Rajasthan High Court - Jaipur
Smt Ummed Kanwar vs Prabhu Singh And Ors on 10 May, 2012
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER S.B. CIVIL WRIT PETITION NO.5201/2012 (Smt. Ummed Kanwar Vs. Prabhu Singh & Ors.) Date of Order : 10.05.2012 PRESENT HON'BLE MR. JUSTICE ALOK SHARMA REPORTABLE Mr. R.K. Agarwal, Sr. Advocate with Mr. Alok Chaturvedi, for the petitioner. Mr. S.K. Gupta with Mr. Akhil Simlote, for the respondents. Mr. S.D. Khaspuria, Addl.G.C. for the State. BY THE COURT :
1) A challenge has been laid in this petition to the order dated 30.03.2012, passed by the Civil Judge (Sr. Div.), Sikar (hereinafter 'the trial court') in an Election Petition No.B.T. 1/2010 filed by the respondent No.1, Prabhu Singh (hereinafter 'the election petitioner'), whereby the petitioner's election to the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar has been set aside holding that the petitioner was ineligible to contest the election for the post of Sarpanch with reference to Section 19(l) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994'). A challenge has also been laid to the consequential direction by the trial court declaring the election petitioner (respondent No.1 herein) as elected to the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar.
2) The facts of the case are that an election petition under Section 43 of the Act of 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter 'the Rules of 1994') was filed by the election petitioner, Prabhu Singh, alleging that the petitioner herein and respondent before the trial court (hereinafter the defendant) Smt. Ummed Kanwar was disqualified under Section 19(l) of the Act of 1994 from contesting the election for the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar held on 22.01.2010 in view of the fact that she had mothered two children, aside of the two children earlier born to her, subsequent to cut-off date 27.11.1995. Setting out the material particulars of the defendant's disqualification it was stated that apart from Sonu Kanwar @ Bhanwari born on 01.07.1993 and Rekha Kanwar born on 01.05.1995, subsequent to the cut-off date 27.11.1995 Navratan Singh on 05.07.1997 and Krishna Singh on 01.07.1998 were born to the defendant.
3) On service of the election petition, the defendant in the election petition filed a reply and even while admitting that she had mothered four children out of her wedlock with Bhawani Singh submitted that Sonu Kanwar @ Bhanwari was born on 07.03.1990, Rekha Kanwar on 15.06.1991, Navratan Singh on 25.10.1992 and Krishna Singh on 10.03.1994 and owing to the fact that all the aforesaid children were born prior to the cut-off date 27.11.1995, she was not disqualified to contest the election for the post of Sarpanch under the Act of 1994.
4) On the basis of pleadings of the parties, the learned trial court framed seven issues which are as under :
1) ??? ?????????? ?????? 1 ??????? ?????? ???? ????? ?????? ?????? ??? ?? ????? ?? ?? ????? ?? ??? ??? ???????? ?? ???? ??? ????? ?? ???? ?? ??? ??? ????? ?????? ???? ?? ???? ???????? ?????? ???????, 1994 ?? ???? 19(??) ?? ??? ????? ???? ?? ??? ????? ???? ?? ??? ?????? ?? ?
2) ??? ?????????? ?????? 3 ?? ?????????? ?????? 1 ?? ??? ???????? ???? ?????? ??? ?? ??????? ?? ????, ????? ????? ?? ?????? ????????? ??? ?? ???????? ?? ??? ?
3) ??? ?????????? ?????? 1 ?? ????? ?????? 22.01.2010 ???? ??? ?????? ????? ?????? ???? ????? ?? ?? ??? ????????? ???? ?? ????? ?????? ?? ??????? ?? ?
4) ??? ?????? ?????? ?? ????????????? ? ??????????? ?? ???????? ?? ???? ?? ?
5) ??? ???? ?? ????? ????????????? ?? ?????? ?? ??? ?? ??? ??? ?????? ? ????????? ?????? ?? ????-????? ???? ???? ?? ???? ?????? ???? ????? ???? ?? ?
6) ?????? ?
