2002 Supreme(Raj) 1833
RAJASTHAN HIGH COURT AT JAIPUR BENCH
K.S.Rathore, J.
Krishna Gopal - Appellant
Versus
Indra Narain & ors. - Respondent
S.B. Civil Writ Petition No.949 of 2002.
Decided On : 21-10-2002
The burden of proof lies on the petitioner to establish disqualification under the Act, and the Court cannot reevaluate evidence unless there is a clear error of law.
Headnote:
Rajasthan Panchayati Raj Act - Election Dispute - Section 43 of the Rajasthan Panchayati Raj Act, 1994 - Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994
Fact of the Case:
The petitioner filed an election petition alleging that the elected Sarpanch was disqualified under Section 19 of the Rajasthan Panchayati Raj Act due to the birth of his third child after the specified date. The Election Tribunal found against the petitioner, leading to the writ petition.
Finding of the Court:
The Court found that the petitioner failed to prove the disqualification of the elected Sarpanch based on the birth date of his third child. The Court held that it cannot sit as an Appellate Court to reevaluate the evidence presented before the Tribunal.
Issues: Disqualification of the elected Sarpanch under Section 19 of the Rajasthan Panchayati Raj Act based on the birth date of his third child.
Ratio Decidendi: The burden of proof lies on the petitioner to establish disqualification under the Act. The Court cannot interfere with the Tribunal's findings unless there is a clear error of law.
Final Decision: The writ petition was dismissed, upholding the Election Tribunal's decision.
JUDGMENT
1. - The present writ petition is directed against the judgment dated 7.1.2002 passed by Additional District Judge, Kekri, Ajmer in election petition No. 6/2001 (Annexure-1) whereby the election petition was dismissed.
2. The petitioner had filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 in which it was pleaded that as per election programme declared by the State Government, nomination forms for the post of Sarpanch were filed on 3.2.2000.
3. On 4.2.2000 the elections took place and Returning Officer declared Indra Narain-respondent No.1 as elected Sarpanch of village Panchayat Junia Tehsil Kekri District Ajmer.
4. It is contended on behalf of the petitioner that the petitioner submitted objection petition against nomination form of the respondent No.1 to the effect that the respondent No.1 is having three children and his third child, who is girl, was born after 27.11.1995 when the Panchayat Rules came into force and as per Section 19 of the Rajasthan Panchayati Raj Act, the respondent No.1 is disqualified to contest the election. The allegations alleged by the petitioner is supported by affidavits of two persons, but the Returning Officer did not reject the nomination paper of the respondent No.1.
5. The Election Tribunal has framed the issues to determine the election petition. In support of the issues, the petitioner examined seven witnesses PW1 to PW7 and produced documentary evidence Ex.P1 to P33 whereas the respondent No.1 examined seven witnesses DW1 to DW7 and produced Ex.A1 -to A4.
6. The Tribunal vide its judgment dated 7.1.2002 while deciding the issue No.1 against the petitioner has held that the petitioner has not been able to prove that third child Shivani @ Lali of respondent No.1 was born after 27.11.1995.
7. Learned counsel for the petitioner Mr. Narendra Jain assailed the judgment dated 7.1.2002 on the ground that the Election Tribunal has not appreciated the oral as well as documentary evidence produced on behalf of the Petitioner. It was well proved that third child, Shivani @ Lali of the respondent No.1 born on 7th June, 1997 i.e. after 27.11.1995.
8. Mr. Jain submitted the copy of the survey of 1999 wherein the year of birth of third child of the respondent No.1 was mentioned as 27.11.1998 and submits that this document is a public document and was prepared in the year 1999 when the election was not declared.
9. He also drawn my attention towards original documents of attendance register of "Angan Badi Centre" Ex.2 to Ex.13 and in support of entry made in the attendance register and the same were proved by the statement of PW 5, Sandhya, who was an independent witness in the present case in which it was stated that Smt. Dilabar w/o Indra Narain gave a birth to a female child on 7th June, 1997.
10. Learned counsel also read over the statement of ANM in support of survey report of July, 1999 and Indra Kumari ANM has Rev en the statement which is corroborated with Ex.14 wherein column No. 38 date of LMP has been mentioned as 15.9.1996 and date of EDD has been mentioned as 22.6.1997.
11. More particularly Mr. Jain referred para 3 at page 19 of the judgment of Election Tribunal which is reproduced hereunderVERNACULAR MATTER OMITTEDand submits that since the Tribunal itself has not arrived at definite conclusion and also failed to appreciate the documentary witness examined by the petitioner and on the surmises and conjecture, the finding is given that since the petitioner is not having knowledge about the birth of third child directly and in such circumstances, documents placed by the respondent No.1 cannot be disbelieved.
12. Mr. Jain further submits that on the instance of the respondent No.1 certain documents are also tempered and manipulated, despite this fact, the petitioner is able to produce ample documentary evidence as well as witnesses to prove this fact that third child of respondent No.1 wa
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