Rajasthan High Court - Jaipur
Smt Darshan Devi vs Jai Shree on 6 October, 2017
Author: Alok Sharma
Bench: Alok Sharma
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
S.B. Civil Writ Petition No.15846/2016
Smt. Darshan Devi W/o Shri Mukhtyar Singh, aged about 61 years, by
caste Jat, R/o village Kumha Panchayat Samiti and Tehsil Kumher,
District Bharatpur.
---- Petitioner- Non applicant
Versus
Jai Shri W/o Shri Pranveer Singh aged about 26 years, by caste Jat,
R/o village Kumha, Panchayat Samiti and Tehsil Kumher, District
Bharatpur.
--- Respondent
Date of Order: October 6th, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Suresh Pareek, Senior Advocate with
Mr. N.C. Sharma, for the petitioner.
Mr. M.M. Ranjan, Senior Advocate with
Mr. J.K. Moolchandani, and
Mr. Samay Singh, for the respondent.
BY THE COURT:
Under challenge is the impugned judgment dated 26-10- 2016 passed by Senior Civil Judge Kumher, District Bharatpur which allowed the election petition filed by the election petitioner (hereinafter `the EP') against the returned candidate (hereinafter `the 2 RC') setting aside her election as Sarpanch of Gram Panchayat Kumha, Panchayat Samiti Kumher, District Bharatpur held on 24-1- 2015.
The EP filed an election petition against the RC alleging that the RC despite her ineligibility to contest the election to the post of Sarpanch, for reason of her not having the requisite minimum educational qualification of class VIII pass from a recognized school mandated under Section 19(t) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994'), did so on a false and fabricated mark-sheet and Transfer Certificate (TC) of passing class VIII from the School Kursunda (Mathura) (hereafter `the school'). It was submitted that the school was an institution only on papers and was never actually run. It was stated the RC married in the year 1961 and had mothered two children before 1969 when she claimed to have passed class VIII from the school. If it were so, the RC was 25 years of age at the relevant time completely improbablising her claim of having passed class VIII. It was further stated that in the year 1970 there was no post of the Basic Education Officer in UP, yet the RC's TC purportedly issued on 25-7-1970 had been counter signed by the District Basic Education Officer Mathura and was thus an obvious forgery. Further the RC's roll number was not mentioned in the mark-sheet of class VIII making it ex-facie suspect, more so as class VIII examination in UP was a Board Examination. Despite objection in this regard before the Returning Officer, it was not 3 properly considered and rejected. It was prayed that RC's election be set aside.
The RC filed reply of denial and claimed that she was indeed class VIII pass from the school in issue and her transfer certificate and mark-sheet issued by the school were neither forged nor fabricated. The very maintainability of the election petition was questioned for lack of material facts in the plaint to constitute a cause of action. Other objections primarily procedural to the maintainability of the election petition were also raised. It was prayed that the election petition be dismissed with costs of Rs.50,000/-.
On pleadings of the contesting parties, five issues were struck by the trial court. Chief of which were whether the RC had indeed studied and passed class VIII from the school in 1969 or contested the election on the basis of forged and fabricated documents i.e. mark-sheet and TC of class VIII pass.
The EP in support of the election petition aside of herself as Aw-1 examined Kalyan Singh as Aw-2, and Deewan Singh as Aw-3 and exhibited 36 documents. The RC on her part in defence examined herself as NAW-1, Mahendra Singh as NAW-2, Nem Singh as NAW-3 and Mahaveer Singh as NAW-4, and exhibited 22 documents.
