Rajasthan High Court - Jaipur
Bhori Devi Urf Moti vs Sampat Bai And Ors on 8 September, 2017
Author: Alok Sharma
Bench: Alok Sharma
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
S.B. Civil Writ Petition No.1258/2017
Bhori Devi @ Moti W/o Siyaram, aged 36 years, by Caste Meena, Resident of Seelpura,
Tehsil Karauli, district Karauli (Raj.)
---- Petitioner- Non-applicant
Versus
1. Sampat Bai w/o Dharasingh, aged 24 years, By caste Meena, Resident of Seelpura,
Tehsil Karauli, District Karauli (Raj.)
--- Respondent- applicant
2. Returning Officer, Panchayat Aam Election 2015 village Panchayat Gudla, Tehsil
Karauli, District Karauli through District Election Officer Karauli (Raj.)
3. District Election Officer, Karauli (Raj.) Panchayat Aam Election-2015, Karauli, District
Karauli (Raj.).
---- Respondents- Non-applicants
Date of Order: September 8th, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Suresh Pareek, Senior Advocate with
Mr. N.C. Sharma, for the petitioner.
Mr. K.A. Khan ] for the respondent.
Mr. G.S. Gautam]
BY THE COURT:
Under challenge is the impugned judgment dated 21-12- 2016 passed by the District Judge Karauli which allowed the election petition filed by the election petitioner (hereinafter `the EP') against 2 the returned candidate (hereinafter `the RC') setting aside her election as Sarpanch of Gram Panchayat Gudla, Panchayat Samiti Karauli District Karauli held on 18-1-2015.
The relevant facts of the case are that an election petition was filed by the EP against the RC alleging that the RC despite her ineligibility to contest the election to the post of Sarpanch of village Gudla for reason of her not having the requisite minimum educational qualification of class VIII pass from a recognized school mandated under Section 19(t) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994') contested the election. It was submitted that the RC's class VIII pass mark-sheet and certificate issued by Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim were forged and fabricated. It was further submitted that aside of two children Hariom born on 2-9-1997 and Pooja born on 3-5-2001, as disclosed by the RC in her nomination form, she had suppressed the fact of giving birth to Deepa born on 12-6-1991 and Sapna born on 3-8-2004, which also rendered her ineligible under Section 19(l) of the Act of 1994. For reason of the two aforesaid disqualification, the RC's election was prayed to be set aside.
The RC filed reply of denial. It was stated that she had only two children Hariom born on 2-9-1997 and Pooja born on 3-5-2001, as disclosed by her in the nomination form. Deepa was stated to be the 3 daughter of Ishwarlal and Sapna of one Charan Singh, brothers of RC's husband Siyaram. It was stated that the EP had filed the election petition on false pretext emanating from her pique at her losing the election to the RC on the post of Sarpanch.
On pleadings of contesting parties, the trial court framed three issues. Loosely translated without content being lost in the process. The first related to RC's ineligibility to contest the election to the post of Sarpanch for reason of her not having passed class VIII and having four children, at least one of whom was born subsequent to 27-11-1995, the cut off date statutorily provided for children beyond the second child. The second related to the election petition itself being not maintainable in view of documents filed by the EP in support thereof not being certified as provided under Order 6 Rule 15 CPC. The third related to relief.
The EP aside of herself as AW-1 examined Rajendra Kumar Sharma as AW-2, Smt. Prabha Kaushik as AW-3. She buttressed her case by 25 documents all marked exhibits. The RC on her part aside of herself as NAW-1, examined her husband Siya Ram Meena as NAW-2, Ishwar Lal Meena as NAW-3, Bato Bai Meena NAW-4, Man Singh as NAW-5 and Narottam Lal Meena as NAW-6. She sought to solidify her defence by placing reliance on 8 documents, Exhibits A- 1 to A-8.
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The Returning Officer for the election in issue filed reply opposing the election petition and stated the documents filed in support of nomination form were rightly accepted. No evidence was however laid on his part.
