Dhanwanti Devi vs The State Election Commission (Panchayat) and Others

The present Letters Patent Appeal arise out of order dated 17.7.2008 passed in C.W.J.C. No. 4352 of 2008.The main contention raised before this Court is that as to whether the State Election Commission is vested with the power to decide the status of the appellant with reference to her Citizenship u/s 136(1) of the Bihar Panchayat Raj Act, 2006 who was elected to the post of Mukhiya, on the basis of a complaint lodged by respondent no. 7.

The learned Single Judge has dismissed the writ application holding that merely because the appellant had married with an Indian Citizen and set up her house in India and also managed to get herself enrolled in the electoral roil and on the basis of which she came to be elected to the post of Mukhiya she does not be come an Indian Citizen.

It has been contended before us that the State Election Commission is not a competent authority to decide the Citizenship of the appellant on the basis of a complaint lodged u/s 136(1) of the Bihar Panchayat Raj Act, 2006. The State Election Commission would have only directed the appellant to get her declared with regard to Citizenship before the competent authority as it has been held that the appellant is not a Citizen of India.

We had also the occasion to go through the provisions of Section 136(1) of the Panchayat Raj Act which envisaged that a person shall be disqualified for election or after election for holding the post as Mukhiya on the ground that she/he is not a citizen of India. We are of the opinion that in view of provision of Section 136(1) of the Act the State Election Commission should have given a direction to the appellant to get her declared with regard to citizenship from the appropriate authority as the State Election Commission has no power or jurisdiction to decide the question of citizenship. The law of citizenship governs a particular field.

Under the above circumstance, we set aside the order of the learned Single Judge and leave the question upon the appellant with regard to declaration of her citizenship.With the above observation this L.P.A. stands allowed.