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2018 DIGILAW 1694 (RAJ)

Jagdish v. Laxman Singh

2018-08-09

INDERJEET SINGH

body2018
JUDGMENT Inderjeet Singh, J. - This writ petition has been filed by the petitioner (hereinafter to be referred to as 'Returned Candidate') against the judgment dated 20.12.2016 passed by the Senior Civil Judge, Nadbai, District Bharatpur in Election Petition No.02/2015 (30/15 District and Sessions Judge, Bharatpur) whereby the election petition filed by the respondent no.1-Laxman Singh (hereinafter referred to as Election Petitioner) under Section-43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'Act of 1994') and under Rule 80 of the Rajasthan Panchayati Raj Election Rules, 1994 (hereinafter referred to as 'Rules of 1994') was allowed and election of the Returned Candidate for the post of Sarpanch Gram Panchayat Khedi Devisingh, Panchayat Samiti Nadbai, District Bharatpur held on 24.01.2015 was set aside. 2. Brief facts of the case are that the election petitioner filed an election petition under Section 43 of the Act of 1994 and read with under Rule 80 of the Rule of 1994 before the District Judge, Bharatpur stating therein that the election for the post of Sarpanch Gram Panchayat, Khedi Devisingh was held on 24.01.2015 and the result of the said election was also declared on 24.01.2015, wherein the election petitioner was at 2nd position. It was further stated in the election petition that the forth child of the return candidate namely Rahul was born on 23.03.1997, therefore, in view of Section 19(L) of the Act of 1994, the Returned Candidate was ineligible to contest the election for the post of Sarpanch and certain other grounds were also taken in the election petition for quashing the election of the Returned Candidate. The election petition, was duly supported by the affidavit of the Election Petitioner. The Returned Candidate filed reply to the election petition stating therein that the date of birth of his forth child namely Rahul is 29.08.1994 who born before the cut off date as mention under Section 19(L) of the Act of 1994 i.e. 27.11.1995 and lastly, prayed for dismissal of the election petition. 3. On the basis of the pleadings of the parties the learned trial court framed as many as six issues. The Election Petitioner in support of his case produced the evidence of AW1 Laxman Singh, AW2 Naresh Chand Sharma and also produced documentary evidence Ex.1 to Ex.27 and got the same exhibited. 3. On the basis of the pleadings of the parties the learned trial court framed as many as six issues. The Election Petitioner in support of his case produced the evidence of AW1 Laxman Singh, AW2 Naresh Chand Sharma and also produced documentary evidence Ex.1 to Ex.27 and got the same exhibited. The Returned Candidate in support of his case produced the evidence of NAW-1, Jagdish, NAW-2 Vimla Devi, NAW-3 Mahesh Agarwal, NAW-4 Devendra Kumar, NAW-5 Rameshwar and also produced documentary evidence Ex.A1 to Ex.A6 and got the same exhibited. The learned District Judge vide order dated 21.09.2015 transferred the election petition in the court of Senior Civil Judge, Nadbai, District, Bharatpur (hereinafter to be referred as 'Civil Judge') who has passed the judgment dated 20.12.2016. Being aggrieved with the same present writ petitioner has been filed by the Returned Candidate. 4. Counsel for the Returned Candidate submitted that the finding given by the learned Election Tribunal on issue no.4 is perverse. Counsel further submits that the learned Civil Judge has erred in not considering the birth certificate (Ex.A1) produced by him in support of his evidence and the said document is more authentic for deciding the issue no.4. Counsel further submits that the Civil Judge has further erred in not considering the document (Ex.A2) i.e. birth and death Register submitted by the Returned Candidate in support of his case where in both the documents the date of birth of her forth child Rahul has been shown as 28.09.1994. Counsel further submits that the Civil Judge failed to consider the document i.e. certificate (Ex.A3) (Annexure- 9) which shows that the sterilization operation was conducted on 11.02.1997, therefore, the date of birth shown by the election petitioner was doubtful. Counsel further submits that the learned Tribunal while deciding the issue no.4 only considered the evidence of Election Petitioner and the issue no.1 & 4 has not been decided on the basis of evidence submitted by Returned Candidate. Counsel further submits that the District Judge while transferring the matter to the court of Civil Judge has not recorded the reasons in writing, therefore, the order (Annexure-3) dated 21.09.2015 is bad in the eye of law. 5. Counsel further submits that the District Judge while transferring the matter to the court of Civil Judge has not recorded the reasons in writing, therefore, the order (Annexure-3) dated 21.09.2015 is bad in the eye of law. 5. Counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Birad Mal Singhvi vs. Anand Purohit, reported in 1988 SCC 604 para 11,15 & 16 wherein it has been held as under:- "11. The question then arises whether the respondent has proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on 