- (1.) BY this petition under Article 227 of the Constitution of India a challenge has been laid to the judgment dated 6-9-2011, passed by the District Judge Dholpur in election petition No.61/2010, whereby the election of the petitioner Kavita, defendant before the trial court (herein after 'the defendant'), has been set aside under the provisions of Section 19(a) of the Rajasthan Panchayati Raj Act, 1994 (herein after the Rs.1994 Act') holding that from the evidence on record it was established that the defendant at the time of contesting election for the post of Member of Panchayat Samiti for Ward No.8, Basedi was not 21 years of age and thus ineligible to contest.
(2.) HEARD learned counsel for the parties and perused the impugned order dated 6-9-2011 passed by the trial court. The trial court has held that on the basis of Ex.P-4A, which was the Scholar Register as also Ex.P-5A, which was the admission form of defendant Kavita obtained from the Government Upper Primary School Domai, and proved by the then Head Master one Narayan Singh Meena (AW-2), it was established that the date of birth of the petitioner was 1-7-1992, which rendered the petitioner less than 21 years of age to contest the election on 21-1-2010. The evidence of Narayan Singh Meena (AW-2) before the trial court remained uncontroverted and the petitioner did not even cross examine the said witness. Apart from the aforesaid, the trial court has also found that in the voter-list, for the assembly constituency of the area within which the defendant resided, she was shown 19 years old as on 1-1-2009. Based on these facts, the trial court has come to the conclusion that the election petition as laid by the respondent plaintiff (herein after 'the plaintiff') was liable to be allowed and the election of the petitioner, defendant before the trial court, as ward Panch of Ward No.8 of Panchayat Samiti Basedi District Dholpur was liable to be set aside under Section 19(a) of the 1994 Act for reason of her being ineligible. I do not find any force in the argument of learned counsel for the petitioner that the evidence of Narayan Singh Meena (AW-2) was of no probative worth even though his deposition before the trial court proving the defendant's date of birth as 1-7-1992 went unchallenged by not cross-examining him in spite of opportunity. It has been submitted that the local counsel was derelict in his duty in not cross-examining the witness and instead allowing him a free run. It has been submitted that the defendant should not made to suffer the consequence of dereliction of duty by the local counsel. More so as the Head Master (AW-2) who has proved the defendant's date of birth as 1-7-1992 before the trial court had also issued another birth certificate to the defendant at the time of filing application form for contesting the election wherein the date of birth of the defendant was shown as 1-7-1988. Counsel submits that in this view of the matter the learned trial court ought not to have relied upon the testimony of Narayan Singh Meena (AW-2) before it and set aside the election of the defendant. I however find no force in the submission of counsel for the defendant in view of the fact that the purported birth certificate allegedly issued by Narayan Singh Meena (AW-2) to the defendant indicating her date of birth as 1-7-1988 was not put to the witness in cross-examination when he stood as witness for the election petitioner and proved exhibit 4A and 5A. The Scholar Register (Exhibit 4A) qua the defendant and admission form (Exhibit 5A) of the defendant duly signed by the father showed her date of birth as 1-7-1992. In the case of Narayan Govind Gavate Vs. State of Maharashtra [(1977)1 SCC 133] the Hon'ble Supreme Court has held that the result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another. In the case before me, in the context of proved documents Ex.P-4A and P-5A by the Head Master Narayan Singh Meena (AW-2) and in the context of Section 35 and 114 (e) of the Evidence Act the weight of the evidence was wholly against the petitioner-defendant. The defendant did not bring any competing evidence before the trial court to displace the evidence of Narayan Singh Meena (AW-2) laid by respondent-plaintiff buttressed by Sections 35 and 114 (e) of the Evidence Act. In my considered opinion, therefore the evidence led by the witnesses of the election petitioner could not have been disbelieved as the evidence of requisite probative worth. On his part the petitioner defendant also failed to bring on record the best evidence she had to dilute and rubbish the evidence of the election petitioner as she was under a legal duty with reference to Section 106 of the Evidence Act. No attempt was made to place on record of the trial court the ration-card of the family members reflecting the age of the petitioner-defendant. It was for the defendant to have laid positive evidence of probative worth before the trial court to dislodge the evidence of her date of birth being 1-7-1992. Reference in this regard can be had to L.N. Gadodia and Sons Vs. Regional Provident Fund Commissioner [2011(13) SCC 517], wherein the Apex Court held as under:- "... When any fact is especially within the knowledge of any person, the burden of proving that fact lies on him. This rule (which is also embodied in Section 106 of the Evidence Act) expects such a party to produce the best evidence before the authority concerned, failing which the authority cannot be faulted for drawing the necessary inference."
(3.) APART from the aforesaid, the Hon'ble Supreme Court in case of Sadhana Lodh Vs. National Insurance Co. Ltd. [AIR 2003 SC 1561] has held that the jurisdiction of the High Court under Article 227 of the Constitution of India is very limited and ought to be only to see whether an inferior Court or Tribunal has acted within its jurisdiction and has not committed perversity or misdirected itself in law. In the context aforesaid, I am of the view that there is nothing amiss with factually and/ or legally in the impugned order dated 6-9-2011 passed by the trial Court District Judge Dholpur warranting any interference at the hands of this court. The findings arrived at by the trial court in the context of facts of the case and law applicable thereto are neither perverse nor suffer from any misdirection in law. Therefore I find no force in the writ petition and the same is dismissed. Stay application also stands dismissed.;