The trial court on appreciation of evidence before it concluded that for reason of the EP not discharging her burden, despite the RC admitting that she could not at all recite the English letters and even could also not read her nomination form and declaration in Hindi filed by herself, or even show minimal knowledge of Hindi grammar, as evident from her failure to recite the "Barahkhadi (ckjg[kM+h)", in cross examination, it was proved that the RC had not passed class VIII from Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim, and thus RC was ineligible to contest for the reason of not fulfilling the statutorily prescribed minimum educational qualification under Section 19(t) of the Act of 1994. The trial court on appreciation of documentary evidence duly exhibited before it by the RC concluded that Sapna was not proved to be the daughter of the RC and her husband Siyaram but appeared to be of Charan Singh and Bato Bai. However from the evidence on record particularly Ex.11 and Ex.12, proved by AW-2 Rajendra Kumar Sharma, and Ex.5 and Ex.10, all duly proved, it held that Deepa born on 12-6- 1991 was daughter of RC and Siyaram. For its conclusion the trial 5 court noted the evidence of Deepa having studied class 1 through 5 in the Government Primary School Silpura, which was admitted by the RC and her husband Siyaram, and other of RC's witnesses. In the said school Deepa was recorded as having her born on 12-6-1991 and the daughter of RC and her husband Siyaram. As against the aforesaid documentary evidence drawn from the school duly proved by its Head Master Rajendra Kumar Sharma (Aw-2), there was no rebuttal documentary evidence in RC's defence such as Ration-card or school record maintained in the normal course of business of the school to establish that Deepa born on 12-6-1991 was not the daughter of the RC and her husband Siyaram but of Ishwar Lal--as was the defence. In the circumstances the trial court concluded that Deepa was the daughter of the RC and Siyaram, and with the RC admitting in her nomination form and also in her reply to the election petition that Hriom born on 2-9-1997 and Pooja born on 3- 5-2001 were her children, the inevitable conclusion was that the RC had borne a third child Pooja on 3-5-2001; beyond the cut off dated 27-11-1995 rendering the RC ineligible to contest for the post of Sarpanch under Section 19(l) read with proviso (iv) of the Act of 1994 for reason of which her election was liable to be set aside. The RC's election was so quashed and set aside. Hence this petition.
Mr. Suresh Pareek, Senior Advocate appearing with Mr. S.L. Sharma on behalf of the RC submitted that the trial court came to a 6 perverse finding that the RC and her witnesses admitted that Deepa was the RC's daughter. He submitted that the evidence of NAW- 1,2,3,4 and 6 does not bear out the trial court's conclusion, hence the impugned judgment is vitiated by misreading of evidence and liable to be quashed and set aside. It was further submitted that the reliance by the trial court on Ex.10, the letter dated 29-10-2015 addressed by the Divisional Commissioner Bharatpur to the Joint Secretary Rural Development and Panchayati Raj Department Jaipur recording that a fact finding enquiry concluded that Bhori @ Moti Meena had three children, the third being born after 27-11-1995, was of little probative worth as it was based on a purported report by Tehsildar that Deepa was the daughter of the RC--this even though the said Tehsildar's report was not exhibited or the Tehsildar examined as witness. Mr. Suresh Pareek then submitted that the enquiry report (Ex.A-8) prepared by NAW-6 Narrotam Meena on the contrary was not conclusive on Deepa being the daughter of the RC and Siyaram. He further submitted that in any event Moti Bai, whose daughter Deepa was alleged to be under Ex.11 and Ex.12 is not the same person as RC Bhori Devi, which fact the trial court also failed to notice and yet proceeded to set aside her election. Mr. Suresh Pareek further submitted that the fact that the Ex.5, the scholar register from Government Primary School Silpura and Ex.11 duplicate copy of mark-sheet of Deepa also from the said school bears the name of Siyaram as father and RC as mother, it was 7 tenuous evidence and of no avail in the absence of their author not entering the witness box. Mr. Suresh Pareek submitted that the evidence before the trial court was thus not sufficient for holding that Deepa was the daughter of the RC. It was submitted that the evidence of AW-2 Rajendra Kumar Sharma, the principal of Government Primary School Silpura who sought to prove the aforesaid documents was of little avail in law and it was not stated by him that the said entries were made in the school record (Ex.5) at the instance of RC or on the information furnished by her husband Siyaram. It was submitted that though admittedly no steps were taken by the RC and her husband for removing their name as father and mother of Deepa in the school record, it was not by itself a circumstance to conclusively entail a finding against the RC.
