Bhadar Ram Vs. Sant Ram and anr. - Court Judgment

Excerpt:
rajasthan panchayati raj act, 1994 - section 19(1)(iv)--disqualification--any offspring addition to two children after prescribed date incurs disqualification--two of the children of petitioner from five born after the prescribed date--election petitioner prove the fact by cogent and convincing evidence before election tribunal--election of petitioner as sarpanch rightly set-aside by the tribunal--no interference called for.;writ petition dismissed - - the petitioner has failed to discharge his burden in rebuttal. ordinarily, parents are the best persons to speak about the date of birth of their kid. thus, election petitioner's burden was discharged and the petitioner failed to rebut the evidence produced by the election petitioner. having failed to produce the documents in his possession, the petitioner has taken a risk of making available circumstance, by virtue of which, the tribunal could draw adverse inference and in fact the tribunal has drawn adverse inference against the petitioner. the petitioner having fivechildren is clearly within the ambit of the disqualification provided.prasad, j.1. the petitioner in the present writ petition was elected as sarpanch of gram panchayat, 29 dwd on 31.1.2000. an objection was taken before the returning officer that in view of provisions of section 19(l)(iv) of the rajasthan panchayati raj act, 1994 (hereinafter referred to as 'the act'), the petitioner was not qualified to be a candidate at election because he is father of five children. two of them have been born after 27.11.1995, a date after which any offspring in addition to two children has been construed to be a disqualification for being candidate at election. the returning officer did not re-act to the objection and accepted the nomination paper of the petitioner. at the election, the petitioner was elected as sarpanch. after election, an election petition was filed challenging the election of the petitioner by respondent no.l sant ram. in this election petition, trial was held and after trial election tribunal came to the conclusion that two of the offspring of the petitioner had taken birth after 27.11.1995, therefore, petitioner was not entitled to be elected as sarpanch.2. in its decision on the election petition, the election tribunal-has considered that election petitioner has produced evidence to the effect that there are five children born to the petitioner and therefore, the petitioner was not entitled to contest the election of sarpanch. the election petitioner had raised objection before the returning officer but returning officer ignored all the evidence produced before him for disqualifying the petitioner for contesting the election.3. the tribunal has noted evidence of a.w. 2 uma devi who was sarpanch of chak 29 dwd 1995 to 1999. she has given in her evidence that when she was sarpanch, ration card of petitioner had the endorsement of three children made into it. now, the petitioner has five children. the age of youngest child is 2-1/2 years. she has proved ration card ex.p/4 on which she says that she has signed from a to b. a.w. 3 bhanwar singh, secretary of the gram panchayat, 29 dwd has proved birth register of the gram panchayat from 19% to 1997. he has said that a girl krishna was born to the petitioneron 17.11.1996. the entry records name of father as bhadar ram and mother as sita. a.w.4 sujata sharma, family health worker has also been examined by the election petitioner who has produced a survey report dt. 2.9.1999 which records that petitioner had five children on 2.9.1999 and the youngest child was of one year age, a.w.5 om prakash and a.w. 6 shiv bhagwan have deposed about the date of birth of children who were studying in their schools. a.w. 7 baldev who was panch has stated that petitioner had got a ration card in 1995 where five units were recorded including three children. after that two issues were born to the petitioner and when new ration card was prepared, he got thumb impression of the wife of petitioner.4. in rebuttal, the petitioner has examined himself and has also examined n.a.w. 2 bhagirath and n.a.w. 3 devilal, no. documentary evidence has been produced by the petitioner.5. the election tribunal after considering evidence of the parties came to the conclusion that it is not denied that there are five children to the petitioner. the tribunal has also noted that if any of the children have been born after 27.11.1995, then disqualification is provided in section 19 of the act. the tribunal has found that documentary evidence overwhelmingly support the case of the election petitioner and the petitioner has produced no documents to rebut the documents produced by the election petitioner. the election tribunal has drawn adverse inference also because at the trial, the petitioner had admitted that he had got ration card prepared which is with him but he has not produced the same. similarly, the tribunal has also noticed that the petitioner had in his possession birth entries in a note book and he has ignored producing such document. election petitioner has substantiated his case by production of many documents showing that two children of the petitioner were born after 27.11.1995. the tribunal came to the conclusion that petitioner has earned disqualification contained in section 19 of the act, assailing decision of the election tribunal, the present writ petition has been filed by the petitioner.6. the judgment is assailed on the ground that documentary evidence has wrongly been relied upon by the tribunal. the authors of documents have not been produced. the witnesses who have appeared in the witness box to prove the documents have pleaded ignorance about authors of the entries relied upon by the election petitioner. thus, according to the petitioner, there was no proof of the fact as alleged by the election petitioner.7. the document ex. 6a which is annex. p/7 with the writ petition shows that when father is 22 years and mother is 20 years, how could the petitioner born five children. these documents are incongruous. witnesses baldev singh and uma devi were inimical and therefore they should not be believed. the petitioner has placed reliance on certain decisions of the courts to support his contention. he has relied on (laxman siddappa naik v. kattimani chandappa jampanna) (1), wherein hon'ble supreme court has held that election petitioner cannot succeed because of the weakness of the successful candidate. before any election is set aside, there must be convincing proof. the burden on the election petitioner, unless election petitioner discharges his burden, he cannot succeed.8. the petitioner has further relied on ch. razik ram v. ch. j.s. chouhan and ors. (2), wherein it has been held that evidence of both sides be weighed while deciding election petition. the election tribunal, according to the learned counsel, has not properly weighed the evidence given by the petitioner. learned counsel has also relied on (lakhan sao (deceased) through