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2017 DIGILAW 686 (RAJ)

Stepi Chaudhree D/o Shri Mukund Babu v. Krishna Kumar S/o Shri Damodar Singh

2017-03-03

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. Under challenge is the judgment dated 23-11-2016 passed by the Additional Senior Civil Judge cum Additional Chief Judicial Magistrate Dholpur, whereby the election petition filed by the respondent-election petitioner (hereinafter 'the EP') has been allowed and the election of the petitioner-returned candidate (hereinafter 'the RC') to the post of Sarpanch of village Karimpur, Panchayat Samiti Sainpau District Dholpur has been set aside. 2. Election to the post of Sarpanch of village Karimpur, Panchayat Samiti Sainpau District Dholpur were held on 20-1-2015. The EP and several others who contested the election and lost while the RC was elected. The EP challenged the RC's election on the ground that the RC had not attained the age of 21 years, and hence was ineligible to contest the election in terms of Section 19(a) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994'). It was stated that the claim of the RC to be over 21 years of age based on the date of birth as 14-1-1994 was false, and in fact her correct date of birth was 12-9-1998. It was submitted that on the date of filing nomination papers the RC was only about 17 years of age and hence was ineligible to contest the election for the post of Sarpanch. Yet contested and was elected. Hence the election of the RC to the post of Sarpanch of village Karimpur, Panchayat Samiti Sainpau District Dholpur be set aside. 3. On notice on the election petition being received, the RC filed a reply of denial. She claimed to have completed the age of 21 years as her date of birth was 14-1-1994 as purportedly evidenced from the TC from the Cheenu Public School where she studied from class I to VIII, which school was recognised by the State of Rajasthan. She stated that earlier her date of birth was indeed wrongly entered as 14-7-1998, which was later on corrected as 14-1-1994. And the same date of birth i.e. 14-1-1994 was recorded in her Identity card, Caste certificate and Aadhar card. It was submitted that she was thus eligible to contest the election to the post of Sarpanch. Allegations to the contrary were an afterthought at the instance of a defeated candidate, and were never taken before the Returning Officer at the time of submission of nomination papers. 4. It was submitted that she was thus eligible to contest the election to the post of Sarpanch. Allegations to the contrary were an afterthought at the instance of a defeated candidate, and were never taken before the Returning Officer at the time of submission of nomination papers. 4. Based on the pleadings of the contesting parties, the trial court framed the following issues :- ^^1- vk;k xzke iapk;r djheiqj iapk;r lfefr lSim ds pquko gsrq ukekadu i= fnukad 19-01-2015 dks nkf[ky fd;s x;s mDr fnukad dks xSjlk;yk la[;k 1 dh vk;q 21 o"kZ ls de gksus ds dkj.k xSjlk;yk la[;k 1 pquko yM+us gsrq vgZrk ugha j[krh Fkh\ & ;kph 2- vk;k mPp xSjlk;yk la[;k ,d fu/kkZfjr vk;q ugha j[kus ds dkj.k xzke iapk;r djheiqj iapk;r lfefr lSim ftyk /kkSyiqj dk pquko ifj.kke fnukad 20-01-2015 fujLr djk ikus ,oa ;kph mDr xzke iapk;r dk ljiap ?kksf"kr djk ikus dk vf/kdkjh gS& ;kph 3- vuqrks"k\** 5. The EP examined himself as AW-1 and four other witnesses. The RC examined herself as NAW-1 and one another. Both relied on several documents exhibited before the trial court. 6. In his evidence before the trial court the EP as AW-1 reiterated the allegations in the election petition. He stated that initially the RC was admitted in 1st class in Government primary school Visayatipura with enrolment No.191 on 14-7-2001. The date of birth of RC was then mentioned as 12-6-1998. He further stated that the father of the RC was in fact married only in the year 1995. Aw-2 Manilal Chhagan stated that he was head of DIET Dholpur and he did not pass any order for correction of the date of birth of the RC initially entered in the school record as 12-6-1998 and the purported correction of date of birth from 12-6-1998 to 14-1-1994 was unauthorisedly made at the level of Cheenu Public School. He admitted that as per original record of the school the RC's date of birth was 12-6-1998. Aw-4 Hari Om before the trial court stated that he was Administrator of the school. He himself corrected RC's admission form (Ex.16) which recorded the RC's date of birth as 14- 7-1998. He admitted that the correction of date of birth in the school records could be done in law only after the order of District Education Officer. Aw-4 Hari Om before the trial court stated that he was Administrator of the school. He himself corrected RC's admission form (Ex.16) which recorded the RC's date of