Allowed

Nathu Lal Jangid Son of Shri Shrawan Jangid v. Mohan Lal Son of Shri Jagdish Narayan Saini

Rajasthan HC4 Feb 2019CW/18321/2018

Case brief

AI extract

What is this about?

This writ petition challenged a trial court order setting aside the petitioner's election as Sarpanch on grounds of falsely declaring the date of birth of his son. The High Court quashed the impugned order, holding that entries in the Gram Panchayat births and deaths register constitute conclusive evidence under the Registration of Births and Deaths Act and Evidence Act, superseding unreliable sch

What did the court decide?

Quashed the impugned judgment and decree dated 3rd August 2018 which set aside the petitioner's election as Sarpanch.

Nathu Lal Jangid Son of Shri Shrawan Jangid Vs Mohan Lal Son… — Election Law | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 18321/2018

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Nathu Lal Jangid Son Of Shri Shrawan Jangid, Aged About 54 Years, Resident Of Village Shriram Ki Nangal, Tehsil Sanganer, District Jaipur (Raj.).

¶4

----Petitioner

¶5

Versus

¶6

Mohan Lal Son Of Shri Jagdish Narayan Saini, By Caste Mali, Resident Of Laxmipura @ Jatanipura, Gram Panchayat Shriram Ki Nangal, Tehsil Sanganer, Police Station Sanganer Sadar, District Jaipur.

¶7

Returning Officer (Election), Shriram Ki Nangal, Panchayat Samiti Sanganer, Tehsil Sanganer, District Jaipur Through District Magistrate And District Election Officer, Bani Park, Jaipur.

¶8

District Election Officer (Panchayat) And District Magistrate, Jaipur District, District Magistrate Office, Banipark, Jaipur.

¶9

----Respondents

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For Petitioner(s)	: Mr.	Manoj Bhardwaj
For Respondent(s)	: Mr.	Dinesh Bishnoi

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Order

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04/02/2019

¶14

Aggrieved of the judgment and decree dated 3^rd August, 2018, setting aside the election of the petitioner as ‘ Sarpanch of Gram Panchayat Shriram Ki Nangal’; the petitioner has instituted the present writ application praying for the following relief(s):

¶15

“i) By issuing an appropriate writ, order or direction thereof thereby the order dated 3.8.2018 passed by Additional Civil Judge No.21, Jaipur Metropolitan, Sanganer, Jaipur, in election petition No.5/2018, may

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(2 of 15)

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[CW-18321/2018]

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kindly be quashed and set aside and election petition may kindly be dismissed with cost through out.

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ii) Any other appropriate order or direction which this Hon’ble Court deems fit and proper may kindly be passed in favour of the petitioner.

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iii) Cost of the writ petition may also be awarded to the petitioner.”

¶21

Essential material facts necessary to be taken note of for appreciation of the controversy involved herein are: that the petitioner was declared elected as ‘ Sarpanch of Gram Panchayat Shriram Ki Nangal’ on 23^rd January, 2015. His election was assailed by respondent-election petitioner-Mohan Lal Saini, for the petitioner furnished false information to the Election Officer as he had more than two children. The date of birth of petitioner’s Son Kanhaiya Lal was stated to be 30^th August, 1994, whereas in fact the correct date of birth was 8^th October, 1997, in view of the Mark-sheet of the petitioner’s son issued by Central Board of Education. Repelling the contents of the election petition; the petitioner filed his response, reiterating the fact and statement as to date of birth of his Son Kanhaiya Lal as 30^th August, 1994, for it also found entry in the Gram Panchayat’s Births and Deaths Register. It is pleaded case of the petitioner that his Son’s date of Birth was wrongly entered in the Certificate of Central Board of Education. Further, his name in the mark-sheet has been mentioned as ‘Nathu Lal Khati’ but he writes his name as “Nathu Lal Jangid”. For he mentioned correct date of birth of his children w.e.f 1983 to 1994; hence, prayed for dismissal of the election petition.

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(3 of 15)

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[CW-18321/2018]

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The Court below on a consideration of pleadings of the parties, framed three issues. On appreciation of the documentary as well as oral evidence adduced by the parties; allowed the election petition setting aside the election of the petitioner vide impugned judgment and decree dated 3^rd August, 2018.

