Patna High Court
Nikki Devi vs The State Election Commission ... on 2 July, 2019
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.301 of 2019
In
Civil Writ Jurisdiction Case No.21697 of 2018
======================================================
Nikki Devi (female), aged about 34 years, wife of Amit Kumar Singh,
Resident of Village and P.O. Rakiya, Gram Panchayat- Rakiya, P.S. Bihra,
Block- Sattar Kataiya, District- Saharsa.
... ... Appellant/s
Versus
1. The State Election Commission (Panchayat), Sone Bhawan Birchand Patel
Path, Patna through the State Election Commissioner.
2. The District Election Officer (Panchayat), Saharsa District- Saharsa.
3. The District Panchayat Raj Officer, Saharsa, District- Saharsa.
4. The Block Development Officer, Sattar Kataiya Block, District- Saharsa.
5. Chanda Devi, Wife of Arbind Prasad Singh, Resident of Village and P.O.
Rakiya, Gram Panchayat- Rakiya, P.S. Bihra, Block- Sattar Kataiya,
District- Saharsa.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.S.B.K. Mangalam, Advocate
Mrs. Anita Kumari, Advocate
Mr. Ravi Ranjan, Advocate
Mr. Kislay Raj, Advocate
For State Election Commission: Mr. Amit Shrivastava, Advocate
Mr. Girish Pandey, Advocate
For the State : Mr. Manish Kumar, A.C. to AAG-6
For Private Respondent : Mr. Shravan Kumar, Sr. Advocate
Mr. Satish Kumar Singh, Advocate
======================================================
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 02-07-2019
This appeal arises out of an election dispute to the
office of Mukhiya, Gram Panchayat, Rakiya, Block Sattar
Kataiya, Saharsa governed by the provisions of the Bihar Gram
Panchayat Raj Act, 2006 and the rules framed thereunder.
2. The appellant along with the contesting
respondent Chanda Devi was one of the candidates for the office
of Mukhiya of the Gram Panchayat in question in the 2016
elections. In the Nomination Form the appellant disclosed that
she has completed more than 30 years of age. This Nomination
Form was filled up on 4th of April, 2016. Along with the form
she also submitted a Notary Affidavit and in Column 6 thereof
she disclosed her educational qualification as having passed
Matric from a Sanskrit Madhyamik Vidyalaya, Jagatpur, Supaul.
In the bio-data form which was to be filled up in terms of the
directives of the Election Commission against Column 5 she
indicated her date of birth as 1st of January, 1986 and her
educational qualification as Matric.
3. Her Nomination Form was accepted and she
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contested the elections and was declared elected.
4. The respondent Chanda Devi filed Election
Petition No. 10 of 2016 before the prescribed authority namely
the learned Munsif, Saharsa challenging the election of the
appellant alleging corrupt practice by making false declarations,
particularly with regard to her name, her educational
qualification as well as her date of birth. Since the bone of
contention between the parties was confined to the aforesaid
issues primarily, it would be apt to refer to Paragraphs 10 and 12
of the Election Petition where these allegations have been made
and the denial thereof in Paragraphs 13 and 15 of the written
statement filed by the appellant. Oral evidence and documentary
evidence was filed by both the parties that has been discussed
by the learned Munsif who allowed the Election Petition on the
ground that the appellant had made a false declaration about her
educational qualification as well as about her date of birth which
renders the Nomination Papers unacceptable and, therefore, an
incorrect acceptance of nomination on the basis of a false
information led to the conclusion that the election result stood
vitiated and accordingly the election of the appellant was set
aside. While recording findings, the learned Munsif, however,
did not find the allegation of different names being depicted by
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the appellant to be valid and rejected the said contention of the
election petitioner. However, as noted above, the Election
Petition was allowed on the other two grounds of false
declaration relating to educational qualification and date of
birth.
5. Aggrieved, the appellant filed the writ petition,
the judgment dated 28.01.2019 whereof has given rise to this
appeal whereby the learned Single Judge has upheld the order of
the learned Munsif setting aside the election of the appellant
categorically recording that since a false declaration would
result in rejection of the nomination of the candidate, therefore,
the findings recorded by the Munsif on the issue of date of birth
and the educational qualification is correct.
6. The learned Single Judge also found that the
judgments cited at the Bar in support of the respondent's
contentions clearly support the stand of the election petitioner.
The learned Single Judge has further held that the appellant had
the opportunity to tender evidence of having either passed the
Matric or Intermediate examination and also about the date of
birth, but since the appellant had failed to do so, the learned
Munsif was justified in setting aside her election.
