Rajasthan High Court - Jaipur
Vishni W/O Narendra Kumar Meena vs Muthri Devi W/O Harikishan ... on 16 February, 2023
Author: Inderjeet Singh
Bench: Inderjeet Singh
[2023/RJJP/003037]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8315/2022
Vishni W/o Narendra Kumar Meena, Aged About 50 Years, R/o
Pakhar-Ii, (Second) Tehsil Mandawar District Dausa
----Petitioner
Versus
1. Muthri Devi W/o Harikishan, Aged About 78 Years, R/o
Jetpur, Tehsil Mandawar District Dausa Rajasthan
2. District Election Officer (Panchayat), District Dausa
3. Returning Officer Election Sarpanch, Village Panchayat
Saipur Pakha Panchayat Samiti Mahwa Tehsil Mandawar
District Dausa Through District Election Officer
(Panchayat) District Dausa.
----Respondents
For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Counsel assisted by Mr. Prem Chand Dewanda Mr. Rahul Yaduvanshi Mr. Molik Purohit For Respondent(s) : Mr. Rajendra Prasad, Sr. Adv., assisted by Ms. Harshita Thakral & Mr. Deepak Kumar Sharma Mr. Deepak Meena Mr. Shailesh Sharma, AGC HON'BLE MR. JUSTICE INDERJEET SINGH Order REPORTABLE 16/02/2023 Instant writ petition has been filed by the petitioner (hereinafter to be referred as "Returned Candidate") against the judgment dated 25.05.2022 passed by the District Judge Dausa, District Dausa (hereinafter to be referred as "the learned Trial Court") whereby the Election Petition (bearing No.61/2020) filed by the respondent No.1 Muthri Devi (hereinafter to be referred as Election Petitioner), was allowed and election of the Returned Candidate, held on (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (2 of 29) [CW-8315/2022] 28.09.2020 for the post of Sarpanch, Gram Saipur Pakhar Panchayat Samiti Mahwa Tehsil, Mandawar District Dausa was set-aside and the Election Petitioner was declared as Elected Sarpanch of aforesaid Gram Panchayat.
Brief facts of the case as emerge from the material on record are that an election for the post of Sarpanch, Gram Saipur Pakhar Panchayat Samiti Mahwa Tehsil, Mandawar District Dausa was held on 28.09.2020 for which total 9 candidates filled their nominations and contested the election, including the Election Petitioner and the Returned Candidate. After counting of the votes, the result of the election was declared on the same day i.e. 28.09.2020 in which the Election Petitioner got 590 valid votes and the Returned Candidate received 701 valid votes who thus won the election and was elected as Sarpanch of the said Gram Panchayat.
Being aggrieved, the Election Petitioner filed an election petition before the learned Trial Court on the ground that the Returned Candidate was not eligible to contest the election for the post of Sarpanch on account of having pre- disqualification to contest the said election as she was having three children after the cut off date i.e. 28.11.1995 which holds her ineligible in view of the provisions contained in Section 19 (l) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter to be referred as "Act of 1994"). It was further averred revealing about the details of the three children of the Returned Candidate that her first child (Deendayal) was born in the year 2000, second child (Rahul) was born in the year 2002 and the third child (Sachin) was born in the year (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (3 of 29) [CW-8315/2022] 2005 and on this account the Election Petitioner prayed for quashing of the election of the Returned Candidate.
After notices of the Election Petition being served, a reply was filed by the Returned Candidate in which it was admitted that the Returned Candidate is having three children but in regard to being eligible on account of having third child after the cut off date it was stated that her second & third child are twins, born on 20.08.2002, therefore, the third child cannot be counted as a separate entity & in fact are one entity and that being so, the provisions contained in clause (l) to Section 19 of the Act of 1994 are not applicable and she was eligible to contest the election for the post of Sarpanch under the Act of 1994 and prayed for dismissing the election petiiton.
On the basis of the pleadings of the parties, the learned Trial Court framed five issues, which are as under:-
"1 . आया प्रतययर्यर्थी स संख ् या -1 क दिननाा्क 28 .11 .
95 क बान 3 स्ताना पैना होना क कारना वो गाम प्चायत सायपपुर पाखर क सरप्च पन क दिलिए चपुनााव लिड़ना क दिलिए अयोगय यरथी , परन्तपु उसना अपना नााम दिनान्शना पत्र म् सन्तानाो कतानो की जन्मदितदियर कतानो की ि की घोषी घोषणा क सम्बन््ध म् ्धोखा्धड़थी करक दिमथया दिववरी घोषण अदि् कत करक व् झूठा सपयर -पत्र नााम दिनान्शना पत्र क सायर नकर चपुनााव लिड़ा ह,ै इस कारना स प्रतययर्यर्थी स् संखया -1 का दिनावा्वाचना बटोर सरप्च शून्य ि की घोदिषत दिकय जाना योगय है एव् यादिचकाकार सरप्च पन पर दिनावा्वाचना ि की घोदिषत दिकय जाना योगय है ?