¶25

Learned counsel for the petitioner insistently argued that the only issue which needs consideration and adjudication is: whether the Court below has committed serious error of law and fact in ignoring the admissible evidence ? For the entries made as to the date of birth of petitioner’s son Kanhaiya Lal in the record of Gram Panchayat register of births and deaths under the Registration of Births and Deaths Act, 1969 (for short, ‘Act of 1969’) and Rules made thereunder, (Ex.D-1); specifically indicated date of birth of his Son Kanhaiya Lal as 24^th /30^th August, 1994. According to the learned counsel, such evidence is admissible under Section 35 of the Evidence Act, 1872 (for short Evidence Act), which contemplates that an entry in any public or other official book, register, record, stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country for which such book, register escaped is a relevant fact, and therefore, would be admissible as proved by virtue of Section 77 and 79 of the Evidence Act.

¶26

Learned counsel further emphasized that the date of birth of petitioner’s Son (Kanhaiya Lal), was entered into the register maintained under the the Act of 1969 and Rules framed thereunder, as would be evident from a glance of Ex-D1(A1)/Annexure-6. Further, the entry was made, at the instance of the petitioner and his name was also detailed out under column

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(4 of 15)

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[CW-18321/2018]

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No.21. Moreover, DW-2-Asha Meena, Secretary of Gram Panchayat, appeared in the witness box and proved the entry made in the register indicating in no uncertain terms of the date of birth of Kanhaiya Lal-petitioner’s son, as 24^th August, 1994. A copy of which has also been enclosed with the writ application as Annexure-6.

¶30

Thus, the mere fact that there were no entries in the register w.e.f. September, 1994 to May, 1998; cannot be a ground to discard the admissible evidence, which was produced and proved. In support of his stand, learned counsel relied upon the opinion of the Apex Court of the land in the case of CIDCO Vs. Vasudha Gorakhnath Mandevlekar: (2009) 7 SCC 283, Shabnam (Mst.) Vs. Mohd. Shafiq : AIR 2004 Raj. 303 and opinion of a Coordinate Bench of this Court in the case of Ramkripal Singh Vs. Dharmendra Singh and Ors. : S.B. Civil Misc. Appeal No.1937/2018, decided on 16^th May, 2018, which in turn relied upon several opinions of the Supreme Court as well as this Court. 7. Learned counsel for the petitioner further contended that the Court below fell in clear error of law and fact while relying upon a communication Ex-D/4, issued by the ‘Head Master’ of ‘Guarav Public School’, on his letter head, addressed to the SHO, Police Station, Bani Park, Jaipur, indicating date of birth, at the time of admission of the petitioner’s son, as 8^th October, 1997, on the basis of statement of the petitioner; despite of the fact that the ‘Head Master’ never appeared in the witness box to prove the document.

¶31

Per contra : Mr. Dinesh Bishnoi, learned counsel for the election petitioner while supporting the impugned judgment and decree dated 3^rd August, 2018, contended that the Court below on

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(5 of 15)

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[CW-18321/2018]

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a proper consideration of the pleadings of the parties and appreciation of evidence, rightly concluded on the issue of date of birth of petitioner’s son and false information furnished by the petitioner to the election officer. Learned counsel vociferously argued that the findings arrived at by the Court below as to the date of birth of the petitioner’s son being 8^th October, 1997, suffered with no material illegality and/or perversity so as to call for any interference by this court in exercise of writ jurisdiction under Article 226 and/or 227 of the Constitution of India. In order to fortify his stand, learned counsel relied upon the opinion of a Coordinate Bench of this Court in the case of Smt. Movni Bai Vs. Smt. Nazri Bai and Ors. : 2003 WLC (Raj.) UC 122 and Kumbha Ram Vs. State of Rajasthan : 2017(2) WLC (Raj.) 49.

¶35

Heard the learned counsel for the parties and with their assistance perused the relevant materials available on record and critically examined the impugned judgment and decree so also gave my thoughtful consideration to the rival submissions at Bar. 10. Indisputably, the entries in the birth and death register are/were maintained in the Gram Panchayat, under the Act of 1969 and Rules made thereunder, which has been brought on record as Ex-D/1. The entries in the register aforesaid in no uncertain terms indicates the date of birth of petitioner’s son (Kanhaiya Lal) as 24^th August, 1994 and the entry made on 30^th August, 1994, as per information furnished by the petitioner, as would be evident from the entries under column 2, 3 and 21, of the register (Ex.D-1/Annexure-6). The statement made on behalf of the petitioner that the entries made in the mark-sheet as to the date of birth of the petitioner’s son were not proved for ‘Head Master’ of ‘Guarav Public School’, did not appear in the witness

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(6 of 15)

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[CW-18321/2018]

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box, who addressed a communication on his letter head to the SHO, Police Station, Bani Park, Jaipur, stating that date of birth of the petitioner’s son as 8^th October, 1997 on the information of the petitioner; has substance.