7) ?? ?????? ?? ????? ???? ?? ??? ?????????? ?????? 1 ?? ?? ?????????? ?????? 1 ?? ?? ?? ??? ?? ?? ?? ?? ???????? ?????? ???????, 1994 ?? ???? 25 ?? ??????? ?????????? ?? ?????? ??????????? ????????? ????? ???? ?? ?????? ?? ?
5) The trial court after considering the oral and documentary evidence laid by the respective parties before it decided issue No.1 against the defendant and held that she had mothered Krishna Singh on 01.07.1998 after the cut-off date 27.11.1995 and in view of the other three living children, she was ineligible to contest the election for the post of Sarpanch. Consequently defendant's election as Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar was set aside and it was declared that as the candidate with the second highest number of votes at the election in issue the election petitioner should be held to have been elected as Sarpanch in the election of 22.01.2010.
6) Heard the counsel for the parties and perused the writ petition as also the impugned order dated 30.03.2012.
7) The main issue on which this petition turns is issue No.1 before the trial court. The second issue on which this writ petition has been argued is issue No.3 before the trial court and pertains to the right of the election petitioner to the consequent relief of being declared as a Sarpanch following the setting aside of the defendant's election as Sarpanch on the ground of her being disqualified under Section 19(l) of the Act of 1994. The finding of the trial court on the aforesaid two issues has been challenged in his arguments by the Sr. Counsel Mr. R.K. Agarwal appearing for the petitioner-defendant before this Court. No other issue has been raised before this Court.
8) As a preface to the adjudication of the writ petition, it would be in place to state the jurisdiction of the writ court under Articles 226 and 227 of the Constitution of India in addressing finding of facts arrived at by a statutorily constituted Tribunal. In the present case, the civil court has been conferred the jurisdiction to adjudicate election petitions under the Act of 1994. It is trite that even if two views are possible on the evidence laid before the trial court and the trial court takes a plausible view on the evidence before it, this Court would not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India to substitute its own view over that of the trial court except on the grounds of perversity, misdirection in law and misreading of evidence. Reference in this regard can be had to the judgments of the Hon'ble Supreme Court in the cases of Management of Madurantakam Coop. Sugar Mills Ltd. Vs. S. Vishwanathan [(2005) 3 SCC 193], Apparel Export Promotion Council Vs. A.K. Chopra [(1999) 1 SCC 759], Tika Ram Vs. State of Madhya Pradesh [(2007) 15 SCC 761], Jayanta Samal Vs. Kulamani Behera [(2004) 13 SCC 552].
9) In the context of the aforesaid obtaining legal position, it would be proper to consider the material before the trial court which prevailed with it for determining issue No.1 against the defendant and in favour of the election petitioner and holding thereupon that the defendant was ineligible to contest the election for the post of Sarpanch in terms of Section 19(l) of the Act of 1994.
10) For deciding issue No.1, the trial court referred to the oral testimony laid on behalf of the election petitioner himself as PW-1, Sayar Singh (PW-2), Mahaveer Singh (PW-3), Santosh Kumar (PW-4) and also relied upon his documentary evidence Ex-1 to Ex-18A. In rebuttal of the case set up by the election petitioner, the trial court took into consideration the oral evidence of the defendant herself as DW-1 and that of Shravan Singh her brother DW-2 apart from taking into consideration documentary evidence Ex-A1 to Ex-A26 for the defence.
