Rajasthan High Court - Jaipur
Smt Batul Bano vs Smt Bismillah And Ors on 29 August, 2017
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.13689/2017
Smt. Batul Bano wife of late Shri Isamail Khan, resident of
village Nundrimehtan, village panchayat Nundrimehtan,
Panchayat Samiti Jawaja, District Ajmer.
... Non-applicant No.2-Petitioner
Versus
1. Smt. Bismillah wife of Shri Manohar, resident of village
Nundrimehtan, village panchayat Nundrimehtan, Panchayat
Samiti Jawaja, District Ajmer.
--- Applicant-respondent
2. The District Election Officer (Panchayat) and District
Collector, Ajmer.
3. The Returning Officer, village panchayat Nundrimehtan,
Panchayat Samiti Jawaja, District Ajmer through the District
Election Officer (Panchayat), State Election Department,
Collectorate Campus, Ajmer.
... Proforma Non-applicant- Respondents
Date of Order: August 29th 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. R.P. Singh, Senior Advocate with
Mr. Shashikant Saini, for the petitioner.
Mr. S.K. Saksena, for the respondent.
BY THE COURT:
This petition, purporting to be one under Article 226 of the Constitution of India but in fact basically relatable to Article 227 of the Constitution of India, has been filed 2 against the judgment dated 17-7-2017 passed by the Additional Senior Civil Judge No.1, Ajmer, whereby the election petition 13/2016 (23/2015) CIS(1/2016), titled Smt. Bismilla Vs. District Election Officer and Collector Ajmer, filed by the respondent-Election Petitioner (hereinafter the EP') challenging the election of the petitioner-returned candidate (hereinafter `the RC') was allowed and the election of the RC as Sarpanch of village Panchayat Nundrimehtan, Panchayat Samiti Jawaja, District Ajmer was set aside.
Election of the RC as Sarpanch of village Panchayat Nundrimehtan, Panchayat Samiti Jawaja, District Ajmer was called in question 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') by the EP inter alia alleging that the RC had contested the election for the post of Sarpanch on 17-1-2015 on the basis of forged and fabricated mark-sheet of Class-VIII and transfer certificate evidencing her having passed Class-VIII issued by Maharishi Parshuram Junior High School District Firozabad (Agra) rendering her eligible when she was not to contest the election to the post of Sarpanch held on 3 January 17, 2015 under Section 19(t) of the Act of 1994. And despite objections by the EP, the Returning Officer arbitrarily accepted the RC's nomination form. It was submitted that the mark-sheet and TC of the Maharishi Parshuram Junior High school, District Firozabad (Agra) certifying the RC to have passed Class-VIII on 20.5.1965 was palpably false as evident from the fact that it purported to have been verified / endorsed by the Basic Education Officer, Uttar Pradesh when the said post was not in existence at the relevant time in 1965 and had been established only in the year 1972. It was prayed that consequently the election of RC to the post of Sarpanch of village Nundrimehtan, Panchayat Samiti Jawaja, District Ajmer be set-aside and the EP securing the second highest number of votes be declared to be the elected Sarpanch.
RC filed reply of denial and submitted that she suffered no ineligibility as alleged. She asserted that the educational qualification of Class-VIII pass from Maharishi Parshuram Junior High school, District Firozabad (Agra) had been rightly accepted by the Returning Officer, whereupon she was rightly allowed to contest the election. The Returning Officer also filed reply to the election petition taking various objections to its maintainability. It was 4 submitted that no objection with regard to in-eligibility of the RC was ever raised before him at the time of filing of the nomination papers.
