Rajasthan High Court - Jodhpur
Smt. Rajeshwari vs Smt. Kamla Motda And Anr on 7 September, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 6095/2018
Smt. Kamla Motda W/o Shri Soham Motda, By Caste Jat,
Resident Of Village Nandvan, Tehsil Luni, District Jodhpur.
----Petitioner
Versus
1. Smt. Rajeshwari W/o Deeparam, By Caste Patel, Resident
Of Village Nandvan, Tehsil Luni, District Jodhpur.
2. State Of Rajasthan Through District Election Officer
Panchayat, District Collector, Jodhpur.
----Respondents
Connected With
S.B. Civil Writ No. 3508/2018
Smt. Rajeshwari W/o Deeparam, By Caste Patel, Resident Of
Village Nandwan, Tehsil Luni, District Jodhpur.
----Petitioner
Versus
1. Smt. Kamla Motda W/o Sohan Motra, By Caste Jat,
Resident Of Village Nandwan, Tehsil Luni, District Jodhpur.
2. State Of Rajasthan Through Secretary, Panchayati Raj
Department, Secretarait, Govt. Of Rajasthan, Jaipur.
----Respondents
For Mrs. Kamla Motda : Mr. Manoj Bhandari
For Mrs. Rajeshwari : Mr. Ravi Bhansali, Senior Advocate,
assisted by Mr. Dhanesh Saraswat
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order REPORTABLE 07/09/2018 These two writ petitions involve common questions of facts and law and thus, are being decided together by this single judgment.
(2 of 14) [CW-6095/2018] Mrs. Rajeshwari, petitioner in S.B. Civil Writ Petition No.3508/2018, was elected on the post of Sarpanch, Gram Panchayat Nandvan, Tehsil Looni, District Jodhpur, whereas, Mrs. Kamla Motda, petitioner in S.B. Civil Writ Petition No.6095/2018, was the sole contesting candidate against Mrs. Rajeshwari and lost the election as she secured lesser number of votes.
Mrs. Kamla Motda challenged the election of Mrs. Rajeshwari by filing an election petition before the Election Tribunal, Jodhpur, which came to be registered as Election Petition No.27/2015. The principal ground of challenge laid by Mrs. Kamla Motda to the election of Mrs. Rajeshwari was that she gave birth to three children after the cut off date, i.e. 27.11.1995, and thus, she was disqualified from contesting the election in terms of Section 19 (iv) of the Panchayati Raj Act. It was further alleged that Mrs. Rajeshwari, while filing the nomination papers, did not disclose the fact that she was having 3 children after the cut off date stipulated in the Act.
In reply, Smt Rajeshwari claimed that the previous birth, which she had given to a daughter named Nirma, was conceived from loins of one Mr. Madan Lal and the other two children were conceived from the loins of Mr. Deeparam and as such, it could not be accepted that the family unit was having 3 children after the cut off date.
During pendency of the proceedings of the election petition, Mrs. Rajeshwari filed an application under Order 7 Rule 11 CPC on the precise ground that since the first child born to her was not from the wedlock with Mr. Deeparam, the total number of children could not be considered as 3, as her family unit with Mr. (3 of 14) [CW-6095/2018] Deeparam had only two children and thus, the election petition was not maintainable. The said application filed by Mrs. Rajeshwari was rejected by the Tribunal by order dated 09.08.2016. Mrs. Rajeshwari carried the matter to the High Court by filing S.B. Civil Writ Petition No.10391/2016, which came to be rejected by this court vide order dated 18.11.2016, whereby the findings recorded by the Tribunal to the effect that Mrs. Rajeshwari is the natural mother of 3 children while rejecting the application under Order 7 Rule 11 CPC were affirmed in the following terms :-
"The petitioner being the natural mother from whose womb, all three children were born, is definitely a person having more than two children after the cut-off date prescribed in Section 19(4) of the Act of 1994. As such, the argument advanced by Shri Soni that the said disqualification would not apply to the petitioner and she is safeguarded by the explanation is per-se untenable. In the application preferred on behalf of the petitioner under Order 7 Rule 11 read with Section 151 CPC before the Election Tribunal, the fact that the petitioner was having three children has not been denied in so many words. Thus, in the opinion of this the trial Court, was perfectly justified in rejecting the application preferred on behalf of the petitioner under Order 7 Rule 11 read with Section 151 CPC. The impugned order ex-facie does not suffer from any illegality, irregularity or perversity so as to require interference by this Court in exercise of its extraordinary writ jurisdiction.