11) The trial court rightly held that the burden of proof in respect of issue No.1 was on the election petitioner. With reference to the obligation of the election petitioner to discharge the aforesaid burden, the trial court took into consideration the scholar register (certified copy whereof was exhibited before the trial court as Ex-6) qua the date of birth of Krishna Singh as 01.07.1998 and also took into consideration Exhibit-9 i.e. the order of the Divisional Commissioner on an inquiry against the defendant's husband Bhawani Singh during his tenure as Sarpanch effective 2005, where the Divisional Commissioner had held that Bhawani Singh was disqualified to contest or hold the post of Sarpanch in view of the fact that his two children i.e. Navratan Singh and Krishna Singh were born out of his wedlock with the defendant Smt. Ummed Kanwar on 05.07.1997 and 01.07.1998 respectively i.e. after the cut-off date 27.11.1995. The trial court also relied upon the testimony of PW-4, Santosh Kumar, Headmaster of Government Secondary School, Village Tidoki Badi, Tehsil Laxmangarh, District Sikar, who proved the admission form of Krishna Singh (Ex-18 original and Ex-18A certified and / or copy whereof) to the Government school recording the factum of the date of birth of Krishna Singh as 01.07.1998 and further that the admission form in issue was signed by Shravan, the brother of the defendant. The trial court also took note of Ex-6, which was the scholar register wherein at Sr. No.1866 the date of birth of Krishna Singh, son of the defendant, was recorded as 01.07.1998. The trial court apart from the evidence on behalf of the election petitioner in support of his case that the defendant was disqualified to contest the election for the post of Sarpanch under the Act of 1994, also took into consideration the testimony of the defendant Smt. Ummed Kanwar herself in her cross-examination before it wherein she had admitted that the date of birth of Krishna Singh as recorded in the admission form of the Government Secondary School, Village Tidoki Badi as evident from Exs.-18 and 18A was rightly recorded even though subsequently in her statement she sought to renege from her admission by stating that she did not remember the date of birth of Krishna Singh.
12) The trial court further considered the cross-examination of the defendant as DW-1 before it wherein she admitted that all her children had studied in the Government Secondary School, Village Tidoki Badi. The defendant also admitted that the date of birth of Krishna Singh in the admission form i.e. Exs.-18 & 18A before the trial court, was correct. The court noted that even while the defendant subsequent to the admission sought to renege on it by stating she did not remember the date of birth it was a fact that no steps at any point of time were subsequently taken to have the said date of birth rectified if the said date of birth was erroneously recorded. The trial court concluded that the defendant as DW-1 was not a truthful witness. The trial court also took into consideration but disbelieved the denial of Shravan (DW-2) that he had not signed the admission form of Krishna Singh where his date of birth recorded was 01.07.1998 on the overall evaluation of demeanour of this witness and his being the brother of the defendant and as such an interested party. The trial court appears to have taken a view of Sharvan's evidence as it did in view of the fact that it was admitted that there was no other Shravan in the family of the defendant who could have possibly accompanied Krishna Singh at the time of his admission into the Government Secondary School, Village Tidoki Badi and it was inconceivable that a stranger had accompanied Krishna Singh to school and signed the form on which the admission was indeed made.
13) In the conspectus of the oral and documentary evidence before it, the trial court came to a conclusion that from the ocular testimony of defendant DW-1 Smt. Ummed Kanwar (cross-examination) it was evident that she was attempting to hide the truth and that the documentary evidence laid on behalf of the election petitioner to impugn her election to the post of Sarpanch supported by the statement of headmaster (PW-4) was sufficient for its satisfaction that the standard of proof required in a case of establishing the ineligibility of the defendant to contest the election for the post of Sarpanch under the Act of 1994 had been adequately discharged. The trial court also held that the birth certificate procured by the defendant with regard to her three children i.e. Rekha Kanwar, Navratan Singh and Krishna Singh, on the same date i.e. 31.12.2004 were not credible enough with regard to the date of birth in the face of otherwise overwhelming evidence to hold that Krishna Singh was born subsequent to cut-off date 27.11.1995 i.e. on 01.07.1998. The trial court thereupon proceeded to hold that the defendant was disqualified with reference to Section 19(l) of the Act of 1994 and her election liable to be set aside. Consequent to the decision on issue No.1 against the defendant and in favour of the election petitioner, the trial court however without any discussion of the matter, on the rebound so to say, proceeded to determine issue No.3 peremptorily and direct that the election petitioner was entitled to be declared elected as Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar as the next highest voter getter having lost by a small margin to the defendant.
