Patna High Court - Orders
Rani Devi vs The State Election Commission & Ors on 6 March, 2013
Author: Navin Sinha
Bench: Navin Sinha, Shivaji Pandey
Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.267 of 2013
In
Civil Writ Jurisdiction Case No. 21556 of 2012
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Rani Devi, wife of Sri Rambabu Paswan, resident of village- Bhalpatti, Post
Office- Bhalpatti, Police Station- Bhalpatti, District- Darbhanga.
.... .... Appellant/s
Versus
1. The State Election Commission through its Secretary, having office at
Sone Bhawan, 3rd Floor, near R-Block Round about, Bihar, patna.
2. The State Election Commissioner, having office at Sone Bhawan, 3 rd
Floor, near R-Block Round about, Bihar, patna.
3. The District Magistrate, Darbhanga cum-Election Officer having office
at Darbhanga.
4. Gita Devi, wife of Sri Bindeshwar Ram, resident of village- Bhalpatti,
Post Office- Bhalpatti, Police Station-Bhalpatti, District- Darbhanga.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Chittaranjan Sinha, Sr. Advocate.
Mr. Ravindra Kumar, Advocate.
Mr. Anand Kumar Ojha, Advocate.
Mr. Ashok Kumar Karna, Advocate.
For the State Election Commission :Mr. Amit Shrivastava, Advocate.
Mr. Girish Pandey, Advocate.
For the State : Mr. Prasoon Sinha, G.A.-2.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
2 06-03-2013Heard learned counsel for the Appellant and the State Election Commission (hereinafter referred to as the Commission).
The present Appeal arises from order dated 05.02.2013 dismissing C.W.J.C. No. 21556 of 2012, affirming the order of the State Election Commission dated 08.11.2012 holding that the date of birth of the Appellant was 15.03.1990. She was Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 2 therefore below 21 years of age on 05.03.2011 when she filed nomination for the Panchayat Elections-2011, leading to her being unseated from the post of Mukhiya after having successfully contested.
Learned counsel for the Appellant contended that the conclusion of the Tribunal is vitiated as based on an admission by the Appellant that her date of birth was 15.03.1990. No admission had been made by the appellant. On the contrary she had relied upon the electoral roll of the year 2011 to contend that her date of birth was 18.08.1987. The electoral roll was not in dispute. If the Commission had any doubts it should have had further inquiries made into the date of birth including assessment by a Medical Board, if necessary.
It was next submitted that the School Admission Register showing the date of birth as 15.03.1990 was itself a disputed document in view of the fact that interpolation had been made to read as 15.03.1995. It was lastly submitted that the order of the Commission is not in accordance with the observations in C.W.J.C. No. 1829 of 2012 that the Admission Register could not be the absolute criteria for the correct age. It had also been observed that the issue of no objections having been filed at the time of nomination would have to be the subject matter of inquiry.
Reliance was placed on A.I.R. 1963 Kerala 18 Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 3 [Abdul Majeed (Meera Sahib) v. Bhargavan (Krishnan) Member, Legislative Assembly and others] to submit that the date of birth in the electoral roll shall take precedence over the School Admission Register. We find that the controversy there was in an entirely different context with regard to the age of the voters and not the contesting candidate. We are of the sufficient opinion that the case has no relevance to the present controversy as it was based on its own facts.
Reliance was next placed on A.I.R. 1965 SC 282 ( Brij Mohan Singh v. Priya Brat Narain Sinha and others) with emphasis on paragraph 20 to contend that in actual life it does happen that wrong date of birth is mentioned at the time of seeking admission in the school with a view to securing advantage in public service later in life. This date therefore cannot be taken as conclusive. If this submission on behalf of the appellant is to be accepted, it reinforces that the date of birth as 15.03.1990 did not drop from the heavens but was based on materials furnished and disclosure made by none other than the grand-mother of the appellant and not by any stranger.
Reliance was lastly placed on (2012) 5 SCC 634 ( Joshna Gouda v. Brundaban Gouda) with emphasis on paragraph-15 that the burden for proving the age of the appellant lay on the respondent. There can be no quarrel with the very broad Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 4 proposition, but for the acknowledgement (even if we do not use the word "admission" vehemently opposed on behalf of the appellant) that her date of birth was in fact mentioned in the School Admission Register as 15.03.1990 based on information supplied from authenticated sources.
Counsel for the Commission has invited our attention to the pleadings of the appellant before the Election Tribunal, particularly at paragraph-4 which reads as follows:
"That it is stated that the illiterate grandmother of opposite party no. 4 namely Ramsakhi Devi got enrolled her grand-daughter in class VI of the school on 18.08.2007 and her date of birth was mentioned as 15.03.1990 ..........."
