Dhanwanti Devi Vs. the State Election Commission (Panchayat) and ors. - Court Judgment

Excerpt:
- - petitioner's father is a nepali resident as well as its citizen. all has been well and no question was ever raised with regard to her citizenship. the issue of citizenship cannot be decided by the state election commission while exercising power under the act and that the petitioner was born in motihari at her maternal grand father's place is good enough ground to hold that she is an indian by birth. ajay kumar tripathi, j.1. while exercising power under section 136(2) of the bihar panchayat raj act, 2006 (hereinafter referred to as 'the act') vide order dated 22.2.2008 contained in annexure 10 the state election commissioner has disqualified the petitioner from holding the post of mukhiya of gram panchayat reodha in the district of darbhanga. this order has been challenged therefore in the present writ application.2. some basic facts are not under dispute. petitioner's father is a nepali resident as well as its citizen. the mother is alleged to be the woman of indian origin married to petitioner's father. subsequently after matrimony it is stated that she too acquired nepali citizenship voluntarily. petitioner after coming of age entered into a matrimony with one mithilesh prasad in.....

Judgment:

Ajay Kumar Tripathi, J.

1. While exercising power under Section 136(2) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as 'the Act') vide order dated 22.2.2008 contained in annexure 10 the State Election Commissioner has disqualified the petitioner from holding the post of Mukhiya of Gram Panchayat Reodha in the district of Darbhanga. This order has been challenged therefore in the present writ application.

2. Some basic facts are not under dispute. Petitioner's father is a Nepali resident as well as its citizen. The mother is alleged to be the woman of Indian origin married to petitioner's father. Subsequently after matrimony it is stated that she too acquired Nepali citizenship voluntarily. Petitioner after coming of age entered into a matrimony with one Mithilesh Prasad in the year, 1988. She was supposed to be of 18 years of age. Based on the matrimony and her residence her name was entered into the electoral roll of Jale Legislative Assembly. According to her, her name figures in the electoral roll right from 1999 and she has participated in the election process on many a occasion. She had also stated that her maternal house is in the district of East Champaran. She was born in the house of her Nana. All has been well and no question was ever raised with regard to her citizenship. The problem started after she contested the election for the post of Mukhiya and won the same.

3. As per the provision under section 136(1)(a) of the Act the election to the post of Mukhiya can be challenged on the question of citizenship. Taking advantage of this provision armed with certain evidence and material respondent No. 7, namely, Abdul Haque filed a complaint before the State Election Commissioner. After preliminary examination of the matter Case No. 22 of 2000 came to be registered. The perusal of annexure-10 would show that the matter has been heard on many a occasion, evidence were adduced from both the sides, the authenticity of the documents has been tested by getting the same verified from the issuing authority and thereafter final order dated 22.2.2008 came to be passed disqualifying the petitioner on the ground of citizenship. The validity of the said order is under challenge which has to be decided by this Court.

4. Several submissions have been made on behalf of the petitioner that the decision of the State Election Commissioner is mere on conjecture or surmises. The Election Commissioner has rejected the evidence produced by the petitioner cursorily. The issue of citizenship cannot be decided by the State Election Commission while exercising power under the Act and that the petitioner was born in Motihari at her maternal grand father's place is good enough ground to hold that she is an Indian by birth.

5. Learned Counsel appearing on behalf of the respondent however has focused on the findings of the order passed by the State Election Commissioner itself. The order according to him is detailed one and self speaking. Petitioner has herself to blame if the Commissioner came to pass the order against her. She produced two evidences in support of her claim that she was an Indian Citizen, one was copy of birth certificate and another was the transfer certificate issued by the school. But it has already been categorically found after verification that there is no primary evidence with regard to the birth as register or original record is not available as exhibit. Only Xerox copy of birth certificate has been produced. Not only this to make it worse the so called transfer certificate of school was found to be a forged. The emphasis thereafter shifted more on the electoral roll and the voter identify card.

6. The basic evidence having not been found to be in order in support of the claim of the petitioner the State Election Commissioner had no option but to disqualify her. Not only this the private respondent had brought enough evidence to show that it is not in dispute that the father and mother of the petitioner are Nepalis citizens and she was brought up in Nepal. Mere matrimony therefore could not confer citizenship upon the petitioner.

7. This Court had occasion to deal with similar matters in the case of Vijoy Kumar Chaudhary v. The State Election Commissioner and Ors. reported in 2008(2) PLJR 755 and in the case of Narendra Narayan Das v. The State of Bihar and Ors. reported in 2008(2) BBCJ 731. The provision of Nepalis Citizenship Act had been dealt with in detail in the two decisions and they have bearing even in this case. Merely because the petitioner married an Indian Citizen, set up house in India, also managed to get herself enrolled in the electoral roll based on which she came to be elected to the post of Mukhiya she does not become an Indian citizen.

8. Prima facie the material and the evidence is loaded against her and if based on the same the impugned order has came to be passed, this Court does not find any legal or factual infirmity in the same. There is no merit in the contention of learned Counsel for the petitioner.

This writ application is accordingly dismissed.