1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Hari Narain Vs. Sita Ram & Others (S.B. Civil Writ Petition No.10944/2009) S. B. Civil Writ Petition under Article 226/ 227 of the Constitution of India. Date of Order: August 29, 2012. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. Manoj Bhardwaj, for the petitioner. Mr. Ashutosh Bhatia, for the respondent No.1. BY THE COURT: A challenge has been made to the order dated 31-7-2009 passed by the learned Civil Judge (Senior Division) Dausa (herein after `the Tribunal') dismissing the petitioner's (herein after `the Election Petitioner') election petition filed against respondent No.1 Sita Ram (herein after `the returned candidate') under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (herein after `the 1994 Act') read with Rule 80 of the Rajasthan Panchayati Raj Election Rules, 1996 (herein after `the 1996 Rules'). The facts of the case are that election for the post of Sarpanch of Village Panchayat Kundal, Tehsil Dausa were held on 31-1-2005. 2 The petitioner was a contestant for the said post, but lost the election to the respondent No.1, the returned candidate. This led to an election petition under Section 43 of the 1994 Act challenging the election of the returned candidate for the post of Sarpanch under Section 19(l) of the 1994 Act on the ground that the returned candidate was ineligible to contest the election having fathered his fourth child after the cut off date 27-11-1995 in spite of other living children prior thereto. In response to notices of the election petition served on returned candidate, he filed his written statement. On the basis of pleadings the learned Tribunal framed the following issues:- (१) आया Ĥ×यथȸ नàबर १ सीताराम Ēाम पंचायत कुंडल तहसील दौसा के सरपंच पद हेतु ३०-१-०५ को नामांकन पğ दाͨखल ͩकया था व सीताराम के २७-११-९५ के पƱात चतुथ[ संतान ͪवçणु उफ़[ अभयकुमार का जÛम होने के कारण से सीताराम सरपंच के पद के ͧलए राजèथान पंचायत राज अͬधǓनयम १९९४ कȧ धारा १९ (ठ) के अनुसार सरपंच पद के ͧलए Ǔनवा[चन के ͧलए अह[त नहȣं था एवं याͬचकाकता[ ǐरटǓनɍग अͬधकारȣ के सम¢ सीताराम का आपǓतपğ गलत Ǿप से Ǔनरèत कर Ǒदया? --याͬचकाकार (२) आया याͬचकाकार Ĥ×यथȸ सं१ राजèथान पंचायती एÈट १९९४ कȧ धारा १९ (ठ) के तहत नामांकन पğ ३१-१-२००५ के Ǔनरèत घोͪषत ͩकया जाकर Ĥ×यथȸ सं १ का Ǔनकटतम ĤǓतƮंदȣ होने के कारण से Ēाम पंचायत Ǔनवा[ͬचत घोͪषत होने का अͬधकारȣ है? --याͬचकाकार (३) आया याͬचकाकर Ʈारा राजनैǓतक Ʈेषता के चलते Ĥ×यथȸ सं १ व २ को हैरान व परेशान करने के ͧलए Ǔनराधार आधार 3 याͬचका Ĥèतुत कȧ गई है, Ĥ×यथȸ सं १ व २ ͪवशेष हजा[ ĤाǓƯ के अͬधकारȣ हɇ? --अयाची सं १ व २ (४) आया याͬचका मɅ ǐरटǓनɍग अͬधकारȣ को प¢कार नहȣं बनाया है, िजससे याͬचका चलने योÊय नहȣं है? --अयाची सं ३ (५) आया Ĥ×यथȸ सं ३ ͪवशेष हजा[ याͬचकाकता[ से ĤाƯ करने का अͬधकारȣ है? --अयाची सं ३ (६) अनुतोष? Primarily the outcome of the election petition as also the present petition before this court depends on the determination of the issue No.1. In support of his case that the returned candidate had fathered the fourth child subsequent to cut off date 27-11-1995 and was thus ineligible to contest for the post of Sarpanch with reference to Section 19(l) of the 1994 Act, the Election petitioner relied upon several witnesses and several documents which were exhibited. The substance of the case set up by the election petitioner Hari Narayan (Pw.1) was inter alia based on exhibit Ex.P-3 a copy of entry in register of Woman and Child Center, Ex.P-4, a copy of entry in register of expectant couples in Gram Panchayat Kundal, Ex.6 and 4 Ex.7 pertaining to date of birth of the returned candidate's third and fourth children Avinash and Abhay Kumar as reflected in the admission form submitted to the school and signed by the returned candidate himself. It was submitted based thereon that the returned candidate had fathered his fourth child Abhay Kumar after 27-11- 1995. In the course of his cross examination, however the election petitioner Hari Narayan admitted that Gram Panchayat Kundal comprised over 30 villages, and had multiple persons with the name of Sita Ram with Geeta as wife and it could not thus definitely be stated that the documents Exhibits P-3 and P-4 exhibited and relied upon by the election petitioner related to the returned candidate. It was also admitted by Hari Narain (Pw.1) that Ex.P-3 had no reference to the village or the caste of the person, who was sought to be identified as the returned candidate, and therefore could not definitely be said to relate to the returned