Smt. Maya Devi Vs Smt. Divya and Others

@JUDGMENTTAG-ORDER

Alok Sharma, J. - In this petition purporting to be both under Article 226 and 227 of the Constitution of India a challenge has been made to the judgment dated 02.02.2016, passed by the Senior Civil Judge No.2, Alwar quashing and setting aside the election of the petitioner-returned candidate (hereinafter "the returned candidate") as Sarpanch of Gram Panchayat Malakhera, Panchayat Samiti Umren.

2. Necessary background facts are that the respondent No.1-election petitioner (hereinafter "the election petitioner") filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter "the Act of 1994") and Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter "the Rules of 1994") challenging the election of the returned candidate on the post of Sarpanch of Gram Panchayat Malakhera, Panchayat Samiti Umren, which was reserved for OBC (women) candidate. It was stated that the returned candidate as also the election petitioner amongst others, filed nomination forms to contest the said election on 31.01.2015. Form No.4(Gha) submitted by the returned candidate recording her educational qualification as Class VIII passed from Asha Public School, Meena Colony, Belaka, Alwar was fabricated and forged as she was not at all educated, what of Class VIII pass but in fact barely literate enough to write her name. It was submitted that all documents leading to the returned candidate allegedly passing Class VIII were prepared or got prepared in a criminal conspiracy with the Headmaster of Asha Public School, Meena Colony, Belaka and Society under which the said educational institute was functioning. It was stated that the election of the returned candidate as Sarpanch on the basis of 2,575 votes received in the election as against 1,999 votes received by the election petitioner was therefore vitiated and liable to be set aside and the election petitioner instead declared to be the elected Sarpanch of Gram Panchayat Malakhera, Panchayat Samiti Umren-as none other contesting the said election had polled more votes than her.

3. The election petition was contested by a written statement of denial by the returned candidate. It was stated that the duplicate copy of the educational qualification had been filed because the original Class VIII mark-sheet issued by the Asha Public School had been lost. It was stated that the election petition was only a consequence of the pique of a defeated candidate, without substance, wholly speculative and therefore liable to be dismissed.

4. On the basis of the pleadings of the contesting parties, five issued were framed by the trial court as under :

5. The election petitioner examined herself as PW-1; her husband Himmat Singh as PW-2; Bhajan Lal, Block Elementary Education Officer as PW-3 and S.S. Mehta Elementary District Education Officer as PW-4 and relied on 44 documents viz. Exhibit-P/1 to Exhibit-P/44. The returned candidate examined herself as NAW-1, Shakti as NAW-2, Neki Ram as NAW-3, Sukhwati as NAW-4, Kajodi as NAW-5 and Ashok Singh as NAW-6.

6. On consideration of the evidence and after hearing the counsel for the parties, the trial court decided issue Nos.1 and 2 together in favour of the election petitioner and issue Nos.3 and 4 against the returned candidate vide impugned judgment dated 02.02.2016. Consequently the election of the returned candidate, now the petitioner before this Court, held on 01.02.2015 for the post of Sarpanch of Gram Panchayat Malakhera, Panchayat Samiti Umren was declared illegal, null and void having based on forged and fabricated documents as to eligibility qua her educational qualification and set aside. Hence this petition.

7. Mr. R.P. Singh, Sr. Advocate appearing with Mr. S.K. Saini, for the returned candidate has submitted that the impugned judgment dated 02.02.2016 is perverse and founded upon the documents of suspect authenticity which were not proved in accordance with the Evidence Act, 1872 (hereinafter "the Evidence Act"). More specifically it has been submitted that reliance on Exhibit-38 i.e. downloaded copy of the School Report Card of Asha Public School was wrongly relied upon by the trial court inasmuch as it was not proved in accordance with the provisions of Section 65B(4) of the Evidence Act. It was submitted that the trial court also conferred disproportionate weight to the evidence produced by the election petitioner over the evidence of the returned candidate. It was submitted that the trial court overlooked the fact that Himmat Singh (PW-2) in his cross-examination had admitted that Exhibit-7 i.e. result of Class VIII of the returned candidate and Exhibit-14 i.e. admission form/transfer certificate of the returned candidate, had not been declared as forged by any competent authority. It was submitted that the trial court also overlooked Exhibit-39 i.e. result sheet of Class VIII of Asha Public School for 2011-12 which was verified by Imarat Lal who was the Nodal Central In-charge and Government Official. Similarly Exhibit-40 i.e. result sheet of Asha Public School of 2011-12 also verified by Imarat Lal was overlooked by the trial court to the prejudice of the returned candidate. It was submitted that the reliance on Exhibit-29 i.e. nomination form filled by the returned candidate at the time of the election for the post of Sarpanch in 2010 was mistaken as the said nomination form then indicating the returned candidate''s educational qualification as merely "lk{kj" and not as studying in school, was not filled in by the returned candidate herself but by others-though signed by her. It was further submitted that the trial court also seriously erred in mechanically relying and not analysing Exhibit-42 relating to serial number 417 pertaining to one Samreena Bano in the scholar register of Asha Public School, at which serial number in the scholar register the returned candidate was also allegedly subsequently admitted and overlooked that the said document was not duly proved as Samreena Bano or any one from the school concerned did not enter the witness box. Counsel submitted that yet the trial court erred in holding on the basis of Exhibit-42 that serial no.417 was in fact allotted to Samreena Bano and only subsequently by way of forgery, the returned candidate was entered on the same serial number in the scholar register as a student of Asha Public School. Mr. R.P. Singh finally submitted that reliance on the documents collected by the Police in the course of investigation into the criminal offence under Sections 197, 198, 200, 418, 420, 467, 468, 471 and 120 IPC allegedly committed inter alia by the returned candidate in which a challan had been filed was unwarranted as the said documents were only a part of the allegations of the Police subsequent to investigation in respect of which the trial was still pending before the jurisdictional criminal court and the authenticity / reliability of the said document-Exhibited by the election petitioner, yet not judicially determined.

