CW/223/2004 of RAJENDRA KUMAR Vs STATE OF RAJ. andand ORS on 21 December 2004

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JODHPUR.

Rajendra Kumar vs. State of Rajasthan and others.

S.B. CIVIL WRIT PETITION NO.223/2004Under Articles 226/227 of Constitution of India.

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Date : 21.12.2004

HON'BLE MR. PRAKASH TATIA, J.

Mr. Manish Shishodia, for the petitioner.

Mr. L.R. Upadhyay, Dy.GA. for respondents.

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REPORTABLE

BY THE COURT :

Heard learned counsel for the parties.

The petitioner was a candidate in the election forSarpanch for the Gram Panchayat Raipur, Panchayat SamitiRaipur for which the elections were held on 31.1.2000. Thepetitioner's nomination paper was rejected by the ReturningOfficer on the ground that a child was born to him aftercut off date i.e. 27.11.1995. The petitioner in hisnomination paper disclosed that he had two sons Harsh andAbhishek. Harsh was given in adoption to Braham Dutt on21.9.1993 by registered adoption deed. The petitioner alsoenclosed a copy of the said adoption deed and copy ofration card of Braham Dutt wherein the name of petitioner's son was very much there. The petitioner also produced theschool certificate obtained from the school which alsoshows that the petitioner's son was shown as adopted son ofsaid Braham Dutt.

After election, the petitioner submitted an electionpetition on 28.2.2000 and prayed that it may be declaredthat the petitioner's nomination paper was wrongly rejectedand the order of rejection may be declared illegal null andvoid.

It will be pertinent to mention here that thepetitioner who was a candidate for the post of Sarpanch,still the petitioner did not choose to challenge theelection of the elected candidate. It is further relevantto mention here that the candidate, who won the election,has not even been impleaded as party respondent in theelection petition.

The trial court, after evidence, dismissed thepetitioner's election petition on the ground that there isno provision under sub-clause (l) of Section 19 read withProviso (iv) appended to Section 19 of the RajasthanPanchayati Raj Act, 1994 (for short the “Act”) which makesthe person a qualified candidate to contest the electionwho had two children before the cut off date and gave oneof the children in adoption to another before the cut offdate and another issue born to that person after cut offdate. Meaning thereby, according to the trial court, the Proviso (iv) while counting number of children of a person,his all alive children are required to be countedirrespective of the fact that that person has already gavehis child to other person in adoption before the cut offdate. According to trial court, such exclusion has not beenpermitted by any provision of law made in the Act.

Explanation to Proviso (iv) only provides that in casethe couple has only one children from earlier delivery ordeliveries on the date of commencement of this Act andthereafter, any number of children born out of singlesubsequent delivery shall be deemed to be one entity.Meaning thereby, this provides that in case more childrenare born to couple by one delivery, then that will not bedisqualification even if by that delivery, number ofchildren exceeds from two.

The petitioner is, therefore, aggrieved against thejudgment of the trial court dated 26.8.2003.

According to learned counsel for the petitioner, theLaw is now well settled by the Division Bench judgment ofthis Court delivered in the case of Hira Lal vs. State ofRajasthan and others (D.B. Civil Writ PetitionNO.852/2004). The Division Bench of this Court whileconsidering an almost identical dispute observed that whenlaw recognises adoption and when there is no provision, thelegal consequences shall follow. The Division Bench alsoheld that even in cases where the adoption deed is not

registered as the custom governs adoption, then by provingthe actual handing over and taking over of the child,adoption can be proved. The Division Bench further heldthat the Court in that case totally misdirected itself inlaw by raising a presumption that in the absence of anyregistered document, adoption is not valid. This mistakewas found to be a mistake apparent on the face of therecord by the Division Bench of this Court. In view of theDivision Bench judgment of this Court, the adopted childgiven in adoption to someone else in accordance with thelaw applicable to the parties cannot be included in numberof children on or after the cut off date.

The position is now well settled in view of thedecision of the Division Bench referred above and a personwho has given in adoption any of his children before thecut off date, that children cannot be treated as a childrenof the person giving out in adoption while considering thequalification of a candidate under Section 19 of the Act.

The law point is in favour of the petitioner and forthat there is no doubt. The question is what relief can begranted to the petitioner ? The question in the facts ofthe case arises is whether the election petition itself ismaintainable or not, when the petitioner has not challengedthe election of the returned candidate.

In the opinion of this Court, no election petition ismaintainable under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short the “Rules”) where theelection of a successful candidate is not under challenge.Rule 80 of the Rules reads as under :- “80. Manner of challenging an election under theAct.- An election under the Act or under the Rules maybe called in question by any candidate at suchelection by presenting a petitionto the DistrictJudge having jurisdiction within thirty days from thedate on which the result of such election is declared,on any one or more of the following grounds:- (a)that on the date of election, a returnedcandidate was not qualified or was disqualified,for such election, orcandidate was not qualified or was disqualified,for such election, or (b)that any corrupt practice was committed by acandidate or by any other person with the consentor connivance of the candidate, or candidate or by any other person with the consentor connivance of the candidate, or

(c) that any nomination was improperly rejected, or (d)that the result of the election in so far as itconcern the returned candidate was materiallyaffectedconcern the returned candidate was materiallyaffected

