Patna High Court
Kaushmi Devi @ Kousami Devi vs The State Of Bihar on 26 June, 2025
Author: Alok Kumar Sinha
Bench: Alok Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1682 of 2025
======================================================
Kaushmi Devi @ Kousami Devi Wife of Shri Suresh Manjhi, Resident of
Village- Dhanavan, Post- Baghdaha, PS- Bodhgaya, District- Gaya, Bihar
(Ex- Deputy Chief Councillor, Bodh Gaya Nagar Parishad, Bodh Gaya).
... ... Petitioner/s
Versus
1. The State of Bihar through Additional Chief Secretary, Panchayati Raj
Department, Government of Bihar, Patna.
2. District Magistrate-cum-District Election Officer (Panchayat), Gaya.
3. The District Panchayati Raj Officer, Gaya.
4. The Sub Divisional Officer, Gaya Sadar-cum-Election Officer, Nagar
Parishad, Bodh Gaya, District- Gaya.
5. The Block Development Officer-cum-Assistant Election Officer, Nagar
Parishad, Bodh Gaya, District- Gaya.
6. The Civil Surgeon-cum-Chief Medical Officer, Gaya.
7. The State Election Commissioner, Bihar, Patna State Election Commission,
Patna.
8. Ashok Kumar Manjhi Son of Late Amirak Manjhi, Resident of Village and
Post Office- Amwan, Police Station- Bodh Gaya, District- Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amit Shrivastava, Sr. Advocate
Mr. Ranjeet Choubey, Advocate
For the SEC : Mr. Ravi Ranjan, Advocate
For Respondent No.8 : Mr. Inderdeo Prasad, Representative
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
CAV JUDGMENT
Date: 26-06-2025
Heard the parties.
2. The petitioner in the present writ application has
prayed for quashing the order dated 17.12.2024 (Annexure-P-4)
passed in Case No.15 of 2023 (Ashok umar Manjhi vs. Kaushmi
Devi & Ors.) by the respondent State Election Commission, which
has been further communicated vide Memo No.15 of 2023 /4364
dated 17.12.2024, by which the Respondent State Election
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Commission, in purported exercise of power under Section 18(2)
of the Bihar Municipal Act, 2007, has disqualified the petitioner
from holding the duly elected post of Deputy Chief Councillor,
Gaya Nagar Parishad, Bodh Gaya under Section 18(1)(m) of the
said Act. The petitioner has questioned the decision of the
Respondent State Election Commission on the ground that the
complaint filed by Ashok Kumar Manjhi (respondent no.8) was
not maintainable in law and ought not to have been entertained
because the allegation levelled therein was not based on any
unimpeachable material. In fact as per the learned Senior Counsel
for the petitioner, the complaint was illegally entertained and
disputed questions of fact were decided by the Respondent State
Election Commission which was beyond the remit of the
jurisdiction of the Respondent State Election Commission,
exercising power under Section 18(2) of the Bihar Municipal Act,
2007. The learned Senior Counsel appearing on behalf of the
petitioner has also questioned the finding given by the Respondent
State Election Commission in the impugned order on merit on the
ground of being incorrect and contrary to the weight of the
materials available before him. (Although no such prayer has been
made in paragraph-1 of the writ application).
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3. The petitioner has further prayed that after setting
aside the order dated 17.12.2024 (Annexure-P/4) passed in Case
No.15 of 2023, the petitioner be reinstated to the post of Deputy
Chief Councillor, Gaya Nagar Parishad, Bodh Gaya which she was
serving before the impugned order was passed by the Respondent
State Election Commission.
4. While advancing argument, learned Senior Counsel
Mr. Amit Shrivastava appearing for the petitioner submitted that
when the State Government notified the constitution of Body Gaya
Nagar Parishad/Municipal Council in the year 2022, the State
Election Commission conducted the election in the said Nagar
Parishad in the year 2022 and after following all the due
procedure, the petitioner was duly elected as the Deputy Chief
Councillor of Body Gaya Municipal Council after defeating the
wife of private respondent no.8 Ashok Kumar Manjhi. He further
submits that when the petitioner was lawfully serving as the
Deputy Chief Councillor of the Bodh Gaya Municipal Council, a
complaint was filed by Ashok Kumar Manjhi (respondent no.8)
husband of the candidate who had lost the election to the
petitioner. This complaint was instituted by respondent no.8 before
the Respondent State Election Commission with a prayer for
disqualifying the petitioner from her post under Section 18(1)(m)
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of the Bihar Municipal Act, 2007. In the said complaint, it was
alleged that the petitioner had given false information about the
birth of her third child at para-9 of "Prapatra-Ga", which was the
candidate's Bio-data Form. Based on the said complaint a case was
registered as Case No.15 of 2023 by the State Election
Commission. The said complaint has been brought on record as
Annexure-P-1 to the writ application. In this complaint filed by
respondent no.8, as per the learned Senior Counsel appearing for
the petitioner, it was specifically alleged that one female child
named Swati Kumari was born to the petitioner after the cut of
date i.e. 04.04.2008 and one son and one daughter were born
before the said cut of date and hence the petitioner should be
disqualified from her elected post in terms of Section 18(1)(m) of
the Bihar Municipal Act, which provides that a person shall be
disqualified even after election from holding the post as member
of the municipality if such person is found to be having more than
two children after the cut of date of 04.04.2008.