14) Mr. R.K. Agarwal, Sr. Advocate appearing on behalf of the defendant has sought to impugn the judgment dated 30.03.2012, passed by the trial court on the ground that the requisite burden of proof which lay on the election petitioner to establish that the defendant was not eligible to contest the election for the post of Sarpanch under Section 19(l) of the Act of 1994 allegedly having mothered apart from two other living children i.e. Navratan Singh and Krishna Singh on 05.07.1997 and 01.07.1998 respectively had not been adequately discharged and that the order dated 30.03.2012 passed by the trial court setting aside the defendant's election was liable to be set aside. It has been submitted that the evidence laid by the election petitioner before the trial court was mere hearsay and derivative and that the trial court ought to have invoked the principle of falsus in uno falsus in omnibus in view of the fact that the election petitioner himself relied upon the documents which were contradictory and absurd such as Ex-11 filed by the election petitioner before the trial court which (in spite of the averment in the election petition that Navratan Singh was born on 05.07.1997) indicated Navratan's date of birth was 05.07.1999 when he was allegedly admitted to class 5th on 15.07.2004. Mr. Agarwal has submitted that absurdity of a five years old being admitted to class 5th was symbolic of the entire and general falsity of the case set up by the election petitioner. It was Mr. Agarwal's contention that the learned trial court ought to have appreciated that once the case of the defendant was that Navratan Singh (admittedly elder to Krishna Singh) was born on 05.07.1999, it was absurd to rely on other evidences on record to come to a perverse conclusion that Krishna Singh was born on 01.07.1998 prior to his elder brother. It has been submitted by counsel that the parents are the best witnesses for determination of the date of birth of their children and documents exhibited cannot be conclusive of the date of birth of the children without proof of the contents and correctness of the entries / data in the documents. It has been submitted that the scholar register and the admission form of Krishna Singh with the Government Secondary School, Village Tidoki Badi may be relevant as pieces of evidence but yet the contents thereof were not proved by primary evidence and therefore in terms of the enunciation of law by the Hon'ble Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit [1988 (Supp) SCC 604] of no avail. He submitted that neither the scholar register, nor the admission form could be relied upon by the trial court to come to a conclusion that Krishna Singh was born to the defendant on 01.07.1998 and in view of the three other living children, the defendant was liable to be declared ineligible to contest election for the post of Sarpanch held on 22.01.2010. It has been submitted that the order of the Divisional Commissioner dated 25.09.2006 pertaining to the defendant's husband's disqualification for the post of Sarpanch after his election to the said post in 2005 in view of his having fathered more two children subsequent to 27.11.1995 apart from two other living children was of no consequence because the said order dated 25.09.2006 had been stayed by the Hon'ble High Court on 21.12.2006 and Bhawani Singh completed his tenure as Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar.
15) Mr. S.K. Gupta appearing for the election petitioner on his part would submit that the burden of proof to be discharged by the election petitioner on the issue of ineligibility of the defendant was to be of the standard of preponderance of probability and not of the standard of beyond reasonable doubt as would be required in case of an election petition based on corrupt practice. It has been submitted that the admission form of the Government Secondary School, Village Tidoki Badi and the entry in the scholar register qua Krishna Singh's date of birth were duly proved by the Headmaster of the said school and the said documents were relevant documents with reference to Section 35 of the Indian Evidence Act, 1872 as also Section 114(e) thereof. He submitted that the defendant had not been able to rebut the presumption in law with regard to the documents procured from public authority where they were kept in the ordinary course of business and more importantly documents ante litem motam i.e. which has come into existence at an earlier point of time when there was no conceivable possibility of the said document being used in subsequent litigation. It has been submitted that the burden of proof to establish that the nomination of a candidate otherwise ineligible under the governing election statute was adequately discharged by the election petitioner with reference to the overall facts and circumstances of the case wherefrom a reasonable probability can be seen and inference drawn about the ineligibility alleged. He submitted that the court must not lay down an impossible standard of proof such that the object of the legislation is defeated. It has been submitted that the question with regard to the ineligibility of the defendant was a question of fact before the Election Tribunal and the Election Tribunal has not committed any perversity or misdirection in law in coming to the conclusion on the evidence before it that the defendant was disqualified in the facts of the case with reference to Section 19(l) of the Act of 1994.
16. Have considered the submissions of the counsel appearing and perused the petition, its annexures and the impugned order.