¶39

The controversy raised in the instant case at hand may not detain this Court for long in view of the opinion of a Division Bench of this Court in the case of Shabnam (Mst.) (supra), wherein relying upon opinions of the Apex Court of the land and on a survey of opinions of various High Courts, taking note of the fact that while a certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it. The Division Bench also took note of the fact that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service. At this juncture, it will be profitable to take note of contents to the text of para 9 to 11, of the case supra, which reads thus:

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“9. It is submitted by the learned counsel that birth certificate has been issued by the Municipal Council under Section 12/17 of the Birth Death Registration Act which carries a presumption about its correctness. On the basis of the said certificate and affidavit of the plaintiffs father, the Education Department by order dated 16-9-1993 has accepted the prayer of the plaintiff and directed to correct the date of birth of plaintiff as 15-3-1978. So long that document has not been set aside by a competent authority or the Court, it is binding on one and all. All the school certificates from Exhibit. A-1 to A-50 stands corrected in view of the order of Education Department dated 16-9-1993. There is also no reason to disbelieve the birth certificate issued by the Municipal Council. The certificate issued by the Municipal Council with respect to the date of birth of a person is a public document under the provisions of Sections 35 and 77 of the Evidence Act. 9h is

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(7 of 15)

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[CW-18321/2018]

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an evidence of conclusive nature unless disproved. We are fortified in our view by the judgment of the Calcutta High Court in Dalim Kumar Sain v. Smt. Nandarani Dassi (2). Said decision is based on the judgment of Patna High Court in Nanhak Lal v, Balinath Agarwala (3). Calcutta High Court has also referred to its earlier decision in Anil Krishna Basak v. Sailendra Nath Paul (4). Patna High Court in Nanhak Lal's case (supra) has held, thus -

¶44

"A certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it."

¶45

The Apex Court in Brij Mohan Singh v. Priya Brat Narain Sinha reported in MANU/SC/0189/1964 : AIR 1965 SC 282 has observed as follows :-

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"In actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the Court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon. false information supplied with the above motive."

¶47

The Apex Court again in Birad Mal Singhvi v. Anand Purohit reported in MANU/SC/0052/1988 : AIR 1988 SC 1796 dealing with the entry relating to date of birth made in school register observed as follows :-

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"An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."

¶49

In the case of CIDCO (supra), the Apex Court of the the land on a survey of earlier opinions in no uncertain terms held that entry in Municipal Births and Deaths Register, with reference to date of birth, would prevail over entry in school register, particularly, in the absence of any proof that the same was

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(8 of 15)

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[CW-18321/2018]

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recorded at the instance of guardian of the candidate. Here, it will be profitable to take note of contents to the text of para 12 to 14 and 18, which reads thus:

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“12. A list of employees retiring in the year 2006 was published on 30.9.2005 wherein the respondent's name did not figure. In fact, it was shown that in other documents, the year of her superannuation was shown to be 2008. Appellant had issued a memo. The respondent replied thereto by a letter dated 19.4.2005 wherein she categorically mentioned that she had produced the copy of the birth certificate issued by the Panvel Municipal Council on many occasions. She had also produced copy of the graduation certificate and birth certificate from the said Council. She, therefore, requested the appellant to accept her date of birth as 2.10.1950.

¶54

Although criticism has been made by Shri Bhasme in regard to the certificate issued by the Panvel Municipal Council on the premise that it having itself been constituted in the year 1976, could not have issued the said certificate; we may notice that the Municipal Council in its letter dated 28.12.2007 issued to the Manager (Labour) CIDCO, not only disclosed the date of birth of the respondent but also her other sisters brothers. Veracity and/or genuineness of the said certificate is not in question.

¶55

Mr. Navare furthermore appears to be right in contending that although the Municipal Council came into being in 1976, the statutory records of birth and death used to be maintained by its predecessor, the Gram Panchayat. The said statement appears to be correct as would appear from a letter dated 3.11.2006 by the Panvel Municipal Council addressed to the Manager (Labour) of the appellant stating that the said certificate is issued as per the original record of deaths and birth with the Municipal Council.

¶56

The Deaths and Births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that

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(9 of 15)

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[CW-18321/2018]

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same was recorded at the instance of the guardian of the respondent. [See Birad Mal Singhvi v. Anand Purohit.”

¶60

The stand of the counsel for the respondent-electionpetitioner that the entry in the Birth and Death Register, has been created later-on, has no substance. The plea that there were no entries in the Month of July, 1994 and September, 1994 to May, 1998; cannot be a reason sustainable in law in absence of reasonings in support thereof, to disbelieve the entries in the register maintained by the gram panchayat Annexure-6.

