Patna High Court
Khushboo Ara vs The State Of Bihar on 19 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.881 of 2023
In
Civil Writ Jurisdiction Case No.5581 of 2023
======================================================
Khushboo Ara Daughter of Md. Quamruzzama Adil Resident of Ward No. 13,
Madhaili Bazar, P.O. Madhaili Bazar, P.S.- Shankarpur, District- Madhepura.
... ... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary, Panchayati Raj Department, Government of
Bihar, Patna.
3. The District Magistrate-cum-District Election Officer (Panchayat), Araria,
District- Araria.
4. The District Panchayat Raj Officer, Araria, District- Araria.
5. The Block Development Officer, Bhargama, District- Araria.
6. The Block Panchayat Raj Officer, Bhargama, District- Araria.
7. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel,
Patna, through the State Election Commissioner.
8. The State Election Commissioner, The State Election Commission
(Panchayat), Sone Bhawan, Birchand Patel, Patna.
9. The Secretary, The State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel, Patna.
10. The Officer on Special Duty, The State Election Commission (Panchayat),
Sone Bhawan, Birchand Patel, Patna.
11. Rukhsana Praveen, Daughter of Md. Shahzahan Resident of Village-
Majarahi, P.S. Bhargama, District- Araria.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 202 of 2022
======================================================
Khusboo Ara Daughter of Md. Quamruzzama Adil Resident of Ward No.-13,
Madhaili Bazar, P.O.- Madhaili Bazar, P.S.- Shankarpur, District- Madhepura,
presently Mukhiya of Gram Panchayat Raj, Bishariya, Block- Bhargama,
District- Madhepura.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Chief Secretary, Government of Bihar,
Patna.
2. The Caste Scrutiny Committee Bihar through the Chairman-cum-Principal
Secretary, General Administration Department, Government of Bihar, Patna.
3. The Principal Secretary General Administration Department, Government of
Bihar, Patna-cum- Chairman, Caste Scrutiny Committee, Bihar.
4. The Deputy Secretary Welfare Department, Government of Bihar, Patna-
cum-Member, Caste Scrutiny Committee, Backward and Extremely
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
2/19
Backward Class.
5. The Joint Secretary General Administration Department, Government of
Bihar, Patna-cum- Member, Caste Scrutiny Committee, Bihar.
6. The District Magistrate Madhepura, District- Madhepura.
7. The District Magistrate Araria, District- Araria.
... ... Respondent/s
======================================================
Appearance :
(In Letters Patent Appeal No. 881 of 2023)
For the Appellant/s : Mr. S.B.K. Mangalam, Advocate
Mr. Awnish Kumar, Advocate
Mr. Kumar Gaurav, Advocate
Mr. Vikash Kumar Singh, Advocate
For the Respondent/s : Mr. Ajay (GA 5)
For the State Election Commission: Mr. Girish Pandey, Advocate
(In Civil Writ Jurisdiction Case No. 202 of 2022)
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate
Mr. Awnish Kumar, Advocate
Mr. Kumar Gaurav, Advocate
Mr. Vikash Kumar Singh, Advocate
For the Respondent/s : Mr. Md. Nadeem Seraj (GP5)
For the State Election Commission: Mr. Girish Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 19-12-2023
Heard Mr. S.B.K. Mangalam, learned Advocate
for the appellant and the State and the State Election
Commission.
2. L.P.A. No. 881 of 2023 and C.W.J.C. No.
202 of 2022 have been taken up together and are being
disposed off by this common judgment.
3. The L.P.A. is directed against the judgment
dated 27.06.2023, passed by the learned Single Judge
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
3/19
in C.W.J.C. No. 5581 of 2023, whereby the order
passed by the State Election Commission (Panchayat),
Patna dated 27.03.2023 has been upheld.
4. By the aforenoted order, the appellant stood
disqualified for the reason of her not belonging to EBC
category (Sheikhra) on which she was returned elected
as Mukhiya of a particular Panchayat.
5. C.W.J.C. No. 202 of 2022 has been filed by
the appellant seeking quashing of the proceedings of
State Level Caste Scrutiny Committee, dated
25.11.2021
, whereby the appellant was held to be a
member of Sheikh and not Sheikhra Caste, and
therefore, belonging to the unreserved category.
6. Brief facts would be necessary for deciding
both, the appeal and the writ petition.
