Patna High Court
Arvind Kumar Mandal vs The State Of Bihar & Ors on 3 January, 2018
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9788 of 2017
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Arvind Kumar Mandal, S/o Late Ambika Prasad Mandal, Resident of Village-
Baniachak, P.S. Gardhawar, District- Banka.
.... .... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, State of Bihar, Patna.
2. Principal Secretary, General Administration Department, Government of Bihar,
Patna.
3. Joint Secretary, General Administration Department, Government of Bihar,
Patna.
4. State Election Commissioner, State Election Commission, Bihar, Patna.
5. Deputy Secretary, State Election Commission, Bihar, Patna.
6. District Magistrate-cum-Collector, Bhagalpur.
7. District Magistrate cum District Election Officer (Panchayat), Banka.
8. Sub Divisional Officer Cum Election Officer (Panchayat), Banka
9. Block Development Officer cum Block Election Officer, Barahat, Banka.
10. Circle Officer, Jagdishpur, Bhagalpur.
11. Circle Officer, Barahat, Banka.
12. Circle Officer, Rajoun, Banka.
13. Onkar Prasad Rai, S/o Jyotish Prasad Rai, Resident of Village-Makhna, P.S.
Jagdishpur, District Bhagalpur at Present residing at Vijayhat, P.S. Barahat,
District Banka and at Present Elected Mukhiya of Gardhawar Panchayat Within
Barahat Circle, District Banka.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Pankaj Kumar Sinha, Advocate
Mr. Rajiv Kumar Singh, Advocate
For the State : Mr. S. Parasmani, AC to GP-7
For State Election Commission: Mr. Amit Shrivastava, Advocate
Mr. Girish Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 03-01-2018
Patna High Court CWJC No.9788 of 2017 dt.03-01-2018
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Heard learned counsel for the petitioner, learned counsel
for the State and learned counsel for the State Election Commission.
2. In the present writ petition, the petitioner has made the
following prayers :-
"(i) Issuance of an appropriate writ including
a writ in the nature of writ of certiorari quashing
Gyapank 2032 Patna dated 29.04.2017 passed in
Case No. 42 of 2016 (Annexure-11) by the State
Election Commissioner, State Election
Commission, Patna and also quashing the order
dated 03.09.2016 (Annexure-09) passed by the
District Magistrate cum District Returning Officer
(Panchayat) Banka.
(ii) Issuance of an appropriate writ
including a writ in the nature of writ of mandamus
commanding the respondents to remove respondent
no. 13 from the post of Mukhiya, Gardhawar
Panchayat, Barahat Block, Banka immediately
because he was elected on the post of Mukhiya on
the basis of forged caste certificate while be
belongs to the caste of „Kurmi‟.
(iii) Issuance of any other appropriate
writ(s), order(s), direction(s) as may be deemed fit
and proper in the facts and circumstances of the
case."
3. The petitioner and respondent no. 13 were rival
Patna High Court CWJC No.9788 of 2017 dt.03-01-2018
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candidates for the post of post of Mukhiya, Gardhawar Panchayat,
Barahat Block, Banka, which was reserved for Extremely Backward
Caste. The nomination paper of the respondent no. 13 was accepted
after scrutiny by the Election Officer without any objection.
Respondent no. 13 Onkar Prasad Rai got elected in the said election
whereafter the petitioner filed a complaint before the District
Magistrate-cum-Returning Officer, Banka making allegation that
though respondent no. 13 is Kurmi by caste, which belongs to
Backward Caste, he contested the election claiming himself to be
Dhanuk by caste. The petitioner also filed a complaint before the
State Election Commission in this regard in which he had also
alleged that while filing nomination paper, the respondent no. 13 had
suppressed facts about pendency of criminal case against him. The
State Election Commission called for an enquiry report from the
District Magistrate, Banka on the complaint made by the petitioner.
Thereafter, the District Magistrate, Banka issued notice to the parties
and after affording an opportunity of hearing to the petitioner and
respondent no. 13 as also concerned officials of the district, he
submitted his report dated 03.09.2016 to the State Election
Commission stating therein that from the documents produced by the
respondent no. 13, it would be manifest that he is Dhanuk by caste
and there is no merit in the complaint made by the petitioner against
Patna High Court CWJC No.9788 of 2017 dt.03-01-2018
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respondent no. 13 in respect of his caste. Having received the report
dated 03.09.2016 submitted by the District Magistrate, after hearing
the parties, the State Election Commission vide its order dated
27.04.2017held that election of respondent no. 13 as Mukhiya claiming himself to be Dhanuk by caste is legal and valid and there is no ground to cancel his election in exercise of powers conferred under Section 135 and 136(2) of the Bihar Panchayat Raj Act, 2006 (for short „the Act‟).
