BAJRANG SON OF SAHI RAM, BY CASTE AHEER, AGED ABOUT 31 YEARS, RESIDENT OF VILLAGE MANPURA GRAM PANCHAYAT AND POST KALA KHARI, TEHSIL BUHANA, DISTRICT JHUNJHUNU Vs. SHIV RAM ALIAS SHEO RAM SON OF SHRI SULTAN SINGH, RESIDENT OF VILLAGE SAGA, POST KALA KHARI, TEHSIL BUHANA, DISTRICT JHUNJHUNU

JUDGEMENT

(1.) This writ petition has been filed by Bajrang challenging the order dated 09.09.2016 passed by learned Senior Civil Judge, Khetri, District Jhunjhunu, who thereby allowed the election petition filed by respondent Shivram @ Sheoram and set-aside the election of the petitioner as Sarpanch of Gram Panchayat Kala Khari. The petitioner was elected as Sarpanch of Gram Panchayat Kala Khari on 24.01.2015. The respondent in the election petition stated that as per the schedule of election, nomination papers were to be received on 23.01.2015 from 8:00 AM to 11:00 AM and scrutiny was to commence on that date at 10:50 AM, whereas withdrawal of the nomination form could be made at 3:00 PM. According to the allegation of the respondent, he submitted his nomination form to Returning Officer at 10:00 AM on 23.01.2015. The Returning Officer illegally rejected his nomination form on the premise that he had more than two children born to his wife after the cut off date. Learned court below, while allowing the election petition, observed that the respondent had produced the complete academic record of his children. There was minor mistake in the nomination form. In fact mistake lay in indicating date of birth of third child and description of second child in Column 2 of Clause 3 rather than in Clause 1, which was a minor mistake and could be corrected. Certificates could have been obtained with regard to correct date of birth of the children but the Returning Officer did not do so. In the documents relating to date of birth of the children had given a complete series. He could not file birth certificate of the children at the time of nomination. Though his last two children had till the time of filing of nomination were already 10th pass and had the academic certificate containing the date of birth. The Returning Officer therefore did not give any opportunity to the respondent to rectify the same.

(2.) Mr. J.P. Goyal, learned senior counsel for the petitioner, argued that learned Election Tribunal has committed serious error of law in allowing the election petition holding that the Returning Officer committed illegality in rejecting the nomination of the respondent on the ground that he was having more than two children on the cut off date i.e. 27.11.1995. The respondent was disqualified to contest the election in view of the bar contained in Sec. 19(l) of the Rajasthan Panchayati Raj Act, 1994. The Election Tribunal failed to appreciate that as per the guidelines of the State Election Commission, he could ignore in the nomination form increase of this one child in addition to already having numbers of children. While the respondent no.1 has concealed the said fact and made mention in the nomination form that on 23.04.1994 he had two children but in the said column, in which details of the child born from 23.04.1994 to 27.11.1995 were sought, date of birth of his son Narendra has been shown as 05.12.1994. The respondent mentioned the date of birth of his daughter Anita as 06.06.1995 but there is overwriting and interpolation in Clause 3(A) because he initially mentioned total number of children begotten till 23.04.1994 as three, but it was scored scored out and thereafter rewritten as two. The respondent therefore concealed the material fact with regard to total number of children born between that period as to while the date of birth of son Narendra was 05.12.1994, which ought to have been indicated in Column (b) between the period 23.04.1994 to 27.11.1995. In this column, the respondent mentioned having only one child. The Returning Officer called upon the respondent no.1 to explain all this anomaly, but he did not present himself to clarify this. The Returning Officer was perfectly justified in rejecting the nomination paper on the ground of respondent no.1 having more than two children on 27.11.1995.

(3.) It is argued that a careful reading of nomination paper would indicate that the respondent no.1 had more than two children after the cut off date and therefore was ineligible. Learned senior counsel laid much emphasis on the fact that while the respondent no.1 indicated date of birth of Anita as 06.06.1995 but this date could not be accepted as the date of birth because it was impossible to have begotten third child within 180 days of the birth of previous child. Since the date of birth of Narendra was described as 05.12.1994, it would be impossible that Anita would have been born on 06.06.1995. Learned senior counsel for petitioner in support of his arguments, has relied on judgment of the Supreme Court in Kisan Shankar Kathore Vs. Arun Dattatray Sawant and Others, - AIR 2014 SC 2069 .