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Judgment
Under challenge is the judgment dated 25.10.2017 passed by Senior Civil Judge, Tijara, District Alwar by which the election petition filed by the election petitioner (hereinafter "the EP") against the returned candidate (hereinafter "the RC") has been allowed and the election of RC as Sarpanch of Gram Panchayat Mundana, Tehsil Tijara, District Alwar, has been set-aside.
The facts of the case are that election for the post of Sarpanch of Gram Panchayat, Mundana, Tehsil Tijara, District Alwar were held on 18.1.2015. The RC was declared as elected. In the following election petition by the EP it was alleged that the RC despite her ineligibility to contest the election to the post of Sarpanch, for reason of her not having the requisite minimum educational qualification of Class VIII pass from a recognized school mandated under Section 19(t) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter ''the Act of 1994''), did so on a false assertion of having been issued a Transfer Certificate following passing Class VIII from the Vivekanand Sr. Secondary School, Kukanwali, Nagaur (hereinafter "the school"), whereas she was illiterate.
Objections on the count before the returning officer (RO) were wrongly overlooked. It was submitted that on enquiries from the Vivekanand Senior Secondary School wherefrom the RC claimed to have passed Class-VIII with S.R. No.672 on 16.05.1997 after being alleged admitted on 02.07.1996, information was obtained from the Secretary, who stated that the T.C. to the RC had not been issued by their School. The Secretary also so stated in his letter dated 12.02.2015. It was submitted that RC claimed her eligibility on the basis of the TC dated 6.7.1997 purportedly issued by Vivekanand Sr.
Secondary School, Kukanwali on having allegedly passed Class VIII on 16.5.1997, but the school only commenced effective 1.7.1999. Recognition to even run Upper Primary and Secondary classes in the said school was given effective
1.7.2000. Therefore, no question arose of admitting the RC in Class VIII of the said school on 2.7.1996 or her subsequent passing or being issued TC dated 6.7.1997 recording her having passed Class VIII in Academic Year 1996-1997. A letter to this effect has been written to the Sub Divisional Officer, Nawa, District Nagaur by the school Management.
Thus, if the school was recognised on 1.7.1999, the RC could not have been given admission in the school on 2.7.1996, as claimed. It was prayed that on that count RC's election be set aside.
The RC filed reply of denial and claimed that she passed Class VIII from the school and her transfer certificate issued by the school was neither forged nor fabricated. It was submitted that no objection as to her ineligibility had been filed before the returning officer. It was submitted that the School was running prior to 2.7.1996 and did not commence 1.7.1999, as alleged. Dismissal of the election petition was sought.
On pleading of the contesting parties, three issues were struck by the trial court. Subsequently additional issue no.2A was also framed by the trial court.
The EP in support of the election petition aside of herself as AW-1, examined Prashant as AW-2, Dev Singh as AW-3, Munna Ram as AW-4. The RC on her part in defence examined herself as NAW-1, Ajeet as NAW-2, Jaswant as NAW-3, Om Prakash as NAW-4, Sube Singh as NAW-5, Rishipal Singh as NAW-6, Munesh as NAW-7, and Ravi Kumar Sinha as NAW-8.
In her cross-examination, the RC could not disclose as to in which year she was admitted in Class VIII and when she passed therefrom. When was asked to read Part A to B of
Ex. A/1, TC Ex-2, date of birth written on Ex.-2 (TC), roll no. written on Ex.A/1 and asked where the name had been written in Ex.-A/1, the RC showed her inability to read the same and respond. When was asked how many letters are in the English Alphabet and the letters in her written name, she again showed her inability indicating her illiteracy.
During the trial, without amending the reply to the election petition, by an application the RC claimed that in any event she had passed Class X from the Board of Secondary Education, Madhya Bharat, Gwalior which was a qualification higher than the statutorily prescribed Class VIII and hence she was eligible to contest election on the post of Sarpanch and hold the post on having been declared elected. Reliance was sought to be placed on a certificate indicating the RC having passed class X as purportedly issued by the Board of Secondary Education, Madhya Bharat, Gwalior. The EP in her objection to the new ground set up in defence by way of a miscellaneous application beyond the pleadings submitted that neither the said certificate was submitted by the RC alongwith her nomination form nor defence in this regard was taken by her in the reply. She could not therefore be allowed to avail the said, even otherwise false defence, in the trial.
From the inability of the RC to read the documents, it was clear that the documents submitted by RC of having passed Class X from the Board of Secondary Education, Madhya Bharat, Gwalior were also fabricated.
The trial court on appreciation of the admissible evidence with reference to the pleadings of the parties concluded that the TC of the RC having passed Class-VIII from the Vivekanand Sr. Secondary School, Kukanwali submitted alongwith her nomination form before the Returning Officer as proof of her requisite statutory educational qualification of Class VIII pass in 1996-97 was not reliable particularly for reason of the evidence on record that the School was established only on 1.7.1999 and recognition for upper Primary and Secondary classes granted on 1.7.2000 in view of her inability to read anything from documents on record pertaining to her alleged educational qualification at the time of her cross-examination. It held that the defence of the RC having passed Class X from Board of Secondary Education, Madhya Bharat, Gwalior was not taken in the reply to the election petition, nor was a document submitted before the returning officer and hence could not be considered in the challenge to her election and thus was of no
avail. The RC's election was therefore set aside.