7. Assailing the aforesaid findings Shri S.B.K.
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Mangalam, learned counsel for the appellant has urged that the
declaration to be made in the Nomination Form is only about
the age of a candidate in order to ensure that the candidate is
above 21 years of age. He submits that there is no requirement
of indicating the date of birth in the Nomination Form. He then
submits that the affidavit filed in support of the nomination also
does not require the indication of date of birth and against the
column of educational qualification, the qualification and the
name of the school has to be mentioned which has been done by
the appellant correctly. In the description contained in the bio-
data which is a document in the shape of a form provided by the
Election Commission, the date of birth has been indicated as 1 st
of January, 1986. It is the submission of Shri Mangalam that
whatever be the dates of birth which have been indicated in the
impugned judgments, none of them reduces the age of the
appellant to be less than 21 years and, therefore, the appellant
has nowhere furnished a false information in this regard. He
further submits that there is no allegation in the entire Election
Petition that the appellant has not matriculated. In the absence
of any cogent evidence having been led in support of the
Election Petition to substantiate the allegation about the age of
the appellant being less than 21 years, the finding recorded by
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the learned Munsif and accepted by the learned Single Judge
seems to be a finding recorded on erroneous considerations
without adverting to the statutory requirement of only
mentioning the age of a candidate.
8. He further submits that no evidence was filed to
establish that the appellant had not passed the Matriculation
examination from the school as disclosed in the Nomination
Form. Thus, there was neither any specific averment nor was
there any proof to dislodge the declaration made by the
appellant that she had matriculated.
9. He has further submitted that the mentioning of
the qualification of Intermediate in respect of the elections of
2011 is absolutely irrelevant, inasmuch as, any information
tendered with regard to the previous election cannot be used as
an information in respect of the Nomination Form filled up for
the fresh elections in 2016. It is urged that the learned Munsif
has, therefore, completely erred in placing reliance on the
declaration of the qualification in the documents of the 2011
elections. This misplaced approach has also been accepted by
the learned Single Judge and, therefore, the impugned judgment
is vitiated.
10. Responding to the aforesaid submissions,
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learned counsel for the contesting respondent Chanda Devi has
urged that during the pendency of this appeal fresh elections
have been held in March, 2019 and a certificate to that effect
dated 12th March, 2019 has been issued by the Election Officer
in favour of one Smt. Raj Kumari Devi. A photostat copy of the
said certificate has been placed before the Court. He, therefore,
submits that the appellant cannot succeed so long as the newly
elected person is not made a party.
11. We may put on record that long before we had
called upon the respondents on 26th February, 2019 to file a
counter affidavit and had also directed that any election, if held
in the meantime, shall be subject to the outcome of the appeal.
Thus, the respondent-State was fully aware of the said order and
it was the duty of the State and its agencies to have informed
this fact to the Commission and that the Election Certificate and
other documents would be subject to the outcome of this appeal.
12. Shri Amit Shrivastava, learned counsel for the
State Election Commission has produced the copies of the
letters dated 28.02.2019 and 10.05.2019 wherein the State
Election Commission has informed the District Election
Officer that the present Special Appeal has been filed and if the
elections are to be held then the same shall be subject to the
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outcome of this appeal. The elections were held in March, 2019
and the elected candidate Raj Kumari Devi has given a
declaration, a copy whereof has also been produced by Shri
Shrivastava indicating therein that she was fully aware of the
pendency of this appeal and that her elections would be subject
to the outcome of this appeal.
13. In the said background any fresh elections
would survive in the event the present appeal fails and not
otherwise. The election held during the intervening period of the
pendency of this appeal, therefore, has either to sustain itself or
fall through on the outcome of the present appeal. We, therefore,
do not find it necessary at this stage to adjourn the matter and
issue fresh notices to the newly elected candidate, the elections
whereof are by operation of law subject to the outcome of this
appeal as indicated in the order dated 26.02.2019.