If the grandmother of the appellant was illiterate, all the more reason that machinations with regard to the date of birth for subsequent advantage in later of life would have been a far cry for her. Rustic simplicity would have etched in her mind the date of birth based on contemporaneous events like birth, death, floods etc. Our attention was also invited by the learned counsel to paragraph-15 of the same reply where it was reiterated that the dated 15.03.1990 had wrongly been interpolated to reads as 15.03.1995. The submission was of an assertion by the appellant and reiteration of the date.
Learned counsel for the Commission also invited Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 5 our attention to A.I.R. 1960 Supreme Court 1049 (Brijendralal Gupta v. Jwalaprasad) and submitted from paragraph-12 of the same with reference to Section 36(7) of the Representation of People Act that entries in electoral roll are conclusive evidence only of the fact that the person referred to in that entry is an elector for that constituency. The submission therefore was that entries in a electoral roll prepared much subsequently in the year 2011 was not only inconclusive evidence of age but had to be properly explained to override the earlier entries in the School Admission Register.
We have considered the submissions made on behalf of the parties. Our jurisdiction in judicial review has primarily to be confined to errors in the decision making process. Only in the case of compete arbitrariness or perversity will the orders of the subordinate Tribunal call for interference. If the findings of the Tribunal is based on materials furnished before it derived from a logical discussion and is a reasonable possible view of the matter, merely because another view may also be possible cannot be sufficient justification for us to interfere. Having said so, we must observe that based on the materials placed on record before us, we are of the opinion that the conclusion arrived at by the Commission was in fact the only possible view.
Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 6
Once the appellant acknowledges the School Admission Register bore her date of birth as 15.03.1990 based on a disclosure made by her own family member, the onus is on her to demonstrate by leading necessary evidence how and why an incorrect date of birth was furnished and how her correct date of birth was 18.08.1987. What were the subsequent inquiries and materials in contradiction to that available when the first date of birth was revealed and on basis of which a fresh determination for correction of the date of birth was arrived at. The electoral roll has been prepared much later in the year 2011. Not an iota of evidence has been furnished by the appellant with regard to the nature of inquiry held when her date of birth was recorded as 18.08.1987 in the electoral roll. The entry in the School Register being first in point of time without any evidence on record to contradict, cannot be sufficient to distract the earlier entry simpliciter. If the appellant is sanguine that she has materials to demonstrate the correct date of birth as 18.08.1987 by leading appropriate evidence, it is for her to institute an appropriate proceeding for a declaration of the correct date of birth.
The inconclusive evidentiary value of the Electoral Roll to determine the date of birth was noticed in (2003) 8 SCC 673 (Sushil Kumar v. Rakesh Kumar) holding as follows:-
Electoral roll and Election Commission Identity card Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 7 `` 51. In both the aforementioned documents the age of the respondent was stated to be 24 years as on 01.01.1995. According to the respondent he was born in 1968 and, thus, on the said date he would have been more than 24 years of age. Why such an inconsistency crept in, has not been explained. The High Court, however, did not give much importance to the said fact and proceeded on the basis that these documents go to show that the respondent was a major on that day. It is conceded by Mr Mullick, learned counsel appearing on behalf of the respondent that the date of birth of a voter contained in the voter list and the election identity card issued by the Election Commission of India is not conclusive. They are recorded as per the statements made by the person concerned. Be that as it may, it was for the High Court and consequently for this Court in appeal to consider the said materials on record in their proper perspective. We may, however, observe that the said documents do not conclusively show that the respondent was a major on that day."
Once we have arrived at the conclusion that the date of birth, 15.03.1990, is based on acknowledgement by the appellant herself but sought to be disputed later, the fact that no objection may have been filed to the nomination need not hold us in view of the pronouncement in 2004 (4) PLJR 482 (Sri Bhagwan Singh v. The State of Bihar) holding at paragraph-24 as follows:
`` 24. Thus, once this Court comes to know on being moved by any of the parties that a person holding the office is disqualified then this Court cannot sleep over the matter and allow the office bearer of a Panchayat to hold the office though he is not eligible and his election is void one. This matter requires attention Patna High Court LPA No.267 of 2013 (2) dt.06-03-2013 8 by this Court. In cases where the candidates, having been convicted and sentenced for more than six months, are elected by suppressing the fact of their conviction and sentence and the disqualified persons holding the office of the Panchayat or as a matter of fact usurper of the office, though they have no right to hold the office and because of their disqualification, by suppression, fraud and misrepresentation, they have managed to get elected, in such a case this court will be failing in duty in preventing the public injury in case of refusal to interfere in such case. In such cases, this Court will issue a writ of quo warranto restraining the office bearers to function as members of the Panchayat."
We find no infirmity either in the order of the Tribunal or the conclusions of the learned Single Judge.
The Appeal is dismissed.
(Navin Sinha, J.) (Shivaji Pandey, J.) Md. Ibrarul/-