4. As the petitioner had also alleged in his complaint that the respondent no. 13 had suppressed relevant information regarding pendency of criminal case against him while filing his affidavit at the time of submitting nomination paper, the State Election Commission gave a direction to the District Magistrate, Banka to make inquiry into the matter and if the allegation is found true to institute criminal complaint against the respondent no. 13 under the provisions of Section 125 A (1) and (3) of the Act.
5. Learned counsel for the petitioner submitted that the impugned order passed by the State Election Commission is bad in law. He submitted that the respondent no. 13 is Kurmi by caste, which caste comes under the backward category, but he contested the election for the post of Mukhiya on a seat reserved for extremely backward class wrongly claiming himself to be Dhanuk by caste. He Patna High Court CWJC No.9788 of 2017 dt.03-01-2018 5/7 submitted that in support of his claim, the petitioner had furnished Khatiyan before the District Magistrate, which was wrongly appreciated by him and the District Magistrate gave an erroneous finding in favour of respondent no. 13.
6. On the other hand, learned counsel appearing fro the State and the State Election Commission submitted that in course of inquiry conducted by the District Magistrate, the respondent no. 13 had produced unimpeachable documents in support of his claim that he is Dhanuk by caste. He submitted that in view of the documents brought on record by respondent no. 13 authenticity of which were duly supported by the State officials, who participated in the inquiry, the District Magistrate has rightly come to the conclusion that there was no truth in the allegation made by the petitioner that respondent no. 13 is Kurmi by caste. He also submitted that in case, the petitioner is aggrieved by the election of respondent no. 13 as Mukhiya on the ground that the respondent no. 13 is guilty of misrepresentation of facts at the time of filing his nomination, it was open to the petitioner to seek cancellation of his election by filing an election petition under Section 137 of the Act, but he did not choose to do so. He submitted that in such circumstance, the State Election Commission has rightly directed the District Magistrate to inquire into the allegation of misrepresentation of facts and, if it is found Patna High Court CWJC No.9788 of 2017 dt.03-01-2018 6/7 true, to lodge a criminal complaint in accordance with law.
7. I have heard learned counsel for the parties and perused the record.
8. It would be manifest from the inquiry report submitted by the District Magistrate, Banka that in support of his claim, the respondent no. 13 had produced Khatiyan of 1905, which goes to suggest that his predecessors were Dhanuk by caste. He also produced the inquiry report submitted by the Halka Karmchari and Circle Inspector on the basis of Khatiyan, which corroborates that respondent no. 13 is Dhanuk by caste. In matriculation certificate produced by respondent no. 13 also, his caste is mentioned as Dhanuk. In other certificates issued in the name of predecessors of respondent no. 13 and his family members also, their caste name is mentioned as Dhanuk.
9. In view of such unimpeachable documents, if the District Magistrate opined that respondent no. 13 is Dhanuk by caste, no fault can be found with the inquiry report on the basis of which, the State Election Commission came to a finding that respondent no. 13 is Dhanuk by caste and rejected the complaint of the petitioner in this regard.
10. I also find substance in the submissions made by the learned counsel for the State Election Commission that if the Patna High Court CWJC No.9788 of 2017 dt.03-01-2018 7/7 petitioner was aggrieved on account of misrepresentation of facts at the time of filing nomination paper by respondent no. 13, he ought to have raised objection before the Election Officer at the time of scrutiny of the nomination paper or filed an election petition before the Munsif under Section 137 of the Act for cancellation of election of respondent no. 13. As no such step was taken by the petitioner, no illegality can be found with the order passed by the State Election Commission whereby he has directed the District Magistrate to verify the allegation made by petitioner in respect of information regarding pendency of criminal case against respondent no. 13 and, if found true, lodge complaint against him under sub-sections (1) and (3) of Section 125-A of the Act.
11. Accordingly, the writ petition, being devoid of any merit, is dismissed.
12. There shall be no order as to costs.
(Ashwani Kumar Singh, J.) Kanchan/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 05.01.2018 Transmission NA Date