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2017 DIGILAW 2444 (RAJ)

Gheesi Meena v. Manju Meena

2017-11-07

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. This petition, purporting to be one under Article 226 of the Constitution of India but in fact basically relatable to Article 227 of the Constitution of India, has been filed against the judgment dated 17.8.2017 passed by the Additional Senior Civil Judge No. 20, Sanganer, Jaipur Metropolitan City, Jaipur, whereby the Election Petition No. 10/2015, titled Manju Meena vs. Gheesi Meena, filed by the respondent-Election Petitioner (hereinafter the EP) challenging the election of the petitioner-returned candidate (hereinafter the RC) was allowed and the election of the RC as Sarpanch of village Panchayat Girdharilalpura, Tehsil chaksu, District Jaipur, (Raj.) set aside. 2. The RC contested election of the post of Sarpanch of village Panchayat Girdharilalpura, Tehsil Chaksu, District Jaipur held on 24.1.2015. Having secured highest votes she was declared elected as Sarpanch. The respondent EP laid an election petition challenging RC's election under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter ‘the Act of 1994’) read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter ‘the Rules of 1994’) on two grounds (I) RC had three children on 24.1.2015, the date of contesting the election, of whom Laddu Devi born on 2.8.1985, Kali Devi on 9.1.1987 and Pavan Kumar Meena born in the year 1998, the third was born after the cut off date of 27.11.1995 rendering her disqualified to contest the election to the post of Sarpanch in terms of Section 19(l) and proviso (iv) of the Act of 1994 and (ii) The RC had not passed class VIII from a school recognized by the State Government as mandatory under Section 19(t) of the Act of 1994 as the class VIII mark-sheet and TC in regard thereto issued by BNV Niketan Middle School Vishnu colony Laxmi Nagar Jaipur were forged and fabricated. 3. The RC in reply to election petition denied all allegations of her ineligibility both on count of contravention of Section 19(l) and 19(t) of the Act of 1994. 4. 3. The RC in reply to election petition denied all allegations of her ineligibility both on count of contravention of Section 19(l) and 19(t) of the Act of 1994. 4. Based on the pleadings, the Tribunal framed the following issues:- 1- vk;k okn vizkFkhZ dh rhu lUrku gksus ds otg ls o vafre lUrku fnuakd 27-11-1995 ds mijkar tUe gksus ds dkj.k iapk;r vf/kfu;e ds izko/kkuksa ds vuqlkj og ljiap in ds v;ksX; gS\ ;kfpdkdrkZ 2- vk;k okn vizkFkhZ Jhefr ?khlh vkBoha d{kk mrh.kZ u gksus ds dkj.k iapk;r vf/kfu;e ds izko/kku ds vuqlkj ljiap in ij fu;af=r gksus ij og in cus jgus ds v;ksX; gS\ ;kfpdkdrkZ 3- vk;k okn Jherh ?khlh }kjk rF;ksa dks fNikdj pquko yM+k x;k gS o bl dkj.k ls og vius in ij cus jgus ;ksX; ugha gS\ ;kfpdkdrkZ 4- vk;k okn oknh fo:) izfroknh nkos esa of.kZr vuqrks"k izkIr djus dk vf/kdkjh gS\ ;kfpdkdrkZ 5- vuqrks"k\ ;kfpdkdrkZ 5. In support of her case the EP examined herself as AW-1 and Ramkanwar Meena PW-2, and exhibited 16 documents. The RC examined Narhu Ram DW-1, Kalu Ram DW-2, Ramlal DW-3 and Kirodi Lal DW-4 and exhibited 4 documents. 6. The trial court has on the evidence before it set aside the election of the RC. Hence this petition. 7. Mr. Sudesh Bansal and Mr. Prahlad Sharma counsel for the petitioner RC submitted that the impugned judgment dated 17.8.2017 passed by the trial court setting aside the RC's election to the post of Sarpanch is first liable to be quashed and set aside only on the ground of denial of principles of natural justice. It was submitted that the RC was not given sufficient opportunity to appear in cross examination on her affidavit in evidence and hence denied her defence. It has been submitted that subsequent to filing of affidavits of witnesses on 15.4.2017 the RC fell ill and had to undergo medical surgery (operation of the Gall-bladder), and consequently the matter was adjourned for her cross examination. Subsequent to RC's discharge from the hospital, a Commissioner for her cross examination at her residence was appointed. However when the Commissioner visited the RC's residence for her cross examination on her affidavit in evidence, she became seriously sick suffering from vomiting and pain for reasons of a post operative infection. This fact was recorded by the Commissioner in his report dated 21.5.2017. However when the Commissioner visited the RC's residence for her cross examination on her affidavit in evidence, she became seriously sick suffering from vomiting and pain for reasons of a post operative infection. This fact was recorded by the Commissioner in his report dated 21.5.2017. It has been submitted that thereafter the RC sought further time for being present in court for her cross examination by moving an application on 31.5.2017, but the trial court adopting a harsh and