Saryug Mochi vs The State Of Bihar
2022 Latest Caselaw 2553 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.4175 of 2022
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Saryug Mochi Son of Ganauri Mochi Resident of Village-Akopur, (Arokur) P.O. Amarpura, P.S.- Naubatpur, District-Patna.

... ... Petitioner Versus

1. The State of Bihar through Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna.

2. The District Magistrate-Cum-District Election Officer (Municipality), Patna.

3. The State Election Commission, Bihar through its Secretary, Sone Bhawan, Patna.

4. The District Panchayati Raj Officer, Patna.

5. Usha Kaushik, W/o-Sri Kaushal Kaushik, Resident of Village-Nisarpur, P.O.-Amarpura, P.S.-Naubatpur, District-Patna.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 4030 of 2022 ====================================================== Punam Devi Wife of Late Pintu Saw Resident of Village, PO and P.S. - Naubatpur, District- Patna.

... ... Petitioner Versus

1. The State of Bihar Through Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna.

2. The District Magistrate - cum- District Election Officer (Municipality) Patna.

3. The District Panchayati Raj Officer, Patna.

4. The State Election Commission, Bihar through its Secretary, Sone Bhawan, Patna.

5. Usha Kaushik W/o - Sri Kaushal Kaushik, Resident of Village - Nisarpur, P.O. - Amarpura, P.S. - Naubatpur, District- Patna.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 4358 of 2022 ====================================================== Vijay Paswan, son of Janki Paswan, Resident of Village Parsa, PO-Nagwan, P.S. Naubatpur, District-Patna.

... ... Petitioner Versus Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

1. The State of Bihar through Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna.

2. The District Magistrate-cum-District Election Officer (Municipality), Patna.

3. The District Panchayati Raj Officer, Patna.

4. The State election Commission, Bihar through its Secretary, Sone Bhawan, Patna.

5. Usha Kaushik, W/o Sri Kaushal Kaushik, Resident of Village Nisarpur, PO-

Amarpura, P.S. Naubatpur, District-Patna.

... ... Respondents ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 4175 of 2022) For the Petitioner/s : Mr. P.N. Shahi, Sr. Advocate Mr. Ranjeet Kumar, Advocate For the Respondent/s : Mr. P.K. Shahi, Sr. Advocate Mr. Abbas Haider (SC-6) For Election Commission: Mr. Sanjeev Nikesh, Advocate Mr. Girish Pandey, Advocate (In Civil Writ Jurisdiction Case No. 4030 of 2022) For the Petitioner/s : Mr.Rana Vikram Singh, Advocate Ms. Rasika, Advocate For the Respondent/s : Mr.Yogendra Pd. Sinha (AAG-7) Mr. Rajeev Kumar Sinha, Advocate (In Civil Writ Jurisdiction Case No. 4358 of 2022) For the Petitioner/s : Ms. Nivedita Nirvikar, Sr. Advocate Mr. Ranjeet Kumar, Advocate For the Respondent/s : Mr.Yogendrsa Prasad Sinha (AAG-7) Mr. Rajeev Kumar Sinha, Advocate Mr. S.B.K. Manglam, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 09-05-2022

Sub-section (1) of Section 18 of Bihar Municipal Act,

2007 ('Act' for short) lays down the disqualifications of a

person for election, or after election for holding the post, as a

member of municipality. One of such disqualifications is laid

down as:

Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

"(m) If he is more than two living children:-

Provided that a person having more than two children on or

up to the expiry of one year of the commencement of the

Act, shall not be deemed to be disqualified."

