CAV JUDGMENT

Date : 05-04-2019

The instant writ petition has been filed by the petitioner for quashing the order dated 12.04.2018 passed by the respondent no.3 in Case No. 70 of 2017 by which he has declared the petitioner as disqualified under Section 18(2) of the Bihar Municipal Act, 2007 (for short ‘Municipal Act, 2007’) on the ground that she was elected without completing the age of 21 years.

2. The facts of the case, briefly stated, are that the respondent no.2 issued a notification for election of the Patna Municipal Corporation, Patna in the year 2017. In contemplation to the notification, the petitioner being a member of Scheduled Caste filed her nomination paper from Ward No. 19 for the post of Ward Councilor. In the voter list of 2017 of Ward No.19, name of the petitioner was mentioned at serial no. 3213 and her age was mentioned as 21 years. On the basis of the said voter list, she was also issued voter identity card no. AFS3511094. At the time of filing of nomination paper, no objection from any corner was made. In scrutiny, her nomination paper was found in order. She contested the election of the territorial constituency no.19 and was declared as returned candidate.

3. After declaration of result, the respondent no.10 Smt. Soma Choudhary had filed an application in the form of election petition before the State Election Commission, Bihar, Patna alleging therein that the petitioner has been elected in the municipal election even though she had not attained the age of 21 years, which is against the provisions of the Municipal Act, 2007.

4. On the basis of the said complaint, Case No. 70 of 2017 was initiated before the State Election Commission, Bihar, Patna. In the said case, the petitioner took a plea that her age was 21 years on the date of nomination and she was duly qualified. She had also appended birth certificate, school ID Card, Voter ID card, Adhar Card, PAN Card etc. as part of her reply.

5. After hearing the parties, the State Election Commissioner, vide impugned order dated 12.04.2018 disqualified the petitioner from the post of Ward Councilor of Ward No.19 of Patna Municipal Corporation under Section 18(2) of the Municipal Act, 2007.

6. Mr. Shri Prakash Srivastava, learned counsel appearing for the petitioner submitted that while passing the impugned order dated 12.04.2018 the respondent no.2 has completely ignored and discarded the relevant materials, which were sufficient to prove that the petitioner was not underage at the time of filing her nomination. He submitted that the disputed question of fact could not have been adjudicated by the respondent no.2 after the petitioner had been declared elected as Ward Councilor. He contended that the burden of proving that the returned candidate had not attained the age of 21 years on the date of filing nomination was on the respondent no.10, who had filed the complaint and since she had failed to prove by leading cogent evidence, the election of the returned candidate could not have been set aside by the respondent no.2. He further contended that since the complainant had failed to place any evidence before the court to show that entry of age in the matriculation certificate had been made on the basis of information furnished either by the parents or by anyone else having special knowledge about the date of birth of the petitioner, the entry of the date of birth in the matriculation certificate have no evidentiary or probative value. In support of his submission, he has placed reliance on the decision of the Supreme Court in Birad Mal Singhvi Vs. Anand Purohit, since reported in (1988) Supp. 2 S.C.R. 1, Brij Mohan Singh Vs. Priya Brat Narain Sinha, since reported in 1965(3) SCR 861 and an unreported decision of this Court in Kamta Kumari Vs. State of Bihar (CWJC No. 1632 of 2013)

7. Per contra, Mr. Amit Srivastava, learned counsel appearing for the respondent nos. 2 and 3 submitted that the order impugned has been passed by the respondent no.2 after hearing the pa