14. Learned counsel for the contesting respondent
has then urged that the inconsistent declaration of educational
qualification by the appellant namely Intermediate in the
election documents of the 2011 elections and Matriculation in
the documents of 2016 elections clearly establishes the
tendering of false information, and with no proof being tendered
before the Election Tribunal with regard to any of the
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qualifications, has rightly resulted in the setting aside of the
election. He then submits that there are four dates of birth of the
appellant, 26.10.1987 in the election papers of the year 2011, 1 st
of January, 1986 in the election papers of 2016, 12 th of October,
1986 in one of the exhibits and 2 nd of November, 1989 in her
Life Insurance Corporation documents. This inconsistency could
not be denied or even explained by the appellant before the
Election Tribunal or even before the learned Single Judge and,
therefore, the only inference that has been rightly drawn is that
the appellant had tendered false information which clearly
resulted in an improper acceptance of nomination that has
materially affected the results arising out of a corrupt practice
and, therefore, the election has rightly been set aside. No
evidence was led forth on behalf of the appellant to substantiate
her claim and, therefore, the learned Munsif and the learned
Single Judge have not committed any error in arriving at the
conclusions setting aside the election of the appellant.
15. Shri Amit Shrivastava, learned counsel for the
State Election Commission and the learned Standing Counsel
for the State have also been heard. They have pointed out the
various provisions under the 2006 Act read with the rules
framed thereunder and have also handed over a copy of the
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instructions issued on 8th February, 2016 by the State Election
Commission of Bihar which contains all the documents
requiring the furnishing of information by a candidate proposing
to contest elections. Sri Shrivastava has also produced the letters
of the Election Commission dated 28.02.2019 and 10.05.2019 as
well as the declaration and undertaking by Raj Kumari Devi as
noted above.
16. Having heard learned counsel for the parties, it
would be appropriate to commence with the statutory provisions
involved in the present controversy. Section 125-A (1) (v), (2)
and (3) of Bihar Panchayat Raj Act, 2006 are extracted
hereinunder:-
"125-A. (1) Furnishing of certain
information essential for candidates.- A
candidate shall, apart from any information
which he is required to furnish in his nomination
papers delivered under the Act or the Rules made
thereunder, also furnish information on affidavit
on the following aspects in relation to his/her
candidature-
(i) xxx xxx xxx xxx
(ii) xxx xxx xxx xxx
(iii) xxx xxx xxx xxx
(iv) xxx xxx xxx xxx
(v) The educational qualifications of the
candidate.
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In case of non-furnishing
of the affidavit by any candidate, the
nomination of the concerned candidate
shall be liable to rejection by the
returning officer at the time of
scrutiny of nominations for such non-
furnishing of the affidavit.
The information so
furnished by each candidate in the
aforesaid affidavit shall be
disseminated by the respective
returning officer by displaying a copy
of the affidavit on the notice board of
his office and also by making the
copies thereof available freely and
liberally to the representatives of the
print and electronic media and to any
other candidate of person on deposit
of fee prescribed by the Commission.
If any rival candidate
furnishes information to the contrary
by means of a duly sworn affidavit,
then such affidavit of the rival
candidate shall also be disseminated
along with the affidavit of the
candidate concerned in the manner
directed above.
(2) Candidate to furnish
information only under the Act and the
Rules.- Notwithstanding anything contained in
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any judgment, decree or order of any court or
any direction, order or any other instruction
issued by the State Election Commission, no
candidate shall be liable to disclose or furnish
any such information, in respect of his election,
which is not required to be disclosed or furnished
under this Act or the rules made thereunder.
(3) Penalty for filing false
affidavit, etc.- A candidate who himself or
through his proposer, with intent to be elected in
an election,-
(i) fails to furnish information relating to
sub-section (2); or
(ii) gives false information which he knows
or has reason to believe to be false; or
(iii) conceals any information, in his
nomination paper or in his affidavit
which is required to be delivered, as the
case may be, shall, notwithstanding
anything contained in any other law for
the time being in force, be punishable
with imprisonment for a term which
may extend to one year or with fine, or
with both."
17. The Election Petition has to be founded on the
grounds as provided for under Section 139 which is extracted
hereinunder:-
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139. Grounds for declaring election
to be void.- (1) Subject to the provisions of sub-
section (2) if the prescribed authority is of
opinion-
(a) that on the date of his election, a
returned candidate was not qualified
or was disqualified, to be chosen as a
member under this Act; or
(b) that any corrupt practice has been
committed by a returned candidate or
his agent or by any other person with
the consent of a returned candidate or
his agent; or
(c) that any nomination paper has been
improperly rejected; or
(d) that the result of the election, in so far
as it concerns a returned candidate,
has been materially affected-
(i) by the improper acceptance of
any nomination; or
(ii) by any corrupt practice
committed in the interests of the
returned candidate by an agent;
or
(iii) by the improper reception, refusal
or rejection of any vote or
reception of any vote which is
void; or
(iv) by any non-compliance with the
provisions of this Act or of any
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Rules or orders made thereunder;
the prescribed authority shall
declare the election of the
returned candidate to be void;
(2) If in the opinion of the
Prescribed Authority, any agent of a returned
candidate has been guilty of any corrupt practice,
but the prescribed authority is satisfied;
(a) that no such corrupt practice was
committed at the election by the
candidate and every such corrupt
practice was committed contrary to the
orders and without the consent of the
candidate;
(b) that the candidate took all reasonable
measures for preventing the
commission of corrupt practices at the
election; and
(c) that in all other respects the election
was free from any corrupt practice on
the part of the candidate or any of his
agent; then the Prescribed Authority
may decide that the election of the
returned candidate is not void."