2. The Act came into force with effect from the date

of its publication in Bihar Gazette (Extraordinary) dated

05.04.2007. Clearly thus, a person having more than two

children up to 05.04.2008 does not suffer disqualification by

operation of Clause (m) of sub-section (1) of Section 18 of the

Act. Sub-section 2 of the Act empowers the State Election

Commission to decide the matters of disqualification on a

complaint, application or information by any authority or upon

taking suo motu cognizance of such matters, after allowing

sufficient opportunity to the affected parties of being heard. The

scope of the jurisdiction of the State Election Commission under

sub-section 2 of Section 18 of the Act has been conclusively

decided by a Full Bench of this Court in the case of Rajani

Kumari Vs. The State Election Commission and Ors. reported

in 2019 (4) PLJR 673. While answering the question of whether

the State Election Commission will have the power to consider

disqualification of a candidate after election as such Election

Commission is constituted for conduct of elections, the Full

Bench in case of Rajani Kumari (supra) has held in no Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

uncertain terms as follows:-

"184. We are in agreement that the State Election Commission has got power under sub-section (2) of Section 18 of the Bihar Municipal Act, 2007 and sub-section (2) of Section 136 of the Bihar Panchayat Raj Act, 2006 to consider an issue of pre or post- election disqualification of a candidate subject to a caution which we have pointed out in our judgments in respect of a case which is in the nature of a purely election dispute and then a matter which cannot be decided without adducement of evidence by a competent court and authority in accordance with law. The State Election Commission shall entertain and consider the 'disqualification' issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suo- moto or by any other person, the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials. Whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified, the Commission would be required to relegate the parties to a competent court/tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo-moto or otherwise."

It can be easily culled out from what has been laid down

in case of Rajani Kumari (supra) that;

(i) The Election Commission has the power under sub-

section (2) of Section 18 of the Act to consider the issue of pre

or post election disqualification of a candidate subject to a

caution that a case which is in the nature of purely election Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

dispute, it cannot be decided without adducement of evidence by

a competent court and authority in accordance with law.

(ii) The State Election Commission, shall, at the first

instance, inquire whether it is a purely election dispute only and

only when it is found that the dispute brought before it is not a

purely election dispute, the Commission shall proceed to

consider the same on the basis of unimpeachable material.

(iii) Whenever a disputed question of facts and

contentious issue is brought before the Commission as a ground

and basis to render a candidate disqualified, the Commission

would be required to relegate the parties to a competent

court/tribunal or a fact finding body competent to decide such

contentious issues after taking evidences and till such time the

Commission shall not take a decision on such complaint either

suo motu or otherwise.

3. In the present batch of three writ applications filed

under Article 226 of the Constitution of India, an order dated

02.03.2022 passed by the State Election Commissioner, Bihar,

whereby it has declared the petitioners disqualified to hold the

post of ward councilor by operation of Clause (m) of sub-section

(1) of Section 18 of the Act is under challenge. After having

declared so, the petitioners have been ordered to be removed Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

from the posts of ward councillors of respective councils of the

Nagar Panchayat, Naubatpur in the District of Patna. The

petitioners have put to challenge the said order dated 02.03.2022

passed by the Commission.

4. The primordial issue that requires determination in

the present batch of cases is as to whether the impugned action

of the Commission is based on unimpeachable materials before

reaching a conclusion that the petitioners incurred

disqualification because of child/children born to them after the

cut off date of 05.04.2008, in the given facts and circumstances

of the case. It is worthwhile mentioning that the Full Bench

decision in the case of Rajani Kumari (supra) has made it

mandatory for the Commission to enquire, at the first instance,

whether it was a purely election dispute and only when it is the

Commission is satisfied that the dispute brought before it is not

a purely election dispute, the it shall proceed to consider the

same. Whether the Commission has adhered to the statutory

mandate as enunciated by the Full Bench in the case of Rajani

Kumari (supra) is a question which needs consideration in these

cases. The legal framework, for the exercise of power under

Section 18 (2) of the Act has been set out at the very beginning

of the present judgment and order in order to appreciate the Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

controversies involved in this batch of cases with reference to

the law settled by the Full Bench of this Court in the case of

Rajani Kumari (supra).

5. We have heard Mr. P.N. Shahi, learned Senior

counsel for the petitioner, Mr. P.K. Shahi, learned Senior counsel

for the respondent, and Mr. Abbas Haider, learned Standing

Counsel No. 6 in CWJC No. 4175 of 2022; Mr. Rana Vikram

Singh, learned Counsel for the petitioner, Mr. S.B.K. Manglam,

learned counsel for the respondent, and Y.P. Sinha, learned

Additional Advocate General No. 7 for the State of Bihar in

CWJC No. 4030 of 2022; Ms. Nivedita Nirvikar, learned Senior

Counsel for the petitioner, Mr. Y.P. Sinha, learned Additional

Advocate General No. 7 in CWJC No. 4358 of 2022 and Mr.

