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Tuesday, April 12, 2016

oral evidence could hardly be useful to determine the correct age of a person, and, the question therefore, would largely depend on the documents and the nature of their authenticity and that the entries in School register and admission form regarding date of birth constitute a good proof of age. It has been further held that there is no legal requirement that any entry in any public or other official book, should be kept only by a public officer but all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. It was further held that the entries in school register were ante litem motem, and therefore there was no reason to allege, suspect or even imagine that the evidence has been created or fabricated to buttress a case filed subsequently by one party against the other. The best defence of the petitioner rooted in the birth certificates purportedly issued by the Registrar of Births & Death was quite worthless because apart from the deficiencies of no date of the issue of such certificates being stated thereon and the column left blank, the purported birth certificate, a public document bore no serial number and further said certificates were not certified and endorsed as per the provisions of Section 76 of the Evidence Act to be admissible evidence as per the provisions of Section 17 (2) of the Registration of Births and Deaths Act, 1969. Apart from the above, the petitioner in his cross examination failed to satisfy the trial court about the authenticity of the birth certificates of Pushpendra and Shashi to prove their being born before 27-11-1995.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH

ORDER

Bheem Singh     Vs.   Addl. Civil Judge (Sr.Dn.) Bharatpur & Another
(S.B. Civil Writ Petition No.322/2012)

S. B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India.

Date of Order:     March 27, 2012.

PRESENT

HON'BLE  MR. JUSTICE ALOK SHARMA

Mr. Bharat Vyas, for the petitioner.

Mr. G.K. Garg, Senior Advocate with 
Ms. Anita Agrawal, for respondents.


BY THE COURT:

This petition challenges the order dated 17-12-2011, passed by Additional Civil Judge (Senior Division) No.1 Bharatpur (herein after `the trial court') in Election Petition No.19/2010. The election petition was filed by the election petitioner- respondent No.2 one Rakesh Kumar (herein after `election petitioner'), where under the election to the post of Sarpanch of Gram Panchayat Barkhera, Panchayat Samiti Bayana District Bharatpur held on 4-2-2010 in which one Bheem Singh s/o Tilfi Ram (herein after `the petitioner') was elected Sarpanch of village Barkhera, has been set aside under Section 19(l) of the Rajasthan Panchayati Raj Act, 1994 (herein after `the 1994 Act').

The facts of the case are that one Rakesh Kumar, the election petitioner filed a petition under section 43 of 1994 Act read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (herein after `the 1994 Rules') alleging that the petitioner Bheem Singh was disqualified under Section 19(l) of 1994 Act to contest the election for the post of Sarpanch as he had four living children i.e. Sonam, Pradeep, Pushpendra (8-8-1996), and Shashi (5-7-1997), two of whom Pushpendra and Shashi were evidently born after the cut off date of 27-11-1995, and thereby the petitioner was disqualified from contesting the election for the post of Sarpanch in the year 2010 and thus his election be set aside. 

On service, the petitioner filed his reply to the election petition and denied the fact of birth of his two children after the cut-off date 27-11-1995, and stated that all his children were born before the curt-off date. The petitioner submitted that the documents filed in support of the election petition were fake and forged. 

On the basis of pleadings of the parties, the learned trial court framed four issues of which issue No.1 fundamental to this writ petition was thus:-

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The election petitioner in support of his contention that Pushpendra and Shashi were born on 8-8-1996 and 5-7-1997, respectively after the cut-off date 27-11-1995, inter alia relied upon application form of  Pushpendra and Shashi while seeking admission to Government Secondary School Barkheda as also the scholar register maintained by the said school pertaining to both Pushpendra and Shashi showing that they were born after the cut-off date 27-11-1995. Apart from the aforesaid documentary evidence obtained from official custody, the election petitioner also produced Sarpanch Vijendra Singh @ Vijay Singh (AW-2), Prabhu Dayal Gupta (AW-3) and Gyarsi Ram Verma (AW-4) as witnesses in support of his case/ contentions. On the basis of aforesaid documentary and oral evidence, it was contended that Pushpendra and Shashi were born on 8-8-1996 and 5-7-1997, respectively after the cut-off date 27-11-1995, even while the petitioner had earlier fathered two living children Sonam and Pradeep prior thereto and for this reason the election petition be allowed. 

As against the aforesaid evidence on behalf of the election petitioner, the petitioner sought to displace the case of election petitioner inter alia on the basis of a report dated 16-7-2010, submitted by the SDO Bharatpur to the Divisional Commissioner Bharatpur, on the complaint made by election petitioner to the Divisional Commissioner Bharatpur. The SDO at the conclusion of the enquiry had reported that no child was born to petitioner Bheem Singh after the cut-off date 27-11-1995 as per the birth certificates issued under the Registration of Birth & Deaths Act, 1969 (herein after `the 1969 Act') and the rules made thereunder and the complaint about the petitioner's disqualification based on scholar register and application form for admission to the Government Secondary School Barkheda, was of no consequence. The petitioner's further case is that apart from the report of the SDO Bharatpur, he also placed on record birth certificates Ex.A1 to A4 pertaining to his four children to establish that all his children were born before the cut-off date 27-11-1995.