Based on the pleadings of the parties, the trial court finally framed following 7 issues:-
1- vk;k vizkFkhz la[;k&2 jktLFkku iapk;rh jkt vf/kfu;e dh /kkjk&19¼t½ ds rgr U;wure "kS{kf.kd ;ksX;rk /kkjd ugha gksus ds dkj.k xzke iapk;r uwUæhesgrku] iapk;r lfefr toktk ds fy;s fnukad 18-01-2015 dks lEiUu gq, ljiap in dk pquko yM+us ds fy, vik= Fkh \ &izkfFkZ;k 2- vk;k vizkFkhZ la[;k&2 dk xzke iapk;r uwUæhesgrku] iapk;r lfefr toktk ds ljiap in ds fy;s fuokZpu dh ?kks'k.kk] mlds }kjk U;wure "kS{kf.kd vgZrk iw.kZ ugha djus ds dkj.k fujLr fd;s tkus ;ksX; gS \ &izkfFkZ;k 3- vk;k xzke xzke iapk;r uwUæhesgrku] iapk;r lfefr toktk ds fy, fnukad 18-01-2015 dks lEiUu gq, ljiap in dk pquko dh erx.kuk ds nkSjku erks dk foHkktu =qfViw.kZ gksus ls izkfFkZ;k }kjk fjVfuZax vf/kdkjh dks erx.kuk LFky ij iqu% erx.kuk ckcr~ vkosnu is"k djus ij Hkh iqu% erx.kuk ugha djk;s tkus ls izkfFkZ;k iqu% erx.kuk djk;s tkus dh vf/kdkjh gS \ 4- izkfFkZ;k }kjk izLrqr pquko ;kfpdk vUnj fe;kn gS \ &izkfFkZ;k 5- vk;k izkfFkZ;k }kjk izLrqr pquko ;kfpdk jktLFkku iapk;rh jkt vf/kfu;e] 1994 dh /kkjk&43] 80 o 82¼2½ ,oa jktLFkku iapk;rh jkt ¼fuokZpu½ fu;e] 1994 ds izko/kkuksa dh vuqikyuk ugha fd;s tkus ds dkj.k [kkfjt gksus ;ksX; gS \ &vizkFkhZ la[;k&3 6- vk;k izkfFkZ;k ds i{k esa dksbZ okn dkj.k mRiUu ugha gksus o ;kfpdk fof/k fo:) gksus ls [kkfjt gksus ;ksX; gS \ &vizkFkhZx.k 7- vuqrks'k \ In support of the case, the EP examined herself as PW-1 and one Manohar as PW-2 and exhibited 14 documents. The RC examined herself as DW-3, one Ajmat Khan as DW-1 and Pappu Kathat as DW-2. No documents were exhibited. The Returning Officer Kailash Narayan 5 Singh was examined as DW-4.
On the evidence before it, the trial court found that the RC did not have the minimum requisite educational qualification of Class-VIII pass and the mark-sheet of Class- VIII as also the TC from Maharishi Parshuram Junior High school, District Firozabad (Agra) were palpably false and fabricated inasmuch as they purported to be endorsed and signed by the Basic Education Officer when allegedly issued in the year 1965, whereas in-fact no post of Basic Education Officer in the State of Uttar Pradesh then existed and had come into existence only in the year 1972. On this finding the trial court has set-aside the election of RC to the post of Sarpanch of village Nundrimehtan, Panchayat Samiti Jawaja, District Ajmer.
Hence this petition.
