Ramchandra vs The Civil Judge (Senior Division), Shahpura, District Jaipur and Others

Narendra Kumar Jain-I, J.—Heard learned counsel for the parties. This intra Court appeal is directed against impugned order dt. 24.09.2011 passed by the Single Bench, whereby writ petition filed by the petitioner/appellant, challenging the judgment dt. 05.09.2011 passed by the Court of Civil Judge(Senior Division), Shahpura, District Jaipur (hereinafter referred to as ''the Election Tribunal''), setting aside the election of the appellant on the post of Sarpanch, has been dismissed.

Briefly stated the facts of the case are that Respondent No. 2, Surendra Kumar filed an election petition under Rule 80 of Rajasthan Panchayati Raj Election Rules, 1994 against Non-Petitioner No. 1/appellant, Ramchandra, District Election Officer and State Election Commission, Rajasthan, Jaipur in the Court of District and Sessions Judge, Jaipur District, Jaipur on 25.02.2010, which was transferred for disposal to the Election Tribunal.

In the election petition, it was averred that a notification was issued by State of Rajasthan for holding elections in the Village panchayats in all the districts. The election for the post of Sarpanch of Village Panchayat Sothana, Panchayat Samiti Virat Nagar was to be held on 04.02.2010, for which the application/nomination was to be filed on 03.02.2010. The post of Sarpanch in Village Panchayat Sothana was reserved for OBC candidate. As per para 3 of the election petition, seven persons filed their nomination forms including election petitioner, Surendra Kumar and Non-petitioner No. 1, Ramchandra.

It was also averred that certain informations were required to be given, including an information regarding living children of a candidate as on 27.04.1994. Non-petitioner No. 1, Ramchandra gave information of six children, who were born before March, 1994. It was further averred that the dates of birth of children of Non-petitioner No. 1 have not been correctly furnished by him. One child of Non-petitioner No. 1 namely Pukhraj was born on 15.05.1999 and another child of Non-petitioner No. 1, Himmat Singh was born on 18.10.1998. It was stated that both children, Pukhraj and Himmat Singh were studying in National Education Academy in Village Virat Nagar. It was, therefore, averred that information furnished by Non-petitioner No. 1, winning candidate, Ramchandra was not correct and his two children, namely Pukhraj and Himmat Singh were born after 27.04.1994, i.e. after coming into force the Rajasthan Panchayati Raj Act, 1994. It was also averred that due to aforesaid reason, Non-petitioner No. 1 was not eligible to contest the election, therefore, his election was void ab initio and the same may be declared as such and the petitioner, who stood at serial No. 2, may be declared as elected Sarpanch. The other facts were also mentioned in the election petition.

Non-petitioner No. 1, Ramchandra filed his reply to election petition, wherein he denied the contents of election petition, in the manner, as mentioned. He submitted that the names of his children and their dates of birth were mentioned in nomination paper as per family ration card. The details given in ration card were also placed on record. It was also mentioned that no objection was taken at the time of scrutiny of nomination paper. The nomination of Non-petitioner No. 1 was valid and thereafter, election took place, wherein he was declared as elected Sarpanch. The dates of birth of his two children namely Pukhraj and Himmat Singh, given in election petition, are false and the same were denied. It was also mentioned in the reply that Pukhraj and Himmat Singh never took their study in National Education Academy in Village Virat Nagar. The certificates issued by National Education Academy are false and without any basis. The other facts mentioned in the election petition were also denied and it was prayed that there is no merit in the election petition and the same may be dismissed.

Learned Election Tribunal framed two issues, which are reproduced in Para 3 of the judgment of the Election Tribunal. The petitioner examined A.W. 1, Manju Sharma; A.W. 2, Radhacharan; A.W. 3, Suganchand Meena; A.W. 4, Surendra Kumar; A.W. 5, Govindram and also produced documentary evidence. Non-petitioner No. 1 examined N.A.W. 1, Ramchandra Diama; N.A.W. 2, Mahendra Kumar and also produced documentary evidence.

