GAJALA KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, the State Election Commission (hereinafter referred to as the Commission) and Respondent No.6.

(2.) Petitioner was elected as Ward Member from Ward No. 26 of Katihar Municipal Corporation. She has filed this writ petition questioning the validity of the order dated 22.12.2011 passed in Case No. 56 of 2011, Annexure-1 to the writ petition, whereunder Election Commissioner, Bihar (hereinafter referred to as the Commissioner) exercising power under sub-section (2) of Section 18 of the Bihar Municipal Act, 2007 (hereinafter referred to as the Act) disqualified the petitioner on the ground of being underage on the date of nomination for the election as Ward Member in terms of sub-section (1), (b) of Section 18 of the Act holding the, petitioner to be less than 21 years of age.'Afore-said finding has been recorded by the Commissioner relying on the information\is.su?d under the Right to Information Act by the authorities of MBTA Islamia Senior Second-ary School, Katihar (hereinafter referredito as the Senior Secondary School) dated 18.2.2010, perusal whereof indicates that the date of birth of the petitioner as recorded in the transfer certificate issued by the authorities of the Urdu Middle School, Kadwa Rampara, Katihar (hereinafter referred to as the Urdu Middle School) under certificate letter serial No. 40/06 dated 30.1.2005 is 25.4.1992 on the basis of which she was admitted in the Senior Secondary School recording her date of birth as 25.4.1992.

(3.) It is submitted on behalf of the petitioner that reliance placed by the Commissioner on the information given by the authorities of the Senior Secondary School is wholly improper as while doing so, the Commissioner failed to appreciate the contents of the affidavit sworn by the father of the petitioner dated 28.2.1997, Annexure-4 in which it has been categorically stated that the date of birth of the petitioner is 10.1.1985. Learned counsel for the petitioner also submitted that other documents like Voter Identity Card, Annexure-6, Ration Card, Annex-ure-7, Nikahnama, Annexure-8 and the Certificate issued by the authorities of Qazi-a-Shariat, Katihar, an organization affiliated to Imart-e-sharia, Bihar, Annexure-9 would fur-ther confirm that the date of birth of the petitioner is 10.1.1985 and the Commissioner placing reliance on Annexures 4, 6 to 9 should have rejected the complaint filed by Respondent No.6 directing him to impugn the election of the petitioner by filing election petition, but without effecting trial to test the correctness of the entries made in the register of Senior Secondary School on the basis of which information dated 18.2.2010, Annexure-3 has been issued by the authorities of Senior Secondary School, the Commissioner ought not to have recorded a finding that petitioner was underage on the date of nomination for the election as date of birth entry is disputed by the father of the petitioner under affidavit dated 28.2.1997 which was affirmed by him more than 10-12 years earlier when there was hardly any likelihood of petitioner contesting the impugned election and the finding of the Commissioner that affidavit dated 28.2.1997 is a self-serving document is wholly misconceived as when affidavit dated 28.2.1997 was affirmed by the father of the petitioner she was about 12 years of age and there was not even distant possibility of petitioner contesting the present election. In this connection, learned counsel for the petitioner further pointed out that without examining the parents of the petitioner in support of the age recorded in the information dated 18.2.2010 reliance on the age indicated therein could not have been placed. In this connection, reliance is also placed on Section 35 of the Evidence Act and it is submitted that entry in the school register is not of much evidentiary value as there is no evidence, material to show on what basis entry has been recorded about the age of the petitioner in the school register. In support of the aforesaid submission, learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit, 1988 AIR(SC) 1796, paragraph 15, relevant portion whereof is quoted hereunder: