Rathore, J.
1. For conducting the elections of Gram Panchayat, State of Rajaslhan has issued a notification dated 11th January, 2000 and in pursuance of the notification dated 11th January, 2000, the election of the Sarpanch Gram Panchayat Jatwada was held on 31.1.20,00.
2. The petitioner was declared elected as Sarpanch of the Gram Panchayat Jatwada on 31.1.2000 itself.
3. The petitioner submitted his nomination paper before the Returning Officer, Jatwara Panchayat Circle for contesting the election of Sarpanch of Gram Panchayat Jatwara. At the time of submission of nomination paper, nobody has objected his candidature and the petitioner has contested the election of Sarpanch Gram Panchayat Jatwada and was duly declared elected as Sarpanch of Gram Panchayat Jalwada as the petitioner got the highest votes, The certificate to this effect was also issued on 31 st January, 2000 by the Election Office.
4. The defeated candidate Shri Ladu Ram-respondent No. 2 filed an election petition before the District & Sessions Judge, Jaipur District, Jaipur on the ground that a daughter Pinku was born to the petitioner on 7.6.1996 and son Dipu @ Poonam was also born on 25.5.1999. It was prayed by the respondent No. 2 in the election petition that since the petitioner has got more than two children after 1995, therefore, the petitioner be declared disqualified as Sarpanch of the Gram Panchayat Jatwada.
5. The petitioner filed the reply to the election petition in which the petitioner has stated that the children born before 27.11.1995 has to be treated as one unit and children born after that has to be treated another unit and as four daughters Seema, Karma, Anita and Pinku were born before 27.11.1995 and therefore, they have to be treated as one unit and as Dipu was only born after 27.11.1995 can be treated as, another unit as per Section 19(1)(iv) of the Panchayat Act, 1994.
6. Learned counsel for the petitioner submits that Seema and Karma two daughters have been given on adoption to father-in-law of the petitioner and both of them are residing there with in laws and Pinku has been given on adoption to the sister of the petitioner. Since three children has already been given on adoption to father-in-law and to the sister of the petitioner, and only two children remains with the petitioner.
7. Learned Election Tribunal vide order dated 17.3.2001, framed two issues;
(i) whether the petitioner was disqualified under Section 19 of the Rajasthan Panchayati Raj Act due to having additional children after the Act came into force? ,
(ii) whether taking two children on adoption to the father- in-law of the petitioner as mentioned in para 4 of the reply filed by the petitioner and if so what is its effect?
8. The respondent No. 2 (election petitioner) has produced only his witness as AW-1 and his statement was recorded by the Election Tribunal wherein he has stated that one Tinku was born to the petitioner on 7.6.1996 and another child was born on 25.5.1999. The witness further stated that the petitioner has not given any of his daughter on adoption to his in-laws or to his sister.
9. The statement of petitioner's witness was also recorded on 16.1.2002 as DW-1 in which the witness has stated that so far as Pinku is concerned, she born on 25.4.1994 and son Dipur was born on 25.5.1999 and therefore, the children born before the Act of 1994 came into force, he had only one unit and children born after the Act came into force can be treated as another unit and therefore, according to criteria laid down in the Panchayat Act, 1994, there are only two units which does not disqualify to the petitioner to hold the post of Sarpanch.
10. Learned counsel for the petitioner further submits that the Election Tribunal has seriously erried not to record the statement of one Shri Radheyshyam S/o Kunj Bihari Sharma only for the reason that the witness Radheyshyam was not present on the date fixed i.e. 2nd February, 2002. The petitioner moved application o'n the same day i.e. 2nd February, 2002 stating therein that the witness Radheyshyam went for attending some funeral of his relation. Upon asking by the Election Tribunal, the petitioner has not filed any affidavit on 2nd February, 2002 before the Election Tribunal and therefore, the Election Tribunal dismissed the application moved by the petitioner on 2nd February, 2002 on the same day and the fixed the matter for final argument on I3th February, 2002.
11. Learned counsel further submits that on the next date i.e. 13.4.2002 which was fixed for final argument, the petitioner prayed for taking the evidence of Radhey Shyam, since the Radheyshyam is most important and relevant evidence for decision of the present matter and filed an application for recalling the order dated 2nd February, 2002. The Election Tribunal dismissed the application without considering any facts and circumstances mentioned in the application vide order dated 13.2.2002.
12. The order dated 13.2.2002 passed by the Election Tribunal on the application moved by the petitioner has been challenged before this Court by way of filing writ petition which was registered as Ladu Ram v. State (1) but the writ petition was dismissed by the High Court on 28.2.2002.
