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2008 DIGILAW 175 (CHH)

Ravika Ekka v. Kunni Kujur

2008-07-10

D.R.DESHMUKH

body2008
ORDER This Civil Revision is directed against the order dated 11.07.2007 passed by the 1st Additional District Judge (F.T.C.), Ramanujganj in Miscellaneous Civil Case No. 1/05 whereby the election of the petitioner as President of the Nagar Panchayat, Balrampur was declared void. 2. The respondent No.1 herein had filed the petition under Section 20 of the Chhattisgarh Municipalities Act, 1961 (henceforth `the Act') alleging inter alia that the petitioner herein was disqualified from election as the President of the Nagar Panchayat, Balrampur on the ground that the third child to the petitioner was born after 26th January, 2001 i.e. 15.02.2002. 3. Although in paragraph 42 of the impugned order it was observed that the evidence led by the respondent No.1 was of a weak nature, yet the learned 1st Additional District Judge held that the petitioner was disqualified for election as a President of Nagar Panchayat, Balrampur, as she had more than two living children, one of whom was born on or after 26th January, 2001. This finding was reached on the ground that under Section 106 of the Evidence Act the petitioner had failed to discharge the burden of proving the fact that the third child of the petitioner was born before 26th January 2001. 4. Having heard learned counsel for the parties at length and after perusal of the record, I am of the considered opinion that this Civil Revision deserves to be allowed as the order passed by the learned 1st Additional District Judge is perverse. 5. Section 35 of the Act lays down the grounds on which a person shall be disqualified for contesting an election of the President. Under ground (q) of Section 35 of the Act no person shall be eligible for election or as a President or election or nomination as a Councillor if he has more than two living children, one of whom is born on or after 26th January, 2001. 6. Section 106 of the Evidence Act which states an exception to the general rule laid down in Section 101 of the Evidence Act that the burden of proving a fact rests on the party who substantially asserts it, reads as under: "S. 106. Burden of proving fact especially within knowledge-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations. Burden of proving fact especially within knowledge-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations. (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 7. The provision contained in Section 106 of the Evidence Act is not intended to relieve any person of the duty or burden cast by Section 101 of the Evidence Act. It says that when a fact to be proved is especially within the knowledge of any person, it is for him to prove it. The illustrations given under Section 106 of the Evidence Act also suggest that the words "especially within the knowledge of any person" should be construed to mean "within the knowledge of that person alone". In order to place the burden of proof on the petitioner herein, the fact of birth of the third child must therefore be a fact which is especially within the knowledge of the petitioner alone. So far as the birth of a child is concerned, it is not a fact especially within the knowledge of the mother alone. It is within the knowledge of the father, relatives, the doctor or persons who were present at the time of delivery of child. It is also within the knowledge of persons who entered the date of birth in the official register. Therefore, birth of a child cannot be said to be a fact which is especially within the knowledge of the mother. Since the petition filed by respondent No.1 challenging the election of the petitioner on the ground of birth of a third child to the petitioner after 26th January 2001 was founded on oral as well as documentary evidence, the burden of proving the said fact was squarely on the respondent No.1. The learned Court below thus acted illegally in placing the burden of proof on the petitioner. 8. The respondent No.1 - Kunni Kujur's petition under Section 20 of the Municipal Corporation Act, 1961 was founded on two documents; firstly the Ex.P.6 and Ex.P.7(C). The learned Court below thus acted illegally in placing the burden of proof on the petitioner. 8. The respondent No.1 - Kunni Kujur's petition under Section 20 of the Municipal Corporation Act, 1961 was founded on two documents; firstly the Ex.P.6 and Ex.P.7(C). It is beyond comprehension how the learned 1st Additional District Judge drew an inference against the petitioner herein when in paragraph 42 of the impugned order it has recorded a finding that the evidence led by Kunni Kujur was of a weak nature. A perusal of the Ex.P.6 goes to show that the name of the mother is mentioned as Rashia and not as Ravika. The petitioner herein had filed the original Ex.D.2 wherein her name has been mentioned and date of birth of a girl child is clearly mentioned as 13.01.2001. The Ex.P.7(C) also shows that at Sl.No.44 the entry in the name of Pramila wife of Krishna has been deleted and name of Rabika Ekka wife of Lodhi has been inserted. The explanation offered by Smt. Grace Kujur who was the Women Health Supervisor at Community Health Center, Balrampur is far from satisfactory. According to her, the entry at Sl.No.44 was made by Basanti Dutta who had later on deleted it and inserted the name of Rabika Ekka wife of Lodhi. The testimony of Smt. Grace Kujur does not inspire confidence because according to Dr. R.L.Markam, Block Medical Officer, Smt. Grace Kujur was under suspension from 4.1.2000 to 28.10.2002 and her headquarter was at Ramanujganj. The Ex.P.7(C) also mentions Primary Health Center, Balrampur, Up-Kendra Clinic, Aghoura village, Ward Manoura whereas Balrampur is shown to be under Up-Kendra/Clinic, Balrampur, as is to be noticed from the Ex.D.6(C). The petitioner herein has examined Smt. Basanti Dutta who was the auxiliary nurse at Community Health Center, Balrampur and had performed the delivery of the petitioner. She stated on oath that she had gone to the house of the petitioner for conducting the delivery and a girl child was born to the petitioner on 13.01.2001. Her testimony finds support from the Ex.D.2 and Ex.P.6(C) filed by the petitioner herein in which the name of Up- Kendra/Clinic has been mentioned as Balrampur. It is also noteworthy that Smt. Pramila Gupta A.W.7, a witness, examined by respondent No.1 did not support her case and deposed that a girl child was born to Rabika Ekka on 13.01.2001. Her testimony finds support from the Ex.D.2 and Ex.P.6(C) filed by the petitioner herein in which the name of Up- Kendra/Clinic has been mentioned as Balrampur. It is also noteworthy that Smt. Pramila Gupta A.W.7, a witness, examined by respondent No.1 did not support her case and deposed that a girl child was born to Rabika Ekka on 13.01.2001. She has also proved the entry in the register Ex.P.8 and has categorically denied that a girl child was born to Rabika Ekka on 15.02.2002. In this view of the matter, the documentary as also the oral evidence adduced by respondent No.1 had several dents and did not inspire confidence. On the other hand, the evidence led by the petitioner herein proved beyond doubt that the third girl child was born to her on 13.01.2001. The impugned order is thus perverse and is liable to be set aside. 9. In the result, the Civil Revision is allowed. The impugned order dated 11.07.2007 passed by the learned 1st Additional District Judge (F.T.C.), Ramanujganj, Dist. Surguja in Misc. Civil Case No. 1/2005 is set aside. The petition filed by respondent No.1 under Section 20 of the Municipal Corporation Act, 1961 is dismissed. 10. Before parting with this revision, it is apt to mention that it is not merely of some importance, but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly, seem to be done. The pure fountain of justice must not only remain unsullied from within, but it must also, even on the surface and outside appear and actually remain unpolluted, so that the confidence of the citizens of the country in the judicial administration of the country may remain unshaken. Confidence in the Court administering justice on the part of both parties and of the public is a vital element in the administration of justice. The District Judge, Ambikapur, therefore, ought not to have thrust the decision of the election petition on the 1st Additional District Judge, Ramanujganj, vide letter No.1004/,d-19- 1/04, dated 28.06.2007 especially when the learned 1st Additional District Judge vide letter No. 296/07, dated 22.6.2007 had promptly requested for transfer of the election petition after a complaint regarding integrity was made against him.