याचथी (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (4 of 29) [CW-8315/2022] 2 . आया प्रतययर्यर्थी स् संखया -1 क तथीना पपुत्रो म् बड़ पपुत्र नथीनानयालि का जन्म सना 2000 म् हह आ है , उसस छोट पपुत्र राहह लि का जन्म सना 2006 म् हह आ है , परन्तपु प्रतययर्यर्थी स् संखया - 1 दारा ्धोखा्धड़थी पूव्वाक कूटरदिचत नसतावज तैयार करक अपना नोनाोनों पपुत्र राहह लि व सदिचना को जपुड़वाँ बताकर अपना नााम दिनान्शना पत्र म् ् या कपुलि -2 नशा्वात हह ए ्धोखा्धड़थी अपना बबचचो कतानो की स संख व दिमथया कयरना करत हह ए नााम दिनान्शना पत्र भरा है और गलित रूप स अपना पपुत्र सदिचना व राहह लि नोनाोनों कतानो की जन्मदितदियर 20 .08 .2002 अदि् कत कतानो की है ?
याचथी 3 . आया प्रतययर्यर्थी स् संखया - 1 ना अपना सरप्च पन क नाामा्कना फाम्वा म् अपनाथी तथीनाो सन्तानाो का दिववरी घोषण अदि् कत दिकया है , दिजसम सबस बड़ पपुत्र नथीनानयालि कतानो की जन्मदितदियर 01 .07 .2000 व सदिचना व राहह लि का जन्म जपुड़वाँ प्रसव क रूप म् होना क कारना उनाकतानो की जन्मदितदियर 20 /08 /2002 अदि् कत करत हह ए नाामा्कना फाम्वा म् जपुड़वाँ सबन अदि् कत दिकया ह,ै जो सहथी अदि् कत दिकया है एव् उनाका दिवदि्धक तरथीक स चपुनााव लिड़ा है ?
..अयाचथी स् संखया -1
४. आया यादिचका म् सभथी परादिजत उम्मथीनवारोनों को पक्षकार नाहनहीं बनााय जाना क कारना चपुनााव यादिचका ख़ाररज दिकय जाना योगय है ?
..अयाचथी स् संखया -1 5 . अनापुतोष कया होगा ?
In support of her case, the Election Petitioner adduced the evidence of PW-1-Muthri Devi, PW-2-Devkinandan, PW-
3- RamKishan Meena, PW-4- Jaswantram Meena, PW-5- Virendra Kumar Sharma and PW-6- Netram Meena and also submitted the documentary evidence Exhibit-1 to Exhibit-
12A. The Returned Candidate in support of her counter before the learned Trial court adduced the evidence of DW-1-Vishni, (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (5 of 29) [CW-8315/2022] DW-2- Banwari Lal, DW-3- Ram Prasad Meena, DW-4- Changaram Meena, DW-5- Ramswaroop and DW-6-Prabhu Dayal and also submitted the documentary evidence marked as Exhibit-NA1/1A to Exhibit-NA1/12. Thereafter, the learned Trial Court after recording the evidence of the parties and upon hearing their arguments decided the issues No.1 & 2 in favour of the Election Petitioner and set-aside the election of the Returned Candidate and also decided the issue No.3 against the Returned Candidate. While passing of the final impugned judgment, the learned Trial Court has also declared the Election Petitioner as elected Sarpanch of Gram Saipur Pakhar Panchayat Samiti Mahwa Tehsil Mandawar District Dausa. Hence, being aggrieved by the judgment passed by the learned trial court dated 25.05.2022, the present writ petition has been filed by the Returned Candidate.
Mr. Kamlakar Sharma, learned Senior Counsel submits that birth of third child of the Returned Candidate after the cut off date which has been taken by the learned trial court to be a sole basis in declaring the Returned Candidate as ineligible/disqualified is not correct as the fact is that the 2 nd and 3rd child of the Returned Candidate are twins and born on 20.08.2002 and in view of the Explanation (I) to clauses (l) of Section 19, if twin children are born out of single pregnancy, they shall be counted as one entity and thus submitted that the finding recorded by the learned trial court in this regard is absolutely against the aforesaid provision. In support of his submissions learned Senior Counsel placed for perusal certain documents i.e. Aadhar Card, Jan Adharcard, 10 th Class (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (6 of 29) [CW-8315/2022] Certificate, School Admission Form as well as S.R. Register wherein the date of birth of her sons namely Sachin and Rahul have been recorded as 20.08.2002 and submitted that a perusal of the documentary evidence also goes to show that her both 2nd and 3rd child are twins born on 20.08.2002.
