Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22991 of 2012 ====================================================== Urmila Devi W/O Gauri Shankar Lal Ward Councilor Of Ward No. 28, Municipal Corporation, Arrah, Resident Of Mohalla- Raija, P.O- Arrah Chowk, Arrah, P.S- Arrah Town, District- Bhojpur. Versus .... .... Petitioner/s 1. The State Of Bihar Through The District Magistrate Bhojpur. 2. The Election Commissioner, State Election Commission, Patna, Sone Bhawan, 3rd Floor, Virchand Patel Path, Patna 3. The District Magistrate- Cum- District Election Officer, Municipality, Bhojpur. 4. Mithilesh Kumar Singh S/O Late Radha Prasad Singh Resident Of Mohalla- Rauja, Po- Chowk, Arrah, P.S- Arrah Town, Ward No. 28, Municipal Corporation, Arrah, District- Bhojpur. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kamal Nayan Choubey, Sr. Advocate Mr. Pankaj Kumar Sinha For the State : Mr. Surya Kant Kumar, A.C. to S.C.19 For State Election : Mr. Amit Srivastava Commission : Mr. Girish Pandey For Respondent No.4 : Mr. Rajendra Narayan, Sr.Advocate Mr. Uday Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 4 29-08-2013 Heard learned counsel for the petitioner and learned counsels for the State and for the State Election Commission as also for private respondent No.4. The petitioner seeks quashing of the order dated 31.10.2012 passed by the State Election Commissioner, by which he has recorded the finding that the petitioner has incurred disqualification for contesting elections in terms of Section 18 (1) (m) of the Bihar Municipal Act, 2007 and for consequential Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 2 directions. The facts of the case, in brief, are that the petitioner contested the election of Ward Councilor of Ward No.28 of Ara Municipality in the elections held in the year 2007 and was successfully elected. Subsequently, respondent No.4 filed an application on 15.3.2011 before the State Election Commission stating that at the time of general elections to the Ara Municipal Corporation in the year 2007, the petitioner had four living children and on 27.02.2009, she gave birth to another daughter and, therefore, in terms of the provisions of Section 18 (1) (m), the petitioner has become disqualified to hold the post of member of the Municipality. It was alleged in the said petition that the name of baby born on 27.02.2009 was Gule Chamcham as shown in the Birth Certificate of Ara Municipal Corporation which has been
Legal Reasoning
she/he is not a citizen of India. We are of the opinion that in view of provision of Section 136 (1) of the Act the State Election Commission should have given a direction to the appellant to get her declared Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 7 with regard to citizenship from the appropriate authority as the State Election Commission has no power or jurisdiction to decide the question of citizenship. The law of citizenship governs a particular field. 6. Under the above circumstance, we set aside the order of the learned single Judge and leave the question upon the appellant with regard to declaration of her citizenship.” Learned counsel further submits that the petitioner was again elected after the Municipal Elections, 2012 on the post of Ward Councilor and thereafter Election Petition No.03 of 2012 has been filed on 18.6.2012 by one Anamica Devi, one of the contestants to the said election, which is pending before the Sub- Judge-cum-Election Tribunal, Bhojpur at Ara in which a prayer has been made to declare the election of the petitioner illegal and void on the ground that the petitioner has concealed the fact that she has given birth to a fifth child Gule Chamcham on 27.2.2009 and was, therefore, disqualified from contesting the elections. It is further submitted that since the matter involves questions of fact to be contested, the Election Tribunal is the appropriate forum for taking such decision in the matter and the Election Commissioner Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 8 should not have passed the order dated 31.10.2012. In support of the same, learned counsel for the petitioner relies upon a decision of a learned single Judge of this Court in the case of Kahkashan Pravin vs. The State of Bihar & others: 2007 (1) PLJR 616, in paragraph No.14 of which it has been held as follows:- “14. In the said circumstances, neither the Commissioner had any jurisdiction or authority to decide such contested matter after the election process was over, nor the order passed by him was legal and justified on merits. Accordingly, the impugned order dated 13.9.2006 (Annexure- 1) passed by the State Election Commissioner, Bihar, in Case No.41 of 2006 is hereby quashed and this writ petition is allowed. The authorities concerned are directed to reinstate the petitioner on the post of Mukhiya Dumri Gram Panchayat, Darbhanga forthwith” Learned counsel for the petitioner further submits that the Election Commissioner ought not to have relied only on the motivated application of respondent No.4 to the exclusion of the joint inspection report from the District administration and treating Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 9 the subsequent report submitted by the Tax Collector also as sacrosanct. Learned counsel for the respondents, on the other hand, submits that the Election Commissioner has considered all aspects of the matter, including various documents and submissions made on behalf of the petitioner and it cannot be said that the impugned order suffers from any illegality. It is further submitted that the cut off