18. The definition of corrupt practice is contained
in Section 141 of the 2006 Act.
19. The Bihar Panchayat Election Rules, 2006
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framed under the Act provides the procedure for filing of
Nomination Papers and the presentation thereof.
20. Rule 38 and 39 of the 2006 Rules are extracted
hereinunder:-
"38. Filing of nomination paper
by Candidates.- (1) Any person may file a
nomination paper as a candidate to fill up any
seat provided he is qualified to be elected for that
seat under the provisions of the Act and not
disqualified under Section 136 of the Act.
(2) Each nomination paper under
sub-rule (1) shall be filed in Form-6.
39. Presentation of nomination
paper- (1) On or before the date appointed under
clause (a) of Rule 36, each candidate shall in
person, within the time and the place appointed
in the notice under rule 36, deliver to the
Returning Officer or the Assistant Returning
Officer authorized for this purpose by the
Returning Officer, a nomination paper duly filled
in Form-6 and subscribed by the candidate and a
voter of the concerned constituency as his
proposer:
Provided that a person, who is
subject to any disqualification as a voter under
the Act shall not be eligible to subscribe to any
nomination paper as a proposer.
(a) Any person, who is enrolled in the
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voter list of the concerned territorial
constituency and who not being
disqualified under sub-section (1) of
Section 136 of the Act), may be a
proposer of nomination;
(b) A person can not be a proposer for
more than one candidate;
(c) Any person, who is himself a candidate
for a particular constituency, can not
be a proposer for any other candidate
of the same constituency;
(d) The proposer for a candidate of a
particular constituency can not be a
candidate himself for election from the
same constituency;
(e) A proposer once having subscribed to a
nomination paper shall not be allowed
to withdraw the same;
(f) No nomination paper shall be received
by a Returning officer unless it is
accompanied by the following
papers :-
(i) A declaration in prescribed form
regarding enrollment of the
candidate and proposer as an
elector,
(ii) A declaration in prescribed form
regarding conviction by
competent court or pending
criminal cases in any court.
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(iii) Original Caste Certificate as a
proof of belonging to Scheduled
Castes/ ScheduledTribes/
Backward Classes issued by the
District Magistrate/Sub-
Divisional Magistrate/Block
Development Officer in case of
nomination being filed by a
candidate who wants to avail the
benefits of the reservation of seats
and nomination fee available to
the members of Scheduled
Castes/ Scheduled Tribes/
Backward Classes.
(iv) Challan of nomination fee
deposited in a Government
treasury or Nazir Receipt,
(v) Necessary informations
regarding the candidate as
required by the Commission in
prescribed form.
(g) No nomination paper shall be accepted
unless it is submitted within the appointed
hour on the last date as specified in column
8 of Form 5 and a nomination paper
received by mistake after the fixed hour to
be rejected;
(h) On the presentation of nomination paper, the
Returning officer shall satisfy himself that
the names and electoral roll numbers of the
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candidate and his proposer as entered in the
nomination paper are the same as entered in
the electoral roll:
Provided that the Returning Officer may -
(i) permit to rectify any clerical error in the
nomination paper with regard to the said
names or numbers to bring them into
conformity with the corresponding entries
in the electoral rolls, and
(ii) where necessary, direct that any clerical and
printing error in the said entries to be
overlooked.
(i) On receiving a nomination paper under sub-
rule (1) the Returning Officer shall inform
the concerned candidate or his proposer the
date, hour and place appointed for scrutiny
of nomination in prescribed format and
shall enter in the nomination paper its serial
number and shall sign thereon a certificate
stating the date on which and the hour at
which the nomination paper has been
delivered to him; and every day after the
scheduled hour for receiving nomination
shall publish the information on the notice
board of his office regarding the nomination
containing descriptions both of the
candidate and his proposer.