5. Learned Senior Counsel appearing for the petitioner
further submits that even though a compliant was filed by
respondent no.8 before the Respondent State Election Commission
for disqualification of the petitioner from holding the post of
Deputy Chief Councillor of Bodh Gaya Municipal Corporation on
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the allegation of third child being born after the cut of date i.e.
04.04.2008
, but the said complaint was not supported or
accompanied by any unimpeachable material to establish the
allegation levelled in the complaint and hence, as preliminary
issue, the same ought to have been outrightly rejected as not
maintainable in light of the law laid down by the Full Bench of
this Court in the case of Rajani Kumari vs. The State Election
Commission reported in 2019 (4) PLJR 673.
6. Learned Senior Counsel appearing for the petitioner
further submitted that responding to the allegations levelled in the
complaint (Annexure-P-1), the petitioner had filed a reply before
the Respondent State Election Commission on 22.11.2023,
wherein the petitioner had challenged the maintainability of the
complaint on the ground that the same should not be entertained as
it is not supported or accompanied by any unimpeachable material
to establish the allegation levelled in the complaint and that the
allegations levelled in the complaint since were totally incorrect,
therefore, these disputed questions of fact could not be gone into in
a summary proceeding as contemplated under Section 18(2) of the
Bihar Municipal Act, 2007. In nutshell, the learned Senior Counsel
for the petitioner submits that the sum and substance of the reply
filed by the petitioner before the Respondent State Election
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Commission was that since the complaint was not supported by
any unimpeachable evidence to establish the allegations levelled in
the complaint, therefore, it was beyond the remit of the jurisdiction
of Respondent State Election Commission to entertain such a
complaint which would require evidence for deciding the disputed
questions of fact. Learned Senior Counsel, therefore, submits that
the issue of maintainability of complaint filed under Section 18(2)
of the Bihar Municipal Act, 2007 was specifically raised before the
Respondent State Election Commission and the same should have
been decided, at the threshold, as a preliminary issue as it involved
an issue relating to jurisdictional fact.
7. Learned Senior Counsel for the petitioner emphasized
that since the allegations levelled in the complaint were totally
incorrect and was specifically disputed by the petitioner in her
reply, therefore, these disputed questions of fact required evidence
and such nature of allegations could only have been decided by
way of election petition before competent Civil Court under
Section 476 of the Bihar Municipal Act, 2007, but instead of filing
an election petition, the respondent no.8 had mischievously chosen
to invoke Section 18(2) of the Bihar Municipal Act for
disqualifying the petitioner from her post under Section 18(1)(m)
of the said Act.
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8. The learned Senior Counsel for the petitioner,
therefore, submits that the entire proceeding conducted by the
Respondent State Election Commission was wholly without
jurisdiction and that it was not within the remit of his jurisdiction
to inquire into the disputed questions of fact which could only
have been decided after proper collection of evidence.
Consequently, the impugned order passed by the State Election
Commission by which the petitioner has been disqualified from
holding the post of Deputy Chief Councillor, Bodh Gaya
Municipal Council is totally illegal and nonest in the eye of law.
9. Per contra, the Respondent State Election
Commission has submitted that while it is true that the issue of
maintainability raised by the petitioner before the Commission was
not decided as preliminary issue, but he submits that the issue of
maintainability has been decided in the impugned order dated
17.12.2024 in paragraph-6 of the said order and thereafter finding
has been given by the respondent Commission on merits of the
matter. The learned Counsel appearing for respondent Commission
further submits that it is not correct on part of the petitioner to
submit that the case has not been decided by the respondent
Commission on unimpeachable evidence/material, but on the basis
of evidence collected during the proceeding. The learned counsel
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for the Commission also submits that while passing impugned
order dated 17.12.2024 the Respondent Commission has not
decided disputed questions of fact and hence the impugned order
passed by the Respondent Commission was perfectly legal and
justified. As per the Respondent commission, it is beyond any
shadow of doubt that the conclusion reached at by the Respondent
Commission with regard to the issue raised by the complainant
that the petitioner’s third child was born after 04.04.2008 is correct
and based on cogent evidence. He further submits that since it is
now established that the petitioner’s third child was actually born
after 04.04.2008 (the actual date of birth after 04.04.2008 being
irrelevant) the petitioner was rightfully disqualified from holding
the post of Deputy Chief Councillor as per Section 18(1)(m) of the
Bihar Municipal Act, 2007.
10. Mr. Indradeo Prasad who was appearing in the
capacity of being the representative of respondent no.8 also
supported the contention of the Respondent Commission and
submitted that on the basis of findings given in the impugned order
it now stands conclusively proved that the third child of the
petitioner was born after 04.04.2008 and therefore the petitioner
was rightly disqualified as per Section 18(1)(m) of the Bihar
Municipal Act, 2007.
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11. On a careful consideration of the submissions made
by the parties as outlined above, the question that arises for
consideration in this case is as follows:
“Given the nature of allegations levelled in the
complaint regarding birth of third child of the petitioner
after 04.04.2008 and the specific objection of the
petitioner disputing the allegations levelled in the
complaint filed by the respondent no.8 and also
questioning the maintainability of the said complaint
under Section 18(2) of the Bihar Municipal Act, 2007,
whether it was obligatory on the part of the Respondent
State Election Commission to decide the objection as
regards maintainability of the complaint as a
preliminary issue at the threshold before embarking on
the merits of the case? If yes, then whether without
deciding the issue of maintainability of such a complaint
as a preliminary issue at the threshold, whether the
respondent State Election Commission can be said to
have acted in teeth of the law laid down by Full Bench
decision of this Court in the case of Rajani Kumari vs.
