FARZANA NAZ Vs. THE STATE ELECTION COMMISSION

JUDGEMENT

(1.) Kishanganj Nagar Parishad (for short 'the Parishad') went to polls wherein the petitioner contested for the post of Ward Councillor. There being no objection filed to her nomination, the same was accepted by the Returning Officer and she contested the election and was declared elected. The respondent no.5 filed an application before the respondent - State Election Commission ( for short 'the SEC') under Section 18(2) of the Bihar Municipal Act, 2007 ( for short 'the Act') alleging , inter alia, that the writ petitioner was disqualified or ineligible under Section 18(1) of the Act and requested the SEC to set aside her election. According to the respondent, the petitioner was less than 21 years of age when she contested the election. In the Focania pass certificate which is equivalent to Matric her date of birth is recorded as 28.11.1993. The writ petitioner got admission in Government Girls High School, Kishanganj where also in the Admission Register her date of birth is recorded as 20.09.1994. The application filed by respondent no.5 is at Annexure -1. The SEC registered case no. 08/2013 and issued notice to the petitioner on 13.03.2013 (Annexure -2) for her appearance and filing of show cause. The petitioner, pursuant to the notice, appeared and filed her show cause/written statement claiming her date of birth as 07.11.1987. It was stated that she was admitted in Madarsa Gulsane Rasool for her elementary education in which her date of birth was recorded as 07.11.1987. She also enclosed the Transfer Certificate of the Madarsa. For some reason(s) her study was discontinued. She was again admitted in Madarsa Islahiya Khagra Bilayati Bari wherein her father got her date of birth recorded as 28.11.1993. The show cause/written statement filed by the petitioner is present at Annexure -3. An affidavit affirmed by her father indicating her date of birth as 07.11.1987 was also filed. The hearing of the case, however, prolonged. An order was passed on 09.09.2015 by this Court on the writ petition filed by the respondent no.5. The case pending on the file of the SEC was directed to be disposed of within 06 months. On 18.3.2016, the matter was taken up by the SEC and notice dated 18.3.2016 (Annexure -4) was issued to the petitioner for her appearance in the case on 30.03.2016 with a view to disposal of the case. The petitioner, in response to the said notice, appeared before the SEC on 30.03.2016 and the hearing of the case was postponed to 31.3.2016. On the next date fixed both parties appeared. A request for adjournment was made on behalf of the petitioner which was denied and the hearing of the case concluded and the SEC passed the order on 31.03.2016 (Annexure -5) declaring the writ petitioner disqualified for the post. The present application is directed against the said order dated 31.03.2016.

(2.) I have heard Mr. S.B.K. Manglam representing the writ petitioner, Mr. Amit Srivastava who has appeared on behalf of the respondent SEC as also Mr. Firoz Ahmad appearing for the respondent no.5, the complainant. Section 18(2) of the Act confers jurisdiction on the SEC to decide such dispute. The jurisdiction of the SEC to entertain such application and pass order has not been disputed before me. Section 18(1) of the Act provides disqualification for election or after election for holding the post as Member of the Municipality. Any contestant who has not attained the age of 21 years at the time when he or she contested the election is disqualified to hold the post. It has been urged on behalf of the petitioner that the impugned order suffers from non -providing of adequate opportunity to the petitioner as the prayer for adjournment was declined by the SEC. The SEC erred in deciding the disputed question in a summary manner without permitting the parties to adduce evidence. It also fell in error in accepting the matriculation or equivalent certificate issued by the statutory authority as the conclusive proof of age. The relevant documents produced by the petitioner were not considered. The petitioner had enclosed her voter ID and the transfer certificate besides the affidavit of her father which were either ignored or not appropriately appreciated. The Court may notice, at this stage, that during hearing of the case, the SEC, in order to satisfy itself, had called for an enquiry report with regard to the age of the petitioner. The communication dated 29.8.2012 issued by the Block Panchayat Raj Officer (for short 'the BPRO') addressed to the Block Development Officer, Kishanganj is enclosed in order to submit that a report was submitted to the SEC wherein on the basis of the enquiry made it was found that the writ petitioner was above 21 years of age when she contested the election. Along with the supplementary affidavit, an enquiry report dated 22.10.2013 (Annexure -6) submitted by the Sub Divisional Officer, Kishanganj has been enclosed wherein it was reported that on verification from the School records and the Educational Certificate(s) of the writ petitioner, she had not attained 21 years of age when she contested the election. The writ petitioner had set out her date of birth as per the Voter list and not as per the Focania/ Matriculation Certificate. The Sub Divisional Officer in his report to the SEC further found and reported that there was sharp discrepancies in the date of birth of the petitioner in the Madarsa records and the Government School Records. In order to fortify his submissions, the petitioner has relied on various judgments of this Court as well as the Hon'ble Supreme Court which shall be referred little later.

