Rajasthan High Court - Jodhpur

Mahesh Dewasi vs Karan Singh on 26 October, 2021

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14417/2021

Mahesh Dewasi S/o Shri Surta Ram, Aged About 23 Years, R/o Village Chatwada, Gram Panchayat Chatwada, Tehsil Raniwada, District Jalore, Rajasthan.

----Petitioner Versus

1. Karan Singh S/o Shri Narayan Singh, Aged About 36 Years, R/o Village Chatwada, Gram Panchayat Chatwada, Tehsil Raniwada, District Jalore, Rajasthan.

2. District Election Officer (Panchayat Election), District Collector, Jalore, Rajasthan.

                                                                    ----Respondents


For Petitioner(s)           :     Mr. Naman Mohnot
For Respondent(s)           :     Mr. Sandeep Vishnoi for Mr. Trilok
                                  Joshi



                       JUSTICE DINESH MEHTA

                                       Order

26/10/2021

1. The petitioner has challenged the order dated 29.09.2021,

passed by the Election Tribunal, Bhinmal, Jalore (hereinafter

referred to as "the Tribunal") in Civil Misc. (Election Petition) Case

No.01/2020(05/2020) (CIS No.01/2020), filed by the respondent

No.1, Karan Singh, questioning the acceptance of petitioner's

nomination and consequential election on the post of Sarpanch,

Gram Panchayat Chatwada, Tehsil Raniwada, District Jalore.

2. The facts of the case in hands lie in a narrow compass. The

petitioner; respondent No.1 and one Jutharam Kalvi contested the

election of Sarpanch, Gram Panchayat Chatwada, Tehsil

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Raniwada, District Jalore, obviously after their nominations were

accepted by the Election Officer.

3. The petitioner secured highest votes and was thus declared

successful/returned candidate.

4. The respondent (Election petitioner) Karan Singh filed

election petition under Section 43 of the Rajasthan Panchayati Raj,

Act, 1994 read with Rules 80, 81, 82 and 83 of the Rajasthan

Panchayati Raj (Election) Rules 1994, essentially on the ground

that the returned candidate (present petitioner) had wrongly

claimed himself to be 23 years of age, though his age was only 19

years.

5. In support of the election petition, the respondent has filed

scholar register of the defendant (present petitioner), mark-sheet

of 10th class and the Aadhaar Card, in which his date of birth was

shown as 01.06.2001.

6. In the election petition, the defendant-returned candidate

(present petitioner) relied upon a birth certificate, in which

petitioner's date of birth was shown to be 01.06.1997.

7. The learned Tribunal, after framing the issues and leading of

evidence, allowed the election petition filed by the respondent and

held that the date of birth of the returned candidate (petitioner

herein) is 01.06.2001, as is depicted in the documents filed by the

election petitioner, while discarding the date of birth certificate, in

which petitioner's date of birth has been shown as 01.06.1997.

8. Having recorded the above finding, the learned Tribunal not

only set aside the petitioner's election on the post of Sarpanch,

but has also declared election petitioner - Karan Singh

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(respondent No.1 herein) to be the Sarpanch of the Gram

Panchayat Chatwada.

9. Oppugning the order dated 29.09.2021, Mr. Naman Mohnot,

learned counsel for the petitioner, submitted that the learned

Tribunal has committed serious error of law and in relying upon

the mark-sheet of class - 10 th, scholar register and the Aadhaar

Card, while not giving any credence to the date of birth certificate

issued by the competent authority under the provisions of

Registration of Births and Deaths Act, 1969 (hereinafter referred

to as the "Act of 1969").

10. It was argued by learned counsel for the petitioner that the

certificate issued by the competent authority under the provisions

of the Act of 1969 and the rules framed thereunder is conclusive

and the same should be given preference over all other the

evidence.

11. It is argued that the petitioner's correct date of birth is

01.06.1997 and on the date of filing nomination form, his age was

23 years.

12. Without prejudice to the above stand, learned counsel for

the petitioner argued that in any case, the learned Tribunal could

not have declared the respondent to be Sarpanch of Gram

Panchayat Chatwada, particularly when there were more than two

candidates.

13. Mr. Sandeep Vishnoi, learned counsel appearing for the

respondent, on the other hand, argued that the order passed by

the learned Tribunal is perfectly just and valid.

14. He argued that true it is, that the petitioner had produced

birth certificate evincing his date of birth as 01.06.1997, but the

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said certificate was issued to the petitioner on 29.11.2019, just a

few days before submitting of nomination papers.