The State Election Commission reported in 2019 (4)
PLJR 673? If yes, then whether the entire proceeding
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which has culminated in passing of the impugned order
dated 17.12.2024 is flawed, illegal, without jurisdiction
and fit to be set aside, without giving much credence to
the correctness or otherwise of the finding on merit
given by the Respondent Commission in the impugned
order?
12. The legal issue as to the remit of jurisdiction of the
respondent State Election Commission while exercising power
under Section 18(2) of the Bihar Municipal Act, 2007 is no longer
res integra and stands conclusively decided by Full Bench
decision of this Court delivered in the case of Rajani Kumari vs.
The State Election Commission reported in 2019 (4) PLJR 673.
13. It is important to quote some of the relevant
observations and findings given in this decision, which are
relevant for the purpose of adjudication of the present case. They
are as follows:
“181. It is further held that the State Election
Commissioner must not entertain pure election disputes
and whether a dispute brought before the Election
Tribunal is a purely election dispute or not, must be
decided as a preliminary issue. The State Election
Commissioner has power to suo-motu take notice of any
disqualification of a returned candidate either before or
after the election. Disputed questions of facts relating to
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Election Commission and only those cases where there
are unimpeachable materials before the State Election
Commission should be entertained by the Commission. In
other cases where issues can be determined only by a
competent court of law after leading evidence, the
Commission would be required to await the decision of a
competent court/tribunal constituted as a fact finding
body which is duly authorized by law to render a decision
on the issue.
182. Brother Justice Rajeev Ranjan Prasad
has dealt with the issue of ‘qualification’ and
‘disqualification’. In his ultimate analysis brother Justice
Prasad has, in paragraph 34 to 51 of the Judgment
referred to various decisions on the subject and has
reached to a conclusion that Section 135 of the Act of
2006 nowhere prescribes the circumstances under which
a person may be disqualified for being elected as a
member of the Panchayat or the Municipality and in fact
Section 135 talks of qualification ‘unless disqualified’,
therefore the said part of sub-section (2) of Section 136
which reads “subject to any disqualifications mentioned
in Section 135” is required to be given a harmonious
construction which may be better fitted to the intention of
the Act. In order to give an interpretation which advances
the remedy, brother Justice Prasad has expressed his
views by reading down that part of subsection (2) of
Section 136 of the Act of 2006 to the extent that it should
be read as ‘subject to any disqualifications but not the
qualification mentioned in Section 135‘. There is no
disagreement on this issue in the judgment of sister
Justice Smt. Anajana Mishra and myself. The State
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adjudication with regard to an issue of ‘qualification’
and the contentious issues of disqualifications as
observed above. The gist of the entire discussion in the
judgment of brother Sri. Justice Prasad are recorded in
paragraph 54 of his judgment and I do not find any
difference of opinion either in my judgment or in the
judgment of sister Justice Smt. Anjana Mishra.
183. I, therefore, find that the cumulative
impact of the entire discussion in the separate judgments
would take us to answer the reference in the following
terms:–
Question No. 1 – Whether the State Election
Commission will have power to consider disqualification
of a candidate after election as such Election
Commission is constituted for conduct of elections?
184. We are in agreement that the State
Election Commission has got power under sub-section(2)
of Section 18 of the Bihar Municipal Act, 2007 and sub-
section(2) of Section 136 of the Bihar Panchayat Raj Act,
2006 to consider an issue of pre or post election
disqualification of a candidate subject to a caution which
we have pointed out in our judgments in respect of a case
which is in the nature of a purely election dispute and
then a matter which cannot be decided without
adducement of evidence by a competent court and
authority in accordance with law. The State Election
Commission shall entertain and consider the
‘disqualification’ issues on the basis of the
unimpeachable materials placed before him. Whether a
complaint brought before the Commission either suo-
moto or by any other person, the Commission shall at the
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first instance enquire whether it is a purely election
dispute and only when it is found that the dispute brought
before it is not a purely election dispute, the Commission
shall proceed to consider the same on the basis of
unimpeachable materials. Whenever a disputed question
of facts and a contentious issue is brought before the
Commission as a ground and basis to render a candidate
disqualified, the Commission would be required to
relegate the parties to a competent court/tribunal or a
fact finding body competent to decide such contentious
issues after taking evidences and till such time the
Commission shall not take a decision on such complaint
either suo-moto or otherwise.”
[Emphasis Supplied]
14. From the aforesaid judgment it is absolutely clear
that whenever maintainability of a complaint filed under Section
18(2) of the Bihar Municipal Act, 2007 is challenged, the same is
mandatorily required to be decided at the threshold as a
preliminary issue, as being a question of jurisdictional fact. It is,
therefore, imperative that whenever an objection as to the
maintainability of the compliant is seriously questioned on any
ground whatsoever including the ground that the allegations
levelled in the complaint are not supported by or based upon any
unimpeachable material accompanied with the complaint, the same
must be decided at the threshold as a preliminary issue before
embarking on the merits. It is further clear from the aforesaid
judgment that complaints which are in the nature of disputing the
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election but deliberately couched in a language so as to bring it
within the fold of Section 18(2), should be carefully examined by
the Respondent State Election Commission on its own and such
complaints should not be entertained under Section 18(2) of Bihar
Municipal Act, 2007 and in fact should be relegated to filing of an
election petition before appropriate Civil Court. The Full Bench
decision of this Court (Supra) clearly makes it obligatory for the
Respondent Commission to first examine and inquire whether the
allegations levelled in the complaint qualifies as a purely election
dispute and only if it is found that the dispute brought before it is
not a purely election dispute, the Commission should proceed to
consider the same on the basis of unimpeachable materials. It is
thus obligatory for the Commission, of its own, to ascertain
whether a disputed question of facts and a contentious issue has
been brought before the Commission or not as a ground and basis
to render a candidate disqualified? If yes, then the Commission is
under the mandate of the law laid down by the Full Bench to
relegate the parties to a competent Court/Tribunal to decide such
contentious issue after taking evidence.