date having been fixed by the Bihar Municipal Act, 2007 as 5.4.2008, the birth of the fifth child on 27.2.2009 clearly disqualifies the petitioner. It is also contended by learned counsel for the respondents that the Registrar, Births and Deaths has only been given power to enter the details in respect of births and deaths in the Register kept by him and to make correction and cancellation of such entries but not the authority to finally decide any such issue and no finality has been attached to any such entry or correction, etc. made by the Registrar. Learned counsel further submits that it is the petitioner who has been changing her stand from time to time as at an earlier stage, she had admitted before the District Administration regarding the birth of her child on 20.6.2008 which alone would disqualify her as the same is after the cut off date. Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 10 Apart from the same, learned counsel for the respondent Commission submits that the findings of the Election Commission are based upon documents which could not be controverted by the other side that the Birth Certificate of Gule Chamcham on 27.2.2009 has been issued on the basis of the application of the husband of the petitioner and not of respondent No.4 as falsely claimed by the petitioner. On a consideration of the rival submissions of learned counsels for the parties, I do not find any force in the submission of learned counsel for the petitioner. From a perusal of the impugned order dated 31.10.2012, it is evident that the State Election Commission has taken into consideration the documents filed in favour of both the sides as also the findings recorded in the joint inspection report and he has given good reasons for rejecting the stand of the petitioner on the basis of the findings recorded in the joint inspection report. He has also applied his mind to the documents produced before him and having considered that the Birth Certificate of Gule Chamcham dated 27.02.2009 had been issued on the application of the husband of the petitioner, he has rightly come to the conclusion that the petitioner should be disqualified in terms of Section 18 (1) (m) of the Bihar Municipal Act, 2007. Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 11 So far as the reliance placed by learned counsel for the petitioner on the Division Bench decision in the case of Dhanwanti Devi (supra) is concerned, the same can have no application in the present matter. In the said case, the matter related to the Citizenship Act and there is clear provision therein that if any issue arises under Section 9 of the Citizenship Act, the authority prescribed has to decide the same. That is not the position with regard to Births and Deaths. Under the Registration of Births and Deaths Act, 1969, it is merely provided that the extract given from the register shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates. Moreover, I find that under Section 15 of the Registration of Births and Deaths Act, 1969, which was strongly relied by learned counsel for the petitioner, the power of correction and cancellation of entry in the birth and death has been conferred on the Registrar but it is clearly provided therein that while correcting or cancelling the entry he will only correct the error or cancel the entry by suitable entry in the margin without any alteration of the original entry and shall sign the marginal entry and add thereto the date of the correction or cancellation. The same read with Section 17 (2) of the Act makes it clear that any such entry made in the births and deaths register is a piece of Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 12 evidence to be examined by the appropriate forum whether a Court of law or a statutory forum like the State Election Commission which has been conferred jurisdiction to decide the matter of disqualification on the ground of birth of a child after the cut off date, i.e., 5.4.2008. Similarly, the decision of this Court in the case of Kahkashan Pravin has no application to the facts of the present case, as in the present matter, the question of disqualification was raised before the State Election Commission on 15.3.2011 after the petitioner had been elected as a Ward Councilor in the year 2007 and on the date of filing of the application, the State Election Commission was the sole authority which was competent to decide the said matter there being no pending election petition on that ground. The fact that the petitioner had subsequently been elected in the year 2012 and an election petition is pending with respect to the same would not oust the jurisdiction of the State Election Commission statutorily conferred upon it to decide the matter which was already pending before him. Thus the order dated 31.12.2012 is clearly within jurisdiction having been passed by a statutory authority under the Bihar Municipal Act. This Court is further of the view that in the exercise of its power under Article 226 of the Constitution of India, this Court Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 13 is not sitting in appeal over the orders of the State Election Commission as a statutory authority. There is nothing in the impugned order which shows that the order is grossly erroneous or perverse as being based on no evidence. In the said circumstances, there can be no occasion to interfere with the said order in the writ jurisdiction of this Court. The writ application being devoid of merit is accordingly dismissed. V.P.Sinha/- (Ramesh Kumar Datta, J)
Arguments
