h ^ HIGH COURTOF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Applicant Petitioner Non-applicants Respondents Civil Revision No. 94 of 2007 Smt. Ravika Ekka W/o Lodhi Ekka, Aged about 34 years, R/o Balrampur (Pal) P.S. - Balrampur, Distt. Surguja (C.G.) , versus 1) Kunni Kujur W/o Late Parmeshwar, aged about-33 years, 2) Alka D/o Raghbir Khakha Prasad, aged about 30 years, : 3) Alpmani w/o Gambhir Sai, aged about ^ years, 4) Kalensiyas W/o C.P.Masih, Aged about 35 years, 5) Rampati W/o Ram Lagan, Aged about 40 years, 6) Rojalia W/o Late Lajrus, aged about 40 years All R/6 Balrampur, P.S. & Taji. Balrampur (Pal), Distt. Surguja (C.G.) 7) District Election Officer, Through Collector pf Surguja, Ambikapur Distt. 8) Returning Officer, Nagar Panchayat Electjon, Balrampur, Through Nayab Tahsildar Balrampur, Distt. Surguja Revision underSection 26 {2) of Chhattisaarh Municipalities Act. 1961 Present:- Shri Bhupendra Singh, counsel forthe petitioner. Shri A.N.Pandey, counsel for respondents No.1 to6. Shri H.S.Patel, counsel for respondents No.7 & 8. VIW' ORAL ORDER (Passedon this 10tn day ofJuly, 2008) This Civil Revision is directed against the order dated 11.07.2007 passed by the 1st Additional District Judge (F.T.C.), Ramanujganj in Miscellaneous Civil Case No. 1/05 whereby the election of the petitioner as President ofthe Nagar Panchayat, Balrampurwas declared void. 2. The respondent No.1 herein had filed the petition under Section 20 ofthe Chhattisgarh Municipalities Act, 1961 (henceforth 'the Act') alleging inter alia that the petitioner herein was disqualified from election as the President of the Nagar Panchayat, Balrampur on the ground that the third child to the petitioner was born after 26th January, 2001 i.e. 15.02.2002. 3. Although in paragraph 42 of the impugned order it was observed that the evidence led by the respondent No.1 was of a weak nature, yet the learned 1st Additional District Judge hetd that the petitioner was disqualified for election as a President of Nagar Panchayat, Balrampur, as she had more than two living children, one of whom was born on or after 26th January, 2001. This finding was reached on the ground that under Section 106 of the Evidence Act the petitioner had failed to discharge the burden of proving the fact that the third child of the petitioner was born before 26th January 2001. 4. Having heard learned counsel for the parties at length and after perusal of the reoord, 1 am of the considered opinion that this Civil Revision deserves to be allowed as the order passed by the learned 1st Additional District Judge is perverse. 5. Section 35 of the Act lays down the grounds on which a person shall be disqualified for contesting an election of the President. Under ground (q) of Section 35 of the Act no person shall be eligible for election or as a President or election or nomination as a Councillorif he has more than two living children, one of whom is born on or after 26 January, 2001. 6. Section 106 of the Evidence Act which states an exception to the general rule laid down in Section 101 ofthe Evidence Act that the burden of proving a fact rests on the party who substantially asserts it, reads as under: "S. 106. Burden of proving fact especially within knowledge—Whenany fact is especially within the knowledge of any person, the burden of provjng that fact is upon him. lllustrations. (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 7. The provisioncontained in Section 106 of the Evidence Act is not intended to relieve any person of the duty or burden cast by Section 101 of the Evidence Act. It says that when a fact to be proved is especially within the knowledge of any person, it is for him to prove it. The illustrations given under Section 106 ofthe Evidence Act also suggestthat the words "especially within the knowledge of any person" should be construed to mean "within the knowledge ofthat person alone". In order to place the burden of proof on thepetitioner herein, the fact of birth of the third child must therefore be a fact which is especially within the knowledge of the petitioner alone. So far as the birth of a child is concerned,it is not a fact especially within the knowledge of the mother alone. It is within the knowledge of the father, relatives, the doctor or persons who were present at the time of delivery of child. It is also within the knowledge of persons who entered the date of birth in the official register. Therefore, birth of a child cannot be said to be a fact which is especially within the knowledge of the mother. Since the petition filed by respondent No.1 challenging the election ofthe petitioner on the ground of birth of a third child to the petitioner after 26th January 2001 was founded on oral as well as documentaryevidence, the burden of proving thesaid fact was squarely on the respondent No.1. The learned Court: below thus acted illegally in placing the burden of proof on the petitioner. 