(3.) Per contra, Mr. Srivastava, has supported the impugned order. It is contended that such dispute can always be resolved by the SEC on the basis of convincing materials placed before it. It is incorrect to say that for resolving such dispute the SEC has to permit the parties to adduce oral evidence. There is no such provision in the Act. The respondent no.5 had produced the Focania/ Matriculation certificate issued by the Statutory authority who is legally obliged to maintain such records. As against this, the writ petitioner produced the transfer certificate issued by the Madarsa. However, in the Migration certificate issued by the Bihar State Madarsa Education Board ( for short 'the Board') which is a statutory body, her date of birth is recorded as 28.11.1993 detailing her registration number etc. Neither the Focania/ Matriculation Certificate issued by the Board nor the Migration Certificate issued by the Board was ever challenged by the petitioner or any attempt was made to get her date of birth corrected in those certificate(s). The SEC, however, with a view to assure itself, called for an enquiry report which was later submitted by the Sub Divisional Officer (Annexure -6). The Sub Divisional Officer after issuing notice to both the parties and affording them an opportunity to produce paper(s)/record(s), reported that in the School records of Government Girls High School, Kishanganj as well as in the Admission Register of Rajkiya Government Girls High School her date of birth was recorded as 20.09.1994. It was so recorded on the basis of the transfer certificate of Class - VIII issued by Sardar Gopal Singh Middle School, Dharmganj, Kishanganj, and produced by the petitioner or her father. Even in the pass certificate issued by the Madarsa Board the date of birth of the writ petitioner was entered as 28.11.1993. The Sub Divisional Officer before submitting the report also verified from the concerned Madarsa and perused the records produced by the Head Maulvi wherein the date of birth of the writ petitioner was recorded as 28.11.1993. In the face of these convincing materials Patna High Court CWJC No.7173 of 2016 dt.20 -09 -2016 placed before the SEC, it was found, and rightly so, that the writ petitioner suffered statutory disqualification. Rebutting the submission of the petitioner made on the basis of the affidavit of her father and the observation in the report of the BPRO that the physical appearance of the petitioner also suggests that she is above 24 years of age, it has been urged that the affidavit was affirmed by the father on the last day of filing of the nomination papers with a view to get her nomination papers accepted. Such affidavit shall have no relevance in resolving the dispute. It is also urged with utmost caution that it is wholly unacceptable to the reason that a young Pardanasin Muslim lady would expose herself to the BPRO for appraisal of her physical appearance to assess her age. It is in the discretion of the authority to call for the report from the higher authority if the report submitted by the BPRO was found not convincing. The discretion so exercised cannot be challenged by the petitioner. He further argued that no reliance can be placed on the voter list or the voter ID for the purpose of ascertaining the date of birth of the elector. The entries in the electoral roll is only a conclusive proof of the fact that he or she is a voter of the constituency. He has also relied on 2014 (4) PLJR 667 (Annu Kumari @ Annu Sharma vs. The State Election Commission, Bihar, through its Commission, Patna & Ors.) in support of his submission.