Patna High Court - Orders
Kamta Kumari vs The State Of Bihar & Ors on 6 May, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1632 of 2013
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Kamta Kumari W/O - Shri Sanjeet Kumar Resident Of Village + P.O. -
Katesar, Tola - Lohargawan, P.S. + Block - Sakra, District - Muzaffarpur
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The State Election Commission, Sone Bhawan, Veer Chand Patel Path,
Patna Represented Through Its Secretary , The State Election Commission,
Sone Bhawan, Veer Chand Patel Path, Patna
3. The State Election Commissioner, The State Election Commission, Sone
Bhawan, Veer Chand Patel Path, Patna
4. The District Election Officer-Cum-District Magistrate, Muzaffarpur
5. The Returning Officer Of Panchayat Raj - Katesar (The Panchayat
Election 2011), Sakra, Muzaffarpur
6. The Sub-Divisional Officer, East Muzaffarpur
7. The Block Development Officer, Sakra, Muzaffarpur
8. Smt. Sumitra Devi W/O - Shri Kishore Rai Resident Of Village -
Mohammadpur Dharam @ Maruahan, P.O. - Katesar, P.S. - Sakra, District -
Muzaffarpur
.... .... Respondent/s
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
6 06-05-2014In this writ application filed under Article 226 of the Constitution of India the petitioner challenges the legality/correctness of the order dated 7.1.2013 passed by the respondent State Election Commissioner ( for short „SEC‟) in case No. 48 of 2011 instituted by respondent no.8 for unseating the petitioner from the elected post of Mukhiya of Panchayat Raj- Katesar within Sakra Block of District Muzaffarpur on the ground that she was below 21 years of age when she contested the election and was, therefore, disqualified to hold the post under Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 2/20 Section 136(1)(b) of the Bihar Panchayat Raj Act, 2006 ( for short „the Act‟) and Rule 117 of the Bihar Panchayat Election Rules, 2006 (for short „the Rules‟) framed thereunder.
Factual matrix of the case may briefly be noticed. Electoral roll for holding the election in the year 2011 was prepared by the respondent- SEC. The petitioner figured at Sl. No. 419 of the said electoral roll (voter list;Annexure-2) depicting her 21 years of age. The voter list of the assembly election of 2012 was similarly published in which the petitioner figured at Sl. No. 419 showing her 22 years of age. Consequent upon declaration of election, the petitioner filed her nomination paper to contest the post of Mukhiya. She declared herself 21 years of age and filed an affidavit along with her Bio-data in which against Column -6 (educational qualification) she disclosed herself as literate. At the time of scrutiny an objection was filed for rejection of her nomination paper on the ground that she was not 21 years of age. The Returning Officer rejected the said objection on the ground that in the electoral roll (voter list) prepared and published in January, 2011 she was shown 21 years of age. The petitioner having been duly nominated contested the election and was declared elected defeating the respondent no.8 in the fray. On 21.6.2011 the respondent no.8 filed an election Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 3/20 dispute before the Election Tribunal giving rise to Election Petition No. 5 of 2011. On the same day she also filed an application before the respondent- SEC invoking its jurisdiction conferred under Section 136(2) of the Act giving rise to the present Misc. Case No. 48 of 2011. The respondent- SEC by an interim order passed therein restrained the petitioner from functioning on the elected post of Mukhiya. The same was challenged by her before this Court in CWJC No. 2221 of 2012. This Court after hearing the petitioner and respondent no.8 herein who was also impleaded respondent disposed of the writ petition. The interim order dated 27.12.2011 passed by the respondent SEC in the said case was set aside. Paragraph no.4 of the said order (Annexure-8) reads as under:-
" Petitioner being democratically elected Mukhiya, the State Election Commission, in my opinion, should have passed final order instead of passing interim order restraining the functioning of the elected Mukhiya. In appreciation of the aforesaid submission, I set aside the order dated 27.12.2011passed by the State Election Commission in Case No. 48 of 2011, Annexure-6 and remit back the matter to the State Election Commission to hear the parties and pass appropriate final order in the matter. It shall be open for the petitioner to raise the grounds before the State Election Commission that the defeated candidate, Sumitra Devi, Respondent no.7 should either pursue the matter before the State Election Commission or challenge the election of the petitioner by prosecuting Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 4/20 election petition before the Tribunal, but she cannot be allowed to contest the election of the petitioner by invoking the remedy before both the forums simultaneously."
