Rajasthan High Court - Jaipur
Smt Kalli Meena vs Rekha Devi Dhanka & Anr on 16 January, 2018
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
S.B CIVIL WRIT PETITION NO.9058/2017
Smt. Kalli Meena W/o Shri Kajod Meena, aged 47 years, Resident of
village Piplya Bai, Post Khijuria Brahmnan, Tehsil Bassi, District Jaipur.
... Petitioner
Versus
1. Rekha Devi Dhanka W/o Shri Babu Lal Dhanka, Resident of Barala,
Post Khijuria Brahmnan, Tehsil Bassi, District Jaipur.
2. Returning Officer through District Election Officer, Collectors Office
District Jaipur.
--- Respondents
Date of Order: January 16th, 2018.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. G.S. Bafna, Senior Advocate with
Mr. Sarvesh Jain, for the petitioner.
Mr. Lokesh Sharma, for the respondent.
BY THE COURT:
This petition has been filed challenging the order dated 18-5- 2017 whereby the petitioner-returned candidate's (hereinafter `the RC') application for her evidence through Power of Attorney was dismissed, and her evidence closed. And also under challenge is the judgment dated 26-5-2017 passed by the Additional Civil Judge (Senior Division) and Additional Chief Metropolitan Magistrate No.13, Bassi, Jaipur Metropolitan City, Jaipur, whereby the election 2 petition (6/2015) filed by the respondent-Election Petitioner (hereinafter the EP') was allowed and the election of the RC as Sarpanch of Village Panchayat Khijuria Brahmnan, Tehsil Bassi, District Jaipur set aside.
The RC contested election for the post of Sarpanch of Village Panchayat Khijuria Brahmnan, Tehsil Bassi, District Jaipur held on 18-1-2015. Having secured highest votes she was declared elected. The respondent EP laid an election petition challenging the RC's election under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994') read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter `the Rules of 1994') on the ground that the RC did not have the requisite minimum educational qualification mandated under Section 19(t) of the Act of 1994 and her documents submitted before the Returning Officer in regard thereto purportedly issued by Badrinath Vidya Niketan School, Vishnu colony Laxmi Nagar Jaipur (hereinafter `the school') were forged and fabricated. It was stated that the RC was wholly illiterate, barely able to sign and since her marriage when 10 years of age was at all times residing in village Piplya bai and could not possibly have studied as a regular student at the school in Jaipur as wrongly and falsely asserted by her. It was further stated that the lack of any formal education as falsely claimed, allegedly acquired by the RC was evident from her own apparent admission in the years 3 2010 and 2013 when she contested the election for the post of Sarpanch of Village Panchayat Khijuria Brahmnan, Tehsil Bassi, District Jaipur that she had no formal education at all as she had merely put her thumb impression on the nomination form which would not have been done if she was at all literate, what of having passed class VIII as claimed by her in the nomination form for the 2015 election.
The RC in reply to election petition denied all allegations of her ineligibility. She claimed that while she was residing with her uncle Kanaram at Jaipur she was admitted to the Badrinath Vidya Niketan School Jaipur (hereinafter `the school') in the year 1980 and studied there as a regular student upto 15-5-1988 when she passed class VIII before being married in the year 1989. It was stated that in the year 2004 when she applied for the post of Sahayogini in Aanganbadi, she obtained her TC from the school evidencing having her passed class VIII. That was counter signed by the District Education Officer Elementary Education Jaipur. It was stated that in earlier elections her declaration only to be literate and non disclosure of the fact of class VIII pass was of no consequence as at the relevant time disclosure of educational qualification was not mandatorily required in the nomination form. It was further stated that the EP also did not have the requisite educational qualification of class VIII pass from any government recognized school and 4 herself was not eligible to contest the election on the post of Sarpanch.
Based on the pleadings, the Tribunal framed the following issues:-
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------v;kph In support of her case the EP examined herself as Aw-1 and Mukesh AW-2, Rajendra AW-3, and Babu Lal AW-4 and exhibited 8 documents. The RC examined Laxminarayan NAW-1, Goverdhan NAW-2, Kajod NAW-3, Failiram NAW-4, Damodar NAW-5, Babulal NAW-6, and Mool Chand NAW-7. However she failed to examine herself and her evidence was closed on 18-5-2017.
