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Sharda Choudhary v/s State of Bihar

    Decided On, 04 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.N. HUSSAIN

    For the Appearing Parties: ----------



Judgment Text

S.N. HUSSAIN, J.

(1.) Heard learned counsel for the petitioner, learned counsel for the State of Bihar, learned counsel for the State Election commission and learned counsel for private respondent No. 6.

(2.) This writ petition has been filled for quashing order dated 13.09.2006 (Annexure 1) passed by the State Election Commission, Bihar, allowing Case No. 43 of 2006 filed by respondent No. 6, namely, Mahendra Sharma and declaring the election of the petitioner on the post of Member, Zila Parishad, Begusarai, Area No. 26 as illegal.

(3.) Learned counsel for the petitioner submitted that the age of the petitioner is 22 years, which was clearly mentioned in the nomination paper and affidavit filed by the petitioner on 22.03.2006 before the authorities concerned for contesting the election of Member of Zila Parishad, Begusarai, Area No. 26. He also stated t

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hat on 02.06.2006 the election was held and result was declared, in which the petitioner was declared successful and much thereafter on 10.08.2006 Case No. 43 of 2006 was filed before the Election Commission by respondent No. 6, who is a voter of the constituency concerned and is also brother of a candidate Mamta Devi, who had lost in the election. He also stated that on 29.08.2006 a show-cause notice was issued to the petitioner, are submitted her show-cause on 02.09.2006 Annexure 5) and after hearing the arguments the said case was allowed by the impugned order dated 13.09.2006 (Annexure 1) holding that the age of the petitioner at the time of filing of her nomination or at the time of election was cess than 21 years and she had been wrongly shown to be aged 22 years in the nomination paper and affidavit as well is in the voter list and hence she was unfit for contesting the said election and the said constituency was declared to, be vacant.

(4.) Learned counsel for the petitioner submitted that the said order is absolutely illegal as the petitioner was a major on the relevant date, which is apparent from the voter list and the school register. He also relied upon the two decisions of this Court; one by a Division Bench of this Court in the case of Shri Bhagwan Singh and Ors. v. State of Bihar and Anr. reported in 2004(4) P.L.J.R. 482 and the other by a Single Bench of this Court in the case of Rekha Kumari v. The State of Bihar and Ors. reported in 2006 (4) P.L.J.R. 634. He also submitted that sister of respondent No. 6, namely, Mamta Devi, who was a candidate and had lost to the petitioner, had herself filed Election Petition No. 07 of 2006 before the prescribed authority under the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as 'the Act' for the shake of brevity) challenging the election of the petitioner on the same ground and hence there was no occasion for respondent No. 5 to open a new front for getting an order without consideration of evidence in accordance with law, which could have been done in the election petition itself.

(5.) On the other hand, learned counsel for respondent No. 6 argued that the date of birth of the petitioner was 10.10.1989 as is clear from the certificate issued by tie Bihar Secondary Education Board and hence at the time of filing of the nomination paper, the petitioner was only 17 and a half years old, which clearly proved the falsity of the claim of the petitioner that she was 22 years old at the time of filing nomination paper and affidavit. He further submitted that, on the other hand, no material at all was produced by the petitioner before the Commission to show that the date given in the certificate of the Board was wrong or was over challenged. He, thus, stated that in the said circumstances, the Commission had full authority to decide the matter under the provisions of Section 126(2) of the Act.

(6.) Learned counsel for the State Election Commission further added that the records of the case as well as the impugned order clearly show that respondent No. 6 gave the specific date of birth of the petitioner mentioned in her certificate of the Board, but the same was never challenged by the petitioner before the Commission and hence the Commission was fully justified to pass the said order under the Provision of Section 136(2) of the Act.

(7.) Considering the arguments raised by the parties, the materials on record, including the impugned order as well as the laws and case-laws relied upon by the parties, it is quite apparent that the matter before the Commission was with respect to age of the petitioner. According to respondent No. 6, who had filed the case before the Commission, the date of birth of the petitioner was 10.10.1989 as mentioned in her certificate granted by the Bihar School Examination Board as well is her marksheet and school leaving certificate. This fact was never challenged by the petitioner before the Board nor did the petitioner produce any material to show that her age was 22 years as mentioned by her in her nomination paper and affidavit as well as in the voter list.

(8.) No reliance can be legally placed upon the said documents of the petitioner, which were ether self-serving documents or prepared on the basis of the self-serving statements of the petitioner. Furthermore, the petitioner also could not produce any material whatsoever to show that the date of birth given in the certificate of the Board was wrong or was ever challenged. Apart from the said fact, it is also apparent from the materials on record including the impugned order that the petitioner never challenged her certificate granted by the Bihar School Examination Board or her marksheet or even her school leaving certificate, which showed her date of birth to be 10.10.1989. The only ground taken by the petitioner before the Commission was that since an election petition was already been filed by a losing candidate before the prescribed authority under Section 137 of the Act, the Commission had no jurisdiction to pass any order in that regard. This cannot be a ground for rejection of the objection filed by respondent No. 6 before the Commission, which had ample power to decide such uncontested and uncontroverted question of fact raised by a voter, who is, admittedly, not a losing candidate.

(9.) The provision of Sub-section (2) of Section 136 of the Act clear1y prescribes that such disqualifications, which are evident on their face and have not beer legally denied nor even any evidence has been indicated or produced by the person concerned, can be referred for the decision of the State Election Commission. The said provision of Section 136(2) of the Act reads as follows:

136. Disqualification for Membership- If any question arises as to whether a Member of a Panchayat of any level or Mukhiya of Gram Panchayat or Sarpanch of Gram Katachary was before election or has become after election subject to any of the disqualifications mentioned in-clause (1); the question shall be referred for the decision of State, Election Commissioner. The matter of disqualification may be brought to the notice of State Election Commission in the form of a complaint, application or information by any person or authority. The Hate Election Commission may also take suo-motu cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard.

(10.) Thus, law is clear in this regard that where the matter is with respect to an undisputed question of fact, which is not contested or contradicted by the concerned person and for which no evidence has been produced or indicated by him or her the Commission has got tie Authority and jurisdiction to decide the same even if the process of election is concluded. In the said circumstances, learned counsel for the petitioner has wrongly rellied upon the said two decisions of this Court in Shri Bhagwan singh (supra) and Rekha Kumari (supra), in which, it has been held that where the matter is with respect to disputed question of fact, which is contested and contradicted by the concerned person and which requires evidence to decide the same, the Commission has no authority or jurisdiction to decide the same after the election is concluded. This is not the matter here and hence the said two decisions are not applicable to the facts and circumstances of this case.

(11.) In the said circumstances, the commission had full jurisdiction and authority to decide the matter. Furthermore, the Commission has rightly decided the matter as the claim of respondent No. 6 was based on valid documents, which were neither contested or disputed by the petitioner nor could the petitioner produce any material whatsoever to show that either the said documents were wrong or were challenged.

(12.) In the result, I do not find any illegality in the impugned order of the commission and, accordingly, this writ petition is dismissed
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