birth as 14- 7-1998. He admitted that the correction of date of birth in the school records could be done in law only after the order of District Education Officer. He admitted that correction was made in SR Register (Ex.18) on or about 24-12-2010 without any enquiry or directions from the jurisdictional District Education Officer. Aw-5 S.S. Mehta stated that no correction of date of birth in the TC could be made on the basis of only affidavit and horoscope, and the same can be done only by the District Education Officer on submission of required documents of sterling worth. He stated that as per admission form (Ex.5) in Government Primary School Visayatipura the RC's date of birth was recorded as 12-6-1998, where she was admitted in class-I. 7. In her statement NAW-1 Stepi Chaudhary stated that her grandfather and grandmother had already contested the election for the post of Sarpanch. Her father was ineligible to contest the election as he had four children. She however asserted that her date of birth was 14-1-1994. Other witnesses also supported the RC's defence. 8. The trial court considering the oral and documentary evidence of both the parties, held that as per the obtaining regulations relating to change of date of birth only the District Education Officer was authorised to make correction in the RC's date of birth recorded in the first instance in school. The RC failed to prove any order was passed by the District Education Officer authorizing correction of her date of birth from 12-6-1998 as first entered in the school record in 2001 to 14-1-1994 in the year 2010. The trial court also noted the evidence of S.S. Mehta (Aw-5) who clearly stated that no correction in the Transfer certificate or other school record could be made by the school concerned on the basis of affidavit or horoscope and only the District Education Officer was authorised for such corrections on supporting documents of probative worth. The correction of RC's date of birth by the Cheenu Middle school was thus illegal and had thus in law to be reckoned as first entered in the school record i.e. 12-6-1998. The correction of RC's date of birth by the Cheenu Middle school was thus illegal and had thus in law to be reckoned as first entered in the school record i.e. 12-6-1998. The trial court concluded that on the date of filing nomination papers on 19-1-2015 the RC born on 12- 6-1998 was less than 21 years of age and hence was ineligible to contest the election for the post of Sarpanch. The first issue was thus decided in favour of the EP and against the RC. 9. With regard to issue No.2 the trial court held that the EP failed to prove that he was entitled to be declared as elected as more than two candidates had been in contest for the election to the post of Sarpanch of village Gudhachanderji held on 20-1-2015. The election of the RC was set aside and a direction issued by the trial court to the District Election Officer for holding fresh election to the post of Sarpanch of village Gudhachanderji. 10. Heard counsel for the RC as also the EP. 11. Mr. Hanuman Chaudhary appearing for the RC submitted that the trial court's judgment is perverse. Inadmissible evidence was considered beyond the pleadings in the election petition and the EP was not able to discharge the burden of proof with regard to the RC being less than 21 years of age at the time of contesting election to the post of Sarpanch. He submitted that RC born on 14-1-1994 as evidenced by a TC and other government records such as Aadhar Card, Cast Certificate and the RC was over 21 years of age when the election to the post in issue were held on 20-1-2015. 12. Counsel for EP supported the impugned judgment. 13. Considered. 14. I find no force in the submission of Mr. Hanuman Chaudhary. The trial court has committed no illegality in relying on the evidence of S.S. Mehta (AW-5) who categorically stated that no correction of date of birth or otherwise in school record could be made without the order of the District Education Officer. As also Manilal Chhagan (Aw-2) who clearly stated that the RC was initially admitted in class - I in Government School Visayatipura in 2001 when her date of birth was recorded as 12-6-1998. As also Manilal Chhagan (Aw-2) who clearly stated that the RC was initially admitted in class - I in Government School Visayatipura in 2001 when her date of birth was recorded as 12-6-1998. Only when she was in class VIII in the year 2010 that her date of birth was changed to 14-1-1994 after nine years contrary to due process, with an eye on elections to the post of Sarpanch in 2015. It was not the RC's case that she was not admitted in class-I in the year 2001 to be in class VIII in the year 2010 or that she was a poor student repeatedly failing, to be in class VIII at the age of sixteen. It was proved from the evidence before the trial court that date of birth entered in school could only be altered by due process on the recommendation of the District Education Officer found upon his satisfaction from documents of probative worth and not on the basis of a parent's affidavit and horoscope. All documents relied upon by the RC such as Aadhar card, caste certificate were issued after the aforesaid unauthorized change of date of birth in 2010, were of no avail and only perpetuated the initial fraud. 