Smt. Lalita vs State Of Rajasthan
2022 Latest Caselaw 13089 Raj

(1 of 6) [CW-13000/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13000/2022

Smt. Lalita W/o Shri Parsing, Aged About 52 Years, Resident of Village Dunglapani, Gram Panchayat Lohariya Bada, Panchayat Samiti Kushalgarh, District Banswara.

----Petitioner Versus

1. State of Rajasthan, through the Director & Special Secretary, Gramin Vikas & Panchayati Raj Department, Jaipur.

2. Smt. Lalita W/o Shri Dinesh, resident of Village Khadiyasath, Gram Panchayat Lohariya Bada, Panchayat Samiti Kushalgarh, District Banswara.

3. District Election Officer (Panchayat) cum District Collector, Banswara.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. C. S. Kotwani
For Respondent(s)         :     Mr. Arjun Singh Rathore
                                Mr. Kamlesh Rawal



         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                     Order

07/11/2022

The present writ petition has been filed against the order

dated 22.08.2022, whereby the election petition preferred by the

respondent No.2 Smt. Lalita W/o Shri Dinesh has been allowed

and consequently, the election of the petitioner Smt. Lalita W/o

Shri Parsing on the post of Sarpanch has been quashed and set

aside.

Brief facts giving rise to the writ petition are that the

petitioner had contested the election for Sarpanch and Ward Panch

of Gram Panchayat Lohariya Bada, Panchayat Samiti Kushalgarh in

the year 2020. After the election, the petitioner was declared

elected as a Sarpanch of the Gram Panchayat.

(2 of 6) [CW-13000/2022]

The respondent No.2 Smt. Lalita W/o Shri Dinesh preferred

an election petition before the District Judge, Banswara. The same

was transferred to the Senior Civil Judge, Banswara for

adjudication. The main contention of the respondent No.2 was

that the petitioner had given birth to the first child in the year

1989, the second child on 01.06.1994 and the third child on

01.07.1998, thereafter, the petitioner had given birth to the twins

on 03.02.2001. The contention raised was that since the petitioner

has given birth to the third, fourth and fifth child after the cut off

date i.e. 23.04.1994 to 27.11.1995, she is disqualified for the post

of Sarpanch. The Election Tribunal after framing of the issues and

adjudicating the same, has allowed the election petition. The

election of the petitioner has been quashed on the post of

Sarpanch. Aggrieved of the order dated 22.08.2022, the petitioner

has assailed the validity of this order before this Court by way of

filing the present writ petition.

Learned counsel for the petitioner vehemently submits

before this Court that the petitioner had given birth to the children

on two occasions after the cut off date of 27.11.1995 as the twins

born on 03.02.2001 will be construed as one unit and the delivery

which took place on 01.07.1998 will be considered as the second

delivery only. Learned counsel submits that since the petitioner

had given birth to two children, one on 01.07.1998 and twins on

03.02.2001 and therefore, the earlier child born on 01.06.1994

should be considered as an additional child and the petitioner may

be held eligible as children born on 01.07.1998 and 03.02.2001

can be considered two children only and therefore, the petitioner

cannot be disqualified on the ground of having more than two

children.

                                        (3 of 6)                   [CW-13000/2022]



     Learned   counsel     for    the     petitioner       in   support   of   his

contention has relied upon a judgment of this Court passed in S.

B. Civil Writ Petition No.7835/2006 Ratiram Vs. Devi

Charan & Anr. decided on 18.01.2010. He, therefore, prays that

the writ petition may kindly be allowed and the order dated

22.08.2022 passed by the Election Tribunal, Banswara may kindly

be quashed and set aside.

Per contra, learned counsel for the respondents vehemently

submits that the calculation with respect to the deliveries of the

petitioner submitted before this Court is contrary to Section 19 of

the Rajasthan Panchayati Raj Act, 1994. Learned counsel further

submits that the learned Trial Court has correctly taken into

consideration the number of children born after the cut off date

and in consonance with Section 19 of the Act of 1994, the

petitioner cannot be said to have only two children, even if it is

construed that the twins born on 03.02.2001 is a single unit. He

further submits that a bare perusal of Section 19 goes to show

that if an additional child is born between the period from

23.04.1994 to 27.11.1995, the same will not be considered to be

a disqualification for the purpose of this Act. However, in the

present case, he submits that the petitioner already had a child

prior to the two deliveries, wherein she had given birth to three

children i.e. on 01.07.1998 and twins on 03.02.2001. He,

therefore, submits that the learned Election Tribunal has correctly

adjudicated the issue in question and has allowed the election

petition and no interference is warranted by this Court.

