Rajasthan High Court - Jaipur
Shaukat vs Razzak on 4 May, 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.14662/2016
Shaukat son of Sawant, aged about 68 years, by caste Mev, resident
of village Ghatmika, Panchayat Samiti & Tehsil Pahari, District
Bharatpur Rajasthan.
... Non-applicant/ petitioner
Versus
Razzak son of Noor Mohmmad, aged about 48 years, by caste Mev,
resident of Village Fatehpur, Panchayat Samiti & Tehsil Pahari, District
Bharatpur, Rajasthan.
... Applicant/ Respondent
Date of Order: May 4, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Kamlakar Sharma, Senior Advocate with
Mr. M.S. Rajpurohit, for the petitioner.
Mr. Sudesh Bansal, for the respondent.
BY THE COURT:
This petition has been filed against the judgment dated 21-9- 2016 passed by the Senior Civil Judge Kaman (Bharatpur), whereunder the election petition filed by the respondent-election petitioner (hereinafter the EP') challenging the election of the petitioner-returned candidate (hereinafter `the RC') was allowed and election of the RC as Sarpanch of village Ghatmika, Panchayat Samiti Pahari District Bharatpur has been set aside. 2
Election of the RC to the post of Sarpanch of village Ghatmika, Panchayat Samiti Pahari 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 Panchayat Raj (Election) Rules, 1994 (hereinafter `the Rules of 1994') by the EP inter alia alleging that the RC's documents regarding his educational qualification to contest election for the post of Sarpanch were forged and fabricated and that the Returning Officer did not critically check the documents of the RC and illegally accepted his nomination form.
On notice on the election petition, the RC obviously filed reply of denial stating that he was eligible to contest the election. It was his case that he passed the 8 th class in 1969 from Ambedkar Junior School Raya Road Priti Vihar Mathura. It was also stated that as per the transfer certificate issued by the school his date of birth was 20-7-1955, which the EP has wrongly mentioned as 14-8- 1948. It was stated that since the original mark-sheet and transfer certificate were lost, he had obtained a duplicate thereof and enclosed them with the nomination papers. As an additional defence to the election petition, it was stated that Returning Officer and District Election Officer not being impleaded as parties, the election petition be dismissed for non joinder of necessary parties. 3
Based on the pleadings, the trial court framed the following issues:-
१. आय गरय च श कत आठव कक उतत र नह ह न स ग म पच यत घ टम क म" सरपच पद हत$ ददन क १८-१-०६ क समपनन ह$ए च$न व म" सरपच पद हत$ पतय श क रप म" अय गय थ ?
--- य च
२. आय गरय च न उकत च$न व म" सरपच पद हत$ न म ननद4 शन पत क स थ ज शकणरक दसत वज पसत$त ककय ह व फज; ह?
--- य च
३. आय गरय च न व र स.४ क पच पद हत$ न म ननद4 शन पसत$त ककय गय थ परनत$ ररटनन@ग अधBक र न स ज कर बDन न म कन पत कE पर क ककय उस सरपच पद क पतय श Dन लGय ?
--- य च
४. आय यच न च$न व य धचक क पतयक पषH ठ क पषH ठ कन व पम र करर और उनव न ननयम नस $ र नह ककय ह इसलGए य धचक क बDG ख़ ररज ह?
--- गरय च
५. आय यच न य धचक म" ररटनन@ग अधBक र व ननव चन अधBक र क पकक र नह Dन य जजसक अभ व म" य धचक क बDG ख़ ररज ह. गरय च ?
६. अन$त ष?
In support of the election petition, the EP examined himself as Pw-1, Arjan Pw-2, and Girraj Singh PW-3 and exhibited 14 documents. The RC examined himself as DW-1, Uttamchand Dw- 2, Noor Mohammad DW-3, Rahim Khan Dw-4 and Bhim Singh Dw-5 and exhibited one document.