As a consequence of the above discussion, the writ petition as well as stay application, being devoid of merit, are hereby rejected."
(4 of 14) [CW-6095/2018] The said order was not challenged any further and thus, attained finality. Manifestly, the issue regarding Mrs. Rajeshwari being disqualified from contesting the election was laid at rest on that very day.
Mr. Ravi Bhansali, learned Senior Advocate, representing the petitioner Mrs. Rajeshwari, has not seriously disputed the fact that his client was having 3 children; one from the marriage with Mr. Madan Lal and two from the marriage with Mr. Deepa Ram and that all the three children were born after the cut off date, i.e. 27.11.1995.
It is an admitted position that, while submitting the nomination form, Mrs. Rajeshwari concealed the material fact that she was having a daughter from her earlier marriage with Shri Madanlal. The Election Tribunal, while deciding the election petition, concluded that this fact was affirmatively corroborated by the judgment dated 02.07.2011 passed in the MACT Case No.419/2008 filed by Mrs. Rajeshwari and Kumari Nirma (daughter of Mrs. Rajeshwari and Mr. Madan Lal) claiming compensation in pursuance to the death of Mr. Madan Lal in a road accident. The election petitioner Mrs. Kamla Motda affirmatively mentioned at para No.10 of her evidence affidavit that Mrs. Rajeshwari gave birth to 3 daughters after 27.11.1995, but while filing the nomination form, she manipulated and concealed this fact and stated that she was having only 2 children and the fact of Kumari Nirma born to her from the loins of Madan Lal was concealed. In cross-examination, this aspect was reaffirmed.
Admittedly, Mrs. Rajeshwari did not appear in evidence to controvert this pertinent assertion made in the pleadings and (5 of 14) [CW-6095/2018] evidence of Mrs. Kamla Motda. The Tribunal, while deciding the election petition by judgment dated 23.02.2018 decided all the issues regarding disqualification of Mrs. Rajeshwari against her and set aside her election.
However, the relief sought by Mrs. Kamla Motda to be declared elected as Sarpanch of the Gram Panchayat, as being the only other contesting candidate, was turned down without assigning any reason whatsoever.
While Mrs. Rajeshwari has challenged the judgment-
cum-decree dated 23.02.2018 by filing Writ Petition No.3508/2018, whereas, Mrs. Kamla Motda has filed Writ Petition No.6095/2018 seeking a direction that pursuant to success of her election petition, she is entitled to be declared elected as Sarpanch of the Gram Panchayat.
Mr. Ravi Bhansali, learned Senior Advocate, representing Mrs. Rajeshwari, tried to vehemently and fervently seek reversal of the judgment rendered by the Election Tribunal to the extent election of Mrs. Rajeshwari was set aside. However, he was unable to dispute and rather, candidly conceded the fact that his client was having 3 children; one from her marriage with Mr. Madan Lal and 2 from the marriage with Mr. Deepa Ram and that all the three children being girls were born after the cut off date, i.e. 27.11.1995. Further, upon being confronted by the conclusions drawn in the order dated 18.11.2016 rejecting the Writ Petition No.10391/2016 filed by Mrs. Rajeshwari against the dismissal of her application under Order 7 Rule 11 CPC and the judgment of the Motor Accident Claims Tribunal referred to supra, Mr. Bhansali had no option, but to agree that the findings of this court in the (6 of 14) [CW-6095/2018] above order, which has attained finality, are sufficient to conclude that Mrs. Rajeshwari was disqualified from contesting the election.
