PREM SINGH Vs. NARENDRA SINGH

JUDGEMENT

(1.) THIS petition purported to be under Article 226/227 of the Constitution of India has been filed against the judgment dated 28 -3 -2014 passed by the Civil Judge (Senior Division) Dholpur, whereunder the election petition filed by the respondent -election petitioner (hereinafter the applicant') challenging the election of the petitioner -returned candidate (hereinafter 'the non applicant') was allowed. The election of non applicant as a member from Ward No. 1 in Municipality Dholpur having been set aside a direction was correspondingly issued to the Returning Officer to conduct an election in the said ward afresh.

(2.) THE elections to Municipality Dholpur under Section 11 of the Rajasthan Municipalities Act, 2009 (hereinafter 'the 2009 Act') were called in 2010. The 2009 Act inter alia sets out disqualifications for being elected a member of ward. Under Section 24(xvii) and proviso (e) thereof, a person having more than two children on the date of election is disqualified if in spite of having more than two children as on 27 -11 -1995, he were to sire another child subsequent thereto.

(3.) THE applicant resorting to Section 31 of the 2009 Act filed an election petition before the District Judge impugning the non -applicant's election primarily on the ground that on the date of nomination of election of the non applicant, the returned candidate was disqualified to contest and be elected as member of a Municipal ward in view of the fact that he had sired a 8 child one Devesh on 5 -10 -1998 i.e. after the cut off date of 27 -11 -1995. On notice on the election petition, the non applicant filed reply of denial stating that all his 8 children were born before the cut off date 27 -11 -1995. Specific to the allegation that the 8 child Devesh was born on 5 -10 -1998 after the cut off date 27 -11 -1995, it was stated that in the nomination form and the declaration form in support thereof under Rule 81 of the governing Rules was erroneously stated that Devesh had been born on 5 -10 -1998. The mistake had been bonafide made for the reason that the nomination form and declaration were filed by Devendra Singh Rana, Advocate, albeit signed by him. In support of the contention that Devesh was born on 5 -10 -1995 and not on 5 -10 -1998 i.e. after the cut off dated 27 -11 -1995, a horoscope indicating Devesh's birth as asserted in the reply was filed.