The Election Tribunal, after hearing submissions of parties and examining the record, decided Issue No. 1 in favour of the petitioner and against Non-petitioner No. 1 and consequently, vide judgment dt. 05.09.2011, declared the election of Non-petitioner No. 1, Ramchandra, for the post of Sarpanch, as illegal and void ab initio and further declared the election petitioner, Surendra Kumar as elected Sarpanch of Village Panchayat Sothana. The Election Tribunal also directed that a criminal complaint be filed against Non-petitioner No. 1, Ramchandra under Sec. 193 IPC and against Hariram Jhinjad S/o. Harphool under Secs. 205 and 193 IPC.

Non-petitioner No. 1, Ramchandra, being aggrieved with the judgment dt. 05.09.2011 passed by the Election Tribunal, preferred S.B. Civil Writ Petition No. 13378/2011 before the Single Bench of this Court, which was dismissed by the Single Bench in limine vide order dt. 24.09.2011. Hence, Non-petitioner No. 1, Ramchandra has preferred this special appeal.

Submission of learned counsel for the appellant is that two children of appellant, Ramchandra were born before 27.04.1994 and not after April, 1994, as alleged in the election petition. He has submitted that dates of birth of Pukhraj and Himmat Singh, being 15.05.1999 and 18.10.1998 respectively, were shown in the election petition, on the basis of certificates issued by National Education Academy, Village Virat Nagar, which were false and fabricated. The same was given in connivance of school authorities for getting the election of Ramchandra set aside.

He has submitted that it was specifically mentioned in the reply to election petition that Pukhraj and Himmat Singh never studied in National Education Academy, Village Virat Nagar. Non-petitioner No. 1/appellant, Ramchandra led oral and documentary evidence showing their correct dates of birth prior to April, 1994. Learned counsel for the appellant submitted that this documentary evidence was referred before the Single Bench for consideration and to show that finding recorded by the Election Tribunal is illegal and perverse and the same is based on misreading and wrong appreciation of evidence. The evidence adduced on behalf of the election petitioner has been treated as grossly truthful, whereas the evidence adduced on behalf of Non-petitioner No. 1, Ramchandra, which was more reliable and correct, was not appreciated properly. The finding recorded by the Election Tribunal in respect of Issue No. 1 is based on misreading and wrong appreciation of evidence.

Learned counsel for the appellant further submitted that learned Single Judge, solely on the basis of finding recorded by the Election Tribunal, without examining the same in the context of evidence adduced by the appellant and without considering the said finding recorded by the Election Tribunal in the light of submissions of the appellant, came to a conclusion that it, being a finding of fact, cannot be interfered with, as the Single Bench is not sitting as a Court of appeal against the finding recorded by the Election Tribunal to re-appreciate its finding.

Learned counsel for the appellant submitted that it is correct that finding of fact recorded by a Tribunal is not subject to challenge in writ jurisdiction under Art. 227 of the Constitution of India, provided it is based on proper appreciation of evidence. So far as present case is concerned, the finding recorded by the Election Tribunal in respect of Issue No. 1 was based on misreading of evidence and the same was illegal and perverse, therefore, it was necessary for the Single Bench to examine the same. He also submitted that no statutory appeal is provided against the judgment passed by the Election Tribunal, therefore, when an argument was advanced along with the evidence that finding recorded by the Election Tribunal is based on misreading of evidence and the same is illegal and perverse, then, it should have been considered and discussed by the Single Bench, but neither his submission, nor the evidence of the appellant was referred and discussed by the Single Bench and solely on the basis that finding recorded by the Election Tribunal, being a finding of fact, cannot be interfered ,as the High Court cannot act as appellate Court, the writ petition has been dismissed by the Single Bench. He, therefore, submitted that the order passed by the Single Bench is not correct and liable to be set aside.

Learned counsel for the appellant further submitted that the Election Tribunal further committed a serious illegality in issuing a direction to file a criminal complaint against Ramchandra as well as Hariram Jhinjad under Secs. 193 and 205 IPC. He submitted that finding recorded by the Election Tribunal in this regard is also not correct. A bare perusal of the order passed by the Single Bench, will show that the submission made on behalf of the appellant in this regard was not even taken cognizance, as it was neither referred, discussed nor answered and without any specific finding by the Single Bench in this regard, the finding recorded by the Election Tribunal has been left, as it is, treating it as correct, which was not correct.

