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2002 DIGILAW 1725 (RAJ)

Krishna Gopal v. Indra Narain

2002-10-21

K.S.RATHORE

body2002
JUDGMENT 1. - The present writ petition is directed against the judgment dated 7.1.2002 passed by Additional District Judge, Kekri, Ajmer in election petition No. 6/2001 (Annexure-1) whereby the election petition was dismissed. 2. The petitioner had filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 in which it was pleaded that as per election programme declared by the State Government, nomination forms for the post of Sarpanch were filed on 3.2.2000. 3. On 4.2.2000 the elections took place and Returning Officer declared Indra Narain-respondent No.1 as elected Sarpanch of village Panchayat Junia Tehsil Kekri District Ajmer. 4. It is contended on behalf of the petitioner that the petitioner submitted objection petition against nomination form of the respondent No.1 to the effect that the respondent No.1 is having three children and his third child, who is girl, was born after 27.11.1995 when the Panchayat Rules came into force and as per Section 19 of the Rajasthan Panchayati Raj Act, the respondent No.1 is disqualified to contest the election. The allegations alleged by the petitioner is supported by affidavits of two persons, but the Returning Officer did not reject the nomination paper of the respondent No.1. 5. The Election Tribunal has framed the issues to determine the election petition. In support of the issues, the petitioner examined seven witnesses PW1 to PW7 and produced documentary evidence Ex.P1 to P33 whereas the respondent No.1 examined seven witnesses DW1 to DW7 and produced Ex.A1 -to A4. 6. The Tribunal vide its judgment dated 7.1.2002 while deciding the issue No.1 against the petitioner has held that the petitioner has not been able to prove that third child Shivani @ Lali of respondent No.1 was born after 27.11.1995. 7. Learned counsel for the petitioner Mr. Narendra Jain assailed the judgment dated 7.1.2002 on the ground that the Election Tribunal has not appreciated the oral as well as documentary evidence produced on behalf of the Petitioner. It was well proved that third child, Shivani @ Lali of the respondent No.1 born on 7th June, 1997 i.e. after 27.11.1995. 8. Mr. Learned counsel for the petitioner Mr. Narendra Jain assailed the judgment dated 7.1.2002 on the ground that the Election Tribunal has not appreciated the oral as well as documentary evidence produced on behalf of the Petitioner. It was well proved that third child, Shivani @ Lali of the respondent No.1 born on 7th June, 1997 i.e. after 27.11.1995. 8. Mr. Jain submitted the copy of the survey of 1999 wherein the year of birth of third child of the respondent No.1 was mentioned as 27.11.1998 and submits that this document is a public document and was prepared in the year 1999 when the election was not declared. 9. He also drawn my attention towards original documents of attendance register of "Angan Badi Centre" Ex.2 to Ex.13 and in support of entry made in the attendance register and the same were proved by the statement of PW 5, Sandhya, who was an independent witness in the present case in which it was stated that Smt. Dilabar w/o Indra Narain gave a birth to a female child on 7th June, 1997. 10. Learned counsel also read over the statement of ANM in support of survey report of July, 1999 and Indra Kumari ANM has Rev en the statement which is corroborated with Ex.14 wherein column No. 38 date of LMP has been mentioned as 15.9.1996 and date of EDD has been mentioned as 22.6.1997. 11. More particularly Mr. Jain referred para 3 at page 19 of the judgment of Election Tribunal which is reproduced hereunderVERNACULAR MATTER OMITTEDand submits that since the Tribunal itself has not arrived at definite conclusion and also failed to appreciate the documentary witness examined by the petitioner and on the surmises and conjecture, the finding is given that since the petitioner is not having knowledge about the birth of third child directly and in such circumstances, documents placed by the respondent No.1 cannot be disbelieved. 12. Mr. Jain further submits that on the instance of the respondent No.1 certain documents are also tempered and manipulated, despite this fact, the petitioner is able to produce ample documentary evidence as well as witnesses to prove this fact that third child of respondent No.1 was born after 27.11.1995 and at the time of filing nomination, he was not eligible to contest the election. 13. On behalf of the respondent No.1 Mr. 13. On behalf of the respondent No.1 Mr. P.C. Shah submitted reply to the writ petition and controverted the arguments advanced on behalf of the petitioner. It was submitted that since the petitioner has failed to establish this fact that the third child was born after the appointed date and the allegations alleged by the petitioner was found incorrect. Even the petitioner has not mentioned the date of birth of third child of the respondent No.1 in election petition. 