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2012 DIGILAW 1654 (RAJ)

Ummed Kanwar v. Prabhu Singh

2012-07-30

ARUN MISHRA, NARENDRA KUMAR JAIN-I

body2012
Hon'ble JAIN-I, J.—Heard learned counsel for the parties. 2. Briefly stated the facts of the case are that election for the post of Sarpanch of Gram Panchayat, Tidoki Badi, Panchayat Samiti, Laxmangarh, District, Sikar took place on 22nd January, 2010, wherein Smt. Ummed Kanwar was declared as elected Sarpanch. Shri Prabhu Singh secured second position in the election. Shri Prabhu Singh (hereinafter referred as election petitioner) filed an election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 read with Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred as the Act of 1994) challenging the election of Smt. Ummed Kanwar non-applicant No.1 in the court of Civil Judge (Sr. Division), Sikar. 3. The main ground of election petition was that Smt. Ummed Kanwar was already having two children namely Sonu Kanwar and Rekha Kanwar and she gave birth to two more children namely Navratan Singh and Krishan Singh on 5.7.1997 and 1.7.1998 respectively i.e. after cut off date i.e. 27th November, 1995. She was having more than two children on the date of nomination. Therefore, she was disqualified under Section 19(l) of the Act of 1994 for contesting the election of Sarpanch. 4. The election petition was contested by non-applicant by filing written reply, wherein allegations as alleged in the election petition were denied. It was admitted that she has four children but it was stated that all were born before the cut off date. It was specifically stated that Navratan Singh was born on 25.10.1992 and Krishan Singh was born on 10.3.1994. 5. The election Tribunal, on the basis of pleadings of the parties, framed six issues, which are reproduced in Para 4 of the order of Tribunal and in Para 4 of the order of Single Bench. Issue No.1 was in respect of disqualification mentioned under Sec. 19(l) of the Act of 1994. Issue No.3 was as to whether in case the election of defendant No.1 is declared null and void then election petitioner is entitled to get himself declared as elected Sarpanch. Both the parties led their oral and documentary evidence in support of their case. 6. Learned Tribunal after considering the oral and documentary evidence in detail decided Issues Nos. 1 & 3 both in favour of election petitioner and against the non-applicant No.1. Both the parties led their oral and documentary evidence in support of their case. 6. Learned Tribunal after considering the oral and documentary evidence in detail decided Issues Nos. 1 & 3 both in favour of election petitioner and against the non-applicant No.1. It was held that non-applicant No.1 Smt. Ummed Kanwar was disqualified under Section 19(l) of the Act of 1994 to contest the election and also declared the election petitioner Prabhu Singh as elected Sarpanch of Gram Panchayat, Tidoki Badi. Consequently, the election petition was allowed. The election of non-applicant No.1/appellant Smt. Ummed Kanwar on the post of Sarpanch, Gram Panchayat Tidoki Badi, Tehsil, Laxmangarh, District, Sikar was declared null and void and election petitioner Prabhu Singh was declared as elected Sarpanch vide judgment and order dated 30th March, 2012. 7. Being aggrieved with the order passed by election Tribunal, the petitioner/appellant Smt. Ummed Kanwar filed S.B. Civil Writ Petition No.5201/2012 before Single Bench. Learned Single Judge vide its order dated 10th May, 2012 allowed the writ petition in part and while upholding the order of the Tribunal setting aside the election of non-applicant No.1, set aside the other part of the order of the Tribunal, whereby election petitioner Prabhu Singh was declared as elected Sarpanch of Gram Panchayat, Todki Badi. 8. Being aggrieved with the order of Single Bench, the election petitioner Prabhu Singh as well as non-applicant No.1/appellant Smt. Ummed Kanwar both have preferred two intra-court appeals. D.B. Special Appeal (Writ) No. 856/2012 has been preferred by Smt. Ummed Kanwar challenging the order of Single Bench, whereby the judgment of election Tribunal declaring her election as null and void, has been upheld, whereas, D.B. Civil Special Appeal (Writ) No. 960/2012 has been preferred by election petitioner Prabhu Singh, against order of Single Bench, whereby learned Single Judge has set aside the order of election Tribunal declaring the election petitioner Prabhu Singh as elected Sarpanch. 9. Learned counsel for appellant Smt. Ummed Kanwar submitted that finding of learned Tribunal as well as Single Bench in respect of Issue No.1 is contrary to law, facts and material on record, therefore, the same is liable to be set aside by this Court. 