Learned Senior Counsel further submits that in view of the foregoing submissions, it is clear that the findings recorded by the learned Trial Court on issues No.1, 2 & 3 are perverse and absolutely without application of mind, as it suffers with wrong & non-consideration of the oral as well as the documentary evidence produced by the Returned Candidate before it. Learned Senior Counsel further submits that the direction given by the learned Trial Court with regard to declaring the Election Petitioner as elected Sarpanch of Gram Saipur Pakhar Panchayat Samiti Mahwa Tehsil Mandawar District Dausa also deserves to be set aside as the election in question was a Multi Cornered Contested election and in this election not only the Election Petitioner but eight other candidates including the Returned Candidate have also participated. Learned Senior Counsel further submits that all the documents submitted by the Returned Candidate before the learned Trial Court were issued much before the date of election held in 2020 and the public documents submitted by the Returned Candidate were not properly considered by the learned trial court on the contrary there is overwriting in the document relied upon by the Election Petitioner before the learned Trial Court and has prayed for allowing the writ petition.
(D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (7 of 29) [CW-8315/2022] In support of the contentions, learned Senior Counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Brij Mohan Singh v. Priya Brat Narain Sinha & Ors. reported in AIR 1965 SC 282, wherein paras No.18 to 21, it has been held as under:-
18. In our opinion, this document is genuine and is the book that was maintained by the Chowkidar for noting the births in his Ilaka during the years 1934 to 1936. The entry therein showing the birth of a son to Sarjoo Singh on October 15, 1935 can however be of no assistance to the appellant unless this entry is admissible in evidence under the Evidence Act. If this entry had been made by the Chowkidar himself this entry would have been relevant under Section 35 of the Evidence Act. Admittedly, however, the Chowkidar himself did not make it. Mr Agarwal tried to convince us that when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be treated as an entry made by the public servant. This argument must be rejected.
The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act. The entry in the hath-chitha has therefore to be left out of consideration in coming to a conclusion about the appellant's age.
19. Strong reliance was placed on behalf of the petitioner-respondent on three (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (8 of 29) [CW-8315/2022] documents Ex. 2, Ex. 8 and Ex. 18. The first of these is the admission register of Aurangabad Town School where the appellant took his admission as a student on January 19, 1946. In the entry as regards his admission in the register the date of birth is shown as October 15, 1937 and the age as eight years, three months and three days. The second Exhibit (Ex. 8) is an application made by the appellant on August 26, 1959 for the post of a Sub-
Inspector of Police. Here also the date of birth is shown as October 15, 1937. The third document is Ex. 18. It is a certificate issued by the Bihar School Examination Board for his passing the Matriculation Examination. This also states the date of birth as October 15, 1937.
20. An objection was faintly raised by Mr Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant's case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (9 of 29) [CW-8315/2022] base any conclusion about the appellant's age on the entries in these three documents viz. Ex. 2, Ex. 8 and Ex. 18.
21. On an examination of the entire evidence, oral and documentary, we therefore reach the position that the petitioner-respondent has not been able to prove that the appellant Brij Mohan was below 25 years of age on the date of filing of nomination papers while the appellant himself has also not been able to show that he was at least 25 years of age on that date. It cannot be disputed and is not disputed that the burden of proving that the appellant's age was below 25 years on the date of his nomination was on the petitioner-respondent. The petition insofar as it is based on the ground that the appellant was below 25 years of age on the date of his nomination must therefore fail." Learned Senior Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Birad Mal Singhvi v. Anand Purohit reported in AIR 1988 SC 1796, wherein paras No.14 to 18, it has been held as under:-
"14. We would now consider the evidence produced by the respondent on the question of age of Hukmi Chand and Suraj Prakash Joshi. The respondent examined Anantram Sharma PW 3 and Kailash Chandra Taparia PW
5. Anantram Sharma PW 3 has been the Principal of New Government High Secondary School, Jodhpur since 1984. On the basis of the scholar's register he stated before the High Court that Hukmi Chand joined school on 24-6-1972 in Ninth class and his date of birth as mentioned in scholar's register was 13-6- 1956. He made this statement on the basis of the entries contained in the scholar's register Ex. 8. He admitted that entries in the scholar's register are made on the basis of entries contained in the admission form. He could not produce the admission form in original or its copy. He stated that Hukmi Chand was admitted in Ninth class on the basis of transfer certificate issued by the Government Middle School, Palasani from where he had passed eight standard. He proved the signature of Satya Narain Mathur the then Principal who (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (10 of 29) [CW-8315/2022] had issued the copy of the scholar's register Ex. 8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma merely proved that Ex. 8 was a copy of entries in scholar's register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the scholar's register. Kailash Chandra Taparia PW 5 was Deputy Director (Examination) Board of Secondary Education, Rajasthan, he produced the counterfoil of Secondary Education of Hukmi Chand Bhandari, a copy of which has been filed as Ex. 9. He also proved the tabulation record of the Secondary School Examination 1974, a copy of which has been filed as Ex.