Mr. Suresh Pareek finally submitted that a specific defence had been taken by the RC both in her reply to the election petition and affidavit in defence that she born in the year 1978 as per her class VIII mark-sheet from the Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim--which on record of the court as Ex.A-1/1 and which the EP could not displace as forged or fabricated. Hence in the year 1991, when Deepa was alleged to have born to her, the RC was only 13 years old, and incapable of bearing a child. The improbability of the situation/ allegation of Deepa being the RC's daughter ought to have informed the trial court, Mr. Suresh 8 Pareek submitted. It was submitted that it ought to have been so as no rejoinder to the specific defence aforesaid taken in reply by RC was filed by the EP.
Per contra, Mr. K.A. Khan appearing for the EP supported the impugned judgment. He submitted that albeit the election petition was filed at the instance of the EP alleging that Sapna was not the daughter of RC and Siyaram, and the evidence on record Ex.24 and Ex.25 before the trial court so conclusively established, the trial court overlooked both Yogya-Dampati Register (Ex.24) and the letter from Gram Panchayat (Ex.25), public documents within Section 74 of the Evidence Act and relevant under Section 35 thereof, as also the evidence of an independent witness, Aw-3 Prabha Kaushik--an ANM nurse an government employee who had no axe to grid against the RC, to come to a perverse finding that Sapna was not the RC's daughter.
Mr. K.A. Khan then submitted that indeed the EP had not brought on record any evidence, through the District Education Officer or the Principal of Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim District Karauli wherefrom RC fraudulently claimed to have passed class VIII on the basis of forged and fabricated mark-sheet, to establish that the RC was never a student of the aforesaid school or that the said school was not 9 recognized by the State Government. Yet the RC's cross examination plainly showed her being an illiterate as she admitted that she had no knowledge of the English letters, had complete lack of knowledge even of the basics of Hindi grammar unable to recite "Barahkhadi (ckjg[kM+h)" when asked to while in the witness box and was unable to read her own nomination form or declaration in support thereof. Mr. K.A. Khan submitted that on the aforesaid evidence on record the initial burden on the EP to establish RC not having passed class VIII shifted to the RC and it was then on her to prove from the best evidence in her possession that she had passed class VIII from Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim and it was at the relevant time recognized by the government sufficing for the purpose of Section 19(t) of the Act of 1994. That however was not done, submitted Mr. K. A. Khan. He however hastened to add that as the findings of the trial court on the RC's lack of class VIII pass and Sapna not being her daughter are not under challenge, he does not seek the court's opinion thereon or interference therewith.
Yet as far as the finding of the trial court holding that Deepa born on 12-6-1991 was the daughter of RC and Siyaram, there is no room for this court to interfere as the said finding are based on evidence on record of the trial court particularly Ex.11 and Ex.12, duly proved by the Head Master of Government Primary School 10 Silpura, as also Ex.5, all duly proved. The finding of the trial court on the aforesaid fact is neither perverse nor patently illegal. It was submitted that the fig leaf defence of the RC that Moti, shown as mother of Deepa in one of the exhibits i.e. Ex.12 Transfer Certificate, was a person other than the RC is palpably false in view of Ex.13, the caption of the anticipatory bail application filed by the RC herself before this court and order dated 10-7-2015 thereon granting her anticipatory bail in a FIR for offences under Section 420, 467, 468, 471 and 120B IPC. Where the RC herself has given out her name as Bhori Devi @ Moti. It was further submitted that both RC and her husband Siyaram have been challaned by the police for offences under Sections 420, 464, 467, 468, 471, 120B IPC having engaged in forgery pertaining to RC's class VIII mark-sheet and certificate from the Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim. It was submitted that Ex.10, the Divisional Commissioner Bharatpur's letter dated 29-10-2015 also established the fact that on a fact finding enquiry undertaken by the department through Tehsildar it was found that RC had four children on the date when she contested the election for the post of Sarpanch in breach of Section 19(l) of the Act of 1994. Mr. K.A. Khan submitted that all evidence before the trial court were admissible and the trial court's conclusion on appreciation thereof cannot be addressed by this court in the exercise of its jurisdiction either under Article 226 and/ or Article 227 of the Constitution of India.
