Rajasthan High Court - Jaipur
Laxmi vs Sudha And Ors on 23 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.12990/2017
Laxmi wife of Shri Suresh Singh, by caste Thakur, resident of
Ibrahimpur, Tehsil Roopwas, District Bharatpur, Rajasthan.
... Defendant / Petitioner
Versus
1. Sudha wife of Shri Chandrakesh by caste Thakur, resident of
Ibrahimpur, Tehsil Roopwas, Distt. Bharatpur.
--- Plaintiff-respondent
2. Returning Officer, Gram Panchayat Ibrahimpur, Tehsil Roopwas,
Distt. Bharatpur.
3. District Election Officer (Panchayat) Bharatpur.
... Proforma Respondents/ Defendants
Date of Order: August 23rd, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Ms. Anita Agrawal, for the petitioner.
Dr. Pushpendra Pal Singh, 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 against the judgment dated 13-7-2017 passed by the Senior Civil Judge Bayana, District Bharatpur, whereby the election petition (10/2015), titled Sudha Vs. Laxmi & others, filed by the respondent-Election Petitioner 2 (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 Ibrahimpur, Panchayat Samiti Roopwas, District Bharatpur was set aside.
Election of the RC as Sarpanch of village Panchayat Ibrahimpur, Panchayat Samiti Roopwas, District Bharatpur 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 sired three children; Shivani on 15-7-2001, Namita on 4-7-2004 and Anirudh Pratap Singh on 15-6-2007, after the cut off date of 27- 11-1995 rendering her ineligible to contest the election to the post of Sarpanch held in January, 2015 under Section 19(l) of the Act of 1994. It was submitted that although the RC had disclosed her three children but she had fraudulently changed the name Namita to Babita and claimed that Babita was the twin of Anirudh Pratap Singh born on 15-6-2007. This was a fraud only to overcome the statutory disqualification. It was the EP's case that the assertion of Namita purportedly Babita being the twin of Anirudh Pratap Singh born on 15-6-2007 was false, as with a third child born alone and not as a twin, the RC was ineligible.
3
On notice on the election petition, the RC filed a reply of denial and asserted that she suffered no ineligibility as alleged. Babita and Anirudh Pratap Singh were stated to have been born as twins on 15- 6-2007 in village Gher Beelpur (Murena, M.P.) in regard whereto a certificate had been issued by the concerned hospital. The fact was allegedly also testified to from the Aadhar card and Aanganbadi Register where Babita and Anirudh Pratap Singh were shown to have been born on the same day. It was submitted that the RC had no daughter by the name of Namita and the EP has procured forged documents to advance her case and overcome a defeat at the polls.
Based on the pleadings, the Tribunal framed the following issues:-
1- vk;k izR;FkhZ la[;k&1 y{eh ds ukekadu i= nkf[ky djus dh fnukad 31-01-2015 dks mlds rhu larkusa Fkh ftudh tUefrfFk ftlesa f"kokuh dh tUefrfFk 15-07-2001 uehrk dh 04-07-2004 ,oa vfu:} izrki dh 15-06-2007 Fkh\ 2- vk;k izR;Fkh la[;k&1 us viuh iq=h uehrk dk uke cnydj cchrk crkrs gq, cchrk ds lkFk vfu:} izrki dk tqMok izlo 15- 06-2007 n"kkZrs gq, ukekadu i= esa xyr mn~?kks'k.kk dh gS\ 3- vk;k fnukad 31-01-2015 dks izR;FkhZ la[;k&1 ds rhu larkus thfor jgus ds dkj.k og xzke iapk;r bczkfgeiqj ds ljiap ds in dk pquko yMds ds fy, ;ksX; Fkh\ vr% xzke iapk;r bczkfgeiqj ds ljiap in ds pquko ifj.kke v;kph la[;k&1 ds xSjdkuwuh rjhds ls ukekadu i= nkf[ky djus ds vk/kkj ij "kwU; ?kksf'kr dj fujLr fd;k tkos rFkk ;kph ds nwljs LFkku ij vf/kd er izkIr djus ds vk/kkj dks ns[krs gq, mls mDr xzke iapk;r dk ljiap ?kksf'kr fd;k tkosA 4- ;kfpdk ;kph }kjk is"k ugha djus ds dkj.k fu;e 81 ds rgr [kkfjt fd;s tkus ;ksX; gS\ 5- vuqrks'k \ 4 In support of her case the EP examined herself as Aw-1 and Shyam Sunder Aw-2, Yogendra Singh Aw-3, Ramesh Aw-4, Mohar Singh Aw-5, Ghurelal Aw.6, and Sanotsh Kumar Meena Aw-7 and exhibited 19 documents. The RC examined herself as Naw-1, and Sonia Tomar Naw-2 and exhibited 23 documents.