Sanjeev Nikesh and Mr. Girish Pandey learned counsel for State

Election Commission in all the three cases.

6. The petitioners Saryug Mochi, Punam Devi, and

Vijay Paswan were elected as the Ward Councillors of the

Nagar Panchayat, Naubatpur for Ward Nos. 14, 6, and 2

respectively in the election held on 23.02.2020. Certificates

were issued to them on 25.02.2020. One Usha Kaushik (the

Respondent No. 5 in all the cases) filed an application before the

State Election Commissioner asserting therein that the Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

petitioners were disqualified to contest the election by operation

of Clause (m) of Section 18 (1) of the Act since they had more

than two surviving children and the last child/chilren born to

them was after the cut-off date, i.e., 05.04.2008.

7. In respect of Saryug Mochi, she asserted that his 5 th

female child was studying in the Upgraded Middle School,

Akopur under Naubatpur Anchal of Patna district, and according

to the Respondent No. 5, as per the date of birth recorded in the

Admission Register she was born on 05.03.2010. She was

admitted to the said school in standard one in the year 2014.

Respondent No. 5, thereafter, said to have made an enquiry

about the dates of birth of the children of said Saryug Mochi

during the course of which she learnt that in connivance with the

Headmaster of the School, the said Saryug Mochi had made

certain interpolation in the original Admission Register to suit

his interest and protect his post. There were interpolations and

cuttings made in the Admission Register which were visible

with the naked eye. She also relied on an entry made in account

of the daughter of the petitioner Saryug Mochi, maintained for

direct benefit transfer of payment against dress allowance under

the Poshak Yojna of the Government, wherein her date of birth

was mentioned as 05.03.2010. On these two entries, respondent Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

No. 5 asserted in her complaint that the 5 th child of Saryug

Mochi was born much after the cut-off date.

8. In respect of Punam Devi, the petitioner of CWJC

No. 4030 of 2022, the respondent No. 5 relied on Ration Card

which disclosed age of said Punam Devi and her children in

years. She asserted that Ration Card in question was delivered to

the consumers including Punam Devi in the year 2019 for which

applications were received in 2017. Based on the age (not the

date of birth) mentioned in the Ration Card, respondent No. 5

asserted that the eldest daughter was born 'sometime in 2009'

and, therefore, other two children were apparently born after the

cut off dated, i.e., 05.04.2008.

9. In respect of Vijay Paswan, the petitioner of CWJC

No. 4358 of 2022, respondent No. 5 asserted in her complaint

that he was the father of 5 children and his last child was born

on 07.07.2013. In support of this claim, respondent No. 5 relied

on an entry made in the records maintained by Anganwari

Center No. 141 under Naubatput Nagar Panchayat.

10. A copy of the complaint filed by respondent No. 5

has been brought on record by way of supplementary affidavit

(Annexure-3), in CWJC No. 4030 of 2022.

11. Based on the pleadings on record including the Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

averments made in the counter affidavit filed by respondent No.

5 in these cases, the Court has not been able to discern as to

when the complaint was filed. It is not clear from the complaint

of respondent No. 5 that how was she aggrieved with the

election of these petitioners, inasmuch as, there is no disclosure

in her complaint that she had either contested for the posts in

question or was an elector of either of the wards.

12. Be that as it may, the Court is conscious of the

statutory provision under Section 18(2) of the Act which confers

jurisdiction upon the State Election Commission to take a

decision on the basis of any complaint or information regarding

the disqualification of a candidate. The said complaint of

respondent No. 5 led to the registration of the case No. 12/2020

before the Commission.

