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Bharatraj alias Bharatram v/s Additional Civil Judge (S.D.), Baran, District Baran & Others

    Special Appeal (Writ) No. 345 of 2012

    Decided On, 13 August 2012

    At, High Court of Rajasthan

    By, THE HONOURABLE CHIEF JUSTICE MR. ARUN MISHRA & THE HONOURABLE MR. JUSTICE NARENDRA KUMAR JAIN-I

    For the Appellant: Manoj Choudhary, Advocate. For the Respondents: Dr. Mahesh Sharma, Advocate.



Judgment Text

Narendra Kumar Jain-I, J.

1. At the request of parties, arguments were heard and appeal is being disposed of finally.

2. This intra Court appeal is directed against impugned order dated 7th February, 2012, passed by single Bench, whereby writ petition, filed by the petitioner/appellant. Against judgment/order dated 20th December, 2011, passed by Additional Civil Judge (Senior Division), Baran, declaring his election on the post of Sarpanch as illegal and void, has been dismissed.

3. Briefly stated, the facts of the case are that election for the post of Sarpanch of Gram Panchayat Manpura, Panchayat Samiti Chippabarod. District Baran, took place on 31st January, 2010. The petitioner/appellant was declared as elected Sarpanch. Respondent No. 2, Kajod filed election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for short ‘the Act of 1994’) read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 in the Court of District Judge, Baran, which was transferred to the Court of Civil Judge (S.D.) and Additional Chief Judicial Magistrate, Chhabra. Again election petition was transferred to the Court of Additional Civil Judge (Senior Division), Baran (for short ‘the Election Tribunal’). Respondent No. 2, Kajod (Election Petitioner) in his election petition averred that appellant Bharatraj alias Bharatram (Non-Petitioner No. 1) filed his nomination form on 30th January, 2010 fo

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r the post of Sarpanch, but on the date of nomination, he was disqualified under Section 19(1) of the Act of 1994, as he was having three children and all three children were born after 27-11-1995. The said fact was concealed by Non-Petitioner No. 1, when the nomination was filed. Although, objection petition was filed, but the same was rejected by the Election Officer. Since, there was more than two children of Non-Petitioner No. 1, therefore, he was not qualified to contest election and as such, the entire election process and its declaration of result, are illegal and bad in law. He, therefore, prayed that result of election of Sarpanch of Gram Panchayat Manpura dated 31-01-2010 be declared as null and void.

4. Non-Petitioner No. 1 filed his reply to election petition, wherein he submitted that the election petitioner has not disclosed the names of children to Non-Petitioner No. 1. No objection was raised about it before Returning Officer at the time of nomination. Non-Petitioner No. 1 has been declared validly elected Saranch by Non-Petitioner No. 2, Returning Officer. It was further submitted that Non-Petitioner No. 1 is having two sons namely Kuldeep and Kalpesh. One girl was born, which was given in adoption soon after her birth to one Harish alias Bunty and his wife Vasundhara through registered adoption deed and since then, she is living with her adoptee parents and she has no connection with Non-Petitioner No. 1 Her all rights have been curtailed in the share/family of Non-petitioner No. 1.

5. Non-Petitioner No. 2, Election Officer filed a separate reply to election petition, wherein it was submitted that election was got conducted in accordance with the rules and there was no illegality or irregularity in it. At the time of election, no authenticated documents were produced in support of objection.

6. Learned Election Tribunal, on the basis of pleadings of parties, framed four issues. Both the parties led their oral and documentary evidence. Learned Election Tribunal, after considering submissions of parties and appreciating evidence on record, decided Issue No. 1 in favour of election petitioner and held that Non-Petitioner No. 1 was disqualified to contest the election in view of Section 19(1) of the Act of 1994. So far as Issue No. 2 is concerned, the same was decided in the manner that Non-Petitioner No. 1 has proved this issue to the extent that he had given his daughter in adoption, but what is the effect of it, could not be proved and as such, it was decided that Non-Petitioner No. 1 was not qualified to contest the election. Issue No. 3 was decided against Non-Petitioner No. 1. Issue No. 4 was decided in favour of election petitioner and consequently, learned Election Tribunal vide its judgment/order dated 20th December, 2011 allowed the election petition and declared the election of Non-Petitioner No. 1, Bharatraj alias Bharatram dated 31-01-2010 on the post of Sarpanch, Gram Panchayat Manpura as, illegal and void and cancelled the same.

7. Being aggrieved with the aforesaid order/judgment of the Election Tribunal, Non-Petitioner No.1 filed writ petition before the single Bench, which was dismissed vide order dated 7th February, 2012. Hence, Non-Petitioner No. 1/elected Sarpanch has preferred this intra Court appeal.

