Punam Devi v. The State Of Bihar

Patna High Court CWJC No.20480 of 2012 (4) 2 the requisite age of 21 years. The case of the petitioner is that she got her name entered into the electoral roll of the aforesaid Gram Panchayat supported by an affidavit, however, later on some unknown person submitted an online application for inclusion of the name of the petitioner in the electoral roll mentioning her incorrect age of 20 years. Petitioner sought to correct the age but the same was not corrected and on basis of such wrong entry of her age petitioner inadvertently filed nomination for election of Mukhiya of the said Gram Panchayat showing her age to be 20 years supported by an affidavit. The said nomination was rejected for being under age, as such, petitioner submitted second nomination on 07.04.2011 mentioning her age as 22 years and submitted photocopy of birth certificate and other required documents. The said nomination was accepted. Petitioner contested the election of Mukhiya and was declared successful. The election of the petitioner was challenged by one Sunita Devi (respondent no. 8) an unsuccessful candidate by way of an election petition vide Case No. 8 of 2011 in the Court of 1st Munsif, Siwan, Distrct- Siwan and during the pendency of the said election petition respondent no. 9 filed a complaint before the respondent- State Election Commission, Bihar (hereinafter referred to as the „Commission‟) vide Case No. 67 of 2011. Petitioner challenged the continuance of the above two proceedings at one time as Patna High Court CWJC No.20480 of 2012 (4) 3 per writ application vide C.W.J.C. No. 19253 of 2011 in this Court which was disposed of by order dated 16.11.2011 (Annexure-9) with observation that petitioner would be at liberty to raise her points before the Commission who should decide this issue as well before passing the final order. The said election petition vide Election Case No. 8 of 2011 before 1st Munsif, Siwan got dismissed for non-prosecution by order dated 20.07.2012 (Annexure-10). Further case of the petitioner is that the respondent-Commission did not consider the documents produced by the petitioner in its correct perspective and on the other hand relied upon the documents produced by the complaint. The documents were misinterpreted and accordingly held the petitioner being disqualified to contest the election in question for being aged less than 21 years as required under law. Petitioner as such prayed for quashing of the impugned order as contained in Annexure-11. Counter affidavits have been filed on behalf of the respondent-Commission as also private respondent nos. 8 & 9 stating therein to the effect that the Commission proceeded to decide the complaint only after the election petition vide Case No. 8 of 2011 in the Court of 1st Munsif, Siwan was dismissed for non-prosecution, and as such, the election petition was not pending which was already dismissed but not on merit. The further case is that the claim of the petitioner that she is aged 22 years as mentioned in the nomination paper vide Annexure- Patna High Court CWJC No.20480 of 2012 (4) 4 3 on basis of the Matriculation Certificate supported by an affidavit was found to be not genuine document since the certificate produced by the petitioner issued by the Bihar School Examination Board mentioning her date of birth as 10th July, 1988 on enquiry was found to be a forged document as per the report submitted by the Vigilance Wing of the Bihar School Examination Board the roll code and roll number of T.P. High School, Bhithi from where the petitioner claimed to have studied was equally found to be a forged document as per report of the Head Master of the aforesaid school mentioning therein that upon enquiry of the relevant records of the school did not mention any roll code and roll number as mentioned in the certificate. The further case is that the Commission considering all the documents on record, report submitted by the District Administration and other materials on the record. Petitioner who claimed herself to have studied at Raghunath Singh High School Mahabirganj in reply to the information sought Headmaster of the said School replied that the date of birth of petitioner being 10th April, 1996. two affidavits produced by the petitioner of the same date i.e. 02.04.2011 in support of two nomination papers mentions two different age of the petitioner. One contained the age being 20 years and the other affidavit mentions the age of the petitioner as 22 years. The commission on considering the documents held the petitioner to have not attained the age of 21 years as required Patna High Court CWJC No.20480 of 2012 (4) 5 in law as on the date of filing of nomination. Mr. Ramakant Sharma, learned Senior Counsel appearing on behalf of the petitioner submits that the proceedings initiated by the respondent no. 9 before the Commission was an act of mala fide since prior to the filing of case before the Commission respondent no. 8 wife of respondent no. 9 had challenged the election of the petitioner through the election petition vide Case No. 8 of 2011 before 1st Munsif, Siwan which was however deliberately got dismissed for default. As such the case before the Commission was not legally permissible. It is next contended that the consideration of the documents brought on the record were not correctly appreciated in its correct perspective, the documents are misinterpreted whereas the documents produced on behalf of the private respondents were relied upon. Learned counsel further submits that the certificate produced by the petitioner in support of her date of birth issued by the Statistical Department of the Government of Bihar was discarded without any valid justification. It was accordingly submitted the case deserves to be remanded back to the Commission reconsideration of the documents brought on the record with respect to the age of the petitioner. Learned counsel further submits that from the transfer certificate dated 17.11.2012 issued by the Urdu High School, Nabiganj, Siwan would show that the date of birth of the petitioner was 10th July, 1988 and Patna High Court CWJC