The petitioner is said to have filed an application in Election Petition no. 5 of 2011 seeking withdrawal of the Election Petition which, however, remained undisposed of. The respondent SEC in order to resolve the dispute called for diverse reports from the Sub Divisional Officer and District Magistrate(s) of Muzaffarpur and Samastipur. The report(s) disclosed that the date of birth of the petitioner recorded in the Matriculation certificate was 5.1.1992 but actually she was born in 1988 in the light of the birth certificate issued by the concerned Doctor inasmuch as the records thereto were also found maintained by the hospital of the Railways where the father of the petitioner is/was serving as an employee. The respondent- SEC ignoring the three reports considered the age of the petitioner as recorded in the Matriculation Certificate and found that she was not eligible to contest the election being less than 21 years of age at the time of filing her nomination. Aggrieved by the said finding and the order the present writ application has been filed.
Learned counsel for the petitioner submits that the respondent could not have allowed to proceed with two parallel Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 5/20 proceedings. The respondent SEC should have dismissed the application filed by the respondent no.8 on this count alone. In this regard he has drawn attention of the Court to the relevant observation made in CWJC No. 2221 of 2012 (Annexure-8). He further urged that the petitioner having disputed her date of birth recorded in the Matriculation certificate and there being no other convincing material on record that the same was recorded on the statements made by the father or mother or any other responsible person having personal knowledge ought not have been relied by the respondent- SEC in a summary proceeding to brush aside other materials available on record and to conclude that the petitioner was less than 21 years of age when she contested the election. He relied in this regard on the following judgments of the Hon‟ble Apex Court:-
(i) 1988 (Suppl.) SCC 604( Birad Mal Singhvi vs. Anand Purohit) paragraph nos. 14 and 15
(ii) AIR 2004 SC 230= (2003) 8 SCC 673 [Sushil Kumar vs. Rakesh Kumar] paragraph no. 51.
(iii) 2010(3) PLJR 993 (Rukmini Devi vs. The State Election Commission & Ors.) paragraph nos.
7, 8 and 9.
Learned counsel further contended that respondent - Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 6/20 SEC has completely failed to appreciate that a dispute of such nature should not have been delved into and decided in a summary proceeding like the one under Section 136(2) of the Act, particularly when the petitioner was disputing her age as recorded in the Matriculation certificate . He relied in this regard on the following judgments of this Court :-
(i) 2007(1) PLJR 616 [Kahkashan Praveen v.
The STate of Bihar & Ors.]
(ii) 2007(4) PLJR 442 [Kiran Kumari @ Kiran
Devi v. The state of Bihar & Ors.]
Mr. Y.V. Giri would further argue that the Courts or the Tribunal in deciding such disputes should be loath and act with full circumspection keeping in view the well recognized principles that Will of the people reflected through ballot paper(s) has to be respected. To support the said proposition he referred to AIR 1954 SC 210 [Jagan Nath v. Jaswant Singh & Ors.]. The date of birth recorded in the Matriculation certificate has different connotation. It may be a relevant fact but reliance can be placed thereon only when certain pre conditions thereof are fulfilled /satisfied. This aspect of the matter has completely been lost sight of by the respondent- SEC while deciding the dispute under the impugned order. Referring to the reports submitted by Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 7/20 the Sub Divisional Officer, East Muzaffarpur (Annexure-7) and the two reports submitted by the District Magistrate(s), Muzaffarpur and Samastipur (Annexure E to the counter affidavit of respondent no.8), it has been submitted that the relevant records of EC Railway Hospital where the petitioner was born was found to have been maintained wherein her date of birth was recorded as 27.12.1988. The indoor admission record as well as labour register of the ECR hospital were also found maintained. In the light of those records the Senior Divisional Medical Officer, EC Railways had issued the birth certificate (Annexure-9) certifying therein that on 27.12.1988 Smt. Indu Devi wife of Sri Dilip Kumar Rai, Loco Pilot, (Goods), Samastipur (father of the petitioner) had delivered a female live child in the said Hospital on 27.12.1988 at 02:225 hrs. The respondent- SEC declined to rely on those reports/certificates on flimsy grounds not sustainable in law.