15. There is a reason why this Hon’ble Court in the Full
Bench decision delivered in the case of Rajani Kumari (Supra)
held that the Commission at the first instance should decide the
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preliminary issue as regards the maintainability of the complaint
under Section 18(2) of the Bihar Municipal Act, 2007 because the
issue would always relate to existence or non-existence of
jurisdictional fact. On the issue of jurisdictional fact reliance is
placed on the following decisions of the Hon’ble Supreme Court,
which would further make it clear that the issue relating to
jurisdictional fact must be decided as a preliminary issue before
embarking on the merits of the case:
(a) Arun Kumar & Others vs Union Of India & Ors. reported
in (2007) 1 SCC 732.
“74. A “jurisdictional fact” is a fact which must exist
before a court, tribunal or an authority assumes jurisdiction over
a particular matter. A jurisdictional fact is one on existence or
non-existence of which depends jurisdiction of a court, a
tribunal or an authority. It is the fact upon which an
administrative agency’s power to act depends. If the
jurisdictional fact does not exist, the court, authority or officer
cannot act. If a court or authority wrongly assumes the existence
of such fact, the order can be questioned by a writ of certiorari.
The underlying principle is that by erroneously assuming
existence of such jurisdictional fact, no authority can confer
upon itself jurisdiction which it otherwise does not possess.
75. In Halsbury’s Laws of England, it has been stated:
“Where the jurisdiction of a tribunal is
dependent on the existence of a particular state of
affairs, that state of affairs may be described as
preliminary to, or collateral to the merits of, the
issue. If, at the inception of an inquiry by an
inferior tribunal, a challenge is made to its
jurisdiction, the tribunal has to make up its mind
whether to act or not and can give a ruling on the
preliminary or collateral issue; but that ruling is
not conclusive.”
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76. The existence of jurisdictional fact is thus sine
qua non or condition precedent for the exercise of power by a
court of limited jurisdiction.
77. In Raja Anand Brahma Shah v. State of U.P.
[(1967) 1 SCR 373 : AIR 1967 SC 1081] sub-section (1) of
Section 17 of the Land Acquisition Act, 1894 enabled the State
Government to empower the Collector to take possession of
“any waste or arable land” needed for public purpose even in the
absence of award. The possession of the land that belonged to
the appellant had been taken away in the purported exercise of
power under Section 17(1) of the Act. The appellant objected
against the action inter alia contending that the land was mainly
used for ploughing and for raising crops and was not “waste
land”, unfit for cultivation or habitation. It was urged that since
the jurisdiction of the authority depended upon a preliminary
finding of fact that the land was “waste land”, the High Court
was entitled in a proceeding for a certiorari to determine whether
or not the finding of fact was correct.
78. Upholding the contention and declaring the
direction of the State Government ultra vires, this Court stated:
(SCR p. 380 D-F)
“In our opinion, the condition imposed
by Section 17(1) is a condition upon which the
jurisdiction of the State Government depends and
it is obvious that by wrongly deciding the question
as to the character of the land the State
Government cannot give itself jurisdiction to give
a direction to the Collector to take possession of
the land under Section 17(1) of the Act. It is well
established that where the jurisdiction of an
administrative authority depends upon a
preliminary finding of fact the High Court is
entitled, in a proceeding of writ of certiorari to
determine, upon its independent judgment,
whether or not that finding of fact is correct….”
(emphasis supplied)
79. In State of M.P. v. D.K. Jadav [(1968) 2 SCR
823 : AIR 1968 SC 1186] the relevant statute abolished all jagirs
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including lands, forests, trees, tanks, wells, etc., and vested them
in the State. It, however, stated that all tanks, wells and buildings
on occupied land were excluded from the provisions of the
statute. This Court held that the question whether the tanks,
wells, etc., were on “occupied land” or on “unoccupied land”
was a jurisdictional fact and on ascertainment of that fact, the
jurisdiction of the authority would depend.
80. The Court relied upon a decision in White &
Collins v. Minister of Health [(1939) 2 KB 838 : 108 LJ KB 768
: (1939) 3 All ER 548 (CA) sub nom Ripon (Highfield) Housing
Order, 1938, Re] wherein a question debated was whether the
court had jurisdiction to review the finding of administrative
authority on a question of fact. The relevant Act enabled the
local authority to acquire land compulsorily for housing of
working classes. But it was expressly provided that no land
could be acquired which at the date of compulsory purchase
formed part of park, garden or pleasure ground. An order of
compulsory purchase was made which was challenged by the
owner contending that the land was a part of park. The Minister
directed public inquiry and on the basis of the report submitted,
confirmed the order.
81. Interfering with the finding of the Minister and
setting aside the order, the Court of Appeal stated: (All ER p.
