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Rekha Dendor v/s Additional Civil Judge (Senior Division), Dungarpur & Others

    Civil Writ Petition No. 8390 of 2011

    Decided On, 14 October 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE DINESH MAHESHWARI

    For the Appellant: P.S. Chundawat, Advocate. For the Respondents: R2, Rajesh Joshi, Advocate.



Judgment Text

Dinesh Maheshwari, J.

1. This writ petition is directed against the order dated 25.8.2011 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., 3.2.2010, 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.

2. The petitioner contested the election petition while asserting that her date of birth was 22.4.1988; 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 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

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.1, the school certificate as Ex.2, the school admission register as Ex.3, and the voter-lists of village Bamaniyawara 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.

3. After due appreciation of the evidence on record, the learned trial Court found the entries as made in the scholar's register (Ex.3) trustworthy of reliance and the defence as set 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.

4. The learned counsel for the petitioner has strenuously argued that the entire consideration of the learned trial Court 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 v. 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 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.

5. 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 register (Ex.3), and further, with reference to the assembly election voter-lists (Ex.4 and 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 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 v. Mohinder Singh, AIR 2005 SC 1868.

6. 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.

7. 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 register. The learned trial Court has also pointed out various other facts and factors showing that the petitioner has either withheld the relevant evidence or has produced such evidence 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 1977 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.

8. The learned trial Court has, inter alia, observed as under:

'LANGUAGE"

9. 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 issue' by the school but the same have been withheld by the petitioner. Similarly, the transfer certificate has also not been produced.

10. In Smt. Tara Devi's case (supra), while relying on the decision in Birad Mat 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..........."

11. 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.

12. 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.

13. 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.

Petition dismissed.
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