10. In both these documents Hukmi Chand's date of birth was recorded as 13-6-1956. Kailash Chandra Taparia further proved Ex. 11 which is the copy of the tabulation record of Secondary School Examination of 1977 relating to Suraj Prakash Joshi. In that document the date of birth of Suraj Prakash Joshi was recorded as 11-3-1959. Kailash Chandra Taparia stated that date of birth as mentioned in the counterfoil of the certificates and in the tabulation form Ex. 12 was recorded on the basis of the date of birth mentioned by the candidate in the examination form. But the examination form or its copy was not produced before the court. In substance the statement of the aforesaid two witnesses merely prove that in the scholar's register as well as in the secondary school examination records the date of birth of a certain Hukmi Chand was mentioned as 13-6-1956 and in the tabulation record of secondary school examination a certain Suraj Prakash Joshi's date of birth was mentioned as 11-3-1959. No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (11 of 29) [CW-8315/2022] and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person.
If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (12 of 29) [CW-8315/2022] mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.
15. The High Court held that in view of the entries contained in the Exs. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmi Chand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury [AIR 1941 Cal 41 : 45 CWN 141 : 193 IC 419] a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Mali Ram [AIR 1951 Punj 377] , Sakhi Ram v. Presiding Officer [AIR 1966 Pat 459] , Ghanchi Vora Samsuddisn Isabhai v. State of Gujarat [AIR 1970 Guj 178] and Radha Kishan Tickoo v. Bhushan Lal Tickoo [AIR 1971 J&K 62] , In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The courts have consistently (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (13 of 29) [CW-8315/2022] held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Jagannath Prasad, [42 ELR 465 (All HC)] K. Paramalali v. I.M. Alangam [31 ELR 401 (Mad HC)] , Krishna Rao Maharu Patil v. Onkar Narayan Wagh [14 ELR 386 (Bom HC)] .
16. In Brij Mohan Singh v. Priya Brat Narain Sinha (1965) 3 SCR 861 , a question arose whether the returned candidate had attained the age of 25 years on the date of his nomination. The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination. This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of the returned candidate could not be set aside. This Court held that an entry recorded in the birth register maintained by an illiterate chowkidar by somebody else at his request, was not admissible and had no probative value within Section 35 of the Indian Evidence Act. In Ram Murti v. State of Haryana AIR 1970 SC 1029 the date of birth of a girl mentioned in the school certificate was not accepted. However in Mohd. Ikram Hussain v. State of U.P. AIR 1964 SC 1925 this Court accepted the date of birth of a girl as mentioned in the school certificate as the date of birth mentioned therein was supported by an affidavit filed by the father of the girl.
17. The appellant was declared elected as he had polled majority of valid votes. His election could not be set aside unless the respondent- election petitioner was able to prove that Hukmi Chand and Suraj Prakash Joshi had attained the age of 25 years on the date of nomination by producing cogent and reliable evidence before the High Court. The burden to prove that fact was on the respondent throughout and he could not and did not discharge that burden merely by producing the documentary evidence Exs. 8, 9, 10, 11 and 12 or on the basis of oral testimony of Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5. As discussed earlier these (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (14 of 29) [CW-8315/2022] documents do not conclusively prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi. The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value. The High Court committed serious error in accepting the dates of birth as mentioned in the aforesaid documents. In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the fact in issue, namely, the dates of birth of Hukmi Chand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age of two candidates was incorrect. It appears that in his list of witnesses the appellant had included the name of Suraj Prakash Joshi and his father Maghdutt Joshi as witnesses but they were not examined by him. Similarly, Hukmi Chand was also cited by the appellant but he was also not examined instead Navratan Mal Bhandari, brother of Hukmi Chand was examined as PW 4 and Ghanshyam Chhangani was examined as PW 6 by the appellant, who supported the appellant's case that Hukmi Chand and Suraj Prakash Joshi had not attained the age of 25 years on the date of nomination. Since the appellant had not examined Hukmi Chand, Suraj Prakash Joshi or their parents, the High Court drew adverse inference against him. The High Court committed serious error in doing so. There was no question of drawing adverse inference against the appellant, as the burden to prove the age of Hukmi Chand and Suraj Prakash Joshi was on the election petitioner and since he had failed to prove the same by cogent evidence no adverse inference could be drawn against the appellant. In fact, burden was on the respondent to prove his case by producing Hukmi Chand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (15 of 29) [CW-8315/2022] the certificate. If he failed to do that he could not succeed merely because appellant had not produced them. In the circumstances no adverse inference was at all possible to be drawn against the appellant for not examining Hukmi Chand and Suraj Prakash Joshi or their parents.
18. In view of the above discussion we are of the opinion that Umrao Ben's nomination paper was rightly rejected and further the respondent has failed to prove that Hukmi Chand and Suraj Prakash Joshi possessed the necessary age qualification as required by Article 173 of the Constitution. Therefore the Returning Officer was justified in rejecting their nomination paper. In this view the High Court wrongly set aside the appellant's election. We accordingly allow the appeal, set aside the order of the High Court and dismiss the election petition. The appellant is entitled to costs which we quantify at Rs 5000."