The trial court from the evidence before it primarily considering the certificate (Ex.6) issued by Shiva Higher Middle School and certified copy of Scholar register (Ex.7) issued by Shiva Higher Middle School duly proved by Yogendra Singh (Aw-3)- the Head master of Shiva Higher Middle school came to the conclusion that Namita born on 4-7-2004 as the daughter of Suresh and Laxmi (the RC) was admitted in class-I in Shiva Higher Middle School Ibrahimpur on 3-7-2009. These documents were also proved by the certificate (Ex.A-1) produced by the RC herself testifying that Namita studied in the class I and II in 2009 and 2010 respectively at the Shiva Higher Middle School Ibrahimpur.
The trial court considered the study certificate dated 7-2- 2015 (Ex.8) issued by Vijay Modern Public School, the application for admission in Vijay Modern Public School (Ex.9) as also the Admission form for the said school (Ex.17) to conclude that Namita (Babita) daughter of Suresh was admitted to the school in class-III and while doing so her previous school was shown to have been Jai 5 Hanuman Public School Higher Middle School Kothi Gulzar Bag Bharatpur. Shyam Sunder (Aw-2) owner of Jai Hanuman Public School in his statement stated that as per letter dated 13-2-2015 (Ex.10) issued by Jai Hanuman Public School no girl with the name of Babita ever studied in the school. The said school was closed commencing AY 2004-2005 and no transfer certificate was thereafter issued by the said school. The trial Court noted that although the RC has disputed the authenticity of the letter dated 13- 2-2015 (Ex.10) yet no steps against that had been taken by her such as lodging of FIR or any other action in law. Application for ration- card (Ex.11) at the instance of Suresh, RC's husband, containing the entry "Namita daughter of Sunita & Bhupendra", was objected to by the then Sarpanch under his seal noting that Namita was daughter of Suresh and not of Bhupendra. The trial court also reckoning for the RC's defence laid before it on its appreciation came to the conclusion that the RC changed the name of Namita born on 4-7- 2004 and thereafter fraudulently showed her as Babita and as a twin of Anirudh Pratap Singh--both purportedly born on 15-6-2007.
The trial court also considered report (Ex.18) sent by Sub Divisional Officer Roopwas to Collector Bharatpur proved in Court by Santosh Kumar Meena (Aw-7) even though as a public document it sufficed by itself clearly stating that the date of birth of the three children of the RC Shivani, Babita and Anirudh all born after 1995 6 was different. The trial court also considered the fact that a challan (Ex.14) had been filed against the RC's husband for offences under Sections 420, 467, 468, 471, and 120B IPC with the police on investigation in a FIR lodged having found fabrication of documents with regard to change of date of birth of Namita (Babita) from 4-7- 2004 to 15-6-2007 to claim the birth of Namita (Babita) and Anirudh Pratap Singh as twins on 15-6-2007.
Consequently, issue No.1 to 3 were decided in favour of the EP and against the RC holding that she was ineligible to contest the election on the post of Sarpanch in view of the disbarment under Section 19(l) of the Act of 1994.
Issue No.4 regarding the election petition being filed by the EP's Advocate and not by the EP herself was also decided against the RC.
Hence this petition by the RC.
Ms. Anita Agrawal appearing for the RC submitted that the finding of the trial court is wholly perverse and vitiated by non- application of mind for its failure to reckon for the evidence to the contrary produced before it by the RC and focusing only on that of the EP. She submitted that the trial court ought not to have casually and on mere suspicion set aside the election of a public representative, reflective of the democratic will. 7
Dr. Pushpendra Pal Singh, appearing for the respondent EP submitted that the trial court has not committed any perversity in considering the documentary evidence well supported by oral evidence wherefrom it was proved beyond an iota of doubt that the RC contested the election on the post of Sarpanch after fabricating documents claiming her two children Namita (Babita) and Anirudh Pratap Singh born as twins while in fact they born on different dates. This forgery of the RC was well established from the documents produced in evidence duly buttressed and supported by oral evidence. The RC's husband has also been challaned for the forgery committed in this regard for her benefit. It was well proved as required under the Evidence Act that the RC having sired three children on different dates after the cut off date of 27-11-1995 was ineligible under Section 19(l) of the Act of 1994 to contest on the post of Sarpanch. It was submitted that the impugned judgment suffering neither from perversity, patent illegality or error of jurisdiction cannot be set aside by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India or for that matter under Article 226 thereof.
Heard. Considered.
