IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.1893 of 2018

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Palak Bharti W/o Alok Kumar Ram R/o Village- Siktaul, P.O.- Harpur, P.S.-

Chautarwa, District- West Champaran,Mukhiya, Gram Panchayat -Kolhua

Choutarwa, P.S. Chautarwa, Block- Bagaha-1, District- West Champaran.

... ... Petitioner/s

Versus

1.The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna

2.The District Magistrate Bettiah District- West Champaran.

3.The Sub- Divisional Officer, Narkatiyaganj, District - West Champaran.

4.The Deputy Election OfficerPanchayat-Cum-District Panchayat Raj Officer,

District- West Champaran.

5.The State Election Commission Panchayat, Sone Bhawa, Bir Chand Patel,

Bihar Patna through the Stat

6.The State Election Commissioner, the State Election Commission

Panchayat, Sone Bhawan, Bir Chand P

7.The Secretary, the State Election Commission Panchayat, Sone Bhawan, Bir

Chand Patel, Bihar, Patna

8.The Deputy Secretary, the State Election Commission, Panchayat, Sone

Bhawan, Bir Chand Patel, Biha

9.Nand Kishor Ram S/o late Ramjit Ram R/o Villag- Kolhua Chautarwa, Via-

Ram Nagar, Block- Bagaha- 1, District- West Champaran.

10.The Circle Officer, Gaunaha, District - West Champaran, Bettiah.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. Rohit Kumar Tripathi, Advocate

For the Respondent no.9 : Mr. Vijay Kumar Singh, Advocate

For the State : Mr. Prem Ranjan Rai, AC to SC 7

For State Elections

Commission : Mr. Sanjeev Nikesh, Advocate

Mr. Girish Pandey, Advocate

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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY

C.A.V. JUDGMENT

Date : 05-07-2023

Heard the parties.

2. The petitioner has preferred the present

petition for the following reliefs:

(i) for issuance of an appropriate writ / order /

direction quashing the order dated 08.01.2018 passed by the

respondent-State Election Commissioner, Bihar in case no.

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65/2017 by which he has declared the petitioner as disqualified

under section 136 (2) of the Bihar Panchayat Raj Act, 2006

(henceforth for short ‘the 2006 Act’) and also has directed the

Respondent District Magistrate, West Champaran, Bettiah to

cancel the caste certificate issued to the petitioner;

(ii) further prayer is for issuance of an

appropriate writ / order / direction staying the operation of the

order dated 08.01.2018 and also restraining the Respondent

District Magistrate from canceling the caste certificate of the

petitioner during the pendency of this writ application.

3. The matrix of facts giving rise to the writ

petition is/are enumerated hereinbelow:

4. The petitioner, Palak Bharti contested and

was elected “Mukhiya” of Gram Panchayat Raj Kolhua

Choutarwa in Block- Bagaha-1 in the district of West

Champaran, on the Scheduled Caste female seat.

5. One Nand Kishor Ram (respondent no. 9)

submitted an application before the State Election

Commissioner, Bihar, Patna stating therein that the petitioner

belongs to Scheduled Tribe category as she is daughter of

Budhai Mahto, who belongs to ‘Tharu’ caste which comes

under the Scheduled Tribe category.

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6. The State Election Commissioner referred the

said complaint to the District Magistrate, West Champaran on

02.03.2016 and sought a report on the matter (Annexure-3 series

to the writ petition).

7. Subsequently, the District Magistrate, West

Champaran directed the Sub-Divisional Officer, West

Champaran vide letter no. 364/panchayat/Bettiah dated

30.06.2017 asking him to submit an enquiry report.

8. Pursuant thereto, enquiry was held and the

Circle Officer, Gaunaha vide letter no. 1169 dated 18.09.2017

submitted a report stating that the father of the petitioner,

namely, Budhai Mahto belongs to ‘Tharu’ caste which comes

under the Scheduled Tribe category. It was further informed by

the Circle Officer, Gaunaha that the caste consideration of a

person is on the basis of the caste of the father.

