Smt. Rekha Dendor vs Addl. Civil Judge, (Sd) Dungarpur ... on 14 October, 2011

Rajasthan High Court - Jodhpur

CWP No.8390/2011

225 S.B. CIVIL WRIT PETITION NO.8390/2011. Smt.Rekha Dendor

The Additional Civil Judge

(Senior Division), Dungarpur & Ors.

Date of Order :: 14th October 2011.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.S.Chundawat, for the petitioner.

Mr. Rajesh Joshi, for the respondent No.2 (Caveator). <><>

BY THE COURT:

This writ petition is directed against the order dated

25.08.2011 as passed in Election Petition No.1/2010 whereby

the Additional Civil Judge (Senior Division), Dungarpur has

allowed the election petition filed by the respondent No.2

questioning the election of the petitioner to the Office of

Sarpanch, Gram Panchayat, Gada Meratia essentially on the

ground that as on the relevant date of filing the nomination i.e.,

03.02.2010, the petitioner was not qualified to contest the

election for her date of birth being 17.10.1991 and she having

not reached 21 years of age as per the requirements of the

Rajasthan Panchayati Raj Act, 1994.

The petitioner contested the election petition while

asserting that her date of birth was 22.04.1988; and she was

duly qualified to contest the election in question.

After framing of the relevant issues, the parties led their

evidence in which, in oral evidence AW-1 Smt. Jamna, AW-2

Smt.Leela, AW-3 Kushal Singh, AW-4 Shanker, AW-5 Khatu,

AW-6 Kodarlal and AW-7 Smt.Jagdishwari Joshi were CWP No.8390/2011

examined on behalf of the election-petitioner (respondent No.2

herein) whereas NAW-1 Rekha, NAW-2 Rupa, NAW-3 Velji,

NAW-4 Kamla Shanker, NAW-5 Ganga Sahaya Meena and

NAW-6 Punamchand Kalal were examined on behalf of the

present petitioner; and in documentary evidence, the

respondent No.2 produced the copies of the election result as

Ex.1, the school certificate as Ex.2, the school admission

as Ex.4 and of village Mertiya as Ex.5 whereas the present

petitioner produced the copies of the horoscope as Ex.A/1, the

ration card as Ex.A/2, the election voters list as Ex.A/3, the

birth certificate as Ex.A/4, and the school admission form,

again marked as Ex.A/1.

After due appreciation of the evidence on record, the

learned Trial Court found the entries as made in the scholar's

up by the petitioner not worthy of credence; and came to the

conclusion that the petitioner had not completed 21 years of

age as on the relevant date and was not qualified to contest

the election. The learned Trial Court, therefore, proceeded to

accept the election petition and set aside the election of the

petitioner but declined the prayer made by the respondent

No.2 for declaring herself elected. Aggrieved, the petitioner

has filed this writ petition.

The learned counsel for the petitioner has strenuously

argued that the entire consideration of the learned Trial Court CWP No.8390/2011

has been from an altogether wrong angle and the learned Trial

Court has acted illegally in passing the order impugned and in

setting aside the election of the petitioner. The learned

counsel submitted that the Trial Court has proceeded on the

assumption that the election-petitioner had been able to

establish the petitioner's date of birth as '17.10.1991' and for

that matter, the learned Trial Court has referred to a few

aspects related with the so-called weakness of the case of the

present petitioner and on that basis has accepted the case of

the election-petitioner (respondent No.2 herein). The learned

counsel has referred to the decision of this Court in the case of

Smt.Tara Devi Vs. Smt.Sudesh Chaudhary: 1997 (2) RLR 141

and emphasized that the onus was heavy on the election-

petitioner to prove by cogent evidence that the date of birth of

the petitioner was 17.10.1991 and mere production of the

scholar register was not decisive of the matter. According to

the learned counsel, even in relation to the said register (Ex.3),

it has directly come in evidence that the entry regarding the

date of birth of the petitioner was not made at the instance of

the father or anybody else related with the petitioner and

obviously, such an entry was made at the whims and wishes

of the school staff that cannot be considered binding on the

petitioner. The learned counsel further submitted that the

learned Trial Court has not taken into consideration the

evidentiary value of the documents produced by the

petitioner including the birth certificate (Ex.A/4) that has been CWP No.8390/2011

issued in the regular course of administrative functions and

that could not have been discarded. The learned counsel

further submitted that the relevant entries in the electoral roll

have also not been considered and the learned Trial Court has

proceeded rather on its own assumptions.