¶61

It will be profitable to take note of the text of Section 8 of the Act of 1969, which ordains the persons required and as specified therein to furnish information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of Section 16. Section 8 of the Act of 1969, reads thus:

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8. Persons required to register births and deaths. —(1) It shall be the duty of the persons specified below to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16,-

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(a) in respect of births and deaths in a house, whether residential or non-residential, not being any place referred to in clauses (b) to (e), the head of the house or, in case more than one household live in the house, the head of the household, the person, who is so recognised by the house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the nearest relative of the head present in the house, and in the absence of any such person, the oldest adult male person present therein during the said period;

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(10 of 15)

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[CW-18321/2018]

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(b) in respect of births and deaths in a hospital, health centre, maternity or nursing home or other like institution, the medical officer in charge or any person authorised by him in this behalf;

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(d) in respect of births and deaths in a choultry, chattram, hostel, dharmasala, boarding-house, lodging-house, tavern, barrack, toddy shop or place of public resort, the person in charge thereof;

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(e) in respect of any new-born child or dead body found deserted in a public place, the headman or other corresponding officer of the village in the case of a village and the officer in charge of the local police station elsewhere:

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Provided that any person who finds such child or dead body, or in whose charge such child or dead body may be placed, shall notify such fact to the headman or officer aforesaid;

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(f) in any other place, such person as may be prescribed.

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(2) Notwithstanding anything contained in sub-section (1), the State Government, having regard to the conditions obtaining in a registration division, may by order require that for such period as may be specified in the order, any person specified by the State Government by designation in this behalf, shall give or cause to be given information regarding births and deaths in a house referred to in clause (a) of sub-section (1) instead of the persons specified in that clause.”

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Under Chapter IV of the Act of 1969, provisions have been

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made for Maintenance of Records and Statistics, which reads thus:

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“ 16. Registrars to keep registers in the prescribed form .-—(1) Every Registrar shall keep in the prescribed form a register of births and deaths for the registration area or any part thereof in relation to which he exercises jurisdiction.

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(11 of 15)

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[CW-18321/2018]

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(2) The Chief Registrar shall cause to be printed and supplied a sufficient number of register books for making entries of births and deaths according to such forms and instructions as may, from time to time, be prescribed; and a copy of such forms in the local language shall be posted in some conspicuous place on or near the outer door of the office of every Registrar.

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17. Search of births and deaths register. —(1) Subject to any rules made in this behalf by the State Government, including rules relating to the payment of fees and postal charges, any person may—

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(a) cause a search to be made by the Registrar for any entry in a register of births and deaths;

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(b) obtain an extract from such register relating to any birth or death: Provided that no extract relating to any death, issued to any person, shall disclose the particulars regarding the cause of death as entered in the register.

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(2) All extracts given under this section shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in section 76 of the Indian Evidence Act, 1872 (1 of 1872), and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates.

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18. Inspection of registration offices .—The registration offices shall be inspected and the registers kept therein shall be examined in such manner and by such authority as may be specified by the District Registrar.

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19. Registrars to send periodical returns to the Chief Registrar for compilation. —(1) Every Registrar shall send to the Chief Registrar or to any officer specified by him, at such intervals and in such form as may be prescribed, a return regarding the entries of births and deaths in the register kept by such Registrar.

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(2) The Chief Registrar shall cause the information in the returns furnished by the Registrars to be compiled and shall publish for the information of the public a statistical report on the registered births and deaths during the year at such intervals and in such form as may be prescribed.”

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(12 of 15) [CW-18321/2018]

¶87

In exercise of powers conferred by virtue of Section 30 of the Act of 1969; Registration of Births and Deaths Rules, 2000 (for short, ‘Rules of 2000’), have been framed. Rule 5 of the Rules of 2000, provides for Forms etc., for the purpose of Registration of Births and Deaths as contemplated under Section 8 and 9 of the Act, 1969. Rule 8 of the Rules of 2000, contemplates details of the entries for the prescribed form No.5 or 6, and extract of the prescribed particulars to be furnished to the person who gives information under Section 8 or 9 of the Act of 1969. Failure, without any reasonable cause on the part of any person obliged to give any information, as provided under the provisions of Section 8 and 9, has been made punishable with penalties as prescribed under Section 23. Further, by virtue of Section 17 (2) all the extracts furnished have been made admissible in evidence for the purpose of proving the birth or death to which the entry relates, which is evident from text of Section 17(2) , as extracted hereinabove.

