Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1995 (RAJ)

Devi Lal Meena v. Civil Judge (S. D. ), Salumber

2013-11-12

SANGEET LODHA

body2013
JUDGMENT 1. - This writ petition is directed against order dated 03.10.2013 passed by the Civil Judge (Senior Division), Salumber, whereby an election petition preferred by the respondent No. 2-Amrit Lal Meena under Sec. 43 of the Rajasthan Panchayati Raj Act, 1994 ('the Act'), questioning the election of the petitioner herein, as Sarpanch of Gram Panchayat Sallada, stands allowed and consequently, his election as Sarpanch, Gram Panchayat Sallada, has been declared illegal and void. Bereft of unnecessary details, succinctly stated the facts are that the election to the post of Gram Panchayat Sallada was held on 04.02.2010. The petitioner and the respondents No. 2 to 8 contested the election. The petitioner filed his nomination papers in form IV alongwith form IV D, as prescribed by Rule 25 of the Rajasthan Panchayati Raj (Election) Rules, 1994 ('the Rules' hereinafter). In column No. 3(a) of form IV D, the petitioner made a declaration that as on 27.04.1994, he was not having any child. In column 3(b), the petitioner declared that he has no children born between 27.04.1994 to 27.11.1995. However, in column 3 (b), the petitioner declared that he has two children born after 27.11.1995, namely Naresh Meena and Dilip Meena born on 13.06.2002 & 11.10.2007 respectively. The nomination forms were scrutinised by the Election Officer and the election was held on 04.02.2010. The result of the election was declared wherein the petitioner was declared elected as Sarpanch. 2. The respondent No. 2 preferred an election petition under Sec. 43 of the Act read with Rule 80 of the Rules on the ground that the petitioner was having three children born after the cut off date i.e. 27.11.1995 and therefore, by virtue of provisions of Section 19(1) of the Act, he was disqualified to contest the election. In the election petition, the respondent No. 2 averred that in the nomination form filed, the petitioner has disclosed the names of his two children born on 13.06.2002 & 11.10.2007 respectively, whereas he is having third child born after 27.11.1995, namely, Madan Meena, who is 4-5 years of age. It was stated that an objection was raised before the Returning Officer, however, the same was not entertained and while extending favour to the petitioner his nomination form was accepted. 3. The election petition was contested by the petitioner by filing a counter thereto. It was stated that an objection was raised before the Returning Officer, however, the same was not entertained and while extending favour to the petitioner his nomination form was accepted. 3. The election petition was contested by the petitioner by filing a counter thereto. The stand of the petitioner was that the respondent No. 2 herein, has included adopted son of Narain son of Ratna Meena as son of the petitioner. It was reiterated that as on the date of filing of the nomination form, the petitioner was having only two children. 4. On the basis of the pleadings of the parties, the Election Tribunal framed the issues and the parties led their evidence. After due consideration of evidence on record, the Election Tribunal arrived at the finding that the petitioner has three children born after 27.11.1995 and therefore, he was disqualified to contest the election. Accordingly, by the order impugned, the election of the petitioner as Sarpanch, Gram Panchayat Sallada, has been declared illegal and void. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that the findings arrived at by the Election Tribunal is based on surmises and conjectures and not supported by any cogent evidence on record. Learned counsel submitted that so as to establish that the petitioner was disqualified to contest the election in terms of provisions of Section 19(1) of the Act, the election petitioner was under an obligation to prove that the petitioner had three children born after 27.11.1995 as on the date of filing the nomination paper. Learned counsel submitted that the averments made by the petitioner in the election petition in this regard were absolutely vague and no evidence was led by the election petitioner to prove the dates of birth of the petitioner's children alleged to be three in number. Learned counsel submitted that the averments made by the petitioner in the election petition in this regard were absolutely vague and no evidence was led by the election petitioner to prove the dates of birth of the petitioner's children alleged to be three in number. Learned counsel submitted that if the facts proved are taken to be correct, then, the date of birth of two child Mandan and Dilip comes to be the same inasmuch as on the date of adoption i.e. 10.02.2009, the age of the child Madan is disclosed to 1½ years, and thus, his birth date comes in the month of August, 07, whereas the date of birth of Dilip, the petitioners son, is disclosed to be 11.10.2007 and thus, the question of an additional child being torn within a period of 2-3 months, before the birth of the child Dilip does not arise. Learned counsel submitted that the facts proved leads to an irresistible conclusion that either Madan and Dilip are the name of same child or the twin was born on the same date. Learned counsel submitted that unless and until the birth of third child after 27.11.1995 is proved beyond doubt, the question of declaring petitioner disqualified to contest the election does not arise. Accordingly, learned counsel submitted that the findings arrived at by the Election Tribunal are ex facie capricious and perverse. 