana Praveen vs. Khushboo Ara) and the petitioner was noticed. Accordingly, she appeared and preliminary show cause was filed stating therein that as she has challenged the order of the Caste Scrutiny Committee before the Patna High Court, ‘the Commission’ should defer the further proceeding. 22. The matter was finally heard on 08.07.2022 and the judgment was reserved. In the meantime, CWJC no. 202 of 2022 was admitted for hearing and as stated above, no interim protection was granted to the petitioner. Thereafter, the petitioner submitted the certified copy of the order dated 12.12.2022 to ‘the Commission’ stating that the writ petition challenging the decision of ‘the Committee’ has been admitted for hearing and as no finality has been attained to ‘the Committee’s’ findings, the same being not at the evidence of unimpeachable character, no order be passed. 23. ‘The Commission’ however went ahead and took a decision communicated vide memo no. 1000 dated 27.03.2023 passed under the signature of the Election Commission, Bihar, Patna by which the petitioner was declared disqualified for the post she was holding with further observation that the decision dated 27.03.2023 would abide by the final outcome of the CWJC No. 202 of 2022. 24. Aggrieved, the present petition. 25. Heard learned Counsel for the parties. 26. It is the case of learned Counsel for the petitioner that in view of the full bench decision in Rajni Kumari and ors. vs. The State Election Commission through its Secretary and Ors. reported in 2019 (4) PLJR 673 [: 2019 (6) BLJ 1 ], the order passed by ‘the Committee’ declaring him as ‘Sheikh’ caste is not an unimpeachable evidence warranting her disqualification and as such, the same is fit to be set aside. He has taken this Court to paragraph-184 of the said order which read as follows:— 184. reported in 2019 (4) PLJR 673 [: 2019 (6) BLJ 1 ], the order passed by ‘the Committee’ declaring him as ‘Sheikh’ caste is not an unimpeachable evidence warranting her disqualification and as such, the same is fit to be set aside. He has taken this Court to paragraph-184 of the said order which read as follows:— 184. We are in agreement that the State Election Commission has got power under sub-section (2) of Section 18 of the Bihar Municipal Act, 2007 and sub-section (2) of Section 136 of the Bihar Panchaya Raj Act, 2006 to consider an issue of pre or post-election disqualification of a candidate subject to a caution which we have pointed out in our judgments in respect of a case which is in the nature of a purely election dispute and then a matter cannot be decided without adducement of evidence by a competent court and authority in accordance with law. The State Election Commission shall entertain and consider the 'disqualification issues on the basis of the unimpeachable material placed before him. Whether a complaint brought before the Commission either suomoto or by any other person, the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials. Whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified, the Commission would be required to relegate the parties to a competent court/tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo-moto or otherwise. 27. Learned Counsel for the petitioner as such submits that when the full bench has taken into account that ‘the Commission’ should proceed to consider the matter only on the basis on unimpeachable materials, it erred in passing the order disqualifying her from the post she was holding as her challenge to the findings of the Caste Scrutiny Committee is pending before Patna High Court. 28. 28. He further submits that till the order is passed by the Writ Court in CWJC No. 202 of 2022, ‘the Commission’ could not have taken up the matter and she could not have been disqualified from the post she was holding as the decision of ‘the Committee’ under no circumstance can be put in the category of unimpeachable materials. He as such, prays for setting aside the matter. 29. Per contra, Mr. Sanjeev Nikesh, learned Counsel for ‘the Commission’ submits that in the first round of litigation, when ‘the Committee’ vide its meeting dated 03.05.2018 held the petitioner to be belonging to ‘Sheikh’ caste and not ‘Sheikhra’ caste under EBC category, she did not challenge the said order rather contested the matter before ‘the Commission’ which in its order dated 28.12.2019 came to a conclusion that there is no unimpeachable material available on record and had disposed of the complaint. 30. The learned Counsel submits that respondent no. 11 herein thereafter challenged the decision of ‘the Commission’ in CWJC No. 5136 of 2020 and a co-ordinate bench was pleased to allow the same setting aside the order of ‘the Commission’ holding the finding to be an unimpeachable evidence. 31. He further submits that thereafter ‘the Commission’ disqualified the petitioner. Only thereafter, she challenged the findings of ‘the Committee’ in CWJC 2408 of 2021 which was allowed on 31.08.2021 on the ground that the evidence that formed part of the enquiry report was not provided to her. 32. It is his further submission that in the second round of litigation, ‘the Committee’ once again came to the same conclusion that the petitioner belongs to the ‘Sheikh’ caste (and not the ‘Sheikhra’ caste) vide its order dated 25.11.2021 communicated vide memo no. 14561 dated 07.12.2021. 33. He submits that this time the petitioner promptly filed CWJC No. 202 of 2022 in which one of the prayer was to stay the decision of ‘the Committee’ vide memo no. 14561 dated 07.12.2021. 34. It is his submission that the said CWJC No. 202 of 2022 was taken up by a co-ordinate bench of this Court and the same was admitted for hearing on 12.12.2022. Further, a perusal of the said order clearly shows that no interim protection was granted to the petitioner. In other words, the findings of ‘the Committee’ that she belongs to the ‘Sheikh’ caste holds ground. 35. Further, a perusal of the said order clearly shows that no interim protection was granted to the petitioner. In other words, the findings of ‘the Committee’ that she belongs to the ‘Sheikh’ caste holds ground. 