The trial court has on the evidence before it set aside the election of the RC holding that she did not have the requisite minimum educational qualification of class VIII pass required under the Act of 1994 to contest on the post of Sarpanch and documents particularly the TC submitted to that end in support of the nomination form before the Returning Officer were wholly unreliable. Hence this petition.
Mr. G.S. Bafna, Senior Advocate appearing with Mr. Sarvesh 5 Jain on behalf of the RC submitted that the impugned judgment dated 26-5-2017 setting aside the RC's election to the post of Sarpanch is liable to be quashed and set aside in the first instance on the ground of denial of the principles of natural justice. It was submitted that the RC was not given sufficient opportunity to appear for cross examination on her affidavit in evidence, her evidence arbitrarily closed and hence denied her defence. It was submitted that despite an application the RC was not allowed to appear in the witness box through her power of attorney for being cross examined, although she was unwell. The evidence in defence was closed vide order dated 18-5-2017. The said order is also under challenge and liable to be set aside. In the circumstances, it has been prayed that the subsequent judgment dated 26-5-2017 setting aside the RC's election is liable to be quashed and set aside only on this ground and the matter remanded to the trial court to proceed afresh in the election petition from the stage of cross examination of the RC.
On merits of the petition, Mr. G.S. Bafna submitted that the inference of the trial court regarding the RC not being formally educated and studied upto class VIII at the school in Jaipur only for reason of her not disclosing her educational qualification when she filled up her nomination form for election to the post of Sarpanch on 18-9-2013 (Ex.6) was unwarranted and perverse as it was not considered that at the relevant time setting out of educational 6 qualification in the nomination form was not required by law.
On the issue of the finding of the trial court that the RC did not pass class VIII examination from the School and was thus not eligible to contest the election to the post of Sarpanch for lack of educational qualification mandated under Section 19(t) of the Act of 1994, Mr. G.S. Bafna submitted that no evidence was brought on record by the EP about the aforesaid mark-sheet and TC being false and fabricated as was the burden of the EP. It was submitted that in these circumstances the conclusions of the trial court regarding the RC not having the requisite educational qualification to contest the election on the post of Sarpanch in 2015 is wholly inferential, conjectural and perverse. It therefore be set aside, submitted Mr. G.S. Bafna.
Per contra, Mr. Lokesh Sharma counsel for the EP submitted that the mark-sheet (Ex.2) and TC (Ex.3) issued by the school were clearly forged and fabricated in view of the fact that the RC when she filed her nomination in the year 2013 herself claimed only to be literate. It was submitted that from the evidence of Goverdan Lal NAW-2, the RC's witness it was found by the trial court that he had counter signed the RC's TC in the year 2004 without verifying the record of the school as the school itself was admittedly closed way back in the year 2000. It was submitted that the fact that the RC herself failed to appear in the witness box despite 12 opportunities to 7 rebut the EP's evidence primarily based on the inferential fact of her not being at all educated what of upto class VIII from her own nomination form in 2013 claiming only literacy (Exhibit-6). Hence the trial court cannot be faulted for considering and relying on the evidence of EP's witnesses and not finding much probative worth in the evidence of Goverdhan Lal NAW-2 to conclude that the RC's mark-sheet and TC were forged and that she had not passed class VIII, the requisite mandatory educational qualification to contest on the post of Sarpanch.
With regard to the closing of the RC's evidence while dismissing her very odd and ill advised application for cross examination on her affidavit in evidence through power of attorney vide order dated 18-5-2017, Mr. Lokesh Sharma submitted that after completion of EP's evidence twelve opportunities had been granted to the RC but she failed to enter the witness box for cross examination on her affidavit in defence. Paranoia of being exposed on her claim of class VIII pass as claimed on the basis of mark-sheet (Ex.2) and TC (Ex.3) issued by Badrinath Vidyaniketan school was the reason and illness only a ruse. It was submitted that the RC could not offer her power of attorney to be cross examined for herself. And on the day the RC's evidence was closed nothing was filed on record to reasonably establish before the trial court that she was unwell and could not appear for her cross examination. It was submitted that 8 from the overall fact of the case it was obvious that the RC was only delaying the trial in an attempt to enjoy as much of the Sarpanch's term of five years as she could for the reason that she had otherwise no serious defence to the election petition.
