Smt. Geeta Devi W/o Ajit Singh vs Smt. Seema W/o Prashant

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.