pedantic approach dismissed the said application on 5.6.2017. This order dated 5.6.2017 was challenged before this court, but as the matter in the election petition was at the stage of final arguments, when the petition was taken on board, the court refused to interfere but granted liberty to challenge the order dated 5.6.2017 with the trial court's final judgment as is now being done. It has been submitted that election to the post of Sarpanch is indicative of public will and setting aside of RC's election as Sarpanch inter-alia for reason of her defence being absent in not entering the witness box in the circumstances cannot be countenanced as the RC could not be cross-examined only for the reason of her illness. Her absence was neither deliberate nor obstructive. In the circumstances, it has been prayed that the impugned judgment dated 17.8.2017 be quashed and set aside and the matter be remanded to the trial court to proceed afresh in the election petition from the stage of cross examination of the RC. 8. On merits of the matter, counsel for the RC submitted that the finding of the trial court that the RC gave birth to Pawan Kumar, the third child subsequent to the cut off date 27.11.1995 is perverse. It was submitted that in fact the EP, on whom was the burden to discharge regarding the RC having given birth to Pawan Kumar, her third child, subsequent to the cut off dated 27.11.1995, did not bring any substantive evidence on record such as a birth certificate in proof of Pawan Kumar being born to the RC or record of the hospital where he was allegedly born to her. Instead sole reliance was placed by the EP on the ration-card, submitted by the RC at the time of filing her nomination form, which was marked as Exhibit- 15. Instead sole reliance was placed by the EP on the ration-card, submitted by the RC at the time of filing her nomination form, which was marked as Exhibit- 15. It was submitted that the entry of Pawan Kumar as son of RC in the ration-card (Ex.15) was an error which ought to not have been taken as the gospel truth, as a bare look at the entry in the said ration-card, pertaining to Pawan Kumar as her son indicates that the same was in different ink and handwriting, aside of being entered in the wrong column of the ration-card. It was submitted that further there was no proof brought on record as to who made the entry in Ex.15 showing Pawan Kumar as the RC's son. It has been submitted that on the issue, the trial court committed gross perversity in overlooking the RC's defence evidence Ex.A-3 which was a ration-card for the period 2012 to 2017, in which the name of Pawan Kumar was not recorded as her son. Further in an administrative enquiry conducted by the Sub Divisional Officer (Ex.A-1) the RC had been exonerated of the allegation of giving birth to a third child after the cut off date 27.11.1995. The trial court also overlooked Exhibit A-2 which was Pawan Kumar's birth certificate dated 29.4.2015 issued by the Registrar Births and Death which showed Pawan Kumar born on 6.10.2010 was the son of Kirodi Lal and Santosh and not of the RC. It was submitted that the trial court without good cause overlooked all evidences negating the allegation of Pawan Kumar being born to the RC as her third child subsequent to 27.11.1995. 9. On the issue of the finding of the trial court that the RC did not pass class VIII examination from the BNV Niketan Middle School Vishnu colony Laxmi Nagar Jaipur (hereafter ‘the School’) and was thus not eligible to contest the election to the post of Sarpanch for lack of educational qualification of class VIII as required under Section 19(t) of the Act of 1994, counsel submitted that the EP had only exhibited copies of mark-sheet as (Ex.13) and TC (Ex.14) and no evidence was brought on record about the aforesaid mark-sheet and TC being false and fabricated. It was submitted that the School from where the RC passed class VIII was registered with the Registrar of Societies in the year 1975. It was submitted that the School from where the RC passed class VIII was registered with the Registrar of Societies in the year 1975. The mere fact that the school record did not record the name of the RC as a student from class I to V as was sought to be proved from documentary evidence exhibited by the EP but was of no event. The issue was RC's admission, study and passing of class VIII examination. It was submitted that in these circumstances the conclusion of the trial court regarding the RC not having the requisite educational qualification of class VIII pass are peremptory and not sustainable, devoid as it was of any foundational admission. 