1.1.1984. In the election petition the respondent pleaded that Hukmi Chand's nomination paper was improperly rejected on the basis of entry in the electoral roll which mentioned his age as 23 years while his correct date of birth was 13.5.1956 as evidenced by the certificate issued by the Head Master of the New Government School Jodhpur. The respondent had further pleaded that the nomination paper of Suraj Prakash Joshi was rejected on the sole ground that in the electoral roll his age was recorded as 23 years on 1.1.1984 but the entries contained in the electoral roll were not final and conclusive. The date of birth of Suraj Prakash Joshi was not mentioned in the election petition and there was no further pleading that on the date of filing his nomination Suraj Prakash Joshi had actually attained the age of 25 years. However it was pleaded that since Suraj Prakash Joshi had given a declaration that he had completed 25 years of age there was no reason to disbelieve him as no objection had been raised against the declaration made by him and therefore the returning officer acted improperly in rejecting his nomination paper. In his written statement the appellant denied the allegations made by the election petitioner and asserted that the Returning Officer acted rightly in rejecting the nomination papers of Hukmi Chand and Suraj Prakash Joshi as they were not qualified to contest the election as they had not completed 25 years of age on the date of nomination. The respondent produced oral and documentary evidence to support his contention. The respondent produced oral and documentary evidence to support his contention. Even before the High Court none of the two candidates whose nomination papers were rejected appeared nor their parents were examined by the respondent nor any person having special knowledge about the dates of birth of the two candidates was examined by the respondent. As regards Hukmi Chand the respondent produced Ex. 8 (a copy of scholars register) Ex. 9 (counter-foil of certificate of Board of Secondary Education) Ex. 10 (mark-sheet of Hukmi Chand) Ex. 11 (a copy of counter foil of certificate of Board of Secondary Education) relating to Suraj Prakash Joshi, and Ex. 12 (Tabulation record of marks obtained by Suraj Prakash Joshi). These documents were sought to be proved by Anant Ram Sharma PW 3 and Kailash Chand Taparia PW 5. Ex. 8 is a copy of the scholars register issued by the Head of the Government Higher Secondary School and entries contained therein show that Hukmi Chand had joined Government Middle School Palasani on 24.6.1972 and he had left the same on 10.6.1976 after having passed VIIIth class. In this document 13.6.1956 is mentioned as the date of birth of Hukmi Chand son of Sardar Mal. Ex. 9 is a certificate issued by the Board of Secondary Education Rajasthan certifying that Hukmi Chand Bhandari son of Sardar Mal Bhandari passed Secondary School Examination of 1974 from New Government Higher Secondary School Jodhpur, it also shows 13.6.1956 as date of birth of Hukmi Chand. Ex. 10 is a tabulation record containing the details of the marks obtained by Hukmi Chand at the Secondary School Examination 1974. In this document also his date of birth is mentioned as 13.6.1956. Placing reliance on these three documents the High Court held that Hukmi Chand's date of birth was 13.6.1956 and therefore his age on 1.1.1984 was more than 25 years. The High Court further held that view of the entry in Ex. 11, certificate issued by the Board of Secondary Education Rajasthan Suraj Prakash was born on 11.3.1959 and therefore he was qualified to contest the election as he was not less than 25 years of age. On these findings the High Court held that the respondent had successfully proved that the nomination papers of Hukmi Chand and Suraj Prakash Joshi had been wrongly rejected. 15. On these findings the High Court held that the respondent had successfully proved that the nomination papers of Hukmi Chand and Suraj Prakash Joshi had been wrongly rejected. 15. The High Court held that in view of the entries contained in the Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmi chand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy and Ors. vs. Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath vs. Moti Ram, air 1951 Punjab 377, Sakhi Ram and Ors. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath vs. Moti Ram, air 1951 Punjab 377, Sakhi Ram and Ors. vs. Presiding Officer, Labour Court, North Bihar, Muzzafarpur, AIR 1966 Patna 459, Ghanchi Vora Samsuddish Isabhai vs. State of Gujarat AIR 1970 Gujarat 178 and Radha Kishan Tickoo and Anr. vs. Bhushan Lal Tickoo, AIR 1971 J & K 62 . In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad vs. Sri Jagannath Prasad and Ors. (1969) 42 ELR 465 (All), K. Paramalali vs. L.M. Alangam and Anr. (1967) 31 ELR 401 (Mad), and Krishna Rao Maharu Patil vs. Onkar Narayan Wagh, (1958) 14 ELR 386 (Bom). 16. In Brij Mohan Singh vs. Priya Brat Narain Sinha and Ors.