Rajasthan High Court - Jaipur
Smt Dropadi Meena vs Smt Vandana Meena on 23 March, 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.2211/2017)
Smt. Dropadi Meena W/o Shri Bharat Singh aged about 36 years, r/o Khedla
Gadali, Ward No.4, Tehsil/ Panchayat Samiti Mahuwa, District Dausa
Rajasthan.
...Petitioner/ Defendant
Versus
Smt. Vandana Meena w/o Shri Rajendra Meena, aged about 36 years, by
caste Meena, resident of Khedla Gadali, Ward No.4 Tehsil/ Panchayat Samiti
Mahuwa, District Dausa Rajasthan.
--- Respondent/ Plaintiff
Date of Order: March 23, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Kamlakar Sharma, Senior Advocate with
Mr. P.C. Dewanda, for the petitioner.
Mr. Rajesh Parashar, for the respondent.
BY THE COURT:
Under challenge is the judgment dated 28-1-2017 passed by the Senior Civil Judge Mahuwa District Dausa, whereby the election petition filed by the respondent-election petitioner (hereinafter the EP') has been allowed and the election of the petitioner-returned candidate (hereinafter `the RC') to the post of Sarpanch of village Panchayat Khedla Gadali, Panchayat Samiti Mahuwa District Dausa has been set aside.
2
Election to the post of Sarpanch of village Panchayat Khedla Gadali, Panchayat Samiti Mahuwa District Dausa were held on 24- 1-2015. The EP contested the election and lost while the RC won it. The EP challenged the RC's election on two grounds i.e. (i) she had given birth to a third child after 27-11-1995, the cut off date under Section 19(l) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994'), which disqualified her to contest election to the post of Sarpanch, and (ii) that the RC did not have the requisite qualification of class VIII passed, and hence was also ineligible to contest the election in issue. It was submitted that the RC suppressed the aforesaid two aspects of her ineligibility on fabricated documents and got elected. Hence her election to the post of Sarpanch of village Panchayat Khedla Gadali, Panchayat Samiti Mahuwa District Dausa be set aside.
On notice on the election petition being received, the RC filed a reply of denial. Her case was that albeit she indeed had three children, two of them Lav Kumar and Kush Kumar were twins born on 14-1-2003 and in terms of the Explanation I to Section 19(l) of the Act of 1994 she was not ineligible as the twins had to be reckoned as single delivery. The RC also claimed to have passed the 8th class from the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra. It was submitted that the election petition had thus been filed out of pique by the EP having lost the election inasmuch as 3 at the time of the RC filing the nomination papers no such objections to her candidature were taken before the Returning Officer.
Based on the pleadings of the contesting parties, the trial court framed the following issues:-
१- आय य च क म वर त नस र अप र द पद दव क त न सत न अलग अलग पसव स ह न क ब द भ द बच क जड़व ( गलत तर क क ममथय स+ न क आध र पर ग म प यत खड़ल गद ल क सरप क न व लड़ ?
--- य २- आय अप र द पद दव आठव प स क1 य गयत नह ह त हए क+टरच त अकत मलक व ट स क आध र पर ग म प यत खड़ल गद ल क सरप पद क न व लड़कर गलत तर क स ननव च त हई?
--- य
३- आय य च क कत वदन अप र स २२,०००/- रपय हज
ख इस य च क म प पत करन क1 अचधक रर ह= ?
--- य
४- आय पकक र@ क असय जन स य च क प ष य नह ह= ?
--- अय
५- आय अप र ५०,०००/- रपय ववशष हज ख प पत करन
क1 अचधक रर ह= ?
--- अय
६- अनत ष?
The EP examined herself as AW-1 and one Shyam Lal, Chairman of three member Committee, constituted by the Government to enquire into allegations of forgery by husband of the RC, one Bharat Singh Meena to show both of two sons born to RC separately, as twins as AW-2. They entered the witness box in 4 support of the election petition, and 24 documents were exhibited by the EP. The RC produced 11 witnesses in defence and exhibited 29 documents to buttress her case.
