Rajasthan High Court

Dr. Raj Ishwar D Khare Son Of Late ... vs Dulheram Meena Son Of Shri ... on 23 March, 2022

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 15008/2021

Dr. Raj Ishwar D Khare Son Of Late Durga Dayal Khare, Aged
About 88 Years, Founder Trustee Apollo Animal Medical Group
Trust Permanently Resident Of 1728, W. Cheletenham Ave,
Philedelphia, Pa. 19126 Usa Presently Residing At 31-A, Ganesh
Vihar, Jamdoli Agra Road, Jaipur.
                                                                   ----Petitioner
                                   Versus
1.     Dulheram Meena Son Of Shri Ramswaroop Meena, R/o
       Plot No. 17, Durga Vihar, Malviya Nagar, Jaipur Alleged
       Working Trustee Apollo Animal Medical Group Trust,
       Jaipur.
2.     Assistant    Commissioner-I,               Devasthan        Department,
       Govt.of Rajasthan, Jaipur.
3.     The    Commissioner         Devasthan           Department,       Udaipur,
       Rajasthan.
                                                                ----Respondents

For Petitioner(s) : Mr. Swadeep Singh Hora Mr. G.P. Sharma For Respondent(s) : Mr. S.K. Gupta, Sr. Adv. with Mr. Rajneesh Gupta Mr. Shashi Bhushan Gupta Mr. Rahul Sharma Mr. C.L. Saini, AAG

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

23/03/2022

Heard on application No.1/2022 filed by the petitioner for

taking additional documents on record.

The present writ petition has been filed by the petitioner

challenging the order dated 01.11.2022 passed by the

Commissioner Devasthan Rajasthan, Udaipur, whereby the

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application filed by the petitioner under Section 39 of the Public

Trust Act, 1959 was dismissed. During pendency of the writ

petition, these documents filed by the petitioner are with regard to

notices issued by the Veterinary Council of India to the Managing

Trustee of Apollo Animal Medical Group Trust, Jaipur to show that

the trust is not functioning properly.

Learned Senior Counsel appearing on behalf of respondents

submitted that the documents which have been filed by the

petitioner are not relevant to decide the present controversy

involved in this writ petition. Learned Senior Counsel further

submits that since this Court examining the legality of the order

passed by the Commissioner Devasthan, Rajasthan, Udaipur,

therefore, these documents are not relevant to decide the issue

involved in the present writ petition.

Learned Senior Counsel relied upon a judgment passed by

the Co-ordinate Bench of this Court in the matter of Ghanshyam

Vs. Kajodmal & Ors. (S.B. Civil Writ Petition No.3916/2017)

decided on 02.05.2017, where in it has been held as under:-

"Under challenge is the impugned judgment dated 20.02.2017 passed by the Senior Civil Judge, (Election Tribunal) Rajgarh, District Alwar (hereinafter 'the Election Tribunal') allowing the election petition filed by the respondent-election petitioner (hereinafter 'the election petitioner') against the election of the petitioner-returned candidate (hereinafter 'the returned candidate') and setting aside his election as the Sarpanch of Gram Panchayat Purana Rajgarh, Tehsil Rajgarh, District Alwar for reason of his being disqualified to contest on the ground of having fathered a third child variously named Gudiya, Chandani and Chinu on 06.07.1996 subsequent to the cut off date of 27.11.1995 set out under proviso (iv) of Section 19 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994') read with Clause (e) thereof.

Heard the counsel for the parties.

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Before addressing the petition on merits it would be appropriate to consider an application under Order 41 Rule 27 read with Section 151 CPC filed on behalf of the returned candidate seeking to have three documents taken on record, the more important of which are, one the purported photocopy of the births and deaths register of the Gram Panchayat Purana Rajgarh and the other alleged birth certificate dated 05.08.1995 both seemingly indicating that the third child of the petitioner was in fact born on 07.03.1994 prior to the cut off date of 27.11.1995 rendering the returned candidate eligible to contest the election to the post of Sarpanch.