10. Per contra, Mr. M.F. Baig, counsel for the EP has submitted that the ration-card (Ex.15) bearing number 2-K/1520 was a document filed by the RC herself before the Returning Officer at the time of her nomination. The said ration-card issued in the year 2000 indicated that it related to three persons the RC, her husband, and Pawan Kumar, who was stated to be 2 years old. Pawan Kumar on the RC's own admission was thus born in 1998. It was submitted that in the affidavit in support of the nomination form the RC had also admitted to having given birth to two daughters Laddu Devi and Kali prior to the cut off dated 27.11.1995. As such on her own admission Pawan Kumar was the RC's third child born after 27.11.1995 which rendered her ineligible to contest the election for the post of Sarpanch in view of Section 19(1) of the Act of 1994. It was also on record of the trial court, Mr. M.F. Baig submitted, that no steps were taken by the RC from the year 2000 when the ration-card was issued, upto 2015, when the RC contested the election for the post of Sarpanch for removing purported wrong entry regarding Pawan Kumar as her son in the earlier ration-card (Ex.15). Mr. M.F. Baig further submitted that the birth certificate (Ex.A-2) filed in defence by the RC to contend that Pawan Kumar was not her son but her grand nephew was of no avail. Pawan Kumar in Ex.A-2, Birth certificate dated 29.4.2015 was shown to have been born on 6.10.2010 to Kirodi Lal and Santosh. Mr. M.F. Baig further submitted that the birth certificate (Ex.A-2) filed in defence by the RC to contend that Pawan Kumar was not her son but her grand nephew was of no avail. Pawan Kumar in Ex.A-2, Birth certificate dated 29.4.2015 was shown to have been born on 6.10.2010 to Kirodi Lal and Santosh. The said birth certificate was a got up document after the election was held on 24.1.2015 and the election petition filed on 23.2.2015. The certificate (Ex.A-2) submitted by the RC thus did not inspire any confidence with the trial court and on appreciation of evidence taking a wholistic view it came to a conclusion that the RC had given birth to her third child, Pawan Kumar in the year 1998 and was thus statutorily ineligible to contest the election of the post of Sarpanch on 24.1.2015. 11. On the issue of the trial finding that RC did not have the requisite educational qualification of class VIII pass from a recognized school, it was submitted that the mark-sheet (Ex.13) and TC (Ex.14) issued by the school were forged and fabricated. It was submitted that admittedly the mark-sheet was issued after 1990, even though the RC had purportedly passed class VIII in the year 1982. The source from where the mark-sheet was obtained by the RC was wholly suspect as it was admittedly not obtained from the school but from a relatives house. The TC purportedly issued to RC was without any serial number and the age of RC mentioned therein was at odds with her age in other public documents such as the voter-list of 1991 and 1975. It was submitted that the trial court found from the evidence on record that the school from where the RC claimed to have passed VIII in 1982 was only upto class V and not upto VIII. It was submitted that the mark-sheet and TC of the RC in purported proof of her having passed class VIII were issued by one Mohammad Yusuf, the purported Headmaster of the School who from evidence was found by the trial court to have fraudulently issued 500 odd mark-sheets and TCs, had been challaned in several cases on that count and was under trial. It was submitted that in any event there was no evidence on record of the trial court to even remotely prove that the said Mohammad Yusuf was the Headmaster of the school in the year 1982 when the RC purportedly passed class VIII and obtained the mark-sheet under his signatures. It was submitted that on the cumulative evidence on record and circumstances of the case it prima facie being proved that RC's mark-sheet and TC were wholly false and she had not studied and passed class VIII from a school, the onus shifted to the RC to prove her educational qualification of class VIII pass which she woefully failed to discharge. 12. Mr. M.F. Baig counsel for the EP then submitted that the RC's cross examination on her affidavit in evidence was closed for reason of her rampant obstruction to the trial in the election petition. Mr. M.F. Baig submitted that multiple frivolous and vexatious applications such as under Order 12, Rule 6 CPC, Order 7, Rule 11 CPC, Sections 35, 63, 65(e) and 74 of the Evidence Act and Order 8, Rule 1A(3) CPC were moved to delay the trial and dismissed. Finally after much stalling the RC's other witnesses in defence to the election petition were examined and she required to be present in court for her cross examination on her affidavit in evidence on 1.5.2017. On the said date the RC however could not be cross-examined for reason of having been admitted in SMS Hospital Jaipur for operation of gallbladder stone/s. The matter was adjourned to 15.5.2017 and thence to 21.5.2017 on ground of RC's recuperation from illness. Thereafter on an application a Court Commissioner was appointed for