6. In the alternative, it was contended on behalf of the petitioner that admittedly the petitioner had given one child Mandan in adoption to his brother Narain on 10.02.2009 and therefore, as on the date of filing of the nomination paper the petitioner was having only two children born after the cut off date i.e. 27.11.1995. Learned counsel submitted that law recognises adoption and there is no prohibition in the Act against it and thus, if a valid adoption has taken place, the legal consequences will follow and the child given in adoption cannot be considered to be the petitioner's child after 10.02.2009. Learned counsel submitted that it is well settled law that the question of adoption affects substantial rights of the parties and their civil status and therefore, for all intent and purposes the child given in adoption has to be treated to be child of adoptive father and cannot be considered to be a child of his natural father. Learned counsel submitted that it is well settled law that the question of adoption affects substantial rights of the parties and their civil status and therefore, for all intent and purposes the child given in adoption has to be treated to be child of adoptive father and cannot be considered to be a child of his natural father. In support of the contention, learned counsel relied upon a Bench decision of this Court in the matter of Hira Lal v. State of Rajasthan, 2004 (5) WLC 169 and yet another decision in the matter of Rajendra Kumar v. State of Rajasthan & Ors., RLW 2005 (1) Raj. 441. 7. That apart, learned counsel submitted that there was non-compliance of provisions of Rule 80, 81, 82 & 83 of the Rules inasmuch as the election petitioner failed to comply with the mandatory requirement of sending the copy of the petition to the Election Officer and further the pleadings/documents/annexures were not verified as required by the Rules. Learned counsel submitted that the election petition was liable to be rejected at the very threshold on account of non-compliance of mandatory provisions, however, this aspect of the matter has not been examined by the Election Tribunal. 8. On the other hand, learned counsel appearing for the respondent submitted that on the basis of evidence on record it stands proved that the petitioner has three children born after the cut off date i.e. 27.11.1995, namely, Naresh, Madan and Dilip, who were about 8, 5 & 3 years of age respectively, as on the date of filing of the nomination paper by the petitioner. Learned counsel submitted that in a reply to the election petition the petitioner had taken the stand that he had rightly disclosed the status of the family as on the date of filing of the nomination form and the election petitioner has wrongly included the child adopted by Narain as the petitioner's child. Learned counsel submitted that as a matter of fact, the factum of third child being born after 27.11.1995 stands admitted by the petitioner in his reply to the election petition as well as in his deposition before the Election Tribunal. Learned counsel submitted that as a matter of fact, the factum of third child being born after 27.11.1995 stands admitted by the petitioner in his reply to the election petition as well as in his deposition before the Election Tribunal. Learned counsel submitted that even if it is assumed that one of the child namely Madan was given in adoption by the petitioner to his brother Narain, then too, the disqualification once incurred on account of third child being born after the cut off date shall not be wiped out in terms of the provisions of Section 19(1) of the Act. Learned counsel submitted that the decisions of this Court in Hira Lal's case and Rajendra Kumar's case (supra), run contrary to the decision of the Hon'ble Supreme Court in the matter of Javed and Others v. State of Haryana & Others, (2003) 8 SCC 369 . Learned counsel submitted the decision of the Hon'ble Supreme Court was not brought to the notice of this Court in the matters of Him Lal and Rajendra Kumar (supra), however, in yet another Bench decision this Court in the matter of 'Bharatraj @ Bharatram v. Additional Civil judge (SD), Baran ' while relying upon the decision of the Hon'ble -Supreme Court in Javed's case (supra), has categorically laid down that merely because one child is given in adoption, the disqualification enumerated in Section 19(1) of the Act, is not wiped out and accordingly, the order of the Election Tribunal declaring the election of the petitioner therein, as null and void, was upheld. Learned counsel submitted that the objection raised by the petitioner regarding the alleged non-compliance of provisions of various rules, before this Court at this stage, is absolutely misconceived inasmuch as no such objection was raised by the petitioner in reply to the election petition or at subsequent stage before the Election Tribunal and therefore such objection cannot be permitted to be raised for the first time before this Court. Learned Counsel submitted that the in no t(sic) the provisions of Rule 80, 81, 82 & of the Rules could be construed to be mandatory in nature and therefore, even otherwise, the contention raised on behalf of the petitioner is devoid of any merit. 9. I have considered the rival submissions and perused the material on record. 10. Learned Counsel submitted that the in no t(sic) the provisions of Rule 80, 81, 82 & of the Rules could be construed to be mandatory in nature and therefore, even otherwise, the contention raised on behalf of the petitioner is devoid of any merit. 9. I have considered the rival submissions and perused the material on record. 