9. The said report was forwarded by the Sub-

Divisional Oficer, Narkatiyaganj vide letter no. 465 dated

18.10.2017 with his own observation that normally the caste of

a person is fixed on the basis of the caste of his/her father.

10. The Collector, West Champaran, Bettiah

thereafter vide letter no. 126/panchayat dated 24.10.2017

submitted its report to the Joint Secretary, State Election

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Commissioner in which it was informed that the enquiry report

of the Sub-Divisional Officer, Narkatiyaganj, Land Reforms

Deputy Collector, Narkatiyaganj is/are being forwarded for

necessary action. The State Election Commission (henceforth

for short ‘the Commission’) thereafter put the petitioner and the

respondent no. 9 on notice and the proceedings in case no. 65 of

2017 started.

11. On 08.01.2018, vide a reasoned order, ‘the

Commission’ came to the conclusion that the father of the

petitioner, Budhai Mahato belongs to ‘Tharu’ caste which comes

under Scheduled Tribe category. Accordingly, the caste of the

petitioner (Palak Bharti) will also be that of the Scheduled Tribe

(‘Tharu’ caste). As such, her election to the post of ‘Mukhiya’ on

a female Scheduled Caste seat is not valid.

12. Thus, under Bihar Panchayat Raj Act, 2006

under Section 136 (2) of ‘the 2006 Act’ the petitioner was

declared disqualified as the ‘Mukhiya’ of Gram Panchayat Raj

Kolhua Choutarwa in Block- Bagaha-1 in the district of West

Champaran and the seat was declared vacated.

13. Simultaneously, the District Magistrate-cum-

District Election Officer (Panchayat), West Champaran was also

directed to take steps for the cancellation of the caste certificate

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of the petitioner (Annexure-8 to the writ petition).

14. Aggrieved, the present petition was preferred

by the writ petitioner.

15. Heard learned counsel for the parties.

16. The case as presented by the learned counsel

for the petitioner is that after the marriage of her mother, Indu

Devi who belongs to Scheduled Caste category with Budhai

Mahto, her father shifted to his wife’s place where the birth of

the two children, namely, Munni Kumari and Palak Bharti

(petitioner herein) took place and accordingly in all the

documents, they were shown as Scheduled Caste.

17. It is his further submission that as per the

Circle Officer’s letter no. 1675 dated 08.12.2016, ‘Gaunaha’ has

been shown as the residence of the father and the petitioner’s

husband’s residence is at Kolhua Choutarwa in Block- Bagaha-

1 in the district of West Champaran from where she was elected.

18. The ground that has been taken by the

learned counsel for the petitioner is that since the marriage of

her mother with her father who belongs to ‘Tharu’ Caste

(Scheduled Tribe) was not accepted by the ‘Tharu’ tribe, he

started living with her mother in the Scheduled Caste colony,

was known as Budhai Mahato and thus, they also became

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Scheduled Caste.

19. The further submission is that all the

educational documents of her as also that of her sister reflects

that they belong to Scheduled Saste category. The further

submission is that her husband belongs to the same caste as that

of her mother.

20. The submission of the learned counsel for the

petitioner is that all these factors were not taken into account

when the order in question was passed by ‘the Commission’

disqualifying her from the post of ‘Mukhiya’ with further

direction to the District Magistrate, West Champaran, Bettiah to

cancel her caste certificate.

21. The last submission is that ‘the Commission’

could not have directed the District Magistrate to take steps for

cancellation of her caste certificte.

22. Per contra, Mr. Sanjeev Nikesh, learned

counsel appearing for ‘the Commission’, submits that once the

report of the District Magistrate, West Champaran on the basis

of enquiry conducted regarding the caste of the petitioner was

with ‘the Commission’; it was duty bound to act in accordance

with law and since there was finding of the said Committee that

she does not belong to Scheduled Caste category, ‘the

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Commission’ rightly passed the order as communicated vide

Complaint No. 65 of 2017 dated 08.01.2018 (Annexure-8).

