Patna High Court - Orders
Arti Kumari vs The Bihar State Election Commission ... on 24 February, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1452 of 2023
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Arti Kumari Wife of Bablu Kumar, Resident of Village and P.O. Ghoswari,
P.S. Ghoswari, District- Patna.
... ... Petitioner/s
Versus
1. The Bihar State Election Commission (Panchayat), Sone Bhawan, Birchand
Patel Path, Patna through the State Election Commissioner.
2. The State Election Commissioner, The Bihar State Election Commission
(Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
3. The Officer on Special Duty, The Bihar State Election Commission
(Panchayat), Sone Bhawan, Birchand Patel Path, Patna
4. Seema Kumari Wife of Dharamraj Prasad, Resident of Village and P.O.
Ghoswari P.S. Ghoswari, District - Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Awnish Kumar, Advocate
For the Respondent/s : Mr. Sanjeev Nikesh, Advocate
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 24-02-2023Heard learned counsel for the petitioner and Mr. Sanjeev Nikesh, learned counsel for the State Election Commission.
In the present case, the dispute relates to disqualification under Section 136(1)(b) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the 'Act'). The State Election Commission under Section 136(2) of the Act has jurisdiction to decide the issue of disqualification.
The petitioner is aggrieved by an order dated 03.11.2022 passed by the State Election Commissioner, Patna High Court CWJC No.1452 of 2023(2) dt.24-02-2023 2/6 Bihar (respondent no. 2) in Case No. 04 of 2022 (Seema Kumari Vs. Arti Kumari) communicated to the petitioner by respondent no. 3 vide his Memo No. 04 dated 03.11.2022 whereby the respondent no. 2 declared the petitioner disqualified to hold the post of Mukhiya of Gram Panchayat Raj, Ghoshwari on the ground that she had contested the election even before attaining the age of 21 years in breach of Section 136(1)(b) of the Act.
Learned counsel for the petitioner submits that the order passed by the respondent no. 2 does not take into consideration the judgment rendered by the Hon'ble Supreme Court in case of Brij Mohan Singh vs Priya Brat Narain Sinha & Ors. reported in AIR 1965 SC 282. It is further submitted that the respondent no. 2, while deciding the case, has taken into consideration the judgment of the Hon'ble Supreme Court in the matter of Juvenile Justice Act for determination of age, which in the present case is not applicable nor the respondent no. 2 considered the case of Sharda Devi vs. The State of Bihar & Ors. reported in 2019(3) PLJR 534.
Learned counsel appearing for the State Election Patna High Court CWJC No.1452 of 2023(2) dt.24-02-2023 3/6 Commission submits that there is a famous English quote, a person who speaks the truth does not have to remember what he said and this quote aptly fits in the present case. It is further submitted that the date of birth of the petitioner recorded in the matriculation certificate is 14.06.2003. In the school leaving certificate issued by Sri Durga Balika High School, Lakhisarai the date of birth is also recorded as 14.06.2003 and the admission register of Rajeshwar Lal Mahavidyalaya where petitioner took admission in I.A. (Intermediate) in the said register also the date of birth is recorded as 14.06.2003.
Learned counsel next submits that since matriculation certificate itself recorded the date of birth of the petitioner as 14.06.2003, as such, it was an unimpeachable document, more so when the school leaving certificate also recorded the same date of birth. It is next submitted that it absolutely does not stand to reason that as to how the petitioner is contesting that her date of birth is not 14.06.2003 when she herself is not sure about her date of birth as would be evident from the impugned order itself. It is also submitted that the petitioner in her nomination Patna High Court CWJC No.1452 of 2023(2) dt.24-02-2023 4/6 form recorded her date of birth as 22.08.1999 which was rectified after cutting 22.08.1999 as 02.11.2000, further her Pan Card, Aadhaar Card and Horoscope records the date of birth as 26.08.1999. It is, thus, submitted that petitioner herself is mentioning three date of birth i.e. 22.08.1999, 26.08.1999 and 02.11.2000 apart from one mentioned as 14.06.2003 in her matriculation certificate.
Learned counsel next submits that the matriculation certificate when issued it came to the notice of the petitioner that her date of birth is recorded as 14.06.2003, but then no steps were taken by her to get the date of birth rectified, now a plea is being taken that her matriculation certificate does not record the correct date of birth, when the same was objected by the private respondent no. 4.
Learned counsel next relies on Sections 35 and 74 of the Evidence Act to buttress his argument that what kind of documents are admissible in evidence. He also relied on a judgment of the Hon'ble Supreme Court in case of Shyam Lal alias Kuldeep v. Sanjeev Kumar and others reported in AIR 2009 SC 3115 to submit that school leaving Patna High Court CWJC No.1452 of 2023(2) dt.24-02-2023 5/6 certificate is within the ambit of public document under Section 74 of the Evidence Act. Thereafter, reliance has been placed on another judgment of the Hon'ble Supreme Court reported in case of Umesh Chandra Vs. State of Rajasthan reported in AIR 1982 1057 wherein it has been held that records maintained by a public school according to rules should be presumed to be correct under Section 35 of the Evidence Act. It is next submitted that Section 35 of the Evidence Act is with regard to relevancy of entry in different record or an electronic record made in performance of duty by public authority. It is thus submitted that though Section 35 of the Evidence Act speaks of relevancy of entries in public or official book made by public servant but then the Evidence Act does not define a public servant, but for interpretation, reference may be made to Sections 74 and 78 of the Evidence Act read with Section 21 of the Indian Penal Code. Learned counsel next relies on a Division Bench judgment of this Court in the case of Mamta Kumari Vs. State of Bihar & Ors 2022(5) BLJ 559 to submit that the facts of the present case is squarely covered by the judgment rendered by the Hon'ble Patna High Court CWJC No.1452 of 2023(2) dt.24-02-2023 6/6 Division Bench in Mamta Kumari's case (supra).
Learned counsel after making his elaborate submission submits that a counter affidavit would be filed within a period of six weeks from today.
Learned counsel for the State Election Commission also submitted that the Court while exercising writ jurisdiction is not sitting as an Appellate Authority to re-appreciate the evidence but is only concerned with the decision making process.
Put up this case on 07.04.2022.
Learned counsel Mr. Ansul appears on behalf of the private respondent no. 4, as such, notices are not required to be sent.
(Satyavrat Verma, J) Kundan/-
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