559 G-H)“The first and the most important
matter to bear in mind is that the jurisdiction to
make the order is dependent on a finding of fact,
for, unless the land can be held not to be part of a
park, or not to be required for amenity or
convenience, there is no jurisdiction in the
borough council to make, or in the Minister to
confirm, the order. In such a case it seems almost
self-evident that the court which has to consider
whether there is jurisdiction to make or confirm
the order must be entitled to review the vital
finding on which depends the existence of the
jurisdiction relied upon. If this were not so, the
right to apply to the court would be illusory.”
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82. A question under the Income Tax Act, 1922 arose
in Raza Textiles Ltd. v. ITO [(1973) 1 SCC 633 : 1973 SCC
(Tax) 327 : AIR 1973 SC 1362] . In that case, the ITO directed
X to pay certain amount of tax rejecting the contention of X that
he was not a non-resident firm. The Tribunal confirmed the
order. A Single Judge of the High Court of Allahabad held X as
non-resident firm and not liable to deduct tax at source. The
Division Bench, however, set aside the order observing that:
“… [ITO] had jurisdiction to decide the question
either way. It cannot be said that the officer assumed jurisdiction
by a wrong decision on this question of residence.” (SCC p. 634,
para 3)
X approached this Court.
83. Allowing the appeal and setting aside the order of
the Division Bench, this Court stated: (SCC pp. 634-35, para 3)
“The Appellate Bench appears to have
been under the impression that the Income Tax
Officer was the sole judge of the fact whether the
firm in question was resident or non-resident. This
conclusion, in our opinion, is wholly wrong. No
authority, much less a quasi-judicial authority, can
confer jurisdiction on itself by deciding a
jurisdictional fact wrongly. The question whether
the jurisdictional fact has been rightly decided or
not is a question that is open for examination by
the High Court in an application for a writ of
certiorari. If the High Court comes to the
conclusion, as the learned Single Judge has done
in this case, that the Income Tax Officer had
clutched at the jurisdiction by deciding a
jurisdictional fact erroneously, then the assessee
was entitled for the writ of certiorari prayed for by
him. It is incomprehensible to think that a quasi-
judicial authority like the Income Tax Officer can
erroneously decide a jurisdictional fact and
thereafter proceed to impose a levy on a citizen.”
(emphasis supplied)
84. From the above decisions, it is clear that
existence of “jurisdictional fact” is sine qua non for the exercise
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of power. If the jurisdictional fact exists, the authority can
proceed with the case and take an appropriate decision in
accordance with law. Once the authority has jurisdiction in the
matter on existence of “jurisdictional fact”, it can decide the
“fact in issue” or “adjudicatory fact”. A wrong decision on “fact
in issue” or on “adjudicatory fact” would not make the decision
of the authority without jurisdiction or vulnerable provided
essential or fundamental fact as to existence of jurisdiction is
present.”
(b) Carona Ltd vs M/S Parvathy Swaminathan & Sons.
reported in AIR 2008 SC 187.
“31. It is thus clear that for assumption of
jurisdiction by a Court or a Tribunal, existence of
jurisdictional fact is a condition precedent. But once such
jurisdictional fact is found to exist, the Court or Tribunal
has power to decide adjudicatory facts or facts in issue.”
16. In the present case the allegation levelled in the
complaint as regards the birth of the third child of the petitioner
after 04.04.2008 as a ground for disqualification was supported by
a document said to have been obtained under the R.T.I Act
enclosing a photocopy of the School Admission Register showing
the date of birth of the third child of the petitioner to be
17.12.2013. In the eleventh column of the photocopy of the said
Admission Register a thumb impression allegedly of Kaushmi
Devi was shown to be existing. This document was the only basis
produced as unimpeachable material/evidence in support of the
allegations levelled in the complaint filed by respondent no.8.
Responding to these allegations the petitioner had filed a reply
before the Respondent Commission disputing the above
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allegations. Paragraphs no.9,10,11, 13, 14, 15, 16, 17 of the reply
filed by the petitioner before Respondent Commission is quoted
herein below for needful.
9. That so far statement made in Para 3(iv) and
(v) of the complaint under reply it is humbly submitted that
basis of allegation having fourth children in nomination of
Swati Kumari after 04.08.2008 is based upon R.T.I.
information given by Block Education Officer, Bodh Gaya on
the basis of School Admission Register in Dhanawan
Elementary School in year 2018 as contained in Annexure-2
of the complaint petition showing that Swati Kumari Daughter
of Kaushmi Devi (Opposite Party No. 1) and Suresh Manjhi
whose date of birth is mentioned as 17.02.2013 but no
documentary proof of date of birth of Swati Kumari is
enclosed and even in name of mother L.T.I. of Opposite Party
No. 1 is said to be made despite the facty that Opposite Party
No.1 clearly made her signature or wrote her name which
may be verified from several documents even in Vakalatnama
signed by her and as such documents provided under R.T.I. is
prepared with oblique motive only with a view to get Opposite
Party No. 1 be disqualified in view of Section 18(1)(M) of
Bihar Municipal Act 2007.
10. That it is stated that in fact Opposite Party No.
1 has three children whose description specifying the date of
birth are as follows:-
Name of children Relation Date of Birth
1. Arti Kumari Daughter 04.01.2002
2. Vikash Kumar Son 05.03.2005
3. Suganti Kumari Daughter 15.01.2007
And she has no any other daughter in name of Swati
Kumari who has born after 04.08.2008 and in support of that
separate Adhar Card of all the above referred three children
mentioning above referred date of birth is correct and
specifically deny about the existence of fourth daughter in name
of Swati Kumari.