This petition at hand is one under Article 226 of the Constitution of India seeking the quashing and setting aside of the impugned judgment dated 20.02.2017 passed by the Election Tribunal. I am of the considered view that no evidence either with reference to Order 41 Rule 27 CPC or that matter with reference under Section 151 CPC or taken together can be permitted on record of the petition. It is well settled that the discretionary jurisdiction to issue a writ of certiorari under Article 226 of the Constitution of India and the supervisory jurisdiction under Article 227 is to be exercised sparingly in appropriate cases where the judicial conscience of the Court dictates it to act lest a gross failure of justice or grave injustice should occasion. The Court while exercising its power of judicial review and called upon to issue a writ of certiorari does not act either as a court of appeal or revision nor can it take "additional evidence" on record which was not before the court/tribunal/authority below. The Court has to confine itself to assessing the legality substantive and procedure and fairness of the impugned judgment within the boundaries of the evidence before the court below. It cannot even re-appreciate evidence and interferes only when a case of perversity, patent illegality or error of jurisdiction leading to manifest injustice is made out. In the aforesaid limitation of this Court's jurisdiction in a writ of certiorari under Article 226 of the Constitution of India it is inconceivable that the Court would be required or empowered to consider and have the jurisdiction to take "additional evidence" on record which could then be utilized either for setting aside the impugned order or for occasioning a remand to the trial for reconsideration afresh based on such "additional evidence". Such consideration of "additional evidence" in a writ of certiorari would undercut the well settled principles enumerated above on which the court exercises its jurisdiction. The Apex Court in the case of Registrar General High Court of

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Judicature of Madras versus K.

Muthukumarsamy & Anr., 2014 (16) SCC 555, held that consideration of additional material by the High Courts which was not produced before the authority whose order was challenged before it was in excess of its jurisdiction and based thereon, it could not come to the conclusion that the impugned order, in that case, with regard to the culpability of the delinquent was liable to be set aside. The principle deducible from the aforesaid judgment of the Apex court is that material/evidence not placed before the authority/court below for consideration cannot be considered by the Court in a petition seeking a writ of certiorari as "additional evidence" to sustain a challenge to the impugned order/judgment before it. In this view of the matter, the application under Order 41 Rule 27 CPC read with Section 151 CPC is liable to be rejected. It is accordingly so. And for this reason the contention of counsel for the election petitioner that the documents produced as "additional evidence" are palpably false is not being addressed as it would be an exercise in redundancy. Reverting to the challenge to the impugned judgment dated 20.02.2017 passed by the Election Tribunal, a perusal thereof makes it clear that it is interalia based on findings of fact on appreciation of evidence before it with regard to the third child i.e. Gudiya/Chandani/Chinu fathered by the returned candidate on 06.07.1996 after the cut off date of 27.11.1995 rendering him ineligible to contest the election on the post of Sarpanch. For its conclusions, the trial court relied upon the evidence of PW-2 Renu Bhungada, the Principal of the Government Girls Higher Secondary School, Rajgarh who proved before it Exhibit-18 i.e. the scholar register of the said school recording that the said third child of the returned candidate, Gudiya admitted to the said school, was born on 06.07.1996. This evidence was also buttressed by the Secondary School marksheet of Gudiya daughter of the returned candidate, issued by the Rajasthan Board of Secondary Education which indicated her date of birth as 06.07.1996. It is universally known that the date of birth in the secondary school mark sheet issued by the Board is based on the information supplied by the student herself. Against the aforesaid weighty evidence of the election petitioner with regard to the date of birth of the third child (Gudiya) of the returned candidate, rendering him ineligible to contest election on the post of Sarpanch, the returned candidate merely relied upon the oral testimony of the alleged midwife, NAW-6 Dhanni Devi, who allegedly delivered Gudiya at the time of her delivery at

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home on 07.03.1994 as also evidence of the priest--who stated that following the alleged birth of Gudiya on 07.03.1994, he had overseen the celebrations at the returned candidate's home. The Apex Court has held that Courts should be wary of oral evidences particularly in election matters as the witnesses standing for each of the contesting parties are partisan. The sequitur is that to the exclusion of oral evidence, admissible documentary evidence duly proved is more reliable. The judgment of the trial court stands on the probabilities generated on such documentary evidence in the case. And in an election petition laid on challenge to the eligibility of returned candidate, the standard of proof is preponderance of liabilities. I am of the considered view that in the obtaining facts of the case, the impugned judgment passed by the Election Tribunal cannot even remotely be held to be perverse, patently illegal or suffering from error of jurisdiction to warrant interference in this petition under Article 226 of the Constitution of India.

There is no force in the petition. It is dismissed."

Heard counsel for the parties and perused the record.

This application filed by the petitioner deserves to be

dismissed, for the reasons; firstly, this Court has to examine the

legality of the order passed by the Commissioner Devasthan

Rajasthan, Udaipur as well as the order passed by the Assistant

Commissioner Devasthan First, Jaipur, therefore, in my considered

view, the documents submitted by the petitioner are not relevant

to decide the present writ petition.

Hence, the application No.01/2022 stands dismissed.

Heard on the application No.02/2022 filed on behalf of the

respondents.