Rajasthan High Court - Jaipur
Sunita And Anr vs Saroj And Anr on 17 November, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 7310 / 2017
1. Sunita Wife of Ranveer Singh by Caste Jat, Village Barakhur,
Gram Panchayat Madarpur, Tehsil Bharatpur (raj.)
2. Rajbala Wife of Satyendrapal Singh Singh by Caste Jat, Village
Barakhud, Gram Panchayat Madarpur, Tehsil Bharatpur (raj.)
----Petitioners
Versus
1. Saroj Wife of Gulab Singh by Caste Jat, Village Barakhud,
Panchayat Samiti Sevare, Tehsil Bharatpur (raj.)
2. Election Officer, Gram Panchayat Madarpur, Tehsil Bharatpur
(raj.)
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Counsel with Mr. M.S. Rajpurohit For Respondent(s) : Dr. P.C. Jain _____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA Judgment Date of Judgment :: 17/11/2017 Under challenge is the judgment dated 17.4.2017 passed by Sr. Civil Judge, Bharatpur in Election Petition Civil Misc. Case No. 4/2015, whereby the election petition laid by the petitioners-election petitioners (for short 'EP') against the respondent no.1-returned candidate (for short, 'RC') has been dismissed.
Brief facts of the case are that EPs and RC contested the elections held for the post of Sarpanch, Gram Panchayat, (2 of 17) [CW-7310/2017] Madarpur, District Bharatpur, the result of which were declared on 24.1.2015. In the said elections RC secured 827 votes and EPs secured 617 and 442 votes respectively. Resultantly, the RC was declared as elected Sarpanch of Gram Panchayat, Madarpur, District Bharatpur.
The EPs filed a petition against the RC under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereafter, 'the Act of 1994') readwith Rule 80 of the Rajasthan Panchayati Raj Election Rules, 1994 (hereafter 'the Rules of 1994') on the ground that despite the RC earlier having borne 2 children, two other children of the RC namely Shashi Kumari and Sonveer Singh were born after the cut off date i.e. 27.11.1995, and therefore, she was disqualified to contest the election to the post of Sarpanch, Gram Panchayat, Madarpur, District Bharatpur in terms of Section 19(l) of the Act of 1994. Further, the RC had not passed class-VIII examination and the documents pertaining to Class-X submitted by her alongwith her nomination form were forged, for which reason also the RC was also ineligible to contest the election in issue in terms of Section 19(t) of the Act of 1994.
It was submitted by the EPs in the election petition that the date of birth of RC's children, according to the school record (3 of 17) [CW-7310/2017] Class II through Class IX, was as under:
Sr. No. Name of Child Date of Birth
1. Satyendra Singh (Son) 12.10.1992
2. Sanjana Kumari 10.10.1995
(Daughter(
3. Shashi Kumari 12.7.1996
(Daughter)
4. Sonveer Singh (son) 6.6.1999
All the aforesaid four children of the RC passed the Secondary Examination from Board of Secondary Education, and the mark sheet thereof recorded their date of birth as under:
Sr. No. Name of Child Date of Birth
1. Satyendra Singh (Son) 12.10.1992
Sanjana Kumari
2. (Daughter) 10.10.1995
3. Sonveer Singh (Son) 6.6.1996
Shashi Kumari
4. 12.7.1996
(Daughter)
(4 of 17)
[CW-7310/2017]
However, the RC in her nomination form (4-D) and affidavit wrongly stated that as of 27.4.1994, the number of her children was 3 with their date of birth as under:
1. Satyendra Singh (son) 12.10.1989
2. Sanjana Kumari (Daughter) 13.11.1990
3. Shashi Kumari (Daughter) 24.12.1991 And further during the period from 27.4.1994 to 27.11.1995, another child one Sonveer was born on 14.11.1994.
It was stated that in the nomination form and in her affidavit, the RC had thus made false statement as to the date of birth of her four children, when in-fact she had given birth to two children before 27.11.1995 and the remainder two children after 27.11.1995. It was submitted that on this false and incorrect information concealing material facts, her nomination form was accepted by the Election Officer. It was further submitted that the RC had not passed Class-Xth examination. The Transfer Certificate and marks sheet of High School Examination, 1985 as attached with the nomination form had been forged. It was for this reason that the RC knowingly did not mention in her nomination form as to in which school she read from Class-I to Class-VIII.
