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2014 DIGILAW 1044 (RAJ)

Gopal Sen (Nai) v. Gopi Methani

2014-04-29

SANDEEP MEHTA

body2014
JUDGMENT 1. - Heard learned Counsel for the appellant and the learned Counsel for the respondent. 2. In view of the fact that the relief which has been claimed by appellant is limited against the respondent No. 1, there is no need to hear the other respondents impleaded in this appeal. Thus with the consent of the learned Counsel for the parties, the appeal is being heard and decided finally. 3. The instant appeal is directed against the judgment dated 7.4.2014 passed by the learned Addl. District Judge No. 1 Bhilwara in Misc. Case No. 16/2010 whereby the election petition filed by the respondent No. 1 Gopal Methani under Section 31 read with Section 24(XV1I) of the Rajasthan Municipalities Act, 2009, (hereinafter referred to as the Act) was allowed and the election of the appellant on the post of Municipal Councillor was quashed and the respondent was declared elected for the said post. The appellant has challenged the impugned judgment principally on two grounds; (1) that he was not provided any opportunity of leading evidence; and (2) as the persons contesting the election were more than two in number, the learned Tribunal could not have declared the respondent No. 1 elected on the post of Municipal Councillor even if the appellant was held disqualified from contesting the election. 4. Mr. Bhansali, learned Counsel for the appellant vehemently contended that the respondent No. 1 (Gopal Methani) was provided as many as 11 opportunities whereas the appellant was provided only on opportunity to lead evidence and thereafter his evidence was closed. Thus, as per him the appellant was greatly prejudiced by the unfair procedure adopted by the learned Trial Court and the case was decided without providing a fair opportunity of defence to the appellant. Thus, he prays that the matter be remanded to the learned Trial Court and the Court be directed to provide on opportunity of leading evidence to the appellant and thereafter to decide the matter afresh. 5. The second contention advanced by the learned Counsel for the appellant is that Section 27 of the Rajasthan Municipalities Act lays down the mode for filling up the casual vacancy and the mode adopted by Trial Court it not one of the modes available in cases when casual vacancy arises due to the disqualification of a member. 5. The second contention advanced by the learned Counsel for the appellant is that Section 27 of the Rajasthan Municipalities Act lays down the mode for filling up the casual vacancy and the mode adopted by Trial Court it not one of the modes available in cases when casual vacancy arises due to the disqualification of a member. Learned Counsel placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Prakash Khandra v. Dr. Vijay Kumar Khandre reported in AIR 2002 SC 2345 and submitted that the Hon'ble Apex Court in no unequivocal terms has held that where the candidates are more than two in number and the election of the returned candidate is set aside on the basis of some disqualification, the candidate who received the next highest number of votes cannot be declared elected by adopting the theory of throwing away the votes casted in favour of the disqualified candidate Thus he submits that the appeal deserves to be accepted and impugned judgment should be set aside. 6. Dr. Sachin Acharya, learned Counsel for the respondent No. 1 vehemently urged that the appellant was provided two opportunities and to lead evidence in defence. He further submits that the respondent appeared in the witness box and proved all the facts averred in the election petition. He urged that the respondent gave positive evidence to the effect that the appellant has three children out of which two issues were born after 27.11.1995. The evidence thus led by the respondent remained unchallenged by lack of cross examination. Learned Counsel submits that in view of the mandatory provision of Section 24(xvii) of the Rajasthan Municipalities Act, the appellant was rightly held disqualified from holding the post of Municipal Councillor. Dr. Acharya also vehemently opposed the second submission advanced by Mr. Bhansali regarding the Court not having power to declare the respondent elected as Municipal Councillor but he was unable to site any precedent contrary to the judgments relied upon by the learned Counsel for the appellant. 7. Heard and considered the arguments advanced at the bar and perused the impugned order. 8. The first issue which has been vehemently pressed upon by Mr. Bhansali is that the appellant was not provided appropriate opportunity to lead evidence before the Tribunal. 7. Heard and considered the arguments advanced at the bar and perused the impugned order. 