Thus, there is no hesitation for this court to concur with the findings recorded by the Tribunal in the impugned judgment that Mrs. Rajeshwari was undoubtedly barred from contesting the election of Sarpanch because she was having 3 children after the cut off date, i.e. 27.11.1995, and that the disqualification prescribed by Section 19 (iv) of the Act clearly operated against her. By not disclosing this fact and rather stating in the nomination papers that she was having only 2 children after the cut off date, Mrs. Rajeshwari made a blatant mis-statement of fact and thus, should rather have been prosecuted. Thus, the finding recorded by the Tribunal on this issue is re-affirmed.
However, as noted above, the Tribunal while deciding the election petition refused to grant the prayer of the election petitioner Mrs. Kamla Motda to be declared elected as Sarpanch of the Gram Panchayat, despite the fact that she was the only other contesting candidate and secured the second highest number of votes after Mrs. Rajeshwari.
Mr. Manoj Bhandari, learned counsel representing the election petitioner Mrs. Kamla Motda, vehemently and fervently urged that the inevitable consequence of the election of Mrs. Rajeshwari on the post of Sarpanch being set aside, should have been to declare the petitioner as elected on the post of Sarpanch.
However, the Tribunal brushed aside this prayer of the election petitioner without assigning any reason whatsoever. He drew the court's attention to the Rule 87 (1) (c) of the Rajasthan Pachayat Raj (Election) Rules, 1994 and the Supreme Court decision in the (7 of 14) [CW-6095/2018] case of Rupadhar Pujari Vs. Gangadhar Bhatra reported in AIR 2004 SC 5007 and this court's judgment in the case of Shribai Vs. Smt. Rukmani Sharma & Ors. reported in 2017 (3) WLN 309 (Raj.) and urged that a direction deserves to be issued to the Election Officer to declare the petitioner elected on the post of Sarpanch.
Per contra, Mr. Ravi Bhansali, learned Senior Advocate, representing Mrs. Rajeshwari, vehemently and fervently opposed the submissions advanced by Mr. Bandari. He drew the court's attention to the fact that fresh elections have already been held for the post of Sarpanch. He further urged that the interim order dated 19.07.2018, whereunder this court directed the District Election Officer to declare the petitioner Mrs. Kamla Motda elected as Sarpanch has been stayed by Division Bench of this court vide order dated 24.07.2018 passed in D.B. Special Appeal (Writ) No.1181/2018 and thus, this court should refrain from granting same direction in favour of the petitioner.
I have carefully perused the Division Bench order dated 24.07.2018 passed in the aforesaid special appeal. The Division Bench was of the view that the interim order granted by the Single Bench of this court amounted to grant of final relief as prayed for in the writ petition and that such an order could only be issued at the final stage. Fact regarding the fresh election having been conducted was also considered and finally, safeguarding the rights of Mrs. Kamla Motda, the Division Bench stayed the order dated 19.07.2018 while directing that the result of the election shall be kept in sealed cover. Manifestly, thus, the Division Bench stayed the interim order dated 19.07.2018 passed by this court on the (8 of 14) [CW-6095/2018] sole premise that the same amounted to grant of mandatory and final relief at the interim stage. Now the court is called upon to decide the matter finally and thus, the Division Bench order does not create any hurdle in the way of the election petitioner to seek the consequential relief. Hon'ble the Supreme Court had occasion to consider an identical controversy in the case Rupadhar Pujari (supra) and held as below :-
"3. The respondent's election was put in issue by the appellant by filing an election petition under Sections 30/31 of the Act in the Court of Munsif having jurisdiction to try the petition. The relief clause in the petition is relevant as the controversy centers around it and hence is reproduced hereunder:-
"The Petitioner, therefore, prays the Hon'ble Court to be pleased to declare that the election of opposite party is invalid and declare the Petitioner as the only duly nominated candidate for the office of Sarpanch Pondosguda in 2002 Gram Panchayat Election, in alternate declare a casual vacancy to have been created in the office of Sarpanch Pondosguda GP and direct the Collector Koraput such concerned authority to take proceeding to fill up the vacancy, award, the cost of the case and give such further relief/relief which the court deem fit and proper under the law in the interest of justice."
