Geeta @APPELLANT@Hash Leela

Heard learned counsel for the parties on the aspect of admission and on stay application. Perused the material available on record as well as the

impugned judgment dated 09.07.2018 passed by the Election Tribunal in Election Petition No.43/2015 whereby the petitioner’s election on the post

of Sarpanch Gram Panchayat Nokha Chandawta was set aside.

Shri Choudhary, representing the petitioner submits that the Election Tribunal committed grave error in facts as well as in law while accepting the

election petition and setting aside the election of the petitioner on the premise that she had not qualified the 8th standard examination and that the

Marksheet as well as Transfer Certificate (‘TC’) filed by the petitioner alongwith nomination papers were forged and fabricated.

Shri Choudhary drew the court’s attention to the evidence of the election-petitioner/respondent and urged that she did not even file the

Marksheet and Transfer Certificate alongwith the election petition and rather, the photostat copies of these documents submitted by the Returned

Candidate/petitioner (respondent in the Election Petition) alongwith her reply were exhibited by the election-petitioner in her evidence. He further

submits that admittedly, no witness from Shri Maharshi Dadhichi Adarsh School, Asop, Jodhpur from where the Transfer Certificate and Marksheet

were issued, was examined by the electionpetitioner to establish even by a semblance of evidence that the documents were forged/or that the

petitioner being the Returned Candidate had not studied in that School. He further submits that the question of drawing adverse inference by taking

recourse to Section 106 of Indian Evidence Act cannot arise in this case because the election petitioner and even the Tribunal suo moto had ample

opportunity to summon the Principal/Headmaster of the concerned school with the original record so as to lead evidence indespensably essential to

establish that school documents in question were not genuine. He further submits that while exhibiting the TC (Exhibit-13) and marksheet (Exhibit-

14) in her examination-in-chief, the election petitioner did not even utter a single word that these documents were forged. On these grounds, Shri

Choudhary urges that the judgment dated 09.07.2018, which is assailed by the petitioner in this writ petition, passed by learned Civil Judge (S.D.)

Merta-cum-Election Tribunal, District Nagaur in Election Petition No.43/2015, whereby the petitioner’s election on the post of Sarpanch Gram

Panchayat Nokha Chandawata was set aside, is perverse, arbitrary & illegal and suffers from error apparent on the face of the record and hence the

same deserves to be set aside.

Per contra, Shri Bharat Devasi, Advocate appearing for the respondent election-petitioner vehemently opposed the submissions advanced by the

learned counsel for the petitioner and cited numerous judgments most of which, this Court finds totally irrelevant to the controversy in hand. Shri

Devasi fervently relied upon the judgment renderd by the Hon’ble Supreme Court in the case of Sarbananda Sonowal Vs Union of India, reported

in (2005) 5 Supreme Court Cases 665 and urged that the election petitioner was only required to prove her case by pre-pondrance of probabilities

and having done so, the onus to disprove the fact regarding the documents not being genuine was rightly shifted by the Tribunal on to the petitioner.Â

He urged that as the petitioner did not appear in the witness box to discharge this reverse burden, the Tribunal rightly drew adverse inference and set

aside her election in an absolutely just manner. He thus, craves dismissal of the writ petition as well as the stay application on this ground.

Following pertinent queries were put to Shri Devasi by this Court, which he replied as below:-

Q.1. On Whom lay the initial burden to prove that the documents in question were forged?

Ans. The Election Petitioner.

Q.2 Whether the election petitioner exhibited the original or certified copies of the questioned Marksheet and Transfer Certificate claimed to have

been issued in favour of the writ petitioner (Returned Candidate) ?

Ans. No

Q.3. Whether any witness from the school concerned or the Education Department was summoned to prove the genuineness or otherwise of the

questioned Marksheet or the Transfer Certificate submitted by the Returned Candidate (petitioner herein) alongwith her nomination papers.

Ans. No.

Q.4 Whether the election petitioner made a pertinent statement on oath that the Transfer Certificate (Exhibit-13) & Marksheet (Exhibit-14) were

forged?

Ans. No.

It has been held at Para 29 of the Hon’ble Supreme Court’s judgment in the case of Sarbananda Sonowal (supra) which was heavily relied

upon by learned counsel Shri Devasi, that Section 106 of Indian Evidence Act is engrafted to meet certain exceptional cases in which, not only it

would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the

exclusive knowledge of the accused and which he could prove without difficulty or inconvenience.

Manifestly, the Evidence Act and CPC, the procedural laws governing the conduct of the election petitions provide a full proof & thorough mechanism

for leading documentary evidence and more particularly regarding the Marksheet and Transfer Certificate issued from a Government School which

fall within the category of public documents. No special or extra efforts are required for proving such documents and this can easily be done by simply

summoning Principal/Headmaster of the concerned school with the original record so as to test the genuineness or otherwise of the questioned

documents. If the documents were not issued by the concerned School, manifestly the school officials would testify to this effect and thereby the

petitioner’s claim regarding the documents having been issued from the said school would be demolished thereby, concluding the issue framed by

the Tribunal in this behalf against her.

This Court is of the opinion that even if the election petitioner inadvertently or otherwise, failed to make any prayer for summoning the school official

with the relevant record, the Tribunal should have been vigilant enough and could have summoned the original documents with the concerned

witness from the Government School and the issue would have been decided beyond all manner of doubt and in such a situation, the Tribunal would

not have been required to record sheer conjectures and surmises based upon absolutely unwarranted theory of adverse inference. By no stretch of

imagination, is this Court be satisfied with the approach of the Tribunal in taking aid of Section 106 of Evidence Act and drawing adverse inference

against the returned candidate without the allegations having been established by the election petitioner even by prepondrance of probability.

As an upshot of the above discussion, this Court is of the firm opinion that writ petitioner (Returned Candidate) has a strong prima facie case in her

favour for assailing validity of impugned judgment dated 09.07.2018 passed by learned Civil Judge (S.D.) Merta-cum-Election Tribunal, District

Nagaur in Election Petition No.43/2015 whereby her election on the post of Sarpanch Gram Panchayat Nokha Chandawata was set aside. The matter

is fit for admission.

Admit. Issue notice.

Learned Counsel Shri Devasi waives service on behalf of the respondent Smt. Leela. Thus, service is complete.

Heard on the stay application.

Having regard to the overall facts and circumstances of the case and the discussion made hereinabove, it is directed that effect and operation of the

impugned judgment dated 09.07.2018 passed by learned Civil Judge (S.D.) Merta District Nagaur in Election Petition No.43/2015Â shall remain

stayed till disposal of the instant writ petition. The stay application is disposed of.