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The trial court from the evidence on record considered the Scholar Register of the school at Kursunda (Mathura) U.P. where the RC purportedly read upto class VIII (Ex.A-3), which was unsigned, mark-sheet (Ex.5), which did not have a roll number, transfer certificate (Ex.6), signed by the Block Education Officer on 25-7- 1970 even though the post was first created in Uttar Pradesh in 1972, draft list prepared in the course of the social and Economic Caste Census (SECC) (Ex.15), which indicated the RC to be an illiterate and which the RC admitted in her cross examination had been prepared on information supplied by her, sale-deeds (Ex.30-
34), where between 1991 and 2009 the RC put her thumb impression and not her signatures, enquiry report by Sub District Officer Sadabad, Janpad Haathras (Ex.28), holding the mark-sheet (Ex.5) and TC (Ex.6) issued to the RC as forged, as also the RC's cross examination which evidenced that she could not read her own affidavit, could not write the numeral 8 and admitted being unable to write any name except her own. Thereon the trial court concluded that both the mark-sheet of class VIII and TC (Ex.5 & 6) relied on by the RC as proof of her educational qualification of class VIII pass were forged and fabricated. The trial court therefore held that the RC was not eligible to contest election to the post of Sarpanch and yet having so contested and won, her election was liable to be set aside. It was so.
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Issue No.2, 3 and 4 regarding non deposit of Rs.500 security amount by the EP, non sending copy of the election petition to Election Officer, and non impleadment of Election Officer as party in the petition, were decided against the RC.
Hence this petition.
Mr. Suresh Pareek, Senior Advocate appearing with Mr. N.C. Sharma on behalf of the RC submitted that the finding of the trial court, holding that the mark-sheet of class VIII and the TC evidencing the passing of class VIII by the RC were forged and fabricated, is wholly perverse. It was submitted that the Scholar Register of the Kursunda school (Mathura) was one over 30 years old pertained as it did to 1969, and the presumption as to its genuineness under Section 90 of the Evidence Act ought to have been drawn by the trial court to the RC's benefit. Mr. Suresh Pareek submitted that Mahaveer Singh (NAW-4) the Principal of Government Senior Secondary School Rarah, in his statement had stated that the RC was admitted to the school in 1961 and left it in 1969 after passing class VIII. Yet that evidence was casually sidetracked without legal justification. Mr. Suresh Pareek submitted that while evidence beneficial to the RC was jettisoned, that produced by the EP was lopsidedly emphasized and impermissible inferences to the RC's detriment drawn. Mr. Suresh Pareek submitted that the report (Ex.28) prepared by SDO Sadabad, District Hathras 6 finding that the RC had never read at the Kursunda school (Mathura) and that the mark-sheet of class VIII (Ex.5) and Ex.6 TC purportedly issued by the school was forged was ex-parte, drawn by an officer in the State of Utter Pradesh and therefore of no event. Further it was submitted that the SDO Hathras was under influence of the opposite party politically connected as it was through Deewan Singh Aw-3, to the then ruling Samajwadi party. The SDO Hathras did not appear in court to prove the contents thereof and hence the said report had no probative value. Mr. Suresh Pareek submitted that SECC draft list (Ex.15) also has no evidentiary value and should not have been relied upon as wrongly was by the trial court. It was further submitted that the RC after passing class VIII in 1969 was engaged in agricultural work and thinning memory with advanced age at the time of her cross examination leading to odd responses to questions in the cross examination cannot be made a ground to hold that she was illiterate and not class VIII pass. The trial court so having done has exercised its jurisdiction irregularly and misdirected itself on the core issue in the trial before it as to whether the RC had studied upto and passed class VIII. Instead the trial court has donned the hat of an examiner to evaluate the RC's proficiency as a class VIII student.