¶88

Rule 5 and 8 of the Rules of 2000, framed by the State of Rajasthan under the Act, 1969, reads thus:

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“ 5. Form, etc. for giving information of births and deaths- -(1) The information required to be given to the Registrar under section 8 or section 9, as the case may be, shall be in Form Nos. 1, 2 and 3 for the Registration of a birth, death and still birth respectively, hereinafter to be collectively called the reporting forms, information if given orally, shall be entered by the Registrar in the appropriate reporting forms and the signature/thumb impression of the informant obtained.

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(2) The information referred to in sub-rule (1) shall be given within twenty one days from the date of birth, death and still birth.

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(13 of 15)

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[CW-18321/2018]

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(3) The part of the reporting forms containing legal information shall be called the 'Legal Part' and the part containing statistical information shall be called the 'Statistical Part'.

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8. Extracts of registration entries to be given under section 12- (1) The extracts of particulars from the register relating to births or deaths to be given to an informant under section 12 shall be in Form No.5 or Form No.6, as the case may be.

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(2) In the case of domiciliary events of births and deaths referred to in clause (a) of sub-section (1) of Section 8 which are reported direct to the Registrar of Births and Deaths, the head of the house or household as the case may be, or, in his absence, the nearest relative of the head present in the house may collect the extracts of birth or death from the Registrar within thirty days of its reporting.

¶96

(3) In the case of domiciliary events of births and deaths referred to in clause (a) of sub-section (1) of section 8 which are reported by persons specified by the State Government under sub-section (2) of the said section, the person so specified shall transmit the extracts received from the Registrar of Births and Deaths to the concerned head of the house or household as the case may be, or, in his absence, the nearest relative of the head present in the house within thirty days of its issue by the Registrar.

¶97

(4) In the case of institutional events of births and deaths referred to in clauses (b) to (e) of sub-section (1) of section 8, the nearest relative of the new born or deceased may collect the extract from the officer or person in charge of the institution concerned within thirty days of the occurrence of the event of birth or death.

¶98

(5) If the extract of birth or death is not collected by the concerned person as referred to in sub-rules (2) to (4) within the period stipulated therein, the Registrar or the officer or person in charge of the concerned institution as referred to in sub-rule (4) shall transmit the same to the concerned family by post within fifteen days of the expiry of the aforesaid period.”

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(14 of 15)

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[CW-18321/2018]

¶101

Thus, on a cumulative consideration of the factual matrix of the case at hand in the face of Ex.D/2/(Annexure-6) annexed to the writ application; the Court below could not have ignored the admissible evidence available on record, which ought to have been preferred qua entry in the Certificate issued by the Central Board of Secondary Education.

¶102

In the case of Smt Movni Bai (supra), a Coordinate Bench of this Court dealt with the controversy in the factual matrix of the case, wherein a letter was produced after closure of evidence and was not admitted in evidence. Further, petitioner therein produced another certificate of nurse stating delivery at home of the child to her on 19^th September, 1995, and the certificate was produced to that effect, before the trial Court on the date of judgement, but the nurse was not examined. The facts, of the case at hand, are entirely different, distinct and distinguishable. Moreover, the entries, made in the births and deaths register of the village panchayat, have been brought on record and proved in view of the statement deposed by DW/2-Asha Meena, whose testimony could not be demolished during the course of cross-examination.

¶103

In the case of Kumbha Ram (supra), the opinion was expressed in the factual matrix, wherein the matter was examined in the backdrop of Section 7(A) and 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rules made thereunder. Further, Section 12 contemplated the procedure to be followed in determination of age, which provided the basis of documents, detailed out therein; to determine juvenility of the accused, which is not the case at hand. Hence, the opinion has no application to the facts of the case.

¶104

(15 of 15) [CW-18321/2018]

¶105

For the reasons and discussions aforesaid and in view of the settled legal proposition; the Court below committed serious error of law and fact, in not relying upon the entries of the births and deaths register that was maintained, in accordance with law, and such evidence is admissible under the Evidence Act. There is no reason to doubt the entries made in the births and deaths register of Gram Panchayat (Ex.D/1)/Annexure-6.

¶106

In the result, writ application succeeds and is hereby allowed. The impugned judgement and decree dated 3^rd August, 2018, deserves to be quashed and are hereby quashed.

¶107

However, in the facts and circumstances of the case, there

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shall be no order as to costs.

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(VEERENDR SINGH SIRADHANA),J

¶110

Pcg/178

Nathu Lal Jangid Son of Shri Shrawan Jangid v. Mohan Lal Son of Shri Jagdish Narayan Saini

Case brief

What is this about?

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Nathu Lal Jangid Son of Shri Shrawan Jangid v. Mohan Lal Son of Shri Jagdish Narayan Saini

Case brief

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What did the court decide?

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