SHIVA KIRTI SINGH, J.

1. The appellant was declared elected to the post of Mukhia of Mahinathpur Gram Panchayat in the district of Madhubani (Bihar) in the last election. Soon thereafter a complaint case bearing no. 2 of 2007 was filed before the State Election Commissioner, Bihar. That case was heard on several dates, the State Election Commissioner allowed the parties to produce evidence and also got the matter enquired by the District Magistrate, Madhubani who submitted a report to the State Election Commissioner against the appellant that he had acquired Nepali Citizenship when he attained the age of 17 years and his father and one of his brothers were also citizens of Nepal. Considering all the evidence and materials, the State Election Commissioner by order dated 25.5.2007, passed in exercise of power under section 136 (i)(a) of the Bihar Panchayat Raj Act (hereinafter referred to as the Act) disqualified the writ petitioner/appellant from holding the post of Mukhia. The said post was ordered to be treated as vacant and during the pendency of the writ petition, respondent no. 4 has been elected to that post. The writ petition was dismissed by the order under appeal dated 11.4.2008.

2. The main issue is whether the order dated 25.5.2007 passed by the State Election Commissioner is a legal and valid order or not.

3. The case of the appellant/writ petitioner is that he is citizen of India because his ancestors including his grand-father were citizens of India. He has claimed that his fore-fathers were resident of a village in the district of Muzaffarpur (Bihar) and his ancestors had settled at his present village in district of Madhubani. The appellant has placed reliance upon the fact that on attaining majority his name figured in the voter list of the village, Mahinathpur, district- Madhubani for which he was issued voter identity card and he has also received education in India. It is also the case of the appellant that documents, if any, showing that he was granted citizenship of Nepal on his application, are forged and fabricated documents.

4. The order passed by the State Election Commissioner under issue as well as the judgment under appeal proceed on the basis of certain facts emerging from evidence including inquiry report by the District Magistrate. The officials verified the facts by visiting the concerned district authorities of Dhanusa situated in Nepal and it has emerged as a fact that the appellant acquired Nepali citizenship in Bikram Samvat 2034-7-14 at the age of 17 years by filing application and his citizenship number is available on record. It is also a verified fact that father of the appellant Yogendra Prasad Chaudhary is a voter of Janakpur town in Nepal. His address and voter number have also been mentioned in the order passed by the State Election Commissioner. These facts appear to have been verified and have also been certified by the concerned district authorities of Dhanusa (Nepal).

5. The Writ Court has examined the provisions of the Nepalese Citizenship Act 1964 and has quoted Section 9 thereof which provides that the citizenship of any Nepali citizen shall automatically lapse on his acquiring citizenship of any foreign country of his own will. It further provides that in case any person becomes a citizen of a foreign country as well as of Nepal at the same time, he may loose the citizenship of either country within five years of reaching 16 years of age. In case he does not do so, his Nepali citizenship shall automatically lapse on the expiry of this time limit. The writ court has held that on the basis of evidence available on record it is clear that the appellant opted for citizenship of Nepal at the age of 17 years as per certificate of Nepali officials issued during enquiry in the present case. The citizenship certificate issued in relation to the appellant was found genuine on comparison with the entry in the concerned Ledger.

6. Learned counsel for the appellant raised the sam