Kanhaiya Lal vs The Returning Officer, Panchayat Election, 2010 and Others

Sangeet Lodha, J.

By way of this writ petition, the petitioner has questioned legality of order dated 18.11.10 passed by the Civil Judge (S.D.), Bali, in Civil Misc. Case No. 2/10, whereby the election petition preferred by the petitioner questioning the election of the returned candidate, the fifth respondent herein, as Panch from Ward No. 4 of Gram Panchayat, Bhander, stands dismissed.

The relevant facts are that the nomination form filed by the petitioner for contesting elections as a Panch from Ward No. 4 of Gram Panchayat, Bhander, was rejected by the Returning Officer on the ground of petitioner having more than two children. The result of election was declared wherein the fifth respondent-Prakash Raj was declared elected. The petitioner filed the election petition questioning the election of the returned candidate on the ground of illegal rejection of his nomination form by the Returning Officer.

The election petition was contested by the fifth respondent by filing a reply thereto. No reply was filed on behalf of the Returning Officer and other co-respondents.

On the basis of the pleadings of the parties, the Election Tribunal framed the issues. Since there was no factual dispute, the parties did not lead any evidence.

After hearing the parties, the Election Tribunal arrived at the finding that the petitioner was having three children, one born after the cut off date i.e. 27.11.95 and therefore, in terms of Section 19(1) of Rajasthan Panchayati Raj Act, 1994 (for short "the Act"), he was disqualified to contest the election and the Returning Officer has committed no error in rejecting his nomination form. Accordingly, the election petition has been dismissed. Hence, this petition.

Indisputably, the petitioner''s three children namely, Hitesh Kumar, Neetu Kumar and Naresh Kumar were born on 15.7.92, 16.8.95 and 30.7.01 respectively.

Learned counsel for the petitioner contended that by virtue of proviso (iv) to Section 19 of the Act, the second child of petitioner born on 16.8.95 i.e. during the period from the date of commencement of the Act to 27.11.95 cannot be taken into consideration for the purpose of determining the number of children as on the cut off date in terms of provisions of Section 19(1) of the Act and therefore, the petitioner could not have been declared disqualified to contest the election as Panch under the provisions of the Act. In support of the contention, learned counsel has relied upon a decision of this court in the matter of "Rati Ram v. Devi Charan and Anr." (2010) Raj CANDID 802.

I have considered the submissions of the learned counsel and perused the relevant provisions of the Act.

As per the provisions of Clause (1) of Section 19 of the Act, every person registered as voter in the list of voters of Panchayati Raj Institution shall be qualified for election as Panch or as the case may be, a member of such Panchayati Raj Institution unless such person has more than two children. As per proviso (iv) to Section 19 of the Act, the birth during the period from the date of commencement of the Act to 27.11.95 of an additional child shall not be taken into consideration for the purpose of disqualification in Clause (1) of Section 19 and a person having more than two children excluding the child, if any, born during the period from the date of such commencement to 27.11.95 shall not be disqualified under that Clause so long as the number of children he had on the date of commencement of the Act, does not increase.

A bare perusal of proviso (iv) makes it abundantly clear that additional child born during the period from the date of commencement of the Act i.e. 23.4.94 to 27.11.95 shall not be taken into consideration for the purpose of disqualification mentioned in Clause (1) and a person having more than two children shall not be disqualified under that Clause so long as the number of children he had on the date of commencement of the Act does not increase. Obviously, if the number of children increases on account of birth of the additional child after commencement of the Act, excluding the child born during the period from 23.4.94 to 27.11.95, the proviso (iv) shall not operate. Admittedly, the third child of the petitioner was born on 30.7.01 after the cut off date 27.11.95 and the number of children have thus increased after the commencement of the Act and therefore, the proviso (iv) providing for the exclusion of the child if any, born during the period 23.4.94 to 27.11.95, cannot be invoked in the instant case.

In this view of the matter, in the considered opinion of this court, on account of the birth of the additional child after the cut off date, on 30.7.01, the petitioner has incurred the disqualification in terms of Section 19(1) of the Act and therefore, the rejection of his nomination form by the Returning Officer, cannot be faulted with and the Election Tribunal has committed no error in dismissing the election petition.

Coming to the decision of this court in Rati Ram''s case (supra) relied upon by the counsel for the petitioner, it is to be noticed that in the said case, the issue involved was that wife of the petitioner therein gave birth to two children, a daughter and a son, on 8.7.94 and 12.10.95 respectively. The court held that on account of use of expression an additional child, the Tribunal was not justified in concluding that only one child would be excluded for the purpose of computation of outer limit in terms of proviso (iv) to Section 19 of the Act, so as to determine disqualification attached to a candidate. The court held that all the children born between 23.4.94 to 27.11.95 shall stand excluded for the purpose of computation of number of children as on the cut off date. Suffice it to say that in the said case, the question with regard to increase in the number of children after the commencement of the Act excluding the children born during the period 23.4.94 to 27.11.95 did not arise for consideration of this court. In this view of the matter, the decision of this court in Ratiram''s case (supra), relied upon by the counsel for the petitioner, is not applicable to the facts of the present case.

In the result, the petition fails, it is hereby dismissed. No order as to costs.