Rajasthan High Court - Jaipur
Teena Bai vs District Election Officer &Ors; on 10 August, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
1. (S.B. Civil Writ Petition No.8165/2016)
Teena Bai W/o Dashrath Singh, by Caste Sondiya Rajput, r/o Luharia At Present
Sarpanch Gram Panchayat Luharia, Panchayat Samiti, Dug, Tehsil Gangdhar, District
Jhalawar (Raj.)
----Non-applicant-Petitioner
Versus
1. District Election Officer, (Panchayat Election), Jhalawar.
2. Returning Officer, Village Panchayat, Luharia, Panchayat Samiti Dug, Tehsil
Gangdhar Through District Election Officer, Jhalawar
----Respondents
3. Madan Singh S/o Narayan Singh, by Caste Sondiya Rajput, Luharia, Gram
Panchayat Luharia, Panchayat Samiti, Dug, Tehsil Gangdhar, District Jhalawar (Raj.)
----Applicant-Respondents
2. (S.B. Civil Writ Petition No.11851/2016)
Madan Singh S/o Shri Narayan Singh, B/c Sondhiya Rajpoot, R/o Mangawaliya, Gram
Panchayat Luhariya, Panchayat Samiti Dag, Tehsil Gangadhar, District Jhalawar.
----Applicant-Petitioner
Versus
1. District Election Officer, (Panchayat Election), Jhalawar, (Raj.)
2. Returning Officer, Village Panchayat Luhariya, Panchayat Samiti Dag, Tehsil
Gangadhar through District Election Officer, Jhalawar.
3. Smt. Teena Bai W/o Dasharath Singh, B/c Sondiya Rajpoot, R/o Luhariya, at present
Sarpanch Village Panchayat Luhariya, Panchayat Samiti Dag, Tehsil Gangadhar, District
Jhalawar.
----Non-Applicant-Respondent
Date of Order: August 10, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Shailesh Prakash Sharma, for the petitioner.
Mr. Nikhlesh Katara, for the respondent.
2
BY THE COURT:
Both these petitions are interconnected as the two challenge the impugned judgment dated 4-6-2016 passed by Senior Civil Judge Jhalrapatan, District Jhalawar, the Election Tribunal (hereinafter `the Election Tribunal') in Election Petition No.1/2015, titled Smt. Madan Singh Vs. Teena Bai, on different aspects to the extent the petitioners are aggrieved thereof. They are therefore being decided by a common judgment.
By the impugned judgment dated 4-6-2016 the Senior Civil Judge Jhalrapatan, District Jhalawar, the Election Tribunal (herinafter 'the Trial Court') has allowed Election Petition No.1/2015, titled Smt. Madan Singh Vs. Teena Bai, filed by the election petitioner (hereinafter `the EP') and set aside the election of Teena Bai, the returned candidate (hereinafter `the RC') as Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar. Further directions were issued to conduct fresh election on the resultant vacant post of Sarpanch.
The EP is aggrieved of the judgment dated 4-6-2016 to the extent the trial court despite setting aside the election of the RC on the post of Sarpanch of village Luhariya did not declare him to be elected, even though he was the only other candidate at the election, 3 and instead directed for holding of the fresh election. It is the EP's case that as the only other candidate at the election he ought to have been declared as the elected Sarpanch as had been prayed for and in respect of which an issue had been struck.
The RC has challenged the impugned judgment on the trial court setting aside her election on the finding that she contested the election on the basis of fabricated documents to gloss over her lacking the statutorily mandated eligibility of the minimum age of 21 years to contest the election to the post of Sarpanch provided under Section 19(a) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994').
The facts of the case are that election for the post of Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar was held on 18-1-2015 as per the provisions of the Act of 1994 and the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter `the Rules of 1994'). Result thereof was declared on 18-1-2015 and the RC was declared elected as Sarpanch. The EP challenged the RC's election on the ground that she was ineligible for contesting the election for lack of requisite minimum educational qualification and for being underage. It was stated that in the Scholar Register (Ex.10) of the School the RC attended, i.e. Saraswati Gyan Mandir Bolia, Distt. Mandsaur (MP) the 4 date of birth RC was recorded as 11-1-1997, which was later fraudulently tampered by overwriting and shown as 1-1-1992. Similarly in the scholar register (Ex.16) maintained by the RC's subsequent School i.e. Govt. M.S. Chandkheri Khurd (Garoth) Distt. Mandsaur (MP) there was tampering to show the RC's Date of Birth as 1-1-1992 instead of 11-1-1997 as it actually was. It was submitted that the RC had not acquired the minimum age of 21 years to contest the election when she did. The RC's Class VIII pass claim was also challenged contending that the certificate to that effect were forged and fabricated. It was alleged that the EP's objection with regard to RC's ineligibility were not considered properly by the Returning Officer. It was prayed that the RC's election to the post of Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar be quashed and set aside on the grounds agitated and the EP, as the only other candidate who contested the election for the post of Sarpanch be declared elected.