7. The appellant, on the basis of her claim as a
person of Sheikhra Caste, one of the most backward
categories, contested elections for the Post of Mukhiya in
the year 2016 from a Gram Panchayat, which was
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
reserved for Female EBC category. She was declared
elected. The runners-up candidate (respondent No. 11)
got a complaint registered vide Complaint No. 3 of 2017
with the State Election Commission that the appellant
did not have the qualification for contesting election from
a Panchayat, which was reserved for female EBC
contestants.
8. The aforenoted complaint was sent to the
Caste Scrutiny Committee, constituted by the State
Government under its GAD in the light of the judgment
of the Supreme Court in Kumari Madhuri Patil and
Anr. vs. Additional Commissioner, Tribal
Development and Ors. (1994) 6 SCC 241.
9. The Committee, in turn, referred the matter
to the CID for submitting a report in connection with the
claim of the appellant that she belonged to Sheikhra
Caste.
10. The CID vide its report dated 05.02.2018,
confirmed that the appellant belonged to Sheikh Caste
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
and not Sheikhra as claimed by her.
11. With the aforenoted report of the CID, the
Caste Scrutiny Committee gave show-cause notice to the
appellant which she had replied but the Committee came
to a finding that the appellant belonged to Sheikh Caste
(UR) and not Sheikhra.
12. The State Election Commission, however,
did not give any weightage to such report of the Caste
Scrutiny Committee on the ground that the report was
not based on any unimpeachable material.
13. The complainant, thereafter, challenged the
aforesaid decision of the State Election Commission
before this Court vide C.W.J.C. No. 5136 of 2020, which
was allowed and the Commission was directed to pass a
fresh order after taking into account the findings
recorded by the Caste Scrutiny Committee. In fact, while
remanding the matter before the State Election
Commission, the High Court expressed surprise as to
how the State Election Commission avoided relying on
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
the findings recorded by the State Level Caste Scrutiny
Committee in the absence of any challenge to it by the
appellant.
14. The High Court also noticed that the
appellant suffered from an inherent lack of eligibility to
contest the election and therefore, thought it fit to
restrain her from functioning as Mukhiya of the
concerned Gram Panchayat till a final order was passed
by the State Election Commission, Patna. The District
Magistrate-cum-District Panchayat Raj Officer, Araria
was also directed to consider registering FIR against the
appellant who had fraudulently portrayed herself as EBC
(Female) candidate for contesting the election in
question.
15. The Commission, thereafter, vide order
dated 31.12.2020 declared the appellant to be
disqualified on account of the findings recorded by the
Caste Scrutiny Committee.
16. The findings of the Caste Scrutiny
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
Committee thereafter was challenged by the appellant
afresh vide C.W.J.C. No. 2408 of 2021, which challenge
was sustained on the ground of Caste Scrutiny
Committee having come to a finding on such cluster of
documents which were never furnished to the appellant.
This time again, the High Court, after quashing the
findings of the Caste Scrutiny Committee, remanded it
to the Committee to pass a fresh order in accordance
with law after furnishing all the relevant materials/
documents/ evidence/ compact disc etc. to the appellant.
17. While this all was going on, 2021 elections
were notified by the Commission. The appellant again
could procure Sheikhra Caste certificate (08.09.2020)
and contested the election for the Post of Mukhiya,
Panchayat which still remained reserved for EBC
(Female) category and was even declared successful.
18. Meanwhile, the appellant was noticed by
the Caste Scrutiny Committee as directed by the High
Court in C.W.J.C. No. 2408 of 2021 and after serving all
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
the documents which the Caste Scrutiny Committee
would have relied upon, to the appellant, confirmed its
earlier decision that the appellant belonged to Sheikh
and not Sheikhra Caste.
19. This decision of the Caste Scrutiny
Committee is under challenge, as noted above, in
C.W.J.C. No. 202 of 2022 which has fallen for
consideration before us.
20. The major ground of challenge in the
aforenoted writ petition is that such a decision has been
arrived at by the Committee even in face of there being
more than one document in support of the claim of the
appellant that she is Sheikhra by Caste, which document
includes the Caste certificate of her father, her husband
(who is also the cousin of the appellant) as well as the
Caste certificates of a number of blood-relatives, school
records, sale deeds, etc. The further ground of challenge
is that the Committee relied heavily on few of the
Khatians in the name of the grand-father of the
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
appellant in which the caste is recorded as Sheikh and
not Sheikhra.
