Patna High Court - Orders
Smt. Ragini Kumari @ Ragni Kumari Roy vs The State Of Bihar on 1 May, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6226 of 2023
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Smt. Ragini Kumari @ Ragni Kumari Roy Wife of Sri Rajesh Kumar,
Resident of Village-Ramjidube Tola, Ward No. 11, P.O.-Laukhan, P.S.-Dhaka,
District-East Champaran, Bihar-845418.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The State of Bihar through the Additional Chief Secretary, Panchayati Raj
Department, Government of Bihar.
3. The State Election Commission through its Secretary, 3rd Floor, Sone
Bhawan, Daroga Rai Path, R Block Chauraha, Beer Chand Patel Path, Patna,
Bihar-800001.
4. The State Election Commissioner, State Election Commission, 3rd Floor,
Sone Bhawan, Daroga Rai Path, R Block Chauraha, Beer Chand Patel Path,
Patna, Bihar-800001.
5. The OSD, State Election Commission, 3rd Floor, Sone Bhawan, Daroga Rai
Path, R Block Chauraha, Beer Chand Patel Path, Patna, Bihar-800001.
6. The District Magistrate cum Returning Officer, East Champaran, Motihari.
7. Smt. Radha Kumari Patel @ Radha Patel, Wife of Raj Kumar Singh,
resident of Village-Vikrampur, Panchayat-Gahai, Block-Dhaka, P.O. and
P.S.-Dhaka, District-East Champaran, Motihari.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate
: Mr. Pranav Kumar, Advocate
For the Respondent/s : Mr. Kumar Alok (SC-7)
: Mr. Satyeshwar Prasad, AC to SC-7
For Election Commission : Mr. Sanjeev Nikesh, Advocate
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 01-05-2023Heard learned Senior Counsel for the petitioner, learned counsel for the State and learned counsel for the State Election Commission.
The learned Senior Counsel submits that the issue which arises for consideration in the present case is whether matriculation certificate can be considered an unimpeachable Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 2/13 document for the State Election Commission to consider an Election dispute in terms of Section 136 (2) of the Bihar Panchayat Raj Act, 2006, for holding a returned candidate to be disqualified from holding the post of Mukhiya, on the ground of age, when there are document on record to impeach the matriculation certificate and once there are document on record impeaching the matriculation certificate, then whether an election petition will lie or not on the ground that despite availability of matriculation certificate on record, the same is being disputed, thus giving rise to disputed question of facts which can only be adjudicated in a duly constituted trial and not in a summary manner.
The learned Senior Counsel submits that in the month of October 2021, the Election for the post of Mukhiya, Gram Panchayat Raj Gahai, within Dhaka Block was notified by the State Election Commission. The petitioner being eligible to contest the election for the post of Mukhiya filed her nomination (Annexure-1 to the writ application) to contest the post on 27.09.2021. In the nomination papers the petitioner had declared her age as 21 years and mentioned her date of birth as 25.01.1999, thereafter, scrutiny was held, but no objection was raised, the petitioner contested and won the election of Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 3/13 Mukhiya.
It is next submitted that unsuccessful candidate Radha Kumari Patel @ Radha Patel (respondent No. 7) filed Complaint Case No. 05 of 2022 (Annexure 3 to the writ application) before the State Election Commission in which petitioner was impleaded as respondent No. 5. It is further submitted that the election of the petitioner was questioned on the ground that on alleged date of nomination the petitioner was underage and had not attained the age of 21 years, as required under Section 136 (1) (b) of Bihar Panchayat Raj Act, 2006, which is evident from her matriculation certificate in which her date of birth is mentioned as 25.01.2002, hence on the date of nomination i.e. 27.09.2021, the age of the petitioner was nineteen years, eight months and ten days.
The learned Senior Counsel next submits that the State Election Commission issued notice dated 25.01.2022 (Annexure 4 to the writ application) to the petitioner, requiring her to appear to contest the case along with documentary evidence in her support. The Returning Officer cum B.D.O., Dhaka, East Champaran by his letter dated 07.02.2022 (Annexure 5 to the writ application) requested the District Panchayat Officer, East Champaran, Motihari to conduct an Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 4/13 enquiry on the petition of the complainant that is Radha Patel.
It is next submitted that thereafter the petitioner on 08.07.2022 (Annexure 6 to the writ application) as respondent No. 5 in case No. 5 of 2022 filed a detailed counter-affidavit before the State Election Commission, refuting the allegation made in the complaint.
