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2012 DIGILAW 2210 (RAJ)

Vimla v. Harbheji

2012-11-19

ARUN MISHRA, NARENDRA KUMAR JAIN-I

body2012
Judgment : Jain, J. Heard the learned counsel for appellant. 2. This intra-Court appeal is directed against the order of Single Bench dated 06.08.2012, whereby S.B. Civil Writ Petition No.11382/2012, filed by petitioner-appellant, has been dismissed. 3. Briefly stated, the facts of the appeal, are that election of Gram Panchayat Domai, Panchayat Samiti Basedi, District Dholpur took place on 22.01.2010, wherein petitioner Smt. Vimla was declared as elected 'Sarpanch'. Respondent Smt. Harbheji filed an Election Petition under Rule 80 of the Rajasthan Panchayati Raj(Election) Rules, 1994, in the Court of District Judge, Dholpur(Election Tribunal) on the ground that non-petitioner Vimla was disqualified on the date of nomination as well as date of election as she was having three children, who were born after 27.11.1995. It was, therefore, prayed that election of Sarpanch, Village Panchayat be cancelled and petitioner Smt. Harbheji may be declared as elected 'Sarpanch'. The Election Petition was contested by non-petitioner Vimla by filing written reply to the effect that she is having only one child. So far as remaining two children, namely Rakesh @ Rahul and Yogesh @ Guddu are concerned, they belong to her husband's second wife and were not born from the wedlock of non-petitioner and her husband. It was, therefore, prayed that Election Petition may be dismissed. 4. During pendency of the Election Petition, non-petitioner/appellant, who is the winning candidate, filed an application before the Election Tribunal to the effect that from the wedlock of non-petitioner, one child was born on 28.06.2009. So far as remaining two children, namely Rakesh and Yogesh are concerned, they were not born from the wedlock of non-petitioner, therefore, it will be appropriate to get the DNA test of these two children and non-petitioner, therefore, application may be allowed and necessary orders for DNA test may be passed. 5. Learned Election Tribunal, after considering the submissions of the parties, dismissed the application vide order dated 26.05.2012. Being aggrieved with the said order, appellant filed a writ petition before the Single Bench, which has been dismissed. Hence, appellant has now preferred this intra-Court appeal. 6. Submission of the learned counsel for appellant is that main issue involved in the present Election Petition is whether the alleged two children, namely Rakesh and Yogesh are of non-petitioner i.e. appellant or not, therefore, it was necessary to get their DNA test, therefore, the Election Tribunal committed an illegality in dismissing the application. 6. Submission of the learned counsel for appellant is that main issue involved in the present Election Petition is whether the alleged two children, namely Rakesh and Yogesh are of non-petitioner i.e. appellant or not, therefore, it was necessary to get their DNA test, therefore, the Election Tribunal committed an illegality in dismissing the application. Therefore, orders of the Election Tribunal as well as Single Bench, both, may be set aside and her application be allowed and an order may be passed for DNA test, as per prayer made in the application. 7. We have considered the submissions of the learned counsel for the parties, in the light of reasons assigned by the learned Single Judge as well as the Election Tribunal, while dismissing the writ petition and application respectively, filed by the present appellant. 8. The appellant is a returned candidate and Election Petition has been filed against her. Burden to prove the issue involved in the present case is on the election petitioner i.e. the respondent. The present application, filed on behalf of the returned candidate, does not appear to be bonafide. Learned Tribunal was absolutely right in dismissing the application of appellant. Learned Tribunal has already observed that in case the non-petitioner i.e. appellant wants DNA test conducted, then it is open for her to get the same done and place the report of the same on record, but the present application does not appear to be bonafide and the same has been filed only to delay the proceedings of Election Petition. Learned Single Judge also considered the submissions of appellant and in our view, has rightly dismissed the writ petition, filed by appellant. The reasons assigned by Single Bench for dismissal of writ petition are absolutely legal and justified. 9. After considering the submissions of the learned counsel for appellant and the orders passed by the Election Tribunal as well as the Single Bench, we are of the view that application filed by appellant was not bonafide and it was filed only to delay the proceedings of Election Petition. 10. We find no merit in this intra-Court appeal and the same deserves to be dismissed and is hereby dismissed in limine.