DEVAKI DEVI @ DEBAKI DEBI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, the State Election Commission (hereinafter referred to as the Commission) and the counsel for the private Respondent No. 7. Petitioner was elected as Mukhiya of Ujahara Gram Panchayat, which was reserved for Extremely Backward Caste. Her election was questioned by Respondent No. 7 before the Commission in the light of the provisions contained in sub-section (2) of Section 136 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act), which empowers the Commission to set aside the election of the Returned Candidate provided she is disqualified under Section 135, sub-section (1) of Section 136 of the Act from being elected. In the instant case, ground was taken that petitioner being Kurmi by caste is not a member of the Extremely Backward Caste, as such, could not have been elected against a seat reserved for Extremely Backward Caste candidate. Reliance in this connection was placed on the Cadestral, Revisional Record of Rights, Annexure-2 to indicate that the father of the election-petitioner, Singheshwar Mandal being Kurmi by caste, she belongs to Backward Caste and not to Extremely Backward Caste. In the light of the averments made in the petition filed before the Commission as also the entries made in the Cadestral, Revisional Record of Rights, report was sought from the District Magistrate, Saharsa which is contained in letter No. 500 dated 18.8.2011, Annexure-5 in which the District Magistrate taking note of the correction made in the Record of Rights in the year 2008 reported that caste of the petitioner has been corrected by the Revenue Officer, Saharsa from Kurmi to Dhanuk under order dated 7.3.2008 and in the light of the correction made in the Revisional Record of Rights, caste certificate granted to the petitioner dated 6.3.2006 and 5.3.2011, Annexures-3 and 4 certifying that petitioner belongs to Dhanuk Extremely Backward Caste is not required to be cancelled. The Commission refused to rely on the caste of the petitioner indicated in the certificate, Annexures-3 and 4 as also the report dated 18.8.2011, Annexure-5 on the ground that the Record of Rights was finally published under Section 103A(2) of the Bihar Tenancy Act, 1885 on 26.8.1976 whereafter request was made by the father of the petitioner to correct the entries made in the Record of Rights but at that stage no request for correction of the caste of the father of the petitioner from Kurmi to Dhanuk was made, as such, subsequent request for correcting the caste of the petitioner made after 32 years of its initial publication in the year 1976 ought (s/c--not?) to have been entertained in the year 2008 and any correction made after 32 years in 2008 cannot be relied upon. Appreciating the aforesaid contention, the Commission passed order dated 20.12.2011, Annexure-6 setting aside the election of the private Respondent No. 7 (sic-- petitioner ?) on the ground that she did not belong to Extremely Backward Caste which is impugned in this writ petition.

(2.) Counsel for the petitioner questioned the aforesaid finding of the Commission and submitted that entries concerning the caste status of the petitioner having been corrected in the Revisional Record of Rights under Section 106 of the Bihar Tenancy Act, the same can only be corrected by the Civil Court and the Commission had no jurisdiction to go behind the entries made under Section 106 of the Bihar Tenancy Act. Counsel for the petitioner next submitted that the petition filed by private Respondent No. 7 before the Commission to set aside her election on the ground that she was not qualified to be elected as Mukhiya of the concerned Gram Panchayat as the seat was reserved for Extremely Backward Caste candidate was also not maintainable in view of proviso to sub-section (2) of Section 136 of Act as for setting aside the election of the petitioner on the ground that petitioner was not qualified to be elected as Mukhiya of the concerned Gram Panchayat on the ground that she did not belong to the Extremely Backward Caste an election petition under Section 137 of the Act was required to be filed. In this connection, he referred to sub-section (1)(a) of Section 139 which provides that the election of the Returned Candidate, who is not qualified to be chosen can only be questioned by filing election petition. Reliance was also placed on Article 243-O(b) of the Constitution of India which provides for a bar in questioning the election of the Returned Candidate before any authority other than the authority vested with the jurisdiction to try the election petition. Reliance was also placed on a Division Bench judgment of this Court In the case of The State Election Commission & Ors. vs. Punam Kumari & Anr., 2009 2 PLJR 189, paragraphs-9 and 10 and it is submitted that Commission being a creature of the Statute can function and discharge its duties within the four corners of the Statute and cannot assume and be vested with any power which was not vested in it by the Statute and with reference to the said judgment it was submitted that proviso was added in sub-section (2) of Section 136 of the Act in the light of the aforesaid judgment by Amendment Act 10 of 2009.

(3.) Counsel for the Commission and private Respondent No. 7 submitted that bare reading of sub-section (2) of Section 136 would indicate that any person elected to the office of the Panchayat, if disqualified under Section 135 or sub-section (1) of Section 136 of the Act, his disqualification can always be questioned and considered by the Commission either on its own motion or on the motion of any other elector. According to the learned counsel, proviso excludes only such election disputes which is arising out of corrupt practice, wrongful rejection of nomination paper etc. So far the dispute concerning disqualification on the date of nomination is concerned, option is given to the challenger to either challenge the election before the Commission or by filing election petition. In the instant case, according to the learned counsel, the challenger has chosen to invoke the jurisdiction of the Commission, as facts were not in dispute and no evidence was required to be considered to adjudicate the question of disqualification of the petitioner on the date of nomination as admittedly the seat was reserved for Extremely Backward Caste candidate and petitioner, according to the Cadestral, Revisional Record of Rights, is Kurmi by caste belongs to Backward and not Extremely Backward Caste. In these circumstances, the Commission thought it appropriate to exercise jurisdiction under sub-section (2) of Section 136 of the Act, which cannot be faulted by this Court on the ground of jurisdiction. Learned counsel for the private Respondent next submitted that in the Cadestral Record of Rights, the caste of the father of the petitioner is indicated as Kurmi. In the Revisional Record of Rights also initially the caste of the father of the petitioner was indicated as Kurmi on the date of its publication i.e. 8.10.1976 whereafter her father filed objection for correction of the entries in the Revisional Record of Rights but at that stage he did not make any objection with regard to his caste status as indicated in the Revisional Record of Rights published on 8.10.1976. Subsequently in the year 2008, a petition was filed by the petitioner under Section 106 of the Bihar Tenancy Act, 1885 for correction of caste status in the Revisional Record of Rights, which was entertained and caste status of the petitioner as indicated in the Revisional Record of Rights was corrected under order dated 3.3.2008 from Kurmi to Dhanuk with effect from the date of publication of the Record of Rights i.e. 8.10.1976 on the basis of which caste certificate, Annexures-3 and 4 and the report, Annexure-5 has been issued which was not relied upon by the Commission for the reason that such correction was made after 32 years of the initial publication of the Record of Rights. In terms of Section 106 of the Bihar Tenancy Act any request for correction in the published Record of Rights is to be made within three months of the date of publication. In the instant case, request for correction of the entries made in the Record of Rights was made in 1976 by the father of the petitioner but without any request for correcting the caste status. Request for correction of the caste status in the Record of Rights should have been rejected not only on the ground of limitation of 32 years but also on the ground that, such request was not made when the earlier request for correction of the entries in the Record of Rights was made by the father of the petitioner in 1976.