[1965] 3 SCR 861 : ( AIR 1965 SC 282 ) a question arose whether the returned candidate had attained the age of 25 years on the date of his nomination. The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination. This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of the returned candidate could not be set aside. This Court held that an entry recorded in the birth register maintained by an illiterate Chowkidar by somebody else at his request, was not admissible and had no probative value within section 35 of the Indian Evidence Act. In Ram Murti vs. State of Haryana AIR 1970 SC 1029 the date of birth of a girl mentioned in the school certificate was not accepted. In Ram Murti vs. State of Haryana AIR 1970 SC 1029 the date of birth of a girl mentioned in the school certificate was not accepted. However in Mohd. Ikram Hussain vs. State of U.P. and Ors. AIR 1964 SC 1625 this Court accepted the date of birth of a girl as mentioned in the school certificate as the date of birth mentioned therein was supported by an affidavit filed by the father of the girl." 6. Counsel further relied upon the judgment passed by the Coordinate Bench of this court in the matter of Saroj vs. Sunita and others (S.B. Special Appeal Writ No.1953/2017) decided on 08.05.2018 where in it has been held as under:- "15. In our considered opinion, the registration is relevant date which is of the year 1991 and 1994 respectively. Therefore, it has to be believed and in our considered opinion, learned Trial Court has rightly believed the same. Even the Register of Delivery which was produced by the doctor clearly established the name of the appellant along with name of the son and/or daughter. Merely because some of evidence where a question regarding the maintenance of the original complete registration of the hospital or not, maintaining of one card is not an evidence to discard it. When contrary statement made in the nomination supports fully with the evidence which in our considered opinion is primary evidence. Section 35 of the Evidence reads as under: Relevancy of entry in public record or an electronic record made in performance of duty. - An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact." 7. On the other hand counsel for the Election Petitioner submits that the Election Petitioner in his election petition has specifically stated that the wife of the Returned Candidate gave birth to his forth child Rahul on 23.03.1997, therefore, Returned Candidate was not eligible to contest the election for the post of Sarpanch in view of the Section 19(L) of the Act of 1994. Counsel further submits that the Election petitioner in support of his case submitted as many as 27 documents more particularly the documents related to date of birth of Rahul like; School Admission Form (Ex.15), S.R. Register (Ex.-16), School Leaving Certificate issued by the Government Secondary School (Ex.17) and the Mark-sheet of Class 10th (Ex.19). Counsel further submits that these documents were duly proved by AW-2 (Naresh Chand Sharma) who is Head Master of the School where the Returned Candidate himself got admitted his son Rahul in the school for the first time. Counsel further submits that the Returned Candidate himself filled the school admission form and his signatures are also available on the admission form, wherein the date of birth of Rahul has been mentioned as 23.03.1997. Counsel further submits that the Election Petitioner in his evidence before the learned Election Tribunal has specifically submitted that the Returned Candidate has given a false statement in nomination form and mentioned wrong date of birth his son Rahul i.e. 10.07.1993 whereas, the actual date of birth of Rahul is 23.03.1997 and this fact was proved by AW-2 (Naresh Chand Sharma). Counsel further submits that the original school record was also shown in the court by AW2 (Naresh Chand Sharma). Counsel further submits that in the crossexamination of NAW3 (Dr. Mahesh Agarwal) he has specifically stated that on 11.02.1997 he has done the sterilization operations and name of Vimla wife of Jagdish has been mentioned at serial no.673 of the register being maintained for the females operated for sterilization. According to his statement the wife of the Returned Candidate was pregnant on the said date and gave birth to Rahul on 23.03.1997 after one month of the operation. Counsel further submits that according to cross-examination of Smt. Vimla Devi (DW-2) i.e. wife of Returned Candidate the date of birth of Rahul is 23.03.1997 as she has specifically stated that "Rahul was borne in the year 1997", she further stated that it is true that Rahul was born on 23.03.1997. Counsel further submits that when the mother has admitted the date of birth of his son Rahul then no other evidence is required to prove the case of Election Petitioner. 8. Counsel further submits that when the mother has admitted the date of birth of his son Rahul then no other evidence is required to prove the case of Election Petitioner. 