Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2089 (RAJ)

Meera Devi Wife v. Shreedevi Bai Meena

2017-09-19

ALOK SHARMA

body2017
JUDGMENT : Alok Sharma, J. 1. This petition has been filed against the judgment dated 24-4-2017 passed by District Judge, Karauli where under the election petition filed by the respondent-election petitioner (hereinafter the EP') challenging the election of the petitioner-returned candidate (hereinafter 'the RC') has been allowed. The RC has been declared ineligible to contest the election and her election to the post of Sarpanch of Gram Panchayat Kirwada, Panchayat Samiti Todabheeem, District Karauli has been set aside. 2. Election of the RC to the post of Sarpanch of Gram Panchayat Kirwada, Panchayat Samiti, Todabheem, District Karauli was called in question under Section 43 as also Section 19(t) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994') read with Rule 80 as also Rule 80(d)(i) and Rule 57 of the Rajasthan Panchayat Raj (Election) Rules, 1994 (hereinafter 'the Rules of 1994') by the EP inter alia alleging that on the date of filing of nomination form, RC had not passed class VIII, the minimum requisite educational qualification for the post in issue. It was contended that the documents viz. Marks sheet and TC filed by the RC with regard to her having passed class VIII were not genuine but forged and fabricated. The EP raised an objection with regard to the educational qualification of the RC of having passed VIII class, but the Returning Officer did not consider the same and accepted her nomination form. 3. Another election petition was filed by one Smt. Geeta Devi also challenging the election of RC on the post of Sarpanch of Gram Panchayat Kirwada, Panchayat Samiti, Todabheem, District Karauli. 4. On notice on the election petition, the RC filed reply of denial stating that she was eligible to contest the election. It was her case that on her nomination form, no objection was ever raised by any of the candidates contesting the election or EP or their authorized agents. The RC had the requisite educational qualification of class-VIII pass. In the nomination form, the name of her school was correctly mentioned. None of the documents viz. Marks sheet or TC of her having passed Class-VIII were forged and fabricated. She passed her Class-VIII in the academic session 1986-87 from Government Upper Primary School, Deewli with IIIrd division. The RC had the requisite educational qualification of class-VIII pass. In the nomination form, the name of her school was correctly mentioned. None of the documents viz. Marks sheet or TC of her having passed Class-VIII were forged and fabricated. She passed her Class-VIII in the academic session 1986-87 from Government Upper Primary School, Deewli with IIIrd division. She further mentioned that her name was interpolated from 'MEERA' to 'VEENA' in the school record to cause her damage in having her election to the post of Sarpanch being set-aside. 5. Based on the pleadings, the trial court framed three issues. Thereafter the witnesses were produced and evidence was laid. 6. For the sake of convenience, both the elections petitions were clubbed together. The EP in the second election petition Geeta Devi filed an application stating she did not intend to pursue the election petition. Yet the trial court has passed the impugned judgment dated 24.4.2017 allowing both the election petitions on the evidence laid by the EP-respondent in this petition and held that the RC did not possess qualification of class-VIII pass, the eligibility condition for contesting the election for the post of Sarpanch and had submitted forged and fabricated TC as also the marks sheet with her nomination form. Accordingly, the RC was found ineligible to contest the election for the post of Sarpanch and her election as Sarpanch of Gram Panchayat Kirwada, Panchayat Samiti Todabheem, District Karauli set aside. Consequent directions were issued. 7. Hence this petition. 