MOVNI BAI Vs. NAZRI BAI AND OTHERS

JUDGEMENT

(1.) The petitioner was elected Sarpanch of Gram Panchayat, Sayra in the elections held on 4.2.2002, in which respondent No. 1 Smt. Nazri Bai. was defeated. Aggrieved against above election, Nazri Bai filed an election petition before the District Judge, Udaipur under section 40 of the Rajasthan Panchayati Raj Act, 1994. The main ground against present petitioner was that she was not qualified to contest the election due to birth of third child on 11.3.1997, which was disqualification under sub-section (1) of section 19 of the Act. The petitioner contested the election petition by submissions that third child born to her on 19.9.1995, which was much prior to cut off date 27.11.1995 and thus, she was not disqualified. The respondent No. 4, Addl. Civil Judge (Senior Division), after framing the issues and recording evidence, vide judgment Annx. 14 dated 30.7.2002 came to conclusion that petitioner was disqualified on 4.2.2002 and third child was born to her after the cut-off date referred above and set aside election of the petitioner. Hence this petition.

(2.) The point for determination before the court below as also before this Court is whether the third child was born to petitioner on 19.9.1995 or on 11.3.1997. Admittedly, a third girl child was born to the petitioner, whose name is Nirmala. According to the petitioner, she was born prior to cut off date 27.11.1995 whereas according to the respondents, she was born on 11.3.1997. In the court below, the solitary issue with regard to above fact was framed, the burden of which was on respondent No. 1, who not only examined herself as PW 1 but also one Van Singh as PW 2 and exhibited Annx. 2, an entry made in the register of Primary Health Center. On the contrary, present petitioner & defendant examined herself only. However, after closure of the evidence, petitioner submitted an application dated 27.7.2002 (Annx. 13) before the court below to take on record, which is a letter issued by the Senior Medical Officer, Primary Health Center, Sayra, to the effect that during the year 1995-2000, according to record of the dispensary, no child was born to Movni Bai wife of Tej Singh. Above document was not taken on record by the court below on the ground that it has been submitted belatedly.

(3.) In this court also, petitioner has submitted Annx. 5, a certificate issued on 29.1.2000, showing that a girl child was born to petitioner on 19.9.1995. Both the learned counsel relied on some authorities.