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The trial court considered issues No.1&2 together and concluded that the Transfer Certificate (Ex.8) and mark-sheet (Ex.9) produced before the Returning Officer by the RC as proof of his educational qualification of having passed class VIII for contesting the election to the post of Sarpanch were forged. This conclusion of the trial court was based on the critical examination of the evidence of one Pw.3 Girraj Singh, Division Education Officer Raya and the enquiry report (Ex.13) to this effect duly exhibited, wherefrom it was established that in the years 1966-1969 the Ambedkar Junior School Raya Road Priti Bihar Mathura was not in existence. The RC's certificate and mark-sheet so claiming (Ex.9 and Ex.8 respectively) were obviously forged and fabricated and he was thus not qualified on the educational requirement of class VIII pass to contest the election to the post of Sarpanch. The trial court however found no collusion of the Returning Officer in the RC's nomination form being accepted as he had no material before him to disbelieve it at the relevant time. It however held that the defence of the RC on the ground of the petition being liable to be dismissed for non-joinder of a purported necessary parties was without legal foundation and liable to be rejected. It was accordingly held that the RC's election to the post of Sarpanch of Gram Panchayat Ghatmika was liable to be set aside. It was so. Consequent directions to hold election to the resultant vacant post of Sarpanch were issued. Hence this petition.
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Mr. Kamlakar Sharma, Senior Advocate appearing with Mr.M.S. Rajpurohit for the RC has submitted that the trial court committed a patent illegality and perversity in setting aside the election of the RC. He submitted that the EP failed to discharge the requisite burden of proof to establish the ineligibility of the RC for lack of requisite educational qualification mandated under Section 19(t) of the Act of 1994. It was submitted that there was no legal evidence documentary or oral to establish the EP's case. Mr. Kamlakar Sharma submitted that the exhibit-13 was only a photo copy and not a certified copy of the purported enquiry report prepared by Pw.3 Girraj Singh and was not admissible, even as secondary evidence under Section 65 of the Evidence Act, 1872 (hereinafter `the Act of 1872'). Nor was Ex.13 produced from proper custody. It was submitted that admittedly the original enquiry report was not produced before the trial court at the time of the cross examination of Pw.3 Girraj Singh. Mr. Kamlakar Sharma then submitted, in the alternative, that even otherwise neither Ex.13 nor proof thereof by Pw.3 Girraj Singh, Division Education Officer led to the necessary conclusion, as perversely drawn by the trial court, that the RC's mark-sheet (Ex.9) and transfer certificate (Ex.8) were forged. Amplifying the submission Mr. Kamlakar Sharma argued that all that the enquiry report (Ex.13) stated was that no school in the name of Ambedkar Junior 6 School Raya Road Priti Vihar Mathura was in existence when the enquiry was conducted in the year 1969. It did not state that the said school did not exist between 1966-1969, when the RC studied there in class VI to VIII. The possibility of the said school closing down subsequent to the RC studying there cannot be discounted as the trial court did, to the RC's detriment. The mark-sheet (Ex.9) and TC (Ex.8) in the circumstances could not be peremptorily held to be forged on such unwarranted inference as drawn by the trial court in excess of its jurisdiction. It was further submitted that the enquiry report (Ex.13) did not disclose that any statement was taken on record from the neighborhood of the location where Ambedkar Junior School Raya Road Priti Vihar Mathura was functional at the relevant time in 1966-1969 to establish that such school was not in existence in 1966-1969 when the RC studied there. Mr. Kamlakar Sharma further submitted that the Ex.13 was also a lopsided document vitiated by non compliance with the principles of natural justice inasmuch despite being an enquiry against the RC, he was not included in the process. No notice was given to the RC to participate and consequently his version not considered/ included while Pw.3 Girraj Singh came to a conclusion prejudicial to him. Even the officers of the UP Education department within whose jurisdiction the area where the Ambedkar Junior School Raya Road Priti Vihar Mathura was situate were not examined by the Enquiry Officer Pw.3 Girraj Singh. It was 7 submitted by Mr. Kamlakar Sharma that besides the evidence of Pw.3 Girraj Singh being vitiated and of no effect founded as it was on an inadmissible document i.e. Ex.13, the evidence of Pw.1 the EP himself was only conjectural and speculative on the issue of the RC's educational qualification and hence no evidence in the eye of law. Nor was the evidence of Pw.2 Arjan on the issue of the allegedly forged mark-sheet (Ex.9) and RC (Ex.8) of any probative worth.