candidate. With reference to Ex.4 the copy of entry in register of expectant couples, the election petitioner Hari Narain (Pw.1) admitted again in his cross examination that he did not know as to when the said document was prepared, nor could it be said that the said certificate were correctly drawn on concrete and correct information. The other witnesses of substance for the election petitioner were Rajendra (Pw.4) and Dr. Balkrishna Bajaj (Pw.5). From a reading of their evidence it however transpires that Exhibit-4 the 5 register of expectant couples in Gram Panchayat Kundal within the reproductive age was prepared by ANM, and the entries made by the ANM therein were based on general information including the information furnished by neighbours in the course of survey. The other witness relied upon by the election petitioner was Gajraj Brahmabhatt (Pw.6) Secretary, Mahavir Bal Vidhya Niketan School Kundal. He stated that Sita Ram's four children Avinash Meena, Abhay Kumar Meena, Anita Meena and Sangeeta Meena were admitted in the school. He further stated that date of birth of Avinash was changed in the scholar register from 5-7-1995 to 5-7- 1993, and of Abhay Kumar from 11-8-1996 to 7-10-1994 on the basis of the order dated 12-8-2004 passed by the District Education Officer Dausa in the exercise of his administrative powers. He further stated that change of date of birth was made on application being made by Sita Ram prior to his impugned election. This witness admitted that for the purpose of determining the date of birth of the student the scholar register maintained by the school was relevant and in the scholar register the date of birth of Avinash was 5-7- 1993 and of Abhay Kumar was 7-10-1994 respectively. Dr.Shri Phool Meena appeared as Pw.7 on behalf of the election petitioner. He stated that name of one Sita Ram with wife as Geeta resident of Gram Panchayat Kundal were recorded at family No.294, Couple No.465 in the register maintained with regard to 6 couples of reproductive age in accordance with the survey conducted in the year 1999. In the said survey register it was recorded that Sita Ram had four children, and the age of youngest child was four years. He stated that the entries in the register were maintained and signed by the then Chief Medical Health Officer. He however admitted that the register maintained by the office and signed by the Chief Medical Health Officer was based on general information some times given by the couple, other times by neighbours and the age of youngest child mentioned in the register was only approximate, not actual. In defence, the case of the returned candidate was based on denial of his alleged signatures on the admission forms (Ex.6A and 7A) submitted allegedly with the Mahavir Vidhya Bal Niketan School wherein the date of birth of Avinash was recorded as 5-7-1995 and of Abhay Kumar as 11-8-1996. It was stated that Ex.3, certificate issued by the Woman and Child Department was on the admission of the Election Petitioner's own witness Dr.Bal Kishan Bajaj (Pw.5) himself based on general information gathered from the neighbours and thus was necessarily not of any reliability. It was further submitted that in any event the vagueness of the information in the certificate did not relate to the returned candidate Sita Ram and his wife Geeta and could easily to be a reference to another Sita Ram having wife named Geeta within the thirty odd villages in the Gram 7 Panchayat Kundal. It was pointed out with regard to Ex.4 (copy of register of expectant couples) on which reliance was placed by the election petitioner, that Shri Phool Meena (Pw.7) himself admitted that Exhibit-4 was not a certified copy and it was even otherwise based on general information sometimes obtained from neighbours in the course of survey. Further the returned candidate in his defence of his election relied upon documentary evidence such as Ex.A-1, a certificate issued by the Secretary, Gram Panchayat Kundal indicating the date of birth of Abhay Kumar as 7-10-1994 as per record of the Gram Panchayat Kundal. Reliance was also placed on Ex.A-4, which was a transfer certificate of Abhay Kumar from Mahavir Bal Vidhya Niketan School, Kundal wherein his date of birth was again mentioned as 7-10-1994. Further reliance was placed on Ration card (Ex.A-6) wherein the age of Abhay Kumar— the youngest child as on 15-10-2001 was shown as 7 years, taking