(emphasis supplied)
4. The learned Munsif found that the respondent was disqualified from contesting the election as he had more than two children on the date of his nomination, a disqualification within the meaning of Clause (v) of Sub-section (1) of Section 25 of the Act. In view of that finding, the learned Munsif allowed the election (9 of 14) [CW-6095/2018] petition, set aside the respondent's election and further declared that "Rupadhar Pujari being the single candidate has been duly elected to the post of Sarpanch of Pondosguda Gram Panchayat".
5. The respondent preferred the writ petition in the High Court. The High Court has upheld the finding of the learned Munsif that the respondent was disqualified from being elected. However, the High Court has further held that in the relief clause of the election petition filed by the appellant he had not sought for any relief to declare him elected. Allowing the writ petition, the High Court, while upholding the setting aside of the election of the respondent, substituted the consequential direction in place of the one given by the learned Munsif and directed that it would be open to the authorities to proceed in accordance with law, i.e. by holding a re-election. Aggrieved by the judgment of the High Court, the appellant has filed this appeal by special leave.
6. Sections 34, 40 and Sub-sections (1) and (2) of Section 38 of the Act, which are relevant for our purpose, provide as under:-
"34. Relief that may be claimed by the petitioner -- A petitioner, may, in addition to claiming a declaration that the election of all or any of the returned candidates is void claim a further declaration that he himself or any other candidate has been duly elected.
40. Grounds for which a candidate other than the returned candidate may be declared to have been elected-- If any person who has lodged a petition, has in addition to calling In question the election of the returned candidate, claimed a declaration that he himself (10 of 14) [CW-6095/2018] or any other candidate has been duly elected and the Munsif is of opinion
(a) that in fact the petitioner or such other candidate received a majority of the valid votes;
or
(b) that but for the votes obtained by the returned candidate by a corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes;
38. Decision of Munsif-- (1) If the Munsif after making such enquiry, as he deems necessary, finds in respect of any person, whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and may award costs at his discretion.
(2) If the Munsif finds that the election of any person was Invalid, he shall either--
(a) declare a casual vacancy to have been created; or
(b) declare another candidate to have been duly elected;
whichever course appears, in the circumstances of the case to be more appropriate and in either case, may award costs at his discretion.
XXX XXX XXX XXX"
7. The scheme of the fore-quoted provisions reveals that in an election petition the petitioner obviously lays challenge to the election of the returned candidate or candidates and while doing so he can claim a further declaration, consequent upon the election of the returned candidate or candidates having been annulled and avoided, that he himself or any other candidate has been duly elected. Sub-section (2) of Section 38 (11 of 14) [CW-6095/2018] confers jurisdiction on the Munsif to declare a casual vacancy to have been created in view of the election of any returned candidate having been invalidated. Equally, the Munsif has jurisdiction to declare any other candidate to have been duly elected. Which of the two alternate powers vesting In the Munsif shall be exercised depends on his forming an opinion as to which of the two reliefs would be more appropriate in the circumstances of the case. Applicability of Section 40 of the Act is attracted when looking to the nature of the case an enquiry is called for into the validity of votes so as to find out whether the petitioner or some other candidate would have received the majority of the valid votes. Depending on such finding such other candidate may be declared to have been duly elected over and above the declaration that the election of the returned candidate was void.
8. True it is that the relief clause in the election petition in the present case is not very happily worded. The election petitioner would have been better advised to specifically seek a declaration to the effect that he was elected. However, we cannot be oblivious of the fact that Panchayat elections are part of Gram Swaraj system. Most of the provisions relating to election and election petitions in the laws governing Panchayats are pari materia with the provisions contained in the Representation of the People Act 1951. Yet the procedural laws relating to Panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair- splitting. A recent decision by a Constitution Bench in Sardar Amarjit Singh Kalra (Dead) by Lrs. and Ors. v. Pramod Gupta (Smt) (Dead) by Lrs. and Ors., MANU/SC/1214/2002 : [2002]SUPP5SCR350, once again reminds us to remember that laws of procedure are meant to regulate effectively, assist and (12 of 14) [CW-6095/2018] aid the object of doing substantive and real Justice. Procedural laws must be liberally construed to really serve as handmaid of justice, make them workable and advance the ends of justice. Technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it.