Learned counsel for the appellant also submitted that although the judgment passed by the Election Tribunal was not appealable ,but in the facts and circumstances of the present case and the controversy involved in the matter, the record of the Election Tribunal should have been summoned and it was a case, where the writ petition filed by the appellant ought not to have been dismissed in limine by the Single Bench.

Learned counsel for the appellant also submitted that as per Para 3 of the election petition, it was clear that there were seven persons, who filed their nomination forms for contesting the election of Sarpanch for Village Panchayat Sothana, therefore, there was more than two persons, who contested the election of Sarpanch of Village Panchayat Sothana. He has submitted that, when there are more than two candidates, who contested the election, then, even if, the election petition of the election petitioner is allowed, then also, the election petitioner, who stood at Serial No. 2, cannot be declared as elected Sarpanch. He has submitted that it was a pure legal question and even without any further evidence in this regard and only on the basis of pleadings of the parties, the election petitioner could not have been declared as elected. He submitted that order/direction of the Election Tribunal declaring election petitioner, Surendra Kumar as elected Sarpanch is bad in law and the same is also liable to be set aside.

Learned Counsel for the respondents supported the impugned order passed by the Single Bench and submitted that learned Single Judge has rightly dismissed the writ petition of the petitioner in limine, as Issue No. 1 was relating to question of fact and it is settled law that the finding of fact cannot be interfered with by this Court under Art. 227 of the Constitution of India, as this Court cannot act as an appellate Court, therefore, there cannot be any re-appreciation of evidence in writ jurisdiction.

We have considered the submissions of learned counsel for the parties and examined the impugned order passed by the Single Bench as well as judgment passed by the Election Tribunal. We have also examined the original record of the Election Tribunal, which was summoned by this Court.

From the submissions of learned counsel for the parties and record of the Election Tribunal and writ petition, it is clear that main issue for decision in the present case was Issue No. 1. As per submissions of election petitioner, i.e., Respondent No. 2, two children of Non-petitioner No. 1/ appellant namely Pukhraj and Himmat Singh born on 15.05.1999 and 18.10.1998 respectively, i.e. after April, 1994. This submission was based on certificates issued by National Education Academy, Village Virat Nagar, whereas as per submission of Non-petitioner No. 1/appellant, Pukhraj and Himmat Singh never studied in National Education Academy, Village Virat Nagar. Number of submissions have been advanced in this regard by both the parties, but from the impugned order passed by the Single Bench, it is clear that the Single Bench, solely on the basis of finding recorded by the Election Tribunal being finding of fact, did not interfere in it. The finding recorded by the Election Tribunal has not been examined by the Single Bench in the light of submissions of learned counsel for the appellant and evidence available on record. The record of the Election Tribunal was also not summoned and the writ petition has been dismissed by the Single Bench in limine. Looking to the controversy of legal and factual aspect involved in the matter, it was necessary for the Single Bench to examine the finding recorded by the Election Tribunal, may be relating to facts. Whether it was legal and perverse or not, the same was required to be examined in the light of evidence available on record. Since the submission of learned counsel for the appellant, that finding recorded by the Election Tribunal in respect of Issue No. 1 is illegal and perverse, has not been examined by the Single Bench presuming it to be a finding of fact, in these circumstances, we are of the view that the matter requires to be remitted back to the Single Bench for deciding the matter afresh.

We further find that the Election Tribunal directed to file a criminal complaint against Ramchandra and Hariram Jhinjad, but the submission made by the appellant in this regard was not at all considered by the Single Bench and no specific finding has been recorded by the Single Bench, whether it is correct or not. After considering submissions of learned counsel for the parties and in the facts and circumstances of the present case, we are of the view that the matter requires reconsideration by the Single Bench.

Consequently, we allow this appeal and set aside the impugned order passed by the Single Bench and remit the matter to the Single Bench for deciding the writ petition afresh, after hearing both the parties, in accordance with law. Stay application also stands disposed off. Parties are directed to bear their own costs.