23. He further submits that pursuant to the

decision of the Hon’ble Apex Court’s order in Kumari Madhvi

Patil vs. Additional Commissioner reported in (1994) 6 SCC

241, now the State Government under the General

Administration Department has constituted a Caste Scrutiny

Committee and the petitioner is well advised to move before it

and get her caste declared by the said Committee. He concludes

by submitting that there is no infirmity in the finding and the

writ petition is fit to be rejected.

24. The State has also also echoed the

submissions put forward by the learned counsel for ‘the

Commission’ and further submitted that there is/are

unimpeachable evidence to show that the petitioner’s father

belongs to ‘Tharu’ caste which comes under the Scheduled

Tribe category and as such, her caste comes under Scheduled

Tribe. Thus, she could not have contested from a seat which was

reserved for Scheduled Caste female. As such, upon complaint

by the respondent no. 9, when the Enquiry Committee came to

the said conclusion, ‘the Election Commission’ was fully

justified in passing the order in question. He concludes by

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submitting that the writ petition be dismissed.

25. Mr. Vijay Kumar Singh I, learned counsel

appearing for the respondent no. 9 submits that the petitioner

belongs to the Scheduled Tribe category, wrongly contested the

election on Scheduled Caste seat and as such he rightly made

complaint before ‘the Commission’ which after the enquiry

report submitted by the District Administration heard the

concerned parties and passed the order which is fully justified

and the writ petition is fit to be dismissed.

26. Having heard the parties at length, this Court

finds force in the submissions put forward by the learned

counsel for ‘the Commission’ as also the State.

27. The admitted fact is that :

(i) the father of the petitioner,

Budhai Mahto belongs to the ‘Tharu’ caste which

comes under the Scheduled Tribe category;

(ii) he married Indu Devi (mother of

the petitioner), who belongs to a caste which comes

under the Scheduled Caste category;

(iii) however, the fact remains that

when her father was a Scheduled Tribe, the two

children of the couple (Munni Kumari and Palak

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Mahto) naturally will come under the Scheduled

Tribe category as the caste of the children will be

determined on the basis of the caste of his/her

father;

(iv) the contention of the petitioner

only that only because her father resided with her

mother in the Scheduled Caste colony, they should

be treated as Scheduled Caste, is nothing but an

imagination of mind which is fit to be rejected.

(v) further as she belongs to ‘Tharu’

caste under Scheduled Tribe category by virtue of

her father being a ‘Tharu’ caste, she was not

entitled to file nomination for a seat which is

reserved for Scheduled caste female ;

(vi) respondent no. 9 objected the

same before ‘the Election Commission’;

(vii) ‘the Commission’, in turn,

sought an enquiry report from the District

Administration;

(viii) once the District

Administration provided the enquiry report, ‘the

Commission’ took up the matter and only after

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hearing all the parties including the petitioner

herein and being satisfied that she belongs to

Scheduled Tribe category and thus could not have

contested from a Scheduled Caste female seat,

passed the order in question;

(ix) the same is fully justified.

28. Further, it has right been submitted by the

learned counsel for ‘the Commission’ that pursuant to the

constitution of the Caste Scrutiny Committee, the petitioner

hasthe liberty to move before it and get her caste declared from

the said committee.

29. In the considered view of the Court, having

chosen to by-pass Caste Scrutiny Committee, the petitioner

cannot expect the Writ Court to come to her rescue when

unimpeachable evidences are there to prove that she belongs to

‘Tharu’ caste under the Scheduled Tribe category by virtue of

being daughter of Budhai Mahto, who admittedly is a ‘Tharu’

caste (Scheduled Tribe category).

30. Further a Bench of this Court (Hon’ble Mr.

Justice Ahsanuddin Amanullah, as his Lordship then was) in a

related matter in C.W.J.C. No. 12879 of 2016 (Shri Devi Vs.

The State of Bihar & Ors. held that the right to contest the

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election is a statutory right and once under the statute, a seat is

reserved for a particular category/caste, only a person belonging

to such category/caste has the right to contest such elections.

