BACHCHU SINGH SON OF CHIRANJEE, BY CASTE JAT, RESIDENT OF PAHARSAR, TEHSIL NADBAI, DISTRICT BHARATPUR, RAJASTHAN Vs. KAMALDEEP SINGH SON OF GURU CHARAN SINGH, BY CASTE JATT SIKH, RESIDENT OF PAHARSAR, TEHSIL NADBAI, DISTRICT BHARATPUR, RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by the petitioner/returned candidate Bachchu Singh(for short 'the returned candidate') whose election as Sarpach of Gram Panchayat Paharsar, District Bharatpur has been set aside by Civil Judge, Senior Division, Nadbai, District Bharatpur(for short 'the Election Tribunal') vide judgment dated 14.10.2016 while allowing the election petition filed by Kamaldeep Singh, Respondent No. 1-election petitioner(for short 'the election petitioner').

(2.) Elections of aforesaid gram panchayat were held on 24.01.2015 in which the returned candidate-petitioner was declared elected as Sarpanch of the aforesaid gram panchayat. Respondent No.1-election petitioner filed election petition on the ground that his nomination form was wrongfully rejected by the returning officer. Returning officer also failed to take note of the fact that the respondent no. 1-election petitioner was convicted for offences under Sections 323, 341 and 325 Penal Code read with Sec. 34 Penal Code and maximum sentence prescribed for offence under Sec. 325 Penal Code was more than six months. However, respondent no. 1- election petitioner was released on probation by the trial court under the provisions of Sec. 4 and 12 of the Probation of Offenders Act, 1958. Respondent no. 1-election petitioner was not eligible to contest the elections in view of Sec. 19(g) of the Rajasthan Panchayati Raj Act, 1994(for short 'the Panchayati Raj Act'). He was convicted for offences under Sections 323, 341 and 325 Penal Code read with Sec. 34 Penal Code which carries maximum sentence of more than six months under Sec. 325 IPC. Though he was released on probation, yet his nomination was rightly rejected by the returning officer.

(3.) Mr. Vijay Poonia, learned counsel for the petitioner argued that the Election Tribunal failed to consider that at the time of scrutiny of nomination form of respondent no.1- election petitioner at 11.00 A.M. on 23.01.2015, a memo for removal of defect was handed over to the election petitioner but he wilfully remained absent at the time fixed by the returning officer for submission of his explanation regarding defect in nomination form. Since respondent no.1-election petitioner did not appear before the returning officer to remove the defect in the nomination form and failed to explain the defect pointed out by him, the returning officer was fully justified in rejecting nomination form of respondent no.1-election petitioner at 3.00 P.M. on the same day. It is argued that under Rule 27 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short 'the Rules of 1994'), the returning officer was required to decide all the objections regarding the nomination form of any candidate and he may either on the basis of such objections or on his own motion, reject any nomination paper on any of the grounds contained in Rule 27(3) of the Rules of 1994. Rule 27(3)(d) of the Rules of 1994 provides that the returning officer can reject the nomination form of a candidate on the ground that the candidate has failed to comply with the provisions of Rule 25 of the Rules of 1994, which provides that on the day appointed under Rule 23, for the presentation of nomination papers any person qualified under Sec. 19 of the Rajasthan Panchayati Raj Act for election as a Panch to seek such election shall deliver in person to the returning officer his nomination paper in the form prescribed for such nomination paper, duly filled in and signed by him or bearing his thumb impression. It is argued that failure of any candidate in making his presence before the returning officer for removal of the defects pointed out by him itself is sufficient to exercise the powers by the returning officer to reject his nomination form on this very count only. The question whether the defect pointed out by the returning officer was substantial in nature or not, or whether on the basis of the defect pointed out by the returning officer, would be immaterial, if the candidate does not appear before the returning officer and does not explain the defect pointed out by the returning officer.