Learned Senior Counsel further relied upon the judgment passed by the Division Bench of this Court in the matter of Tara Devi v. Sudesh Chaudhary reported in (1997) 2 RLR 141, wherein paras No.9, 27 & 29, it has been held as under:-
9. Only two questions arise for determination in this appeal. These are:--
(a) Whether the learned Single Judge had no jurisdiction under Articles 226 or 227 of the Constitution to quash and set aside the judgment and decree dated 4th, October, 1996 passed by the learned Civil Judge (Sr. Division) Raisingh Nagar?
(b) Whether the learned Civil Judge (Sr. Division) Raisingh Nagar committed any error in arriving at the finding that the respondent No.1 Smt. Sudesh Chaudhary was below 21 years of age on the date of her election as Sarpanch, Gram Panchayat 4. B.L.D., Shri Ganganagar?
27. The learned Civil Judge (Sr. Division) Raisinghnagar, has committed the serious error of admitting in evidence the application (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (16 of 29) [CW-8315/2022] form Ex. 7 which is not relevant under Section 35 Evidence Act. Besides Ex. 7 has not been duly proved to have been filled and signed by the father of the respondent No. 1. We are therefore of the opinion that by admitting in evidence the document Ex. 7 and acting upon it without its being duly proved to have been filled and signed by the father of the respondent No. 1, the learned Civil Judge (Sr. Division) Raisghingnagar has committed an error which deserves to be regarded as an error apparent on the face of the record.
29. We, therefore, find no force in the objection that the learned single Judge had no jurisdiction to exercise powers under Articles 226 and 227 of the Constitution in the case Learned Senior Counsel further relied upon the judgment passed by the Co-ordinate Bench of this Court in the matter of Smt. Ummed Kanwar v. Prabhu Singh & Ors. reported in 2012(4) WLC(Raj.) 14, wherein paras No.24 & 25, it has been held as under:-
"24. The question that now remains is as to whether the trial court while deciding issue No. 3 has rightly held that consequent to the setting aside the election of the defendant, the election petitioner was entitled to be declared elected as Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar. I am afraid that the conclusion of the trial court on this question is peremptory and without any reasons. Even otherwise it is settled law that where there is multiplicity of candidates, the setting aside of an election of the returned candidate cannot lead to a declaration of the election petitioner as elected even if he has secured the second highest votes at the election. Reference in this regard can be had to the constitution Bench judgment of the Hon'ble Supreme Court in the case of Vishwanatna Reddy Vs. Konappa Rudrappa Nadgouda & Anr. (AIR 1969 SC 6041). The Hon'ble Supreme Court in the aforesaid case has held that where there are more than two candidates in the field for a single seat, on proof of disqualification of the returned candidate all the votes cast in his favour (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (17 of 29) [CW-8315/2022] cannot be discarded and the candidate securing the next highest number of votes cannot be declared to be elected. Similar view has been taken by the Hon'ble Supreme Court in the case of Prakash Khandre Vs. Dr. Vijay Kumar Khandre & Ors. [(2002) 5 SCC 568] where the Hon'ble Supreme Court has reiterated that where there are more than two candidates for one seat and the elected candidate is subsequently found to be disqualified, the candidate who secured more votes than the other remaining candidates cannot be declared as elected because the votes cast in favour of the disqualified candidate cannot be regarded as thrown away, nor can it be presumed that those votes would have been secured by the next candidate who secured the second highest votes. It has been held that because it cannot be predicted as to in whose favour the voters would have voted, if they were aware that the elected candidate was disqualified, a fresh election has to be held. Hon'ble Justice V.R. Krishna Iyer in the case of Vatal Nagaraj Vs. R. Dayanand Sagar (1975) 4 SCC 127) in his own inimitable style has stated that "courts do not elect candidates or sign into parliamentary seats those whom the constituency has not yet favoured. The normal democratic process cannot be by-
passed conveniently." "The election petitioner must win not only with the election petition, but the election itself." The Hon'ble Supreme Court in the aforesaid case of Vatal Nagaraj (Supra) approved the observation in the case of Jamuna Prasad Vs. Lachhi Ram (AIR 1954 SC 686) that "there is nothing to show why the majority of the first respondent's voters would have preferred the sixth respondent and ignored the third and fourth respondents". So is the case in this petition.
25. In the facts of the case at hand, the defendant Ummed Kanwar contested the election for the post of Sarpanch of Gram Panchayat Tidoki Badi, Tehsil Laxmangarh, District Sikar held on 22.01.2010 and got 1748 votes. No doubt the election petitioner secured 1698 number of votes and as against 60 votes by the third candidate. Yet the facts remains that the contest was a multi cornered contest and in view of the enunciation of law as detailed above on the mere setting aside of the election of the returned candidate, the election petitioner cannot be declared to be elected."
(D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (18 of 29) [CW-8315/2022] Learned Senior Counsel further relied upon the judgments passed by the Hon'ble Supreme Court in the matters of Muniraju Gowda P.M. v. Munirathna and Ors. reported in (2020)10 SCC 192, Vishwanatha Reddy v. Konappa Rudrappa Nadgouda & Anr. reported in AIR 1969 SC 604 and D.K.Sharma v. Ram Sharan Yadav & Ors. reported in 1993 Supp(2) SCC 117 and further relied upon the judgment passed by the Division Bench of this Court in the matter of Smt. Ummed Kanwar v. Prabhu Singh & Ors. (D.B. Special Appeal (Writ) No. 856/2012) decided on 30.07.2012.