Mr. Jha, learned counsel for the respondent no.8 (the defeated candidate and the complainant) conversely submitted that no fault can be found with the impugned order which is a well considered one. If there is no dispute that the petitioner prosecuted studies and passed matriculation examination then the date of birth occurring in the mark sheet as also the School Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 8/20 Leaving Certificate (Annexures C to the counter affidavit) would conclusively prove the age of the petitioner. Even the father of the petitioner in the year 2008 submitted a declaration before the competent/ appropriate authority of the East Central Railway that the petitioner was her eldest daughter and aged about 16 years. This should be treated as an admission of the date of birth or age of the petitioner made by her father. Mr. Jha, while countering the first submission of the counsel for the petitioner, submitted that in the light of the order of this Court (Annexure-8) the respondent filed an application on 03.08.2012 seeking leave of the Court where the Election Petition No. 5 of 2011 is pending to withdraw the said application ( see para 12 of her counter affidavit).The learned Election Tribunal has, however, not passed any order and the matter is being protracted for consideration thereof. No fault therefore can be found in the impugned order on this count.
Mr. Amit Shrivastava, learned counsel for the respondent -SEC, supporting the impugned order, submitted that this Court has invariably accepted the age of a candidate or a person so recorded in the Matriculation certificate/Mark Sheet for deciding the dispute regarding the age of the candidate/person. The respondent -SEC has preferred to consider the age of the Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 9/20 petitioner as reflected from the Matriculation Certificate/Mark Sheet as the factum of having appeared at the Matriculation examination by the petitioner has not been disputed. He relies in this regard on order dated 06.03.2013 passed by a Division Bench of this Court in LPA No. 267 of 2013 (Rani Devi vs. the State Election Commission & Ors.) and order dated 27.2.2013 passed in LPA No. 200 of 2013 (Smt. Babita Kumari vs. the State of Bihar & Ors.).
Mr. Giri, in reply, submitted that those judgments/orders were passed in entirely different factual matrix.
I have heard the rival contention of the parties and perused the material on record. The respondent- SEC in rejecting the contention of the petitioner that two parallel proceedings at the instance of the respondent no.8 should not be allowed noted/held that an application was already filed by respondent no.8 seeking withdrawal of election petition no. 5 of 2011 on 3.8.2012 and the petitioner had elected to pursue her proceedings before the respondent -SEC in order to resolve the dispute of the age of the petitioner. A report was first sought from the Sub Divisional Officer (East) Muzaffarpur. The report (Annexure-7) opined that the Returning Officer while considering the objection filed by the respondent no.8 to the nomination of the petitioner Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 10/20 had rejected the said objection by a reasoned order on the ground that the petitioner was recorded as a voter in the electoral roll (voter list) prepared/published in March, 2011 showing her 21 years of age and as per the guidelines /directions issued by the respondent- SEC the Returning Officer was required to accept the age of the elector /candidate as shown in the voter list/electoral roll without making any further enquiry in this regard. The respondent- SEC, however, found some culpability in the said report and did not prefer to rely thereon for the reasons stated therein. Reports from the two District Magistrate namely, District Magistrate, Muzaffarpur in whose jurisdiction the matrimonial home of the petitioner falls and the District Magistrate, Samastipur wherein the parental house of the petitioner is located were called for. As noticed, both the reports indicated that on the one hand the Admission Register of the school where the petitioner prosecuted her studies disclosed her date of birth as 05.01.1992 with similar details recorded in the tabulation register whereas on further verification it was found that mother of the petitioner had delivered the female child in EC Railway Hospital, Samastipur wherein the date of delivery is recorded as 27.12.1988 and the relevant record(s) such as Admission Register and Labour Register etc. were duly maintained in the said hospital. The Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 11/20 report of the District Magistrate , Samastipur was also to the same effect. There was, thus, obvious disparity in the date of birth of the petitioner. School Register and Matriculation Mark Sheet indicated that she was born on 05.01.1992 whereas the certificate issued by the Doctor and relevant records maintained in EC Railway Hospital disclosed that the eldest daughter of the father of the petitioner was born on 27.12.1988. The respondent- SEC, having considered those reports rejected them in part for the reasons stated therein and accepted the date of birth of the petitioner as recorded in the Matriculation certificate.