Mr. R.P. Singh, Sr. Counsel assisted by Mr. Shashi Kant Saini appearing for the RC submitted that the impugned judgment dated 17.7.2017 is vitiated by procedural irregularity entailing denial of the principles of natural justice. He submitted that Ex. 8 to 14 i.e. charge sheet following an investigation in a FIR No. 31/2015 under 6 Sections 420, 467, 468, 471 and 120B IPC, police station Beawar Sadar, District Ajmer against the RC with regard to forged mark-sheet and TC of Class-VIII from Maharishi Parshuram Junior High school, District Firozabad (Agra) (Ex.-8), Bail Application filed by the RC in the Court of ACJM No.1, Beawar, (Ex.-9), bail - bond executed by RC (Ex.-10), order dated 30.7.2016 passed by ACJM No.1, Beawar (Ex.11), letter of SHO to District Basic Education Officer, Agra for furnishing information in case no. 31/15 in regard to the Transfer Certificate from the Maharishi Parshuram Junior High school (Ex.-12), reply by District Basic Education Officer, Agra in regard to Transfer Certificate of RC (Ex.-13) and letter sent by Principal of Maharishi Parshuram school, Firozabad to SHO, Police Station Beawar in regard to leaving certificate of RC (Ex.-14), were not filed by the RC alongwith the election petition nor in-fact even subsequently by resort to the provision of Order 7 Rule 14(3) CPC. Instead, the said exhibits were brought on record in the course of the cross-examination of the Returning Officer DW-4 Kailash Narayan Singh. All the exhibits 8 to 14 related to investigation by the police on FIR No. 31/2015 P.S. Beawar Sadar, District Ajmer lodged against the RC with regard to her purportedly obtaining false and fabricated documents as to her educational 7 qualification of Class-VIII pass and putting the same to use to facilitate her filing the nomination papers to contest the election on the post of Sarpanch, were never put to the RC and yet she was condemned thereon without an opportunity to explain / rebut. This was grossly prejudicial to her. Mr. R.P. Singh submitted that the returning officer had no concern with the investigation by the police into the FIR lodged against the RC and quite rightly he therefore stated that he had no knowledge / concern on any of the matters which had allegedly transpired in the course of investigation by the police including its correspondence with the Department of Education, State of Uttar Pradesh on the issue of the year when the post of Basic Education Officer came into existence. Mr. R.P. Singh further submitted that it would have been only just and fair for the EP to have confronted the RC with the aforesaid documents, which evidence she sought to be read against the RC in the election petition. Mr. R.P. Singh, further submitted that in any event filing of challan by the police in FIR lodged against the RC (Ex.-8) was of no avail inasmuch as a challan against an accused by the police is only the opinion of the investigating officer that an offence had been committed. The validity of the police investigation remains to be proved in the course of trial, when alone on the basis 8 of statements (evidence) in court and cross-examination of the prosecution witness evidence both oral and documents relied upon by the prosecution, the culpability of an accused in respect of the offence alleged or otherwise, is finally determined. Mr. R.P. Singh further submitted that even a final judgment of criminal court is not binding on a civil court and in this view of the matter, the reliance on Ex.8 to 14 by the trial court in holding that the RC did not have the minimum requisite educational qualification of Class-VIII and that the mark-sheet and TC issued by the Maharishi Parshuram Junior High school, District Firozabad (Agra) were forged and fabricated, is wholly unsustainable and liable to be quashed and set-aside. Mr. R.P. Singh submitted that this is further warranted for the reason that the election to a public office should not be interfered with by the court unless sterling grounds therefor on clinching evidence are available. It was submitted that as against the aforesaid requirement of law, the election of the RC has been set-aside under the impugned judgment by the trial court on tenuous evidence of questionable probative worth.
It was prayed that resultantly the impugned judgment, therefore, be quashed and set-aside.
Mr. S.K. Saksena, counsel appearing for the EP 9 submitted that the judgment of the trial court is founded upon evidence lawfully admitted. No legal prohibition in regard thereto obtained nor in fact was it so contended before the trial court at any stage. All documents within the meaning of evidence defined under the Evidence Act were lawfully exhibited with any demur. Counsel submitted that Ex. 8 to 14 before the trial court were indeed filed at the time of cross-examination of DW-4 Kailash Narayan Singh, the returning officer, but there was neither any inherent illegality nor procedurally infraction in such exhibition. Attention of the Court was drawn to Order 13 Rule 1(3) CPC, which provides that the mandate / requirement of production of documents with the laying of the suit or in any event before the settlement of issues would not attract the documents produced for the cross-examination of the witness of the other party. Mr. S.K. Saksena further submitted that even Order 7 Rule 14(4) CPC provides that the requirement of the plaintiff producing document relied upon at the time the plaint is filed, will not apply to documents produced for the cross-examination of the defendant's witness. He further submitted that yet even if the RC was at all prejudiced by the production of Ex. 8 to 14 during the cross-examination of DW-4, it was open for her to move an application for an opportunity of rebuttal 10 evidence in regard thereto. That opportunity was not sought before the trial court. The documents were exhibited as Ex. 8 to Ex. 14. In the circumstances, it cannot be permissible for the RC to now agitate the said issue belatedly as if on a second word in petition under Article 227 of the Constitution of India.
