Pramod Yadav vs Ramveer Singh & Ors.

The election of the petitioner returned candidate (hereinafter ''RC'') as Sarpanch of Gram Panchayat Mainpur, Panchayat Samiti Mundawar, District Alwar has been set aside by the impugned judgment dated 02.12.2016 passed by the Senior Civil Judge, Kishangarhbas, Alwar on the ground that he was disqualified to contest the said election held on 24.01.2015 in view of having admittedly fathered the third child Abhishek in the year 2004 subsequent to the cut off date of 27.11.1995 as provided for under Proviso (iv) of Section 19 of the Rajasthan Panchayat Act, 1994 (hereinafter ''the Act of 1994'').

Section 19 (l) of the Act of 1994 provides that a person would be disqualified from contesting election to the post of Sarpanch in the event a third or additional child is born subsequent to 27.11.1995.

The petitioner in his cross-examination admitted that his first child Mithlesh was born to him in the year 1992, the second, Harshita in the year 2002 and the third, Abhishek was born in the year 2004. It was however asserted that Harshita had been given away by a registered adoption deed to his brother Dhuli Chand and his wife and hence he did not breach the two child norm to be rendered in eligible for election to the post of Sarpanch. Reliance in support of the contention was placed on the Division Bench judgment of this Court in the case of Hira Lal Vs. State of Rajasthan & Anr. [2004 (5) WLC Raj. 169].

The trial court has considered the RC''s defence but in view of the judgment of the Apex Court in the case of Javed & Ors. Vs. State of Haryana & Ors. [AIR 2003 SC 3057] held that giving away of a child in adoption did not take away the disqualification under Section 19 (l) of the Act of 1994. It was noted that this court in the case of Dhanraj Meena Vs. State of Rajasthan & Ors. [2008(2) WLC Raj. 787] following the judgment of the Apex Court in the case of Javed & Ors. Vs. State of Haryana & Ors.(supra) had taken a view that Hira Lal Vs. State of Rajasthan & Anr.(supra) could not be held to be good law.

And indeed the Apex Court in the case of Javed & Ors vs. State of Haryana & Ors. (supra) has held in the context of a pari materia provision in the Haryana Panchayati Raj Act 1994, that a statutory disqualification of children in excess of two for the purpose of contesting an election could not be circumvented by giving away of a child in adoption. It is well settled that statutory interpretation should be purposive and a narrow construction which would facilitate an evasion of statute by "shift or contravence" should be eschewed. The Court''s endeavour should be to avoid fraud upon the statute or a construction which is manifestly subversive of the primary object of a provision/Act and wholly beyond the intendment of the legislature. [ See 1974(2) SCC 178] Raja Bahadur MotiLal Bombay Mills Ltd. & Anr. Vs. Govind Ram Brothers (P) Ltd. & Anr.

In view of the aforesaid discussion, I am of the considered view that there is no warrant to interfere with the impugned judgment. Admittedly the RC had fathered three children. One in 1992. Then two others subsequent to the cut off date of 27.11.1995 in 2002 and 2004 respectively and even though, the first of the said two children was given away in adoption, the petitioner was in law ineligible to contest the election to the post of Sarpanch under the Act of 1994.

The petition is without force. Dismissed.