2018 Supreme(Raj) 1058

IN THE HIGH COURT OF RAJASTHAN
Sandeep Mehta, J.
Rafika Bano – Appellant
Vs.
Salma Sherani – Respondent
Civil Writ No. 11975 of 2016
Decided On : 05-10-2018

In an election petition, the burden of proof lies on the petitioner to establish the allegations made in the petition. If the petitioner fails to lead evidence to support the allegations, the Tribunal may draw adverse inference against the returned candidate.

Headnote:

ELECTION - PANCHAYAT - EDUCATIONAL QUALIFICATION - FORGED CERTIFICATES - ADVERSE INFERENCE - BURDEN OF PROOF - ELECTION PETITION - SETTING ASIDE OF ELECTION.

Fact of the Case:

The petitioner, Smt. Rafika Bano, was elected as the Sarpanch of Village Sherani Abad in the 2015 elections. The respondent, Smt. Salma Sherani, filed an election petition challenging the petitioner's election on the ground that the educational testimonials/certificates pertaining to standard 8th which was mandatory qualification for contesting the election on the post of Sarpanch, as presented by the petitioner alongwith her nomination papers were fabricated and that the petitioner was disentitled to contest the election as she was not qualified for the post of Sarpanch.

Finding of the Court:

The Election Tribunal, after appreciating the pleadings and evidence led before it by the respondent/election petitioner held both the issues proved. The Tribunal drew adverse inference against the petitioner being the returned Sarpanch as she failed to lead evidence to counter the allegations of the respondent/election petitioner and proceeded to accept the election petition and set aside the petitioner's election as Sarpanch of the Village Sherani Abad, Tehsil Deedwana, District Nagaur by the impugned judgment dated 06.10.2016 which is assailed in this writ petition filed under Article 227 of the Constitution of India.

Issues: 1. Whether the respondent/election petitioner failed to lead an iota of evidence to prove & establish that the educational testimonials/certificates of VIII standard presented by the petitioner along with her nomination form were forged or fabricated in any manner? 2. Whether the concerned witness from the School where the petitioner studied were neither summoned nor examined in evidence and thus, the Tribunal should have concluded that the certificates were never disproved? 3. Whether merely because the date on which the petitioner got admitted in the School was a Sunday that by itself would not make the educational certificates invalid because the date appearing on the certificate, might have been appended owing to some clerical error? 4. Whether no significance can be attached to the fact that the petitioner did not offer any explanation in her written statement regarding the insignificant shortcomings pointed out by the election petitioner in the pleadings of her election petition because the burden to prove the fact alleged is always on the party making the assertion? 5. Whether the Tribunal relied upon inadmissible evidence viz newspaper reports and confessional statement of the petitioner recorded by the police while concluding the issues against the petitioner and thus, the impugned judgment is bad in the eyes of law?

Ratio Decidendi: 1. The burden of proof to establish the issue was totally upon the respondent/election petitioner and no adverse inference could be drawn against the petitioner by her non-appearance as a witness in the proceedings before the Election Tribunal. 2. The specific assertion made by the election petitioner at paras Nos. 3, 4 & 5 of the election petition (quoted infra) was that the Bharat Bal Niketan High Secondary School, Rol of which the returned candidate submitted the 8th Standard certificate got recognized on 27.09.1993 whereas the petitioner claims to have been admitted therein on 12.07.1992 which was a Sunday and thus, there was no possibility of the petitioner/returned candidate having taken admission in any such school on the given date. 3. The petitioner being the defendant in the proceedings failed to even offer any significant denial to the pertinent assertions made in the election petition regarding the documents/educational certificates submitted along with the nomination form for contesting the election on the post of Sarpanch being fabricated. 4. The respondent/election petitioner proved not only by preponderance of probabilities but rather beyond all manner of doubt that the educational certificates i.e., Transfer Certificate (Exhibit-3) and Mark sheet of 8th standard (Exhibit-2) submitted by the petitioner along with her nomination form were fabricated.

Final Decision: The writ petition is dismissed as being devoid of merits.