(2) No candidate shall file more
than two nomination papers for one seat.
(3) The list of nomination papers
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shall be sent to the District Election Officer on
the last date fixed for filing the nomination and a
copy of this shall be published in the office of the
Returning Officer."
21. The scrutiny of Nomination Papers and its final
publication is provided for under Rule 41.
22. The Nomination Paper has to be filled up in
Form 6 which is extracted hereinunder:-
Panchayat Election
FORM-6
[See Rule 38(2), 39(1)]
NOMINATION PAPER
District......................................Block.......................................
Election for-
* Member of Gram Panchayat............. .from territorial constituency no...........
* Panch of Gram Katchahry ................ from territorial constituency no. ........
* Mukhiya of Gram Panchayat............. from constituency no. ...................
*Sarpanch of Gram Katchahry ............. from constituency no.....................
*Member of Panchayat Samiti ........ ......from territorial constituency no.........
* Member of Zila Parishad .................. from territorial constituency no. .......
I nominate the following as a candidate of the above post in the above
constituency.
Name of Candidate-
name of Father/Mother/Husband-
Postal Address- Block - District-
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who is listed on Sl. No.................. of voter list of ........................
territorial constituency of ............................... Gram Panchayat. My name
is entered on Sl. No. ........................ of the voter list of territorial constituency
no. .............. of Gram Panchayat.........................................
Block.........................District.........................
Place:
Date:
Signature/Thumb impression of the Proposer
_______________________________________________________________
*Strike off which ever is not applicable.
I, above nominated candidate assent to this nomination and hereby declare
that-
(a) I have completed the age of ...... years.
(b) My name and name of my Father/Mother/Husband are written
correctly in Hindi in Devnagari Script.
(c) To my best of knowledge and belief I am qualified for the above
election and otherwise not disqualified.
(d) I belong to Scheduled Castes/Scheduled Tribes/Backward Classes.
The Caste certificate issued by a competent officer is annexed with it.
Place:
Date:
Signature/Thumb impression of Candidate
_______________________________________________________________
(To be filled by Returning Officer)
Sl. No. of nomination paper...........................
The candidate himself handed over this nomination paper to me in my
office on date ............... at.................... (time)
Date..................... Returning Officer
Decision of the Returning Officer who accepts or rejects the nomination
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paper.
I have verified this nomination paper in accordance with Rule 41 of the
Bihar Panchayat Election Rules, 2006 and decide as following:-
Place.............
Date................. Returning Officer
------------------------------------------------------------------------------------------
Receipt for nomination paper and notice of scrutiny
(To be given to the candidate presenting nomination paper)
Sl. No. of the nomination paper .......................
Mr./Miss./Mrs....................................................................who is
a candidate for .........................................has presented his nomination
paper to me on date ..............at.................(time). The scrutiny of all
nomination papers will be done on ................................(date) at
...................(hour)....................at the place.............................
Place.................
Date.................. Returning Officer
_______________________________________________________________
*Write the number, name and post of the concerned constituency as
mentioned by the proposer on upper portion of this form.
__________
23. A perusal of the said pro forma would indicate
that the only declaration to be made in the Nomination Paper is
about the completion of the minimum age of the candidate
which is to ensure that the candidate is above 21 years of age. In
the instant case, the appellant has disclosed her age to be about
30 years.
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24. At this very stage, we may put on record that
no evidence was led by the Election Petitioner to establish that
the appellant was less than 21 years of age. The only contention
raised was about the reflection of incorrect dates of birth and on
that basis it is alleged that the declaration was false.