Mr. Rajendra Prasad, learned Senior Counsel appearing on behalf of the respondents has opposed the writ petition and submitted that as this writ petition has been filed by the Returned Candidate under Article 227 of the Constitution of India therefore the scope for interference for this Court with regard to election disputes is very limited. Learned Senior Counsel further submits that the learned trial court has not committed any procedural or jurisdictional error in passing of the judgment which is impugned in this writ petition and this Court cannot be asked to re-appreciate the evidence recorded by the learned trial court. Learned Senior Counsel further submits that the burden to prove the 2nd & 3rd child being twin was upon the Returned Candidate who miserably failed to prove the same before the learned Trial Court. Learned Senior (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (19 of 29) [CW-8315/2022] Counsel further submits that a criminal case was lodged by the Election Petitioner against the Returned Candidate wherein the police after investigation submitted the charge- sheet before the concerned Magistrate. Learned Senior Counsel further submits that the Returned Candidate failed to produce the father of the children in the evidence to prove that 2nd and 3rd child is a single entity and further submits that the learned trial court while setting aside the election of the Returned Candidate has rightly declared the Election Petitioner as elected Sarpanch for the post of concerned Gram Panchayat. Learned Senior Counsel further submits that the judgment cited by the learned senior counsel for the Returned Candidate with regard to giving direction for holding fresh election in a case of multi cornered contest is not applicable in the facts of the present case as the Co-ordinate Bench of this Court in the matter of Smt. Ummed Kanwar (supra) has not properly considered the provisions of the Act of 1994 and Representation of Peoples Act. Learned Senior Counsel further submits that the Returned Candidate DW-1 in her statement recorded during trial has stated that all the three children namely Deendayal, Rahul and Sachin were born separately and admission form and S.R. Register of the concerned School, shows that the third Child of the Returned Candidate was admitted in Class-1 whose date of birth has been shown as 19.05.2005, that apart the Election Petitioner (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (20 of 29) [CW-8315/2022] has also submitted Class-1st admission form of the third child i.e. Sachin and S.R. Register before the learned Trial Court, wherein, the date of birth recorded is 19.05.2005 and the same was duly proved by submitting the evidence of PW-4, Jaswant Ram Saini, who was the then teacher in the said school and proved about the date of birth of the 2 nd and 3rd child of the Returned Candidate. Learned Senior Counsel further submits that the 2nd and 3rd child of the Returned Candidate Rahul and Sachin passed out their 10th Class Examination with a gap of two years i.e. in the year 2017 and 2019 respectively and thus by no stretch of imagination it can be said that the 2nd and 3rd child of the Returned Candidate are twins having born from single delivery while the fact is that they both are separate entity and therefore in view of the Explanation (l) of clause (l) to section 19 of the Act of 1994 the Returned Candidate was rightly held by the learned trial court as ineligible to contest the election and in these facts and circumstances no interference is required by this Court under Article 227 of the Constitution of India.
In support of the contentions, learned Senior Counsel relied upon the judgment passed by the Hon'ble High Court of Andhra Pradesh at Hyderabad in the matter of B. Kantha Reddy vs. Mandal Development Officer-cum-Additional District Election Authority, Manopad Mandal and Ors.
(D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (21 of 29) [CW-8315/2022] (WP No. 11229 of 2005) decided on 23.08.2005, wherein para No.24, it has been held as under:-
"24. Let me make myself clear that the petitioner is claiming benefit of proviso to Section 19(3) of the Act on the ground that his wife gave birth to third child on 29-12-1994. When a person claims benefit under the proviso, it is for him to prove that he did not incur disqualification. The fact that the petitioner had three children as on the date of the election is not in dispute. But, the petitioner claims benefit under the proviso on the ground that the last child was born within one year of the commencement of the Act. In a such situation, it is for the petitioner to prove that he did not incur disqualification. Let me examine the evidence adduced by the petitioner to prove that he did not incur disqualification as on the date of the election. The writ petitioner got himself examined as R.W.1 and examined R.S. Subramanyam as R.W.2 and marked Exs.B1 and B2.
Ex.B1 is the birth certificate issued by the M.R.O. on 27-7-2001. Ex.B2 is the birth register. Petitioner marked Exs.B1 and B2 through R.W.2."
