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2019 DIGILAW 2079 (RAJ)

Mohan Lal v. Nathu Lal Jangid

2019-07-31

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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JUDGMENT : Mohammad Rafiq, J. 1. This appeal is directed against judgment dated 04.02.2019 of learned Single Judge whereby the writ petition filed by respondent Nathu Lal Jangid has been allowed, wherein challenge was made to the judgment and decree dated 03.08.2018 passed by the Court of Additional Senior Civil Judge No. 21, Jaipur Metropolitan, Jaipur, (the Election Tribunal) allowing the Election Petition No. 05/2018 filed by appellant Mohan Lal Saini and set-aside the election of the respondent Nathu Lal Jangid as Sarpanch of Gram Panchayat Shriram-ki-Nagal, Tehsil Sanganer, District Jaipur. 2. Facts of the case are that the appellant and the respondent contested the election to the office of Sarpanch, Gram Panchayat Shriram-ki-Nagal, Tehsil Sanganer, District Jaipur. The election was held on 24.01.2015. The respondent secured 802 votes and the appellant secured 742 votes and therefore the respondent was declared elected by margin of 60 votes. It was alleged that the respondent (returned candidate) in the nomination form submitted on proforma no. 4(T) under Rules 25 and 58 of the Rajasthan Panchayati Raj (Election) Rules, 1994 had declared that as on 27.04.1994 he had four issues, namely, Kaushlya Devi born on 10.10.1983, Shankar Lal Jangid born on 16.09.1987, Jyoti Jangid born on 16.07.1988 and Shambhu Dayal Jangid born on 12.05.1992. The respondent declared that one more issue Kanhaiyalal was born to his wife in between 27.04.1994 and 27.11.1995, but the actual date of birth of Kanhaiyalal, son of respondent (returned candidate) was 08.10.1997, which was entered in the Secondary School Certificate with Roll No. 114208, wherein name of respondent Nathu Lal Jangid has been recorded as father of Kanhaiyalal along with name of his wife. The allegation therefore was that the respondent has by preparing a forged document filled in the nomination form for election to the office of Sarpanch and was eventually elected. Though the respondent contested the matter but the learned Election Tribunal by order dated 03.08.2018 allowed the election petition of the appellant. The respondent preferred writ petition against the order of the Election Tribunal, which came to be allowed by the learned Single Judge vide impugned order. Hence this special appeal. 3. Mr. Though the respondent contested the matter but the learned Election Tribunal by order dated 03.08.2018 allowed the election petition of the appellant. The respondent preferred writ petition against the order of the Election Tribunal, which came to be allowed by the learned Single Judge vide impugned order. Hence this special appeal. 3. Mr. Arun Singh Shekhawat, learned counsel for the appellant, submitted that the respondent has wrongly shown the date of birth of his son Kanhaiyalal as 30.08.1994, whereas his correct date of birth is 08.10.1997, which is proved from the marks-sheet of Kanhaiyalal issued by the Central Board of Secondary Education and that the respondent had submitted false affidavit and therefore his election was liable to be set aside. 4. Learned counsel for the appellant argued that learned Single Judge has seriously erred in law in setting aside the judgment passed by the Election Tribunal relying on document Exhibit D-1, which was entry in death and birth register under the provisions of Section 35 of the Indian Evidence Act. The Election Tribunal in its thoroughly discussed judgment did not find the aforesaid register to be genuine. The learned Election Tribunal has wrongly relied on the misinterpreted statement of ANW-2 Asha Meena because during her cross-examination she specifically stated that she remained posted in Gram Panchayat Shriram-ki-Nagal since 2015 on the post of Secretary. She also admitted that for entering the name in the death and birth register an application is required to be made and only after inquiry on such application, name is entered in the said register. 5. It is argued that only one page from the aforesaid register was produced by the respondent as Exhibit D-1, which shows entry of the birth of Kanhaiyalal on 30.08.1994 but there was no other entry in that register till 1998. Learned counsel submitted that no steps whatsoever have been taken by the respondent and his son Kanhaiyalal to get his date of birth changed in the record of the Central Board of Secondary Education. In fact, he was now a student of Third Year Course of Graduation. The undisputed fact is that he continued to study by declaring 08.10.1997 as his date of birth. 6. Mr. In fact, he was now a student of Third Year Course of Graduation. The undisputed fact is that he continued to study by declaring 08.10.1997 as his date of birth. 6. Mr. Manoj Kumar Bhardwaj, learned counsel for the respondent opposed the appeal and submitted that the date of birth of Kanhaiyalal, son of respondent, was entered in the birth and death register maintained under the Registration of Birth and Deaths Act 1969, and the Rajasthan Registration of Births & Deaths Rules, 2000, framed thereunder, in exercise of the powers conferred under Section 30 of the Act of 1969, as would be evident from the document Exhibit D-1 (A-1). The entry was made at the instance of the respondent Nathu Lal and his name was also deleted in Column 21. Learned Single Judge rightly concluded that merely because there were no entries in the aforesaid register from the month of September 1994 to May, 1998, it cannot be a ground for discarding the register, which is admissible in evidence. Learned Election Tribunal erred in law in relying on the letter of Headmaster of Gaurav Public School (Exhibit D-4), addressed to the S.H.O., Police Station Bani Park, Jaipur, indicating date of birth of Kanhaiyalal at the time of admission as 08.10.1997. This document could not be taken as proof as the Headmaster who sent the letter to the S.H.O., Police Station Bani Park, Jaipur, did not appear in the witness box. The learned counsel relied on the judgment of this Court in Shabnam (Mst.) Vs. Mohd. Shafiq - AIR 2004 Raj. 303 , wherein it was held that a certificate of birth of a person is conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it. 7. We have given our thoughtful consideration to rival submissions and perused the material on record. 