13. As is evident from the complaint filed by

respondent No. 5 that she referred to date of birth as mentioned

in the School Register with certain interpolations and direct

benefit transfer account in respect of the child of the petitioner

Saryug Mochi, age as disclosed in the Ration Card in respect of

petitioner Punam Devi and entries made in the register of

Anganwari Center in respect of Vijay Paswan. The Election

Commissioner proceeded on the basis of said complaint with the Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

issuance of notices to the petitioners.

14. The petitioners filed their replies to the notices

before the Commission denying the allegation of

disqualification on the grounds mentioned in the complaint of

respondent No. 5.

15. The petitioner, Saryug Mochi asserted in his reply

that the date of birth of his last child was 15.03.2008. He relied

on a birth certificate issued by the Gram Panchayat, Nisarpur,

wherein the date of birth of his last child was recorded as

15.03.2008. He also relied on certificates relating to UTI Mutual

Fund purchased in the year 2012 in the name of his last child

Swati Kumari in which also her date of birth was mentioned as

15.03.2008. In relation to the interpolations in the admission

register maintained by the school, the petitioner Saryug Mochi

stated before the State Election Commission stated that a wrong

entry made in the admission register was rectified on his request

on the basis of valid documents.

16. The petitioner Punam Devi in her reply asserted

that one Rohit Kumar, who had been described as her son was,

in fact, the son of her brother Santosh Kumar. As her brother

Santosh Kumar had lost his wife, he had allowed his son Rohit

Kumar to stay with the petitioner Punam Devi. In the said Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

background, Rohit Kumar was disclosed in the Ration Card as

her dependent and the father's name of said Rohit Kumar was

wrongly recorded in the Ration Card. In support of her case, she

relied on birth certificate of Rohit Kumar issued by the Nagar

Panchayat, Vikram on 02.12.2016, wherein his father's name

was mentioned as Santosh Sao and mother's as late Urmila

Devi. She also relied on a family tree certificate issued by the

Circle Officer, Vikram, wherein the petitioner's name had been

recorded as the grand-daughter Bhagiram Sao and his brother

Santosh Sao as grandson of the said Bhagiram Sao.

17. The petitioner Vijay Paswan also disputed the

allegation of respondent No. 5 based on the entries made in the

register of Anganbari Centre.

18. From the impugned order of the State Election

Commissioner, it is clear that the State Election Commissioner

adopted a unique method of getting the matter enquired into by

the district administration, on the allegations made in the

complaint petition by respondent No. 5. There is a brief

reference of some evidence recorded in the enquiry report so

submitted by the District Election Officer, Patna.

19. The Enquiry Officer in his report recorded that the

allegations contained in the Complaint Petition were correct. In Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

terms of the opinion recorded in the report, Saryug Mochi had 5

children and the 5th child was born on 05.03.2010. Further,

Punam Devi had 3 children, all of whom were born after 2008

and Vijay Paswan with 4 children with the last child born on

07.07.2013. The District Election Officer (Municipality)-cum-

District Magistrate, Patna also mentioned in his report that

during the course of enquiry, the persons against whom the

allegations were made had used abusive language and had

resorted to physical assault on the enquiry-team to influence the

enquiry. The State Election Commissioner, thereafter, on the

basis of analysis of the cases put forth before him by the rival

parties and the enquiry report submitted by the District

Administration recorded his findings in the impugned order.

20. In the impugned order, the State Election

Commissioner accepted the allegation of Respondent that the

last child of Saryug Mochi was born on 05.03.2010 and not on

15.03.2008. He based his finding on the entries made in the

School Register and documents related to direct benefit transfer

under Poshak Yojana. Claim of Saryug Mochi, based on the

entries made in the UTI Mutual Fund certificate and

immunization documents has been held to be 'illegal'. He

refused to accept the birth certificate issued by Gram Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

Panchayat, Nisarpur on the ground that on the date of issuance

of said certificate Gram Panchayat, Naubatpur had already

come into existence. Similarly, in respect of petitioner Vijay

Paswan also, the State Election Commissioner, relying on the

entries made in the Anganwari Center No. 141 and entries

available in Referral Hospital, Naubatpur accepted the allegation

of the complainant and rejected the denial made by the

petitioner Vijay Paswan. The case put forth by the petitioner

Punam Devi about 'Sanjeev Kumar' has been held to be

imaginary.