The principles which govern the Court or the Tribunal in consideration of dispute of such kind has engaged the attention of the Hon‟ble Apex Court in several cases arising out of an election dispute. This Court would, therefore, first examine the views expressed by the Hon‟ble Apex Court to be applied by the Court or the Tribunal in consideration of such dispute. In Birad Mal Singhvi (supra) the Hon‟ble Apex Court considering the evidentiary value of such entries made in the school register or in the educational certificate observed as under
in paragraph no.14 thereof :-
"....As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 12/20 the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar‟s register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars‟ register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar‟s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar‟s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value....."
The Hon‟ble Apex Court, thus, held that date of birth as mentioned in the aforesaid document had no probative value unless something more are proved/demonstrated by adducing evidence in case the same is disputed.
Again the Apex Court in Sushil Kumar (supra) while considering similar dispute arising out of an Election Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 13/20 Petition held that age of the candidate has to be proved on the basis of materials on record as well as the attending facts. Considering the impact of the date of birth recorded in the School Admission Register and Transfer Certificate the Hon‟ble Apex Court reiterating its view expressed in Birad Mal Singhvi (supra) held that entry of date of birth made in the School Admission Register should be considered from the perspective that often persons give false age of the child at the time of admission so that he may have an advantage later in life. If there is no reliable material available on record to show that date of birth was recorded in the School Register on the basis of statement of any responsible person then such entry of date of birth should not be accepted as the conclusive prove of age. The Admission Register and the certificate etc. in such circumstances would fail to satisfy the requirement of Section 35 of the Evidence Act and would, therefore, not be safe to rely. The Hon‟ble Apex Court also referred with approval the ratio laid down in Brij Mohan Singh vs. Priya Brat Narain Sinha [AIR 1965 SC 282] to hold that in actual life it often happens that persons give false age of the child at the time of admission to a school so that later in life he/she would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. In order to hold Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 14/20 that such entry in Admission Register or the Matriculation Certificate/Mark Sheet would be a relevant fact admissible under Section 35 of the Evidence Act few conditions must be satisfied. Bearing in mind these parameters, if this Court turns to the relevant observations/findings made in the impugned order passed by the respondent -SEC it is seen that such entry in the Railway Hospital record and the certificate issued by the Doctor of the Railways have been found not reliable on the ground that they did not comply with the requirements of the law requiring such registration of date of birth. On his own showing such requirement was made mandatory by a law effective from 1999. The matter, in hand, pertains to the period prior to 1999. Having held so, the respondent -SEC considered the materials on record reflected from the reports and found that the School Admission Register, School Leaving Certificate and the Mark sheet of Matriculation did conclusively demonstrate that her date of birth was 5.1.1992. The respondent- SEC, however failed to consider that there was no relevant material on record to hold that such date of birth was recorded in those Admission Register and consequently in the certificate on the basis of the information given by the parents of the petitioner or the person having special knowledge about the date of birth of the petitioner. This assumes Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 15/20 greater significance as the petitioner disputed her age as recorded in School Admission Register and the Matriculation Mark Sheet. In absence of any material to demonstrate that the date of birth recorded in the School Admission Register and the Matriculation certificate /mark sheet was so recorded on the basis of information given by the parents or any responsible person having personal knowledge about the date of birth of the petitioner these entries would not carry much evidentiary value. As noticed, the petitioner in her affidavit asserted that she was 21 years of age and in course of the proceeding before the respondent SEC she disputed her age as recorded in the School Admission Register or the Matriculation Certificate. In such view of the matter the respondent SEC was required to allow the parties to lead evidence in order to appreciate the evidentiary value of these entries made in the School Admission Register and/or the Matriculation Certificate. The contention of the respondent no.8 that the declaration made by the father in the year 1988 (Annexure-D to the counter affidavit) should be treated as an admission of the age of the petitioner by the father does not appear to be well founded. Firstly, the said document was not placed before the respondent SEC for consideration and secondly, on bare perusal thereof it appears that such declaration was made with a view to derive Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 16/20 some service benefits flowing to the father of the petitioner. The purpose of declaration was, therefore, to enjoy some service benefits. The said contention of the respondent, therefore, does not find approval of the Court.