31. This Court would like to put on record the

observation made in Shri Devi Vs. State (supra) which is as

follows:

“Having considered the rival

contentions, in the opinion of the Court, though the

order impugned of the District Magistrate,

Nalanda dated 26.07.2016 is based on a report

dated 15.07.2016, copy of which may not have

been given to the petitioner, but for various reasons

to be discussed later on, the Court could not like to

interfere

in the matter. Firstly, the right to contest

an election is a statutory right and once under the

statute, a seat is reserved for a particular

category/caste, only a person belonging to such

category/caste has the right to contest such

election. In the present case, the seat was reserved

for Extremely Backward Caste Female. Thus,

unless the petitioner belongs to such category, she

had no right even to contest the election. The law

with regard to determination of caste is also

settled, where the caste of the person concerned is

based upon his or her birth and not on the family

to which he or she may have been married. In the

present case, the requirement of law for obtaining

a caste certificate is that the petitioner has to show

that she took birth in a family belonging to Teli

caste. The certificate obtained by her based on the

caste of her husband, who may be a Teli, is not a

definite proof of the petitioner also belonging to

the Teli caste. Initially, the form of the petitioner

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was accepted as she had submitted a certificate

obtained from the District of Nalanda which itself

was based on the caste certificate issued to her

husband, and she was allowed to contest the

election and upon being victorious was also given

such certificate and is thus holding the post of

Mukhiya. However, the law also requires that when

a controversy or complaint is made, the issue shall

be decided on the basis of determination of the

caste of a person as per the parental side. In the

present case, initially, there was a report of

the

Sub Divisional Officer, Hilsa which is a detailed

report based on field enquiry recording the

statement of various persons who were examined,

which clearly indicates that the petitioner was

married in an inter-caste marriage and that she

was the daughter of Lakhan Mahto, who belonged

to the Kushwaha caste, which is under the

Backward Class category. Further, pursuant to the

order of this Court dated 04.02.2017, an enquiry

having been held by a team of five officers headed

by the Sub Divisional Officer, Sadar, Gaya, the

statement of various witnesses, including the

Mukhiya, having been recorded and the so called

brother of the petitioner namely, Deepak Kumar

being also examined and thereafter the father of

Deepak Kumar i.e., Lakshman Prasad despite

being asked to be present in the enquiry, and two

dates being fixed and attempts made to interview

him, he was not available and in fact had locked up

his house and the whole family had moved out.

Even the report of the local Mukhiya who had

initially recommended for issuance of the caste

certificate to the petitioner has stated that only on

the basis of what had been told to him by

Lakshman Prasad, he had made recommendation

but later on, he was made aware that the claim of

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Lakshman Prasad that he had a first wife i.e.,

Daha Devi, who is the mother of the petitioner,

appears to be suspicious. Further, the witnesses

who knew Lakshman Prasad for about 15-20 years

have stated that never before they had either

heard

about or seen the petitioner or her mother.

Moreover, a report has also been submitted by the

Sub Divisional Officer, Tekari, Gaya which also

states, on the basis of the enquiry made after

recording the statement of the villagers, that

Lakshman Sao (Prasad) was the son of late Jethan

Sao, who had two wives and further that Lakshman

Sao (Prasad) had never married twice. Thus, in

view of the fact that Deepak Kumar, whom the

petitioner claims to be the step-brother had stated

that from his mother there were six sisters and two

sons and that his mother was not the mother of the

petitioner, the evidence that Lakshman Sao

(Prasad) had no second wife, the claim of the

petitioner cannot be sustained. The reason why the

Court is persuaded not to interfere in the matter is

primarily on the documentary evidence brought on

record on behalf of the respondent no. 5 in his

counter affidavit, copy of which was served on

learned counsel for the petitioner on 23.02.2017

itself. However, till date, no rejoinder to the same

has been filed and thus, the facts stated and the

copies of document brought on record, not having

been controverted, stand admitted.