Mr.R.N. Mathur, Senior Advocate appearing with Shovit Jhajharia for the RC submitted that the finding of the trial court, holding that the document evidencing the passing of class VIII by the RC was unreliable, is wholly perverse. But more seriously it was submitted that in any event the RC is X class pass from the Board of Secondary Education, Madhya Bharat, Gwalior as evident from mark-sheet/ certificate filed with a miscellaneous application albeit not taken as a ground
in the reply nor exhibited. That was a qualification higher than the statutorily requisite of class VIII pass.
Mr.R.N. Mathur drew the attention of the court towards the order dated 18.8.2017 passed by this court in S.B. Civil Writ Petition No.11315/2017 filed by the RC, which was dismissed as withdrawn with liberty to agitate the issue of filing additional documents during the trial of the election petition before the trial court. Mr.R.N. Mathur submitted that pursuant to the order dated 18.8.2017, the RC filed an application under Section 151 CPC read with Rule 85 of the Rajasthan Panchayati Raj Rules, 1994 before the trial court for summoning the then Principal of National Public Academy School, Kota, from where the RC wrote the Class-X examination conducted by the Board of Secondary Education, Madhya Bharat, Gwalior. That application was allowed by the trial court vide order dated 5.9.2017 and the RC was directed to keep present the Principal of National Public Academy School, Kota on the next date of hearing and to file his affidavit in defence. The said principal Mr. Ravi Kumar Sinha appeared in as NAW-8 and admitted that RC appeared in the high school examination relating to the Board of Secondary Education, Madhya Bharat, Gwalior from their institution in the year 2009 (Ex.-A/2) and passed the same. However, the trial court utterly failed to consider this aspect of the matter and on the basis of surmises and conjectures passed the impugned judgment. The trial court failed to exercise its jurisdiction in not considering the said document. It was submitted that the evidence beneficial to the RC was thus casually and unlawfully sidetracked by the trial court after permitting it on record with the miscellaneous application without legal any justification. In support of his contentions,
Mr. R.N. Mathur placed reliance on the judgment of the Apex Court in the case of Ram Sukh Versus Dinesh Agarwal reported in 2009 (10) SCC 541.
Mr.Rahul Tiwari, Advocate appearing for the EP submitted that the impugned judgment passed by the trial court is founded upon appreciation of admissible evidence on record--to the exclusion of inadmissible evidence de-hors the pleadings in the reply to the election petition. It was submitted that the RC's TC of Class VIII from the school stated to be issued on 6.7.1999 was palpably a false document because the school was only granted recognition subsequently w.e.f. 1.7.2000 as was proved from the evidence on record. The date of admission of the RC in the said school claimed to 2.7.1996 was false because the said school commenced w.e.f. 1.7.1999 which was verified by letter of the Secretary of the School vide his Certificate dated 12.2.2015 (Ex.-7) and is also quite evident from the letter dated 12.2.2015 written by the Principal of Vivekanand Sr.
Secondary School, Kukanwali to the Sub Divisional Officer, Nawan, Nagaur (Ex.-8) and the office order dated 9.6.1999 issued by District Education Officer (Elementary Education), Nagaur (Ex.-9/A1). Mr.Rahul Tiwari then drew the court's attention to the RC's cross examination where she showed her inability to read over her T.C. (Ex.-2) and even the date of birth mentioned therein. Further, the RC was unable to read the words written in Hindi on Ex.-A/1 from P to Q nor she could read the words written in English on Ex.-A/1.
Mr.Rahul Tiwari further submitted that against the clinching evidence laid by the EP in support of the election petition, the defence evidence of the RC was patently worthless, of little probative worth and inspired no confidence. Reliance by the RC on her purportedly having passed Class X from the Board of Secondary Education, Madhya Bharat, Gwalior was of no consequence both for the reason that the plea was not taken in the reply to the election petition nor was such a certificate submitted before the Returning Officer at the time of submission of nomination form by the RC. Mr.Rahul Tiwari submitted that no defence to eligibility being questioned can be taken except on documents filed before the returning officer with the nomination form as the Court has to see whether on documents filed with the nomination form by a candidate, his nomination was properly accepted or improperly accepted. And, Mr. Rahul Tiwari further submitted that it can only be on the basis of pleadings of the parties, that issues can be and were framed by the trial court and put to trial. In support of his contentions, he has placed reliance on the judgment of the Supreme Court in the case of Kalyan
Singh Chouhan Versus CP Joshi reported in (2011) 11 SCC 786, wherein para 28 it was held:
"The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led, that is just to be ignored as the same cannot be taken into consideration."
