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2008 Supreme(MP) 886
A.M. Naik, J.
Siyawati v. Phoolwati and others.
Writ Petition No. 14955 of 2006 (Jabalpur); Decided on 21.8.2008.
Umesh Shrivastava for petitioner;
M.P. Shukla for respondent No.1;
Vinod Mehta, Government Advocate, for respondents No.7 & 8.
Headnote:(1) Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (M.P.) -- R.21(1)(c) and 21(1)(d) -- MP. Panchayat Nirvachan Niyam, 1995 -- R.35(2) -nomination paper not rejected at the time of scrutiny as no objection raised -- ill election petition it can be made a ground only if results aerially affected.
Respondent No.1 was elected as Sarpanch of Gram Panchayat Sagouni on 19.1.2005. An election petition was preferred by the present petitioner on the ground that the last child of respondent No.1 was born on 27.8.2001 and the respondent No.1 was thus, disqualified from contesting the election by virtue of clause (m) of sub-section (l) of section 36 of M.P. Panchayat Evam Gram Swaraj Adhiniyam, 1993. Secondly, it is contended that respondent No.1 had in all 9 children whereas only 5 daughters were disclosed in the affidavit containing declaration under Rule 31 (1) of M.P. Panchayat Nirvachan Niyam, 1995. On account of false declaration, it is contended that nomination papers of the petitioner were liable to be rejected. They were wrongly accepted and election of respondent No.1 is, therefore, liable to be quashed. [Para 1
Held: In the case of false affidavit, the nomination papers of the respondent No.1 could have been legally rejected. However, it is fairly conceded that no such objection was raised at the time of scrutiny of nomination papers. Once the nomination papers have been accepted, though improperly, it can be made a ground in the election petition only after if, the result of election is proved to have been materially affected thereby. [Para 7
On perusal of the aforesaid provisions, it may be seen that improper rejection of the nomination papers has been made ground for declaring the election to be void. However, improper acceptance of nomination papers would be a ground only if the result is shown to have been materially affected. In the instant case, even if the respondent No.1 had disclosed about 9 Li"Ving children she would not have earned any disqualification. This being so, her result cannot be said to have been materially affected on account of acceptance of nomination papers. [Para 9
(2) Constitution of India -- Art.226/227 -- petition under -- High Court does not act as an appellate Court -- cannot be expected to make reappraisal of evidence in absence of perversity. [Para 4
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1. Respondent No.1 was elected as Sarpanch of Gram Panchayat Sagouni on 19.1.2005. An election petition was preferred by the present petitioner on the ground that the last child of respondent No.1 was born on 27.8.2001 and the respondent No.1 was thus, disqualified from contesting the election by virtue of clause (m) of sub-section (1) of section 36 of M.P. Panchayat Evam Gram Swaraj Adhiniyam, 1993. Secondly, it is contended that respondent No.1 had in all 9 children whereas only 5 daughters were disclosed in the affidavit containing declaration under Rule 31(1) of M.P. Panchayat Nirvachan Niyam; 1995. On account of false declaration, it is contended that nomination papers of the petitioner were liable to be rejected. They were wrongly accepted and election of respondent No.1 is, therefore, liable to be quashed.
2. In the return, respondent No.1 denied the allegation about the birth of last child on 27.8.2001. According to her, last child was born on 5th of December,2000, however, with regard to the allegation about the contents of declaration it was submitted in the written statement that the respondent No.1 is an illiterate lady. The declaration was filled up by the third person who was informed by her about having 5 daughters and 4 sons. She pleaded that person filling up the declaration due to inadvertence, and/or confusion entered information merely about five daughters which could not be verified by the respondent No.1 on account of her illiteracy.
3. Learned Specified Officer after recording evidence found that the election petitioner has failed to prove that the last child to the respondent No.1 was born on 27.8.2001. On the contrary, birth of the last child in the year 2000 is held to be duly proved. As regards false declaration, learned specified officer observed that the respondent No.1 being an illiterate lady cannot be blamed for false affidavit in the election petition, more so, because no proceedings were initiated against her about the allegation of false affidavit and no disqualification was earned by her in the absence of any such proceedings and decision therein. Ultimately, the specified officer found that the grounds for quashing the election have not been established and rejected the election petition vide impugned order dated 15.9.2006 ontained in Annexure P-l. Aggrieved by it, the present writ petition has been preferred wherein Shri Umesh Shrivastava, learned counsel for petitioner, Shri M.P.. Shukla and Shri Vinod Mehta, learned Government Advocate for respective respondents advanced their arguments at length which have been considered in the light of relevant legal provisions as well as material on record.
4. Learned counsel for the petitioner Shri Umesh Shrivastava, contended that it has been duly established that the respondent No.1 gave birth to her last child on 27.8.2001 as revealed in birth certificate marked as Annexure P-l. Birth certificate contained in Annexure P-2 is issued by Chourasiya Hospital and Research Centre (Chourasiya Nursing Home) situated at Rewa. Respondent No.1 is a poor illiterate lady belonging to Scheduled Caste. She is resident of village Sagouni. In the birth certificate her name is mentioned as Phoolmati whereas in Annexure P-2 her surname has been mentioned as Prajapati. Doctor who issued this alleged certificate Annexure P-2 has not been examined. On the other hand, respondent No.1 has submitted birth certificate of her (last) 9th child which reveals that the birth did take place on 5.12.2000 in villae Sagouni. These and various such other factors were considered by the learned Specific Officer while giving findings that Annexure P-2 is not proved beyond doubt. Contrary to it, the certificate which reveals the date of birth on 5.12.2000 has been believed by the learned Specified Officer. This Court while dealing with the present writ petition does not act as appellate authority and in the absence of any perversity it is not expected to make reappraisal of the e