(5 of 17) [CW-7310/2017] On receipt of summons on the election petition, the RC put in appearance and filed a reply of denial. Her contention was that albeit she had four children, their date of birth mentioned in the school record and the marks sheet issued by the Rajasthan Board of Secondary Education and as consistently recorded Class-II to Class-IX on being so stated inter-alia by her husband in signing the admission forms, was incorrect and the date of birth of her four children as stated in the nomination form was correct except in regard to the date of birth of Shashi Kumari (RC's daughter) which had been mentioned as 24 th December instead of 13th December due to a typographical error. The RC asserted she studied from Deepchand Sr. Secondary School, Naugava (Hathras) as a regular student and the certificate in regard thereto was genuine.
Based on the pleadings, trial court framed 5 issues. The first was as to whether two of the four children of the RC were born subsequent to 27.11.1995 rendering her ineligible to contest the elections for the post of Sarpanch, Gram Panchayat, Madarpur, District Bharatpur. The second pertained to whether 40 votes were unlawfully and illegally rejected by the Election Officer to the EPs' disadvantage and RC's corresponding advantage. The third was as to whether the EPs were entitled to (6 of 17) [CW-7310/2017] any relief in the election petition despite not having raised objections before the Election Officer pertaining to the alleged ineligibility of the RC to contest the election of the post of Sarpanch. The fourth issue pertained to the maintainability of the election petition for reasons of allegedly not having been presented in person by the election petitioners themselves. The fifth was as to whether a joint election petition at the instance of two candidates was maintainable against the RC.
The trial court vide its impugned judgment dated 17 th April, 2017 decided issues no. 1 and 3 against the EPs and issue no. 4 and 5 in their favour. However, the ineligibility of the RC on the ground of her having borne the third and the fourth child Shashi Kumari and Sonveer Singh subsequent to 27.11.1995 and the another ground of her not having the requisite educational qualification was decided against the EPs. Resultantly, the election petition was dismissed.
Hence, this petition.
Mr. Kamlakar Sharma, Sr. Counsel appearing for the EPs has contended that the trial court committed a grave perversity in overlooking the admission of the RC's husband Gulab Singh in the admission forms of Shashi Kumari and (7 of 17) [CW-7310/2017] Sonveer Singh as to their date of birth being 12.7.1996 and 6.6.1999 and of the public records as the marks sheets issued by the Rajasthan Board of Secondary Education were pertaining to two of her children Shashi Kumari and Sonveer singh having been born on 12.7.1996 and 6.6.1999 respectively rendering her clearly ineligible to contest the election on the post of Sarpanch, Gram Panchayat, Madarpur, District Bharatpur. It was further submitted that the trial court overlooked other definitive and clinching evidence against the RC and acted against the weight of overwhelming evidence to hold that both Shashi Kumari and Sonveer Singh were born prior to 27.11.1995. It was submitted that a trial court does not have an absolute freedom to evaluate competing evidence on its whims and fancies. Doing so, as has been done in the instant case, is an error of jurisdiction, which warrants interference by this Court in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Mr. Kamlakar Sharma submitted that Ex. A/9, birth certificate of Shashi Kumari, was issued on 23.3.2015 and Ex. A/10, birth certificate of Sonveer Singh, was issued on 27.12.2014 by the Registrar, Birth-Death Registration, Municipal Council, Bharatpur purportedly testifying the date of their birth as 13.12.1991 and 14.11.1994 respectively had no probative value at all in view of (8 of 17) [CW-7310/2017] the fact that the primary evidence based whereon they were purportedly prepared, information from the Zanana Hospital and Rastogi Hospital respectively were not part of the evidence and not exhibited before the trial court. It was further submitted that the evidence in the RC's defence both of the Registrar, Birth and Deaths, Municipal Council, Bharatpur (NAW-3) and Dr. Sanjay Rastogi (NAW-2) made out no case to displace the admissions of the RC's husband in signing the contemporareneous admission forms of Shashi Kumari and Sonveer Singh when they were admitted to the Shiv Aradhana Upper Primary School (Ex.-15 & 14 respectively) and C.S. Modern Secondary School, Krishna Nagar, Bharatpur (Ex.-A/3 and A/2 respectively), which consistently established beyond an iota of doubt that the date of birth of Shashi Kumari was 12.7.1996 and Sonveer Singh was 6.6.1999 respectively. The trial court, in so doing, Mr. Kamlakar Sharma submitted, effectively negated the law as encapsulated in Section 17 of the Evidence Act whereunder 'admission' is the best proof of a fact in issue.
No other argument has been advanced by Mr. Kamlakar Sharma counsel for the EPs.
