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2018 DIGILAW 1736 (RAJ)

Rameshwari Devi v. Gulab Kanwar

2018-08-16

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. - This appeal under Section 32 of the Rajasthan Municipalities Act, 2009 ('the Act of 2009) is directed against the order dated 5/5/2018 passed by the District Judge, Pali, whereby, the election petition filed by respondent no.1 questioning the election of the appellant-returned candidate as a Member of the Municipal Council, Pali from Ward No. 32 has been allowed and the election of the returned candidate has been set aside. However, the prayer made by the respondent for declaring her as returned candidate has been rejected. 2. The appeal was admitted by a co-ordinate bench of this court on 1/6/2018 after hearing the appellant and respondent no.1 in person. 3. Heard learned counsel for the parties on stay application. 4. It is inter alia emphasised by the learned counsel for the appellant that the District Judge committed grave error in setting aside the election of the appellant by relying on the documents Ex.9, Ex.10 and Ex.11, which were not proved as per the standards laid down by Hon'ble Supreme Court in similar nature cases and that the documents and material produced by the appellant were ignored on unsustainable grounds and, therefore, the order impugned deserves to be stayed. 5. Reliance was placed on Smt. Tara Devi v. Smt. Sudesh Chaudhary : AIR 1998 Rajasthan 59 and Joshna Gauda v. Brundaban Gouda & Anr. : 2012 AIR SCW 1561. 6. Learned counsel for the respondent no.1 vehemently opposed the submissions. It was submitted that once the documents Ex.9, 10 and 11 have been admitted by husband of the appellant-returned candidate, no further evidence was required to be led for proving the said documents. 7. Further submissions were made that the endeavour of the court should be to find out the truth which is a guiding star in the judicial process and court cannot be an umpire at a contest between two parties and, therefore, in view of the findings recorded by the District Judge, the stay application deserves dismissal. 8. Reliance was placed on Sanjay Singh v. Mukesh Singh Chouhan & Ors. : AIR 2017 Rajasthan 219 and Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira : (2012) 5 SCC 370 . 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record along with the record of District Judge. 10. : AIR 2017 Rajasthan 219 and Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira : (2012) 5 SCC 370 . 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record along with the record of District Judge. 10. The provisions of Section 32(4) of the Act of 2009 provides that where an appeal has been preferred against an order declaring the election of any returned candidate to be void, the High Court may, on sufficient cause being shown, stay operation of the order appealed from and in such a case the order shall be deemed not to have taken effect. 11. The District Judge while construing the statement of Tulsa Ram - NAW-6 qua the documents Ex.9, 10 & 11 has come to the conclusion that the third child to the appellant was born after the cut off date, rendering her ineligible to contest the election. 12. The standards regarding evaluation of evidence of the present nature have been laid down by Hon'ble Supreme Court in Birad Mal Singhvi v. Anand Purohit : AIR 1988 SC 1796 , based on which the evidence as well as the effect of the documents on the date of birth of appellant's third child is required to be determined. 13. The appeal, as noticed hereinbefore, has already been admitted by a co-ordinate bench of this Court and the issues which have been raised by the appellant in the present appeal make out a sufficient cause for stay of operation of the order impugned. 14. So far as the submissions made by learned counsel for the respondent are concerned, as already observed hereinbefore, irrespective of the observations made by Hon'ble Supreme court in the case of Maria Margarida Sequeira Fernandes (supra), the evidence has to be judged based on the parameters laid down by the Hon'ble Supreme Court pertaining to election matters. 15. In view of the above discussion, the operation of the order dated 5/5/2018 passed by the District Judge, Pali in Civil Misc. Case no. 01/2015 shall remain stayed during the pendency of the present appeal. 16. Stay application stands disposed of.