Mr. M.M. Ranjan, Senior Advocate appearing with Mr. J.K Moolchandani for the EP submitted that the impugned judgment passed by the trial court is founded upon appreciation of evidence 7 on record--all of which was relevant and hence admissible in law. He submitted that not one piece of the evidence of the EP admitted by the trial court has been impugned as inadmissible. It was submitted that the RC's mark-sheet of class VIII from the Kursunda school stated to be issued on 7-7-1975 was palpably an unreliable document. It was without a roll number even though class VIII examination in UP at the relevant time was a Board examination as established from the evidence before the trial court and could not have been written without a roll number. Very interestingly the mark-sheet was issued on 7-7-1975, subsequent to the TC purportedly issued on 25-7-1970. Further the RC's transfer certificate was shown to be attested on 25-7-1970 by the District Basic Education Officer, whereas, as per evidence on record, such post in Uttar Pradesh was created only in the year 1972 (Ex.19 and Ex.20). Mr. M. M. Ranjan further submitted that in the SECC survey (Ex.15)--a public document, the RC's name was entered where she was shown to be illiterate on her own information as admitted by her in her cross examination. It was further submitted that during the period 1991 and 2009 five sale-deeds (Ex.30 to 34) were executed by the RC wherein she put only her thumb impression, again clearly indicating her to be completely illiterate. Mr. M.M. Ranjan then drew the court's attention to the RC's cross examination where she stated on being required as to her inability to read over her own affidavit or write any name other than her own. Mr. M.M. 8 Ranjan submitted that against the weight of the evidence laid by the EP in support of the election petition, the defence evidence of the RC was patently worthless, of little probative worth and inspired no confidence. Supporting the impugned judgment dated 26-10-2016, Mr. M.M. Ranjan prayed for dismissal of the petition.
Heard. Considered.
Under the Evidence Act, 1872 "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." A three judgment bench of the Apex Court in Chhedi Ram Vs. Jhilmit Ram [(1984)2 SCC 281] has therefore reiterated that under the Indian Evidence Act, a fact is said to be proved when after considering the issue before it i.e. the evidence and also the circumstances, (underlining mine) the court either believes fact 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, and having regard to the facts and circumstances of a case, the reasonable probability is all one way. It was held that in such a scenario the court must not boggle at the necessary conclusion, and instead lay down an impossible standard of proof and hold a fact as not proved for lack of 9 mathematical precision. 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 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 a preponderance of probability.
The trial court relying on discrepancies and interpolations of pages in the scholar register as also the fact of it not being signed or even verified by the current Principal of the Kursunda school found it of little probative worth. From the other evidences on record, discussed above, the trial court came to the conclusion that RC's mark-sheet (Ex.5) and Transfer Certificate (Ex.6) were palpably forged and fabricated. The judgment of the trial court is founded upon the evidence admissible in law and appreciation thereof on the statndard of preponderance of probabilities. Counsel for the petitioner sought to agitate this petition as if an appeal, submitting that there the evidence before the trial court was not sufficient for it to come to a finding that the RC's mark-sheet and TC issued by the Kursunda school were forged and fabricated. It is well settled that this court in the exercise of its jurisdiction under Article 226 of the Constitution of India or for that matter Article 227 thereof cannot reweigh or reappreciate the evidence before the trial court. The court's jurisdiction is limited only to addressing situations of 10 perversity, patent illegality and error of jurisdiction in a judgment impugned leading to manifest injustice. None of the saforesaid grounds obtain in the present case.