On consideration of issue No.1 the trial court found that the defence set up by the RC based on Lav Kumar and Kush Kumar being twins born on 14-1-2003 was absolutely false, as from the evidence on record it was established that their birth certificates both dated 18-3-2005 issued by the jurisdictional Registrar Births and Deaths attached to village khedla Gadali were founded on forged and fabricated entries such as certificate of the birth Lav Kumar and Kush Kumar as twins at the Community Health Center Mahuwa (hereinafter `the CHC Mahuwa') issued by NAW-2 Anita Chandrawat, ANM at the CHC and consequential report of birth by NAW-3 Raghuveer Singh, MPHW also at the CHC Mahuwa recording that twins were born to the RC on 14-1-2003. The trial court found that Anita Chandrawat (NAW-2) acted under the influence and in criminal conspiracy with the husband of the RC, Bharat Singh, who at the relevant time was working as Lab Technician at CHC Mahuwa. In fact from NAW-2 Anita Chandrawat's own admission in her cross examination it was evident that the entry of the twins being born to RC on 14-1-2003 was made by Bharat Singh himself in his own hand and only signed by her. That entry was the basis of report of NAW-3 Raghuvir Singh 5 sent to the Registrar Births and Deaths at the Gram Panchayat Khedla Gadali facilitating the issue of birth certificate dated 18-3-2005 recording that Lav Kumar and Kush Kumar were born twins at the CHC Mahuwa on 14-1-2003. The trial court noted that NAW-2 Anita Chandrawat admitted in her cross examination that she had no authorisation to issue the certificate of delivery of twins to the RC as she was working only in a capacity of an ANM nurse at the CHC Mahuwa. It was also found from the evidence on record that the certificate of delivery of twins to the RC was issued by NAW-2 contrary to the prescribed procedure for making such entry and recording deliveries of pregnant women at the CHC, which procedure required the names of such women being entered both in the Indoor Patient Department (IPD) and Outdoor Patient Department (OPD) registers. Anita Chandrawat admitted that she did not make the necessary verification of the RC's presence/ admission at the CHC Mahuwa on 14-1-2003 from such registers. The trial court further found that from the evidence on record i.e. extracts of the IPD and OPD registers, on 14-1-2003 or otherwise that the RC had neither been admitted nor delivered twins at the CHC Mahuwa. The trial court also noted from the evidence on record that on a complaint made by the EP, against Bharat Singh, husband of the RC, to his department about the forgery and fabrication of birth certificates of Luv Kumar and Kush Kumar at his instance, in an enquiry by a three member committee headed by Shyam Lal (AW-2), 6 vide report Ex.23, it was found that Bharat Singh manipulated and fabricated the record with regard to the alleged birth of twins born to his wife Dropadi Devi, the RC herein, at CHC Mahua on 14-1- 2003 and that in fact no such delivery or otherwise of twins by RC was found from the records of CHC Mahuwa. The trial court thus on consideration and appreciation of the evidences on record found that the birth certificate dated 18-3-2005 indicating that Lav Kumar and Kush Kumar were born as twins was wholly false and based on fabricated documents procured by Bharat Singh collusively in criminal conspiracy with NAW-2 Anita Chandrawat and NAW-3 Raghuvir Singh.
The trial court then considered the documentary evidence led by the EP in the form of Ex.4, i.e. extract from Reproductive and child health register maintained by the State Government following survey made of Eligible Couples (Yogya Dampattis) who are married, insterilised and hence reproductive capacity. This related to couples in village Khedla Gadali and Ex.3 Ration Card of the family of the RC. Therefrom it concluded that RC had borne three children after 27- 11-1995 first a girl Puja @ Kajal in the year 1999, Mayank @ Lav Kumar in the year 2001 and Kush Kumar in the year 2004. And thus having borne three children i.e. in 1999, 2001 and 2004, all subsequent to 27-11-1995, in terms of Section 19(l) was not eligible to contest the election to the post of Sarpanch of village Khedla Gadali, yet had done so illegally suppressing the factum of her 7 ineligibility by resort to forged and fabricated documents. And resultantly her election as Sarpanch was liable to be set aside.