11. That it is further stated that Ration Card has been
issued in favour of Opposite Party No. 1 in which description of
family members have been mentioned in which also only three
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children namely Arti Kumari, Vikash Kumar and Suganti
Kumari is mentioned in whose tentative age has also been
mentioned. It is specifically stated that Ration Card has been
issued much earlier from the date of nomination in Election of
2022 which itself proves that alleged allegation having fourth
child in name of Swati Kumari is imaginary only with a view to
get Opposite Party disqualified with oblique motive.
13. That it is specifically stated that neither Opposite
Party No. 1 nor her husband Ashok Manjhi has ever gone to
Dhanwa Primary School for purpose of Admission of their any
of children and as such alleged documents enclosed with
complaint petition in support of admission of Swati Kumari
mentioning date of birth 17.02.2013 is imaginary and fictitious.
14. That it is further submitted that when Opposite Party
No. 1 raised objection on School Admission Register
mentioning Swati Kumari as daughter of Opposite Party No. 1
then lame excuse is being taken that admission was taken on
the basis of endorsement by Anganwari Centre which itself
proves that L.T.I. shown in name of Opposite Party No. 1 is
forged and fabricated as this aspect has not been mentioned in
documents enclosed with complaint petition.
15. That it is stated and submitted that there is no
unimpeachable documents or materials have been brought on
record by the complaint in support of allegation that alleged
Swati Kumari is daughter of Opposite Party No. 1 and her date
of birth is 17.02.2013 and as such this dispute question of fact
cannot be decided by competent Civil Court after adducing
evidence, oral as well as documentary and for that this Hon’ble
Commission would be required to amount the necessary
declaration made by competent Court.
16. That since complainant had no such documents to
prove such fictitious allegation of having fourth children Swati
Kumari who took birth after 04.04.2008 and as such did not
choose to prefer election Petition as prescribed under section
476 as well as under Section 478 of the Bihar municipal Act
2007.”
17. That it is stated and submitted that when complainant
could not produce unimpeachable documents in support any of
allegation that Swati Kumari is fourth children of Opposite
Party No. 1 then in connivance with some officials are adamant
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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to prove that Suganti Kumari and Swati Kumari are same
which is not the part of the allegation made in complaint and as
such subsequent improvement of allegation is not permissible in
eye of law.”
17. From the aforesaid reply submitted by the petitioner
before the Respondent Commission, it is clearly manifest that the
question of the date of birth of the third child of the petitioner was
under serious dispute and this could only have been decided on the
basis of evidence. This disputed question of fact could not have
been decided by the Respondent Commission in a summary
proceeding under Section 18(2) of the Bihar Municipal Act, 2007,
as per the law laid down by the Full Bench in Rajani Kumari’s
case (Supra). Manifestly, the Respondent Commission
transgressed its authority and entertained this disputed question of
fact and ultimately gave a finding against the petitioner. The
finding, (whether right or wrong) is therefore as a result of
exercise of jurisdiction which was not available to the Respondent
Commission in law. This Court, therefore, is of the view that if an
authority gives a finding on disputed question of fact then whether
the said finding is correct or not, becomes irrelvant, if the authority
concerned did not have the jurisdiction to conduct the proceeding
and give such a finding. Only those findings can be upheld in law
which are given pursuant to legal and valid exercise of power. In
this regard reliance is placed on the judgment of the Hon’ble Apex
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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Court delivered in the case of Dr. Jagmittar Sain Bhagat & Ors
vs Dir. Health Services, Haryana & Ors. reported in AIR 2013
SC 3060, the relevant paragraph of which is quoted herein below
for needful.
“7.Indisputably, it is a settled legal proposition
that conferment of jurisdiction is a legislative function
and it can neither be conferred with the consent of the
parties nor by a superior Court, and if the Court passes a
decree having no jurisdiction over the matter, it would
amount to ity as the matter goes to the roots of the cause.
Such an issue can be raised at any stage of the
proceedings. The finding of a Court or Tribunal becomes
irrelevant and unenforceable/ inexecutable once the
forum is found to have no jurisdiction. Similarly, if a
Court/Tribunal inherently lacks jurisdiction, acquiescence
of party equally should not be permitted to perpetuate and
perpetrate, defeating the legislative animation. The Court
cannot derive jurisdiction apart from the Statute. In such
eventuality the doctrine of waiver also does not apply.
(Vide: United Commercial Bank Ltd. v. Their Workmen,
AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan
and Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v.
Navrang Studios and Anr., AIR 1981 SC 537; and
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and
Ors., AIR 1999 SC 2213).”
18. It is to be noted that in the present case, the learned
counsel appearing for the Respondent Commission has fairly
admitted that the issue of maintainability raised by the petitioner
was not decided by the respondent Commission as a preliminary
issue at the thresh-hold. Meaning thereby, that without deciding
the issue of jurisdictional fact, the respondent Commission in the
present case assumed jurisdiction and embarked on the journey to
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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decide the disputed question of fact on merit. Such an approach is
unknown to law and hence the impugned order cannot be sustained
for failing to decide the question of maintainability of the
complaint as a preliminary issue at the threshold.