No.20480 of 2012 (4) 6 she was studying in Class IX while leaving the school on 31st December, 2002 vide Annexure-16 to the rejoinder affidavit. However, this document was not on the record as it was issued after the order. Mr. Amit Srivastava, learned counsel appearing for the respondent-Commission vehemently submitted that the Commission did not commit any jurisdictional error in hearing the complaint of the respondent no. 9 after the aforesaid election petition no. 8 of 2011 was dismissed for non- prosecution. Petitioner participated in the hearing before the Commission contested the complaint on merit by producing different documents in support of the claim that her date of is 10th July, 1998. The Commission however on considering and analyzing found each of the document produced by the petitioner were not reliable. For example, petitioner submitted two affidavits in support of nomination papers both of the same date mentioning two different age of the petitioner. The matriculation certificate produced by the petitioner of her passing from the T.P. High School, Bhithi was turned out to be a forged document as the Headmaster of the said school disowned the same on basis of the record with respect to the roll code and roll number claimed by the petitioner of the said school, the Deputy Secretary of Vigilance of Bihar School Examination Board reported that the passing certificate mentioning the roll code and roll number Patna High Court CWJC No.20480 of 2012 (4) 7 was not issued by the Board vide enclosure to the letter no. 442 dated 24.10.2011 (Annexure-R/10). This apart, Commission also took into notice the report submitted by the District Administration that the certificate produced by the petitioner said to have been issued by the Statistical Department of the Govt. of Bihar did not find any such reference in the record vide Annexure-15 of the I.A. No. 7913 of

2012. The Commission further observed that had such certificate been in existence, there was no justification for the petitioner for not producing the said document in support of her age while filing the nomination instead of supporting the same by affidavit. Mr. Srivastava as such supports the impugned order. Mr. S.B.K. Mangalam, learned counsel appearing for the respondent nos. 8 & 9 while adopting the submissions advanced on behalf of the petitioner further submitted that the petitioner made all attempts to manipulate the record in support of her date of birth being 10th July, 1988 and all the documents were found to be not genuine. Upon considering the rival submissions of the parties, the first controversy is with respect to competency of the Commission in proceeding with the complaint in view of the Election Case No. 8 of 2011 filed by the respondent no. 8. it is not in dispute that in the said election petition no. 8 of 2011 before 1st Munsif, Siwan the complaint was that the petitioner Patna High Court CWJC No.20480 of 2012 (4) 8 was under age as on the date of filing the nomination, and as such, she was disqualified to contest the election, consequently, the election deserves to be set aside. However, the said election case was dismissed for non-prosecution as per order dated 20th July, 2012, and as such, in my opinion there could be no legal impediment, if any, in proceeding with the complaint before the Commission. The submission of the petitioner that the Commission was required to consider the issue regarding parallel proceedings, in view of the order of this Court vide order dated 16.11.2011 in C.W.J.C. No. 19253 of 2011 (Annexure-9) no longer remained an issue after the dismissal of the election petition in question for default. As regards the controversy that the Commission did not consider the documents properly, in my opinion, this Court while exercising its writ jurisdiction under Article 226 of the Constitution of India would not exercise its discretion to consider the findings of fact arrived by the Commission after analyzing the materials on record as an appellate authority. On going through the impugned order it would appear that the Commission has examined and evaluated each of the documents and assigned its own reasons either for discarding the document or accepting the document. The decision in CWJC No. 1831 of 2012 as reported in 2013 (1) B.B.C.J., 114 is of no help to the petitioner for the reason that the Commission while considering the controversy with respect to Patna High Court CWJC No.20480 of 2012 (4) 9 the age of the petitioner considered the educational certificates of the petitioner and the report of the Bihar School Examination Board disowning the issuance of the matriculation certificate bearing the roll code and roll number as claimed by the petitioner and other documents, and as such, there was no necessity in law for any medical opinion as contended by the petitioner in this Court. The consideration and the reasons assigned by the Commission with respect to the documents on the record with respect to the age cannot be said to be arbitrary or perverse. It is well settled that the findings arrived by the statutory Tribunal or authority on facts upon considering the materials on the record, may not be correct in the eyes of Court. The writ Court exercises its jurisdiction primarily to examine the decision making process not the decision. Reference may be made to the decision of the Apex Court in the case of H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority, Karnal Vs. M/s Gopi Nath & Sons as reported in 1992 Suppl. (2) SCC 312 (Paragraph-8) which reads as under : “But here what was assailed was the correctness of findings as if before an appropriate forum Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness of reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair Patna High Court CWJC No.20480 of 2012 (4) 10 treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgement not only on the correctness of the decision making process but also on the correctness of the decision itself.” For the reasons and discussions made above, I do not find any merit in the writ application. It is accordingly dismissed. Manish/- (Shailesh Kumar Sinha, J)