The importance of providing timely and authentic evidence to support claims, and the burden of proof on the appellant.

NAVIN SINHA, J.

Heard learned counsel for the appellant, the State Election Commission and for respondent no. 11.

2. The present Appeal arises from order dated 10.01.2013 dismissing C.W.J.C. No. 3388 of 2012 preferred by the appellant affirming the order of the State Election Commission of 18.01.2012, on a complaint by respondent no. 11 that the appellant was short of 21 years of age (18 years 4 months 22 Days) when she filed her nomination for election to the post of Mukhiya and thus ineligible to contest.

3. The appellant was a candidate for the post of Mukhiya in the Gram Panchayat Bhagwanpur Desua, P.S. & Block-Ujiyarpur, District-Samastipur at the Panchayat Elections held in the year 2011. The complaint was filed by respondent no. 11 under the provisions of Section 136 of the Bihar Panchayat Raj Act, 2006.

4. Learned counsel for the appellant submitted that the order by the State Election Commission was passed in haste behind her back. She was not heard denying adequate opportunity of defence, indicative of malice in law. The reply submitted by her lawyer had not been considered, it vitiates the final order as excluding relevant materials from consideration. The consequences for the appellant were serious of removal from an elected post. Her election was the will of the people and the Commission should have prudently granted her at least some reasonable adjournment on grounds of illness instead of a single adjournment.

5. Without prejudice to the same, it was submitted that the appellant had produced evidence that her date of birth was 10.08.1987 as mentioned in her School Leaving Certificate which was based on the first entry in school by her at the primary level. The date of birth 10.06.1992 mentioned in her Matriculation Certificate was an error and she had moved the authorities for correction. If the evidence produced by the appellant was not sufficient, the authorities should prudently have made further inquiries with regard to her age in view of the serious consequence. It was lastly submitted that the date of birth first mentioned in the primary school register, had to be given precedence.

6. Counsel for the respondents have invited our attention to the Admit Card issued to the petitioner for the Matriculation Examination leading to grant of Matriculation Certificate on 28.05.2008. It is mentioned at the top of the Admit Card that it was to be filled by the candidate in hand. There is no denial the appellant did not do so. She herself testified her date of birth as 10.06.1992 both in letters and words. The State Election Commission has noticed that no evidence in support of the claim for correction of the date of birth in the Matriculation Certificate having been made was produced before it. On the contrary, the appellant took the first step for correction only on 27.01.2012, after the order of the State Election Commission as apparent from her application submitted to the Bihar School Examination Board. According to the respondents these are more than sufficient evidence of an incorrect plea being taken by the appellant to retain a benefit wrongly obtained by her to the post of Mukhiya.

7. This Court, in exercise of judicial review, is primarily concerned with the decision making process and not the merits of the decision. The merits may be examined only in cases of arbitrariness, perversity etc. The first date of hearing fixed before the Commission was 20.12.2011. The appellant sent a fax message of her illness. The nature of illness was not disclosed. An inquiry was held with regard to the genuineness of the certificate and not the ailment. Adjournment was granted to 18.01.2012, nearly one month. On the latter date she again sent a fax message that she continues to be ill not supported by any medical evidence. The Commission opined that she was seeking unnecessary adjournment only to prolong the proceedings. On both occasions the appellant did not produce any medical evidence for the nature of the ailment. Even