With regard to the RC lacking minimum requisite educational qualification of having passed 8th class to contest the election to the post of Sarpanch of village Khedla Gadali as mandated by Section 19(t) of the Act of 1994, the trial court found that the transfer certificate dated 30-12-2014 issued by the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra evidencing that the RC had passed class VIII in 1993-94 relied upon in support of the RC's educational qualification was also false, fabricated and a blatant forgery. It was found that for one, the said certificate was at odds with the attendance record of the RC at the said school in class VIII which recorded her purported attendance on Sundays and other holidays such as Gurunanak Jayanti, Mahashivratri and Shitla Ashtami. Further the transfer certificate in issue indicated that the RC had earlier read upto class V at the Vinod Memorial Public School Kheragarh, while the Principal of Vinod Memorial Public School Kheragarh vide letter dated 17-3-2015 (Ex.20) reported that the RC was never a student at the said school. The trial court did not in the context of the evidence on record lend much credence to the subsequent correction in the Transfer Certificate issued by the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra that the RC had read upto class V at the Maa Bhagwati primary school, 8 Kheragarh, Agra. Most importantly the trial court also took into consideration the RC's cross examination wherein she admitted that she was not capable of reading and comprehending the contents of Ex.19 and Ex.21, which were RC's own T.C. claiming to her having passed class VIII from Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra. The RC in her cross examination also admitted that she could not read and comprehend any of other documents produced by her in defence to the election petition and not even her own affidavit. The trial court thus concluded that the RC was definitely illiterate and even otherwise from a wholistic reading and appreciation of the evidences on record both laid by the EP and RC her certificate of passing class VIII, the minimum requisite educational qualification to contest the election to the post of Sarpanch was clearly fabricated and entailed her election being set aside.
Heard counsel for the RC as also the EP.
Mr. Kamlakar Sharma Senior Advocate appearing with Mr. P.C. Dewanda for the RC submitted that the trial court erred in relying on Ex.23 and Ex.27 produced by the EP and in concluding that Lav Kumar and Kush Kumar were not born to RC as twins on 14-1-2003 despite their birth certificates dated 18-3-2005 issued by the Registrar Births and Deaths Gram Panchayat Khedla Gadali. He submitted that presumption of authenticity of public document 9 ought to have been drawn and they ought not to have been doubted on mere suspicion as has been done under the impugned judgment dated 28-1-2017. And in any event, Mr. Kamlakar Sharma submitted, the enquiry report of the three member Committee headed by Shyam Lal Exhibit-23 was not admissible in evidence and could not have been relied upon by the trial court as it wrongly was. Mr. Kamlakar Sharma submitted that the report of the Divisional Commissioner Ex.27 was also vitiated on the same count. The trial court committed a perversity and an illegality in relying upon such inadmissible documents and holding the RC's election as Sarpanch of village Khedla Gadali as vitiated and liable to be set aside. It was submitted that the trial over emphasised an error in the T.C. Dated 30-12-2014 first issued by the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra recording that the RC had passed class V from the Vinod Memorial Public School even though the error was subsequently rectified and it was recorded that the RC had passed class V from Maa Bhagwati Primary School Kheragarh Agra. Mr. Kamlakar Sharma submitted that the matter of authenticity of the TC issued by the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra was enquired by the jurisdictional Education Officer, Kheragarh, Agra, who entered the witness box in defence of the RC to reiterate that the rectified TC issued by the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra was authentic as per records made available to him during the enquiry. It was submitted 10 that this aspect of evidence was overlooked by the trial court rendering its finding on the class VIII not having been passed by the RC perverse.
Counsel for EP supported the impugned judgment. Considered.
I find no force in the submission of Mr. Kamlakar Sharma that Ex.23 and Ex.27 were not admissible in evidence, and could not be relied upon by the trial court to hold that the RC had borne three children Puja @ Kajal in 1999, Lav Kumar in 2001 and Kush Kumar in 2004 respectively and conversely that Lav Kumar and Kush Kumar were not born as twins on 14-1-2003. For, one the enquiry report Ex.23 and Ex.27 are public record exhibited without the RC's demurer by the EP. In Shyam Lal @ Kuldeep Vs. Sanjeev Kumar [AIR 2009 SC 3115] the Apex Court held that an objection as to admissibility and mode of proof of document must be taken at the trial before it is received in evidence and marked as an exhibit. And even otherwise a public document covered by Section 74 of the Evidence Act is admissible without proof. Aside of the aforesaid, Exhibit-23 was also proved before the trial court on the evidence of Aw-2 Dr.Shyam Lal, who headed the three member enquiry committee against Bharat Singh, Lab Technician--the RC's husband, on a complaint against him by the EP that he had misused his official position to conspire with others in the CHC Mahua to create a forged 11 record of his sons Lav Kumar and Kush Kumar being born as twins on 14-1-2003 at CHC Mahuwa. Further, the contents of Ex.23 were also proved to the trial court's satisfaction from the evidence of NAW-2 Anita Chandrawat and NAW-3 Raghuvir Singh. The impugned judgment evidences that the trial court took into consideration other documents on record such as Exhibit 4 and Exhibit 3 also partaking character of public documents and admissible under Section 74 of the Evidence Act and has rightly concluded that the RC had borne three children Puja @ Kajal in 1999, Lav Kumar in 2001 and Kush Kumar in 2004 respectively. The trial court also came to a definitively plausible finding of fact that the RC had not borne twins on 14-1-2003 notwithstanding the birth certificates having been issued to that end by the jurisdictional Registrar of Birth and death on 18-3-2005 for the reason that the said birth certificates were founded on wholly fabricated report by NAW-2 Anita Chandrawat, a nurse at CHC Mahuwa in collusions with the RC's husband Bharat Singh, as she was neither authorized in writing to record the purported births at CHC Mahuwa nor in fact complied with the established procedure of verifying the IPD and OPD registers at CHC Mahuwa prior to certifying the births at the center. The conclusion of the trial court is neither perverse nor illegal patently or otherwise open to a challenge. It is thus apparent that the RC was ineligible to contest the election to the post of Sarpanch of village Khedla Gadali having borne the third child after 12 27-11-1995.