25. The election-petitioner filed a document that
was labeled as Exhibit-3 which is an information obtained
under the R.T.I. regarding date of birth from a school Madhya
Vidyalaya, Parsauni, District- Supaul. It is alleged that the date
of birth mentioned in the said document is 12 th of October
1986. The contents of this certificate was not proved before the
Tribunal by any oral evidence except that it was used to
demonstrate a contradiction in the dates of birth. This does not
advance the cause of the election-petitioner in any way,
inasmuch as, the year of birth i.e. 1986 remains the same. We
are surprised that the Tribunal has culled out an admission on
the part of the appellant in her written statement about false
declaration. The Tribunal has recorded that the appellant has
admitted the fact of her age being depicted on the basis of
estimation. It is well settled that an admission has to be a clear
admission and not a mere ambiguous statement. In the instant
case, the written statement nowhere admits of a false
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declaration. It is the Tribunal which has inferred that since the
appellant has admitted the date of birth having been given on
estimation would amount to a false declaration. There is no
evidence which may indicate that the appellant was less than
21 years as on the date of her filing of her nomination. Had
there been any such evidence led by the election-petitioner and
not denied by the appellant, it is only then it could have been
inferred that the appellant's nomination papers were
improperly accepted. This being not the case of the election-
petitioner, the finding recorded by the Election Tribunal on this
count is erroneous as it has treated its own inference as an
admission of the appellant. The said logic, therefore, is
unacceptable and the finding of the Tribunal is, therefore,
vitiated. We may add that the burden to prove the fact that the
appellant was less than 21 years of age lay on the election-
petitioner. This burden could not be discharged by any
substantial evidence and, therefore, the ingredients of Section
101 of the Indian Evidence Act were not satisfied. The date of
birth becomes material only if it reflects that the candidate
could be less than 21 years of age as on the date of nomination
all the four dates of birth that were pleaded by the election-
petitioner included two dates of 1986, one date of 1987 and the
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3rd date reflected in the evidence was of 1989. None of the
aforesaid in any way could prove that the appellant was less
than 21 years of age. Thus, the results of the election were not
materially affected nor such contradictory information as
alleged was proved to have resulted in any wrong opinion
being formed by the voters. The voters do have the right to
know but that is about the minimum age required to contest the
elections and not the exact date of birth of the candidate. A
voter can form a wrong opinion if the date of birth reflected by
the candidate reduces his age to be less than 21 years and then
it will definitely be an improper acceptance of a nomination
form that would materially affect the result of the election. This
is not the case here and as noted above, all the dates of birth
clearly establish that in the year 2016 the appellant was more
than 21 years of age. She was, therefore, eligible and not
disqualified.
26. To say that she adopted some corrupt practice
to advance her cause of elections by spreading false
information about her age was, therefore, not established by the
election-petitioner. We are emphasizing this, inasmuch as, by
applying the law the Tribunal as well as the learned Single
Judge have both not traversed the facts in the right perspective
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in the present case. What appears to have been working in the
mind of the Tribunal as well as the learned Single Judge is that
any contradictory depiction of date would automatically result
in it being a false information that would automatically
crystallize in the rejection of the Nomination Paper. We do not
find this logic to be correct, inasmuch as, a Nomination Paper
can be rejected only if the depiction of an incorrect date of
birth results in establishing that the candidate was less than 21
years of age which is the material fact relevant for the purpose
of arriving at the conclusion on the issue of the results of the
election having been affected materially. The factum of the
appellant being less than 21 years could not be proved in terms
of Section 3 of the Indian Evidence Act, whereas the assertion
of the appellant about her age remained uncontroverted either
in the pleadings of the Election Petition or in the oral evidence
led by the election-petitioner.
27. The judgments, therefore, relied on by the
learned counsel for the respondent and by the learned Single
Judge would not apply on the peculiar facts of the present case.
The judgment cited by Shri Shrivastava in the case of Joshna
Gouda Vs. Brundaban Gouda and another, reported in
(2012) 5 SCC 634 is closer to the contention raised by the
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appellant on this issue.
28. The Supreme Court in the case of Mangani
Lal Mandal Vs. Bishnu Deo Bhandari, reported in A.I.R.
2012 SC 1094 has after recording the earlier precedents in this
regard held that it is for the election-petitioner to establish that
the results of the election has been materially affected and then
only can election be annulled. As held in the said case, the
Tribunal was under an obligation to have framed an issue and
answer it accordingly. We do not find any such issue out of the
10 issues framed by the Tribunal relating to the results having
been materially affected. This also vitiates the order of the
Tribunal and which aspect has also been not dealt with by the
learned Single Judge.
29. Having said so, we find that the different dates
of birth as disclosed does not materially affect the result of the
election, inasmuch as, the declaration of her age as being above
21 years has not been controverted or dislodged by any evidence
led by the election-petitioner. The election petitioner did not
lead any evidence to demonstrate that the results had been
materially affected. Thus, by way of an inference on the strength
of the documents of 2011 elections, there was no evidence to
dislodge the educational qualification of Matriculate and
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consequently the same cannot be held to be a false declaration.
The declaration of age as 30 years also does not materially
affect the elections, inasmuch as, the declaration only depicted
that the appellant was eligible and of the minimum age as
prescribed under the Act and Rules that entitled her to contest
the elections. As noted above, no evidence was led to dislodge
the same by the election-petitioner and, therefore, no adverse
inference can be drawn on that count.