10. Indisputably, as per Clause (1) of Section 19 of the Act, which prescribes qualification for election as member of Panchayati Raj Institution a person registered as voter in the list of the voters of Panchayati Raj Institution is disqualified to contest the election if he has more than two children. As per proviso (iv) to Section 19, the birth of additional child during the period from the date of commencement of the Act to 27.11.1995 is not taken into consideration for the purpose of the disqualification mentioned in Clause (1) of Section 19 and a person having more than two children (excluding the child if any, born during the period from the date of such commencement to 27.11.1995) shall not be disqualified under the Clause for so long as number of children he had on the commencement of the Act does not increase. That apart, as per Explanation attached to Section 19, for the purpose of Clause (1), where the person has only one child from the earlier delivery or deliveries on the date of commencement of the Act and thereafter any number of children born out of a single subsequent delivery, shall be deemed to be one entity. 11. It is not disputed that the petitioner had no children born upto the cut off date i.e. 27.11.1995. Admittedly, in the nomination form submitted by the petitioner, he had disclosed two children born after 27.11.1995, namely, Naresh and Dilip born on 13.06.2002 & 11.10.2007 respectively. According to the election petitioner, the respondent No. 2 herein, as on the date of filing of the nomination form, the petitioner was having three children born after the cut off date i.e. 27.11.1995, namely Naresh, Dilip and Madan. It was averred on behalf of the election petitioner that the third child born after 27.11.1995, namely Madan is of 4-5 years of age. It was averred on behalf of the election petitioner that the third child born after 27.11.1995, namely Madan is of 4-5 years of age. In reply to the election petition, the petitioner had taken the stand that the election petitioner should prove on the basis of documentary evidence that the three children are being brought up presently in his guardianship. The petitioner further averred that the election petitioner has maliciously included the adopted child of Narain son of Ratna as child of the petitioner. In his deposition before the Election Tribunal the petitioner has reiterated that as on the date of nomination three children were not being brought up under his guardianship and that the son of Narain son of Ratna Meena has been maliciously included by the election petitioner as his child. Thus, the factum of petitioner having three children born after the cut off date was not in dispute rather the stand of the petitioner was that he had given one child in adoption to his brother Narain before the date of filing of the nomination form and therefore, he has rightly disclosed in the nomination form that he has two children born after 27.11.1995. In the considered opinion of this Court, in view of the admission of the petitioner in reply to the election petition in the terms referred supra and so also in his deposition before the Election Tribunal the fact that the petitioner had three children born after 27.11.1995, cannot be disputed and therefore, the findings arrived at by the Election Tribunal in this regard, after objective consideration of the pleadings of the parties and evidence on record, cannot be said to be capricious or perverse so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. Now, only question survives for consideration of this Court is whether on account of one child being given by the petitioner in adoption to his brother before the date of the filing of the nomination papers, by way of registered adoption deed dated 10.02.2009, the said child cannot be considered to be his child within the meaning of Section 19(1) of the Act so as to declare him disqualified to contest the election. 13. 13. In Hira Lal's case (supra), a Bench of this Court while examining the effect of an adoption endorsed by a registered deed signed by both the persons taking and giving the child in adoption observed: A perusal of the above provision clearly shows that it provides for a rule of evidence by raising a rebuttable presumption and nothing more. In case, an adoption is endorsed by a registered-deed signed by both the persons taking and giving child in adoption, the Court is required to presume that adoption has taken place in accordance with the provisions of the Act. In that event, burden to prove otherwise rests on the person who challenges the factum of adoption. In case there is no registered-deed of adoption, there does not exist any presumption in favour of adoption and this fact is required to be proved like any other fact, wherever such question arises. But it does not provide registration of adoption deed as a condition of valid adoption as has been assumed by the Divisional Commissioner while passing the Impugned order. It is apparent that the authority passing the order has totally misdirected itself in law by raising a presumption that in the absence of a registered document, the adoption is not valid. This mistake is apparent on the face of the order, which goes to the root of the matter. Equally untenable is the second reason which has prevailed with the authority, when it says that in the absence of any provision in the Act of 1994 about recognition of adoption giving a child in adoption cannot result in taking away the effect of Section 19 of the Act. If the law recognises adoption and there is no prohibition in the statute, with which we are concerned, against it, if a valid adoption has taken place, the legal consequence follows and it cannot be nullified on unfounded presumption or assumption on the part of the authority bestowed with the powers under the Act of 1994. The order betrays a total mis-apprehension of law relating to adoption and also of adoption affects substantive rights of the parties and their civil status. Without holding proper enquiry, deciding the question of adoption in a perfunctory manner, needs to be highly deprecated. The order betrays a total mis-apprehension of law relating to adoption and also of adoption affects substantive rights of the parties and their civil status. Without holding proper enquiry, deciding the question of adoption in a perfunctory manner, needs to be highly deprecated. The order has been passed in a mechanical manner without taking into consideration the facts and law and, therefore, it cannot be allowed to stand. 