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Rajasthan High Court · body

2021 DIGILAW 2034 (RAJ)

Mahesh Dewasi v. Karan Singh

2021-10-26

DINESH MEHTA

body2021
ORDER 1. The petitioner has challenged the order dated 29.09.2021, passed by the Election Tribunal, Bhinmal, Jalore (hereinafter referred to as "the Tribunal") in Civil Misc. (Election Petition) Case No.01/2020(05/2020) (CIS No.01/2020), filed by the respondent No.l, Karan Singh, questioning the acceptance of petitioner's nomination and consequential election on the post of Sarpanch, Gram Panchayat Chatwada, Tehsil Raniwada, District Jalore. 2. The facts of the case in hands lie in a narrow compass. The petitioner; respondent No.l and one Jutharam Kalvi contested the election of Sarpanch, Gram Panchayat Chatwada, Tehsil Raniwada, District Jalore, obviously after their nominations were accepted by the Election Officer. 3. The petitioner secured highest votes and was thus declared successful/returned candidate. 4. The respondent (Election petitioner) Karan Singh filed election petition under Section 43 of the Rajasthan Panchayati Raj, Act, 1994 read with Rules 80, 81, 82 and 83 of the Rajasthan Panchayati Raj (Election) Rules 1994, essentially on the ground that the returned candidate (present petitioner) had wrongly claimed himself to be 23 years of age, though his age was only 19 years. 5. In support of the election petition, the respondent has filed scholar register of the defendant (present petitioner), mark-sheet of 10th class and the Aadhaar Card, in which his date of birth was shown as 01.06.2001. 6. In the election petition, the defendant-returned candidate (present petitioner) relied upon a birth certificate, in which petitioner's date of birth was shown to be 01.06.1997. 7. The learned Tribunal, after framing the issues and leading of evidence, allowed the election petition filed by the respondent and held that the date of birth of the returned candidate (petitioner herein) is 01.06.2001, as is depicted in the documents filed by the election petitioner, while discarding the date of birth certificate, in which petitioner's date of birth has been shown as 01.06.1997. 8. Having recorded the above finding, the learned Tribunal not only set aside the petitioner's election on the post of Sarpanch, but has also declared election petitioner - Karan Singh(respondent No.l herein) to be the Sarpanch of the Gram Panchayat Chatwada. 9. Oppugning the order dated 29.09.2021, Mr. 8. Having recorded the above finding, the learned Tribunal not only set aside the petitioner's election on the post of Sarpanch, but has also declared election petitioner - Karan Singh(respondent No.l herein) to be the Sarpanch of the Gram Panchayat Chatwada. 9. Oppugning the order dated 29.09.2021, Mr. Naman Mohnot, learned counsel for the petitioner, submitted that the learned Tribunal has committed serious error of law and in relying upon the mark-sheet of class - 10th, scholar register and the Aadhaar Card, while not giving any credence to the date of birth certificate issued by the competent authority under the provisions of Registration of Births and Deaths Act, 1969 (hereinafter referred to as the "Act of 1969"). 10. It was argued by learned counsel for the petitioner that the certificate issued by the competent authority under the provisions of the Act of 1969 and the rules framed thereunder is conclusive and the same should be given preference over all other the evidence. 11. It is argued that the petitioner's correct date of birth is 01.06.1997 and on the date of filing nomination form, his age was 23 years. 12. Without prejudice to the above stand, learned counsel for the petitioner argued that in any case, the learned Tribunal could not have declared the respondent to be Sarpanch of Gram Panchayat Chatwada, particularly when there were more than two candidates. 13. Mr. Sandeep Vishnoi, learned counsel appearing for the respondent, on the other hand, argued that the order passed by the learned Tribunal is perfectly just and valid. 14. He argued that true it is, that the petitioner had produced birth certificate evincing his date of birth as 01.06.1997, but the said certificate was issued to the petitioner on 29.11.2019, just a few days before submitting of nomination papers. 15. He added that the birth certificate in question has been got issued with connivance and that the petitioner (returned candidate) cannot disown the scholar register, his mark-sheet of class 10th and the Aadhaar card, which were got prepared at the instance of petitioner/petitioner's father. 16. Learned counsel for the respondent, however, could not defend the part of the order under challenge, vide which the respondent has been declared Sarpanch of the Gram Panchayat. 17. 16. Learned counsel for the respondent, however, could not defend the part of the order under challenge, vide which the respondent has been declared Sarpanch of the Gram Panchayat. 17. Having heard learned counsel for the parties and upon perusal of the material available on record, this Court is of the firm view that there is no error in the order, passed by the learned Tribunal, so far as allowing the election petition is concerned. 