30. The requirements of the Election Commission
to fill up a form indicating the date of birth is a document that is
required by the Election Commission where the date of birth
was indicated as 01.01.1986. This was, therefore, a necessary
information as provided for under Rule 39. However, again
coming back to the point, the said information does not
materially affect the election so long as the appellant's age
above 21 years is not disputed.
31. On a close scrutiny of Section 125-A, we find
that certain information which is essential for the candidates to
be furnished apart from the information contained in the
Nomination Papers also includes the educational qualifications
of the candidate. As pointed out above, the appellant in the
Nomination Papers has mentioned to be possessed of a
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Matriculate certificate from an Institution in Supaul. This fact
could not be dislodged by the appellant by leading any cogent
evidence even though he had made an allegation about the false
information having been tendered. In our considered opinion,
since there was no evidence to the contrary to contradict the
claim of the appellant having passed the Matriculation
examination from a Sanskrit Madhyamik School and having
obtained Matriculation, the same had to be accepted as the only
declaration made by the appellant. Once this is accepted, then
any declaration of having passed the Intermediate examination
in the previous election of 2011 is absolutely irrelevant,
inasmuch as, the mentioning of that qualification in the papers
of the previous election cannot be a declaration in respect of the
elections of 2016. Thus, it is the declaration in the documents
made pertaining to the 2016 elections which could form the
basis of any challenge. The election-petitioner, as noted above,
has nowhere stated that the appellant is not a Matriculate or has
not passed the Matriculate examination. The election-petitioner
did not take any pains to obtain any information either under the
Right to Information Act or otherwise from the institution
concerned to dispute the fact of the appellant having passed her
Matriculation examination from the Sanskrit Madhyamik
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Vidyalaya, Jagatpur at Supaul. In our opinion, it was the duty of
the election-petitioner to have discharged the burden by leading
positive evidence to dislodge the declaration made by the
appellant and, therefore, the election-petitioner having failed to
do so, the depiction of having passed Intermediate examination
in the documents of 2011 election cannot be a ground to
dislodge the declaration made by the appellant in 2016 that she
is only a Matriculate. We may also refer to the law laid down by
the Apex Court about the standard of proof that is required to be
established in election disputes. The Apex Court way back in the
case of D. Venkata Reddy Vs. R. Sultan and others, reported
in A.I.R. 1976 Supreme Court 1599 has held that all material
particulars with specific details have to be pleaded and then
proved. The burden, therefore, is heavy on the election-
petitioner and the standard of proof that is required to be
established is that which is required for establishing a criminal
charge.
32. This was again explained in the case of Joseph
M. Puthussery Vs. T.S. John and Ors., reported in A.I.R.
2011 Supreme Court 906 Paragraph 8 and Paragraph 12 of the
said judgment lays down the law that an election trial based on
the charge of corrupt practice has to be conducted as a criminal
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trial. Not only this, oral evidence in the shape of hear-say
evidence which is easily procurable cannot be made the basis of
substantiating any charge.
33. The Tribunal has also referred to a document
which was exhibited by the election-petitioner as Exhibit-6. This
letter is stated to be an attested copy of a letter dispatched by the
Secretary, State Election Commission to the District Election
Officer indicating that an allegation of concealing facts has been
proved and, therefore, the appellant would be guilty for an
action to be taken under Section 125.
34. We may mention that while scrutinizing the
Nomination Form, if the Election Officer finds the information
to be such which is a failure on its part to provide as required
therein or gives false information knowingly or has reason to
believe to be false or conceals any information then a penalty is
provided under sub-section (3) of Section 125-A. This is at the
stage of the filing of the nomination by a candidate. In the
instant case, the Nomination Papers were accepted and no action
is alleged to have been taken against the appellant pursuant to
any such declaration. The aforesaid letter Exhibit-6 and its
contents were not proved by the author of the said letter during
trial and, therefore, its admissibility had to be examined which
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was not done by the Tribunal. Any reliance, therefore, placed by
the Tribunal on the said document was subject to any evidence
during the trial of the Election Petition itself. There is no
material indicated in the judgment of the Tribunal that the said
document was proved and that it led to a proof beyond
reasonable doubt to establish any concealment of material fact
so as to affect the results of the election. The Tribunal, therefore,
fell in error on that count as well.
35. There is another finding by the Tribunal which
requires notice namely the purpose of disclosure of educational
qualification to enable the electorate to make a choice between a
candidate with higher qualification and another with a lesser
qualification. The Tribunal has concluded that it is possible that
the electorate in their wisdom may prefer a candidate with a
lesser educational qualification. We are unable to gather any
logic to support this speculative assumption by the Tribunal.