21. While again reiterating its finding that the
appellant does not belong to the EBC category, the
Committee took reference of Resolution No. 1567 dated
05.02.2014, that the primary document to rely upon in
these matters would be the land records and only in the
absence of such records, would spot verification and
other documents be referred to. From the documents on
record, the Committee, by a majority opinion, was of the
view that for determining and certifying the Caste of a
particular claimant, the Caste recorded in the Khatian of
the ancestors of the claimant ought to be treated as the
main document which could be relied upon.
22. Precisely for this reason, the Committee
again came to a finding that the appellant belonged to
the unreserved category.
23. The challenge to the judgment, as noted
above, is on the ground that such Khatian in the name
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
of the grand-father of the appellant is not a document of
such unimpeachable character which could have formed
the basis for the Committee as also the State Election
Commission to disqualify the appellant under 136(2) of
the Bihar Panchayat Raj Act, 2006.
24. The aforenoted writ petition (C.W.J.C. No.
202 of 2022) was admitted by the High Court but no
interim protection was granted to the appellant.
25. The State Election Commission, therefore,
proceeded against the appellant in view of the fresh
report by the Caste Scrutiny Committee and got a case
registered vide Case No. 43 of 2021 (Rukhsana
Praveen vs. Khushboo Ara). In this complaint, the
appellant was noticed and asked to furnish her show-
cause reply. An initial objection was raised by the
appellant before the Commission that the C.W.J.C. No.
202 of 2022, directed against the decision of the
Committee is pending adjudication before the Court and
therefore, the Commission ought not to proceed further
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
in the matter. However, the Commission finally heard
the matter and held the appellant to be disqualified but
made it clear that the decision of the Commission would
be subject to the final outcome of C.W.J.C. No. 202 of
2022.
26. The aforenoted decision of the Commission
was challenged before the High Court vide C.W.J.C. No.
5581 of 2023, as noted above, in which it was held that
the challenge is unmerited and the disqualification of the
appellant is justified.
27. The present L.P.A. arises out of the
aforenoted decision of the learned Single Judge.
28. A perusal of the judgment delivered by the
Single Judge clearly reflects that the verdict of the Full
Bench of Patna High Court in Rajni Kumari and Ors.
vs. The State Election Commission through its
Secretary and Ors. 2019 (4) PLJR 673 has been
gone into in detail. Finding justification for the
Commission to take up the complaint of respondent No.
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
11 to be within the jurisdiction of the Commission, to be
correct, the learned Single Judge held that the
Commission has rightly gone by the report submitted by
the fact finding body, viz., the Caste Scrutiny Committee
and the Caste Scrutiny Committee also had relied upon
Khatiani documents to base its decision upon. Nothing at
all was found by the learned Single Judge to justify any
interference with the decision of the Commission,
disqualifying the appellant.
29. Caste, especially, against a vacancy meant
to be filled up by EBC (Female) category is the basic
qualification and even pre-election, the appellant never
possessed the necessary eligibility to contest the
election. The only outcome of this is that the appellant is
required to be disqualified, which decision was taken by
the Commission, requiring no interference.
30. Mr. S.B.K. Mangalam, learned Advocate for
the appellant, however, laid great emphasis on the
having relied upon "impeachable" and "not
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
unimpeachable" documents and giving undue weightage
to the findings. He suggested to the Court to first
consider the challenge put up by the appellant in
C.W.J.C. No. 202 of 2022 and then decide the L.P.A.
31. It was argued by him that the appellant is
the daughter of one Md. Quamruzzama Adil who was
married to her cousin, viz., Naurej Alam in the year
2008. Even before she was elected as a Mukhiya of the
concerned Gram Panchayat, she had been granted a
Caste Certificate of Sheikhra Caste by the Circle Officer,
Bhargama, way back in the year 2005. Similar certificate
was granted to the father of the appellant. Some of the
relatives of the appellant were granted such certificate of
being members of Sheikhra Caste even before the
certificate in her favour was issued.
32. From 1997-2015, most of the persons
belonging to the family of the appellant are in possession
of Caste certificate of Sheikhra Caste by different Circle
Officers of Bhargama Block in the district of Araria.
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
Thus, the claim of the appellant is not recent but based
on old documents. Additionally, it was argued that
before the Returning Officer, no objection was raised
about the Caste status of the appellant at the time of
scrutiny of the nomination papers. The complaint was
filed by respondent No. 11 only after she lost to the
appellant in the elections.
