Devi Lal Dholi vs Moolchand and Others

Pratap Krishna Lohra, J.—Matter comes up on an application of the respondent under Article 226(3) of the Constitution of India for vacationing of ad-interim stay order. With the consent of the rival parties, the matter is heard finally and disposed of finally at this stage. The petitioner has laid this writ petition by invoking the supervisory jurisdiction of this Court to assail the impugned judgment dt. 22nd January, 2013 passed by the District Judge, Chittorgarh (Election Tribunal).

The facts, in brevity, giving rise to this petition are that the first respondent filed an Election Petition under Sec. 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of Rajasthan Panchayati Raj (Election) Rules, 1994 before the learned Tribunal challenging the election of the present petitioner as Sarpanch, Gram Panchayat Samariya, District Chittorgarh. Challenge to the election of the petitioner, Devi Lal Dholi, as Sarpanch, Gram Panchayat Samariya was precisely on two grounds, namely, that he has contested the election of Sarpanch of Gram Panchayat which was reserved for Scheduled Caste candidate by impersonating himself as a member of Scheduled Caste. The other ground of challenge was that on the crucial date of the acceptance of nomination form, the incumbent was having four children and the third and fourth child were born after promulgation of the Act of 1994, and therefore, he has incurred disqualification within the four corners of Section 19(1) of the Act of 1994 to contest the election. The petitioner, who was arrayed as non-petitioner in the said election petition, contested the election petition and submitted his reply denying all the allegations. In his return, the petitioner has specifically pleaded that he belongs to Dholi Caste and the said caste has been declared as Scheduled Caste by the State in the list published by it, and therefore, the allegation of impersonation is absolutely false. Joining issue with the respondent/election petitioner, the petitioner has refuted the allegation that at the time of contesting election he had more than two alive children. The respondent has specifically pleaded that all these allegations are vague and cryptic and no material particulars have been furnished to substantiate these allegations. On behalf of the other respondents also, separate written statement was filed.

The learned Tribunal on basis of the pleadings of the rival parties settled five issues for determination on 8th February, 2011.

After settling the issues, the learned Election Tribunal recorded evidence of the contesting parties. On conclusion of evidence final arguments were heard by the learned Election Tribunal and on appreciation of oral evidence and materials on record, the learned Tribunal vide impugned judgment declared the election of the petitioner as void ab-initio by recording a definite finding that the petitioner is not belonging to the Scheduled Caste, and therefore, he has impersonated while contesting the election of Sarpanch. While considering the other ground of challenge to the election of the petitioner as Sarpanch raised by the respondent-election petitioner, the learned Tribunal has over-ruled the same. In the final verdict besides declaring the election of the petitioner void ab-initio, the learned Tribunal has also issued a direction, whereby the respondent-election petitioner was declared as elected Sarpanch of Gram Panchayat.

Learned counsel for the petitioner, Mr. Shree Kant Verma, has strenuously argued that the burden of proving caste of the petitioner was on the respondent-election petitioner and without appreciating this aspect of the matter, the learned Tribunal has adjudicated this issue against the petitioner.

Reiterating the stand of the petitioner that he belongs to Scheduled Caste as he belongs to Dholi Caste, Mr. Verma has argued that the material, which was available on record on the basis of which the learned Tribunal has recorded its conclusion against the petitioner, is not founded on sound appreciation of evidence, and therefore, the said finding of the learned Tribunal is perverse and requires judicial review by this Court in exercise of supervisory jurisdiction. While challenging the conclusions and directions of the learned Tribunal, whereby the learned Tribunal has declared non-petitioner/election petitioner as elected Sarpanch of Gram Panchayat Samariya, the learned counsel would urge that by issuing this direction, the learned Tribunal has over-stepped its jurisdiction, and therefore, this sort of direction cannot be sustained in the eye of law.