the date of birth back to the year 1994. The returned candidate also relied upon Ex.A-9, which was a enquiry report dated 25-1-2005, prepared by Tehsildar Dausa on the directions of Collector Dausa finding that the returned candidate Sita Ram at the relevant time was eligible to contest the election. Further reliance was also placed on Ex.A-8, which was a report by Sub Divisional Officer Dausa, on the directions of Divisional Commissioner, wherein it was found that the returned candidate Sita Ram was not disqualified under the provisions of 1994 Act in view of the fact that all his four children 8 were born prior to 27-11-1995. The returned candidate in his defence to election petition further relied upon Ex.A-10, issued by Veena Vadini Public School Dausa, in which document the date of birth of Abhay Kumar was recorded as 7-10-1994. Similarly the scholar register maintained by Veena Vadini Public School Ex.A-11, indicated the date of birth of Abhay Kumar as 7-10-1994, as also other document Ex.A-13, mark-sheet of Class-III of Abhay Kumar, the youngest child of the returned candidate, issued by Mahaveer Bal Vidhyalaya Niketan School Kundal indicated date of birth as 7- 10-1994. Based on the evidence and taking an overview of it, the learned Tribunal found that the issue No.1 deserved to be decided against the election petitioner and in favour of the returned candidate. The Tribunal has also addressed other issues framed in the course of trial of the election petition. But as the determination of other issues is only consequential and incidental, the determination of issue No.1 alone is being addressed by this court. Heard learned counsel for the parties and perused the material available on record of the writ petition. Mr. Manoj Bhardwaj, learned counsel appearing on behalf of the petitioner has submitted that Ex.3 and 4 were record officially maintained in the general course of government function and so 9 were Ex.6 and 7 both admission forms pertaining to Avinash and Abhay Kumar the third and fourth children of the returned candidate under his own hand submitted to the Mahavir Bal Vidhya Niketan School wherein the date of birth of Avinash and Abhay Kumar was recorded as 5-7-1995 and 11-8-1996 respectively. Counsel submits that the aforesaid documents exhibited and proved before the Tribunal were sufficient for the Tribunal to conclude that the fourth child of the returned candidate Abhay Kumar was born subsequent to cut off dated 27-11-1995 rendering the returned candidate ineligible under Section 19(l) of the 1994 Act to contest the election for the post of Sarpanch. In this view of the matter the election of the returned candidate as Sarpanch of Village Panchayat Kundal ought to have been set aside, submitted counsel for the Election petitioner. Counsel submits that the documents Ex.3 and 4 as also Ex.6A and 7A relied upon by the Election petitioner in the election petition before the Tribunal were relevant under Section 35 of the Evidence Act as the same were produced from official custody of concerned persons having been prepared in the regular course of official business. It was submitted that the correctness of aforesaid documents could not be impeached on the ground that the persons who had made the entries therein were not produced in the witness box before the Tribunal. Counsel submitted that it is a well settled principle of law that such documents are admissible in evidence and 10 are sufficient to prove the entries by their mere filing and exhibiting. He submitted that the genuineness of such records could not be questioned without good cause. It was submitted that the person who were the incharge of the affairs or keep the record in official custody were competent to prove the entries in the public document under the provisions of Section 35 of the Evidence Act, even though such a person may not be aware as to which official actually made the entries. It was submitted that mere finding by the Tribunal regarding the entries that the entries in public record, relevant under Section 35 of the Evidence Act, had been made on the information given by certain persons not before the court was not sufficient to disbelieve and overlook the documents. It was submitted that it was clear from the evidence on record that Geeta wife of Sita Ram, the returned candidate had conceived fourth time after 27-11- 1995, rendering the returned candidate ineligible to contest the election for the post of Sarpanch under the provisions of the 1994 Act. Counsel for the election petitioner relied upon a judgment of this court in case of Anita Gaur Vs. State of Rajasthan [2009 (1) W.L.C. 204] to contend that Division Bench of this Court has held that documents obtained from official custody were relevant to determination of an issue before the courts. Reliance was also placed on Smt.Top Kanwar Vs. the Life Insurance Corporation of India Bombay [1975 W.L.N. 858. para 6]. 