21. The birth certificate of Sanjeev Kumar has been

held to be, according to the State Election Commissioner, an act

of afterthought to defend the allegation of disqualification.

22. After having recorded the findings to the aforesaid

effect that the petitioners suffered disqualification under Clause

(m) of Section 18 (1) of the Act, the State Election

Commissioner by the impugned order has directed the removal

of these petitioners from the post of Ward Councillors of the

aforesaid 3 Wards with the observation that such posts shall be

treated to be vacant.

23. Mr. Pushkar Narayan Shahi, learned Senior

Counsel appearing on behalf of the petitioner in CWJC No. Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

4175 of 2022 has placed heavy reliance on the Full Bench

decision of this Court in the case of Rajani Kumari (supra) to

contend that the State Election Commissioner ought not to have

gone into the disputed questions of fact in relation to the birth of

the petitioner's 5th child in the absence of any unimpeachable

material available before the Commission. He has contended

that the State Election Commission ought not to have

entertained the complaint at all and instead the complainant

ought to have been relegated to appropriated Court/Authority for

adjudication upon dispute after taking evidences. He has argued

that the nature of the dispute raised by the rival parties before

the Commission could not have been adjudicated in a summary

proceeding without taking evidence of witnesses and permitting

parties to cross-examine such witnesses. According to him, the

enquiry which was conducted at the instance of the State

Election Commission by the District Officials was held behind

the back of the petitioner, inasmuch as, the petitioner was not

given any opportunity of hearing. He has asserted that the

correction in the date of birth recorded in the register of the

School was bona fide and was carried out after taking into

account the birth certificate issued by the competent authority.

He has submitted that the finding recorded by the Commission Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

is based on presumption, assumption, and fanciful imagination.

In relation to the date of birth of the petitioner's daughter Swati,

i.e., 15.03.2008, as recorded in the certificate issued by the

Gram Panchayat, Naubatpur dated 25.09.2010, he has

submitted that the same was issued in accordance with the

provisions under the Registration of Births and Deaths Act, 1969

read with the Bihar Registration of Births and Deaths Rule,

1999. He has submitted that the rejection by the State Election

Commissioner of the entry made in the birth certificates issued

by the Gram Panchayat on the ground that on the date of

issuance of said certificate, the Gram Panchayat was not in

existence with the creation of Naubatpur Gram Panchayat is

erroneous on the face of it as the said birth certificate was issued

by the then Panchayat Secretary, Nisarpur along with 19 other

children under the direction of the then Deputy Collector,

Danapur as contained in the letter No. 2774 dated 27.08.2010.

He has contended that there could be no occasion to enter an

incorrect date of birth in the UTI Mutual Fund certificates issued

on 10.01.2012 in the name of the petitioner's daughter Swati

Kumari which clearly showed her date of birth as 15.03.2008.

Said Swati Kumari was vaccinated in State Health Society,

Bihar and in the vaccination receipt also, date of birth of Swati Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

Kumari is endorsed as 15.03.2008. He has submitted that by no

stretch of imagination, date of birth which was incorrectly

entered in the School Register and which was subsequently

corrected could be treated to be an unimpeachable material for

the State Election Commissioner to reach a conclusion that said

Swati Kumari was born on 05.03.2010. Such finding, he

contends, the Commission could not have recorded without

adducement of evidence and without any unimpeachable

material available before him.

24. Mr. Rana Vikram Singh, learned counsel for the

petitioner in CWJC No. 4030 of 2022, while adopting the

submissions advanced by Mr. Pushkar Narayan Shahi, learned

Senior Counsel has argued that the finding recorded by the State

Election Commissioner that Rohit Kumar was not her son rather

the son of her brother and said Rohit Kumar was living with her

because of the demise of her brother's wife. Instead of Rohit

Kumar, the State Election Commissioner has mentioned Sanjeev

Kumar, about whom the petitioner allegedly developed an

imaginary story. He has reiterated that such disputed questions

of fact ought not to have gone into by the State Election

Commissioner in the light of Full Bench Decision in case of

Rajani Kumari (supra).

Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

25. Ms. Nivedita Nirvikar, learned Senior Counsel

appearing on behalf of the petitioner in CWJC No. 4358 of 2022

has referred to the finding recorded by the State Election

Commissioner in the impugned order on the point of the

petitioner's disqualification and has submitted that the finding is

based on the report of the enquiry-team, which enquiry was held

behind the petitioner's back. The State Election Commission

ought not to have treated the so-called entry in the register of

Anganwari Center of the date of birth, contends she has

submitted that no child was born to the petitioner after

05.04.2008 which plea was specifically taken by the petitioner

before the State Election Commissioner. She would argue that

after learning about the enquiry being conducted by the District

Officials, the petitioner had attempted to persuade the enquiry

team about the unfounded allegation made by the complainant

which was no heeded and an ex parte enquiry report was

submitted which apparently is the foundation of the finding

recorded by the State Election Commissioner. She has placed

reliance on a Supreme Court's decision in the case of Roop

Singh Negi Vs. Punjab National Bank and Ors. reported in

2009 (2) SCC 570 submitted that doubt howsoever strong

cannot take place of evidence.

Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

26. Mr. P.K. Shahi, learned Senior Counsel appearing

on behalf of respondent No. 5 in CWJC No. 4175 of 2022 has

vehemently argued that the petitioner cannot dispute the date of

birth as entered in the school register at his instance. He has

contended that in order to avoid the consequence of date of birth

of his child born after 05.04.2008, the petitioner managed to

make interpolations in the admission register interfering with the

originally entered date of birth which was based on the

information furnished by himself. According to him, the Full

Bench decision in the case of Rajani Kumari (supra) has no

application in the facts and circumstances of the present case.

He has submitted that the petitioner has placed reliance on a

birth certificate issued by the Gram Panchayat Raj, Nisarpur

which is a fabricated document since one month prior to the

application of issuance of birth certificate, the Gram Panchayat,

Nisarpur was not in existence. He has submitted that since the

petitioner has claimed the date of birth of his daughter Swati

Kumari to be 15.03.2008 on the basis of fabricated documents,

therefore, the finding of the State Election Commissioner to the

effect that last child of the petitioner, Swati Kumari, was born

after 05.04.2008 cannot be said to be suffering from any

infirmity requiring this Court's interference. Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

27. Mr. S.B.K. Manglam, learned counsel has

represented respondent No. 5 in CWJC No. 4030 of 2022 and

4358 of 2022 referring to the case of Vijay Paswan, he has

submitted that the enquiry was conducted by the District

Panchayat Raj Officer in the presence of the writ petitioners and

respondent No. 5, a copy of which was made available to the

petitioner. Upon hearing the parties in detail, the judgment was

reserved. However, the matter was re-heard by the State

Election Commission and, whereafter, the judgment was

pronounced on 02.03.2022. He has reiterated that the enquiry

was held by the Panchayat Raj Officer in the presence of this

petitioner. He has relied on the counter affidavit filed on behalf

of the respondent No. 5 in support of his contentions. In relation

to the case of Punam Devi, he has contended that it is evident on

analysis of the Ration Card that the petitioner had 3 children one

of whom was born after 05.04.2008. He has submitted that there

is no illegality in the impugned finding recorded by the State

Election Commissioner.

28. Mr. Sanjeev Nikesh, learned counsel appearing on

behalf of the petitioner has submitted that the impugned order of

the Commission has been passed after hearing the parties and

the petitioners, at no point of time, took a plea before the Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

Commission that report of the District Panchayat Raj Officer

was not supplied to them nor any objection raised in this regard.

He has contended that the finding recorded by the State Election

Commissioner at the point of disqualification of the petitioners

is based on materials which were available before him and do

not require any interference by this Court in the present

proceeding under Article 226 of the Constitution of India.