19. During the course of argument, learned counsel for
the petitioner also stated that the grounds on which the
complainant had filed the complaint for disqualification was
actually a matter which should have been agitated in an election
petition on the ground as mentioned in Section 479(1)(d)(i) of the
Bihar Municipal Act, 2007. His contention was that instead of
filing the election petition, the respondent no.8 mischievously
couched it in such a language so as to bring it within the purview
of Section 18(1)(m) of the said Act. As per the law laid down by
the Full Bench in Rajani Kumari‘s case (Supra), it was the duty of
the respondent Commission to ascertain whether the complaint
contained a purely election dispute or not? The respondent
Commission failed to examine this aspect of the matter and thus
did not give any finding on this issue which should have been
decided as a preliminary issue at the outset.
20. The learned Senior Counsel appearing for the
petitioner also questioned the locus standi of the respondent no.8
of having filed the complaint on the ground that he was not the
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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loosing candidate and was in fact the husband of the loosing
candidate and as such he did not have the locus to file the
complaint. In this regard, the learned Senior Counsel appearing for
the petitioner relied upon paragraphs-58, 59 and 60 of the decision
delivered by the Hon’ble Supreme Court in the case of Ravi
Yashwant Bhoir vs. District Collector, Raigad & Ors. reported
in (2012) 4 SCC 407. The paragraph-58 to 60 of this judgment is
quoted herein below for needful.
“58. Shri Chintaman Raghunath Gharat, ex-President was
the complainant, thus, at the most, he could lead evidence as a
witness. He could not claim the status of an adversarial
litigant. The complainant cannot be the party to the lis. A
legal right is an averment of entitlement arising out of law. In
fact, it is a benefit conferred upon a person by the rule of law.
Thus, a person who suffers from legal injury can only
challenge the act or omission. There may be some harm or
loss that may not be wrongful in the eye of the law because it
may not result in injury to a legal right or legally protected
interest of the complainant but juridically harm of this
description is called damnum sine injuria.
59. The complainant has to establish that he has been
deprived of or denied of a legal right and he has sustained
injury to any legally protected interest. In case he has no legal
peg for a justiciable claim to hang on, he cannot be heard as a
party in a lis. A fanciful or sentimental grievance may not be
sufficient to confer a locus standi to sue upon the individual.
There must be injuria or a legal grievance which can be
appreciated and not a stat pro ratione voluntas reasons i.e. a
claim devoid of reasons.
60. Under the garb of being a necessary party, a person
cannot be permitted to make a case as that of general public
interest. A person having a remote interest cannot be
permitted to become a party in the lis, as the person who
wants to become a party in a case, has to establish that he has
a proprietary right which has been or is threatened to be
violated, for the reason that a legal injury creates a remedial
right in the injured person. A person cannot be heard as a
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(Vide Adi Pherozshah Gandhi v. Advocate General of
Maharashtra [(1970) 2 SCC 484 : AIR 1971 SC
385] , Jasbhai Motibhai Desai v. Roshan Kumar [(1976) 1
SCC 671 : AIR 1976 SC 578] , Maharaj Singh v. State of
U.P. [(1977) 1 SCC 155 : AIR 1976 SC 2602] , Ghulam
Qadir v. Special Tribunal [(2002) 1 SCC 33] and Kabushiki
Kaisha Toshiba v. Tosiba Appliances Co. [(2008) 10 SCC
766] ) The High Court failed to appreciate that it was a case
of political rivalry. The case of the appellant has not been
considered in the correct perspective at all.”
21. The aforesaid submission made by learned Senior
Counsel was opposed by respondent Commission on the ground
that the facts of the case and the statute under interpretation in the
aforesaid judgment was different and, therefore, the findings given
by the Supreme Court in paras 58 to 60 will not apply to the facts
and circumstances of the present case. I agree to the submission
made by learned counsel for the respondent Commission. Even the
language of Section 18(2) of the Bihar Municipal Act makes it
absolutely clear that the matter of disqualification can be brought
to the notice of State Election Commission in the form of a
complaint, application or information by any person or authority. It
further provides that the State Election Commission can also take
suo motu cognizance of such matters and decide such matters
expeditiously after allowing sufficient opportunity to the affected
parties. Section 18(2) of the Bihar Municipal Act, 2007 is quoted
herein below for needful.
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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“[(2) If any question arises as to whether a
Member of a Municipality at any level was disqualified before
election or has incurred disqualification after election as
provided in Article-243-V of the Constitution of India and
subject to any of the disqualification mentioned in section
-475 or the subject to any of the disqualification mentioned in
sub-section (1) of section-18 the question shall be referred for
the decision of State Election Commissioner. The matter of
disqualification may be brought to the notice of the State
Election Commission in the form of a complaint, application
or information by any person or authority. The State Election
Commission may also take suo-motu cognizance of such
matters and decide such matters expeditiously after allowing
sufficient opportunity to the affected parties of being heard.]
{Emphasis Supplied]
22. In view of the aforesaid express provision entitling
any person to file a complaint or application before the State
Election for disqualification and also giving powers to the State
Election Commission to suo motu initiate such a proceeding, it
cannot be said that only the loosing candidate can file complaint
under Section 18(2) of the Bihar Municipal Act, 2007 and
consequently, the contention of learned Senior Counsel appearing
for the petitioner that respondent no.8 did not have any locus to
file the complaint is not correct and therefore such submission
made by him is rejected.