13. The Election Tribunal vide its order dated 14th March, 2002 has allowed the election petition filed by the respondent No. 2 and set aside the election of the petitioner on the ground that the petitioner has got more than two children and in view of the provisions of Panchayati Raj Act set aside the election of the petitioner and further directed to hold the new election of the Gram Panchayat Jatwada pursuant to the order dated 14.3.2002.
14. The petitioner challenged the order dated 14.3.2002 by which the election of the petitioner was set aside on the ground incurring disqualification as per Section 19(1)(iv) of the Act of 1994.
15. Learned counsel for the petitioner referred Section 19 of the Rajasthan Panchayati Raj Act, 1994, the relevant Section 19(1)(iv) stipulates as under :-
'Section 19: (1) has more than two children; (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 the 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.
Explanation : For the purpose of Clause (i) of Section 19, where the person has only one child from the earlier delivery or deliveries on the date of commencement of this Act and thereafter, any number of children born out of a single subsequent delivery shall be deemed to be one entity.'
16. The provision of Section 19(1)(iv) of the Act, 1994 is interpreted by the learned counsel for the petitioner that children born before the act came into force has to be treated as one unit and after the act came into force has to be treated as another unit and if this analogy will be taken into consideration in the present case, the petitioner is not disqualified for the post of Sarpanch.
17. Learned counsel for the petitioner further submits that the Election Tribunal has not at all gone into the question of the fact of giving adoption of any children and if it has been deemed by the Election Tribunal that 3 daughters have been given on adoption to the father-in-law and sister, for the purposes of considering number of children, the children who were given on adoption cannot be counted for the purpose of disqualification as they are legally died for the petitioner.
18. Mr. Rajendra Soni, learned counsel for the petitioner further submits that merely making a special law does not take away the provision of Hindu Adoption and Maintenance Act until and unless any special provision with regard to taking away right and liabilities when the Adoption Act should be enacted in the Rajas than Panchayati Raj, Act, 1994 without making such specific provision, the Hindu Adoption and Maintenance Act is fully applicable to the instant case.
19. Learned counsel for the petitioner further submits that Election Tribunal has not considered the law laid down by the judgments AIR 1988 SC 1796 (2), 1998 WLC (UC) 136 (3), 1997(1) SCC 472 (4), 1999 (2) WLC 350.(5), and passed the order dated 14.3.2002 which is per se illegal and contrary to the ratio decided in the aforesaid judgments:
20. Mr. G. Bardhar, appearing on behalf of the respondents has controverted the contentions raised in the writ petition and submitted that the petitioner was wrongly elected as the Sarpanch of Gram Panchayat Jatwada as he was disqualified to contest the election under Section 19 of the Panchayati Raj Act, 1994. It was also denied that nobody has objected the candidature of the petitioner at the time of filing of the nomination paper. The respondent No. 2 has raised the objection before the Election Officer to the nomination paper filed by the petitioner, but his nomination paper was wrongly accepted. Learned counsel for the respondent placed declaration/undertaking alongwith the reply as AnnexureR-l wherein the petitioner himself admitted that he has four children prior to 1995 and one daughter born on 25.5.1999. Thus, it is evident that the petitioner is disqualified to contest the election in view of the provision of Section 19 of the Act. Since the nomination paper of the petitioner was accepted by the Election Officer, the respondents has no other alternative except to file election petition before the District & Sessions Judge, Jaipur District which was later on transferred to the Civil Judge (SD) CJM, Jaipur District.
21. The respondents also controverted the argument raised by the petitioner on the ground that the election petition has not supported with the documentary evidence. The respondents also placed a copy of the Rashan Card as Ex.R-2 alongwith the reply which shows that the petitioner himself filed an application for obtaining the Rashan Card and in which daughter Pinku was shown as 2 years old and as per information given by the petitioner, the birth of the Pinku was admittedly after the, appointed date.
22. Mr. G. Bardhar further submits that it is not the case of the petitioner that petitioner is not admitting this fact that he has more than two children after the 27.11.1995 and the election petition was replied by the petitioner on the ground that two children who were born after 27.11.1995 should be treated as one unit and the children who born before 27.11.1995 be taken as another unit and they were given on adoption to the in-laws and sister, they should not be counted for the purposes of disqualification.
23. With regard to the rejection of the application moved by the petitioner to record the evidence of one Shri Radheyshyam is concerned, Mr. Bardhar submits that the wrong information was furnished by the petitioner. Radheyshyam went to attend some funeral, but no affidavit to this effect was filed alongwith the application despite the Court asked the petitioner to file an affidavit in support of his application. 'Since the petitioner failed to file an affidavit in support of his application, the learned Election Tribunal has no option other than to dismiss the application of the petitioner. Mr. Bardhar in support of his submission also placed the copy of the order sheet as Ex,R-3 alongwith the writ petition.