After considering the oral and documentary evidence laid by both the parties, the trial court decided issue No.1 against the petitioner and held that the petitioner had fathered two children, Pushpendra on 8-8-1996 and Shashi on 5-7-1997, after the cut-off date 27-11-1995, apart from his earlier having fathered two living children Sonam and Pradeep before 27-11-1995. The trial court also held that on the basis of scholar register of government secondary school Barkheda as also admission form submitted to the school signed both by Bheem Singh and Pradeep (his older son) the case of election petitioner about Bheem Singh being disqualified under Section 19(l) of the 1994 Act was proved. 
The trial court having considered the scholar register pertaining to Pushpendra and Shashi as also their application forms for admission to Government Secondary School Barkhera and based thereon came to categorical conclusion as under:-

?????? ?????? ??? ?????? ????? ?????? ?? ?? ?????? ??????? ? ?????? ????? ???????? / ???? ?????? ???????? ?? ????? ????? ?? ??? ????? ???????? ??????? ? ???? ????? ?????? ?? ????????? ????? ??? ???? ?? ???? ?? ?????? ?????? ???? ???? ?? ?? ???? ?????????? ???? ?? ?????? ???????? ?? ????? ?? ??? ?? ???!  ???? ?? ?????? ?????? ?? ???????? ???? ?? ??!    

Considering the defence of the petitioner, the trial court held that the report of SDO Bharatpur was of little consequence on the ground that it was function of the statutory designated court to adjudicate an election dispute under the provisions of 1994 Act and the said adjudicatory function could not be displaced by any finding of the SDO in the course of an administrative enquiry. On the issue of birth certificate filed by the petitioner seeking to show the date of birth of Sonam 12-9-1989, Pradeep 15-9-1990, Pushpendra 15-9-1992 and Shashi 20-12-1993, i.e. all before the cut-off date 27-11-1995, the trial court held that said birth certificate were not worthy of any credence for the reason that neither there was any date on the said certificates, nor name of informant was shown on the certificate, and that the said certificate bore no serial number and did not seem to have been contemporaneously issued. Further, in the cross examination, the petitioner had come out as absolutely unreliable as he pretended that he neither knew the name of school where his children studied, nor did he know when the birth certificates sought to be relied upon were made, and was also not able to explain the stark deficiencies in the certificates. 

The findings of the trial court, as detailed herein above, are based on documentary evidence i.e. scholar register and application forms for admission to government secondary school Barkheda both for Pushpendra and Shashi as proved by Head Master of the school Prabhu Dayal Gupta (AW-3) and Gyarsi Ram Verma (AW-4). The trial court while considering the overwhelming evidence both documentary and oral on record of the election petition, held that the denial by the petitioner of all clinching documentary evidences brought on record from official custody was absolutely incapable of credence. The court found that the evidence relied upon by the election petitioner had come into existence before the election for the post of Sarpanch were held and had been produced from official custody, and buttressed by the deposition of witnesses, who were government servants and who could not be  shaken in cross examination. The trial court also noted the fact that in his cross examination the petitioner and other defence witnesses were totally evasive and completely unnatural and the reliance on birth certificates purportedly issued by the Registrar of Births & Deaths was of little probative worth owing to the certificates being suspect for variety of reasons. 

Having considered the oral and documentary evidence, as laid before it, the trial court on appreciation of the evidence came to the conclusion that the issue No.1 with regard to petitioner having fathered two daughters Pushpendra and Shashi  subsequent to the cut off date 27-11-1995 stood proved and in view of the admitted position that petitioner already had two living children prior to cut-off date 27-11-1995. The petitioner was ineligible to contest the election for the post of Sarpanch in terms of Section 19(l) of 1994 Act. So holding the learned trial court allowed the election petition No.19/2010 moved by the election petitioner Rakesh Kumar and set aside the election of the petitioner as Sarpanch of village Barkhera District Bharatpur.

Heard learned counsel for the parties, and perused the impugned order dated 17-12-2011.
The outcome of the challenge to the impugned order is dependent upon the determination of the question as to whether the learned trial court while adjudicating the election petition committed any perversity or misdirected itself in law or misread the evidence or otherwise the impugned order is legally untenable or based on surmises and conjectures, or the trial court has taken into consideration irrelevant matters and/ or over-looked material evidences. It is trite that a writ court is not an appellate court, and even if two views are possible on the evidence laid before the trial court, after the trial court taking a plausible  view on the evidence before it in the matter, this court would not exercise its jurisdiction under Article 226 or 227 of the Constitution of India to substitute its view for that of the view of the trial court except on grounds detailed in the preceding paragraph of this judgment. Reference in this regard can be made to Management of Madurantakam Coop. Sugar Mills Ltd. Vs. S. Vishwanathan [(2005) 3 SCC 193], Apparel Export Promotion Council Vs. A.K. Chopra  [(1999) 1 SCC 759], Tika Ram Vs. State of Madhya Pradesh [(2007) 15 SCC 761], Jayanta Samal Vs. Kulamani Behera [(2004) 13 SCC 552].