17) It is no doubt true that the burden of proving the ineligibility of the defendant was on the election petitioner. For this purpose the election petitioner had relied on Ex-6 and Ex-18A, the scholar register and the admission form respectively qua Krishna Singh's admission to the Government Secondary School, Village Tidoki Badi which indicated that Krishna Singh's date of birth was 01.07.1998. The admission form was signed by Shravan, the defendant's real brother even though Sharvan denied his signature on the admission form based on which Krishna Singh was admitted to the Government Secondary School, Village Tidoki Badi. The trial court disbelieved Sharvan's evidence in view of the fact that it was admitted by him that there was no other Sharvan in the family and he was the real brother of the defendant and that even otherwise the said admission form was the only foundation on which Krishna Singh was admitted to the Government Secondary School, Village Tidoki Badi. Further, it was admitted by the defendant Smt. Ummed Kanwar that Krishna Singh apart from the other three living children also went to the Government Secondary School, Village Tidoki Badi. Aside for the aforefsaid facts, the admission form of Krishna Singh with the Government Secondary School and the scholar register qua him were admissible under Section 35 of the Evidence Act and the trial court also took into consideration that the defendant in her cross-examinatin before the court had made various admissions including the fact that the date of births in the admission forms on which the admissions of her children including that of Krishna Singh were made to the Government Secondary School bear the correct information and that she had at no point of time taken any steps to have the said dates corrected even though they were allegedly erroneous as contended subsequently in her evasive replies. The trial court with reference to the reneging of the earlier admission already made in the cross-examination found that on a overall evaluation of the defendant's evidence before it, it was apparent that the defendant was being evasive in making an attempt to hide the truth.
18) In my considered opinion in the facts of the case, the burden of proof was initially on the election petitioner to establish the fact that the defendant had mothered Krishna Singh in spite of her other three living children subsequent to the cut-off date 27.11.1995 i.e. on 01.07.1998 and was fully discharged. The Hon'ble Supreme Court in the case of Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay [AIR 1961 SC 1316] has held that the phrase burden of proof has two meanings One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case, the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence and can be admissions made by opposite party. In is my considered view in the present case the burden of establishing the case on the election petitioner was fully discharged from the evidence before the trial court both as laid by the defendant and also as culled out from the admission of the defendant herself in the course of cross-examination and the conclusions drawn by the trial court from the defendant's demeanour that she was hiding the truth from the Court.
19) I therefore find no substance in the case set up by Mr. R.K. Agarwal appearing for the defendant that the election petitioner had failed to discharge the burden of proof in establishing his case before the trial court. This Court would also take into consideration the fact that before the trial court, in the course of cross-examination, the defendant had stated with regard to Krishna Singh's admission form (Ex-18A) that "?????? ???? ??? ?? ???? ???? ???? ?? ??? ?? 1 The defendant further stated before the trial Court that "?? ???? ??? ?? ?? ????? ??????? ?? ?????? ???? ??????? ?? ????????? ?? ???? ?? ???? ???? ????? ??????? ??? 1.7.93, 1.5.95, 5.7.97, 1.7.98 ???? ?? ???? ???? ??? ????? ???? ?? ????? ???? ?? 1 but proceeded to state thereafter that the aforesaid entries in the school record were incorrect. She further stated that "?? ??? ?? ?? ?????? ????? ?? ???? ?????? ?? ???? ???? ?? ??? ?? ???? ??? ???? ??? ???? ??????? ??????? ?????? ?? ??? ??? ????????? ????? ? ?????? ????? ?? ???? ?? 1 The trial court has held that the said statement by the defendant in the course of cross-examination seen in the context of her evasiveness and her failure to file the best evidence in the form of CBSC mark-sheets of her other children where the age of the children would be indicated as also her failure in tandem to file a copy of ration card indicating the age of the children disclosed to the Government authorities, indicated that she was not a truthful and reliable witness but one seeking to hide the truth.