Mr. S.K. Saksena further submitted that even on merits, the RC has no case whatsoever as Ex. 13 on record established that the office of the Basic Education Officer, District Uttar Pradesh was constituted only in the year 1972 and yet the mark-sheet and TC (Ex.-7) relied upon by the RC as evidence of her having passed the minimum requisite educational qualification issued in the year 1965 carried the endorsement of the Basic Education Officer. This rendered the aforesaid documents ex-facie forged and fabricated and have of no consequence to the RC's claim of having the requisite minimum educational qualification. It was submitted that on investigation by the police in the FIR filed against the RC for using and relying upon forged and fabricated documents of her purported minimum educational qualification of Class-VIII pass while filling up the nomination form for the post of Sarpanch of village Nundrimehtan, Panchayat Samiti Jawaja, District Ajmer, she has been challaned. The challan filed by the police was 11 relevant and hence admissible under Section 35 of the Evidence Act. The correspondences exchanged by the investigating officer and the Department of Education, Uttar Pradesh, which established that the post of Basic Education Officer was only constituted in the year 1972, were public documents under Section 74 of the Evidence Act and certified copies thereof were sufficient to prove the aforesaid documents without the necessity of the maker of such documents entering into the witness box before the trial court and proving the documents. Mr. S.K. Saksena then submitted that in this view of the matter, it is apparent that the judgment of the trial court is founded upon admissible evidence, which fairly and justly construed and rightly led to a conclusion that the RC was ineligible for reason of lacking in the minimum educational qualification of Class-VIII pass required for contesting the election for the post of Sarpanch. Mr. S.K. Saksena finally submitted that the judgment of the trial court founded, as it is, on admissible evidence, duly proved in accordance with law, does not warrant interference by this Court exercising superintending powers under Article 227 of the Constitution of India.
Heard. Considered.
12It is trite that this court exercising powers under Article 227 of the Constitution of India is not a court of appeal and it is not within its jurisdiction to appreciate the evidence laid before the trial court as if an appeal. The power of superintendence of this Court is limited to interfering with the judgments of the courts below where they are palpably perverse, ex-facie illegal or clearly suffer from a jurisdictional error leading to manifest injustice. In the context of the limited power of this Court in the exercise of its superintending jurisdiction while seized with the challenge to order / judgment of the court below particularly on findings of fact it has to be evaluated as to whether the impugned judgment is founded upon legally admissible evidence and the conclusions satisfy the test of preponderance of probability for the trial court coming to a conclusion, it did. The law so stated, a bare look at the impugned judgment would evidence that Ex. 8 to 14 before the trial court filed by the EP established that the RC sought to assert her qualification of Class-VIII pass to be eligible to contest on the post of Sarpanch on the strength of a mark- sheet (Ex.-2) and transfer certificate (Ex.-7) and endorsed by the Basic Education Officer, Department of Education, Uttar Pradesh as issued by the Maharishi Parshuram Junior 13 High school, District Firozabad (Agra). However, Ex.13 before the trial court established that the post of Basic Education Officer was created in the State of Uttar Pradesh in the year 1972 seven years subsequent to the purported endorsement of the mark-sheet / TC by the Basic Education Officer. In this view of the matter, signature of the Basic Education Officer were put on 20.5.1965 when the mark- sheet and TC were purportedly issued to the RC were palpably forged and fabricated. Ex. 13 letter of District Basic Education Officer, Agra was admissible as a public document under Section 74 and stood proved Section 77 of the Evidence Act by mere filing and marked an exhibit. No contrary documentary evidence of any probative worth was brought on record by the RC.
Section 3 of the Evidence Act states that a fact is 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 particular case to act upon the supposition that it exists. The standard of proof required in election petitions where not founded upon a ground of corrupt practice is that of preponderance of probability. The underlying election petition did not relate to an alleged 14 corrupt practice at the election. It was founded upon the election of the RC being vitiated for reasons of her in- eligibility and lack of the prescribed minimum educational qualification of Class-VIII pass to contest the election to the post of Sarpanch.