(9 of 17) [CW-7310/2017] On the other hand, counsel for the RC Dr. P.C. Jain defended the impugned judgment dated 17.4.2017 and stated the finding of fact as to the date of birth of Shashi Kumari and Sonveer Singh being 13.12.1991 and 14.11.1994 respectively arrived at, on appreciation of evidence by the trial court, brooks no interference at the hands of this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India. Dr. P.C. Jain submitted that certificates of birth of Shashi Kumari and Sonveer issued by a statutory authority Registrar, Birth and Death under the Registration of Births and Deaths Act 1969 have been considered by the trial court to hold that their date of birth earlier recorded was erroneous and non binding. It was submitted that this Court does not exercise either appellate or revisional jurisdiction to re-weigh and re-valuate the evidence as is being required by the EPs in this petition.
Heard. Considered.
It cannot be disputed that admission is the best proof. The Apex Court has so held in 1974 (1) SCC 242 Nagin Das Ram Das Versus Dalpat Ram Ichharam @ Brijram. It is indeed however true that evidentiary admissions, as in the instant case, inter-alia attributable to the husband of the RC with (10 of 17) [CW-7310/2017] reference to Ex. 15 and 14 evidencing that he admitted Shashi Kumari's date of birth being 12.7.1996 and Sonveer's date of birth being 6.6.1999 and on the basis of public records i.e. Secondary School marks sheets of Rajasthan Board of Secondary Education similarly so recording could have been shown to be wrong by evidence of high probative worth as a heavy burden is cast on the party to a litigation seeking to renege from admissions of a fact in issue before the trial court. In this case, the trial court clearly failed to comprehend that the evidence at the instance of RC to renege on her husband's admission in writing and from the public records of Shashi Kumari being born on 12.7.1996 and Sonveer Singh on 6.6.1999 on the basis of birth certificate of Shashi Kumari dated 23.3.2015 (Ex.A/9) and birth certificate of Sonveer Singh dated 27.12.2014 (Ex.A/10) was of little avail and they had little probative worth. For one, the birth certificate of Shashi Kumari was belatedly issued on 23.3.2015 by the Registrar, Birth and Death, Municipal Council, Bharatpur subsequent to the filing of the election petition on 16.2.2015 while the birth certificate of Sonveer Singh was issued by the Registrar, Birth and Death, Municipal Council, Bharatpur on 27.12.2014, only about a month prior to the election held on 24.1.2015. Both the certificates were thus (11 of 17) [CW-7310/2017] issued after about 20 years of the purported birth of the aforesaid two children of the RC, as claimed by her. This circumstance is not without consequence for evaluating the probative worth of the birth certificates. Further the Registrar, Birth and Death, Municipal Council, Bharatpur who appeared as NAW-3 admitted that in the records of the Registrar of Birth and Death, information of the alleged birth of Shashi Kumari on 12.7.1996 and Sonveer Singh on 6.6.1999 was not received from the hospitals where two were said to be born. NAW-2 Dr. Sanjay Rastogi in his cross-examination stated that his hospital where Sonveer Singh was allegedly born neither had the patient register at the time of recording of his evidence nor the relevant record of the indoor patient ticket of the time when Sonveer Singh was allegedly born in the hospital on 6.6.1999 for the reason that such indoor patient tickets were maintained only for 3 years. Dr. Sanjay Rastogi further stated that the delivery register was maintained only for 6 years and admitted that he could not state as to how a photocopy of the delivery register from his hospital purporting to show the birth of Sonveer Singh on 14.11.1994 (Ex.-11) was available with the RC after over a decade. He also admitted that Ex. -11, the photocopy of the purported delivery register relating to the alleged birth of (12 of 17) [CW-7310/2017] Sonveer on 14.11.1994 neither bore a page number nor was signed.
In the case of H.B. Gandhi Excise and Taxation Officer cum Assessing Authority, Karnal & Ors. Versus M/s. Gopinath and Sons & Ors. reported in in 1992 (Supplementary) Vol. II SCC page 312, the Apex Court has held that finding which is outrageous, defies logic and suffers from vice of irrationality can be said to be perverse. In the case of Rajinder Kumar Kindra Versus Delhi Administration through Secretary (Labour) and Others reported in 1984 (4) SCC 635, the Apex Court has held that merely because a finding is based on appraisal of evidence, it cannot escape a challenge on the ground of perversity. Finally in Satyavir Singh Versus State of UP reported in 2010 (3) SCC 174, applying a common prudence test, the Apex Court held that a perverse verdict is one against the weight of evidence which leads to distorted conclusions.