The trial court relying on certificate (Ex.6) issued by Shiva Higher Middle School and certified copy of Scholar register (Ex.7) 8 also issued by Shiva Higher Middle School duly proved by Yogendra Singh (Aw-3) Manager of Shiva Higher Middle School as also the RC's certificate (Ex.A-1) issued by Shiva Middle School came to the conclusion that Namita born on 4-7-2004 was the daughter of Suresh and Laxmi, the RC. The trial court further relied on the evidence of Shyam Sunder (Aw-2) owner of Jai Hanuman Public School, who remained unshaken in his cross examination, after having stated that as per letter dated 13-2-2015 (Ex.10) no girl in the name of Babita studied when claimed in the said school for the reason that the said school was closed beginning AY 2004-05 and consequently no transfer certificate, as claimed by the RC, was issued by the said school. The Trial Court thus concluded that the TC (Exhibit-16) purportedly issued by Jai Hanuman Public School to the RC was forged. The trial court also considered the application for ration-card (Ex.11) made by Suresh, RC's husband, containing the entry "Namita daughter of Sunita & Bhupendra" which was objected to by the then Sarpanch under his seal noting that Namita was daughter of Suresh and not of Bhupendra. The Trial Court noticed that while in Ex.11 under the hand of the husband of the RC Namita was shown as nine years old, in Exhibit-12, the another application for ration card her age was shown along with Anirudh Pratap Singh as six years. All these evidences were ante motem litem and no reason was available to doubt their veracity. Therefore, the trial court concluded that the RC had participated in the changing of name of 9 Namita born on 4-7-2004 as Babita and then wrongly shown her as twin of Anirudh Pratap Singh both born on 15-6-2007.
The trial court also considered the report (Ex.18) sent by Sub Divisional Officer Roopwas to Collector Bharatpur proved in Court by Santosh Kumar Meena (Aw-7). Therefrom it was established on an enquiry made that the RC had three children Shivani, Babita and Anirudh Pratap Singh all born after 1995, with varying dates of birth. The trial court also considered the fact of challan (Ex.14) filed against the RC's husband for the offence under Sections 420, 467, 468, 471, and 120B IPC for fabrication of documents with regard to change of date of birth of Namita/ Babita to claim the birth of Namita and Anirudh Pratap as twins. Exhibits 6, 11, 12, 18 and 14 relied upon by the Trial Court are public documents within Section 74 of the Evidence Act. In Toral Mahto Vs. Chandeshwar Mahto [AIR 1972 Patna 13] the Division Bench held that a public document can be admitted and relied in evidence without calling as a witness the officer who prepared it. This court in the case of Smt.Ummed Kanwar Vs. Prabhu Singh [2012(4) WLC 14] has 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 10 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 Evidence Act, 1872 states 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". There was clearly adequate factual and circumstantial evidence before the trial court that Namita was born on 4-7-2004 and was not Babita born on 15-6-2007 as a twin of Anirudh Pratap Singh who indeed born on 15-6-2007. The RC and her husband fabricated documents to claim to the contrary. The RC was thus ineligible to contest the election for the post of Sarpanch under Section 19(l) of the Act of 1994.
In the circumstances, I am of the considered view that nothing perverse or illegal can be attributed to the findings of the trial court that the RC was ineligible to contest the election to the post of 11 Sarpanch of village Ibrahimpur, Tehsil Roopwas District Bharatpur when it was held on 1-2-2015.
Consequently, I find no force in the petition. Dismissed. This Court has been seized over the last few months of a series of similar petitions relating to election of Sarpanchs under the Act of 1994. It has been noticed that there is a deluge of Election Petitions based on candidates contesting on forged and fabricated documents to supply the statutory eligibility. There appears to be a growing culture of impunity and a great belief in manipulating the system. That belief is seriously in need of being rectified in public interest. Fairness in an election lawfully contested lies at the root of the democratic process on which the edifice of the Indian Republic under the Constitution stands. There can be no casualness in these matters. Proactive steps to stem the rot are an absolute need. Setting aside of elections when a case is made out is just one measure. Where criminality is established in a criminal investigation in matters relating to elections and Challan filed by the Police before a Competent Court of Criminal jurisdiction, such criminal cases cannot be treated as just, another case, in line for adjudication with other criminal cases to remain pending for years altogether. They should be given priority such that where innocence is established, the accused can have his/ her honour restored. But where criminality is made he/ she is made to undergo the consequences law provides. 12
In this context, I would direct that the trial in the case against the RC Laxmi and her husband Suresh relating to forging, fabricating of documents, relying on them as a part of criminal conspiracy be expedited and be completed within one year from the date of presentation of a certified copy of this judgment.
(Alok Sharma), J.
arn/ 13 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.