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2012 Supreme(Raj) 871
(Rajasthan High Court)
Jaipur Bench
Bharatraj @ Bharatram Vs. A.C.J., Baran (Jain-I, J.)
HON'BLE ARUN MISHRA, CJ.
HON'BLE NARENDRA KUMAR JAIN-I, J.
Bharatraj @ Bharatram
Versus
Additional Civil Judge (S.D.), Baran, District Baran & Ors.
D.B. Special Appeal (Writ) No. 354 of 2012
IN
S.B. Civil Writ Petition No. 949 of 2012, decided on 13.08.2012
Manoj Choudhary, for Appellant;
Dr. Mahesh Sharma, for Respondent No. 2
Headnote:Rajasthan Panchayati Raj Act, 1994, Sec. 19(1), 43; Rajasthan Panchayati Raj (Election) Rules, 1994, Rule 80 — Disqualification — Appellant had two sons and a girl child — The girl child was given in adoption through registered adoption deed before the date of nomination — Whether the adopted child can be counted as a child of the appellant in context of provisions of Sec. 19(1) of the Act? — Held — Disqualification is attracted no sooner a third child is born and is living after two living children — Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. (Paras 16 to 18)
Appeal dismissed.
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2. This intra Court appeal is directed against impugned order dated 7th February, 2012, passed by Single Bench, whereby writ petition, filed by the petitioner/appellant, against judgment/order dated 20th December, 2011, passed by Additional Civil Judge(Senior Division), Baran, declaring his election on the post of Sarpanch as illegal and void, has been dismissed.
3. Briefly stated, the facts of the case are, that election for the post of Sarpanch of Gram Panchayat Manpura, Panchayat Samiti Chippabarod, District Baran, took place on 31st January, 2010. The petitioner/appellant was declared as elected Sarpanch. Respondent No. 2, Kajod filed election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994(for short 'the Act of 1994') read with Rule 80 of the Rajasthan Panchayati Raj(Election) Rules, 1994 in the Court of District Judge, Baran, which was transferred to the Court of Civil Judge(S.D.) and Additional Chief Judicial Magistrate, Chhabra. Again election petition was transferred to the Court of Additional Civil Judge(Senior Division), Baran(for short 'the Election Tribunal'). Respondent No. 2, Kajod(Election Petitioner) in his election petition averred that appellant Bharatraj @ Bharatram(Non-Petitioner No. 1) filed his nomination form on 30th January, 2010 for the post of Sarpanch, but on the date of nomination, he was disqualified under Section 19(l) of the Act of 1994, as he was having three children and all three children were born after 27.11.1995. The said fact was concealed by Non-Petitioner No. 1, when the nomination was filled. Although, objection petition was filed, but the same was rejected by the Election Officer. Since, there was more than two children of Non-Petitioner No. 1, therefore, he was not qualified to contest election and as such, the entire election process and its declaration of result, are illegal and bad in law. He, therefore, prayed that result of election of Sarpanch of Gram Panchayat Manpura dated 31.01.2010 be declared as null and void.
4. Non-Petitioner No. 1 filed his reply to election petition, wherein he submitted that the election petitioner has not disclosed the names of children of Non-Petitioner No. 1. No objection was raised about it before Returning Officer at the time of nomination. Non-Petitioner No. 1 has been declared validly elected Sarpanch by Non-Petitioner No. 2, Returning Officer. It was further submitted that Non-Petitioner No. 1 is having two sons namely Kuldeep and Kalpesh. One girl was born, which was given in adoption soon after her birth to one Harish @ Bunty and his wife Vasundhara through registered adoption deed and since then, she is living with her adoptee parents and she has no connection with Non-Petitioner No. 1. Her all rights have been curtailed in the share/family of Non-Petitioner No. 1.
5. Non-Petitioner No. 2, Election Officer filed a separate reply to election petition, wherein it was submitted that election was got conducted in accordance with the rules and there was no illegality or irregularity in it. At the time of election, no authenticated documents were produced in support of objection.
6. Learned Election Tribunal, on the basis of pleadings of parties, framed four issues. Both the parties led their oral and documentary evidence. Learned Election Tribunal, after considering submissions of parties and appreciating evidence on record, decided Issue No. 1 in favour of election petitioner and held that Non-Petitioner No. 1 was disqualified to contest the election in view of Section 19(l) of the Act of 1994. So far as Issue No. 2 is concerned, the same was decided in the manner that Non-Petitioner No. 1 has proved this issue to the extent that he had given his daughter in adoption, but what is the effect of it, could not be proved and as such, it was decided that Non-Petitioner No. 1 was not qualified to contest the election. Issue No.
