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IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
ALOK SHARMA, J.
Sanjay Singh - Appellant
Vs.
Mukesh Singh Chouhan - Respondent
S.B. Civil Writ Petition No. 16163 of 2016
Decided On : 31-07-2017
Rajasthan Panchayati Raj Act, 1994 – Section 19 43 – Rajasthan Panchayati Raj (Election) Rules, 1994 – Rule 80 – Evidence Act, 1872 – Section 35 65 74 76 77 79 – Registration of Births and Deaths Act, 1969 – Section 10 15 16 17 – Disqualification From Election – This petition has been filed against the judgment passed by the Senior Civil Judge, where under the election petition filed by the respondent-election petitioner (the EP) challenging the election of the petitioner-returned candidate (the RC) was allowed – The election of the RC as Sarpanch of village Panchayat was set aside – The petitioner submitted that the finding of the trial court with regard to RC having fathered a third son, on 21-10-2007 is wholly perverse and vitiated by the failure of the trial court to reckon for the evidence to the contrary produced by the RC before it – He submitted that in any event the Yogya Dampati Vivran Register (Ex.19) purportedly drawn by employees of Medical Health and Family Welfare department reflecting three children having been born to the RC were mere photo copies which were not admissible in evidence before the trial court – Held, In the instant case it is also relevant to note that Ex.17 (Yogya Dampati Tracking Register), Ex.19 (Yogya Dampati Vivran Register), Ex.31 (Yogya Dampati Register) being photo copies of entries relating to the RC were obtained by the EP under the Right to Information Act, were endorsed by the jurisdictional Medical officers and when submitted in evidence before the trial court were not objected to, but marked as exhibits – Court is of the considered view that no objection as to the admissibility of these documents for reason of being only photocopies and not certified copies can be raised at this stage – These documents are admissible under Section 35 of the Evidence Act, 1872 – Further, this court in the case of Smt. Ummed Kanwar v. Prabhu Singh [2012(4) WLC 14] has held that standard of proof required in an election petition founded on ineligibility of RC is not to be proved beyond reasonable doubt – The burden on the EP is to prove her case on preponderance of probability – The evidence laid should be capable of leading to a reasonable inference that the fact in issue i.e. of the ineligibility of RC has been proved – The standard of proof required in the underlying election petition laid by the EP alleging that the RC was not eligible to contest the election to the post of Sarpanch in view of three children all born subsequent to 27-11-1995 was preponderance of probability, Court is of the considered view that there was adequate evidence of probative worth on record before the trial court to hold in favour of the EP and against the RC – Not the least the birth certificate dated 10-2-2015 (Ex.14) regarding on 21-10-2007 to R.Cs wife as also the extracts of the Yogya Dampati Register (Ex.19) and Yogya Dampati Tracking Register (Ex.17) as maintained by the concerned department in the regular course of their work and discharge of duties – There was clearly adequate proof before the trial court that 3rd child born on 21-10-2007 and that the RC and his wife had three children – This rendered the RC ineligible to contest the election for the post of Sarpanch under Section 19(l) of the Act of 1994 – In the circumstances, Court is of the considered view that nothing perverse or illegal can be attributed to the findings of the trial court that the RC was ineligible to contest the election to the post of Sarpanch of village when it was held on 18-1-2015 – Consequently, Court find no force in the petition – Petition Dismissed
Alok Sharma, J.
This petition has been filed against the judgment dated 26-10-2016 passed by the Senior Civil Judge Laxmangarh, District Alwar (Election Tribunal), where under the election petition (38/2015) filed by the respondent-election petitioner (hereinafter the EP') challenging the election of the petitioner-returned candidate (hereinafter 'the RC') was allowed. The election of the RC as Sarpanch of village Panchayat Tasai, Panchayat Samiti Kathumar, District Alwar was set aside.
2. Election of the RC to the post of Sarpanch of village Panchayat Tasai, Panchayat Samiti Kathumar, District Alwar was called in question under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994') read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter 'the Rules of 1994') by the EP inter alia alleging that the RC had sired a third child on 21-10-2007 after the cut off date of 27-11-1995 rendering him ineligible to contest the election to the post of Sarpanch held in January, 2015 under Section 19(l) of the Act of 1994. It was submitted that the RC had only disclosed two children, Aman born on 7-4-2004 and Abhay born on 15-4-2006, in his nomination form. The fact of the third child was suppressed by him to circumvent ineligibility. The R.C's educational qualification to contest the election was also questioned. It was prayed that the election of the RC be set aside and the EP with the second highest number of votes at the election be declared elected as Sarpanch.
3. On notice on the election petition, the RC filed a reply of denial and asserted that he was not disqualified as alleged. It was alleged that the certificate with regard to third child being born to him on 21-10-2007 relied upon by the EP was fraudulently procured with the desire of undoing his election. It was asserted that RC had the requisite educational qualification of class VIII pass to contest the election on the post of Sarpanch.
Based on the pleadings, the Tribunal framed following issues:-
1 & vk;k izkFkhZ fnuakd 18-01-2015 dks xzke iapk;r rlbZ iapk;r lfefr dBwej esa vizkFkhZ la0 1 ljiap in ds fy, fuokZfpr ds pquko dks jn djok dj rFkk Lo;a dks fot;h ?kksf"kr djok ikus dk vf/kdkjh gS\ izkFkhZ 2 vk;k izkFkhZ }kjk pquko ;kfpdk izLrqr djus ls iwoZ lsD'ku 80 jkt0 iapk;rh jkt vf/k0 ds rgr uksfVl ugha fn;s tkus ds dkj.k pquko ;kfpdk dkfcys [kkfjt ;ksX; gS\ vizkFkhZ 3 & vk;k izkFkhZ }kjk izLrqr pquko ;kfpdk QthZ nLrkost vadrkfydk] tUe izek.k i= ds vk/kkj ij izLrqr fd;s tkus ds dkj.k ;kfpdk [kkfjt ;ksX; gS\ vizkFkhZ la0 1 4 & vuqrks"k\
4. In support of his case the EP examined himself as Aw-1 and Satyendra Singh A2-3 and exhibited 33 documents. While the RC examined himself Naw-1, Mukesh Singh Naw-2 and Birbal NAw-3 and exhibited 14 documents.
5. The trial court has from the evidence before it more particularly Ex.15, 19, 27 and 31 admissible under Section 35 of the Evidence Act, 1872 and Ex.14 Birth certificate of Krishna born on 21-10-2007 with father Sanjay and mother Meena admissible as public document under section 17(2) of the Registration of Births and Deaths Act, 1969 (hereinafter 'the Act of 1969') concluded that aside of two admitted and disclosed children of Sanjay Singh, Aman born on 7-4-2004 and Abhay born on 15-4-2006, the RC had also fathered a third son Krishna born on 21-10-2007 at Zanana Hospital Alwar. Defence evidence of the RC in the form of ration card, survey report and certificates from the private schools was found of little probative worth against the contra overwhelming evidence. The trial court thus found the RC ineligible to contest the election to the post of Sarpanch of village Tasai, Panchayat Samiti Kathumar, District Alwar in terms of Section 19(l) of the Act of 1994 and he yet having contested and won it, set it aside. Hence this petition.
6. Mr. Kamlakar Sharma, Senior Advocate appearing with Mr. S.S. Hasan for the petitioner submitted that the finding of the trial court with regard to RC hav
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