Having considered the matter

in totality, in view of the overwhelming evidence to

show that the petitioner is daughter of Lakhan

Mahto and not Lakshman Prasad and Lakhan

Mahto belonging to the Kushwaha caste, which

comes under the Backward Caste and the

petitioner claiming himself to be Teli, which comes

under the Extremely Backward Caste category, this

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Court is of the opinion that the petitioner has not

been fair and clean in her conduct. The other

aspect which also goes against the conduct of the

petitioner is the fact that once having procured a

caste certificate in the District of Nalanda in

January, 2016, she again applied for and got a

caste certificate on 05.07.2016 in the District of

Gaya and after three months thereafter, i.e., on

13.10.2016, again obtained a caste certificate from

the District of Gaya, though from a different Block,

such repeated attempt of the petitioner to get one

caste certificate after the other also indicates that

the petitioner does not belong to the caste to which

she claims i.e., Teli. The Court having come to a

prima facie conclusion that there are

overwhelmingly admissible records to indicate that

the caste of the petitioner is Kushwaha and not

Teli, would not interfere in the matter on a purely

technical ground which would result in the

petitioner continuing on the post of Mukhiya,

which was reserved for a female candidate of the

Extremely Backward Caste category to which the

petitioner does not seem to belong.

For the reasons aforesaid, this

Court is not inclined to invoke its extraordinary

prerogative writ jurisdiction under Article 226 of

the Constitution of India in the present matter.

Accordingly, the writ petition is

dismissed.

The stay granted under order dated

04.02.2017 stands vacated.”

32. Aggrieved, the said writ petitioner, Shri Devi

preferred LPA 703 of 2017 and the Division Bench vide an

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order dated 08.05.2017 chose not to interfere with the writ

Court’s order which read as follows :-

“Having heard learned

counsel for the parties, we find that in the

matter of cancellation of caste certificate of

the petitioner interference by the Writ Court

was not called for and the learned Writ

Court has rightly refused to interfere into the

matter as it was based on a finding of fact

recorded in an enquiry conducted.

That apart now with regard

to the social status of the petitioner, in case

the petitioner has any grievance, the

petitioner should raise the issue before the

Caste Scrutiny Committee constituted by the

State Government in accordance to the law

laid down by the Supreme Court in the case

of Kumari Madhuri Patil ys. The Additional

Commissioner Tribal Development and

others (1994) 6 SCC 241 and in case the

petitioner raises a complaint or files a

representation before the Scrutiny

Committee, the Scrutiny Committee shall

proceed to decide the claim of the petitioner

and determine the social status of the

petitioner in accordance to law after hearing

all concerned within a period of one month.

That apart the prayer made

by the petitioner for restraining the State

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Election Commission from proceeding in the

matter, the same cannot be considered at this

stage as the State Election Commission has

already ceased of the matter and has not

passed any final order in a proceeding

pending before it under Section 136(2) of the

Gram Panchayat Raj Act. The petitioner's

cause of action for the same will accrue

after final order was passed by the State

Election Commission. At this stage, this

question need not be looked into.

In case a favourable decision

is taken by the Caste Scrutiny Committee,

the petitioner shall have the liberty to

approach the State Election Commission for

reconsideration.

With the aforesaid

observations and liberty to the petitioner, the

appeal stands disposed of.”

33. Thus the Division Bench clearly observed

that in case of grievance, the petitioner can move before the

Caste Scrutiny Committee.

34. Having been convinced with the averments

put forward by ‘the Commission’ and the State and the

facts/documents on record, this Court do not find any merit in

the petition.

35. The petitioner, if so advised, always have

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liberty to approach the Caste Scrutiny Committee for

declaration of her caste and the consequences will automatically

follow. However, till the Caste Scrutiny Committee takes a

decision, the enquiry report submitted by the District

Administration (which led ‘ the Commission’ to pass the order)

will hold ground.

36. The writ application stands dismissed.

Jagdish/Kiran/-

(Rajiv Roy, J)

AFR/NAFR AFR

CAV DATE 28.06.2023

Uploading Date 05.07.2023

Transmission Date