1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 936 of 2008 RAICHAND @ RAM CHANDRA V/S D.J.,BIKANER & ANR. Mr. VIJAY BISHNOI, for the appellant / petitioner Date of Order : 17.10.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- The appellant seeks to challenge the order of the learned Single Judge dated 26.9.2008 whereby the writ petition filed by the petitioner was dismissed with costs, and thereby the judgment dt. 23.1.2006 passed by the learned District Judge, Bikaner allowing the election petition was affirmed. The brief facts of the case are that the petitioner was elected as Ward Panch of Ward No. 4 of Gram Panchayat, Sanwatsar in the elections held on 4.2.2005. This election was sought to be challeged by the private respondent by filing election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 on the ground that the petitioner was not qualified to be elected 2 as the Ward Panch, on account of suffering disqualification under Section 19. It was alleged that the petitioner had mentioned wrong dates of birth of his children in the nomination form, so also did not mention correct number of children therein. From perusal of the election petition it transpires that one daughter Sarita @ Sita was born on 1.8.1996, son Mahavir was born on 5.9.1997 yet another son Dalip Kumar @ Deepa Ram was born on 15.8.1999. The daughter Manisha was born in the year 2001 and yet another daughter Baby born in the year 2003. Thus, more than two children were born as prohibited under the Act. The election petition was contested on the ground, that all children were born before the cut off date being 24.3.1994, and even thereafter till 27.11.1995 no children was born. The petitioner also pleaded that the dates of birth of Sarita, Mahaveer and Dalip Kumar in the school register have been manipulated, and there is no issue like Dalip Kumar. The other pleadings and contentions of either side need not detain us, as this was the only controversy canvassed before us. The election petitioner produced Bhanwarlal, Head Master of the Government Primary School, Sanwatsar as A.W.1, and examined himself. The appellant examined himself, and produced Gopi Ram and Hajari Ram. Deciding relevant issue being issue no.1 in para no. 9 the question was posed, as to whether the election petitioner has been 3 able to prove that the date of birth of Sarita is 1.8.1996, and that of Mahavir is 5.9.1997, and for that purpose relied upon the statement of Bhanwarlal, A.W.1, the Head Master who deposed to be knowing the private respondent, and his above mentioned two children Sarita and Mahavir whose names have been entered in the School Register at S.No. 889 and 890. Copies of entries have been produced as Ex. 1 and 2. The Admission Forms have been produced as Ex. 3 and 4 which were submitted by the grand mother Smt. Tulsi Devi. Then, regarding the evidence of Manohar Lal, the election petitioner, it was considered that though he has deposed the dates of birth, but has admitted to have acquired knowledge from the school teacher. Thus, it was found that the election petition has proved that the private respondent's mother Smt. Tulsi Devi got admitted Sarita and Mahavir in the school, and at that time their respective dates of birth was mentioned as 1.8.1996 and 5.9.1997, while in rebuttal Raichand @ Ram Chander, the present appellant has deposed the date of birth of Sarita as 20.5.1991, and date of birth of Mahavir as 24.3.2993. It may be mentioned that these dates have not been mentioned in the reply to the election petition. The private respondent also produced Gopi Ram and Hajari Ram who deposed age of Sarita as 14 years and age of Mahavir as 12 ½ years. It was admitted by the returned candidate, that Sarita and Mahavir are studying in 5th standard, and it was noticed that no explanation has been coming forth as to how 4 the date of birth of Sarita and Mahavir as 1.8.1996 and 5.9.1997 have been entered. It was admitted that Tulsi is the mother of the returned candidate, who lives with the private respondent. Then, in para-14 after considering some material it was found, that of course the date of birth recorded in the school register cannot be a conclusive proof, but when it is established that the children were got admitted by their grand mother, giving out the date of birth to be 1.8.96 and 5.9.1997, in absence of any rebuttal or controversy to the reliability, it cannot be taken to be incorrect or unreliable. It was noticed, that in the admission form, apart from the date of birth, the age of children in the years is also mentioned. It was also noticed that at the time when Ex. 3 and 4 were prepared there was no dispute about the age of two children Sarita and Mahavir. Then, it was considered, that the private respondent has not disclosed any basis about giving out the date of birth to be 20.5.1991 and 24.3.1993, admittedly ration card is there, but