14. In Rajendra Kumar's case (supra), this Court while relying upon the Bench decision in Hiralal's case (supra) held: According to learned counsel for the petitioner, the Law is now well settled by the Division Bench judgment of this Court delivered in the case of Hira Lal v. State of Rajasthan & Others . The Division Bench of this Court while considering an almost identical dispute observed that when law recognises adoption and when there is no provision, the legal consequences shall follow. The Division Bench also held that even in cases where the adoption deed is not registered as the custom governs adoption, then by proving the actual handing over and taking over of the child, adoption can be proved. The Division Bench further held that the Court in that case totally misdirected itself in law by raising a presumption that in the absence of any registered document, adoption is not valid. This mistake was found to be a mistake apparent on the face of the record by the Division Bench of this Court. In view of the Division Bench judgment of this Court, the adopted child given in adoption to someone else in accordance with the law applicable to the parties cannot be included in number of children on or after the cut off date. The position is now well settled in view of the decision of the Division Bench referred above and a person who has given in adoption any of his children before the cut off date, the children cannot be treated as a children of the person giving out in adoption while considering the qualification of a candidate under Sec. 19 of the Act. 15. 15. But then, in Javed's case (supra), the Hon'ble Supreme Court while considering the provisions of Section 175(1)(q) of Haryana Panchayati Raj Act, 1994, which are pari materia to the provisions of Section 19(1) of the Act, regarding the effect of couple giving the child away in adoption, observed: It was submitted that the enactment has created serious problem in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated here in above, we may add that disqualification is attracted no sooner a third child is born and is living after living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification dose not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is now wiped out. (emphasis added) 16. It is to be noticed that in the matter of Bharatraj's case (supra), a Bench of this Court while relying upon the decision of the Hon'ble Court in the Javed's case (supra) categorical held as under: The facts, as narrated above, make it clear that provisions of Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 and Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994 are Pari materia, Hon'ble Apex Court has examined the provisions of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994. Hon'ble Apex Court has also examined the effect of giving one child away in adoption and held that merely because one or more of them are given in adoption, the disqualification is not wiped out, therefore, the issue involved in the present case is fully covered by the decision rendered by the Hon'ble Apex Court in Javed & Ors. v. State of Haryana & Ors. (supra). Therefore, it is held that merely because one child is given in adoption, the disqualification of appellant enumerated in Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 is not wiped out. v. State of Haryana & Ors. (supra). Therefore, it is held that merely because one child is given in adoption, the disqualification of appellant enumerated in Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 is not wiped out. The Election Tribunal was right in declaring the election of appellant as null and void in view of its finding on Issue No. 2. 17. Suffice it to say that in view of the law laid down by the Hon'ble Supreme Court in Javed's case (supra), which has been followed by the Division Bench of this Court in Bharatraj's case (supra), it is not possible to take any other view except that the disqualification incurred on the birth of third child after the cut off date shall not be wiped out merely because, one child is given in adoption. In this view of the matter, the disqualification incurred by the petitioner continues even after one child being given by him in adoption to his brother Narain and thus, he was disqualified to contest the election for the post of Sarpanch by virtue of provisions of Section 19(1) of the Act. 18. Coming to the contention of the learned counsel regarding alleged non compliance of the provisions of Rules 80, 81, 82 & 83 of the Rules, it is to be noticed that the objections sought to be raised by the petitioner in this regard were never raised before the Election Tribunal in the election petition or at any stage subsequent thereto, even during the course of arguments and therefore, the petitioner cannot be permitted to raise such objection before this Court at this belated stage, without there being any foundation of facts in the pleadings before the Election Tribunal. Moreover, the election petition stands decided by the Election Tribunal on merits after trial and therefore, on account of alleged non compliance of the provisions of the Rules, regarding the failure on the part of the petitioner in sending the copy to the District Election Officer (Panchayat) or failure to verify the documents produced, which stand exhibited in evidence during the trial, cannot entail rejection of the election petition. In view of the discussion above, the writ petition lacks merits, it is hereby dismissed. No order as to costs.Petition dismissed. *******