Sat Narain v. Sub-Divisional Officer — 1965 DIGILAW 16 (ALL)

JUDGMENT K.B. Asthana, J. - By this petition under Article 226 of the Constitution one Sat Narain who had been elected the Pradhan of the Gaon Sabha of village Khain has brought up an order of the Sub-Divisional Officer of Karchhana dated 31-8-1961 setting aside his election and declaring the scat vacant on an election petition filed by Brij Dhari, respondent No. 2, one of the defeated candidates, for being quashed by a writ of certiorari. It appears that 21-12-1960 was fixed for the scrutiny of the nomination papers. The petitioner along with respondents numbers 2, 3 and 4 to this writ were nominated for the election and their nominations were duly scrutinised and held proper. The election was held on 25-1-1961, The petitioner secured 383 votes, Brij Dhari respondent No, 2 secured 321 votes, Chhotey Lal respondent No. 3 secured 104 votes and Brij Mohan respondent No. 4 secured 11 votes. The petitioner who had secured the largest number of votes was duly declared elected. Brij Dhari respondent No. 2 then filed a petition questioning the election of the petitioner on the main ground that the petitioner was in arrears of payment of tax due to Sabha and was disqualified from being nominated as a candidate in the election and that the polling for the election was originally fixed and announced for 26th January 1961 but later on it was changed to 25th January 1961 with out giving the change of date due publicity and thus the election was materially affected. 2. The learned Sub-Divisional Officer of Karchana who tried the election petition on the evidence before him found that the petitioner was not qualified to be nominated as he was in arrears in accordance with the rules on the date of the nomination and further he found that the election was affected due to the change in the date which change was not properly publicised. Being aggrieved the petitioner seeks to invoke the jurisdiction of this Court under Article 226 for quashing of the order of the Sub-Divisional Officer. Sri S. C. Khare, learned counsel for the petitioner, contended that the finding recorded by the Sub Divisional Officer are vitiated and his order based thereon deserves to be quashed by a writ of certiorari. Being aggrieved the petitioner seeks to invoke the jurisdiction of this Court under Article 226 for quashing of the order of the Sub-Divisional Officer. Sri S. C. Khare, learned counsel for the petitioner, contended that the finding recorded by the Sub Divisional Officer are vitiated and his order based thereon deserves to be quashed by a writ of certiorari. The first submission of the learned counsel was that the view taken by the Sub-Divisional Officer that there was a rule prescribing the period as contemplated by Cl. (e) of Sec 5-A of the U. P. Panchayat Raj Act (hereinafter called the Act), is erroneous inasmuch as Rule 15 of the Panchayat Raj Rules which has been relied upon does not fix any period as contemplated under this section. The submission then proceeded that there being no rule prescribed as contemplated in clause (e) in Section 5-A of the Act, any candidate in arrears of tax could not be disqualified for being chosen, nominated or appointed to and for holding any office in the Gaon Sabha and the election of the petitioner on that ground could not be set aside. I do not agree with this submission of the learned counsel. Rule 15 of the Panchayat Raj Rules, in my opinion, prescribes a period as contemplated under Cl. (e) of Section 5-A of the Act. Sub-Rule (1) of Rule 15 lays down that a person shall be disqualified under Cl. (e) of Section 5-A of the Act for being chosen, nominated or appointed to, and for holding any office in the Gaon Sabha or the Gaon Panchayat, or the Nyaya Panchayat if lie is in arrears in tax, fee or rate due by him to the Gaon Sabha on the 31st day of March in the year immediately preceding the year in which an election was held. The language of the rule clearly shows that whatever amount is in arrears on 31st day of March in the year immediately preceding the year in which the election was held-in the instant case 31st March 1960--if it remained in arrears, that is, unpaid, till the date of the nomination, the disqualification would be incurred. Thus the rule prescribes the period during which any person would remain in arrears, that is, from Ist April till the date of the nomination. Thus the rule prescribes the period during which any person would remain in arrears, that is, from Ist April till the date of the nomination. In the instant case admittedly there were dues against the petitioner of taxes up to 31st March 1960. The petitioner produced a receipt signed by the Panchayat Secretary purporting to bear a date 21-12-1960 showing the payment of the taxes due. 3. The learned counsel for the petitioner having failed in his attempt to show that there was no rule prescribing the period as contemplated under Cl. (c) of Section 5-A of the Act then made his second submission that under sub-rule (4) of Rule 15 conclusiveness will attach to the receipt produced by the petitioner and no evidence to prove that actually the payment was not made by the petitioner' on 21st December 1960 but that payment was made on 31st December 1960 was admissible. The relevant portion of sub-Rule (4) of Rule 15 is as follows:- "A receipt issued by the Pradhan or Secretary in payment of any such amount shall be conclusive proof of the fact that the person is not in arrears of the tax, fee or rate as the case may be." 4. It was urged that once the receipt was proved by the Secretary it would be conclusive proof of the fact that the petitioner was not in arrears. The Secretary was produced as a witness by the petitioner, who was respondent in the election petition, and he admitted his signatures on the receipt and also stated that he received the payment on 21-12-1960. The learned Sub-Divisional Officer has not thought it fit to rely upon the statement of the Secretary in view of certain circumstances which he has discussed in his order. Learned counsel for the petitioner strenuously contended that as regards the receipts Nos. 22 and 25 which related to the payment of the taxes for village Khain the learned S. D. O. has not expressed any doubt and he has allowed his mind to be influenced in rejecting those receipts as evidencing the payment on 21-12-1960, as some other receipts relating to some other villages granted to the petitioner were found to be suspicious. There is no substance in