It is next submitted that the petitioner in the counter- affidavit specifically stated that her date of birth is 25.01.1999 and the same is supported by voter ID Card, Pan Card, Aadhar Card and Birth Certificate issued from the Office of the Department Of Economics And Statistics, Government of Nagaland, further even in the transfer certificate issued from Vidya Bhawan School, K. Kire Colony, Nagaland, Dimapur, her date of birth is mentioned as 25.01.1999.
The learned Senior Counsel next submits that the petitioner in her counter-affidavit also stated that her actual date of birth is 25.01.1999, further till 2006, she was studying at Vidya Bhawan Secondary School, K. Kire Colony, Nagaland, Dimapur, further after retirement of her father, the family shifted to Motihari in the year 2012, where she took admission in D.A.V. Public School Narha, Panapur.
The learned Senior Counsel next submits that in Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 5/13 D.A.V. School, at Motihari due to mistake of the Clerk her date of birth was recorded as 25.01.2002 instead of 25.01.1999.
It is next submitted that from transfer certificate issued by the school (Annexure-7) and birth certificate (Annexure-7A) issued by the Government of Nagaland, it is evident that her date of birth is recorded as 25.01.1999.
The learned Senior Counsel next submits that what is not in dispute presently based on documentary evidence is that the date of birth certificate issued by the Government of Nagaland was issued in the year 2005, recording her date of birth as 25.01.1999 which was much prior to 2021, i.e., year in which the petitioner had filed her nomination and contested the election of Motihari.
The learned Senior Counsel next submits that petitioner's uncle Chandeshwar Rai had gone to get the petitioner admitted in D.A.V. School Motihari and due to mistake of the Clerk, her date of birth got recorded as 25.01.2002 as recorded hereinabove.
It is further submitted that even the school at Nagaland in which the petitioner had studied till 2012, had informed by its letter dated 17.03.2022 (Annexure-7 to the writ application) that petitioner took admission in the school on Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 6/13 12.01.2006, left the school on 14.12.2012 and has date of birth as recorded in the school register as per birth certificate is 25.01.1999.
The learned Senior Counsel next submits that matriculation certificate no doubt is an unimpeachable document, but then the same cannot be treated as sacrosanct, if there are documents available on record to impeach the same, in the present case the documents which create doubt with regard to the date of birth as recorded in her matriculation certificate is the date of birth as recorded in her birth certificate issued by the Government of Nagaland, in terms of Section 12/17 of Registration of Birth and Death Act 1969 and Rule 8 of the Nagaland Registration of Birth and Death (amendment) Rule 1999, coupled with the fact that even the school register mentioned her date of birth as 25.01.1999 as recorded aforesaid.
The learned Senior Counsel next submits that the Government of Nagaland had issued the date of birth certificate of the petitioner in terms of the Rule in the year 2005 (Annexure-7A to the writ application) which was much prior to 2021 i.e., the year in which the petitioner contested the elections, the learned Senior Counsel submits that the submission is being made at the cost of repetition only for the Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 7/13 reason to persuade the Court that petitioner never had any intention of concealing her age, it is also submitted that had the certificate being issued by the Government of Nagaland, in the year 2021 or subsequent to the issuance of the matriculation certificate then definitely an aspersion could have been cast on the conduct of the petitioner but the birth certificate issued by the Government of Nagaland, in the year 2005 definitely cannot be construed to be a fake document in absence of any challenge or adjudication.
The learned Senior Counsel next submits that he is aware of the fact that Aadhar card, Pan card and Voting I.D. card are not documents based on which legally it can be submitted that it has relevance for the purposes for determining the date of birth but then those documents also have relevance, it is next submitted that in the present case if the date of Birth certificate issued by the Government of Nagaland would not have been on record then definitely no advantage of Aadhar card, Pan card and Voter I.D. card could have been taken by the petitioner.
The learned Senior Counsel next submits that he is aware of the law decided by the learned full bench of this Court in the case of Rajani Kumari vs. the State of Bihar reported in 2019(6) B.L.J. (1) wherein it has been held that the State Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 8/13 Election Commission can decide only such cases with respect to dispute relating to election which are not disputed and is based on an unimpeachable document.