Heard. Considered.
As far as the denial of principles of natural justice vitiating the impugned judgment is concerned for reason of the RC's evidence being closed vide order dated 18-5-2017, I am of the considered view that the trial court granted more than due indulgence to the RC to enter the witness box for her cross examination on her affidavit in evidence (twelve opportunities). The request for allowing her power of attorney holder to be cross examined in the RC's stead on her affidavit in evidence was quite unprecedented and devoid of legal foundation. The failure of the RC to enter the witness box to be cross examined on her affidavit in evidence was deliberate and obviously at her peril. The order dated 18-5-2017 was a fair exercise of the trial court's discretion. The RC cannot be allowed to take advantage and agitate denial of natural justice as a ground for setting aside the impugned judgment dated 26-5-2017.
As far as the question of nomination form 18-9-2013 (Ex.6) supported by an affidavit at a previous election contested by the RC is concerned wherein she claimed only to be literate and not with any 9 formal education, I am of the considered view that the RC cannot escape the consequence on the vacuous argument that in 2013 the nomination form did not mandatorily warrant disclosure of educational qualifications. The court's in seeking truth under the evidence act are to also draw on facts inferentially from the evidence of facts on record. It is inconceivable that a person with formal education will disclose himself as only literate against information as to educational qualification sought in a nomination form. Thus the RC had done in Exhibit-6 duly proved before the trial court. Exhibit- 6 was an admitted document before the trial court. The Apex Court in the case of Oriental Insurance Company Limited Vs. Premlata Shukla [(2007)13 SCC 476] has held that once a document is admitted by a party to a litigation and is taken on record and exhibited (as Exhibit 6 was in the instant case by the RC), the said party cannot be permitted to turn around and argue that a part of the contents of the document pertaining to an inferential fact was not proved. It was also held that in such a situation the court cannot be said to have committed any illegality in relying upon such document which was admitted and exhibited as a whole. It is equally well settled that when the trial court has taken a possible view of the evidence laid before it and come to a conclusion thereon, it cannot be interfered with by the high court in the exercise of its jurisdiction under Article 227 of the Constitution of India.10
I am also of the considered view that the trial court also had on preponderance of probabilities evidence enough in the form of Exhibit-6 to conclude that the mark-sheet and TC of class VIII pass were forged and fabricated. This on the inferential fact obtaining of the RC not having had any formal education what of class VIII in 2013 and other evidences and circumstances of the case obtaining against the RC. I am of the considered view that from the EP's evidence before the trial court, the onus had shifted to the RC to prove her claim of class VIII pass by leading concrete evidence beyond the questional TC/ mark-sheet relied upon by her to establish that she had the requisite educational qualification. To that end no relevant official of the school from where the RC claimed to have passed class VIII was summoned or produced. Even the RC's witness Goverdhan Lal NSW-2 admitted in his cross examination before the court that he had counter signed the TC and mark-sheet without verifying the record of the school. And to top it all, the RC did not enter the witness box.
The Evidence Act, 1872 states a fact to be "proved" when, after considering the over all evidence before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Reference can also be made to the judgment of the Apex court in the case of Maharashtra State Board of Secondary & Higher Secondary Education Vs. K.S. Gandhi 11 [(1991)2 SCC 716] wherein it was held that standard of proof in case other than criminal is not proof beyond reasonable doubt, but based on preponderance of probability and where a reasonable and probable inference can be drawn from the factual and circumstantial evidence on record in favour of the plaintiff, his petition is to be allowed. This court in the case of Smt.Ummed Kanwar Vs. Prabhu Singh [2012(4) WLC 14] has held that standard of proof required in an election petition founded on ineligibility of RC is not "beyond reasonable doubt" but only "preponderance of probability". The evidence laid before a Trial Court in a given case should be capable of leading to a reasonable inference/ conclusion that the fact in issue has been proved.
In the circumstances, I am of the considered view that nothing perverse or illegal can be attributed to the findings of the trial court in its impugned judgment dated 26-5-2017 that the RC was ineligible to contest the election to the post of Sarpanch of village Khijuria Bhamnan, Panchayat Samiti Bassi District Jaipur and her election as Sarpanch was thus liable to be quashed and set aside.
I find no force in the petition. Dismissed.
(Alok Sharma), J.
arn/ 12 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.