this submission of the learned counsel. There is no substance in this submission of the learned counsel. A perusal of the judgment of the learned S. D. O. shows that he applied his mind to receipts numbers 22 and 25 relating to village Khain and two of the circumstances which weighed with him in rejecting the sane may be referred to here. The first circumstance relied upon was that e those receipts were from a fresh receipt book and not from the running receipt book from which receipts to other persons were granted for payment of taxes on 21-12-1960. The second circumstances taken into consideration was that the cash book of 21-12-1960 kept in the Panchayat Office of village Khain did not show the corresponding entry of the receipt of any sum from the petitioner on that date. I think these circumstances could legitimately be taken into consideration by the learned Sub Divisional Officer who was the court of fact in doubting the genuineness of the date which the receipts numbers 22 and 25 purported to bear on their face. Thus there is no substance in the contention of the learned counsel that there was no material before the learned Sub-Divisional Officer on the basis of which the genuineness of receipts numbers 22 and 25 could be doubted. 5. The question then arises whether any evidence for showing that the payment of taxes were not made by the petitioner actually on 21-12-1960 and the date in those receipts was an interpolated one, was admissible. In a recent decision the Supreme Court in the case of Smt. Somwanti v. The State of Punjab, A.I.R. 1963 S.C. 151 held that : "There is no difference between the effect of the expression 'conclusive evidence' from that of 'conclusive proof', the aim of both being to give finality to the establishment of a Tact from the proof of another." 6. The learned counsel for Brij Dhari respondent no. 2 conceded that if the receipts numbers 22 and 25 were genuine and were prepared by the Panchayat Secretary on 21st December 1960 they would be conclusive proof of the fact that the payment actually was made by the petitioner on that clay and he was not in arrears. The learned counsel for Brij Dhari respondent no. 2 conceded that if the receipts numbers 22 and 25 were genuine and were prepared by the Panchayat Secretary on 21st December 1960 they would be conclusive proof of the fact that the payment actually was made by the petitioner on that clay and he was not in arrears. But he submitted that the rule of law contained in sub-rule 4 of Rule 15 does not preclude the admission of evidence to show that the receipts were not genuine in the sense that the date 21-12-1960 which they purported to bear was an interpolation and this was purposely done to establish the factum of payment of arrears of tax on that date. Reliance was placed by the learned counsel for the respondent on para. 506 of Volume XV Halsbury's Laws of England III Edition at page 278 and my attention has been drawn that like estoppels and so-called conclusive presumptions the tendering of evidence which by Statute or by agreement of the parties is declared to be conclusive precludes evidence to the contrary which is inadmissible unless the evidence itself is inaccurate on the face of it or fraud is shown. There is no doubt in my mind that the rule of conclusiveness contained in sub-rule (4) would not preclude a party to show that the document on the basis of which conclusiveness is sought to be attached to another fact is a forged or false document. For once it is established that the document is a forged or false or has come into existence fraudulently, the court would ignore it and in the eye of law it would be nonexistent for evidencing any genuine transaction the proof of which, that is, the genuine transaction evidenced by the document, can be made the proof of another fact. In Section 4 of the Indian Evidence Act conclusive proof is defined as when one fact is declared by that Act to be conclusive proof of another a court shall, on proof of the one fact record the other as proved and shall not allow evidence to be taken for the purpose disproving it. It is in this sense that under sub rule 4 of Rule 15 of the panchayat Raj Rules that the phrase 'conclusive proof' has, been used. It is in this sense that under sub rule 4 of Rule 15 of the panchayat Raj Rules that the phrase 'conclusive proof' has, been used. It is clear to my mind that the fact which is made conclusive proof another fact has to be proved like any other fact by evidence. File receipts numbers 22 and 25, therefore, had to be proved like any other document. The petitioner sought to prove them by producing the Panchayat Secretary who had signed the same. His statement was subject to scrutiny by cross-examination. If he was not able to explain properly and to the satisfaction of the court of fact the doubts which arose in view of other evidence and circumstances on record and the court did not think fit to believe him the receipts numbers 22 and 25 remained unproved. Further if the court of fact found that there was convincing material before it for holding that the date 21-12-60 which was mentioned in those receipts was false it was entitled not to act upon those receipts as showing any. payment of taxes on 21-12-1960. I do not think, as discussed above, that the learned Sub Divisional Officer in rejecting receipts numbers 22 and 25 and not relying upon them committed any breach of the provisions of sub rule 4 of Rule 15 of the Panchayat Raj Rules. The submission of Sri Khare that the finding recorded by the learned S. D. O. to the effect that the petitioner was not a duly qualified candidate for nomination to the election of the Pradhan was erroneous fails. 7. In view of what I have held above the petitioner having failed to make a case for certiorari on the basis of his attack on the validity of the above finding of the learned S. D. O. it is not necessary for me for the purposes of this petition to express any opinion on the second submission of the learned counsel for the petitioner attacking the finding of the S.D.O. that the election was materially affected on account of the change in the date of the poll, inasmuch as even if the latter finding was erroneous the invalidity attaches to the election of the petitioner on the basis of the first finding of the learned S. D. O. that he was not 2 duly qualified candidate for nomination. 8. 8. For the reasons given above I reject this petition. In the circumstances of the case I direct the parties to bear their own casts.