Per contra, the learned counsel appearing for the

respondent No.2 has duly supported the order impugned and

submitted that with the positive evidence in the form of date of

birth certificate issued by the school (Ex.2), the scholar's

election voter-lists (Ex.4 & Ex.5), the respondent No.2

(election-petitioner) has been able to establish that the correct

date of birth of the petitioner is 17.10.1991; that she was not

21 years of age at the time of the election in question; and that

she was not entitled to contest the election. The learned

counsel further submitted that the present petitioner, apart

from submitting some made-up documents in the form of

horoscope etc., withheld the relevant documents like the mark-

sheets admittedly issued by the school for which, an adverse

inference ought to be drawn against her. It is also submitted

that even from the ration card (Ex.A/2), as produced by the

present petitioner, the learned Trial Court has drawn the

logical deduction that in any case, she had not completed 21

years of age at the time of the election in question. The

learned counsel submitted that when the fact of the petitioner

having taken admission in the school concerned is not in CWP No.8390/2011

dispute, the entries as made in the scholar's register and

other evidence related with the school are enough and cogent

evidence establishing the relevant facts and when such facts

have not been displaced with positive evidence by the

petitioner, the learned Trial Court has not committed any error

in accepting the election petition. The learned counsel has

referred to and relied upon the decision of the Hon'ble

Supreme Court in the case of State of Punjab Vs. Mohinder

Singh: AIR 2005 SC 1868.

After having given a thoughtful consideration to the

submissions made and having examined the material placed

on record, this Court is unable to find any reason to consider

interference in the extraordinary writ jurisdiction in this matter.

The order as passed by the learned Trial Court does not

appear suffering from any illegality; the approach of the

learned Trial Court does not appear contrary to the applicable

principles; and the findings do not appear suffering from any

perversity.

A perusal of the order impugned with reference to the

material on record makes it clear that the learned Trial Court

has entered into the appreciation and analysis of the evidence

in accordance with law; and has precisely assigned the

reasons for accepting the entries as made in the scholar

other facts and factors showing that the petitioner has either

withheld the relevant evidence or has produced such evidence CWP No.8390/2011

that could not be relied upon nor could be taken as sufficient

rebuttal of the evidence adduced by the election-petitioner.

The alleged horoscope(Ex.A/1) has been found to be a made-

up document with the story about its preparation being

unacceptable with reference to the age of the alleged author of

the document as occurring in the statement of the father of the

petitioner. Moreover, the petitioner did not produce the said

author in evidence. Then, it has been noticed that the

petitioner's name was not included in the voters lists of the

year 2009 (Ex.4 and Ex.5). Even the ration card (Ex.A/2),

prima facie, gave out the age of the petitioner below 21 years

on the relevant date. The learned Trial Court has also

assigned cogent reasons for not relying on the birth-certificate

(Ex.A/4) in proof of the date of birth of the petitioner when,

admittedly, the same was got prepared after the election result

and obviously, on the information supplied by or at the

instance of the petitioner. In this regard, the learned Trial

Court has also indicated a significant fact that the petitioner's

father Rupa (NAW-2) had admittedly been a member of the

Panchayat in the past and asserted having given the

information about the petitioner's birth in the Panchayat but no

such record was produced from the Panchayat.

The learned Trial Court has, inter alia, observed as

under:-

"य च क कर क ओर स इस सबध म पतरपर क क सकल

क पवश रज स र व उसक आध र पर र#य र ककय गय नम तरच' पम ण पत क* पसरर ककय गय ह#, * कमश: पदश-3 व पदश-1 क रप म ह# ज नम पतय '1य क नम ददन क 17.10.1991 CWP No.8390/2011

दश य3 गय3 ह# । ह रक प ठश ल पवश फ7म क पश ह# पदश ए-1 क रप म अभ<लख पर आय ह#, लककन उसम नमतरच' अककर नह ह# । इस सबध म गव ह ए.डब@यA-6 क*दरल ल व ए.डब@य-7 गद शर पश हई ह# ।