8. Submission of learned counsel for the appellant is that the appellant was declared elected Sarpanch is accordance with law. He had only two sons on the date of nomination, as his third girl child was given in adoption through registered adoption deed to adoptee father and mother, namely Harish alias Bunty and Vasundhara and since then, she is living with them. Since she was given in adoption, therefore, she had no right whatsoever in the family of the appellant. Her rights were cut in the family of the appellant, and in law, she was daughter, may be adopted, of adoptee father and mother Harish alias Bunty and Vasundhara. He further submitted that this was a crucial point, which was not decided by the Election Tribunal, while deciding Issue No. 2 against the appellant, but learned single Judge failed to consider said aspect of the matter. Learned single Judge, only on the basis of finding on Issue No. 1, dismissed the writ petition of the appellant, which was not proper. He submitted the Issue Nos. 1 and 2 both were intermingled, as to whether a girl child, who was given in adoption through registered adoption deed before the date of nomination, could be treated as third child of Non-Petitioner No. 1, within the meaning of Section 19(1) of the Act of 1994. He submitted that from the language of Section 19(1), it is clear that a person is not qualified to contest the election, if he is having more than two children. Since in the eye of law, the appellant was having only two children on the date of nomination, therefore, the finding of learned Election Tribunal in respect of Issue Nos. 1 and 2 was illegal and the same is liable to be set aside by this Court.

9. Learned counsel for the respondents supported the impugned order passed by the Election Tribunal as well as single Bench and submitted that there is no dispute that three children were born to the appellant and all are alive. Mere by giving one girl child in adoption to one Harish alias Bunty and Vasundhara does not make the appellant qualified or eligible to contest the election. He has further submitted that the object of the provision, relating to disqualification for the purpose of contesting the election of Sarpanch, as enumerated in Section 19(1) of the Act of 1994, is to make the programme of family planning popular. He also submitted that there is pari materia provision in the Haryana Panchayati Raj Act, 1994, which was considered by the Hon’ble Apex Court in Javed and other v. State of Haryana and other, AIR 2003 Supreme Court 3057, and it was held that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. He, therefore, submitted that there is no merit in this intra Court appeal and the same may be dismissed.

10. We have considered the submissions of learned counsel for the parties and examined the impugned order passed by the single Judge as well as judgment passed by the Election Tribunal.

11. It appears from the order passed by the single Bench that submission with regard to giving of third child in adoption by appellant was not raised before the single Bench, as neither any submission in this regard has been referred, nor, the same has been considered and decided. Learned single Judge has dismissed the writ petition on the basis of finding of fact recorded by the Election Tribunal in respect of Issue No.1 had three children on the date of nomination and it be a finding of fact, recorded by the Election Tribunal, the same cannot be interfered with by the High Court, while exercising its powers under Article 226 or 227 of the Constitution of India. Since Issue No. 2 relating to adoption of one child, in the facts and circumstances of the present case, is material, relevant and a pure legal question and it may affect the order of Election Tribunal as well as Single Bench, therefore, it is necessary to decide the same.

12. The core question for decision in this intra Court appeal is, ‘whether after giving one child in adoption by the appellant, Bharatraj alias Bharatram to one Harish alias Bunty and Vasundhara through registered adoption deed before the date of nomination, can the adopted child be counted as a child of Non-Petitioner No.1/appellant in the context of provisions of Section 19(1) of the Act of 1994?

13. So far as facts in this regard are concerned, there is no dispute that Non-Petitioner No. 1/appeallant had two sons namely Kuldeep and Kalpesh and one girl child was born and is alive, but she was given in adoption by the appellant to Harish alias Bunty and Vasundhara through registered adoption deed. Finding of the Election Tribunal is that she was given in adoption by the appellant to Harish alias Bunty and Vasundhara. Now, the question for consideration is that, whether that adopted child has to be counted for the purpose of disqualification as enumerated in Section 19(1) of the Act of 1994. For ready reference, Section 19(1) of the Rajasthan Act of 1994 is reproduced as under:

“19. Qualifications for election as a Panch or a member: Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person-

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(1) Has more than two children:”

14. Similar provision is there in Haryana Panchayati Raj Act, 1994. Section 175 (1)(q) of Haryana Panchayati Raj Act, 1994 is reproduced as under:

“175.(1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-

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(q) has more than two living children:

Provided that a person having more than two children on or up to the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified;”

15. The Hon’ble Apex Court in Javed and others v. State of Haryana and others, AIR 2003 SC 3057 (supra), examined constitutional validity of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 and held that the right to contest election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. If anyone chooses to have more living children than two, he is free to do so under the law, as it stands now, but then he should pay a little price and that is of depriving himself from holding an office in panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.

16. Hon’ble Apex Court also considered the effect of giving a child in adoption and held that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification, we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If a person sought to be disqualified is responsible for or has given birth to children more than two, who are living, then merely because one or more of them are given in adoption, the disqualification is not wiped out. Para No. 62 of the judgment is reproduced as under:

“In was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.”

(Emphasis supplied)

17. The facts, as narrated above, make it clear that provision of Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 and Section 175 (1)(q) of the Haryana Panchayati Raj Act, 1994 are pari materia. Hon’ble Apex Court has examined the provisions of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994. Hon’ble Apex Court has also examined the effect of giving one child away in adoption and held that merely because one or more of them are given in adoption, the disqualification is not wiped out, therefore, the issue involved in the present case is fully covered by the decision rendered by the Hon’ble Apex Court in Javed and others v. State of Haryana and others, AIR 2003 SC 3057 (supra). Therefore, it is held that merely because one child is given in adoption, the disqualification of appellant enumerated in Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 is not wiped out. The Election Tribunal was right in declaring he election of appellant as null and void in view of its finding on Issue No. 2.

18. In view of above discussion, we do not find any force in the submissions of learned counsel for the appellant. The appeal is devoid of any merit and the same is, accordingly, dismissed with no order as to costs. Stay Application No.3006/2012 also stands dismissed
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