10. 9. Learned counsel for appellant Smt. Ummed Kanwar submitted that finding of learned Tribunal as well as Single Bench in respect of Issue No.1 is contrary to law, facts and material on record, therefore, the same is liable to be set aside by this Court. 10. Learned counsel appearing on behalf of Prabhu Singh submitted that finding of election Tribunal as well as Single Bench in respect of Issue No.1, whereby non-applicant No.1 Smt. Ummed Kanwar has been found disqualified and her election has been declared as null and void is concerned, the same is absolutely legal and justified and based on material on record. The finding of Tribunal as well as Single Bench in this regard cannot be said to be illegal or perverse in any manner. 11. So far as finding in respect of Issue No.3 is concerned, the learned counsel appearing on behalf of Prabhu Singh election petitioner submitted that he does not press his prayer No.14(Kha) of election petition, to declare him elected Sarpanch for the post of Sarpanch, Village Panchayat, Tidoki Badi, Panchayat Samiti, Laxmangarh, District, Sikar. He has submitted that order of Single Bench to that extent may be set aside. He further submitted that he does not press his intra-court appeal i.e. D.B. Special Appeal (Writ) No.960/2012. He has submitted that intra-court appeal filed by Smt. Ummed Kanwar be dismissed and a direction be given to official respondents/State to hold the election of Village Panchayat, Tidoki Badi, at an early date. 12. We have considered the submissions of learned counsel for the parties and examined the order of Single Bench as well as election Tribunal. 13. Although, there were six issues, which were framed, discussed and decided by election Tribunal, on the basis of pleadings and evidence of the parties, but the main issues in the case are, Issues Nos. 1 & 3. So far as Issue No.1 is concerned, the said issue relates to question of fact; whether non-applicant No.1 Smt. Ummed Kanwar was disqualified under Section 19(l) of the Act of 1994 or not, as she was having four children on the date of filling her nomination paper. There is a detailed discussion of oral and documentary evidence by election Tribunal as well as learned Single Judge. There is a detailed discussion of oral and documentary evidence by election Tribunal as well as learned Single Judge. Learned election Tribunal has specifically recorded a finding that two children namely Navratan Singh and Krishan Singh were born to Smt. Ummed Kanwar after the cut off date i.e. 27.11.1995 and since she was having more than two children, therefore, she was disqualified under Section 19(l) of the Act. This being a question of fact and there was a finding of fact in this regard of election Tribunal in favour of election petitioner and against non-applicant No.1; the same was not interferred with by learned Single Judge and in our view rightly so. The finding of fact recorded by election Tribunal could not have been interferred with by Single Bench while exercising powers under Article 226/227 of the Constitution and the same was rightly not interferred with. After considering the submissions of learned counsel for the parties, we are of the view that there is no illegality or perversity in the finding of Single Bench as well as election Tribunal in respect of Issue No.1, which may call for any interference by this Court in this intra-court appeal. 14. So far as Issue No.3 is concerned, the learned counsel appearing on behalf of election petitioner Prabhu Singh agreed and submitted that he does not press the prayer made in Para No.14(Kha) of election petition and finding of election Tribunal as well as Single Bench in respect of Issue No.3 be set aside. 15. Since prayer prayed in Para No.14(Kha) of election petition as well as D.B. Special Appeal (Writ) No.960/2012 have not been pressed by learned counsel appearing on behalf of Prabhu Singh election petitioner, therefore, findings of election Tribunal in respect of Issue No.3, whereby Prabhu Singh was declared as elected Sarpanch and order of Single Bench, whereby finding of election Tribunal in respect of Issue No.3 has been set aside, are set aside. 16. Consequently, both the special appeals are disposed off in the manner as indicated above. The order of Single Bench is modified to the above extent. The stay applications as well as other applications are also disposed off. It is directed that fresh election of Village Panchayat, Tidoki Badi, Panchayat Samiti, Laxmangarh, District, Sikar may now be held in accordance with law, at the earliest. Parties are directed to bear their own costs.