Learned Senior Counsel further relied upon the judgment passed by the Hon'ble High Court of Calcutta in the matter of Nishikanta Ghosh and Anr. vs. The Corporation of Calcutta, reported in AIR 1953 Calcutta 401, wherein para No.20, it has been held as under:-
"20. I ought to refer here to one connected argument of Mr. Dutt founded on the provisos, particularly, the first proviso to Section 406 of the old Act and the similar or corresponding proviso or provisos to Section 461 of the new Act. In this (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (22 of 29) [CW-8315/2022] argument which, however, was not persisted in till the last, the appellants claimed protection or immunity from the present prosecution upon the plea that the prosecuting Corporation not having placed any materials before the Court to exclude the possibility of the application of the said provisos to this case, no offence under either of the said sections could be held to have been committed by them. In ultimate analysis this plea raises the question of onus, and in substance the contention is that to succeed under Section 406 of the old Act or Section 161 of the new the prosecution must establish not only that the case comes within the mischief of the main part of the said section or sections, but also that the provisos thereto are inapplicable.
For this argument reliance was sought to be placed on a broad proposition that in all criminal trials the onus is on the prosecution not only to establish the guilt of the accused, but also to show affirmatively a negative state of things, namely, that conditions do not exist which would entitle him (the accused) to any protection under the law. To this broad argument, I am unable to accede. I am not inclined to hold that where in a statute provisos are engrafted on main parts of penal sections to the effect that under certain conditions the offence or offences, mentioned in the said penal portions, would not be deemed to have been committed, the onus is on the prosecution to show the absence or non-existence of those conditions and such onus must be discharged before a person can be convicted of the said offence or offences. In my view, the onus with regard to such provisos is on the accused and it is for him to establish affirmatively the conditions thereunder in order that the said provisos may be attracted to the case, and their benefits made available to him. The provisos indeed (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (23 of 29) [CW-8315/2022] offer a special defence to the accused and the onus is on him to establish the same if the prosecution is to be thrown out under the said provisos. A similar view was taken by the Allahabad High Court in the case of --
'Rameshwar Das v. Emperor' AIR 1936 All 86(K), and I have no reason to doubt its correctness. I am further of the opinion that the materials on the present records are inconsistent with the existence of any of the conditions contemplated in the provisos to the penal section or sections relevant in this case. I, accordingly, hold that the appellants are not entitled to the protection of the statutory provisos upon which reliance was sought to be placed by Mr. Dutt in the course of this argument."
Learned Senior Counsel further relied upon the judgment passed by the Division Bench of the this Court in the matter of Shri Balaji Industrial Products Ltd. vs. AIA Engineering Ltd. and Ors. (D.B. Civil Writ Petition No. 16794/2017) decided on 25.10.2017, wherein para No.10, it has been held as under:-
"10. It is thus quite clear that while exercising jurisdiction under Article 227 of the Constitution, the High Court in its enquiry has to ascertain whether any jurisdictional error was committed by the Court below and it cannot go into the factual aspects again undertaking appreciation of evidence like an appellate Court. As held by the Apex Court the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases for the purposes of keeping the subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors. The (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (24 of 29) [CW-8315/2022] impugned order dt. 1-9-2017 suffers no such infirmity. It would also be appropriate to add that a resort to Article 227 of the Constitution of India cannot be permitted as to circumvent the legislative intent to eschew challenges to interlocutory orders during the pendency of proceedings as provided for under the Act of 2015, where revisions are prohibited and challenges in miscellaneous appeals confined to orders of the Commercial Court a la orders which are appealable under Order XLIII Rule 1 CPC. To allow reckless resort to Article 227 of the Constitution, without palpable error of jurisdiction being made out or the order impugned leading to manifest injustice shocking the conscience of the Court, would be to defeat the legislative intent. No such situation or ground has been adverted to in the petition nor even argued for the jurisdiction of this Court under Article 227 of the Constitution to be invoked against the impugned order dt. 1-9- 2017. Having earlier held neither a revision petition under Sec. 8 of the Act of 2015 nor miscellaneous appeal under Sec. 13 of the Act of 2015 is maintainable against the order of rejection of an application under Order VII Rule 11 CPC, we are of the view that this petition/D.B. Appeal is wholly misdirected in every conceivable manner."
Learned Senior Counsel further relied upon the judgment passed by the Hon'ble High Court of Patna in the matter of Province of Bihar vs. Bhim Bera and Ors., reported in AIR (34) 1947 Patna 284, wherein para No.6, it has been held as under:-
"6. With regard to the second point, I consider that the learned Judge was also wrong. The words in the Government order exempting persons who have the-written permission of the (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (25 of 29) [CW-8315/2022] Chief Controller are expressed as an exception--"except with the written permission of the Chief Controller of Prices and Supplies, Bihar." Under Section 105, Evidence Act:
"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances".
The operative words in the present case are "within any special exception or proviso contained...in any law defining the offence." The present is a case where the exception is contained in the law defining the offence, and having regard to this wording in Section 105 it is not open to the defence to contend that, since the offence is defined subject to the exception, the prosecution must prove the complete terms of the offence as defined including the absence of the exception. There is weighty authority for this view in the decision of Sir John Beaumont C.J. and Macklin J. in Emperor v.
Dahyabhai Savchand A.I.R. 1941 Bom.
273."