cross examination of the RC at her residence. But the RC denied to be cross-examined or even sign the proceedings taken by the Court Commissioner on the ground of her illness. On 23.5.2017 RC's counsel prayed for ten days time for her recovery and her readiness for cross examination. The matter was therefore fixed in court for 31.5.2017. On the said date again the RC failed to remain present in court and the matter was adjourned to 5.6.2017 for her cross examination. On the said date again an application was moved on behalf of RC praying for more time to appear for her cross examination on her affidavit in evidence. On the said date again the RC failed to remain present in court and the matter was adjourned to 5.6.2017 for her cross examination. On the said date again an application was moved on behalf of RC praying for more time to appear for her cross examination on her affidavit in evidence. That application was dismissed by the trial court and the matter was fixed for final arguments on 10.7.2017. Final judgment, now impugned, followed. 13. Counsel for the EP submitted that in the circumstances it is evident that the trial court granted enough indulgence to the RC, more than she deserved during pendency of the election petition against her election which she won suppressing the facts relating to her ineligibility having given birth to a third child after 27.11.1995 and not having passed class VIII from a recognized school. In the circumstances the RC has no case, Mr. M.F. Baig submitted the impugn judgment dated 17.8.2017 setting aside her election. Suffers no perversity, and patent illegality attache's to it, to warrant it being set aside. 14. Heard. Considered. 15. As far as denial of principles of natural justice vitiating the impugned judgment is concerned, I am of the considered view that the contention has to be noticed only to be rejected. Record of the trial court as adverted to here-in-above clearly indicates that it granted more than due indulgence to the RC to enter the witness box for cross examination on her affidavit in evidence. The RC did indeed suffer an operation of her gall-bladder. But that operation, a usual and minor one did not justify her shenanigans over months and refusal to be cross-examined and even sign the proceedings taken at her residence by the Court Commissioner appointed by the trial court for her cross examination. No medical certificate was produced by the RC before the trial court that a gall-bladder operation entailed a medical condition for ever two months where she could not be subject to cross examination. The failure of the RC to enter the witness box to be cross-examined on her affidavit in evidence was deliberate and obviously at her peril, of which she cannot be allowed to take advantage and cry denial of natural justice as a ground for setting aside the impugned judgment. 16. The failure of the RC to enter the witness box to be cross-examined on her affidavit in evidence was deliberate and obviously at her peril, of which she cannot be allowed to take advantage and cry denial of natural justice as a ground for setting aside the impugned judgment. 16. As far as the question of RC giving birth to a third child Pawan Kumar after the cut off date 27-11-1995 is concerned, I am of the considered view that the trial court has not committed any perversity, or patent illegality in coming to the said conclusion on the basis of RC's own document, the ration-card (Ex.15) submitted along with the nomination form. The Apex Court in the case of Oriental Insurance Company Limited vs. Premlata Shukla, (2007) 13 SCC 476 has held that once a document is relied and admitted by a party to a litigation and is taken on record and exhibited, the said party cannot be permitted to turn around and argue that a part of the contents of the document was not proved. It was also held that in such a situation the court cannot be said to have committed any illegality in relying upon such document which was admitted and exhibited as a whole. It was held that if the contents of a document had thus been proved, the question of reliance thereupon cannot be raised. 17. In the context of the aforesaid judgment I am of the considered view that the ration-card (Ex.15) being the RC's own document and she having relied upon it to file the nomination form for election to the post of Sarpanch before the Returning Officer it was binding upon her and she could resile or wriggle out therefrom. The said ration-card (Ex.15) prepared in 2000 showed that the RC's third child Pawan Kumar was 2 years old in the year 2000 and was thus obviously born in 1998. The subsequent ration-card (Ex.A-3) issued to the RC for 2012-2017 where Pawan Kumar's name was not shown as her son was of no avail as it did not negate Ex.15 and appeared only as a manipulation. The subsequent ration-card (Ex.A-3) issued to the RC for 2012-2017 where Pawan Kumar's name was not shown as her son was of no avail as it did not negate Ex.15 and appeared only as a manipulation. Other evidence in the form of Ex.A-2 the birth certificate dated 29.4.2015 showing Pawan Kumar as born to Kirodi Lal and Santosh on 6-10-2010 did not explain the entry in the ration-card Ex.15 issued in the year 2000 showing Pawan Kumar, then 2 years as son of the RC. 18. It is well settled that when the trial court has taken a possible view of the evidence laid before it and come to a conclusion thereon, it cannot be interfered with by the court in the exercise of its jurisdiction under Article 227 of the Constitution of India. 