Rajasthan High Court - Jaipur
Laxman Prasad vs Pitambar And Ors on 1 August, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 12395 / 2017
Laxman Prasad Son of Late Shri Godaram Saini, by Caste Saini,
Resident of Bhagat Singh Ki Dhani, Shyampura, Tehsil Bansoor,
District Alwar (Raj.)
----Petitioner
Versus
1. Pitambar Son of Shri Umraolal Yadav, by Caste Yadav, Resident
of Village Nawalpura (Shyampura), Tehsil Bansoor, District Alwar
(Raj.)
2. Umakant Son of Babulal, by Caste Brahmin, Resident of Village
Post Shyampura, Tehsil Bansoor, District Alwar (Raj.)
3. Mukesh Son of Shri Rameshwar Yogi, Resident of Shyampura,
Tehsil Bansoor, District Alwar (Raj.)
4. Radheyshyam Son of Shri Chhanga Ram, Resident of
Shyampura, Tehsil Bansoor, District Alwar (Raj.)
5. Vikram Singh Yadav Son of Shri Banwari, by Caste Aheer,
Resident of Village Chandali, Tehsil Bansoor, District Alwar (Raj.)
6. Returning Officer (Panchayat) Gram Panchayat Shyampura,
Tehsil Bansoor, District Alwar (Raj.)
7. District Election Officer (Panchayat), Alwar (Raj.)
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Devendra Raghava For Respondent(s) : Mr. Jai Raj Tantia.
_____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA Judgment 01/08/2017 Heard the counsel for the petitioner-returned candidate (for short 'RC') as also the respondent - election petitioner (for short 'EP') and perused the impugned judgment dated 18.7.2017, whereby the election of RC as Sarpanch of village Shyampura, Panchayat Samiti, Bansoor, District Alwar has been set-aside on the ground that he had been fathered a third child 'Sapna Saini' after the cut off date 27.11.1995 rendering him ineligible to (2 of 5) [CW-12395/2017] contest the election under Section 19(l) of the Rajasthan Panchayati Raj Act, 1994.
For this conclusion, the trial court has relied upon Ex.- 54 - admission form signed by the RC's daughter herself for taking admission to Class-VII in the Shri Krishan Madhyamik Vidhyalaya, Kheda, Tehsil Bansoor, District Alwar, where she studied upto class-12th and where she disclosed her date of birth as 25.1.1997. The trial court has also relied upon the Scholar Register of the said school pertaining to Sapna Saini, daughter of the RC Class-VII through Class-XII, where her date of birth was consistently recorded as 25.1.1997. The said documents relevant under Section 35 of the Evidence Act, 1872 were duly proved by the Head Master of the Shri Krishan Madhyamik Vidhyalaya, Kheda Jagroop Singh who appeared as AW-4 and remained unshaken in his cross-examination.
Besides, it is also on record that the RC in his cross- examination before the trial court as NAW-1 admitted that the date of birth of his third child Sapna Saini from Class-VII through graduation was recorded as 25.1.1997 and no efforts were ever made by him at any point of time for its alteration. In the context of the aforesaid overwhelming evidence of great probative worth, post litem motam as it was not, the trial court negated or found little probative worth in the counter defence evidence adduced interalia at the instance of the RC, that his wife Vimla had a sterilization operation on 28.10.1995 (Ex.-A/4) consequent to which she was incapable of bearing a child thereafter and the complementing evidence of one Babu Lal Verma NAW 14 a doctor (3 of 5) [CW-12395/2017] who stated that he had performed the sterilization operation on Vimla on 28.10.1995.
Mr. Devendra Raghava, counsel for the RC submitted that the trial court committed a perversity in overlooking Ex.-A/4 and the evidence of NAW-1 and NAW-14 Dr. Babu Lal Verma as it was established therefrom beyond an iota of doubt that Vimla's sterilization operation was performed on 28.10.1995 whereafter she could not have given birth to a third child Sapna Saini on 25.1.1997. Mr. Devendra Raghava, further submitted that even otherwise the judgment is vitiated on the ground that the election petition was transferred from District Judge, Alwar to the Addl. Chief Judicial Magistrate and Sr. Civil Judge No.1, Behror, District Alwar without reason. He submitted that this fact itself vitiated the impugned judgment as one without jurisdiction.
Heard. Considered.
The conclusions of the trial court on date of birth of Sapna Saini, the third child of the RC being born on 25.1.1997 are based on the cumulative effect of the evidences of the EP and RC before it. The trial court's appreciation of evidence is beyond the ken of this Court's superintending jurisdiction under Article 227 of the Constitution of India. Perusal of the judgment indicates that the trial court has taken into consideration all competing evidences and then concluded that the case set up by the EP with regard to Sapna Saini being born as third child to the RC on 25.1.1997 was made out on the preponderance of probabilities. For this conclusion, the trial court has relied upon the copious evidence in the form of Ex.-54 and 57, duly proved by AW-4, the (4 of 5) [CW-12395/2017] Principal of Shri Krishan Madhyamik Vidhyalaya, Kheda, Tehsil Bansoor, where from it was proved that Sapna Saini's date of birth was 25.1.1997. The trial court has also taken into consideration Exhibit Nos. 54 and 57 duly proved by Anx.4 the admission of the RC himself in his cross-examination as NAW-1 that date of birth of Sapna Saini from Class-VII to graduation was recorded as 25.1.1997 and no attempt ever made to have it changed to the purported actual date of Sapna's birth. In the context of the aforesaid documentary evidence of high probative worth the defence evidence placed by the RC with regard to the sterilization of his wife on 28.10.1995 supported by the Doctor, was not definitive more so because a sterilization operation is not fail safe as it apparently was not as evidenced from Sapna's birth on 25.1.1997. That rendered the RC ineligible to contest the election in view of Section 19(l) of the Act of 1994. Yet having contested the election and won the RC's election was liable to set aside.
I find no force in the contention of counsel for the RC that mere transfer of the case from District Judge Alwar to Addl. Chief Judicial Magistrate and Sr. Civil Judge No.1, Behror, District Alwar vitiated the judgment passed by the transferee court. It is not the RC's case that the transferee Court had no jurisdiction. Further no objection was apparently raised at the relevant time. The transfer of the case was in any event an administrative order of the District Judge. The contention is rejected.
The impugned judgment of the court below neither suffers perversity, patent illegality nor from any jurisdictional error.
(5 of 5) [CW-12395/2017] There is no force in the petition. Dismissed.
(ALOK SHARMA) J.
DK