The trial court has also concluded from the evidence on record that RC did not have the requisite educational qualification of having passed class VIII, notwithstanding the TC from the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra which was found to be not authentic in view of evidence not the least of which was the admission of RC herself in her cross examination that she was incapable of reading and comprehending the documents submitted by her before the court. Further there was no plausible explanation of the RC for studying at the primary and middle schools at Kheragarh, District Agra in UP, while she was resident of village Khedla Gadali district Alwar in Rajasthan. The oddity of a minor girl going to schools over a hundred kilometers from home was compounded to the point of incredulity on the RC's admission in her cross examination that some of her brothers and sisters had studied in the village Khedla Gadali and nearby schools/ colleges and that she had also been admitted to a school in her parental village where she studied only for 2-4 days. She also stated that she did not remember the name of the school she purportedly went to in class V at Kheragarh Agra and did not remember the year when she passed class-V. I am of the considered view that the evidence on record the judgment of the trial court cannot even remotely be held to be vitiated by any perversity, misdirection in law or patent illegality in holding that the RC was not at all educated and her TC from the 13 Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra evidencing her passing class VIII was fabricated. The conclusions of the trial court are thus based on the appreciation of documents lawfully exhibited before it, proved by the witnesses and on their oral evidence.
In fact for the forgery and its unlawful use, the RC is also facing criminal trial along with others including one Kapil Jindal, the Principal of the Jagdish Prasad Junior High School Pipalkheda Kheragarh Agra who issued TC dated 11-4-2015 (Ex.19) claiming that RC had passed class VIII from the school for offences under Sections 420, 467, 471 and 120B IPC.
The jurisdiction of this court in exercise of its powers under Article 227 of the Constitution of India is not appellate. It is limited to addressing question of violation of statutory provisions, perversity, misdirection in law entailing manifest injustice or error of jurisdiction. None of the aforesaid situations are made out in the present case. Contrarily, the impugned judgment dated 28-1-2017 passed by the trial court is a well considered one based on objective consideration of the evidence on record.
Consequently, in the facts of the case where the RC had contested the election to the post of Sarpanch on the basis of forged documents not only with regard to her educational qualification but also with regard to birth of her third child in 2004, this petition 14 challenging the impugned judgment dated 28-1-2017 is liable to be dismissed with costs of Rs.50,000/- to be paid to the Rajasthan State Legal Services Authority within a period of three months from today. Further the equitable extraordinary jurisdiction of this court having been invoked, this court would be failing in its duty if it were not to direct that the criminal trial of the petitioner along with others for for offences under Sections 420, 467, 471 and 120B IPC be expedited. The foundation of a democracy is clean and transparent elections. Criminality attributed to any person, candidate or otherwise has to be expeditiously addressed in public interest. The court cannot countenance a status quo--a "chalta hai" attitude. Consequently, the trial court seized of the petitioner's trial is directed to conclude it expeditiously and in any event within twelve months of the furnishing of a certified copy of this order. But this court would hasten to add that the direction for the expedited trial should not influence the outcome of the case before the trial court. It be decided on merits of the prosecution case and petitioner's defence.
Consequently, the writ petition stands dismissed with costs and directions above.
(Alok Sharma), J.
arn/ 15 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.