8. Counsel for the RC has submitted that the trial court committed a gross error and perversity in setting aside the election of the RC. He submitted that the documents of the school submitted by the RC with the nomination form TC and marks sheet of Class-VIII with regard to her having passed class VIII were genuine. The trial court has wrongly set aside the election of the RC. Counsel has drawn the attention of the Court to Ex.A/2, admission register of Government Primary School, Deewli, Tehsil Weir District Bharatpur wherein interpolation/overwriting over the name of 'Meera Devi D/o Pooran Mal Meena' is alleged to have been made to reflect it as 'Veena D/o Pooran Mal Meena'. Counsel submitted that before the interpolation, the Scholar Register reflected the RC's name establishing her being a student of the Government Primary School, Deewli. Mr. Counsel submitted that before the interpolation, the Scholar Register reflected the RC's name establishing her being a student of the Government Primary School, Deewli. Mr. Suresh Sahni relied upon Section 59 of the Evidence Act 1872 to submit that A-2 constituted documentary evidence of the RC being a student of the Government Primary School, Deewli and oral evidence to the contrary by NAW-6 Banwari Lal Meena, who turned hostile in Court and the witness of the EP was of no avail. Counsel has also placed reliance on the report of private handwriting expert M/s. Krishna Charan with regard to signatures of Banwari Lal Meena, the then Head Master of Government Secondary School, Deewli NAW-6 who turned hostile before the trial court and contended that the marks sheet of Class-VIII pass under his signature is genuine irrespective of the fact of Banwari Lal Meena NAW-6 having turned hostile in Court and denied having issued it. Mr. Suresh Sahni further submitted that the impugned judgment dated 24.4.2017 passed by the trial court is liable to be set-aside on the ground that it is in the cross-hair of the order of this Court in S.B. Civil Writ Petition No. 17608/2016 passed on 3.1.2017, wherein on consent of counsel for EP it was directed that the disputed documents in the election petition be deposited by RC before the court below within a period of 15 days and then be sent to the Director, State Forensic Science Laboratory (for short, 'FSL') for examination by a hand writing expert. It was submitted that following the directions of this Court on 3.1.2017, signatures of NAW-6 Banwari Lal Meena on the marks sheet (Ex.-A/7) and TC (Ex.-A/8) were indeed sent for examination by the FSL alongside his admitted signatures and vide report dated 2.3.2017, the hand writing expert report sated that there appeared to be similarity between admitted signatures of NAW-6 Banwari Lal Meena and signatures on marks sheet (Ex.-A/7) and TC (Ex.-A/8) so issued to the petitioner, but required that for any definite opinion, further documents with admitted signatures as detailed in his letter/report be supplied. Counsel submitted that it was incumbent upon the trial court in the circumstance consonant with the order of this Court to have further sent the documents with the admitted signatures of NAW-6 Banwari Lal Meena to the FSL for a more definitive opinion of the signatures on marks sheet (Ex.-A/7) and TC (Ex.-A/8) issued to the RC. Yet this was not done and the trial court in breach of the directions of this Court, proceeded to decide the election petition to the detriment of the RC. In this view of the matter, the impugned judgment passed by the trial court be set aside, and a remand of the election petition be directed requiring the trial court to obtain further opinion of the hand writing expert from the FSL on the issue of signatures of NAW-6 Banwari Lal Meena on the Class VIII marks sheet and TC issued to the RC. 9. Counsel for EP supported the impugned judgment. He drew the attention of the Court towards Ex.-A/7 marks sheet and A/8 Transfer Certificate purportedly issued by the Head Master, Government Secondary School, Deewli NAW 6 Banwari Lal Meena, wherein Meera Devi Meena D/o Pooran Singh Meena, the RC is reflected with SR No. 315 to has passed Class-VIII and thereafter procured a TC. Counsel submitted that the falsity of Ex.-A/7 and A/8 stands established from Ex.-7B of S.R. register of Government Secondary School, Deewli, District Bharatpur, wherein at Sr. No. 315, name of one Maya Devi Meena D/o Shri Teja Ram has been shown. He also referred to Ex.7C which is the result sheet of Class-VIII Government Secondary School, Deewli for the academic year 1986-87 in which year the RC claimed to have passed Class VIII, wherein also the name of Maya Devi has been recorded and not of Meera Devi, the RC. Reference was made to Ex.-A/12 copy of admission register of Government Primary School, Deewli, wherein at Sr. No. 315 name of one Kimbu Ram S/o Shri Jai Mal was mentioned; Ex.-A/11 copy of admission register of Government Secondary School, Deewli wherein at Sr. No. 315, name of one Maya Devi Meena D/o Shri Teja Ram was mentioned; Ex.