The learned Senior Counsel thus submits no doubt matriculation certificate is an unimpeachable document but whether in facts of the present case, can it be construed that the matriculation certificate is unimpeachable or cannot be impeached. The learned Senior Counsel thereafter relies on the judgment of the Hon'ble Supreme Court in the case of Brij Mohan Singh vs. Priya Brat Narain Sinha and others reported in A.I.R. 1965 SC 282 and also the orders of the Hon'ble Supreme Court in the case of Birad Mal Singhvi vs. Anand Purohit reported in A.I.R. 1988 SC 1796. The learned Senior Counsel relying on the constitution bench judgment of the Hon'ble Supreme Court in the case of Brij Mohan Singh vs. Priya Brat Narain Sinha and others (supra) draws the attention of the Court to Para 20 of the Judgment:-
"An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 9/13 admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant's case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub- Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 10/13 the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant's age on the entries in these three documents viz. Ex. 2, Ex. 8 and Ex. 18."
The learned Senior Counsel thus submits that even the Hon'ble Supreme Court has observed that however, much one may condemn such an act of making a false submission of age with a view to secure an advantage in getting a public service, a judge of fact cannot ignore the position i.e. in actual life this happens not infrequently. The learned Senior Counsel thus submits that what can be culled out from the judgment of the Hon'ble Supreme Court in the case of Brij Mohan Singh's case (supra) is that the matriculation certificate cannot be held to be a sacrosanct and an unimpeachable document for arriving at a conclusion. The learned Senior Counsel next submits that Hon'ble Supreme Court in the case of Birad Mal Singvi's case (supra) has basically held that until and unless the person, who had filled the initial form at whose behest the date of birth was recorded, is not examined it cannot with certainty be said that the date of birth as recorded in the matriculation certificate is sacrosanct, it is thus submitted that in the present case it was the uncle of the petitioner who had accompanied her to the school Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 11/13 for getting her admitted and in whose presence the clerk had committed the aforesaid mistake when it is an admitted fact that the date of birth certificate as issued by the Government of Nagaland was of the year 2005 and the petitioner took admission at Motihari in the year 2012 as such it cannot be presumed that the petitioner would have disclosed her date of birth as 2002 instead of 1999, it is next submitted that since the uncle of the petitioner had accompanied her for getting admitted in the school, in that case he becomes a relevant witness to be examined. The learned Senior Counsel next submits that in the counter-affidavit filed before the State Election Commission by the petitioner, these facts were specifically pleaded. The learned Senior Counsel further submits that in the nature of dispute which has arisen in the present case, prima facie gives an impression that the facts are not admitted and the matriculation certificate based on the birth certificate issued by the Government of Nagaland can be impeached and taking into consideration the judgment of the Hon'ble Supreme Court in the case of Brij Mohan Singh it can safely be construed that the matriculation certificate for the present cannot be treated as an unimpeachable document since the Government of Nagaland in the year 2005 had issued the birth certificate of the petitioner. Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 12/13 The learned counsel for the State Election Commission at this stage seeks 2 weeks' time for filing a detailed counter-affidavit.
At this stage the learned Senior Counsel submits that election have been notified and the date of nomination starts from 03.05.2023 and thus seeks stay of the election of the instant Gram Panchayat.
The Court for the present refrains from entertaining the plea of stay made by the learned Senior counsel but then leaves it to the wisdom of the State Election Commission to take a decision in this regard keeping in mind the nature of controversy and the issues as raised in the present writ application as recorded hereinabove.
Issue notice upon the respondent No. 7 by both modes for which requisites must be filed on or before 03.05.2023. Failing which the writ application shall stand rejected without further reference.
The learned Senior Counsel at this stage submits that in the event if elections are held then the petitioner will have to challenge the same in an election petition to which the learned counsel for the State Election Commission submits that it is the order of the State Election Commission which is under Patna High Court CWJC No.6226 of 2023(2) dt.01-05-2023 13/13 challenge in the present application and in the event if it is set aside then any action taken in consonance with the order of the State Election Commission shall abide by the order of this Court.
The learned Senior Counsel at this stage submits that he may be permitted to serve Dasti Summons on the private respondent for which the learned Advocate on record shall be filing the requisites in the registry by tomorrow. The Registry is directed to handover Dasti Summons on the learned Advocate on record for it being served on the private respondent by 03.05.2023.
Put up this case on 15.05.2023.
(Satyavrat Verma, J) Adnan/-
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