The Apex Court in the case of Mahila Bajrangi (Dead) Through ... vs Badribai W/O Jagannath & Anr. reported in (2003) 2 SCC 464 held that "Dehors the admissibility or otherwise of a particular piece of evidence, the question of probative value of the material is as much relevant and necessary to be considered (13 of 17) [CW-7310/2017] before the same being accepted as a legal piece of evidence sufficient in law to constitute proof of the fact sought to be established." The Apex Court then proceeded to record that "where the learned Single Judge had omitted to take into account vital aspects of the material on record and its probative value, he committed a grave error, which can be said to suffer from the vice of perversity."
In the instant case, the trial court has jettisoned the consistent evidence over several years from schools where Shashi Kumari and Sonveer Singh read in upto Class IX showing their date of birth as 12.7.1996 and 6.6.1999 respectively as also their very same date of birth recorded in the marks sheets of Secondary School Examination which constituted pubic record and were duly exhibited to perversely hold that merely on the basis of the questionable certificate of birth of little probative worth issued by the Registrar, Birth and Death, Shashi Kumari could be said to have born on 13.12.1991 and Sonveer Singh on 14.11.1994 they were born on 13.12.1991 and 14.11.1994. In doing so, requisite consideration warranted in law on the evidence was not bestowed by the trial court, such as on Ex.-5, which was letter dated 29.7.2015 written by the Principal, Shiv Aradhana Upper Primary School, Village Barakhur, Bharatpur. As (14 of 17) [CW-7310/2017] per school record, Shashi Kumari born on 12.7.1996 and Sonveer born on 6.6.1999. Also overlooked were Ex. 9 & 8, marks sheets issued by Rajasthan Board of Secondary Education pertaining to Shashi Kumari having passed Class-X in the year 2010, wherein her date of birth was recorded as 12.7.1996 and pertaining to Sonveer Singh having passed Class-X in the year 2012, wherein his date of birth was recorded as 6.6.1996. The trial court also overlooked without just cause the certificate issued by C.S. Modern Secondary School, Bharatpur qua Shashi Kumari and Sonveer Singh Ex.-11 and 12 respectively where Shashi Kumari was stated as per school record to have been born on 12.7.1996 and Sonveer on 6.6.1999. The trial court also overlooked that Ex. 11 and 12 were duly proved by AW-2 Chandra Sen Kuntal who stated that "Shashi Kumari and Sonveer Singh's date of birth were recorded in the admission form for admission, signed by the father when they sought admission into the class-IX in C.S. Modern Secondary School in the academic year 2008-09 and 2010-11 respectively. The trial court also did not take into account the effect of Ex. 15 and 14, duly proved before it establishing that when Shashi Kumari was admitted to Class-II in Shiv Aradhana School at Bharatpur, her father Gulab Singh had signed the admission form recording her (15 of 17) [CW-7310/2017] date of birth as 12.7.1996. Similarly, Gulab Singh had signed the admission form of Sonveer Singh when he was admitted to Class-I in Shiv Aradhana School at Bharatpur, his date of birth was given out by him as 6.6.1999. On the tests laid down by the Apex Court in judgments referred above, the finding of the trial court on the date of birth of Shashi Kumari and Sonveer Singh are perverse and so its conclusion of the RC being not ineligible for reason of given birth to two children after 27.11.1995.
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. With reference to the above definition, a three Judge 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, 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 (16 of 17) [CW-7310/2017] reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact as not proved.
It is well settled that a fact alleged in the election petition unless it pertains to an issue of corrupt practice is not to be proved beyond reasonable doubt but only on the standard of preponderance of probability. In the case of Smt.Ummed Kanwar Vs. Prabhu Singh [2012(4) WLC 14] it has been 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. 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 [(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.
The above enunciation applies fully to the instant case where the issue before the trial court was not one of corrupt (17 of 17) [CW-7310/2017] practice at an election where proof beyond reasonable doubt is 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.
In this view of the matter, I would quash and set-aside the impugned judgment dated 17.4.2017 passed by the trial court and hold that Shashi Kumari born on 12.7.1996 and Sonveer Singh born on 6.6.1999, were the third and the fourth child of the RC, born subsequent to 27..11.1995 rendering her ineligible to contest the election of the post of Sarpanch, Gram Panchayat, Madarpur, District Bharatpur.
Resultantly, the election of RC Saroj W/o Gulab Singh as Sarpanch of Gram Panchayat, Madarpur, District Bharatpur stands quashed and set-aside. The election Officer is directed to initiate steps forthwith in terms of the Act of 1994 and the Rules of 1994 to hold fresh elections on the resultant vacancy.
Writ petition stands allowed, as indicated above.
(ALOK SHARMA) J.
DK