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Heard. Considered.
The RC in her reply to the election petition and affidavit in defence did indeed claim to be born in the year 1978 on the strength of her class VIII mark-sheet from the Shiv Bal Mandir Upper Primary School Nangal Sherpur, Tehsil Todabhim and only 13 years old in the year 1991 when Deepa is stated to have been born to her. But her age in 1991 was not an issue before the trial court--as evident from the fact that no issue in that regard was struck by the trial court. And the RC at no point of time objected to non-striking of the issue with regard to her age. It is well settled that the framing of issues crystalises the dispute on law and/ or fact between the parties to a suit. Ordinarily only evidence thereon can be recorded in a trial. The importance of framing of issue/s cannot be understated as reiterated by the Apex Court in the case of Chander Kali Bai Vs. Jagdish Singh Thakur [1977(4)SCC 402]. That aspect has thereafter been dealt with at some length by the Apex Court in the case of Makhan Lal Bangal Vs. Manas Bhunia [(2001)2 SCC 652], where in a matter also relating to an election petition, the court emphasized the imperative of issues being appropriately framed with active engagement of the contesting parties and the trial court itself. Where an issue is not framed, consequences follow with no evidence outside the issues being ordinarily relevant and admissible. For more clarity 12 on the legal enunciation, it would be appropriate to reproduce para 19 of the judgment, which reads thus:
"An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed, excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/ petition and the written statement/ counter, if any, and then determine with the assistance of the learned counsel for the parties, the material proposition of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some question of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings shall normally be admitted, (underlining mine) for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to 13 a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided."
In view of aforesaid legal position, I am of the considered view that the RC or her counsel before the trial court not having required the trial court, despite her specific defence in reply to election petition, to frame an issue with regard to her age in 1991--when Deepa was born, the question cannot now be allowed to be agitated before this court, which only exercises its superintending powers under Article 227 of the Constitution of India in such cases. The setting up of a new case, over the one in the trial court as evident from the issues struck before it would even otherwise not be permissible in a petition under Article 226/ 227 of the Constitution of India. More so when the RC did not bring any evidence of probative worth on record of the trial court as to her age in 1991 or being born in 1978, by way of her birth certificate, the evidence of her parents, ration-card or even the voter list or a voter identity card issued by the election commission of India or such other documentary/ oral evidence which could inspire confidence. Similarly no evidence of probative worth was brought on record by the RC in consonance with her pleadings in reply to the election petition with regard to her having allegedly been married in the year 1996 such that she could reasonably rebut the school record of the Government Primary School Silpur under Ex.11 and Ex.12 showing 14 that Deepa born on 12-6-1991 and recorded as her daughter could not so be. It would be relevant to state that the EP's documentary evidence on record Ex.11 and Ex.12, certified copies of the record of the Government Primary School Silpurs duly proved by Aw-2 Rajendra Kumar Sharma the Principal of Government Primary School Silpura, prima facie established that Deepa born on 12-6- 1991 was daughter of the RC and her husband Siyaram. This sufficed for discharging the EP's initial burden and shifted the onus of proof on the RC. That onus the RC had to discharge as held by the Apex Court in the case of Razik Ram Vs. Jaswant Singh Chouhan [(1975)4 SCC 769], She did not. A three judge bench of the Apex Court in the case of Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif [AIR 1968 SC 1413] has held that notwithstanding the initial burden on the plaintiff to prove her case in the first instance, where the defendant in knowledge of special facts on which the case turns withholds the best evidence, the court may draw an adverse inference that the party withholding it, would have been the sufferer on the issue before the court if such evidence had been produced. The Apex Court proceeded to hold that it is not sound practice for those desiring to rely upon a certain fact, to withhold from the court the best evidence which is in their possession which could have thrown light upon the issue in controversy and instead rely upon the abstract doctrine of onus of proof. In this state of law. the inevitable consequence on the overall evidence on record was that the trial 15 court had no option but to hold that the EP had been able to establish on preponderance of probabilities that Deepa born on 12-6-1991 was the RC's daughter. And the consequence of her election being set aside under Section 19(l) of the Act of 1994, had to follow reckoning for Pooja being born after the cut off date of 27-11-1995--Hariom born on 2-9-1997 admittedly also being the RC's son.