20) The second submission of Mr. Agarwal is that the trial court ought to have noticed the falsity of the evidence laid by the election petitioner with regard to the dates of other children more particularly Sonu Kanwar and Navratan Singh and come to the conclusion that the evidence laid by the election petition were as a whole incapable of credence with reference to the dictum of falsus in uno falsus in omnibus" to unseat an elected representative. I find no substance in the submission of the counsel for the defendant. For one, it is settled that the doctrine of falsus in uno falsus in omnibus" does not apply in India. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of Vatal Nagaraj Vs. R. Dayanand Sagar [(1975) 4 SCC 127] wherein the Hon'ble Supreme Court in a matter arising out of an election under the Representation of People Act, 1951 held that when the trial court has had an overall view of the case through the process of oral and documentary evidence its panoramic perception cannot be easily sidetrack by a superior court as the trial court has watched the delivery of testimony by the witnesses, some with equivocating unveracity, others with nervous truthfulness or confident glibness and consequently its opinion on credibility is entitled to much credit. The Apex Court further held that even though there may be some adulteration in the evidence if after a full consideration of total material, the court comes to a satisfaction with regard to a particular issue before it, nothing illegal or irregular can be found with regard to such conclusion. Effectively the Hon'ble Supreme Court has thus held that the principle of falsus in uno falsus in omnibus" is not applicable to election petitions and the inapplicability of the rule is not confined to evidence before the criminal courts.
21) I am of the considered view from the evidence on record that after the election petitioner had exhibited the admission form of Krishna Singh for seeking admission to the Government Secondary School (Ex-18A) and also his scholar register (Ex-6) before the trial court and had it proved by the Headmaster of the Government Secondary School, Village Tidoki Badi the effect of Sections 35 and 114(e) of the Evidence Act would be fully operational. Consequently, the burden had shifted to the defendant who rather than negate the election petitioner's evidence, further buttressed it by admissions in her cross-examination and in seeking to renege therefrom was found to be evasive and untruthful by the trial court. The defendant also failed to discharge her obligation to bring on record the best evidence of her children's age particularly by filing the mark-sheet of the Board of Secondary Examination in respect of her three other children i.e. Sonu Kanwar, Rekha Kanwar and Navratan Singh who had written the Board Exams or by filing a copy of the Ration card to rebut the presumption under Section 114(e) of the Evidence Act arising from documents on record and the general tenor of the election petitioner's evidence. This was not done by the defendant consequent to which the trial court cannot be said to have drawn an unlawful and impermissible inference from the facts on record constituted both of oral and documentary evidence and in concluding that Krishna Singh was born on 01.07.1998 subsequent to 27.11.1995 even while the defendant had three other living children prior thereto owing to which she was rendered disqualified / ineligible under Section 19(l) of the Act of 1994.
(22) The counsel for the defendant relied upon the judgment of the Hon'ble Supreme Court in the case of Birad Mal Singhvi (Supra) wherein it has been held that if the person, on whose information the date of birth has mentioned in the school record, is not examined, the date of birth in the scholar register would have no probative worth on the question of age. I am however afraid that the facts of the aforesaid case leading to the court's observation do not attract to the facts of the case at hand. In the present case Krishna Singh's admission form to the Government Secondary school authenticating the date of birth of Krishna Singh as 01.07.1998 was signed by Shravan the defendant's brother and the trial court has for good reason disbelieved Sharvan's (DW-2) denial that he did not sign the admission form of Krishna Singh to the Government Secondary School. The reason lay in the admitted fact that Shravan is the real brother of the defendant who could be expected to have gone for the admission of Krishna Singh to the Government school but who was denying the fact as he had an interest in the out come of the case in favour of the defendant. Further it was not for the trial court to be gullible and believe that a stranger had accompanied Krishna Singh for his admission to school. This would be contrary to the normal state of human affairs. Instead, more relevant to the case at hand is the judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Mohinder Singh [(2005) 3 SCC 702] where it has been held that the information with regard to the age of a student contained in the admission register of the school supplied to the school authority by the father or the close relative of a student is authentic evidence unless it is established otherwise by unimpeachable contrary material that the date of birth indicated in the school register is improbable. In my considered opinion, no such unimpeachable improbability has been brought on record by the defendant before the trial court and on the contrary the trial court has noted from the defendant's cross-examination before it that she was evasive and seeking to suppress the truth of the matter. In the case of Umesh Chandar Vs. State of Rajasthan [(1982) 2 SCC 202] a judgment rendered by three Judges of the Hon'ble Supreme Court as against the judgment of Hon'ble Supreme Court of Birad Mal Singhvi (Supra) which was a two Judges judgment, the Hon'ble Supreme Court has held that the oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the nature of documents and the nature of their authenticity and further that entries in school register and admission form regarding to date of birth of a student / person constitute good proof of age. It has been further held that as the entries in the school register or in the admission form regarding date of birth of a student are ante litem motam, there was no reason to allege, suspect or even imagine that the evidence had been created or fabricated to buttress a case subsequently filed by one party against the other when such case was not even remotely in the contemplation of the parties or even the litigation was not capable of being conceived at that relevant point of time. In my considered view, the dictum of the Hon'ble Supreme Court enunciated in the case of Umesh Chandar (Supra) applied on all fours to the facts of the case at hand.