Referring to the evidence of the RC and Dw.3 Uttam Chand Jatav, who purportedly was RC's classmate at the Ambedkar Junior School Raya Road Priti Vihar Mathura in class VI through VIII during 1966-1969, Mr. Kamlakar Sharma submitted that from the Ex.D-1, the school leaving certificate relating to Uttam Chand Jatav, allegedly co-student of RC, at the school in issue in 1966-1969, it was established that the RC was class VIII passed. He submitted that this fact was also buttressed and established from the evidence of Noor Mohammad (Dw.4), who stated that the RC studied at the Ambedkar Junior School Raya Road Priti Vihar Mathura in class VI to VIII and so because the school in the village was then only upto class V. It was finally submitted by Mr. Kamlakar Sharma that all the substantive evidence in defence led by the RC could not have been, as it was, jettisoned on the purported unlikelihood of the RC travelling a distance of over 100 Kms from his village to study in class VI to VIII at the Ambedkar Junior School Raya Road Priti Vihar 8 Mathura. That has however done by the trial court on impermissible inferences unsustainable in law, submitted Mr. Kamlakar Sharma.
In support of his contentions, Mr. Kmalakar Sharma invoked the Apex Court's opinion in the case of Harikrishna Lal Vs. Babu Lal [AIR 2004 SC 1067] to emphasize that the setting aside the election of an elected candidate cannot be casually done on mere suspicion and in the absence of substantive evidence of probative worth to do so, is unsustainable, as the elected candidate reflects the will of the people which is the very foundation of a democratic polity. The court can set aside an election only on the basis of the burden of proof being fully and convincingly discharged by the EP. It was submitted that the trial court's impugned judgment setting aside the election of the RC as Sarpanch is contrary to the aforesaid principle and thus vitiated and liable to be set aside. The impugned judgment is founded on inadmissible evidence Ex.13, sans which there was no evidence of probative worth on record to discharge the burden of proof on the EP. In that obtaining state, Mr. Kamlakar Sharma submitted the Election petition ought to have been dismissed. Yet it has contrarily been allowed on mere surmises, conjectures and impermissible inferences based on the subjectivity of the trial court's view on the purported oddity of the RC having travelled over 100 Kms from his village to study in class VI to VIII at the 9 Ambedkar Junior School Raya Road Priti Vihar Mathura.
Per contra, Mr. Sudesh Bansal, appearing for the EP submitted that the duplicate copy of the transfer certificate (school leaving certificate) issued on 12-7-2011 and duplicate undated and unsigned copy of the mark-sheet of class VIII allegedly issued by the Ambedkar Junior School Raya Road Priti Vihar Mathura were clearly forged and so rightly found by the trial court from a wholistic reading and appreciation of the evidence on record. That was the inevitable conclusion from the evidence laid by the EP in discharge of his burden of proof. Mr. Sudesh Bansal submitted that the enqiry report (Ex.13) albeit only a photocopy was duly exhibited without any objection by the RC before the trial court. Such evidence can not thereafter be impugned in this petition on ground of its alleged inadmissibility for reason of being a photo copy and not a certified copy of the enquiry-report. Mr. Sudesh Bansal submitted that Ex.13 being the report of the enquiry conducted by Pw.3 Girraj Singh in exercise of his official duties was clearly a public document and hence admissible in evidence. Objections now sought to be taken in this petition as to a photo copy thereof being admitted and a certified copy not being filed relate only to the mode of its proof and not to its fundamental inadmissibility. Reference has been made to the judgment of the Apex Court in the case of RVE Venkatachala Gounder Vs. Arulmigu 10 Veswesaraswami and B.P. Temple [(2003)8 SCC 752], in support of the contention.