A ए.डब@यA-7 गद शर बरवक पवश 1995 म प ठश ल क पध न धय पपक '3। उसक क'न नय य लय म हए ह# * इस पक र स ह# लककन पदश ए-1 पवश पत पर पतय'1य क पपर क हसर कर क रप म रप अककर ह# । उक फ म पर रप न अपन हसर कर ह*न स इक र नह ककय ह#, लककन फ म क र3सर क लम म रख क पपर क न म रप व क लम न.6 म पर रप ज स वयकक द र भलख ह# उस3 क द र हसर कर क रप म रप भलख ह#, बकक नय य लय म पतय'1य क ओर स * गव ह रप पश हआ ह#, उसक हसर कर नगन आख स <3 दखन <र स पणरय भ<नन न र आर हK। मK यह इस A

पश पर पवसर र स नह भलखन हAग , कक पवश फ म म ककस पक र क फ क र क गय3 ह# य नह , कयMकक नय य लय द र उक वर क स<3 पवश फ मO स ककस3 क नम तरच' अककर नह ह# और न ह पवद लय अचधक ररयM क अनशस व नमददन क पववरण ह#, लककन ह रक पवश रज स र क पश ह# उसम ककस3 पक र क क छ नह ह# । यह <3 सह ह# कक पवश रज स र म नम ददन क प'क सय ह स भलखन क रथय आय ह#, लककन T

ए.डब@य.7 गद शर न सपष3करण ददय और कह ह# कक, रप न A

नम ददन क ब द म बर य3 '3। मK यह यह <3 भलखन उच र समझर हA कक 1995 अ' र न व स 15 वर पहल गद शर कयM अपन3 म 1 स गलर नम ददन क अककर करग3, यह पतरपक3 क ओर स उ गर नह ककय गय ह# । यह <3 भलखन उच र ह*ग कक उक समय श3मतर गद शर ब मणणय व ड उच प 'भमक पवद लय क पध न धय पपक '3 और पवश रज स र म नम तरच' अककर करन क उसक द तयतव पध न धय पक ह*न क क रण ' । उक दसर व इस पक र ल*क सवक द र अपन पद य करवय क तनवहन म र#य र ककय गय ' , ज सक सह ह*न क अवध रण क नन म ह# । पतय'1 क ओर स ज रह गव ह न अ 1द र म यह A

<3 कहन क पय स ककय गय कक रख पपर रप न म क लडक '3, लककन वह उक ग म म क*ई रख पपर रप न म क शखस3यर क* स बबर नह कर सक हK, ऐस3 जस'तर म रज स र क पपवष3 क* गलर नह म न सकर ।

इसक पवपर र पतय'1य क ओर स नम अकर पदश-ए-1

क रप म पश ककय ह# और उक नम अकर न3लश द र र#य र करन कह ह# । उक न3लश क* पतय'1 क ओर स पश नह ककय गय ह# । पतय'1 न न3लश अधय पक क आय 55 वर ह*न बर य र' यह <3 कह ह# कक, नम क द* म ह ब द पपर न र र ख बर य3 '3। इसक पवपर र रप * एन.ए. डब@यA-2 क रप म पश हआ ह# न न3लश क आय 20-25 वर बर य3। इस गव ह क बय न ददन क 11.08.2010 क* हआ ह# यदद इसस गणन क व र* न3लश न मक वयकक क आय 1988 म अचधकरम 3 वर ह*र3 ह# और उसक द र 1988 म नम अकर अ'व नम पत3 बन न करई स<व नह ह# । इसक अल व यह <3 भलखन उच र ह*ग कक, यह दसर व ल*क दसर व क परर< र म नह आर । ऐस3 जस'तर म म त पदश ड लन स दसर व क* स बबर नह म न सकर । दसर व क र#य र करन व ल अ'व लखक क अ< व म दसर व क* स बबर नह म न सकर और न ह उसम वणणर ककस3 रथय क*। यह दसर व ककस3 <3 रप म प ठश ल क पवश रज स र म वणणर पपवष3 * नम तरच' क ब बर ह#, क* भमथय स बबर नह कर सकर3।

यह <3 भलखन उच र ह*ग कक, सवय रप न अपन बय न म सव3क र ककय कक, वह प यर क ममबर <3 रह ' और उसन CWP No.8390/2011

रख क नम क सA न प यर म द '3, लककन प यर द र सध ररर नम मतय रज स र क क*ई पपवपष पतय'1य क ओर स T