8. The dispute in the present matter is whether the respondent, who is a returned candidate, has made a false declaration as to the date of birth of his fifth child Kanhaiyalal. Undeniably, Kanhaiyalal has already passed the Secondary School Examination, in which he appeared with Roll No. 114208. In that certificate, the date of birth of Kanhaiyalal has been recorded as 08.10.1997. Undeniably, Kanhaiyalal has already passed the Secondary School Examination, in which he appeared with Roll No. 114208. In that certificate, the date of birth of Kanhaiyalal has been recorded as 08.10.1997. The Headmaster of Gaurav Public School, wrote a letter (Exhibit D-4) to the S.H.O., Police Station, Bani Park, Jaipur, wherein it is clearly mentioned that Kanhaiyalal S/o. Nathu Lal, R/o Shriram-ki-Nagal was admitted in their school on 01.07.2000, wherein his date of birth was declared as 08.10.1997. While in the document Exhibit D-4 the respondent has declared the date of birth of Kanhaiyalal as 08.10.1997, whereas in the document Exhibit D-12, which is the nomination form, he has declared the date of birth of Kanhaiyala to be 30.08.1994. There is huge difference between these two dates. In any case, learned Election Tribunal has concluded that the respondent not only gave a false affidavit with regard to date of birth of Kanhaiyalal but also the date of birth of his daughter Jyoti. On the proforma no. 4(T) under Rules 25 and 58 of the Rajasthan Panchayati Raj (Election) Rules, 1994, the respondent declared that he has total four issues, namely, Kaushlya Devi born on 10.10.1983, Shankar Lal Jangid born on 16.09.1987, Jyoti Jangid born on 16.07.1988 and Shambhu Dayal Jangid born on 12.05.1992. Thus, apparently in the answer to Column 3-Kha in regard to birth of child in between 27.04.1994 and 27.11.1995, he has declared that Kanhaiyalal was born on 30.08.1994. In Column 3-Ga wherein he was asked whether any issue was born to him after 28.11.1995, he declared 'NIL'. Learned Election Tribunal also noted that while in the nomination form the respondent declared birth of his daughter Jyoti born in 1989 whereas according to the scholar register of Shri Devrishikul Senior Secondary School, Krishna Vihar, Pratap Nagar, Sanganer, Jaipur, Kumari Jyoti passed her 8th examination. There was thus apparent discrepancy even in regard to correct date of birth of Kumari Jyoti. In cross-examination, the respondent stated before the Election Tribunal that he was not aware as to what was the process for filling of nomination form. The learned Election Tribunal found the document Exhibit D-1 copy of page of death and birth register to be highly doubtful. In cross-examination, the respondent stated before the Election Tribunal that he was not aware as to what was the process for filling of nomination form. The learned Election Tribunal found the document Exhibit D-1 copy of page of death and birth register to be highly doubtful. In fact when it was put to respondent in the cross-examination about the genuineness of the aforesaid register, all that was stated was whether it was correct or wrong he could not say whether it was correct. He stated that he did not remember the correct date of birth of Jyoti but declared 16.07.1988 as her date of birth in the scholar register of the school just by picking the guess work. Since her date of birth was anywhere in the year 1995, which would not affect his eligibility to contest the election. He entered the age of his own guess work. 9. NAW-2 Asha Meena has stated that she was posted as Gram Sevak of Shriram-ki-Nagal and that for getting the name entered in the death and birth register a person is required to make an application. Entries could be made on the verification of the facts stated in the such application. In cross-examination, she stated that the birth and death certificates are prepared on the basis of entries made in the death and birth register. She, in the cross-examination, could not explain why, after the entry of the birth of Kanhaiyalal, there was no entry in the death and birth register till 1998. Learned Single Judge has reversed the finding of the learned Election Tribunal on this aspect observing that mere fact that there were no entries in the register from September 1994 to May, 1998, cannot be a ground to discard the admissible evidence. In doing so, learned Single Judge has relied on Shabnam (Mst.) Vs. Mohd. Shafiq - AIR 2004 Raj. 303 , wherein it was held that a certificate of birth of a person is conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it. Reliance was also placed on the judgment of the Supreme Court in CIDCO Vs. Vasudha Gorakhnath Mandvelkar - (2009) 7 SCC 283 , which is to the effect the Deaths and Births register maintained by the statutory authorities raises a presumption of its correctness. Reliance was also placed on the judgment of the Supreme Court in CIDCO Vs. Vasudha Gorakhnath Mandvelkar - (2009) 7 SCC 283 , which is to the effect the Deaths and Births register maintained by the statutory authorities raises a presumption of its correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the candidate. The learned Single Judge in the impugned order has made reference to Sections 8 and 16 of the Act of 1969. Section 8 requires the persons especially the head of the house to give or cause to be given, either orally or in writing, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16. Section 16 provides that every Registrar shall keep in the prescribed form a register of births and deaths for the registration area or any part thereof in relation to which he exercises jurisdiction. The Rules of 2000 provides forms etc. for the purpose of birth and death registration as admissible under Sections 8 and 9 of the Act of 1969. Rule 8 of the Rules of 2000 refers to extracts of registration entries to be given under Section 12 of the Act of 1969. There can be no quarrel with the proposition that the provisions of which reference has been made as per the mandate of Section 35 of the Indian Evidence Act, have to be strictly adhered to, which requires 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. 