prepared on the verification and enquiry report of Sri S.K. Sharma, Tax Collector. The petitioner appeared before the State Election Commissioner and contested the said facts. In support of his stand before the State Election Commissioner, respondent No.4 relied upon several documents, including an admission by the petitioner regarding the child having been born on 20.6.2008, for which Registration No.3855/A dated 20.6.2008 of the hospital was filed before the Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 3 Commission issued by the Health and Family Welfare Department, Government of Bihar. Another application dated 21.06.2008 filed by the petitioner before the Deputy Development Commissioner, Ara praying for time on account of birth of a child was also produced. Further reliance was placed on the application filed by the husband of the petitioner before the office of Ara Municipal Corporation which showed that the Birth Certificate of Gule Chacham was issued by the Corporation on the application of the husband of the petitioner. A copy of another letter of the petitioner’s husband addressed to the Registrar, Births and Deaths was also produced. A large number of other documents relevant to the stand of the respondent No.4 were also produced before the State Election Commission. On the direction of the Commission, a joint report of the S.D.O., Sadar, Ara and the Deputy Superintendent of Police, Ara was produced before the Commission by the District Magistrate-cum-District Election Officer (Municipality), Ara. In the report the stand of the petitioner that her 5th child was born on 20.2.2008 was found to be correct and the Birth Certificate issued by the Municipal Corporation Office, Ara regarding Gule Chamcham dated 27.02.2009 was found to be doubtful in view of the application containing the thumb impression of the informant Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 4 instead of the signature of Urmila Devi although she had signed everywhere. The said joint report was found to be cryptic and contrary to the large number of documents on the record which was rejected by the Commission holding that the said report ignores 15 to 20 important papers but instead of making an enquiry on the same, a cryptic report has been produced. The stand of the petitioner before the Commissioner was that the report was upon similar lines as in the joint report aforesaid and it was stated that the Birth Certificate regarding birth of Gule Chamcham on 27.2.2009 was issued at the behest of the respondent No.4, which fact was said to have been also supported by the Tax Collector in his subsequent statement. Reliance was also placed on the fact that the respondent No.4 had been pursuing the matter against the petitioner on earlier occasion also on the ground that she did not belong to extremely backward class but had got elected on the said post which was rejected by all the Tribunals and Courts. The State Election Commission on the basis of the aforesaid documents and particularly the existence of the application of the husband of the petitioner with regard to the issuance of Birth Certificate of Gule Chamcham on 27.2.2009 Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 5 which, according to the Commission, completely falsifies the stand of the petitioner as also the joint report, making it clear that the certificate had been issued on the application of the petitioner and subsequent document regarding an application by the petitioner with thumb impression was, accordingly, disbelieved; and the subsequent statement of the Tax Collector which falsifies his own earlier statement regarding verification was also disbelieved. The State Election Commissioner, accordingly, came to the conclusion that the Birth Certificate with regard to Gule Chamcham showing her date of birth as 27.2.2009 had been issued on the basis of the application of the husband of the petitioner which supports that the petitioner gave birth to a 5th child on 27.2.2009 and accordingly she was declared to be disqualified. Learned counsel for the petitioner submits that the order dated 31.10.2012 of the State Election Commission ought to be set aside since the document in favour of the petitioner has not been considered by him. It is further submitted by learned counsel for the petitioner that there being a specific authority to decide the issue of birth and death, namely, the Registrar, Births and Deaths under the Registration of Births and Deaths Act, 1969, the Commission ought not to have exercised his power to come to any such Patna High Court CWJC No.22991 of 2012 (4) dt.29-08-2013 6 conclusion regarding the birth certificate rather he ought to have left the matter to be decided by the Registrar, Births and Deaths to come to the final conclusion. It is also submitted that the Registration of Births and Deaths Act, 1969 is a special statute with regard to the registration of births and deaths and would, therefore, override the general powers granted to the Commission in the matter of disqualification applying the principle of the generalia specialibus non derogant. In support of the same, learned counsel for the petitioner relies upon a decision of a Division Bench of this Court in the case of Dhanwanti Devi vs. The State Election Commission and others: 2012 (1) PLJR 296, in paragraph Nos. 5 and 6 of which it has been held as follows:- “5. We had also the occasion to go through the provisions of Section 136 (1) of the Panchayat Raj Act which envisaged that a person shall be disqualified for election or after election for holding the post as Mukhiya on the ground that