-A/1 copy of admission register of Government Upper Primary School, Deewli wherein at Sr. No. 315, name of one Ravina D/o Dharm Singh was mentioned; and Ex.-A/3 copy of S.R. register of Government Secondary School, Deewli, wherein at Sr. No. 315, name of one Maya Devi Meena D/o Shri Teja Ram was mentioned; Ex.-A/1 copy of admission register of Government Upper Primary School, Deewli wherein at Sr. No. 315, name of one Ravina D/o Dharm Singh was mentioned; and Ex.-A/3 copy of S.R. register of Government Secondary School, Deewli, wherein at Sr. No. 315, name of one Pinki Devi Meena D/o Prahlad Meena was mentioned. The RC was never thus even admitted to the Government Primary School, Deewli what of having passed Class VIII therefrom. Counsel for EP submitted that first the school at Deewli was a Primary School, which was subsequently upgraded to Secondary, then it merged with another school where after it was upgraded to Senior Secondary Level. Thus, four S.R. registers were maintained at various stages in the life of the school and yet in none of those registers, name of the R.C. was mentioned at Sr. No. 315 or at all. The RC's marks sheet of Class-VIII from the school and TC therefrom thus are a palpable forgery, he submitted. 10. Counsel for EP further submitted that Ex.-7 the purported Transfer Certificate said to have been issued in the name of RC vide Book No. 3, Sr. No. 24 on 10.5.2013 was clearly false and fabricated as in an official enquiry duly proved before the trial court, it was found that the T.C. in Book No. 3 vide Serial No. 24 was issued in the name of one Harikesh Kumar Meena S/o Shri Ram Ji Lal Meena on 5.7.2013 whose admission No./SR entry was 546. 11. With regard to the directions of this Court on 3.1.2017 in S.B. Civil Writ Petition No. 17608/2016, Mr. Anil Mehta, appearing for the EP submitted that subsequent to the receipt of the report of FSL, no application was moved by the RC before the trial court for obtaining further admitted signatures of NAW 6 Banwari Lal Meena required by the FSL for a definitive opinion for matching his signature on marks sheet (Ex.-A/7) and TC (Ex.-A/8). The trial court was not under any obligation to suo moto seek more admitted signatures of NAW-6 and refer them to the FSL for a more definitive opinion on the question of authenticity of signatures of NAW-6 on marks sheet (Ex.-A/7) and TC (Ex.-A/8). The trial court was not under any obligation to suo moto seek more admitted signatures of NAW-6 and refer them to the FSL for a more definitive opinion on the question of authenticity of signatures of NAW-6 on marks sheet (Ex.-A/7) and TC (Ex.-A/8). It was further submitted that in any event the report of the FSL with regard to the genuineness of the signatures of NAW-6 on the marks sheet (Ex.-A/7) and TC (Ex.-A/8) issued to the RC was only opinion evidence. There were other overwhelming evidences of the forgery and fabrication of the marks sheet of Class-VIII and TC allegedly issued to the RC. This was primarily in the evidence of AW-2 Tika Ram the head master of Government Secondary School, Deewli and the original record of the school produced by him before the trial court. The trial court in the instant case has therefore rested its findings with regard to marks sheet (Ex.-A/7) and TC (Ex.-A/8) being blatant forgeries on documentary evidences of high probative worth and the unshaken testimony of AW-2 Tika Ram, Head Master of Government Secondary School, Deewli. EP counsel further contended that duplicate marks sheet (Ex.-A/7) and Transfer Certificate (Ex.-A/8) of RC were stated not to have been issued by Banwari Lal Meena (NAW-6), the then Head Master of Government Secondary School, Deewli on 10.5.2013, or otherwise in as much as in his cross-examination, NAW-6 categorically stated that on 10.5.2013, he did not issue any marks sheet or Transfer Certificate as he had been transferred out on that day itself and had handed over charge to the new incumbent at 9.15 AM. NAW-6 the author of the RC's purported marks sheet of Class-VIII and TC has thus categorically denied to have issued them. Hence Ex. A/7 and Ex. A/8 propounded by the RC as her educational qualification to contest the election on the post of Sarpanch were totally forged and fabricated. The cross-examination of NAW-6 at the instance of the RC was of no avail and he remained unshaken. It was submitted that in these circumstances, it cannot even remotely be contended that the impugned judgment passed by the trial court setting-aside the RC's election to the post of Sarpanch of Gram Panchayat, Kirwada, Panchayat Samiti, Todabheem, District Karauli on the ground of her lack of eligibility on the minimum educational qualification required is liable to be quashed and set-aside. The whole case set up in this petition is specious and the petition be therefore dismissed, submitted EP's counsel. 