10. 10. The Supreme Court in Ravinder Singh Gorkhi vs. State of U.P.- (2006) 5 SCC 584 while elaborating on interpretation of Section 35 of the Evidence Act held that determination of the date of birth of a person before a Court of law whether in a Civil Procedure or a Criminal Procedure would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of material on record. It will however be a matter of appreciation of evidence of the parties by the Court. Having regard to the provisions of Section 35 of the Evidence Act, different standards cannot be applied in a civil case or in a criminal case, for the Act does not make a distinction between the two. Unless specifically provided for in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in discharge of his official duties, or by any person in performing of his duties specifically enjoined with the law of the country in which inter alia such register is kept, would be the relevant fact. The ratio of that judgment if applied to the facts of the present case would clearly show that the register, which is sought to be relied in support of the proof of a fact, should have been maintained in the ordinary course of business by public servant in discharge of his official duties and that it will be a matter of appreciation of the evidence for the Court and that satisfaction of the Court on this aspect would depend upon quality of evidence adduced by the parties. 11. In the present case, the document (Ex. D1) was rendered dubious and unreliable as NAW 2-Asha Meena, the Gram Sewak of the Gram Panchayat, who appeared in the witness box to prove the same, could not give any satisfactory explanation why after the entry of Kanhaiya Lal, the fourth child of the respondent, in September, 1994, no entry whatsoever was made in the register till May, 1998. D1) was rendered dubious and unreliable as NAW 2-Asha Meena, the Gram Sewak of the Gram Panchayat, who appeared in the witness box to prove the same, could not give any satisfactory explanation why after the entry of Kanhaiya Lal, the fourth child of the respondent, in September, 1994, no entry whatsoever was made in the register till May, 1998. Contention that since this could not be a reason to discard an evidence, which is otherwise admissible under Section 35 of the Evidence Act is noted to be rejected for the simple reason because Section 35 itself requires that the register of births and deaths should have been maintained in the ordinary course of business by a public servant in discharge of his official duties. The kind of register, copy of which was produced before the court below, raises serious doubt about its genuineness. The very fact that there was no entry therein, of either births or deaths, for more than four years, makes it unacceptable in evidence. Such register is required to be maintained regularly in the ordinary course of business by public servant in discharge of his official duties, which request is found lacking in this case. 12. No doubt, the register is maintained as per the Registration of Births and Deaths Act, 1969. Section 35 of the Evidence Act provides that entries made in such a register in public record in performance of official duty relevant. Presumption of correctness is attached to such entries. Therefore, on the evidence led, not only the extracts from register are admissible in evidence under Section 35 of the Evidence Act. Presumption of regularity of official acts done in due discharge of the public duties can be raised under Section 114 read with Section 50 of the Evidence Act. But such a presumption is a rebuttable presumption. But in this context, Ex. D4, the letter of Headmaster of Gaurav Public School sent to Police Station Bani Park, Jaipur mentioning therein that date of birth of Kanhaiya Lal on the basis of declaration made by his ward when he was admitted to school on 1.7.2000, was recorded as 8.10.1997, assumes significance. This proves the claim of the appellant by the preponderance of probabilities that documents were forged and fabricated by the respondent while declaring 30.8.1994 as the date of birth of his fourth child Kanhaiya Lal in the nomination form (Ex. D12). This proves the claim of the appellant by the preponderance of probabilities that documents were forged and fabricated by the respondent while declaring 30.8.1994 as the date of birth of his fourth child Kanhaiya Lal in the nomination form (Ex. D12). In the present case, not only the presumption in view of the dubious nature of the document cannot be raised, but even otherwise, such presumption should be taken to have been rebutted in view of the contrary evidence produced by the appellant. 13. In the result, the present appeal deserves to succeed and is accordingly allowed. The impugned judgment of the learned Single Judge dated 04.02.2019 is set aside and the judgment of the Additional Senior Civil Judge No. 21, Jaipur Metropolitan, Jaipur (the Election Tribunal) dated 03.08.2018 is restored. Parties to bear their own costs. 14. This also disposes of stay application.