(i) by the improper acceptance of anynomination, or nomination, or

(ii) by any corrupt practice committed in theinterest of the candidate by a person otherthan candidate or by a person acting withthe consent or connivance of such candidate,orinterest of the candidate by a person otherthan candidate or by a person acting withthe consent or connivance of such candidate,or

(iii) by improper reception, refusal orrejection of any vote or the reception ofany vote which was void, orrejection of any vote or the reception ofany vote which was void, or

(iv) by any non-compliance with the provisions ofthe Act or of these rules, orthe Act or of these rules, or

(e) that in fact the petitioner or some othercandidate received a majority of the valid votes,or candidate received a majority of the valid votes,or (f)that, but for votes obtained by the returned candidate by corrupt practices, the petitioner orsome other candidate would have obtained amajority of the valid votes.”

Therefore, the election petition is maintainable onlywhen the election of the elected candidate is challenged.

In an election petition, reliefs can be granted aspermissible by Rule 87 of the Rules. Rule 87 of the Rulesreads as under :- “87. Order of the Court.-(1) Upon the conclusionof the hearing the Judge shall make an order:- (a)dismissing the petition, or (b)declaring the election of all or any of the returned candidates to be void, or

(c) declaring the election of all or any of thereturned candidates to be void and the petitioneror any other candidate to have been duly elected.returned candidates to be void and the petitioneror any other candidate to have been duly elected.

(2) The Judge, after pronouncing the order madeunder sub-rule (1) shall send a copy thereof to theDistrict Election Officer (Panchayats) for takingfurther necessary action in pursuance thereof.”

Rule 83 provides that the person whose election ischallenged and where the petition claims that any othercandidate shall be declared as elected in place of suchperson, every unsuccessful candidate who has polled morevote than such candidate, shall be made respondent to thepetition.

In view of the above, in every election petition, theelected candidate is a necessary party. Obviously thereason is that the Court can pass any of the orders asprovided under Clauses of Rule 87 which certainly affectsthe elected candidate and no order is permissible whichwill not have affect on the election of the returnedcandidate. In other words, the election petition cannot befor seeking a mere declaration without questioning theelection of the elected candidate as the Rule 87 is notpermitting any other order except the orders which aregiven in the said Rule.

According to learned counsel for the petitioner, civilsuit in relation to any election dispute is barred,therefore, the petitioner cannot challenge the wrongfulrejection of his nomination paper by filing the civil suit.It is also submitted that the petitioner will not have anyremedy to challenge wrongful rejection of the nominationpaper of the petitioner. Further, the petitioner will beremedyless and the petitioner shall suffer the samedisqualification in future in the next election in view ofthe finding of the Returning Officer holding that thepetitioner is disqualified to contest the election as hehas more than two children and one child has born after cutoff date.

The apprehension of the learned counsel for thepetitioner is absolutely misconceived. The ReturningOfficer records a decision on nomination paper for a

particular election. The Returning Officer, whileexercising the powers under the Act, can decide the factwhether the nomination paper submitted for a particularelection is valid or not. The Returning Officer, by doingso, is not deciding the civil rights or status or paternityor question of adoption. The candidate whose nominationpaper is rejected by the Returning Officer but notaggrieved against the election of the elected candidatecannot maintain the election petition, therefore, allquestions which can be decided under Section 9 of the Codeof Civil Procedure by the Civil Courts can be decided bythe Civil Courts irrespective of the fact of ReturningOfficer having limited jurisdiction to decide the issuecollaterally while deciding the validity of nominationpaper. It is true that in case, the aggrieved partyaggrieved against the order of Returning Officer wishes tochallenge the election of the elected candidate, he maysubmit election petition before the Civil Court which maydecide the issue as Civil Court which permits granting ofrelief to the aggrieved party and if that issue is decidedby the Civil Court, then that issue may become res-judicatabetween the parties. Since the decision on the validity ofnomination paper only decides the validity of thenomination paper which is before the Returning Officer andnothing more, therefore, in the subsequent election, freshnomination paper is submitted and the Returning Officer maydecide the same question on the basis of the material whichare available before the Returning Officer. Therefore, incase, the aggrieved party against the order of the Returning Officer wishes to challenge the election of thereturned candidate, he may get the decision from the CivilCourt on the issues decided by the Returning Officer butthe election petition cannot be converted into a civil suitfor mere declaration in favour of a candidate for electiononly without having any effect of the decision on questionof election, may be in favour or against the returnedcandidate.

Since the petitioner in this election petition has notchallenged the election of the returned candidate,therefore, the election petition is not maintainable andthe petitioner is still free to file civil suit fordeclaration that his son Harsh is the adopted son of BrahamDutt by impleading necessary parties.

In view of the above, the election petition filed bythe petitioner itself was not maintainable and, therefore,no relief can be granted to the petitioner despite the factthat the trial court proceeded on wrong proposition of lawand contrary to the decision of the Division Bench.

In view of the aforesaid discussion, though thejudgment of the trial court cannot be sustained but sinceno relief can be granted to the petitioner even by settingaside the judgment of the trial court, therefore, this writpetition deserves to be dismissed and hence, dismissed.

(PRAKASH TATIA), J.

S.Phophaliya