9. In the case at hand, there were only two candidates in the election fray. The respondent, though declared elected, was found by the learned Munsif to have been disqualified from contesting the election. He was, therefore, excluded from the contest. Deemingly there was only one candidate left, i.e. the appellant, and he was the only duly nominated candidate. There was no need to go for polling. Once he was found to be the only duly nominated candidate then he alone was to be declared elected. The constituency was not required to go to polls at all. The declaration of the appellant as duly elected candidate is the natural, obvious and inevitable consequence of his being the only duly nominated candidate. Ordinary, a plaintiff or petitioner should not be denied such relief to which he is found entitled on the facts established, simply because the relief clause is not very happily worded. The learned Munsif was, therefore, right in declaring the appellant as the one duly elected in exercise of the powers conferred by Sub-section (2) of Section 38 of the Act consequent upon the election of the respondent, i.e. the only other candidate having been invalidated. In substance that was the relief which the election petitioner had sought for. The High Court has erred in interfering with and setting aside the well merited relief granted by the learned Munsif to the appellant herein.
(13 of 14) [CW-6095/2018]
10. For the foregoing reasons, the appeal is allowed. The judgment of the High Court is set aside and that of the learned Munsif is restored with costs throughout."
The provision of law involved in the said case was Section 38 of the Orissa Gram Panchayats Act, 1964, which is virtually analogous to the language of Rule 87 of the Rajasthan Panchayati Raj (Election) Rules, 1996. After elaborating upon the entire controversy, the Hon'ble Supreme Court categorically laid down that as the returning candidate was disqualified from contesting the election and thus, he was excluded from the contest, it would deemingly mean that only one candidate, i.e. the election petitioner, was left in the fray. Once he was found to be duly nominated candidate, then he alone was eligible to be declared elected and the constituency was not required to go for polls at all. It was emphatically expounded that the declaration of the election petitioner as the duly elected candidate is the natural, obvious and inevitable consequence of his being the only duly nominated candidate.
While deciding this issue against Mrs. Kamla vide the judgment dated 23.02.2018, the Tribunal assigned no reason whatsoever as to why the election petitioner being the only duly nominated candidate, should not be declared elected as the Sarpanch. Acceptance of the election petition and disqualification of the returned candidate in an election contested by two candidates should undoubtedly lead to a natural and inevitable consequence that the election petitioner (being the sole contesting candidate) has right to be declared elected on the post. If such (14 of 14) [CW-6095/2018] direction is not issued, it would lead to a gross injustice to the election petitioner and virtually his/her entire endeavour in challenging the election of the disqualified candidate would go down the drain as a sheer exercise in futility. The Hon'ble Apex Court has clearly observed in the above judgment that in such situation, a constituency need not go to polls at all.
In this background, it is a fit case, wherein while exercising extraordinary/supervisory jurisdiction conferred upon this court by Article 226/227 of the Constitution of India, a mandate is required to be issued to the Election Officer to declare the petitioner Mrs. Kamla Motda elected on the post of Sarpanch, Gram Panchayat Nandvan.
As a consequence of the above discussion, the Writ Petition No.3508/2018 preferred on behalf of Mrs. Rajeshwari is dismissed. The Writ Petition No.6095/2018 preferred on behalf of Mrs. Kamla Motda succeeds and is hereby allowed. The Election Officer - cum - District Collector, Jodhpur is directed to forthwith declare Mrs. Kamla Motda elected on the post of Sarpanch Gram Panchayat Nandvan, Panchayat Samiti Looni, District Jodhpur. No order as to costs.
(SANDEEP MEHTA),J Pramod Powered by TCPDF (www.tcpdf.org)