12. Counsel for the EP finally reiterated the well settled legal position is that a court exercising jurisdiction either under Article 226 or 227 of the Constitution of India is not one of appeal and the power exercised whether is of superintendence or judicial review against a impugned judgment cannot be resorted to until it is vitiated by palpable perversity, patent illegality or error of jurisdiction. And no such situation obtains in the instant case, submitted EP's counsel. 13. Considered respective arguments of counsel for the parties. Perused the impugned judgment dated 24-4-2017. In Chhedi Ram v. 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 a fact if a reasonable probability supported the conclusion and an impossible standard of proof should not be laid down. 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 test of preponderance of probabilities was to be applied for answering the issue raised. 14. The impugned judgment of the trial court is fundamentally based on the fact that it was proved to its satisfaction on a wholistic appreciation of evidence on record particularly of AW-2 Tika Ram and documents exhibited proved by him and also by evidence of NAW-6 Banwari Lal Meena that the RC was not a holder of a valid certificate/mark-sheet evidencing her having passed class VIII examination, the essential educational qualification and term of eligibility to contest the election on the post of Sarpanch. The educational eligibility propounded by the RC on the basis of marks sheet of Class-VIII for academic year 1986-87 and TC from Government Secondary School, Deewli was palpably forged and fabricated. 15. I find no force in the contention of Mr. The educational eligibility propounded by the RC on the basis of marks sheet of Class-VIII for academic year 1986-87 and TC from Government Secondary School, Deewli was palpably forged and fabricated. 15. I find no force in the contention of Mr. Sahni with regard to the impugned judgment being liable to be quashed and set-aside only on the purported failure of the trial court to send the additional documents sought by the hand writing expert for a definitive opinion on the genuineness of the signatures of NAW-6 Banwari Lal Meena on the marks sheet (Ex.-A/7) and TC (Ex.-A/8) purportedly issued to the RC. This is for the reason that for one it was for the RC to have moved an application before the trial court for the purpose and admittedly she did not. Further NAW-6 was not shaken in his cross-examination after he turned hostile. More importantly AW-2 Tika Ram proved from the copious evidence produced in original before the trial court that both the marks sheet (Ex.-A/7) and TC (Ex.-A/8) purportedly issued by the school were a blatant fabrication and forgery. The RC's name was never entered in the scholar register of the school evidencing by admission, no record obtained with the school of the RC having even applied for or issued the marks sheet of Class-VIII or the TC and her name did not reflect in the result sheet of Class-VIII in the academic year 1986-87 when she claimed to have passed the said exam or even at all. 16. 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 not appellate. 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, misdirected in law and having entailed manifest injustice. None of the aforesaid situation/s is/are made out in the present case. The impugned judgment dated 24-4- 2017 passed by the trial court is neither perverse nor suffers misdirection in law. The conclusions of the trial court of the RC being ineligible/disqualified to contest the election to the post of Sarpanch are based on objective appreciation of evidence on record. The impugned judgment brooks no interference. 17. The impugned judgment dated 24-4- 2017 passed by the trial court is neither perverse nor suffers misdirection in law. The conclusions of the trial court of the RC being ineligible/disqualified to contest the election to the post of Sarpanch are based on objective appreciation of evidence on record. The impugned judgment brooks no interference. 17. I therefore find no force in the petition. It is dismissed.