14. With regard to survey report of the year 1999, learned counsel for the respondent No.1 submits that it is a forged document and the same has not been proved before the Tribunal. The nutrients are provided to those who are below poverty line, since the respondent No.1 is having 99 bighas of land, as such, he cannot be treated in the category of below poverty line. In support of his argument learned counsel laced the list of BPL Census conducted in the year 1997 in which the name of Respondent No.1 does not find place. Thus, the question of nutrients distribution does not arise. 15. It is further given by learned counsel for the respondent No.1 that in the school certificate date of third child Shivani has been mentioned as 16.9.1995 and there no reason to disbelieve this certificate given by school authorities. 16. On behalf of the respondent No.3 Mr. K.C. Sharma appeared and supported the argument advanced on behalf of the respondent No.1. 17. Reliance has been made on the judgment rendered in the case of (1) Smt. Tara Devi v. Smt. Sudesh Chaudhary reported in 1997 (2) RLR 141 wherein this Court has held that since failure on the part of the respondent No.1 to prove that the date of birth entered in horoscope was her correct date of birth, cannot be the subject matter of drawing any adverse inference against her, it cannot be held that the evidentiary value of Ex.5 & 6 is increased on account of the failure on the part of the respondent No.1 to prove the entry of date of birth mentioned in horoscope. 18. Learned counsel for the respondent No.1 also placed reliance on the judgment reported in (2) Devendra Kumar v. State of Raj. & Ors. 18. Learned counsel for the respondent No.1 also placed reliance on the judgment reported in (2) Devendra Kumar v. State of Raj. & Ors. 2000 (2) RLR 461 wherein it was held that scope under Article 227 is very narrow and limited-Writ petition against eviction order of Estate Officer and order of Distt. Judge dismissing appeal of petitioner though labelled as under Article 226 of the Constitution, but strictly speaking it is under Article 227 and no reasons to interfere with said orders in supervisory power under Article 227. This judgment was passed following the ratio decided by the Hon'ble Supreme Court in case of (3) Mohd. Yunus v. Mohd. Mustagim reported in AIR 1984 SC 38 . 19. Heard rival submissions of the parties and carefully examined the material available on record as well as original record placed by the respondents and also given thoughtful consideration to the judgments referred before me. 20. By bare perusal of the para referred by learned counsel for the petitioner, it reveals that the Election Tribunal has observed that respondent No.1 was not completely able to prove that his daughter Shivani born on 16.9.1995, but after analysing and comparative study of the documents as well as witness produced by both the parties, the evidence produced by the respondent No.1 is found more reliable than the petitioner. It was also observed that burden of proof lies on the petitioner and the petitioner is not able to establish this fact that third child was born after 27.11.1995. The Tribunal has given the finding on issue No.1 against the petitioner. 21. I also perused the Ex.29, 30, 31, & 33 upon which more emphasis has been given by learned counsel for the petitioner. In this regard, the Tribunal has not given any finding in its judgment whether these documents are proved by the petitioner or not and the Tribunal was of the view that the documents, witnesses produced by both the parties are not reliable and both the parties are not able to prove their cases. 22. In case Smt. Tara Devi (supra) it has been held that the burden of proof lies on the petitioner. 22. In case Smt. Tara Devi (supra) it has been held that the burden of proof lies on the petitioner. In the instant case, the petitioner is not able to prove this fact that the third child was born after 27.11.1995 and this Court while exercising power under Article 226 & 227 of the Constitution cannot sit as Appellate Court to appreciate the evidence produced before the Tribunal. Even if the documents as well evidence placed by the respondent is not reliable then also this Court cannot take any adverse inference against the respondent.As discussed herein above, the order dated 7.1.2002 passed by the Election Tribunal does not require any interference. Consequently, the writ petition fails and the same is hereby dismissed with no order as to costs.Petition Dismissed. *******