29. After having examined the pleading on record,

substance of which has been referred to hereinabove and the

submission advanced on behalf of the parties, it is crystal clear

that the complaint of respondent No. 5 raising the issue of

disqualification on the ground of operation of Clause (m) of

Section 18 (1) of the Act was based on the entries in the

admission register, Anganbari Center, Ration Card, etc.. The

entries in the school admission register maintained by the

School was got corrected at the instance of petitioner Saryug

Mochi which fact is being disputed by respondent No. 5 alleging

it to be a case of interpolation/illegal interference with the

documents. Punam Devi has asserted before the State Election

Commissioner that Rohit Kumar, whose name figured in the

Ration Card was not her son rather son of her brother who was

dependent on her. The State Election Commissioner, in his Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

judgment, rejected the claim of Punam Devi recording a finding

that the story developed by her about 'Sanjeev Kumar' was

imaginary though no such story was developed by her. The entry

in the Referral Hospital about birth of a child to Vijay Paswan

was disputed by Vijay Paswan which has been rejected by the

State Election Commissioner on the basis of the report of

Panchayat Raj Officer. In this view of the matter, the question

which has arisen is whether, there was such unimpeachable

material available before the State Election Commissioner as

would have authorized him to exercise jurisdiction under sub-

section (2) of Section 18 of the Act.

30. The very fact that the State Election Commissioner

required an enquiry to be held on the basis of the complaint

made by respondent No. 5 suggests that the materials produced

by respondent No. 5 before the State Election Commissioner in

his/her opinion were not unimpeachable for him to exercise his

powers under sub-section (2) of Section 18 of the Act, rather the

same required verification by way of an enquiry. Had it been

otherwise, the State Election Commissioner could have

proceeded on the basis of such materials, which in his opinion

were unimpeachable, by taking a decision after giving an

opportunity of hearing to the petitioners.

Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

31. Whether the enquiry held at the district level at the

instance of State Election Commissioner was an ex parte

enquiry or the petitioners had participated in the said enquiry

can be deciphered from the impugned order of the State Election

Commissioner and the counter affidavits filed on behalf of the

State Election Commission in these cases. It is to be noted that,

whereas, the petitioner have alleged that the enquiry was held ex

parte, it is the case of private respondent No. 5 that the

petitioners had participated in the enquiry and copies of the

enquiry report were furnished to them. The impugned order,

however, does not indicate any opportunity given to the

petitioners to participate in the so-called enquiry ordered by the

State Election Commission. In such situation, we record without

any demur that the petitioners were not given any opportunity to

participate in the so-called enquiry ordered by the State Election

Commission. The impugned order does not disclose that the

enquiry report was ever supplied to them. In the counter

affidavit filed on behalf of the State Election Commission, there

is no clear averment that the petitioners were given a

opportunity to participate in the enquiry conducted at the district

level. The only plea which has been taken in the counter

affidavit is that the petitioner did not raise before the State Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

Election Commission any objection to the effect that the enquiry

report was ex parte, which was not supplied to them.

32. Whether the children were born to the petitioner

after the cut-off date i.e. 05.04.2008. So as to attract

disqualification by operation of Clause (m) of Section 18 (1) of

the Act is the dispute which is at the core of the controversy

involved in the present case. The allegations made by the

complainant against these petitioners alleging disqualification

under Clause (m) of Section 18 (1) were based on certain

materials which were disputed by the petitioners. The materials

which were placed by respondent No. 5, the complainant can not

be said to be unimpeachable to the extent that the same could

not be disputed. The nature of disputes raised by the petitioners

as noted above cannot be said to be completely unfounded to be

brushed aside at the threshold,on the ground that materials

brought before the State Election Commission by the

complainant were unimpeachable in nature.