Per contra, Mr. Abhinav Jain, appearing on behalf of the non-petitioner/election petitioner, has argued that the finding of fact recorded by the learned Tribunal on appreciation of evidence and other materials on record calls for no interference in exercise of supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India. Mr. Jain has also urged that supervisory jurisdiction of this Court is to be exercised with great care and circumspection and not for correcting every error of the Subordinate Court or the Tribunal. Stoutly defending the verdict of the learned Tribunal, Mr. Jain has submitted that the initial burden of proof was discharged by the non-petitioner/election petitioner to establish that the petitioner does not belong to Scheduled Caste and after discharging that burden, the burden has automatically shifted on the petitioner to establish that he, in fact, belongs to Scheduled Caste by virtue of Section 103 of the Evidence Act. Mr. Jain has asserted with full vehemence that in order to repudiate the evidence of the respondent/election petitioner, the petitioner has not placed on record any significant material throwing light on the fact that he belongs to Scheduled Caste. Mr. Jain would urge that, in fact, there was no material on record to substantiate the assertion of the petitioner that he is a member of Scheduled Caste. According to the submission of Mr. Jain, the respondent/election petitioner has placed on record umpteen material to prove his case that the petitioner has impersonated and has contested the election as Scheduled Caste candidate whereas, in fact, he was not belonging to Scheduled Caste. Responding to the argument of the learned counsel for the petitioner that the learned Tribunal has over-stepped its jurisdiction in declaring the election petitioner as elected Sarpanch of Gram Panchayat, Mr. Jain has frankly conceded that while issuing such a direction, the learned Tribunal has committed jurisdictional error.

I have heard the learned counsel for the parties and have given my anxious consideration to the arguments advanced at the Bar.

Scanning the impugned judgment and other materials on record, makes it amply clear that no substantial piece of evidence was tendered by the petitioner to prove that he belongs to caste "Dholi", which belongs to Scheduled Caste. The petitioner has, of course, made an abortive attempt to place on record Annex. 1, a certificate issued by the Tehsildar, Bengu District Chittorgarh, wherein it is mentioned that the petitioner belongs to caste Dholi. I am afraid, the said document cannot help the petitioner as the same was not part of the record before the learned Tribunal. It is really strange that when the petitioner was in possession of a very material document throwing light on his caste, why the same has not been produced before the learned Tribunal. The non-production of the said document creates obvious doubt about the genuineness of the document. In fact, the said document was a material document to meet the challenge thrown by the non-petitioner/election petitioner to his election as Sarpanch as Scheduled Caste candidate. That apart, while recording a finding to this effect that the petitioner belongs to Bareth caste and Bareth is not a sub caste of Dholi i.e., Scheduled Caste on the basis of appreciation of evidence and the materials which were placed on record, the learned Tribunal has not committed any error much less an error apparent on the face of record. This is a pure and simple finding of fact recorded by the learned Tribunal which cannot be made subject matter of judicial scrutiny by this Court in exercise of supervisory jurisdiction. The learned Tribunal while coming to the conclusion that the petitioner is Bareth and not Dholi has also taken note of material evidence tendered by the petitioner himself and furthermore the revenue records which were produced by the non-petitioner/election petitioner showing the relevant entries and mentioning of the caste of the petitioner as Bareth. Thus, the learned Tribunal has not committed any jurisdictional error in upsetting the election of the petitioner.

In this view of the matter, I am not inclined to interfere with the impugned judgment so far as it relates to setting aside of election of the petitioner as Sarpanch is concerned and remaining part of the judgment whereby the learned Tribunal has declared the non-petitioner/election petitioner as Sarpanch of Gram Panchayat Samariya cannot be sustained and the same is liable to be set aside. The upshot of the above discussion is that this writ petition is allowed in part. The impugned judgment passed by the learned Tribunal is quashed and set aside to the extent it has declared the non-petitioner/election petitioner as Sarpanch of Gram Panchayat Samariya.

Costs are made easy.