legal heirs v. dharamu chaudhary) (3), and has canvassed that when a court records finding, it must analysis entire evidence. according to the learned counsel, evidence has not been properly appreciated by the trial court. the petitioner has also relied on s. gopal reddy v. state of a.p. (4). on the strength of the case decided by the hon'ble supreme court in brij mohan singh v. priya brat narain sinha (5), learned counsel has submitted that in view ofsection 35 of the evidence act, unless author comes in witness box, entries cannot be relied. in the instant case, authors were not produced.9. learned counsel for the respondent-caveator submitted that tribunal has based its case on the basis of records produced by the election petitioner and has also considered the evidence of the petitioner. the petitioner has failed to discharge his burden in rebuttal. ordinarily, parents are the best persons to speak about the date of birth of their kid. no records were produced by the petitioner. the election petitioner has produced a number of documents of the official record and in view of section 78 of the evidence act, the documents having been proved from the legal custody, there was a presumption under section 79 of the evidence act. the former sarpanch, uma devi in her statement has stated that youngest child of the petitioner is 2-1/2 years. in cross-examination, her statement has not even been questioned. thus, election petitioner's burden was discharged and the petitioner failed to rebut the evidence produced by the election petitioner.10. the respondent has further contested that election tribunal's judgment is final. no appeal has been conceived by the legislature. in extra-ordinary jurisdiction of this court, it would not be possible to go into niceties of the evidence. a writ court is not a court of fact. it acts on its supervisory jurisdiction. no case for interference in supervisory jurisdiction of this court has been made out because judgment turns out on appreciation of evidence. the election petitioner has produced a large number of documents to substantiate his case and the petitioner has ignored to substantiate his case by producing such evidence which would have been sufficient enough to nullify the effect of the evidence produced by the election petitioner.11. i have considered the rival submissions and have perused the record.12. the trial of an election dispute in rajasthan panchayati raj (election) rules, 1994 is to the extent that rules of procedure are to be determined by the election tribunal itself and the tribunal is to record evidence in the manner in which it deems fit. the tribunal has taken all the evidence produced by the petitioner and the respondent. the appreciation of evidence has been made as the court of fact, should have done. in this background, unless findings of the election tribunal are seen to be based on no evidence or are on extraneous considerations, no interference can be made in writ jurisdiction. the legislature in its own wisdom has not provided any interference by superior court in the judgment of the tribunal. the absence of providance of appeal in statute book is clear manifestation of the intention of the legislature.13. in the instant case, the election petitioner has produced documentary evidence. the documents produced are government records. unless contrary is established, correctness of these documents is a fact which is presumed under section 79 of the evidence act. the ration card proved by former sarpanch uma devi and her knowledge about the age of the youngest child of the petitioner are the facts which can be in the personal knowledge of this witness, in cross-examination of this witness, these facts have not been questioned by the petitioner. the statement of this witness has been sought to be disbelieved only on the ground of political rilvary. another witness a.w. 7 baldev singh has also spoken about preparation of ration card. this witness has also been sought to be discredited on the strength of the allegation that he is a political rival of the petitioner. the documents proved by these witnesses are the documents relating to ration card. the ration card was within the personal possession of the petitioner. he could have produced the ration card or any other documentary evidence showing that stand taken by these witnesses is not in conformity with the facts existing. having failed to produce the documents in his possession, the petitioner has taken a risk of making available circumstance, by virtue of which, the tribunal could draw adverse inference and in fact the tribunal has drawn adverse inference against the petitioner. in terms of the rule 85 of the rules of 1996, the election tribunal is in the nature of summary proceedings where election tribunal isto receive so much evidence as it considers necessary. this is not the case of the petitioner that he was not permitted to lead documentary evidence. in absence of any rebuttal by documents, the facts proved by p.w. 2 uma devi and p.w. 7 baldev singh have been held by election tribunal to be proved.14. to discard the evidence of the aforesaid witnesses, this court is required to re-appreciate their evidence. firstly, writ court is not a court of fact to go for re-appreciation of evidence. secondly, there is no reason as to why the re- appreciation should be made. uma devi is a former sarpanch. she is in public field. she says about the age of the child of the petitioner to be 2-1/2 years and in cross-examination the petitioner does not choose to challenge her statement. if in this background, the election tribunal has believed the testimony of this witnesses, then it cannot be said that any illegality has been committed in relying this witnesses.15. if testimony of the two witnesses a.w. 2 uma devi and a.w. 7 baldev singhis held to be rightly believed, then irresistible conclusion is that youngest child wasborned to the petitioner within 2-1/2 years of the examination of a.w. 2 uma devi. thatmakes the birth of the child after the appointed date. the petitioner having fivechildren is clearly within the ambit of the disqualification provided. this renders theposition of the petitioner vulnerable to disqualification contemplated in the rules.once, the disqualification is incurred by the petitioner, the result is foregone and theelection of the petitioner has to be set aside, as has rightly been set aside by theelection tribunal. 16. the argument of the learned counsel for the petitioner about the non-production of the authors of the documents looses relevance in the background that the testimony of a.w. 2 uma devi alone is sufficient to uphold the validity of the decision of the election tribunal. the cases relied upon by the learned counsel for the petitioner are not of any assistance to the petitioner. in this background, it is felt that there is proper appreciation of evidence by the election tribunal and it has arrived at one possible conclusion.17. no interference is called for. the writ petition having no force is dismissed.