I am of the considered view that from the evidence on record on the test of preponderance of probability, it was amply proved before the trial court particularly on Ex. 8 to 14 that the RC did not have the minimum requisite educational qualification of Class-VIII pass and her reliance on Ex.-7 (Certificate issued by school management) in proof to have passed Class-VIII was absolutely without foundation. The mark-sheet of Class VIII and the TC similarly so claiming pertaining to the year 1965 were palpably forged and fabricated inasmuch as they sought to agitate an educational qualification on the basis of document endorsed by a non existent public officer in 1965, the Basic Education Officer. The trial court in these circumstances cannot be faulted for having come to the conclusion and holding that the election of the RC was liable to be quashed and set-aside.
I find no force in the contention of Mr. R.P. Singh, 15 counsel for the RC that Ex. 8 to 14 were wrongly taken on record as evidence by the trial court. Admittedly, the aforesaid documents were taken on record in the cross- examination of DW-4 Kailash Narayan Singh returning officer. Order 13 Rule 1(3) CPC and Order 7 Rule 14 (3) CPC allow for taking all documents on record in the course of cross-examination of the opposite party's witness. Nothing illegal on the strength of a statutory provision or even on precedent has been pointed out by Mr. R.P. Singh in regard to taking of Ex. 8 to 14 on record as the exhibits in the cross-examination of DW-4. I am of the considered view that if at all the RC sought to rebut Ex. 8 to 14 as brought on record, it was for her to have moved an appropriate application before the trial court. She did not do so. It does not now lie in her mouth to agitate before this court that she was prejudiced by Ex. 8 to 14 being brought on record in the manner they were.
In the case of P.C. Purushothama Reddiar Vs. S. Perumal [(1972)1 SCC 9], a three judge bench of the Apex Court had the occasion to consider a contention as to whether the police report exhibited before the court was admissible in evidence despite the Head Constable, who submitted it, not being examined. In the context of the 16 aforesaid specific question formulated, the Apex Court held that the police report having been exhibited without objection, it was admissible in evidence. And a document having been properly exhibited the contents thereof were also admissible in evidence and the court free to rely thereon. The Apex Court also specifically dealt with the relevance of such a police report in paras 21 to 24, thus:-
"21. It was lastly contended that the evidence afforded by the Police reports is not relevant. This again is untenable contention. Reports in question were made by Government officials in the discharge of their official duties. Those officers had been deputed by their superiors to cover the meetings in question. Obviously they were deputed in connection with the maintenance of law and order which is the special responsibility of the police. Hence, the question whether those reports were made in compliance with any particular provision of law is irrelevant.
22. The first part of Section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty.
23. The issue before the Court is whether the 17 respondent had arranged certain election meetings on certain dates. The police reports in question are extremely relevant to establish that fact. Hence they come within the ambit of the 1st part of Section 35 of the Evidence Act. In this connection were would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar v. Ramaswami Pandia Thelavar [ILR 40 Mad 871]. Therein the 11 learned Judge observed thus: "As however the case may not stop here, we think it right to allow the petitioners in civil Miscellaneous Petitions Nos.845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely:(1) the decree of the Zilah Court of Tinnevelly, dated May 31, 1859, in Original Suit No.4 of 1859, (2) the Takid of the Collector to the Muzumdar on the death of Raja in 1850, (3) the reply of the Muzumdar's widow as to the conduct of Maruthappa Thevar who according to the plaintiff's case was the father of Gananapurani's mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI, and XXXVII respectively and incorporated in the record. The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collector's and Taluka offices were not 18 signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. We think, however, that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v.
Periyanayagam Pillai [[(1874) LR1 IA 209] they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them.
24. We are in agreement with the view taken by the Madras High Court in that case."
The upshot of the aforesaid discussion is that nothing illegal or perverse can be attributed to the impugned judgment passed by the trial court setting aside the RC's election to the post of Sarpanch.
I, find no force in this petition and the same is accordingly dismissed.
(Alok Sharma), J.
Dk/-