In this context, the another submission of learned counsel for the petitioner assumes greater relevance. The submission of the petitioner is that dispute of such nature normally should not have been gone into in a summary proceeding by the respondent- SEC allowing the party concerned to raise an issue in this regard before the Election Tribunal where the parties would be at liberty to lead evidence in support of their respective cases. In Kiran Kumari @ Kiran Devi (supra) this Court having appreciated the fulcrum of dispute raised therein observed as under in paragraph no.10 which reads thus:-
"10. In the case of Kahkashan Parween(supra) where the issue of age of the winning candidate was likewise in question and who had been disqualified by the Commission on grounds of being underage. On consideration of Section 136(2) of the Act, Sections 137 and 138(b) of the Act and Article 243(O) of the Constitution of India , it has been held that when there is a serious dispute with regard to the age requiring consideration of competing claims by evidence the Commission does not have the jurisdiction or authority to decide such contested matters after election process was over."Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 17/20
In the case at hand there is no dispute that the petitioner initially chose both the forums i.e. Election Tribunal as well as the respondent-SEC for resolution of the said dispute. Under orders of the Court she, however, elected to pursue the remedy before the SEC after having filed an application seeking permission of the Court to withdraw Election Petition No. 5 of 2011 which, however, continued on the board of the learned Election Tribunal as shown to this Court with reference to the recent order sheet of the said case. It was, therefore, appropriate on the part of the respondent- SEC to permit the complainant/ respondent no.8 to pursue her remedy before the Election Tribunal. However, since the petitioner elected to pursue the present proceeding before the respondent -SEC the same was considered and the impugned order was passed. This Court, therefore, does not find fault with the said view of the respondent- SEC.
The submission of Mr. Shrivastava that the age registered in the Matriculation Certificate/Mark Sheet shall have precedence when factum of having taken the said examination is not in dispute now requires consideration. He has relied on two orders passed by a Division Bench of this Court in support of the Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 18/20 said contention. In Rani Devi, this Court preferred to rely on the date of birth as recorded in the School Admission Register on finding that such date of birth was recorded on materials furnished and disclosure made by none other than the grand- mother of the appellant and not by any stranger. This is not the case here. There is nothing on record relying whereon this Court would find that such date of birth recorded in the School Admission Register and consequently in the Matriculation certificate/ Mark Sheet was result of a disclosure or furnishment of relevant details by the parents or any one having special knowledge about the date of birth of the petitioner. This Court, would, therefore, hold that reliance placed thereon is inappropriate if not totally misplaced since the said case was decided in a different factual profile. In Smt. Babita Kumari, this Court relied on the Admit Card issued to the petitioner for the Matriculation examination in which the appellant herself declared her age. No such material has been produced for consideration either before the respondent- SEC or before this Court by the respondent. This Court is, therefore, unable to uphold the submission of Mr. Shrivastava that the date of birth as recorded in the School Admission Register or in the Matriculation Mark Sheet should be treated as the date of birth of the petitioner. Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 19/20
Further, the respondent -SEC in the impugned order has noticed that even from the certificate issued by the Railway doctor and the relevant register(s) maintained by the Railway Hospital, it does not appear that the female child born on 27.12.1988 to the parent of the petitioner was actually the petitioner . It is not the case of any party that the petitioner had any elder sister who had died. On the contrary, Annexure-D on which reliance has been placed by the respondent no.8 does indicate that the petitioner is the eldest daughter of her parents.
The discussions, made hereinabove, lead me to hold that the reasons assigned by the respondent- SEC in the impugned order dated 07.01.2013 passed in case No. 48 of 2011 to brush aside the report(s) called for by the respondent Commission indicating that the petitioner being the eldest daughter of her parents was born on 27.12.1988 in the Railway Hospital as reflected from the Register(s) duly maintained in the said Hospital providing basis for issuance of the birth certificate and to rely on the School Admission Register and the Matriculation Certificate for deciding her age are not sustainable in law. This Court is further in agreement with the submission of the counsel for the petitioner that in deciding such dispute the Tribunal ought to have acted with more caution as in case of allowing such application Patna High Court CWJC No.1632 of 2013 (6) dt.06-05-2014 20/20 the Will of the people expressed through ballot papers/votes was bound to be frustrated. I may not be construed to mean that in no case the respondent- SEC can pass such an order even if the facts crystallized persuade the respondent-SEC to pass such order.
In the result, the writ application is allowed. The order dated 07.01.2013 passed in case No. 48 of 2011 as contained in Annexure-11 is quashed and set aside.
No order as to cost(s).
(Kishore Kumar Mandal, J) Shyam/-