The jurisdiction of the Commission to decide contested matters after the election process was over and the need for an election petition for disputes regarding age eligibility under the Bihar Panchayat Raj Act.

1. Heard learned Counsel for the petitioner, learned Counsel for the Commission and State. None appears on behalf of respondent no. 5 despite valid service of notice.

2. The petitioner and respondent no. 5 were contesting candidates for the post of Mukhiya in Gram Panchayat, Padaria, District Madhepura. They both filed nominations. No objections were filed to the nomination of the petitioner. After scrutiny the nominations including that of the petitioner were accepted. The elections were held. The petitioner was the winning candidate and Respondent No. 5 lost to the petitioner. The petitioner was therefore declared as the elected Mukhiya.

3. The respondent no. 5 then filed a complaint before the Commission on 21.8.2006 that the petitioner was short of the age of 21 years and therefore ineligible under Sec. 136(1)(b) proviso of the Bihar Panchayat Raj Act (hereinafter called the Act). The petitioner was noticed and filed her reply. While respondent no. 5 relied upon an Admit Card of the petitioner issued by the Bihar School Examination Board to contend that her date of birth was 6.5.1985 and therefore the petitioner was short of age by 19 days, the petitioner relied on documentary evidence including the voters list, the voters identity card, the certificate issued by the Bihar School Examination Board, the certificate issued by the Hospital at the time of delivery of her child and her horoscope to contend that she fulfilled the requisite age of 21 years.

4. The official respondents stated that the nomination of tho petitioner was accepted in view of her age mentioned in the voters list.

5. The Commission by order dated 27.10.2006 arrived at a determination that different dates of birth of the petitioner appear to have surfaced at different times and therefore the Commission accepting her date of birth as 6.5.1985 as certified by the Bihar School Examination Board produced by respondent no. 5 finds her short by the requisite age of 21 by 19 days. The election of the petitioner was thus set aside.

6. Learned Senior Counsel Shri Jha submitted that respondent no. 5 was herself a contesting candidate. She did not file any objections to the nomination of the petitioner. The respondent therefore acquiesced on the stand of the petitioner that she was of the requisite age. The subsequent allegations were the ire of a defeated candidate. In any event of the matter, in view of the materials furnished by the parties before the Commission there was a serious dispute with regard to the age of the petitioner. The petitioner was seriously contesting the allegation of her ineligibility. The disqualification alleged against the petitioner under Section 136(1)(b) proviso was a disqualification prior to the election. The proper remedy for respondent no. 5 was therefore an election petition and not the present writ proceedings. He next relied upon a Division Bench judgment of this Court in 1958 BLJR 177 (Raghuni Nayer vs. District Magistrate, Darbhanga & Ors.) and 2007(1) PLJR 617 (Kahkashan Parween vs. State of Bihar & Ors.).

7. Learned Counsel for the Commission supported the impugned order to submit that the Commission had arrived at determination on the basis of confusion created by diverse materials placed before the Commission with regard to the age of the petitioner to support the impugned order.

8. This Court has considered the submissions on behalf of the parties. Respondent No. 5 has chosen not to oppose the application. This Court finds that there was competing evidence before the respondent Commission with regard to the age of the petitioner. The petitioner was seriously disputing the allegation of her being underage on documentary evidences. Respondent No. 5 was a contesting candidate and had not objected to the nomination of the petitioner as being ineligible. The impugned order of the Commission itself acknowledges the serious dispute of age and the competing materials placed before it. It then arrives at a determination on