8. The first issue which has been vehemently pressed upon by Mr. Bhansali is that the appellant was not provided appropriate opportunity to lead evidence before the Tribunal. In the opinion of this Court, the number of opportunities cannot be a yardstick to examine as to whether a proper opportunity to lead evidence was provided or not. In a given case even a single opportunity may be sufficient and in another case numerous opportunities may be insufficient. However, undisputed the appellant was given two opportunities to lead evidence but he failed to do so. That apart, another undisputed significant fact is that the respondent No. 1 led evidence before the Tribunal to prove that the appellant had more than two children out of which two were born after 27.11.1995. The appellant failed to counter this averment by cross-examining the respondent. Thus, the deposition remained un-rebutted and the fact was clinchingly proved against the appellant. In this view of the matter, even if the appellant had led any evidence in counter, it would have been an exercise in futility because the plaintiffs case remained uncontested and unchallenged. The appellant had in these circumstances everything to gain by delaying the proceedings and the reason for his not leading evidence before the Trial Court despite opportunity being provided is apparent Thus, this Court is not convinced with the argument advanced by the learned Counsel for the appellant that the appellant was not provided adequate opportunity to lead evidence before the Trial Court. 9. Now, the effect of this fact remaining un-controverted is to be examined. 10. Section 24(xvii) of the Rajasthan Municipalities Act, 2009 provides for the disqualifications for being elected as a member of a Municipality. Section 24(xvii) and proviso (e) to Section 24 read as under- "24. General disqualifications for members.-A person notwithstanding that he is otherwise qualified, shall be disqualified, shall be disqualified, for being chosen as or for being a member of a Municipality:- *** *** *** (xvii) if he has more than two children, or *** *** *** Provided that - (e) a person having more than two children shall not be disqualified under Clause (xvii) for so long as the number of children he had on 27.11.1995 does not increase. Explanation.-For the purpose of Clause (xvii) any number of children born out of to single delivery shall be deemed to be on e entity and any child given in adoption shall not be excluded while computing the number of children." 11. As in the case at hand the plaintiff election petitioner before the learned Trial Court succeeded in proving beyond all manner of doubt that the appellant fathered two children after 27.11.1995, the Trial Court was right in declaring the appellant disqualified from holding the post of Municipal Councillor as per the mandatory provisions quoted above. 12. Now coming to the second issue. Section 27 of the Rajasthan Municipalities Act prove provides the mode for filling up casual vacancies. Subsection (4) of Section 27 of the Act reads as below:- "27. Casual vacancy how to be filled- (1) *** *** *** (2) *** *** *** (3) *** *** *** (4) Where a vacancy occurs by reason of death resignation removal or avoidance of the election of an elected member and the term of office of that member would, in the ordinary course of events, have determined within six months of the occurrence of the vacancy be left unfilled until the next general election." 13. Thus the casual vacancy occurring due to the member being removed can only be filled by the procedure laid down in Section 27 of the Act. 14. The Apex Court while examining the provisions of the Representation of the People Act in the case of Prakash Khandre v. Dr. Vijaya Kumar Khandre (supra) while placing reliance on the earlier decision of the Constitution Bench in the case of Konappa Rudrappa Nadgouda v. Vishwanath Reddy & Anr. reported in (1969) 2 SCR 90 in no unequivocal terms held that where the number persons contesting the election are more than two and if the returned candidate is held disqualified by the Election Tribunal, the candidate securing the next highest votes after the returned candidate cannot be declared as elected. 15. Thus, the order passed by the learned Addl. District Judge No. 1 Bhilwara directing the respondent No. 1 to be elected after holding the appellant disqualified cannot be upheld. 16. Accordingly, the appeal succeeds in part and is hereby allowed. The direction issued by the learned Addl. 15. Thus, the order passed by the learned Addl. District Judge No. 1 Bhilwara directing the respondent No. 1 to be elected after holding the appellant disqualified cannot be upheld. 16. Accordingly, the appeal succeeds in part and is hereby allowed. The direction issued by the learned Addl. District Judge No. 1 Bhilwara vide impugned judgment dated 7.4.2014 declaring the respondent No. 1 elected on the post of Municipal Councillor is hereby set aside. Now, the State Government is directed to proceed as per Section 27 of the Act to fill up the vacancy expeditiously. The stay application stands disposed of.Appeal allowed. *******