I have considered the submissions made at the Bar and have

gone through the pleadings before me.

(4 of 6) [CW-13000/2022]

The undisputed factual details in the present case reveals

that the petitioner had given birth to a child on 01.06.1994, then

thereafter, another child was born to the petitioner on 01.07.1998

and thereafter, the petitioner was blessed with a twins on

03.02.2001. After the birth of a child on 01.06.1994, three

children were born to the petitioner. In the present case, the

additional child born to the petitioner will be considered the

children born after 01.06.1994, therefore, the child born to the

petitioner on 01.06.1994 cannot be termed to be an additional

child. If the intention of the legislature was only a child born

between 23.04.1994 to 27.11.1995, then the contention of the

learned counsel for the petitioner would have merit acceptance,

but the provision very clearly speaks about "the additional

child" which signifies the fact that a person already having a child

and in addition to that if a child is born between 23.04.1994 to

27.11.1995, then for that additional child, she will not be incurred

a disqualification. For better understanding Section 19 of the Act

of 1994 is reproduced here under:-

"Sec.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-

(a)xxxxxxx

(b)xxxxxxx

(c)xxxxxxx

(d)xxxxxxx

(e)xxxxxxx

(f)xxxxxxx

(g)xxxxxxx

(h)xxxxxxx

(i)xxxxxxx

(j)xxxxxxx

(k)xxxxxxx

(5 of 6) [CW-13000/2022]

(l) has more than two children; Provided that-

(i)xxxxxxxx

(ii)xxxxxxx

(iii)xxxxxx

(iv) the birth during the period from the date of commencement of the Act, hereinafter in this proviso referred to as the date of such commencement, to 27th November, 1995, of an additional child shall not be taken into consideration for the purpose of this disqualification mentioned in clause (1) and a person having more than two children (excluding the child, if any, born during the period from the date of such commencement to 27th November, 1995) shall not be disqualified under that clause for so long as the number of children he had on the date of commencement of this Act does not increase." (underlining mine) "Section 14-Gender and number:-In all Rajasthan laws, unless a different intention appears- (1)xxxxxxxxxxx (2) words in the singular shall include the plural and vice versa."

A close reading of Sub Clause (iv) clearly shows that the

legislature was of the intention that prior to 1994, since there was

no such provision to declare a person disqualified if he or she is

having more than two children, therefore, in order to give benefit

of a particular provision in the intervening period, it was provided

that between 23.04.1994 to 27.11.1995, if an "additional child"

is born to a person, the same shall not be taken into consideration

for the purpose of disqualification mentioned in Clause 1 (l) and a

person having more than two children excluding the child, if any,

born 23.04.1994 to 27.11.1995, shall not be a disqualification

under the Clause for so long as the number of children she had on

the date of commencement of this Act does not increase. The

intention is well founded and sounds logical also.

(6 of 6) [CW-13000/2022]

The intention of the legislature is very clear, which was

intended to give the benefit to those persons who already had two

children, but has given birth to a child/ twins between the period

from 23.04.1994 to 27.11.1995. It has a logic behind it that since

the law was framed for the first time, the candidates who were on

the family way to a third child were given the benefit of the law

which has come into vogue for the first time.

Since in the present case, the petitioner had given birth to

the first child in the year 1994, therefore, the same cannot be

construed as additional child as per Section 19 of the Act of 1994,

and therefore, the petitioner is disqualified to hold the post of

Sarpanch as the petitioner has given birth to three children in

addition to the first child which was born on 01.06.1994.

The judgment relied upon by the learned counsel for the

petitioner is not applicable and does not help the case of the

petitioner in the facts and circumstances of the present case.

In view of the discussion made above, the judgment of the

Election Tribunal dated 22.08.2022 does not warrant any

interference. The writ petition is bereft of merit and the same is

dismissed.

(VINIT KUMAR MATHUR),J 100-Shahenshah/-

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