8. Per contra, Mr. Ashok Mehta, Sr. Advocate appearing with Mr. Vinit Mehta, for the election petitioner submitted that the proceedings before this Court both with reference to Article 226 of the Constitution of India which confers power of judicial review and Article 227 of the Constitution of India conferring superintendence power over sub-ordinate courts and tribunals do not warrant interference with the findings of fact based on appreciation of evidence arrived at by the trial court in a regular trial in the exercise of its jurisdiction to address election disputes. It was submitted that this Court cannot sit as if in appeal or even in a revision against the order passed by the trial court. Sr. Counsel submitted that the case at hand is a shocking one where the educational qualification mandated under Section 19 of the Act of 1994 for contesting an election for the post of Sarpanch were forged and fabricated by the returned candidate in conspiracy with the Headmaster of Asha Public School and the society running the said institution. The shocking nature of the fabrication, counsel submitted, is facially evident from the fact that the returned candidate purports to have been admitted as a regular student in Class 5th of the Asha Public School, village Belaka in the year 2008, when, admittedly born in 1984, she would have been 24 years of age at the relevant time. It was submitted that the child of the returned candidate, as also clearly evident from the evidence on record, studied at village Malakhera at the relevant time while the returned candidate purportedly thought it fit to pursue her studies in Class 5th at Village Belaka-at a distance of several kilometers from her residence starting in the year 2008 till 2012 upto Class 8th. Counsel submitted that the audacity of the returned candidate to approach this Court in the facts of the case is reflective of her complete disregard for truth and to the processes of the Court. It was submitted that the returned candidate along with others has been challaned for forgery and fabricating Class VIII mark-sheet pertaining to the year 2011-12 from Asha Public School and is presently under trial for offences under Sections 197, 198, 200, 418, 420, 467, 468, 471 and 120 IPC before the Court of Chief Judicial Magistrate, Alwar. Attention of this Court has been drawn primarily to two exhibits, one Exhibit 38 which is a document downloaded from the State Government''s portal as uploaded at the relevant time in 2011-12 in respect of Class VIII students of Asha Public School wherein only 10 students were admitted. Exhibit-38 was duly proved by the Block Elementary Educational Officer Mr. Bhajan Lal (PW-3) and its authenticity as a public document cannot also be doubted with reference to sections 75 and 77 of the Evidence Act. Sr. Counsel submitted that Exhibit-29 i.e. Nomination Form filled up by the returned candidate in the election for the post of Sarpanch in the year 2010 indicates that she had at the relevant time only shown herself to be a mere "lk{kj" and did not reflect her purported educational pursuits of being a regular student at school having passed at least class VIII-as she would have at the relevant time, had she indeed been admitted to Class 5th in 2008 and continued thereafter in school, as claimed by her in 2015. It was submitted that the hopelessness of the returned candidate''s case is only matched by her empty assertions in the writ petition, wholly without any legal foundation.

9. Heard. Considered.

10. The jurisdiction of this Court under Article 226 of the Constitution of India and under Article 227 of the Constitution of India in petitions challenging judgments of courts/tribunal below based on appreciation of evidence in a regular trial is well defined. In neither of the two jurisdictions can this Court sit over the judgment impugned as if in an appeal or revision. The court has to broadly confine itself to addressing questions of jurisdictional error, perversity, misdirection in law and manifest injustice. The Apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] has held that the powers under Article 227 of the Constitution of India are exceptional powers for judicial intervention and are not be exercised casually on the mere asking of the petitioner but should be exercised only in order to maintain public confidence in the administration of justice. In State of M.P. and Ors. v. Nandlal Jaiswal and Ors. [AIR 1987 SC 251] the Apex Court observed that it is well settled that power of High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary. I am of the clear view that no occasion arises in the facts of the instant case and applicable law to exercise the power of this Court under Article 226/227 of the Constitution of India.

11. Argument of Mr. R.P. Singh, Sr. Counsel that Exhibit- 38 as also Exhibit-29 were not duly proved is without substance. Exhibit-38 has been proved by the witness of the election petitioner i.e. Bhajan Lal (PW-3) the Block Elementary Education Officer. Exhibit-29 has been proved by the Deputy District Election Officer, Alwar. The two exhibits aforesaid clearly indicate in tandem with other evidence on record that the returned candidate did not read at the Asha Public School nor was admitted therein as a regular student or otherwise. The class VIII mark-sheet for the academic year 2011-12 was a forgery. Aside of the evidence, the impossibility of admission as a regular student in Class 5th at the age of 24 years in a school several kilometers away from the residence of the "student" cannot be overlooked. More so when the "student" had declared in 2010 in her nomination form for the post of Sarpanch that she was only "lk{kj" Exhibit-14, the admission form/transfer certificate of the returned candidate is apparently a forged and fabricated document as it reflected admission of 23 students including the returned candidate in Class VIII in 2011-12 contrary to Exhibit-38 which is a contemporaneous document uploaded on a Government portal at the relevant time and shows 10 students in class VIII at Asha Public School, Belaka in 2011-12.

12. I am of the considered view that the impugned judgment dated 02.02.2016 suffers from no legal lacunae which would warrant interference of this Court under Article 226 and 227 of the Constitution of India. The writ petition is without force.

13. Dismissed.