33. The refrain of the respondents is that in the
event of a fact finding body having come to a definite
conclusion that the appellant did not belong to EBC,
there was no reason to interfere with such decision
making. The Commission rightly based its decision on
the report of the Caste Scrutiny Committee.
34. It appears from the records that though the
father and husband and other relatives of the appellant
possess a certificate of Sheikhra Caste but the Khatiani
document in the name of the grand-father of the
appellant records that he was of Sheikh Caste, which is
an unreserved category.
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
35. On a careful reading of the documents, we
are of the considered opinion that for the Caste Scrutiny
Committee to rely upon the Khatiani document as the
main document for determining the Caste of the
appellant for the purposes of assessing her qualification
to contest the elections, is correct and justified. So is the
resolution of the General Administration Department
with respect to the modus of assessment of the Caste.
36. The Khatiani document of the grand-father
of the appellant would come within the category of
unimpeachable document and merely because some of
the family members of the appellant including her father
and husband have reaped advantage of being shown as
EBC would not render a document of old antiquity to be
impeachable or untrustworthy, at least for the purposes
of the Caste Scrutiny Committee and the Commission to
take a decision about the Caste status of the appellant
for her disqualification.
37. We, therefore, uphold the decision of the
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
Caste Scrutiny Committee, the State Election
Commission and of the learned Single Judge.
38. While saying so, we have taken note of the
judgment rendered by Supreme Court in Anand vs.
Committee for Scrutiny and Verification of Tribe
Claims and Ors. (2012) 1 SCC 113, wherein it has
been held in that context that the genuineness of a
Caste claim has to be considered on a thorough
examination of the documents and also on the affinity
test, which would include the anthropological and
ethnological traits etc. of an applicant. However, the
Supreme Court admitted that it was neither feasible nor
desirable to lay down any absolute rule which would be
applied mechanically to examine a Caste claim. Having
said that, the Supreme Court set a broad parameter, to
be kept in mind, while dealing with a Caste claim.
39. It was noted by the Supreme Court that
while dealing with documentary evidence, greater
reliance ought to be placed on pre-independence
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
documents because they entail a higher degree of
probative value regarding the declaration of status of a
Caste, as compared to post-independence documents.
40. The reason for saying so, perhaps, is that
only in the later years, the protective discrimination
aspect would make it very profitable for an applicant to
claim a reserved category status. The burden of proving
the Caste claim is always upon an applicant, who has to
produce all the requisite documents in support of his
claim. The Caste Scrutiny Committee merely performs
the role of verification of the claim and therefore, can
only scrutinize the documents and materials produced by
the applicant. In case, the material produced by the
applicant does not prove his claim, the committee cannot
gather evidence on its own to prove or disprove his
claim.
41. Seen in this context also, we find that when
the entry would have been recorded in the Khatian of
the grand-father of the appellant, there would have been
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
the least chances of wrong projection of Caste of the
grand-father of the appellant, as by that time there
would not have been any concept of protective
discrimination under the Constitution.
42. The argument of Mr. Mangalam that the
report of the Caste Scrutiny Committee, the Election
Commission and of the learned Single Judge are not
based on any logic and reason, is incorrect and
misplaced. The reason given by the two authorities and
the learned Single Judge is quite cogent, clear and
succinct and there does not appear to be any pretence of
rubber-stamp reasons (refer to M/s. Kranti Associates
Pvt. Ltd. & Anr. vs Masood Ahmed Khan & Ors.
2010 9 SCC 496; G. Vallikumari vs Andhra
Education Society & Ors. 2010 2 SCC 497).
43. Both C.W.J.C. No. 202 of 2022 and L.P.A.
No. 881 of 2023 are thus dismissed but without any
order as to costs.
44. However, we deem it appropriate to
Patna High Court L.P.A No.881 of 2023 dt.19-12-2023
observe that in the event of the appellant choosing to go
before Civil Courts for a final determination based on
evidence, of her Caste and holding the entry in the
Khatian in the name of her grand-father to be an error
of fact, it would be open for her to do so, but with the
caveat that the outcome of such litigation would not
disturb the decision of the State Election Commission
and such decision shall, if in favour of the appellant,
operate only prospectively.
(Ashutosh Kumar, J)
(Nani Tagia, J)
krishna/saurabh
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.12.2023
Transmission Date 19.12.2023