23) Before parting with the judgment on issue No.1 before the trial court, it would be relevant to bear in mind that the standard of proof required in an election petition founded on the ineligibility of a returned candidate is not to be proved beyond the reasonable doubt, but proved on the preponderance of probability. The evidence laid should be capable of leading to a reasonable inference that the fact in issue of the ineligibility has been proved. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of Maharashtra State Board of Secondary & Higher Secondary Education Vs. K.S. Gandhi & Ors. [(1991) 2 SCC 716] wherein it has been held that the standard of proof in cases other than criminal is not proof beyond reasonable doubt, but based on preponderance of probability where a reasonable and probable inference can be drawn from the facts and evidence on record. In the context of the aforesaid enunciation of law by the Hon'ble Supreme Court, in my considered opinion from the facts and evidence on record, the learned trial court did not commit any error in concluding with reference to the test of preponderance of probability that Krishna Singh was born on 01.07.1998 after the cut-off date 27.11.1995 rendering the defendant ineligible to contest the election for the post of Sarpanch with reference to Section 19(l) of the Act of 1994. Similarly in the case of Cheedi Ram Vs. Jhilmit Ram & Ors. [(1984) 2 SCC 281], the Hon'ble Supreme Court has held that even though the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election but if having regard to the facts and circumstances of a case, the reasonable probability is all one way, the burden may be said to have been discharged and a court must not lay down an impossible standard of proof and hold a fact relating to improper acceptance of nomination not proved. The aforesaid enunciation of law by the Hon'ble Supreme Court forecloses Mr. R.K. Agarwal's argument that the best evidence with regard to the age of Krishna Singh was the evidence of his parents including the defendant as his mother and that when even otherwise Shravan, the defendant's brother as DW-2, had denied his signature on the admission form submitted at the time of Krishna Singh's admission to the Government Secondary School there was no primary evidence to support the entry in the admission form to the school or in the scholar register consequent to which this Court could hold that the case against the defendant of having mothered Krishna Singh on 01.07.1998 rendering her ineligible to contest the election for the post of Sarpanch was duly proved. If the contention of Mr. Agarwal were to be accepted, this Court would be laying down an impossible standard of proof, for it is not conceivable that the beneficiary of an election or her relative/s, in this case her brother, would come and prove the election petitioner's case and admit to evidence (on the admission form filed in by them) destructive of the case of the returned candidate. From a holistic reading of the evidence before it and appreciation thereof, the trial court has in the exercise of its discretion and the right to appreciation of evidence before it rightly come to a conclusion that from the material evidence on record Krishna Singh's birth as 01.07.1998 was proved and in view of the admitted factum of other three living children of the defendant, she was disqualified with reference to Section 19(l) of the Act of 1994.