The contention of Mr. Suresh Pareek based on Section 90 of the Evidence Act in regard to the scholar register of the Kursunda school Ex.A-3, the RC's mark-sheet Ex.5 and TC Ex.6 is of no avail. For one, no application was moved before the trial court invoking the said provision of law. It is well settled that to invoke or not invoke the presumption under Section 90 of the Evidence Act is a matter of the trial court's discretion and that too after giving an opportunity to the opposite party to rebut it. No argument based on Section 90 of the Evidence Act is thus open to the petitioner in this petition under Article 226/ 227 of the Constitution of India impugning the trial court's judgment. Further in any event the presumption under Section 90 aforesaid is discretionary not imperative. It is the duty of courts to see that the presumption under Section 90 of the Evidence Act is not made the forger's paradise. The court can refuse to apply on an application made the presumption under Section 90 of the Evidence Act where evidence in proof of a document has been produced but rejected. It can also refuse to raise the presumption where reasons obtain to believe that the document in respect of which Section 90 of the Evidence Act presumption is invoked is a fabrication or where grave suspicion attracts to it. Besides the affect 11 of presumption may be lessened and diluted where serious question arise as to the genuineness of the document in issue. It has been stated in Monir's "Law of Evidence" 1986 Edition that unless a document is free from reasonable suspicion and is not open to question by surrounding circumstances the presumption Section 90 of the Evidence Act cannot in any event be drawn upon. The court is under a duty to consider other evidences internal and external relevant to the document in order to be able to decide whether to invoke its discretion or not under Section 90 of the Evidence Act. It is in order to also record that there can be no presumption under Section 90 of the Evidence Act with regard to undated, unsigned document and documents which do not purport to be in the handwriting of any particular person (emphasis mine). Finally Section 90 of the Evidence Act is limited, only circumstances obtaining, to the trial court's discretion to dispense with proof of the signatures on the document over 30 years old or other writings therein which purport to be in the handwriting of a particular person and proof of signatures of attesting witnesses. But correctness or genuineness of every statement appearing in the document cannot be presumed. In the instant case, aside of the RC not invoking the trial court's discretion under Section 90 of the Evidence Act qua the scholar register of Kursunda school and it not being permissible to now do so in this petition under Article 226/ 227 of the Constitution of India, the said scholar register being both undated and signed as 12 also being found to be not regularly maintained but interpolated could not at all be a candidate for a presumption under Section 90 of the Evidence Act. The argument of Mr. Suresh Pareek on this count is thus wholly untenable and rejected.
I also do not find any force in Mr. Sursh Pareek's submission that the impugned judgment is preverse to the evidence on record. Perversity is a conclusion which no produent man could arrive at on the evidence on record. This is not so in the case at hand. Contrarily there was, as recorded above, more than ample evidence before the trial court to hold that Ex.5 and Ex.6 mark-sheet of class VIII and RC evidencing passing the said class by the RC were forged and fabricated. Nor is the impugned judgment vitiated for non consideration of evidence laid by the RC. A perusal of the trial court's judgment shows that all evidence including of the RC has been considered threadbase. I am also of the considered view that the questions to the RC in her cross examination were not so much a test of her knowledge and intellectual ability but a method to subject her to the sure fire test of cross examination to ascertain the truth of her evidence that she had passed class VIII. And on that, as evident from the discussion here above, the RC collapsed as did her assertion of having passed class VIII.
I am of the considered view that in the facts of the case 13 evidence having been been laid before the trial court and it coming to the conclusion it did on the appreciation thereof, no interference by this court in this petition is warranted. Further in any event, I am also of the considered view that in an election petition, the court has to be pro active once the requisite issues have been framed on material facts being asserted/ denied and evidence is laid thereon. The court has to ascertain as to whether the RC's election suffers from the alleged statutorily prescribed illegality/ ineligibility to render it liable to be quashed and set aside. There is a public element to election petitions. The trial court has exercised its jurisdiction consciously in calling for the record of the school and evaluating it to facilitate it to come to a just conclusion on the disputes/ issues before it. The conclusions/ findings of the trial court on the appreciation of evidence before it laid by the contesting parties are eminently sustainable. The findings of fact by the trial court are lawful and beyond reproach. No illegality or violation of any statutory provision has been pointed out by counsel for the RC to warrant any interference in this petition by this court. The conclusions/ finding of the trial court on the RC not having passed class VIII and her class VIII mark-sheet and transfer certificate being forged and fabricated are wholly sustainable on a reasonable if not the only view on the evidence on record.
The upshot of the above discussion is that the impugned 14 judgment dated 26-10-2016 passed by the trial court setting aside the election of the RC as Sarpanch of Gram Panchayat Kumha, Panchayat Samiti Kumher, District Bharatpur is not even remotely perverse or vitiated by any illegality going to the root of the court's jurisdiction or entailing a jurisdictional error. The RC's election for the post of Sarpanch has rightly been set aside by the trial court under the impugned judgment.
There is no force in the petition. It is dismissed.
(Alok Sharma), J.
arn/ 15 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.