We fail to see as to how the electorate knew in the year 2016
that the appellant had a higher qualification of Intermediate
when she had declared that she was only a Matriculate. The
election-petitioner has on the strength of this declaration made
in the year 2011 by the candidate taken it as a proof of false
information. We are surprised at the inference drawn by the
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Tribunal, inasmuch as, there was no pleading nor any proof
adduced to establish that the electorate had been informed by
the appellant or any other person about her dual qualifications.
The availability of a documentary evidence said to have been in
the Nomination Paper of 2011 in our opinion has been stretched
too far by the trial court that too even erroneously to prove a
fact of dissemination of false information. The existence of a
false information is one thing and its dissemination to gain
advantage on the strength of such false information is another.
The election-petitioner could not establish that by depicting her
qualification as Matriculate the appellant had been able to woo
the voters and obtain a sympathetic opinion in her favour. The
finding of the Tribunal, therefore, does not stand to reason and,
therefore, the impugned judgment of the Tribunal is clearly
vitiated. The learned Single Judge also did not enter into this
aspect and simply concluded that this depiction of inconsistent
dates of birth is a defect of substantial character that would have
necessarily resulted in the rejection of the nomination of the
appellant. For this, the learned Single Judge has relied on the
judgment in the case of Harikrishna Lal Vs. Babu Lal
Marandi, reported in (2003) 8 SCC 613. We have gone through
the entire judgment in the case of Harikrishna Lal (supra) and
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we do not find any such ratio culled out therein relating to the
educational qualification of a candidate. The facts of the case do
not indicate even remotely that it was a case arising out of
educational qualification but was rather a case with regard to the
inconsequential description of the name of the elected candidate
where a challenge raised to the election had failed. The learned
Single Judge, therefore, appears to have incorrectly applied the
ratio of the said decision on the facts of the present case and the
impugned judgment dated 28.01.2019 is, therefore, vitiated for
the same reasons as the impugned order of the Tribunal dated
11.10.2018that are both liable to be set aside.
36. We may also clarify that corrupt practice is a commission or an omission as understood under Section 141 of the 2006 Act, whereas the incorrect acceptance of a Nomination Form is governed by the other provisions, particularly Rules 38 and 39 of the 2006 Rules. A distinction, therefore, has to be made between a corrupt practice as indicated above and that of an alleged false declaration as understood under the 2006 Rule or even under Section 125-A.
37. On the issue of change of name, the finding has been returned in favour of the appellant and, therefore, we need not go into the same as the said finding has not been challenged Patna High Court L.P.A No.301 of 2019 dt.02-07-2019 34/35 by the other side.
38. Thus, on all counts, in our opinion, there was no cogent evidence so as to dislodge an elected Mukhiya namely the appellant herein and, therefore, the learned Munsif committed an error in recording findings contrary to the requirement thereby setting aside the election of the appellant.
39. Similarly, the learned Single Judge also did not appreciate the contention raised and does not appear to have examined the peculiar facts of the present case in the light of the statutory provisions quoted hereinabove where an incorrect mentioning of date did not necessarily amount to a false declaration resulting in an improper acceptance of the Nomination Paper so as to materially affect the elections. The same cannot be said to be a corrupt practice which in any way would have possibly influenced the voters to take a decision in favour of the appellant and vote for her. Consequently, none of the two grounds on the basis whereof the election has been set aside were established.
40. The appeal for all the aforesaid reasons is allowed. The impugned judgment dated 28th January, 2019 in C.W.J.C. No. 21697 of 2018 and the order of the Tribunal dated 11.10.2018 in Election Petition No. 10/2016 are set aside.
Patna High Court L.P.A No.301 of 2019 dt.02-07-2019 35/35 Election of the appellant to the office of Mukhiya for the Gram Panchayat in question is upheld. The consequential election as informed by the learned counsel of Smt. Raj Kumari Devi being directly governed by the order dated 26.02.2019 that had been passed prior to the elections also stands annulled being consequential in nature. The respondent authorities including District Election Officer, Panchayat Saharsa and the District Panchayatraj Officer, Saharsa are directed to restore the appellant to the office of Mukhiya of Gram Panchayat, Rakiya.
(Amreshwar Pratap Sahi, CJ) (Anjana Mishra, J) P.K.P./-
AFR/NAFR AFR CAV DATE Uploading Date 02.07.2019 Transmission Date