MUKESH MEENA Vs. KEDAR MAL GURJAR

JUDGEMENT

(1.) The instant writ petition has been filed assailing the impugned judgment dtd. 1/4/2022 passed by the Additional Senior Civil Judge, Sawai Madhopur, by which the election petition filed by the petitioner against the respondents has been rejected. Learned counsel for the petitioner submits that the respondent No.1 was convicted for the offences punishable under Ss. 332 and 324/34 IPC and he was sentenced to undergo for one year imprisonment with fine of Rs.1000.00 vide judgment dtd. 2/7/2013 by the Court of Judicial Magistrate-First Class, Sawai Madhopur. Counsel submits that the respondent No.1 assailed the aforesaid judgment by way of filing appeal before the Court of Session Judge, Sawai Madhopur and his conviction for the above offences was upheld, but he was granted benefit of probation vide judgment dtd. 7/9/2018. Counsel submits that concealing these material facts, the respondent No.1 submitted nomination form for contesting election for the post of Sarpanch, Gram Panchayat Bhagwatgarh Panchayat SamitiChouth Ka Barwada, Sawai Madhopur and suppressed the relevant information of his conviction in a criminal case. Counsel submits that the respondent No.1 is having disqualification under Sec. 19(g) of the Rajasthan Panchayat Raj Act of 1994 (for short, "the Act of 1994"), therefore, he was not qualified to contest the election for the post of Sarpanch. Counsel submits that as per the proviso (ii) attached to Sec. 19 of the Act of 1994, the respondent No.1 was disqualified to contest the election for six years from the date of his conviction. Counsel submits that on the basis of the above averments, an election petition was submitted by the petitioner against the respondents, challenging the election of the respondent No.1 before the Court of District Judge Sawai Madhopur, thereafter, the election petition was transferred to the Court of Additional Civil Judge, Sawai Madhopur wherein on the basis of pleadings in all nine issues were framed, out of which two preliminary issues were to be decided initially with the consent of the parties and an application was submitted by the petitioner under Order 14 Rule 5 CPC for summoning the original nomination form from the office of District Election Officer. Counsel submits that the said application, filed by the petitioner was allowed vide order dtd. 9/11/2021 and the original election nomination form of the respondent No.1 was summoned from the office of the District Election Officer. Counsel submits that thereafter the case was posted for arguments on the preliminary issues and accordingly, with the consent of the counsel for the parties, final arguments were heard on preliminary issue Nos. 1 and 2 and both the issues were decided against the petitioner and thereafter, the entire election petition of the petitioner was rejected by the Election Tribunal by recording a finding in para No.17 that both the parties have failed to produce any evidence, in support of the other remaining issues Nos.3, 4, 5, 7, 8 and 9. Counsel submits that the Tribunal was of the view that all these issues were mixed questions of fact and law and since parties failed to produce any evidence in support of the above issues, therefore, the election petition is liable to be rejected. Counsel submits that no consent was given by the petitioner at the time of making arguments on the preliminary issues that no other evidence would be produced by him for the rest of the issues. Counsel submits that the consent was given by the petitioner for non production of documents or evidence confined to the decision of issue Nos.1 and 2 only. Counsel submits that under these circumstances, the impugned judgment dtd. 1/4/2022 passed by the Tribunal is not sustainable in the eye of law and the matter is required to be remitted back to the Tribunal for deciding the rest of the issues, i.e., issue Nos.3, 4, 5, 7, 8 and 9, after taking evidence of both sides.

(2.) Per contra, learned counsel for the respondent No.1 opposed the arguments raised by the counsel for the petitioner and submitted that on the basis of the consent given by both the sides, the preliminary issues Nos.1 and 2 were decided, after hearing the arguments of both sides. Counsel submits that since the preliminary issue Nos.1 and 2 were legal issues and the petitioner has failed to prove the disqualification of the respondent, i.e., conviction which was more than six years ago, hence the respondent No.1 was not disqualified to contest the election for the post of Sarpanch. Counsel submits that once the legal issue and the main issue were decided against the petitioner, no other issues were required to be decided by this Court. In support of his contentions, he has placed reliance upon the judgment passed by the Hon'ble Apex Court in the Case of A Kanthamani Vs. Nasreen Admed reported in (2017) 4 SCC 654. Counsel submits that under these circumstances, the Tribunal has passed a just and cogent judgment which needs no interference of this Court.

(3.) Heard and considered the submissions made at Bar and peruse the material available on the record.