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Judgment
In both these appeals common question of law and facts are involved hence they are decided by this common judgment.
By way of these appeals, the appellant has assailed the judgment and order of the election tribunal as well as learned Single Judge whereby the
election of the present appellant came to be set aside.
The facts of the case are that the appellant (RC) was elected Sarpanch of Gram Panchayat Luhariya, Panchayat Samiti Dug, Tehsil Gangadhar,
District Jhalawar. The respondent (defeated candidate) challenged her election on manifold grounds including the one that prevailed upon was that she
was underage on the date of filling the nomination form in the year 2015 and according to him her date of birth as per the school record is 11-1-1997
as such she has not attained the age of 21 years on the date when the nomination form was filled which primarily prevailed upon the Election Tribunal
in setting aside her election & upheld by the Ld. Single Judge that she was underage on the date of filling nomination form in the year 2015.
3.1 Counsel for appellant has brought to our notice that there was documentary evidence on record & marked as exhibit-10, 11, 12, 14 & 15 and that
indicates her date of birth 1-1-1992 and for the alleged grievance of the respondent was that the date of birth of appellant (RC) being interpolated at a
later point of time, no adverse inference can be drawn and that apart the FIR was registered at the instance of the defeated candidate for the alleged
interpolation in the documents and twice the investigation was undertaken and Final Report has been submitted, and the protest petition has been filed
by the respondent & the matter is still to be examined by the competent court of jurisdiction.
3.2 Counsel submits that although written statement was filed by the appellant but their lawyer deliberately failed to put in appearance nor he cross-
examined any of the witness of the election petitioner and she has been denied with a reasonable opportunity to defend and in the given facts &
circumstances when there is clear documentary evidence duly exhibited indicating her date of birth 1-1-1992 and pendency of protest petition filed by
the respondent may not be construed to draw adverse inference and in the given facts & circumstances the finding of fact recorded is manifestly
perverse and if a public representative is not being allowed to function for such reasons it may be a travesty of justice.
This court while admitting the matter has passed the following directions on 28.8.2017 which reads as under:-
“We have heard counsel for the parties & also perused the documentary evidence duly exhibited before the Election Tribunal, in our view the
matter needs further consideration. Heard. Admit. Fresh notices need not be issued since the contesting respondent is duly represented by counsel. In
the meanwhile & until further orders, operation & effect of judgment of the Election Tribunal impugned dt.4-6-2016 & also of the Ld. Single Judge
dt.10-8-2017 shall remain stayed until further orders.â€
The said order is subject matter of SLP. However, since there is no stay against further proceedings, therefore, we proceeded with the matter and
with the consent of the parties, inclined to pass the following directions:-
The contention of the appellant is that there is no proper representation of the appellant before the election tribunal. Hence, decision has gone
against her.
In that view of the matter, the parties will appear before the election tribunal on 23.4.2018 and the election tribunal is directed to take up the matter
on day to day basis. The election tribunal will finish the proceeding within 30 days on or before 23.5.2018.
Till then, the present appellant will not act as Sarpanch and charge will be given to next Up-Sarpanch. However, if the election tribunal is not in a
position to conclude the proceedings on or before 23.5.2018, it will be open for either side to approach this court for clarification.
The order of the learned Single Judge as well as election tribunal are quashed and set aside.
The matters are remitted back to the election tribunal on the ground that the learned Single Judge himself has remanded one of the matter back.
Now both the matters will be heard together. The election tribunal will hear the matters afresh in accordance with law with the direction that
appellant-original petitioner will not act as Sarpanch from 17.4.2018 till 24.5.2018.
With the aforesaid observations, the appeals stand disposed of. The application (70633/2017 ) in appeal no.1199/2017 stands disposed of.