(24) The question that now remains is as to whether the trial court while deciding issue No.3 has rightly held that consequent to the setting aside the election of the defendant, the election petitioner was entitled to be declared elected as Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar. I am afraid that the conclusion of the trial court on this question is peremptory and without any reasons. Even otherwise it is settled law that where there is multiplicity of candidates, the setting aside of an election of the returned candidate cannot lead to a declaration of the election petitioner as elected even if he has secured the second highest votes at the election. Reference in this regard can be had to the constitution Bench judgment of the Hon'ble Supreme Court in the case of Vishwanatna Reddy Vs. Konappa Rudrappa Nadgouda & Anr. [AIR 1969 SC 604]. The Hon'ble Supreme Court in the aforesaid case has held that where there are more than two candidates in the field for a single seat, on proof of disqualification of the returned candidate all the votes cast in his favour cannot be discarded and the candidate securing the next highest number of votes cannot be declared to be elected. Similar view has been taken by the Hon'ble Supreme Court in the case of Prakash Khandre Vs. Dr. Vijay Kumar Khandre & Ors. [(2002) 5 SCC 568] where the Hon'ble Supreme Court has reiterated that where there are more than two candidates for one seat and the elected candidate is subsequently found to be disqualified, the candidate who secured more votes than the other remaining candidates cannot be declared as elected because the votes cast in favour of the disqualified candidate cannot be regarded as thrown away, nor can it be presumed that those votes would have been secured by the next candidate who secured the second highest votes. It has been held that because it cannot be predicted as to in whose favour the voters would have voted, if they were aware that the elected candidate was disqualified, a fresh election has to be held. Hon'ble Justice V.R. Krishna Iyer in the case of Vatal Nagaraj Vs. R. Dayanand Sagar [(1975) 4 SCC 127] in his own inimitable style has stated that courts do not elect candidates or sign into parliamentary seats those whom the constituency has not yet favoured. The normal democratic process cannot be by-passed conveniently. The election petitioner must win not only with the election petition, but the election itself. The Hon'ble Supreme Court in the aforesaid case of Vatal Nagaraj (Supra) approved the observation in the case of Jamuna Prasad Vs. Lachhi Ram [AIR 1954 SC 686] that there is nothing to show why the majority of the first respondent's voters would have preferred the sixth respondent and ignored the third and fourth respondents. So is the case in this petition.
25) In the facts of the case at hand, the defendant Ummed Kanwar contested the election for the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar held on 22.01.2010 and got 1748 votes. No doubt the election petitioner secured 1698 number of votes and as against 60 votes by the third candidate. Yet the facts remains that the contest was a multi cornered contest and in view of the enunciation of law as detailed above on the mere setting aside of the election of the returned candidate, the election petitioner cannot be declared to be elected. I am not persuaded by Mr. S.K. Gupta appearing for election petitioner to hold that as the scheme of the Rajasthan Panchayati Raj Act, 1994 and the Rajasthan Panchayati Raj (Election) Rules, 1994 allows for a declaration of an election petitioner as elected, in the facts as obtaining in the present case the trial court passed a valid order declaring the election petitioner as elected. No doubt that Rule 83 of the Rules of 1994 provides for an election petition to be filed inter alia for declaration of having been elected as against a returned candidate disqualified or otherwise and Rule 87 of the Rules of 1994 empowers the trial court to declare the election petitioner or any candidates to have been duly elected. However, the power of the court hearing the election petition under Rule 80 of the Rules of 1994 even with reference to Rules 83 and 87 of the Rules of 1994 does not entail a power to declare a loosing candidate elected where there is a multi cornered contest. It is trite that the judgments of the Hon'ble Supreme Court are of the law of the land under Article 141 of the Constitution of India. Further, the logic of the judgments of the Hon'ble Supreme Court referred above is unexceptional. The votes of the returned candidate cannot be said to be thrown away nor can it be speculated as to which of the other candidates the voters, if aware of the returned candidate's ineligibility would have voted. Rules 83 and 87 of the Rules of 1994 must therefore be taken only to empower the trial court hearing the election petition to declare an election petitioner elected in cases where there is not a multi cornered contest and a returned candidate is removed by the order of the court under the Act of 1994 and the Election Rules of 1994 or other issues in the petition are involved.
26) For the aforesaid reasons, the writ petition is partly allowed and even while upholding the order dated 30.03.2012 passed by the trial court in setting aside the election of the defendant, the order dated 30.03.2012 to the extent it declared the election petitioner as elected to the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar is quashed and set aside.
27) This Court is however of the view that as the democratic process must be adequately represented in elected offices and where an election is set aside, it is expected that a fresh election in this case to the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar would be held at the earliest possible.
Stay application also disposed of.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Manoj Solanki, Jr. P.A.