In view of the evidence on record and state of law, I find no force in the contention of Mr. Suresh Pareek that the impugned judgment is vitiated for not reckoning for the defence of the RC that she born in the year 1978 as per Ex.A-1 and hence could not in the normal course have given birth to a daughter Deepa on 12-6-1991
--when the RC allegedly was 13 years of age. This conclusion also follows for the reason that Ex-A-1 where the RC's year of birth was recorded as 1978 was not admitted but impugned as forged and fabricated by the EP albeit the trial court held that the EP had not been able to so prove for reason of her failure to discharge her burden on that count for lack of evidence of probative worth.
I also do not find any force in the contention of Mr. Suresh Pareek that the trial court wrongly attributed admission, of the RC and her witnesses of Ex.5, Ex.11 and Ex.12, the certified copies of scholar register, mark-sheet and TC of Deepa from Government Primary School Silpura, recording Deepa's date of birth as 12-6- 16 1991 and that RC was her mother and Siyaram her father. A perusal of the evidence on record shows that all of RC's witness and RC herself admitted that Deepa, born on 12-6-1991 was a student of Government Primary School Silpura where her husband Siyaram was recorded as her father. The evidence of RC's witness including RC and her husband Siyaram showed that despite knowledge of their being recorded as mother and father of Deepa no attempt was ever made by them at any point of time for rectification of the aforesaid purported error. Further I am of the considered view that the report of the Divisional Commissioner duly exhibited as Ex.10 without demur was admissible evidence in terms of Section 35 of the Evidence Act, 1872 and besides was a public document under Section 74 furnishing whereof was proof of the facts stated by itself. In this view of the matter the trial court was fully within its jurisdiction on the strength of such evidence in consonance with Ex.5, Ex.11, and Ex.12 to conclude that the RC was the mother of Deepa born on 12-6-1991 and having admittedly given birth to Hariom on 2-9-1997, Pooja born on 3-5-2001 (subsequent to 27- 11-1995) was not entitled to contest the election to the post of Sarpanch in terms of Section 19(t) of the Act of 1994. There is also no force in the contention of Mr. Suresh Pareek that Moti, reflected in Ex.11 and Ex.12 as mother of Deepa was a person different from the RC. In fact the RC in her application for anticipatory bail before the High Court, order whereon was passed on 10-7-2015, and 17 which was exhibited as Ex.13 before the trial court, as also in the election petition and in the instant petition has described herself as Bhori Devi @ Moti. The falsity of the defence of the RC not having an alias of Moti before this court on this count is thus evident.
Under the Evidence Act, 1872 "A fact is said to be 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 the particular case, to act upon the supposition that it exists." Not surprisingly, a three judgment bench of the Apex Court in Chhedi Ram Vs. Jhilmit Ram [(1984)2 SCC 281] has held that under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it i.e. the evidence and also the circumstances, 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, it having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not boggle at the necessary conclusion, and instead lay down an impossible standard of proof and hold a fact as not proved for lack of mathematical precision. The above enunciation applies fully to the instant case where the issue before the trial court was not one of corrupt practice at an election where proof beyond reasonable doubt is required, but one whether the RC had the requisite 18 eligibility to contest the election to the post of Sarpanch, where standard of proof required was only a preponderance of probability.
The upshot of the above discussion is that the impugned judgment dated 21-12-2016 passed by the trial court setting aside the election of the RC as Sarpanch of village Gudla, Panchayat Samiti Karauli District Karauli is not even remotely perverse or vitiated by any illegality going to the root of the court's jurisdiction or entailing a jurisdictional error. I am of the considered view that the conclusion of the trial on the RC being the mother of Deepa born on 12-6-1991 was fully justified. Resultantly with the RC having admittedly given birth to third child Pooja on 3-5-2001 after having born a son Hariom on 2-9-1997 as per her own nomination form of the RC, she was ineligible to contest for the post of Sarpanch of village Gulda, under Section 19(l) of the Act of 1994. Yet having so contested suppressing the aforesaid fact and won, her election for the post in issue has rightly been set aside by the trial court under the impugned judgment.
In the circumstances, there is no force in the petition. It is dismissed.
(Alok Sharma), J.
arn/ 19 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.