11 Counsel further submitted that owing to unimpeachable evidence before the Tribunal evidencing the date of birth of the fourth child, Abhay Kumar as 11-8-1996, the defence evidence of the returned candidate was of no avail. It was submitted that the returned candidate had got the date of birth of his two children Avinash and Abhay Kumar corrected in the year 2004 on the basis of order of the District Education Officer Dausa on 12-8-2004, without reasonable ground and the altered date of birth should have been overlooked by the Tribunal and the Tribunal should have thereupon held that Sitaram was thus ineligible to contest and thereafter hold the post of Sarpanch. Counsel for the election petitioner submitted that the impugned judgment dated 31-7-2009 passed by the Tribunal is perverse as the Tribunal has overlooked and not taken into consideration the record obtained from the government establishments and school, while irrelevant evidence manufactured by the returned candidate subsequently was relied upon. On the aforesaid submissions, it has been argued that the order dated 31-7- 2009 passed by the Tribunal should be set aside and the election of the returned candidate for the post of Sarpanch of Gram Panchayat Kundal be quashed. I have considered the submission of learned counsel for the parties and perused the material available on record of the writ petition. 12 Section 35 of the Evidence Act, 1872 falling under Chapter II thereof provide thus: 35. Relevancy of entry in public record or an electronic record made in performance of duty. An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact. Section 35 of the Evidence Act while making relevant an entry in a public record for the determination of a question of fact, yet does not make evidence relevant there under as conclusive. In this regard reference can be had to the judgment of Division Bench of Orissa High Court in case of Hemnat Kumar Vs. Shiv Prasad, [(2006) 38 AIC 438 (D.B. Orissa H.C.)] wherein the issue was with regard to evidence relevant with reference to Section 41 of Evidence Act, 1872 also falling under Chapter II. The Orissa High Court held that evidence relevant under Section 41 of the Evidence Act was not conclusive. So does the position obtain in the present case. No doubt the hospital record and school record relied upon by the petitioner were relevant, yet they were not conclusive. The relevant evidence laid by the petitioner before the Tribunal on the basis of hospital record and school record, had to be evaluated in the context of its probative worth and rebuttal thereof by the returned candidate, 13 respondent No.1 herein and appreciated juxtaposed to defence evidence laid by the returned candidate. The Hon'ble Supreme Court in the case of Narayan Govind Gavate Vs. State of Maharashtra [(1977) 1 SCC 133] has held that the result of a trial or proceeding is determined by weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against the other which may tilt the balance in favour of one party against the other. Admittedly no presumptions operated before the Election Tribunal in an election petition under Section 43 of the 1994 Act read with Rule 80 of the 1994 Rules. The issues before the trial court as to the eligibility or otherwise of respondent Sita Ram was determinable on the appreciation of evidence laid by the contesting parties before the trial court. Consequently without being overtly impressed by evidence relevant under Section 35 of the Evidence Act, it was incumbent upon the Tribunal to consider and appreciate the totality of Election Petitioner's evidence before it juxtaposed to the defence evidence. It is also not in dispute that the change of date of birth of Avinash and Abhay Kumar under the order of District Education Officer Dausa had attained finality as the same was not challenged before an appropriate forum. It was not within the jurisdiction of the Election