Mr. Rahul Tiwari, further submitted that Board of Secondary Education, Madhya Bharat, Gwalior, from where the RC claimed to have passed her Matriculation examination, was not recognized. And rather the Government of India had written to the Government of Madhya Pradesh to register an FIR against the Board for falsely claiming recognition from the Ministry of Human Resources and Development, Government of India, on the basis of a forged document and thereupon an FIR under Sections 420, 467 IPC had been lodged against the Management of the Board. During the course of investigation, thereon several forged documents had been recovered from the office of the Board and that the Director of the Board was also arrested.
Heard. Considered.
Under the Evidence Act, 1872 "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." A three judgment bench of the Apex Court in Chhedi Ram Vs. Jhilmit Ram [(1984)2 SCC 281] has therefore reiterated that under the Indian Evidence Act, a fact is said to be proved when after considering the issue before it i.e. the evidence and also the circumstances, the court either believes fact to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists, and having regard to the facts and circumstances of a case, the reasonable probability is all one way. It was held that in such a scenario the court must not boggle at the necessary conclusion, and instead lay down an impossible standard of proof and hold a fact as not proved for lack of mathematical precision. The above enunciation applies fully to the instant
case where the issue before the trial court was not one of corrupt practice at an election where proof beyond reasonable doubt is required, but one whether the RC had the requisite eligibility to contest the election to the post of Sarpanch, where standard of proof required was only a preponderance of probability.
The trial court relying on the basis of oral as well as documentary evidences, discussed above, came to the conclusion that RC's Transfer Certificate (Ex.2) was wholly unreliable. The judgment of the trial court is founded upon the evidence admissible in law and appreciation thereof on the standard of preponderance of probabilities. It is well settled that this court in the exercise of its jurisdiction under Article 226 of the Constitution of India or for that matter Article 227 thereof cannot reweigh or re-appreciate the evidence before the trial court. The court's jurisdiction is limited only to addressing situations of perversity, patent illegality and error of jurisdiction in a judgment impugned leading to manifest injustice. None of the aforesaid grounds obtain in the present case. The contention of Mr. R.N. Mathur,
Sr. Counsel in regard to the genuineness of TC (Ex.2) in the context of evidence showing that Vivekanand Sr. Secondary School, Kukanwali commenced functioning w.e.f. 1.7.1999 and was recognized from 1.7.2000 much after the RC claimed to have passed Class-VII therefrom as per the purported TC dated 6.7.1997 is of no avail. For one, Munna Ram, Secretary of the school in issue was examined as PW-4. In his chief examination, he categorically stated that Ex.-2 TC was not issued by their school. He further mentioned that the said school was running w.e.f. 1.7.1999 and not prior thereto. It was further stated by him that at S.R. No. 672 in the School records, name of one Sanjay Kumar was recorded not of the RC as claimed and referred to in the purported TC evidencing the RC passing class-VIII.
I do not find any force in Mr. R.N. Mathur's contention that the finding of the trial court on the RC's TC dated 6.7.1997 being an unreliable document is perverse.
Perversity is a conclusion which no prudent man can arrive at on the evidence on record. This is not so in the case at hand.
Contrarily there was, as recorded above, more than ample
evidence before the trial court to hold that Ex.2 TC of class VIII evidencing passing of the said class by the RC was not genuine.
Nor is the impugned judgment vitiated for non consideration of any legally admissible evidence laid by the
RC. A perusal of the trial court's judgment shows that all admissible evidence including of the RC has been considered threadbare. Only that beyond the pleadings--and which was not also exhibited but merely filed with a miscellaneous application i.e. of class X pass from Board of Secondary Education, Madhya Bharat, Gwalior was jettisoned and rightly
so. I am also of the considered view that the questions to the RC in her cross examination were not so much a test of her knowledge and intellectual ability but a method to subject her to the sure fire test of cross examination to ascertain the truth of her assertion that she had passed class VIII and genuineness of the documents relied upon. And on that, as evident from the discussion here above, the RC collapsed as did her assertion of having passed class VIII.
I am of the considered view that in the facts of the case evidence having been been laid before the trial court and it coming to the conclusion it did on the appreciation thereof, no interference by this court in this petition invoking the supervisory jurisdiction of this Court is warranted. The conclusions/ findings of the trial court on the appreciation of evidence before it laid by the contesting parties are eminently sustainable. The findings of fact by the trial court are lawful and beyond reproach. No illegality or violation of any statutory provision to the satisfaction of this court has been pointed out by counsel for the RC. The conclusions/ finding of the trial court on the RC class VIII transfer certificate not being authentic are wholly sustainable on a reasonable if not the only view of the evidence on record.
The upshot of the above discussion is that the impugned judgment dated 25-10-2017 passed by the trial court setting aside the election of the RC as Sarpanch of Grant Panchayat Mundana, Tehsil Tijara, District Alwar is not even remotely vitiated by any illegality going to the root of the court's jurisdiction or entailing a jurisdictional error. The RC's election for the post of Sarpanch has rightly been set aside by the trial court under the impugned judgment.
There is no force in the petition. It is dismissed.