8. The respondent No.1 - Kunni Kujur's petition under Section 20 of the Municipal Corporation Act, 1961 was founded on two documents; firstly the "^TocfT ii^rr -%TT z^" Ex.P.6 and <t7T^ft -r^n ZOT ^cbich^ui RC|^U|" Ex.P.7(C). It is beyond comprehension how the learned 1st Additional District Judge drew an inference against the petitioner herein when in paragraph 42 of the impugned order it has recorded a finding that the evidence led by, Kunni Kujur was of a weak nature. A perusal of the •^vy^ sqi Aq p8|ij (o)9-d'X3 JnM^y In^l^^? l^ iPejh ^^tJjL,, pue Z-Q-X^ ,.^fc llfi^ Itea^ ll^t^,, 941 LUOJJ ^ioddns spuy AuoLUi^sei JSH •I.OOZ'I-O'CI. uo J9uoji!i9d eqi o^ ujoq SBM pijqo |J!6 e pue AJCAJIQP eqi 6uipnpuoo joj jeuoj^ed eqi p esnoq eqi 0} euo6 peq eqs le^ qieo uo peieis 943 'j9uoii!i9d equo ^9Ai|9p eqi pQLUJoped peq pue jndujej|eg 'jeiueo 4l|B9H Aiiuniuiuoo ye esjnu Ajeiijxne eq^ SBM oqM eyna iiueseg 'iLug peuiLuexe seq ujejeq jeuoi^ed 941 '(o)9'a'x3 ^b^ in>.cbicfo^ ^ u^j±yil^tlt,, 041 LUOJ^ peojiou sq 01 si se 'jndLuej|eg 'oiuiio/ejpuex-dn jepun eq 01 uMoqs si jndujej|eg seajaqM ejnoue|/\| pje/\A 'eBeiiiA ejnoL|6v 'OIUIIQ ejpus>i -dn (jndLuej|eg 'jeiueo MI|BOH Ajeujud SUO^UQIU OS|B (o)z'd'x3 ^in>.by In^cbKfe^ l<fc ll^Jli ^b^lt,, QM1 'fueOfnueiuey }B se/w j9]jenbpe9q jeq pue Z002"Ol."8Z oi OOOS'l.'t' UJO^ uoisuedsns jepun SBM jn[n»aoeJQ -ILUS 'jeoiyO |BO!p9|/\| ^oojg 'Lue^|je|/\|-ry •JQ 0} euipjoooe esneoaq souepijuoo sjidsui iou SQOp jnfnx soejo -].LUS p AuoLUjisei eqi '.iqpo-j jo ejiM e>|>|3 e>|!qey p eujeu eq^ peijesui pue 1.1 pe^eiep uo jeieipeq oqM euna jiueseg Aq epeai SBM ^'ON'IS le AJIUG eq^ 'jeq o^ Cuipjooov '^opejsiies LU04 J^ si jndLUBJ|eg 'jeiuao 4l|S9H AijuntULUOQ IB josjAjedns qiieeH U9UJO/W eqi SBM oq/w jnfn>| GOBJO '1.013 ^cl pQJ^yo uo^Bue|dx9 eqi 'peyesu! ueeq seq !4po~] p ejiM e>|>|3 e>|iqBy p eiueu pue p9l9|9p uesq seq euL[su>i jo ejiM eiiLuejd ^o eiueu eqi ui ^iue 941 ^"ON'IS IB IBLII SMoqs os|e (o)z-d'x3 ,.lnM3y ln^l4>l? I^ IP^J,k y^k,, 9^1 •l.OOZ'I.O'SI. SG P9UOIIU9LU A|JB9|0 Sj P|!L|0 |ji6 e p qiJiq p Qyep pue peuoiiueui ueoq seq GLUBU joq ujQjeqM z'a'x3 ^icb i^ iba.b iba.1^ jeuiSuo eq: p9|y peq u.ojeq J9uoi}ii9d eqi 'B>|!ABy se iou pue eiqsey se pQUOjiueiu si jQqioiu eqi p eLueu eqi ^M^ Moqs 01 seo6 g-d'xg ^i<b 115^. ibab ibai^ /y 6 petitioner herein in which the name of Up-Kendra/Clinic has been mentioned as Balrampur. It is also noteworthy th-at Smt. Pramila Gupta A.W.7, a witness, examined by respondent No.1 did not support her case and deposed that a girl child was born to Rabika Ekka on 13.01.2001. She has atso proved the entry in the register Ex.P.8 and has categorically denied that a girl^ child was born to Rabika Ekka on 15.02.2002. In this view of the matter, the documentary as also the oral evidence adduced by respondent No.1 had several dents and did not inspire confidence. On the other hand, the evidence led by the petitioner herein proved beyond doubt that the third girl child was born to her on 13.01.2001. The impugned order is thus perverse and is liable to be set aside. 9. In the result, the Civil Revision is allowed. The impugned order dated 11.07.2007 passed by the learned 1s Additional District Judge (F.T.C.), Ramanujganj, Dist.Surguja in Misc. Civil Case No. 1/2005 is set aside. The petition filed by respondent No.1 under Section 20 of the Municipal Corporation Act, 1961 is dismissed. 10. Before parting with this revision, itis aptto mention that it is not merely of some importance, but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly, seem to be done. The pure fountain ofjustice must not only remain unsullied from within, but it must also, even on the surface and outside appear and actually remain unpolluted, so that the confidence of the citizens of the country in the judicial administration of the country may remain unshaken. Confidence in the Court administering justice on the part of both parties Anjani and of the public is a vital element in the administration of justice. The / District Judge, Ambikapur, therefore, ought not to have thrust the decision of the election petition on the 1st Additional District Judge, Ramanujganj, vide letter No. 1004/^-19-1/04, dated 28.06.2007 especially when the learned 1st Additional District Judge vide letter No. 296/07, dated 22.6.2007 had promptly requested for transfer of the election petition after a complaint regarding integrity wasmade against him. i Sd/- | \ Dilip Raosaheb Deshmukh \ Judge