Tribunal to overlook the order passed by a competent officer of the 14 education department pertaining to change of date of birth of two children of the returned candidate Avinash and Abhay Kumar. The date of birth of the two aforesaid children recorded consequent to the order of District Education Officer passed on 12-8-2004 was thus the recorded age in the scholar register. Further it was not even the case of the Election Petitioner that the District Education Officer had no jurisdiction to pass the order dated 12-8-2004 directing change of birth date of Avinash from 5-7-1995 to 5-7-1993 and of Abhay Kumar from 11-8-1996 to 7-10-1994. Reliance placed by the petitioner on the case of Anita Gaur (supra) is of no avail. The conclusions arrived at by the Election Tribunal as upheld by the Division Bench of this court in the case aforesaid were determination of question of facts on evidence before the Court. Reliance by the petitioner on the case of Top Kanwar (supra) is in fact to the detriment of the petitioner. In the case of Top Kanwar, this court no doubt has held that inpatient bed-head ticket, which was prepared and maintained by a government hospital was admissible in evidence with reference to Section 35 of the Evidence Act. But in the aforesaid case there was no doubt about the identity of the patient Jai Singh with reference to whom bed-head ticket was produced in evidence to establish that Jai Singh was suffering from a disease which he had suppressed at the time of taking an insurance 15 policy with the LIC. In fact in the aforesaid case brothers of Jaisingh, Sawaisingh and Chandsingh had admitted that in village Nimbol there was no other person by the name of Jaisingh son of Bishan Singh Rajput, and Pw.4 Prem Krishan Pitti, Development Officer of the Corporation stated that he had made an enquiry in village Nimbol and there was no other person, who was resident of that village by the name of Jaisingh son of Bishan Singh Rajput except the husband of appellant Top Kanwar. It was also established on the basis of electoral roll of village Nimbol for the year 1959 the only person answering to the aforesaid description of the patient Jaisingh admitted to the hospital was Jaisingh on whose death insurance claim was being pursued by the widow wife. Contrary to the facts of the case of Top Kanwar (supra), in the case at hand, it has come on record in evidence that there were about thirty villages in the Gram Panchayat Kundal with about 10 persons with the name of Sita Ram some of whose wives were also named Geeta. There was thus no reliable evidence, as in the case of Top Kanwar (supra), to exclude the possibility of the documents Ex.3 and Ex.4 purportedly relating to the returned candidate referring to another Sita Ram with the wife's name Geeta. It is trite that evidence relevant under Section 35 of the Evidence Act has to be evaluated and appreciated. In the instant case the returned candidate has denied his signatures on Ex.6 and Ex7, which were admission forms of Avinash and Abhay Kumar in 16 Mahaveer Bal Vidhya Niketan School Kundal. Further the evidence sought to be brought on record with reference to Ex.6 and Ex.7 was controverted and rebutted with the evidence of change of date of birth in scholar register, which according to Pw.6 Gajraj Brahmabhatt, Secretary, Mahavir Bali Vidhya Niketan School Kundal was the official date of birth for purposes of the school record. With regard to Ex.3, entry in register of woman and child center, and Ex.4, entry in register of expectant couples, it has come on record that the said entries are based on general information gathered from neighbours in the course of survey. As against these probatively fragile entries, the evidence brought on record by the returned candidate are very much substantial. Therefore, I find no reason to interfere in the appreciation of evidence and findings of fact recorded by the learned Election Tribunal. The conclusion arrived at by the Election Tribunal is a reasonable one and does not call for interference by this court in its jurisdiction under Article 226 and 227 of the Constitution of India. There is no perversity or misdirection in law in the impugned order of the Election Tribunal, Consequently, the writ petition is dismissed. (Alok Sharma),J. arn/ 17 All corrections made in the order have been incorporated in the order being emailed. Arun Kumar Sharma, Private Secretary.