15. He added that the birth certificate in question has been got

issued with connivance and that the petitioner (returned

candidate) cannot disown the scholar register, his mark-sheet of

class 10th and the Aadhaar card, which were got prepared at the

instance of petitioner/petitioner's father.

16. Learned counsel for the respondent, however, could not

defend the part of the order under challenge, vide which the

respondent has been declared Sarpanch of the Gram Panchayat.

17. Having heard learned counsel for the parties and upon

perusal of the material available on record, this Court is of the

firm view that there is no error in the order, passed by the learned

Tribunal, so far as allowing the election petition is concerned.

18. True it is that the petitioner had produced a birth certificate

evincing his date of birth as 01.06.1997, but it is to be noted that

the birth certificate was got issued on 29.11.2019, just before

furnishing nomination form on 08.01.2020. That apart, the entry

made at S.No.189 on the basis of which the certificate is said to

have been made shows that it contains name of 'Masaru' the

words "mQZ egs"k nsoklh" seems to have been inserted by a different

hand.

19. Be that as it may, petitioner's other documents such as

scholar register, mark-sheet of class 10th and Aadhaar card shows

petitioner's consistent stand that his date of birth is 01.06.2001.

The Tribunal has considered all evidence in detail and has

recorded an infallible finding in para No.10 of its judgment.

(5 of 8) [CW-14417/2021]

According to this Court the learned Tribunal has committed no

error in discarding the birth certification dated 29.11.2019.

20. As per discussion foregoing, this Court affirms the finding

recorded by learned Tribunal qua issue No.1 framed in relation to

age of the returned candidate (present petitioner).

21. Since, finding in relation to date of birth has been affirmed,

this Court has no hesitation in holding that at the time of

submitting nomination from, petitioner was below 21 years of age

and thus, ineligible to contest election.

22. However, this Court is unable to confirm direction No.2 given

by the learned Tribunal, vide which the respondent No.1 (election

petitioner) has been declared as Sarpanch of Gram Panchayat

Chatwada.

23. It is settled proposition of law of law that if there are more

than two candidates and nomination form of one of the candidate

is held invalid, a declaration cannot be granted in the favour of the

election petitioner or the candidate who stood second in the

election. The reason is, that it is impossible to arrive at a definite

finding that on the exclusion of returned candidate, majority of

votes would have gone to election petitioner or the candidate who

stood second in the election.

24. My aforesaid view is fortified by the judgment of Hon'ble the

Supreme Court delivered in Prakash Khandre Vs. Dr. Vijaya Kumar

Khandre & Ors. : (2002) 5 SCC 568. The relevant paras being

reproduced hereunder:

"11. However, the question which requires

consideration is- if there are more than two candidates for one seat and the elected candidate is

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subsequently found to be disqualified, whether the candidate who has secured more votes than remaining candidates should be declared as elected or not? For this, we would consider the ingredients of Section 101 which inter alia provide that after declaring election of returned candidate to be void, the High Court may declare the petitioner or such other candidate to have been duly elected if -

(a) in fact the petitioner or such other candidate received a majority of valid votes; or

(b) but for the votes obtained by the returned candidate by the corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes.

12. Therefore, the first ingredient for declaring the election petitioner or other candidate to have been duly elected depends upon error for various reasons in counting of valid votes and if it is found that in fact the petitioner or such other candidate received a majority of valid votes, he is to be declared elected.

13. The second ingredient provides for establishing that the votes obtained by the returned candidate were obtained by corrupt practices and but for such votes the petitioner or such other candidate would have obtained a majority of valid votes. Say as in the present case, the difference between the elected candidate and the election petitioner is of 10,327 votes and if it is established that elected candidate obtained more than 10,327 votes by corrupt practices then petitioner or such other candidate who has obtained majority of valid votes could be declared as elected.

14. However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting

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election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected."

25. The writ petition is therefore partly allowed.

26. The respondent No.2 is hereby directed to recommend fresh

election of Sarpanch of the Gram Panchayat Chatwada, Tehsil

Raniwada, District Jalore, in accordance with law.

27. Till the fresh election takes place, the respondent No.2 shall

ensure handing over charge to the competent person, in

accordance with law.

28. The finding recorded by the learned Tribunal so also the

order instant affirming the said finding shall not be binding upon

the criminal Court in relation to FIR No.0021/2020 lodged in Police

Station Karda, District Jalore against the petitioner in relation to

submitting forged birth certificate. The Court concerned shall take