BABU LAL Vs. RAM KESH AND ORS

JUDGEMENT

(1.) Aggrieved by the judgment dated 23.4.2014 of learned Single Judge of this Court passed in S.B. Civil Writ Petition No.2100/2014, whereby the learned Single Judge has rejected the petition filed by the appellant and has upheld the order dated 5.2.2014, whereby the appellant's election was set aside as the Sarpanch, the appellant has preferred this appeal

(2.) Brief fact of the case are that on 22.2.2010 the respondent No.1, Ram Kesh, filed an election petition under section 43 of the Panchayat Raj Act,1994 before the District Judge, in which he challenged the appellant's election as Sarpanch of Gram Panchayat, Jhopra. According to respondent No.2, the appellant already had three sons and two daughters, and son Harish was born after the cut off date of 27.11.1995. Therefore, he prayed that the election be declared as void. The appellant filed a reply and denied the averments made in the election petition. After framing the issues, recording the statements of the witnesses, by judgment dated 5.2.2014, the court below set aside the appellant's election. Aggrieved by the aforesaid judgment, the appellant preferred a writ petition before the learned Single Judge; however, by judgment dated 23.4.2014, the learned Single Judge dismissed the petition. Hence this appeal before this Court.

(3.) Mr. R.P. Garg, the learned counsel for the appellant, has vehemently contended that the observation made by the learned Single Judge that, "I find that it is not the case where written statement was filed admitting the birth of fifth child after 27.11.1995, but even document was produced to show as to what is the date of birth of the fifth child as per the school record. Taking note of the aforesaid, the finding recorded by the Court below while accepting the election petition, cannot be interfered with" is erroneous reading of the record. According to the learned counsel inadvertently an admission was made by the appellant in his written statement that the fifth child was born after the cut off date i.e. 27.11.1995. However, an application was moved for amending the written statement; the application was was rejected by the learned court. However, the document relied upon by the learned Single Judge was not submitted by the appellant, but was submitted by the respondents while challenging the appellant's election on the post of Sarpanch. Therefore, the reasoning given by the learned Judge is misplaced. Secondly, that even in the document, which happens to be Harish's school certificate his date of birth has been recorded erroneously. Since the appellant did not take Harish for admission in the school, in fact, Harish was sent with one Shanker, who entered his date of birth erroneously in the school record. According to the learned counsel, the correct date of birth of the child was mentioned by the appellant in his nomination paper. Therefore, the learned Single Judge was not justified in upholding the order dated 5.2.2014. Thus, the impugned order deserves to be set aside.