15. The Apex Court in the case of Joseph M. Puthussery v. T.S. John [ (2011)1 SCC 503 ] has held that in the trial of the election petitions oral evidence particularly of non-applicant's witness should be carefully scrutinized for the reason that returned candidate or for that matter the election petitioner have their own supporters/voters who readily stand for them as witnesses in court to do their bidding. The sequitur is documentary evidence on record authenticity of which beyond cavil should be more emphasized. The Apex Court has in the case of Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe [ (1995)5 SCC 347 ] further held that in an election petition where a contesting party does not call for the best evidence that may be available to it, an adverse inference is to be drawn against it albeit following the opposite party having discharged its initial burden to prove his/her case. In the instant case when the EP's witnesses proved from documentary evidence on record that when the RC first entered the school in 2001 in class-I, in the admission form signed by her father her date of birth was recorded as 12-6-1998 (Ex.16). In the instant case when the EP's witnesses proved from documentary evidence on record that when the RC first entered the school in 2001 in class-I, in the admission form signed by her father her date of birth was recorded as 12-6-1998 (Ex.16). No objection was raised to the said exhibit and its authenticity not questioned. It was only asserted in defence that the date of birth had been wrongly first recorded therein. But that aspect was not proved. Contrarily independent evidence on record established that the date of birth as recorded in Exhibit 16 was 10 years subsequent unauthorisedly changed without adherence to due process, from 12- 6-1998 to 14-1-1994 in 2010 with an eye on the 2015 election to the post of Sarpanch. 16. The jurisdiction of this court in the exercise of its powers under Article 227 of the Constitution of India is not appellate. It is limited to addressing questions of violation of statutory provisions, perversity, misdirection in law and error of jurisdiction by the trial court entailing manifest injustice. None of the aforesaid situations are made out in the present case. Contrarily, the impugned judgment dated 23-11-2016 passed by the trial court is a well considered one based on objective consideration of the oral and documentary evidence on record. 17. I am of the considered view that the EP proved his case set out in his pleadings on the basis of clinching documentary and oral evidence. The RC born on 12-6-1998 was only about 17 years of age, less than the statutorily mandated 21 years and thus was ineligible to contest the election for the post of Sarpanch in 2015 for reason of Section 19(a) of the Act of 1994. 18. Consequently, in the facts of the case where the RC had contested the election to the post of Sarpanch on the basis of an incorrect date of birth, when in fact she was only about 17 years of age and not eligible under Section 19(a) of the Act of 1994, this frivolous petition without an iota of merit, audaciously filed challenging the impugned judgment dated 23-11-2016 is liable to be dismissed with costs of Rs.50,000/-. Court fee for invoking the Court's jurisdiction under Article 226 of the Constitution of India has been kept at the minimum amount of Rs.25/- for reason of the concern of the Legislature-that no one is made to suffer injustice and can easily access the court for justice. But this access is to be responsibly exercised. Reckless filing of petitions without just cause needs to be prevented. To not do so leads to filing of frivolous petitions which crowd an already full docket of the court. This leads to delays in disposal of cases where real disputes impugning on the valuable rights of parties remaining pending for upto two decades. This cannot be countenanced by the courts. Hence the costs aforesaid. 50% of the said amount be paid to the Rajasthan State Legal Services Authority and remainder 50% to the Rajasthan High Court Bar Association at Jaipur to be exclusively utilised for purchase of law books and/or for subscription of law journals. This be done within a period of three months from today. The writ petition stands dismissed with costs and directions above.