पसरर नह क गई ह# । नम पम ण पत पतय'1य * पदश ए-4 क रप म पश ककय गय वह रहस3लद र क पत कम क 4948 ददन क 09.07.2010 क प लन म र#य र ककय गय ह# । यह <3 भलखन उच र ह*ग कक, नमअकर म रप क तर र बबय ड भलख ह#, ऐस3 जस'तर म यह नम पम ण पत य च क पश करन क पश र र#य र करव य गय ह#, बकक सवय रप क बय न अनस र नम क सA न द द गय3 '3, कफर <3 रज स र क पपवष3 क रप म नह ह*न स रहस3लद र क आदश ककस3 <3 जस'तर म बमक बल प ठश ल पवश रज स र क पपवपष स पAणरय अपवशसन3य ह# ।

यह सह ह# कक, 2009 क प यर मरद र सA 3 म रख क न म ह# व 01.01.2009 क* उसक आय 21 वर ह*न बर कर न म पपवष ककय ह#, लककन यह भलखन उच र ह*ग कक, वर 2009 क पवध नस< मरद र सA 3 रख क प3हर व ससर ल क पदश-4 व 5 क* स कय म पश ककय गय ह# म रख क न म मरद र सA 3 म नह ह# । उक म <3 01.01.2009 क* ह*न व ल आय क* आध र म न ह# र' उक भलस ह फरवर 2009 म र#य र हई ह# , उसम न म नह ह*न ब बर c पतय'1य द र क*ई आपपd नह क '3 ।"

The learned counsel for the petitioner has strenuously

argued that the election petition could not have been accepted

while relying upon the weakness of the evidence of the

petitioner. The submission has its own shortcoming because

the learned Trial Court has not relied solely on the weakness

of the case of the petitioner. The learned Trial Court has taken

a comprehensive view of the matter, has analysed the entire

evidence on record, and has arrived at a specific finding after

relying on the most reliable and cogent evidence in the form of

the entries in the scholar register (Ex.3), made way back in the

year 1995 when there was no question of anybody

intentionally inserting a wrong entry therein qua the petitioner.

In this context, it does appear relevant to notice that the date

of birth of the petitioner was admittedly mentioned on the

mark-sheets issued by the school but the same have been CWP No.8390/2011

withheld by the petitioner. Similarly, the transfer certificate has

also not been produced.

In Smt.Tara Devi's case (supra), while relying on the

decision in Birad Mal Singhvi's case (AIR 1988 SC 1796), the

Hon'ble Division Bench of this Court has noticed the law thus:

"An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded."

In the case of Mohinder Singh (supra), the Hon'ble

Supreme Court has held as under:-

"12. On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32, Clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one's age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause (5).

13. As observed by this Court in Umesh Chandra v.State of Rajasthan (1982 (2) SCC 202), ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made antelitem motam.

14. Therefore, the school records have more probative value than a horoscope........."

CWP No.8390/2011

In application of the principles aforesaid, it is found that

in the present case, the election-petitioner has produced the

relevant documentary evidence and has examined the

relevant person who was incharge of the school register i.e.,

the principal concerned (AW-7 Smt. Jagdishwari Joshi). The

arguments which have been made with reference to her

testimony that all the entries were not made by her or that

father of the petitioner did not give out the date of birth as

mentioned, do not make out a case for interference when the

statement of AW-7 is read as a whole and is appreciated with

reference to the other evidence available on record. It is but

apparent that in the year 1995, the petitioner was indeed

admitted in the Government Primary School, Bamaniyawara.

The principal of the school concerned has pointed out that the

entry regarding date of birth was made on the information

given by guardian. With such primary evidence being available

on record, the onus was on the petitioner, if she wanted to

displace the facts available from such evidence, to prove

otherwise by way of cogent admissible evidence. The present

petitioner has failed to displace the facts established by the

election-petitioner by cogent and convincing evidence; and

then, even the deductions available from the evidence

adduced by the petitioner rather run counter to the case set up

by her. Moreover, the petitioner has withheld the relevant

evidence that ought to be in her in possession like the marks-

sheets issued by the school concerned.

CWP No.8390/2011

In the cumulative effect of the primary evidence led by

the respondent No.2, of the inferences available from the

evidence as adduced by the petitioner, and of adverse

inference against the petitioner for withholding the relevant

evidence, the findings of fact as reached by the learned Trial

Court about the date of birth and about the age of the

petitioner do not appear suffering from any illegality or

perversity.

In an overall analysis, this Court is satisfied that the

learned Trial Court has not committed any jurisdictional error

so as to call for interference in the writ jurisdiction.

Consequently and as a result of the aforesaid, the

petition fails and is, therefore, dismissed.

(DINESH MAHESHWARI), J.