Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Pat) 1424

2012 (1) PLJR 296
PATNA HIGH COURT
T. Meena Kumari and Ahsanuddin Amanullah, JJ.
Dhanwanti Devi wife of Sri / Mithilesh Prasad, resident Appellant of Village and P.O Reodha, P.S.-Jale, District- Darbhanga ...Petitioner
vs.
The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna, through the State Election Commissioner & Ors…. Respondents
LPA No. 598 of 2008
Decided On: 13.7.2011

Advocates:
Advocate Appeared
For the Appellant : Mr. S.B.K. Mangalam:
For the Respondent: Mr. K.K. Mishra. No. 7

The main legal point established is that the State Election Commission does not have the jurisdiction to decide the citizenship status of an individual elected to the post of Mukhiya under Section 136(1) of the Bihar Panchayat Raj Act, 2006.

Headnote:
State Election Commission - Citizenship Status - The court held that the State Election Commission does not have the power to decide the citizenship status of an individual elected to the post of Mukhiya under Section 136(1) of the Bihar Panchayat Raj Act, 2006. The Commission should direct the individual to get their citizenship declared before the appropriate authority, as the Commission does not have the jurisdiction to decide the question of citizenship.
Fact of the Case:

The appellant, elected as Mukhiya, had her citizenship status questioned based on a complaint. The Single Judge dismissed the writ application, holding that the appellant does not become an Indian Citizen solely by marriage and enrollment in the electoral roll.
Finding of the Court:

The court set aside the Single Judge's order, ruling that the State Election Commission does not have the authority to decide citizenship status and should direct the appellant to get her citizenship declared before the appropriate authority.
Issues: The main issue was whether the State Election Commission had the power to decide the citizenship status of the appellant under Section 136(1) of the Bihar Panchayat Raj Act, 2006.
Ratio Decidendi: The court interpreted Section 136(1) of the Panchayat Raj Act and concluded that the State Election Commission should not decide the question of citizenship, as the law of citizenship governs a particular field.
Final Decision: The court allowed the Letters Patent Appeal and left the question of declaring citizenship upon the appellant.

Order

The present Letters Patent Appeal arise out of order dated 17.7.2008 passed in C.W.J.C. No. 4352 of 2008*.

2. The main contention raised before this Court is that as to whether the State Election Commission is vested with the power to decide the status of the appellant with reference to her Citizenship under Section 136(1) of the Bihar Panchayat Raj Act, 2006 who was elected to the post of Mukhiya, on the basis of a com. plaint lodged by respondent no. 7.

3. The learned Single Judge has dismissed the writ application holding that merely because the appellant had married with an Indian Citizen and set up her house in India and also managed to get herself enrolled in the electoral roll and on the basis of which she came to be elected to the post of Mukhiya she does not become an Indian Citizen.

4. It has been contended before us that the State Election Commission is not a competent authority to decide the Citizenship of the appellant on the basis of a complaint lodged under Section 136(1) of the Bihar Panchayat Raj Act, 2006. The State Election Commission would have only directed the appellant to get her declared with regard to Citizenship before the competent authority as it has been held that the appellant is not a Citizen of India.

5. We had also the occasion to go through the provisions of Section 136(1) of the Panchayat Raj Act which envisaged that a person shall be disqualified for election or after election for holding the post as Mukhiya on the ground that she/he is not a citizen of India. We are of the opinion that in view of provision of Section 136(1) of the Act the State Election Commission should have given a direction to the appellant to get her declared with regard to citizenship from the appropriate authority as the State Election Commission has no power or jurisdiction to decide the question of citizenship. The law of citizenship .governs a particular field.

6. Under the above circumstance, we set aside the order of the learned Single Judge and leave the question upon the appellant with regard to declaration of her citizenship.

7. With the above observation this L.PA stands allowed.

Click Here to Read the rest of this document

Judicial Analysis