23. It is also pertinent to take note of paragraph-5 of the
impugned order dated 17.12.2024 wherein at several places the
Respondent State Election Commission has referred to collection
of evidence indulged into by the District Magistrate. The inquiry
conducted by the District Magistrate, therefore, is based on
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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collection of evidence for which the petitioner was not given
opportunity to controvert/rebut. The discussion made in paragraph-
5 of the impugned order, therefore, clearly establishes that the
entire proceeding which was conducted before the Respondent
State Election Commission was in the nature of collecting
evidence and thereafter deciding the disputed question of fact on
the basis of those evidences so collected. The necessity for
instituting two Medical Boards, although on the request of the
petitioner, also goes to show that the respondent State Election
Commission felt the need to collect evidence for deciding the
disputed question of fact. This nature of inquiry is not permissible
under Section 18(2) of the Bihar Municipal Act, 2007, which is
only to be conducted and decided on the basis of unimpeachable
material. Unimpeachable material would mean such
materials/evidences produced by the complaint in support of the
allegations levelled in the complaint which cannot be impeached
and/or which cannot be doubted or disputed by anyone. The
moment something produced as evidence along with the complaint
is required to be validated/established on the basis of further
collection of evidence, then it is clear that the evidence produced
or accompanied with the complaint does not qualify as
unimpeachable evidence/material.
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24. Under the aforesaid facts and circumstances and for
the reasons assigned herein above, this Court finds that the
impugned order dated 17.12.2024 passed by the respondent
Commission by which the petitioner has been disqualified from
the post of Deputy Chief Councillor of the Bodh Gaya Municipal
Council is flawed, patently illegal and without jurisdiction. The
said impugned order has also been passed in violation of the law
laid down by the Full Bench of this Court in Rajani Kumari‘s Case
(Supra). Consequently the impugned order dated 17.12.2024
passed in Case No.15 of 2023 (Ashok umar Manjhi vs. Kaushmi
Devi & Ors.) by the Respondent State Election Commission is
hereby quashed/set aside and the petitioner is reinstated to the post
of Deputy Chief Councillor, Gaya Nagar Parishad, Bodh Gaya
with immediate effect.
I.A. No.3 of 2025
25. For the reasons given above, and also for the reasons
as stated in the interlocutory application and the affidavit, this
interlocutory application is allowed and the additional prayer made
in paragraph-18 of the said application is directed to be treated as
part of the prayer made in the main writ petition. Since this Court
has already come to the conclusion that the impugned order dated
17.12.2024 is illegal and without jurisdiction, thereby setting aside
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the same and reinstating the petitioner to the post of Deputy Chief
Councillor of Bodh Gaya Municipal Council with immediate
effect, the schedule of Election contained in letter no.2228 dated
24.05.2025 (Annexure-P-8 to the I.A) issued under the signature of
Secretary, State Election Commission, so far as it relates to
conducting election for the post of Deputy Chief Councillor, Bodh
Gaya Municipal Council is also set aside and the respondent State
Election is directed not to conduct the election as far as election to
the post of Deputy Chief Councillor of Bodh Gaya Municipal
Council is concerned.
26. Before parting with this judgment, it is considered
appropriate to observe that any complaint filed under Section
18(2) of the Bihar Municipal Act, 2007 for disqualifying an
elected candidate should not be entertained in a cavalier manner,
as the consequence of the same may result in dislodging a duly and
validly elected candidate. Existence of grassroots democracy is
precious and should not be allowed to be assaulted or attacked on
the basis of a frivolous complaint, not maintainable in law. It is,
therefore, incumbent on the State Election Commission to always
of its own examine the maintainability of the complaint as a
preliminary issue by applying the tests laid down by the Full
Bench decision of this Court in Rajani Kumari‘s case. It is
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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expected that henceforth all complaints that are lodged under
Section 18(2) of the Bihar Municipal Act, 2007 shall be very
carefully scrutinized by the Respondent State Election
Commission and the maintainability of the same would be decided
as a preliminary issue at the outset, in all cases, without making it
contingent upon the other side challenging the maintainability of
the same. It is always to be borne in mind that grassroots
democracy empowers ordinary citizen to participate directly in
decision making processes, fostering a more inclusive and
responsive government at the local level. This form of democracy
promotes social justice by giving voice to marginalized groups,
ensuring that policies are aligned with the needs and values of the
community. Furthermore, it enhances civic engagement,
strengthen social development and increases Government
accountability. It is for these reasons that it is important that the
respondent Commission should be extra careful while entertaining
a complaint for disqualification of elected representative under
Section 18(2) of the Bihar Municipal Act, 2007. At the cost of
repetition, it is reiterated that whenever a complaint is filed before
respondent Commission, the respondent Commission of its own
should first examine the maintainability of the same as a
preliminary issue and only thereafter, if it is found to be
Patna High Court CWJC No.1682 of 2025 dt.26-06-2025
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maintainable, should the respondent Commission proceed to
decide the same within the scope available to it in law. It is,
therefore, important for the respondent Commission to put the
complainant to strict rigours for satisfying regarding
maintainability of the said complaint in light of the law laid down
in Rajani Kumari‘s case. This must be done at the threshold itself
before embarking on the merits of the case.
27. With the aforesaid observations, findings and
directions, the present writ application is allowed.
28. All pending I.A.s, if any shall be deemed to have
been disposed of.
(Alok Kumar Sinha, J)
Prakash Narayan
AFR/NAFR AFR
CAV DATE 24.06.2025
Uploading Date 26.06.2025
Transmission Date N/A