On service of the election petition, the RC filed a reply of denial. She claimed to possess the requisite minimum qualification of class VIII pass and the requisite minimum age of 21 years for contesting the election. The Returning Officer filed reply to the election petition and submitted that the RC's nomination form was rightly accepted on the documents submitted and further that no 5 objection with regard to the RC's alleged ineligibility was laid before him by the EP at the relevant time.
On the basis of pleadings of the parties the Election Tribunal framed five issues as under:-
1- vk;k izkFkhZ viuh pquko ;kfpdk esa vUrZof.kZr rF;ksa izeq[kr;k dwVjfpr "kS{kf.kd nLrkostkr vkfn ds vk/kkj ij xzke iapk;r yqgkfj;k] iapk;r lfefr Mx] ftyk >kykokM+ ds ljiap in ds fy, gq, pquko ds ifj.kke fnukad 18-01-2015 dks "kwU; ?kksf'kr djkdj izkFkhZ dks xzke iapk;r yqgkfj;k ds ljiap in gsrq fuokZfpr ?kksf'kr djok;s tkus dk vf/kdkjh gS\
----izkFkhZ 2- vk;k izkFkhZ dh mDr ;kfpdk 10]000@& :i;s dksLV ij [kkfjt fd;s tkus ;ksX; gSa\
----vizkFkhZ Øe&1 3- vk;k izkFkhZ dh mDr ;kfpdk fe;kn ckgj gksus ls pyus ;ksX; ugha gS\
----vizkFkhZ Øe&2o3 4- vuqrks'k\ The EP examined five witnesses including himself and exhibited 20 documents. The RC did not produce any evidence oral or documentary.
On consideration of the evidence on issue No.1 the trial court inter alia considered Ex.10, scholar register of school Saraswati Gyan Mandir Bolia, Distt. Mandsaur and Ex.10A copy thereof which was plainly tampered as testified to by Aw.2 Laxman Singh the Head Master of the said school. Dinesh Mehar (Aw.4), Head Master of Govt. M.S. Chandkheri Khurd (Garoth) Distt. Mandsaur (MP) 6 admitted that Ex.16 copy of the Scholar register of Govt. M.S. Chandkheri Khurd (Garoth) Distt. Mandsaur (MP) was similarly tampered by over-writing on the RC's date of birth, with the intent of showing the RC's date of birth as 1-1-1992 instead of 11-1-1997 as it actually was in the original record. Hidayat Rangrej (Aw-5) stated that the transfer certificate (Ex.18) was not issued by the Government Secondary School Boliya, District Mandsaur (MP) because the RC never was admitted to the school nor studied there and no record qua her was available in the school. Aw.4 Dinesh Mehar stated that Exhibit-16 issued by the Government Secondary School Chandkhedi Khurd, Tehsil Mansaur, Madhya Pradesh was tampered with vis-a-vis the original record which he was carrying with him to the court.
On the aforesaid uncontroverted evidence and consideration of the over all circumstances pointing to the RC having forged/ tampered with her date of birth in school record with the clear intent of changing from 11-1-1997 to 1-1-1992 and finding her ineligible on the age requirement to contest the election on the post of Sarpanch, as also the fact that the RC did not lead any evidence oral or documentary to controvert such evidence before it, the trial court came to the conclusion that the RC's date of birth was actually 11-1-1997 but instead she wrongfully and fraudulently claimed it to be 1-1-1992 by fabricating documents. The RC was found by the 7 trial court to be less than the minimum required age of 21 years for contesting the election when she did on 18-1-2015 to the post of Sarpanch as mandated by Section 19(a) of the Act of 1994. Issue No.1 was decided in favour of the EP and against the RC.
Issue No.2 regarding the costs to be awarded to the RC in view of the fact that the RC did not lead any evidence was decided against the RC. Issue No.3, regarding the election petition being beyond limitation, was also decided against the non-applicants in view of the fact that no evidence was lead by them.
Consequently, the election of the RC was set aside and the concerned authorities were directed to proceed further with fresh election on the resultant vacant post of Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar Heard counsel for the parties and perused the material available on record.
I find no force in the contention of Mr. Shailesh Prakash Sharma, counsel for the RC that there was no evidence of probative worth before the trial court for it to hold that the RC did not attain the minimum requisite age of 21 years when she contested the election in issue. From the copy scholar register (Ex.10) of Saraswati 8 Gyan Mandir Bolia and copy of the scholar register of Govt. M.S. Chandkheri Khurd (Garoth) Distt. Mandsaur (MP) (Ex.16) it was proved before the Trial Court that the date of birth of the RC was indeed 11-1-1997, which was tampered with by over-writing to 1- 1-1992 as stated by Laxman Singh, (Aw.2), Dinesh Mehar (Aw.4) and also established from the evidence of Hidayat Rangrej (Aw.5). The evidence showed that while there was no correction in the original scholar registers, the copies thereof relied on by the EP to claim minimum age to contest bore unauthorised corrections/ over- writings with regard to her date of birth and a case of blatant forgery/ fabrication was made out. Scholar registers are public documents within the meaning of Section 74 of the Evidence Act, 1872. The contents thereof when they related to a fact in issue before the trial court were relevant facts within Section 35 of the Evidence Act and admissible. There was substantial probative worth thereto when they were duly also proved by the EP's witnesses who remained unshaken in their cross examination. As against the evidences pointing out to the RC's date of birth at least prima facie being 11-1- 1997 and not 1-1-1992, the RC did not lead any contra evidence oral or documentary before the trial court in rebuttal. No doubt the burden of proof in an election petition is on the EP but the onus can and does shift when initially evidence of some probative worth makes out a case for the EP. In the instant case the initial burden had been discharged on evidence laid by the EP. The onus of proof was 9 then shifted on the RC to rebut and dispel the effect of the EP's evidence brought on record prima facie making out a case against the RC. Further the RC ought to have had the best evidence as to her age in her possession and control but did not even have the courage to enter the witness box or to produce any defence witness to lead evidence in defence of her case of being 21 years of age when she contested the election on the post of Sarpanch.