Heard counsel for the parties and perused the record. This Court has considered various documents submitted on behalf of the parties. The Election Petitioner has relied upon Exhibit-6 and Exhibit-7 i.e. the admission form of Class- 1st to prove that the 2nd and 3rd child of the Returned Candidate were born separately, whose date of birth have been shown as 20.06.2002 and 19.05.2005 respectively, whereas the Returned Candidate has submitted the (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (26 of 29) [CW-8315/2022] documents of class 5th Exhibit-NA-6 and Exhibit-NA-8, wherein the date of birth of birth of 2 nd and 3rd child namely Rahul and Sachin have been shown as 20.08.2002.
This Court while considering the finding given by the learned Trial Court on issues No.1 & 2 have also gone through the statement of DW-1, who is mother of the respective Children and also considered the documents submitted by the Returned Candidate i.e. Aadhar Card, Janaadhar Card and Class-10th Mark-sheet as well as S.R. Register, wherein, the date of birth of Rahul and Sachin has been shown as 20.08.2002. DW-1, the Returned Candidate in her statement recorded before the learned Trial Court stated that " मर तथीनाो बबचच अलिग अलिग पैना हह ए यर। "and she further stated that "नथीनानयालि , राहह लि और सदिचना अलिग अलिग पैना हह ए यर।", thus from her statement it is clear that while deviating from her earlier version she improved her subsequent statement and stated that "सदिचना और राहह लि जपुड़वाँ पैना हह ए यर।", This Court further finds that the Class-1st admission form submitted on behalf of the Election Petitioner with regard to the date of birth of the two children of the Returned Candidate namely Rahul and Sachin is duly proved by the Teacher of the said school and that document appears to be a reliable document qua the other documents submitted (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (27 of 29) [CW-8315/2022] by the Returned Candidate during trial before the learned Trial Court.
This Court also finds that the finding of facts recorded by the learned Trial court is correct finding based on proper appreciation of the evidence and statement of mother, who gave birth to the said three children and she is the Returned Candidate and has stated before the learned Trial Court that she has given birth to her three children separately and besides it the finding given by the learned Trial Court further finds support from the fact that the two children have passed 10th Class examination with a gap of two years i.e. in the year 2017 and 2019 respectively, which supports Election Petitioner's version that the two children were born separately with an interval of two years and thus from the own version of the Returned Candidate as well as from the documentary evidence it transpires that all the three children are separate entity and were not born from single delivery and therefore, in my considered view, the learned Trial Court has rightly recorded the finding on issues No.1 & 2 in favour of the Election Petitioner and also rightly given the finding on issue No.3 against the Returned Candidate. Therefore, in my view it cannot be said that the learned trial court has committed any illegality in setting-aside the election of the Returned Candidate.
(D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (28 of 29) [CW-8315/2022] So far as the argument raised on behalf of the Returned Candidate as to whether the learned Trial Court while deciding the issue No.5 was right in its approach in holding the Election Petitioner entitled to be declared as an elected Sarpanch Gram Saipur Pakhar, Panchayat Samiti Mahwa, Tehsil Mandawar, District Dausa is concerned, I am of the considered view that the conclusion of the learned Trial Court on this issue is not correct and not supported with any justifiable reason as it is settled law that where the candidates are multiple in numbers in an election then the court while setting-aside the election of a Returned Candidate is not supposed to declare the Election Petitioner as elected even if he/she, as the case may, has secured the second highest position/votes in the election.
This issue has already been considered by the Co- ordinate Bench of this Court in the matter of Smt. Ummed Kanwar (supra) as well as by the Division Bench of this Court in the matter Smt. Ummed Kanwar v. Prabhu Singh & Ors. (D.B. Special Appeal (Writ) No. 856/2012) decided on 30.07.2012, therefore, in view of the settled legal proposition of the law as has been held by the Co- ordinate Bench of this Court in the matter of Smt. Ummed Kanwar (supra) wherein the Co-ordinate Bench of this Court has also relied upon various judgments passed by the Hon'ble Supreme Court, I am of the considered view that the (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) [2023/RJJP/003037] (29 of 29) [CW-8315/2022] Election Petitioner cannot be declared as elected Sarpanch as it was a multi cornered contest and mere setting-aside the election of the Returned Candidate does not make the Election Petitioner entitled to be declared as elected even if he/she has secured second highest position/votes in the election.
In view of the above discussion, this writ petition is partly allowed in the following manner:-
1. The writ petition challenging the order of the learned Trial Court dated 25.05.2022 setting-aside the election of the Returned Candidate is dismissed.
2. So far as the direction contained in the orders dated 25.05.2022 & 26.05.2022 with regard to declaring the Election Petitioner as elected Sarpanch of Gram Saipur Pakhar Panchayat Samiti Mahwa Tehsil Mandawar District Dausa is concerned, the same is hereby quashed & set-aside.
3. Consequences to follow as per law.
(INDERJEET SINGH),J Upendra Pratap Singh /162 (D.B. SAW/936/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:23 PM) Powered by TCPDF (www.tcpdf.org)