8. Counsel relied upon the judgment passed by a Co-ordinate Bench of this Court in the matter of Smt. Maya Devi vs. Smt. Divya & Ors., reported in 2016 (1) WLC (Raj.) UC 561 in para No. 9 has held as under:- "9.The jurisdiction of this Court under Article 226 of the Constitution of India and under Article 227 of the Constitution of India in petitions challenging judgments of courts/tribunal below based on appreciation of evidence in a regular trial is well defined. In neither of the two jurisdictions can this Court sit over the judgment impugned as if in an appeal or revision. The court has to broadly confine itself to addressing questions of jurisdictional error, perversity, misdirection in law and manifest injustice. The Apex Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] has held that the powers under Article 227 of the Constitution of India are exceptional powers for judicial intervention and are not be exercised casually on the mere asking of the petitioner but should be exercised only in order to maintain public confidence in the administration of justice. In State of M.P. & Ors. vs. Nandlal Jaiswal & Ors. [ AIR 1987 SC 251 ] the Apex Court observed that it is well settled that power of High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary. I am of the clear view that no occasion arises in the facts of the instant case and applicable law to exercise the power of this Court under Article 226/227 of the Constitution of India." 9. Heard counsel for the parties and perused the record. 10. The first argument raised by the counsel for the Returned Candidate regarding perverse finding given by the learned Civil Judge on issue no.4 is not accepted in view of the fact that the Civil Judge after considering the documentary evidence as well as oral evidence has given a finding in favour of the Election Petitioner and set aside the election of the Returned Candidate. In my considered view the scope of this court under Article 227 of the Constitution of India is very limited, and the finding of fact arrived at by the Civil Judge is not liable to be disturbed. The second argument raised by the counsel for the Returned Candidate regarding not considering the document Ex.A1 & Ex.A2 i.e. birth certificate issued by the Gram Panchayat and the birth & death register of the Gram Panchayat is also not acceptable in view of the fact that a bare reading of Ex.A2 (Annexure 18) clearly shows that there is overwriting in the name of Rahul and there is also overwriting in the name of wife of the Returned Candidate. 11. The second argument raised by the counsel for Returned Candidate regarding no possibility of giving birth to child after sterilization operation by the wife of the Returned Candidate is also not acceptable in view of the evidence of Dr. Mahesh Agarwal wherein he has stated that he has not done the abortion of the wife of the Returned Candidate, therefore, according to his statement she was pregnant and that being so gave birth to Rahul on 23.03.1997 after one month of the operation. Apart from this wife of Returned Candidate i.e. Vimla has also admitted that at the time of sterilization operation she was pregnant. 12. The next argument raised by the counsel for the Returned Candidate regarding not considering the evidence of the Returned Candidate by the Civil Judge is also not accepted in view of the fact that the election tribunal has considered the documentary evidence more particularly Admission form, S.R. Register, School leaving Certificate etc. in which the date of birth of his son Rahul is 23.03.1997 and these documents were duly proved by AW-2 (Naresh Chand Sharma) who happens to be the Head Master of the school where the son of Returned Candidate Rahul got admission and the said admission form was duly signed by the Returned Candidate i.e. father of the Rahul. in which the date of birth of his son Rahul is 23.03.1997 and these documents were duly proved by AW-2 (Naresh Chand Sharma) who happens to be the Head Master of the school where the son of Returned Candidate Rahul got admission and the said admission form was duly signed by the Returned Candidate i.e. father of the Rahul. The last argument raised by the counsel for the Returned Candidate regarding not recording the reasons by the learned District Judge while transferring the election petition to the court of Civil Judge on 21.09.2015 is also not acceptable as the Returned Candidate has failed to challenge the order dated 21.09.2015 and even before this court in the present writ petition no such prayer has been made for quashing the order dated 21.09.1995. 13. In view of the above discussion, the writ petition filed by the petitioner deserves to be dismissed for the reasons; firstly, the finding given by the learned Civil Judge on issue no.4 being a finding of fact arrived at by the learned Civil Judge based on sound appreciation of evidence as such the same is not liable to be disturbed by this court under Article 227 of the Constitution of India in view of the judgment passed by a Coordinate Bench of this court in the matter of Smt. Maya Devi (supra); secondly the documentary evidence like S.R. Register, School leaving Certificate submitted by the Election Petitioner in support of his case was duly proved by the evidence of AW2 Naresh Chand Sharma wherein he has stated that the date of birth of Rahul was mentioned as 23.07.1997; thirdly, the learned District Judge transferred the Election petition to the court of Civil Judge on 21.09.2015 and the said transfer order was neither challenged in the year 2015 or even in the present writ petition by the Return Candidate. 14. In that view of the matter, the present writ petition stands dismissed. The stay application also dismissed.