ORAL JUDGMENT

24-04-2023 Heard learned counsel for the petitioner, learned counsel for the State Election Commission and learned counsel appearing for the Private Respondent.

2. The learned counsel for the petitioner submits that the dispute in the present case relates to disqualification under Section 136(1)(b) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the ‘Act’). It is next submitted that the State Election Commission under Section 136(2) of the Act has jurisdiction to decide the issue of disqualification.

3. The learned counsel for the petitioner submits that petitioner is aggrieved by an order dated 03.11.2022 passed by the State Election Commissioner, Bihar (Respondent No.2) in Case No.04 of 2022 (Seema Kumari vs. Arti Kumari) communicated to the petitioner by Respondent No.3 vide his Memo No.04 dated 03.11.2022, whereby the Respondent No.2 declared the petitioner disqualification to hold the post of Mukhiya of Gram Panchayat Raj, Ghoshwari on the ground that she had contested the election even before attaining the age of 21 years in breach of Section 136(1)(b) of the Act. 4. The learned counsel for the petitioner submits that the order passed by the Respondent No.2 does not take into consideration the judgment rendered by the Hon’ble Supreme Court in the case of Brij Mohan Singh vs. Priya Brat Narain Sinha and others reported in A.I.R. 1965 SC 282 and also the order of the Hon’ble Supreme Court in the case of Birad Mal Singhvi vs.

Anand Purohit reported in A.I.R. 1988 SC 1796.

5. The learned counsel next submits that the State Election Commission (hereinafter referred to as S.E.C.) has taken into consideration the judgment of the Hon’ble Supreme Court in the matter of Juvenile Justice Act for determination of age, which in the present case is not applicable nor the Respondent No.2 has considered the case of Sharda Devi vs. the State of Bihar and others reported in 2019(3) P.L.J.R. 534. The learned counsel for the State Election Commission draws the attention of the Court to Para-23 of the Judgment dated 10.08.2022 in C.W.J.C. No. 6191/2022 (Mamta Kumari Vs. The State of Bihar & Ors.) to submit that the Judgment in the case of Sharda Devi Vs. The State of Bihar has been held to be per incuriam.

6. The learned counsel for the petitioner next submits that an issue which requires consideration by this Court is whether the matriculation certificate can be treated to be an unimpeachable document based on which the State Election Commission could have arrived at a conclusion deciding the case of the petitioner authoritatively holding that petitioner had not reached the age of 21 years, as such, was ineligible to contest the Panchayat Election. 7. The learned counsel next submits that the said submission i.e. whether matriculation certificate is an unimpeachable document or not has been made, as this Court in the case of Rajani Kumari vs. the State of Bihar reported in 2019(6) B.L.J. (1) has held that the State Election Commission can decide only such cases with respect to dispute relating to election which are not disputed and is based on unimpeachable document.

8. The learned counsel next submits that the Hon’ble Supreme Court in the case of Brij Mohan Singh vs. Priya Brat Narain Sinha and others reported in A.I.R. 1965 SC 282 has observed in Paragraph-20 of the judgment that:-

“20. An objection was faintly raised by Mr Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an a