19. Resultantly the RC has been rightly held by the trial court to be disqualified and ineligible to contest election for the post of Sarpanch having given birth (on her own admission evident from Ex.15) to a third child in the year 1998 after the cut off date 27.11.1995. 20. I am also of the considered view that the trial court also had ample evidence on preponderance of probabilities to conclude that the mark-sheet of class VIII pass in 1982 having been obtained by the RC after 1990 and inexplicably from the possession of a relative and not the school was forged and fabricated. The TC relied upon by the RC in support of her claim of passing class VIII was also equally unreliable in view of the fact it was not numbered and the RC's date of birth thereon mismatched with her age recorded in the voter-list of 1975 and 1995. Further there was no proof of Mohammad Yusuf who purportedly issued the mark-sheet to the RC for her having passed class VIII examination in the year 1982 and TC ever having been so appointed. Contrarily it was established that the said Mohd. Yusuf was generally engaged in the fraud of issuing about over 500 mark-sheets as the purported Headmaster of the said school over 20 years for which he was facing multiple prosecutions. 21. Contrarily it was established that the said Mohd. Yusuf was generally engaged in the fraud of issuing about over 500 mark-sheets as the purported Headmaster of the said school over 20 years for which he was facing multiple prosecutions. 21. In the facts of the exculpatory circumstantial evidence and circumstances obtaining against the RC not having studied at the school and passed class VIII therefrom in 1982 or otherwise and the onus thus having shifted to her to prove her claim of class VIII pass there was not an iota of evidence at her instance to establish that her educational qualification as claimed was valid. No official of the school was summoned or produced. Nor was the school record summoned to prove that the RC had indeed passed her class VIII examination from the school. I have also examined the record of the trial court and a bare look at the signatures of the RC on her nomination form, affidavit in support thereof and even on the petition shows that she is quite illiterate and can barely write. 22. The Evidence Act, 1872 states a fact to be "proved" when, after considering the over all evidence before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Reference can also be made to the judgment of the Apex court in the case of Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi, (1991) 2 SCC 716 wherein it was held that standard of proof in case other than criminal is not proof beyond reasonable doubt, but based on preponderance of probability and where a reasonable and probable inference can be drawn from the factual and circumstantial evidence on record in favour of the plaintiff, his petition is to be allowed. In Toral Mahto vs. Chandeshwar Mahto, AIR 1972 Patna 13 the Division Bench held that a public document, in this case the RC's ration-card (Ex.15), can be admitted and relied in evidence without calling as a witness the officer who prepared it. In Toral Mahto vs. Chandeshwar Mahto, AIR 1972 Patna 13 the Division Bench held that a public document, in this case the RC's ration-card (Ex.15), can be admitted and relied in evidence without calling as a witness the officer who prepared it. This court in the case of Smt. Ummed Kanwar vs. Prabhu Singh, 2012 (4) WLC 14 has held that standard of proof required in an election petition founded on ineligibility of RC is not "beyond reasonable doubt" but only "preponderance of probability." The evidence laid before a Trial Court in a given case should be capable of leading to a reasonable inference/conclusion that the fact in issue has been proved. 23. In the circumstances, I am of the considered view that nothing perverse or illegal can be attributed to the findings of the trial court in its impugned judgment dated 17.8.2017 that the RC was ineligible to contest the election to the post of Sarpanch of village Girdharilalpura, Panchayat Samiti Chaksu District Jaipur and her election as Sarpanch was thus liable to be quashed and set aside. 24. I find no force in the petition. Dismissed.