The Evidence Act, 1872 defines "proved" as under:-
"A fact is said to be proved when, after considering the matters 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."
With reference to the above definition, a three judgment bench of the Apex Court in Chhedi Ram Vs. Jhilmit Ram [(1984)2 SCC 281] held that under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it i.e. the evidence and also the circumstances, 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. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not boggle at the necessary conclusion laying down an impossible 10 standard of proof and hold a fact as not proved for lack of a mathematical provision. The above enunciation applies fully to the instant case where the issue before the trial court was not one of corrupt practice at an election where proof beyond reasonable doubt was required, but one whether the RC had the requisite eligibility to contest the election to the post of Sarpanch, where standard of proof required was only preponderance of probabilities.
The upshot of the above discussion is that the EP proved his case, from the evidence on record that the RC was not 21 years of age, the minimum age requirement to contest the election on the post of Sarpanch when she contested in January, 2015. That case was firmed up by a complete failure of the RC to lead any defence evidence and not even entering the witness box. The trial court has in the circumstances committed no perversity, illegality or error of jurisdiction in concluding on its appreciation of evidence that the RC did not have the requisite minimum eligibility of age of 21 years to contest the election to the post of Sarpanch, for reason of which her election as such was liable to be set aside.
I find no force in the petition laid by RC. Dismissed. That takes the Court to the petition laid by the EP praying for declaring him Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar consequent to the 11 setting aside the election of the RC to the post of Sarpanch in view of the fact he was the only other candidate at the election in issue.
In Rupadhar Pujari Vs. Gangadhar Bhatra [(2004)7 SCC 654] the Apex Court held where only two candidates contested an election and the election of the returned candidate is set aside, the Election Tribunal could in such a situation/ circumstance declare the election petitioner to be declared elected even if the prayer in his petition was not happily worded.
Counsel for the EP submitted that the EP's case to be declared election is on a higher footing as in the instant case not only did the EP also pray for declaring him to be elected as Sarpanch, subsequent to the RC's election being set aside, but an issue on that count was also struck as part of issue No.1. But the learned trial court failed to consider this aspect of the case and did not address the issue in question. Counsel for EP relied on the judgment of the Apex Court in the case of Vishwanatha Reddy Vs. Konappa Rudrappa Nadgouda and another [AIR 1969 SC 604] to contend that on the returned candidate being found to be under statutory disqualification no fresh poll was necessary where the only other contesting candidate, as the election petitioner, was to be declared elected.
I am of the considered view that the learned trial court has committed an illegality, inasmuch as that after setting aside the 12 election of the returned candidate, it did not declare the election petitioner to be elected as Sarpanch in view of the fact that there was no any other candidate in the election for the post of Sarpanch in issue--the election was a contest only between the EP and the RC. The trial court in such a situation should have addressed the issue as struck on this count and declared the election petitioner to be elected. Therefore the impugned judgment to that extent warrants interference as it suffers from an error of jurisdiction, in the trial court not addressing the issue of EP being declared Elected as Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar. Therefore, the impugned judgment for non addressing the issue on this aspect of the matter but instead directing the Returning Officer to conduct fresh election for the post of Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar is set aside.
The upshot of the aforesaid discussion is that the finding of the trial court that the RC did not have the requisite minimum aged of 21 years to contest the election to the post of Sarpanch is upheld. SBCWP No.8165/2016 by the RC is dismissed. Consequent to which the EP, who was the only other candidate who contested the election was entitled to be considered for being elected to the post of Sarpanch. This aspect of issue No.1 should have been addressed by 13 the trial court.
The election petition is resultantly remanded to the trial court ONLY for passing order/ consideration of issue No.1 on the aspect of EP's right to be declared elected as Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangdhar, District Jhalawar consequent to the trial court setting aside the RC's election. SBCWP No.11851/2016 filed by the EP is accordingly allowed.
Following this limited remand of the election petition, the trial court is directed to disposed it of within two weeks from the date of receipt of a certified copy of this order.
The Deputy Registrar (Judicial) is to take appropriate steps for compliance.
(Alok Sharma), J.
arn/ 14 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.