In the context of scope of a writ petition under Article 226/227 of the Constitution of India against an order of statutory authority it would be proper to consider the material before the trial court which prevailed with it while determining issue No.1 relating to the question as to whether the petitioner had four children, of whom Pushpendra on 8-8-1996 and Shashi on 5-7-1997 were born after the cut-off date 27-11-1995, rendering the petitioner ineligible to contest the election for the post of Sarpanch in 2010 in terms of Section 19 (l) of 1994 Act. 

A bare look at the order of the learned trial court indicates that it is rooted in a detailed appreciation of evidence before it as laid both on behalf of the petitioner and the election petitioner herein the respondent. The trial court has held that the evidence laid by the election petitioner before it was based on sterling documents obtained from proper official custody and that the said documents were proved as required in law by the evidence of Prabhu Dayal Gupta (AW-3) and Gyarsi Ram Verma (AW-4), who had no axe to grind with the petitioner herein and who had not been shaken in their cross examination. The trial court found the defence of the petitioner and probative value thereof of no weight being absolutely evasive, contradictory and even false, solely with the object of safeguarding the election of petitioner in spite of his ineligibility under section 19 (l) of 1994 Act. On the issue of the enquiry report dated 16-7-2010 submitted by the SDO to the Divisional Commissioner Bharatpur, the trial court rightly held that an administrative enquiry could not pre-empt a judicial determination of an election dispute as per the provisions of Section 43 of the 1994 Act and the 1994 Rules on the basis of prescribed procedure and evidence on record. So too the trial court did not find any merit in the petitioner's defence about Pushpendra and Shashi having been born before 27-11-1995 owing the reason that the said certificates did not inspire any credibility because they were devoid of material particulars essential to such certificates and did not bear any date of issue, serial number and did not appear to have been contemporaneously issued.

Section 35 of the Evidence Act is attracted to the facts of the instant case as also Section 114 (e) thereof. Section 35 provides inter alia that an entry in any public or other official book, register or record stating a fact in issue or relevant fact, and made amongst others 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. It cannot be disputed that both the scholar registers and admission forms maintained by the authorities of government school Barkhera, as also recorded in school register would be covered by Section 35 of the Evidence Act. Similarly, Section 114 of the Evidence Act, more particularly the clause (e) thereof provides that the court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration of clause (e) of Section 114 of the Evidence Act provides that the court may presume “official acts have been regularly performed”. The petitioner or his witnesses were not able to rebut the said presumption which was on the contrary firmed up and solidified by corroborative documents and evidence of the witnesses of the election petitioner.
I am of the considered view that with reference to aforesaid two provisions of the Evidence Act, 1872, the learned trial court has rightly concluded that the evidence oral and documentary laid by the election petitioner deserved to be accepted.

The Hon'ble Supreme Court in the case of State of Punjab Vs. Mohinder Singh [(2005) 3 SCC 702] has held that the information as to age qua a student contained in the admission register of the school, supplied to school authorities by the father, guardian or close relative is authentic evidence, unless it is established by unimpeachable contrary material that it was improbable. In Umesh Chand vs. State of Rajasthan [(1982) 2 SCC 202], the Hon'ble Supreme Court held that oral evidence could hardly be useful to determine the correct age of a person, and, the question therefore, would largely depend on the documents and the nature of their authenticity and that the entries in School register and admission form regarding date of birth constitute a good proof of age. It has been further held that there is no legal requirement that any entry in any public or other official book, should be kept only by a public officer but all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. It was further held that the entries in school register were ante litem motem, and therefore there was no reason to allege, suspect or even imagine that the evidence has been created or fabricated to buttress a case filed subsequently by one party against the other. 
The best defence of the petitioner rooted in the birth certificates purportedly issued by the Registrar of Births & Death was quite worthless because apart from the deficiencies of no date of the issue of such certificates being stated thereon and the column left blank, the purported birth certificate, a public document bore no serial number and further said certificates were not certified and endorsed as per the provisions of Section 76 of the Evidence Act to be admissible evidence as per the provisions of Section 17 (2) of the Registration of Births and Deaths Act, 1969. Apart from the above, the petitioner in his cross examination failed to satisfy the trial court about the authenticity of the birth certificates of Pushpendra and Shashi to prove their being born before 27-11-1995.

This court is of the view that in the facts of the case the election petitioner before the trial court was able to prove and establish that the petitioner having fathered Pushpendra and Shashi after the cut-off date 27-11-1995, having earlier already fathered two living children was thus not eligible to contest the election for the post of Sarpanch of Gram Panchayat Barkhera, District Bharatpur. The trial court has rightly set aside the election under its impugned order dated 17-12-2011. No interference is called for by this Court on any ground whatsoever. The learned trial court while adjudicating upon the election petition has committed no perversity nor misdirected itself in law or otherwise exceeded its jurisdiction. As such the writ petition deserves to be dismissed.
Resultantly, the writ petition is dismissed. 
Stay application also stands dismissed.


     (Alok Sharma),J.

arn/




All corrections made in the order have been 
incorporated in the order being emailed.

Arun Kumar Sharma, Private Secretary.


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