Mr. Sudesh Bansal submitted that Ex.13 thereafter came to be proved by Pw.3 Girraj Singh, on all aspects of the matter in the course of trial. Therefrom it was established that on a complaint received and resultant enquiry, it was found that the Ambedkar Junior School Raya Road Priti Vihar Mathura was not even in existence in 1966-1969 when the RC claimed to have studied in class VI through VIII and passed the examination. It was submitted that the school itself being non existent at the relevant time the copy of the transfer certificate and mark-sheet purportedly issued therefrom, on the basis of which the RC claimed to have passed class VIII for eligibility to the post of Sarpanch were clearly forged and fabricated. It was pointed out that oddly the transfer certificate was dated 12-7-2011, about 42 years subsequent to 1969 when the RC claimed to have passed class VIII from the Ambedkar Junior School Raya Road Priti Vihar Mathura. Further the mark-sheet was undated. It was further pointed out that aside of stark improbabilities of the RC's of having passed class VIII, the trial court took into consideration as an additional factor the complete unlikelihood of the RC, then a child, travelling over 100 Kms. to study for three years in class VI to VIII at the Ambedkar Junior School Raya Road Priti Vihar Mathura.
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Mr. Sudesh Bansal submitted that the evidences thus laid by the EP discharged the initial burden on him to prima facie prove his case and thereupon the onus shifted to RC to bring his best evidence before the trial court to overcome the allegation of both his mark- sheet and TC being forged and fabricated. This the RC miserably failed to do and evidence led on his behalf was found by the trial court on appreciation to be of little worth. It was submitted that contrarily the RC in his cross examination admitted that he obtained the TC and mark-sheet from the Ambedkar Junior School Raya Road Priti Vihar Mathura, in 2011, on the School's letterhead when the school admittedly was not in existence. It was submitted that the RC also admitted that he was not in a position to name the head master of the Ambedkar Junior School Raya Road Priti Vihar Mathura, when he allegedly studied therein and further that he obtained the mark-sheet subsequent to closure of the school from the residence of the head master in the year 2011, even though he had not moved any application for such duplicate mark-sheet. Mr. Sudesh Bansal submitted that the trial court on appreciation of evidence of contesting parties before it, came to the only possible finding of the RC's mark-sheet and TC as proof of his having passed class VIII examination from a recognized school being forged and fabricated. He submitted that the case set up by the EP was proved on the preponderance of probabilities, as that is the standard of proof in an election petition, where the ground of challenge is not a 12 corrupt practice but the ineligibility of a candidate to contest an election and his nomination form being wrongly accepted by the Returning Officer. Mr. Sudesh Bansal further submitted that the view of the trial on the evidence on record being an eminently possible view on appreciation of evidence on record, it cannot be and should not be interfered with in the exercise of the court's jurisdiction either under Article 227 or Article 226 of the Constitution of India.
Heard. Considered.
The standard of proof in an election petition where a challenge to election of the RC is not based on corrupt practice is that equal to in a civil case i.e. preponderance of probabilities. In the case at hand it has to be seen as to whether from the evidence on record the trial court on that standard of proof, has come to a legal and valid conclusion that the RC's mark-sheet and transfer certificate relating to his claim of having passed class VIII were forged and fabricated and hence he was not eligible to contest the election on the post of Sarpanch. The enqiry report Ex.13 followed an enquiry conducted by Pw.3 Girraj Singh. Albeit only a photo copy and not a certified copy thereof was exhibited before the trial court, it was without any demur/ objection by the RC at the relevant time and even in the course of the trial. The Apex Court in the case of RVE Venkatachala Gounder Vs. Arulmigu Veswesaraswami and 13 B.P. Temple (supra) has held that where a document inherently admissible in evidence for reason of legal prohibition, is yet exhibited objection to its admissibility can indeed be taken at any stage. Yet where a document otherwise admissible is exhibited without any objection, even though not as per the mode prescribed, subsequent objection as to the mode of its proof cannot be taken. In the instant case, it is not the RC's case that Ex.13 was inadmissible for reason of a legal prohibition. His objection, as articulated by Mr. Kamlakar Sharma his counsel, is that a photocopy of enquiry report could not have been exhibited because under Section 65 of the Evidence Act only certified copies of public documents, as the enquiry report Ex.13 indeed was, can be admitted in evidence. It is thus evident that the enquiry report Ex.13 is not an inherently inadmissible document and the objection as to its admissibility relates to the mode of its proof before the trial court. However, no objection was raised before the trial court on this count at the time when the photocopy of the enquiry report by Pw.3 Girraj Singh was exhibited and marked Ex.13. Therefore the objection of the RC now in this petition as to mode of proof cannot be sustained before this court.