33. In the Court's opinion, the State Election

Commission proceeded casually in considering the serious

allegation of statutory disqualification under Clause (m) of

Section 18 (1) of the Act by referring the matter to the District

Election Officer (Municipality)-cum-District Magistrate, Patna Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

for a fact finding enquiry. The State Election Commissioner,

apparently, ignored the authoritative pronouncement of law laid

down by Full Bench of this Court in the case of Rajani Kumari

(supra) which has held in no uncertain terms that the

Commission can proceed to consider the issue of

disqualification on the basis of unimpeachable materials only. In

no ambiguous terms, the Full Bench in the case of Rajani

Kumari (supra) has held that whenever a disputed question of

fact and contentious issue is brought before the Commission as a

ground and basis to render a candidate disqualified, the

Commission would be required to relegate parties to a

Competent Court/Tribunal or a fact-finding body competent to

decide such contentious issues after taking evidence. The Full

Bench is in clear terms held that till such time such contentious

issues are decided after taking evidences, the Commission shall

not take a decision on such complaint either suo motu or

otherwise. The Commission, it seems, was totally unmindful of

the significance of these observations made in the case of

Rajani Kumari (supra) in which the Commission was the first

respondent.

34. It may be noted that in case of Purohit Lal Gupta

Vs. Dharamsheela Devi and Ors. reported in 2015(4) PLJR Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

933, a Co-ordinate Bench of this Court deprecated the conduct

of the Election Commission in undertaking fishy enquiry based

on which the first respondent was held to be disqualified to

contest the Municipal Election in which he was declared elected.

35. In view of the discussions above, the impugned

order, in our opinion, is unsustainable being beyond jurisdiction

in view of the law laid down by the Full Bench in case of

Rajani Kumari (supra). In the Court's opinion, the authority

exercising power under Section 18(2) of the Act by invoking

Clause (m) of Section 18 (1) of the Act must always keep in

mind the disasterous consequences of a declaration made in

respect of date of birth of a child to a person before or after cut

off date, i.e., 05.04.2008. Once, there is a finding recorded by

the Commissioner that a person is disqualified by operation of

Clause (m) of Section 18(1) of the Act, such disqualification

shall permanently debar him to contest a Panchayat/Municipal

Election. Further, such finding would also have serious bearing

on the date of birth of such child/children for their own purpose

on various counts. A conclusive finding recorded by Statutory

Authority touching the date of birth of such persons is capable

of creating multifaceted complications. In such view of the

matter, extra care and caution is required by the authorities in Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

determining such disputes exercising power under Section 18

(2) of the Act by applying Clause (m) of Section 18 (1) of the

Act. More serious the consequence the stricter must be the

degree of proof. In the present case, not only that the State

Election Commissioner overlooked the Full Bench decision

rendered in case of Rajani Kumari (supra) for the purpose of

resolution of dispute in the light of the complaint made by

respondent No. 5 and resistance made by the petitioner to such

complaint, he undertook a casual procedure of causing an ex

parte fact finding enquiry through the District Magistrate-cum-

District Election Officer (Municipality).

36. From careful reading of the impugned order, we

have noticed that the same does not disclose issuance of any

notice to these petitioners for their participation in the enquiry

conducted at the district administration level.

37. In view of the aforesaid discussion, in our opinion,

the impugned order is unsustainable being illegal, arbitrary and

in violation of principles of natural justice as well as contrary to

the law laid down by the Full Bench in the case of Rajani

Kumari (supra). Accordingly, the impugned order dated

02.03.2022 passed by the State Election Commissioner, Bihar in

case No. 12/20 is hereby set aside. The consequences of Patna High Court CWJC No.4175 of 2022 dt.09-05-2022

quashing of the said order dated 02.03.2022 shall follow.

38. These applications are accordingly allowed with a

cost of Rs. 5,000/- (Rupees Five Thousand Only) each payable

to the petitioners by the State Election Commission. The cost

must be paid within one month from the date of

receipt/production of a copy of this order.

39. We have considered imposing cost as we are of the

view that the Commission has comletely ignored the enunciation

of law by the Full Bench of this Court in the case of Rajani

Kumari (supra) in which the Commission was the first

respondent.

(Chakradhari Sharan Singh, J)

I agree Madhuresh Prasad, J:-

( Madhuresh Prasad, J)

K.K.RAO/-

AFR/NAFR                NAFR
CAV DATE                11.04.2022
Uploading Date          11.05.2022
Transmission Date       N/A