35. He thus submits that in the aforesaid background, ‘the Commission’ was fully justified in taking the decision under question. He further took this Court to the Gazette notification dated 9th March, 2011 (Annexure R-7-10 of the counter affidavit of respondent nos. 7 to 10) with specific reference to paragraph 9 which deals with the process of issuance of caste certificate and from which it is evident that in absence document relating to Khatian, gift land, landless portion, the caste certificate should be issued on the basis of enquiry. 36. He further took this Court to the order of Patna High Court in CWJC No. 5136 of 2020 decided on 14.12.2020 (Annexure P-10 to the writ petition) which relates to the first round of litigation with reference to paragraph-14, 15 and 16 (already incorporated in above paragraphs) in support of his submission. 37. He as such, concludes by submitting that unless the Court in CWJC 202 of 2022 holds otherwise, the decision of the State level Caste Scrutiny Committee is final and unimpeachable material. 38. He too relied on the decision of Rajani Kumari vs. State Election Commission (supra) with reference to paragraph-184 (already been incorporated above) and submits that findings arrived at by ‘the Committee’ is an unimpeachable material unless set aside. He thus submits that the writ petition is fit to be set aside. 39. The respondent no. 11 was noticed in the matter but there is no appearance on her behalf. 40. The admitted fact is that on a complaint of the respondent no. 11 herein, ‘the Commission’ referred the matter to ‘the Department’ and later ‘the Committee’ took up the case (once the report of the C.I.D. came) and came to a conclusion vide its findings dated 03.05.2018 communicated vide memo no. 6036 dated 11.05.2018 that the petitioner belongs to ‘Sheikh’ caste and not ‘Sheikhra’ caste. 41. However, ‘the Commission’, ignoring the said findings chose to dispose of the complaint on 28.12.2019. Aggrieved, CWJC No. 5136 of 2020 was filed by the respondent no. 11 and Patna High Court allowed the writ petition on 14.12.2020 directing ‘the Commission’ to pass fresh order. 42. 41. However, ‘the Commission’, ignoring the said findings chose to dispose of the complaint on 28.12.2019. Aggrieved, CWJC No. 5136 of 2020 was filed by the respondent no. 11 and Patna High Court allowed the writ petition on 14.12.2020 directing ‘the Commission’ to pass fresh order. 42. Accordingly, ‘the Commission’ passed an order communicated memo no. 1622 dated 31.12.2020 by which the petitioner was disqualified from the post. Only thereafter, she chose to challenge the findings dated 11.05.2018 by ‘the Committee’ vide CWJC No. 2408 of 2021. The same was allowed on the ground that documents/evidences which formed the basis for holding her to be belonging to the ‘Sheikh’ caste was not provided to her. 43. The matter thereafter once again travelled to ‘the Committee’ which again came to the same conclusion communicated vide memo no. 14561 dated 07.12.2021 that she do not belong to ‘Sheikhra’ caste (under E.B.C. category) rather to ‘Sheikh’ caste. 44. In the meantime, as narrated above that during the pendency of the case before ‘the Committee’, 2021 Panchayat Election took place and the petitioner got elected as ‘Mukhiya’ on an E.B.C. seat of Gram Panchayat, Bishariya (Araria). 45. Once ‘the Committee’ came to its findings, it communicated amongst other to ‘the Commission’ which heard the matter and reserved the order on 08.07.2022. Meanwhile, the petitioner had challenged the fresh finding of ‘the Committee’ by filing the CWJC No. 202 of 2022 which was taken up on 12.12.2022 and the same was admitted for hearing and no interim protection was granted to her despite the specific prayer made in the writ petition. 46. In that background, ‘the Commission’ passed the order on 27.03.2022 disqualifying the petitioner from the post she was holding forcing her to prefer the present petition. 47. Having narrated the entire facts and hearing the parties, this Court finds force in the submission put forward by the learned Counsel appearing for ‘the Commission’. 48. The findings of ‘the Committee’ dated 07.12.2021 is an unimpeachable evidence unless set aside by a competent Court. In the said findings communicated vide memo no. 14561 of 07.12.2021 ‘the Committee’ came to a definite conclusion that the lady belongs to ‘Sheikh’ caste and not ‘Sheikhra’ caste to get benefits under the E.B.C. category. 49. The petitioner promptly challenged the order in CWJC No. 202 of 2022 which was heard on 12.12.2022 by a co-ordinate bench of this Court. 14561 of 07.12.2021 ‘the Committee’ came to a definite conclusion that the lady belongs to ‘Sheikh’ caste and not ‘Sheikhra’ caste to get benefits under the E.B.C. category. 49. The petitioner promptly challenged the order in CWJC No. 202 of 2022 which was heard on 12.12.2022 by a co-ordinate bench of this Court. The same was admitted for hearing and as would be evident from the order. However, no interim protection was granted to her. 50. In the aforesaid background, ‘the Commission’ was fully justified in passing the order which was communicated vide memo no. 1000 dated 27.03.2023 disqualifying the petitioner from the post she was holding. 51. So far as the judgment of Rajani Kumari (supra) cited by both the parties is/are concerned, in the said order it was held that:— whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified, the Commission would be required to relegate the parties to a competent Court/Tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the commission shall not take a decision on such complaint either suo-moto or otherwise. 52. Here too, ‘the Commission’, on receiving the complaint of respondent no. 11 referred the matter to ‘the Department’ whereafter the same was taken up by ‘the Committee’ and only after its consistent finding which was communicated to ‘the Commission’ on 07.12.2021 that the final order dated 27.03.2023 was passed. In between, the petitioner unsuccessfully tried to get interim protection against the findings dated 07.12.2021 in CWJC No. 202 of 2022. 53. Thus this Court holds that the decision of ‘the Commission’ is strictly in line with the Full Bench decision rendered by the Patna High Court in Rajani Kumari (supra) case. 54. The order of ‘the Commission’ communicated vide memo no. 1000 dated 27.03.2023 (Annexure P-22 of the writ petition) do not suffer from any infirmity. 55. The writ petition lacks merit and is accordingly dismissed.