18. True it is that the petitioner had produced a birth certificate evincing his date of birth as 01.06.1997, but it is to be noted that the birth certificate was got issued on 29.11.2019, just before furnishing nomination form on 08.01.2020. That apart, the entry made at S.No. 189 on the basis of which the certificate is said to have been made shows that it contains name of 'Masaru' the words "mQZ egsl nsoklh" seems to have been inserted by a different hand. 19. Be that as it may, petitioner's other documents such as scholar register, mark-sheet of class 10th and Aadhaar card shows petitioner's consistent stand that his date of birth is 01.06.2001. The Tribunal has considered all evidence in detail and has recorded an infallible finding in para No.10 of its judgment. According to this Court the learned Tribunal has committed no error in discarding the birth certification dated 29.11.2019. 20. As per discussion foregoing, this Court affirms the finding recorded by learned Tribunal qua issue No.l framed in relation to age of the returned candidate (present petitioner). 21. Since, finding in relation to date of birth has been affirmed, this Court has no hesitation in holding that at the time of submitting nomination from, petitioner was below 21 years of age and thus, ineligible to contest election. 22. However, this Court is unable to confirm direction No.2 given by the learned Tribunal, vide which the respondent No.l (election petitioner) has been declared as Sarpanch of Gram Panchayat Chatwada. 23. It is settled proposition of law of law that if there are more than two candidates and nomination form of one of the candidate is held invalid, a declaration cannot be granted in the favour of the election petitioner or the candidate who stood second in the election. 23. It is settled proposition of law of law that if there are more than two candidates and nomination form of one of the candidate is held invalid, a declaration cannot be granted in the favour of the election petitioner or the candidate who stood second in the election. The reason is, that it is impossible to arrive at a definite finding that on the exclusion of returned candidate, majority of votes would have gone to election petitioner or the candidate who stood second in the election. 24. My aforesaid view is fortified by the judgment of Hon'ble the Supreme Court delivered in Prakash Khandre Vs. Dr. Vijaya Kumar Khandre & Ors. : (2002) 5 SCC 568 . The relevant paras being reproduced hereunder: "11. However, the question which requires consideration is- if there are more than two candidates for one seat and the elected candidate is subsequently found to be disqualified, whether the candidate who has secured more votes than remaining candidates should be declared as elected or not? For this, we would consider the ingredients of Section 101 which inter alia provide that after declaring election of returned candidate to be void, the High Court may declare the petitioner or such other candidate to have been duly elected if - (a) in fact the petitioner or such other candidate received a majority of valid votes; or (b) but for the votes obtained by the returned candidate by the corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes. 12. Therefore, the first ingredient for declaring the election petitioner or other candidate to have been duly elected depends upon error for various reasons in counting of valid votes and if it is found that in fact the petitioner or such other candidate received a majority of valid votes, he is to be declared elected. 13. The second ingredient provides for establishing that the votes obtained by the returned candidate were obtained by corrupt practices and but for such votes the petitioner or such other candidate would have obtained a majority of valid votes. 13. The second ingredient provides for establishing that the votes obtained by the returned candidate were obtained by corrupt practices and but for such votes the petitioner or such other candidate would have obtained a majority of valid votes. Say as in the present case, the difference between the elected candidate and the election petitioner is of 10,327 votes and if it is established that elected candidate obtained more than 10,327 votes by corrupt practices then petitioner or such other candidate who has obtained majority of valid votes could be declared as elected. 14. However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected." 25. The writ petition is therefore partly allowed. 26. The respondent No.2 is hereby directed to recommend fresh election of Sarpanch of the Gram Panchayat Chatwada, Tehsil Raniwada, District Jalore, in accordance with law. 27. Till the fresh election takes place, the respondent No.2 shall ensure handing over charge to the competent person, in accordance with law. 28. The finding recorded by the learned Tribunal so also the order instant affirming the said finding shall not be binding upon the criminal Court in relation to FIR No.0021/2020 lodged in Police Station Karda, District Jalore against the petitioner in relation to submitting forged birth certificate. The Court concerned shall take its independent view on the basis of oral and occular evidence led before it. 29. Stay petition also stands disposed of accordingly.