The Apex Court in the case of State of UP Vs. Raj Narain [(1975)4 SCC 428] expounded upon what evidence is admissible and what is not. It was held thus:
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"Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is sometimes estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts are subject to recognized exceptions inadmissible unless they are proved by the best or the prescribed evidence."
This opinion of the Apex Court makes it evident that unless evidence is prohibited by law it can be laid in court. The other aspect of inadmissibility only relates to the mode of its proof. But if not objected to at the time of being tendered in evidence, the objection as to mode of proof cannot be subsequently agitated to turn the clock back to the other party's prejudice, which if put to ntoice on the mode of proof of evidence laid at the time of its admission could make course correction and adopt the prescribed mode of proof to bring the relevant evidence on record.
The objection of the admissibility of the photocopy of the enquiry report as Ex.13, now being out of the way as per the law 15 laid down by the Apex Court, I am of the considered view that there was sufficient evidence on record of the trial court to discharge the initial burden on the EP and shift the onus on the RC to bring his best evidence to displace the EP's evidence as to lack of RC's educational qualification to contest the election to the post of Sarpanch under the Act of 1994.
In Chhedi Ram Vs. Jhilmit Ram [(1984)2 SCC 281], also an election case, a three Judge bench of the Apex Court held that in the facts of a given case, the court could hold as proved on preponderance of probabilities a fact if a reasonable probability supported the conclusion. The Apex Court cautioned against setting up an impossible standard of proof apparently as a requirement of absolute certainty would only be a harbinger of injustice. 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 but one whether the RC had the requisite eligibility to contest the election to the post of Sarpanch. The standard of proof to be adopted and applied was thus unquestionably of a preponderance of probabilities.
The judgment of the trial court is fundamentally based on the fact that it was proved to its satisfaction on a preponderance of probabilities on a wholistic appreciation of evidence on record that 16 the RC was not a holder of a valid school leaving certificate/ mark- sheet evidencing his having passed class VIII examination, the essential educational qualification and condition of eligibility to contest the election on the post of Sarpanch. The conclusion of the trial court is based on an objective consideration of the evidence on record in which it while reckoning for the RC's evidence before it, also considered the EP's evidence on record such as the evidence of Pw.3 Girraj Singh, who conducted the enquiry with regard to RC's mark-sheet and transfer certificate from the Ambedkar Junior School Raya Road Priti Vihar Mathura and submitted his report Ex.13 wherein it was found that the school in issue did not exist very between 1966-1969 when the RC claimed to have passed class VI to VIII therefrom. The RC did not produce the original mark-sheet and school leaving certificate dating back to 1969 when purportedly he passed class VIII. He instead produced a school leaving certificate dated 12-7-2011 from the alleged Headmaster's residence admittedly without even applying for it, when as per his own admission the school was not in existence. The Headmaster was not produced in evidence by the RC before the trial court. Further on the mark-sheet also a duplicate is undated and does not state the year of RC's study. The RC's evidence in defence was quite worthless and uninspiring wholly inadequate to discharge the onus shifted to him on the basis of the evidence of the EP and his witness as also Ex.13 duly proved.
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In a petition under Article 227 of the Constitution of India or for that matter one under Article 226 of the Constitution of India as the petition under consideration also purports to be, this court's powers are neither appellate nor even revisional. For invoking the extraordinary jurisdiction of this court or for that matter its supervisory jurisdiction, the impugned judgment has to be established to be without jurisdiction, in violation of statutory provisions, perverse, misdirected in law and having entailed manifest injustice. None of the aforesaid situation/s is/ are made out in the present case. The well considered impugned judgment dated 21-9-2016 passed by the trial court is also not even remotely perverse. The conclusions of the trial court of the RC being ineligible/ disqualified to contest the election to the post of Sarpanch for reason of not having passed the class VIII examination from a recognized school are based on objective appreciation of evidence on record. The judgment impugned in the circumstances brooks no interference.
I therefore find no force in the petition. It is dismissed.
(Alok Sharma), J.
arn/ 18 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.