that has also not been produced. Thus, it was believed that these two children were born 1.8.96 and 5.9.1997. Then, regarding Dalip also the evidence of Bhanwarlal, and entries in the admission register, and admission form, were considered and believed, and it was believed, that son Dalip was born on 15.8.1999. Thus, it was found, that the returned candidate already had two children being Rami and Rakesh, and after 27.11.1995 the cut off date, three more children were born. Thus, he 5 was disqualified. Before the learned Single Judge reliance was placed on behalf of the appellants on the Division Bench judgment of this Court in Smt. Tara Devi Vs. Smt. Sudesh Chaudhary reported in 1997(2) RLR-141, and on decision of the Hon'ble Supreme Court in Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC-1796. It was contended that no conclusions could have been arrived at on the basis of statement of Bhanwarlal, who had no personal knowledge, and there being no cogent evidence regarding the dates of birth of the children, the election petition ought to have been rejected. The finding was challenged as perverse. It was also contended that the learned District Judge failed to consider that the burden of proof was on the election petitioner, who had totally failed to discharge the same. It was contended that non production of brother or mother of the returned candidate was not a relevant consideration, and neither any adverse inference could have been drawn, nor any findings could have been recorded against the returned candidate. The learned Single Judge relied upon judgment of the Hon'ble Supreme Court in State of Punjab Vs. Mohinder Singh reported in AIR 2005 SC-1868, which was cited on behalf of the election petitioner, and reproduced para-12 and 13 thereof. The contention about admissibility of school register and the school admission form, on the basis of judgment in Tara Devi's case was held to be 6 requiring to be considered as circumscribed by the law laid down by the Hon'ble Supreme Court in Mohinder Singh's case. Likewise the judgment in Birad Mal's case was distinguished on the ground, that in that case the admission form or its copy was not produced, which has been produced in the instant case. Thus, the two judgments were found to be of little help, and the judgment in Mohinder Singh's case was found to be fully covering the case against the returned candidate, and the evidence produced on record was also considered, and the learned Single Judge found that the evidence of the returned candidate's witness themselves was also contrary to the evidence of the returned candidate himself, inasmuch as Gopi Ram has gone to the extent of denying Sarita to be any daughter of Ram Chander. Thus, the learned Single Judge expressed full concurrence, by holding that he is satisfied that the learned District Judge has proceeded perfectly in accord with the law, and the impugned order does not disclose any illegality or error, so as to require any interference. Assailing the impugned judgment before us also, relying upon the judgment in Birad Mal's case and Tara Devi's case, same arguments were sought to be advanced, that the entires in the Admission Register has no evidenciary value, and the form of admission filled by the grand mother Smt. Tulsi Devi is not admissible in evidence. The two judgments were read to us in extenso. 7 We have again read these two judgments, and may at once observe, that the learned counsel has not made any submission, as to how the judgment in Mohinder Singh's case is not applicable to the present case, or as to how that judgment has not been rightly considered by the learned Single Judge. In para-12 of Mohinder Singh's case, as quoted by the learned Single Judge it was clearly held by the Hon'ble Supreme Court, that 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(5) of the Evidence Act, unless it is established by unimpeachable contrary material to show, that it is inherently improbable. Likewise, in para-13 which too has been reproduced by the learned Single Judge, in which it has clearly been held by the Hon'ble Supreme Court, that entries in the school register and admission form regarding date of birth constitute good proof of age. It was also held, that 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 our view, on the face of authoritative dictum of Hon'ble the Supreme Court, regarding which no 8 submissions have been made by the learned counsel for the appellant, we are at one with the findings of the learned Single Judge, that the judgment in Tara Devi's case and Birad Mal's case are of little assistance to the appellant, and the learned District Judge was perfectly right in passing the judgment dt. 23.1.2006 accepting the election petition. Thus, we do not find any force in the appeal. The same is, therefore, dismissed summarily. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/