24. Having heard learned counsel for the parties to resolve the present controversy, I like to refer the provision of Section 19(1)(iv) which disqualify a person from the post of Sarpanch, Panch or member, if anybody has more than two children and this clause has been substituted by the notification dated 6.1,2000 (ordinance No. 2 of 2000) published in Rajasthan Government Gazette Extra Ordinary Part 4 (kha) dated 6.1.2000 with immediate effect.
25. These restrictions imposed by Section 19(0 to service the social purposes of controling the population exposure and the law is enacted to serve the need of the society. It has to keep pace with the aspirations and need of the society as well as to take into consideration the changing concept of the value. It is only with an intention to serve the social purpose, namely, to control the problem of population explosion.
26. A law imposing reasonable restrictions upon it for compeling interest of State must be held to be valid. The restriction imposed in Section 19(1) does not outarge the dignity of the individual.
27. The object of this provision is to control population growth and family planning and such type of interference is necessary in a democratic society in the economic welfare of the country. The restrictions have been laid down with a asocial purpose, i.e., to fulfil the mandate given in the Directive Principles enshrined in the Constitution.
28. If the population growth is not controlled and family planning is not observed then looking to the limited sources available with the country, it will be difficultfor the State to achieve these goals.
29. The petitioner wants to make out his case by way of wrong interpretation of the Section 19(1) and Sub-clause (iv) reproduced hereinabove.
30. By bare perusal of Section 19(i) (iv) it reveals that after 2 7th November, 1995, if a child born to any person and such person having more than two children will be declared disqualified and prior to 27th November, 1995, the petitioner may have any number of children, on that eventuality one cannot 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. The explanation to Section 19 is also clear that the person has only one child from the earlier delivery or delivers on the date of commencement of this Act and thereafter, any number of child, born out of single subsequent delivery thereafter, deem to one entity as it is specifically mentioned that number of children born out from a single specific delivery just like a twins, on such eventuality they will be considered as one entity.
31. Here in the Instant case, the petitioner gave birth to two children out of two different delivery after 27th November, 1995 which cannot be considered as one entity.
32. The validity of the Section 19(1) has been challenged before the Division Bench of this High Court in the case of Mukesh Kumar Ajmera v. State of Rajasthan and Ors. (6), wherein the Court has held that the provision of Section 19(1) and 39 within vires of State Legislature and not violative of Articles 14 or 21 of Constitution enacted with the object which is sought to be achieved to implement the family planning programme and restrict the family to check the population explosion which is one of the major problems which India is facing today.
33. Though having more than two children does not, in any way, affect the workings of the Sarpanch, Panch or a Member of a Panchayat Raj Institution but the population explosion has affected the economic condition of the State and it is with the purpose to implement the mandate of the Directive Principles of the State policy that this measure was considered necessary. These provisions according to us also, do not violate Articles 25 and 26 of the Constitution of India as there is no invasion of any of the right to free dom of conscience and free profession, practive and propagation of religion. These provisions, also, do not invade the right of petitioners of freedom to profess his/her religious affairs.
34. Since validity of Section 19(1)(iv) and 39 has been upheld by the Division Bench of this Court and it it not disputed that he has got more than two children after 27.11.1995, therefore, in such circumstances, the petitioner wants tp prepound a new theory that in case, anybody give his children on adoption then for that person, the children who were given on adoption are legally died for the purposes of petitioner's disqualification under Section 19(1)(iv).
35. The petitioner also failed to submit the date of adoption and document by which adoption deed has been registered. Mr. Rajendra Son only submits that in view of the customary traditions, the children were given on adoption to his father-in- law and sister.
36. Be that as it may, if at all it is considered that the petitioner has given his children on adoption to his father-in- law and sister, even though this new theory is fortified by the bare perusal of the declaration/undertaking submitted by the petitioner on 30th January, 2000 and he himself admitted this fact that prior to 25.9.1995, petitioner have four children and this, fact is also corroborated by the application submitted by the petitioner for issuance of Rashan Card wherein he has mentioned the name of his five children.
37. The theory of adoption as was prepound by the learned counsel for thepetitioner, is not tenable and the Section 19(1)(iv) is fully applicable to the instant case.In view of Section 19(1)(iv), the petitioner is admittedly disqualified to hold the postof Sarpanch. The judgment cited by the learned counsel for the petitioner rendered inthe case of Mukesh Kumar Ajmera v. State of Rajasthan and Ors is of no relief tothe petitioner.
38. After careful examination of the relevant provisions of Rajasthan Panchayati Raj Act, 1994 and provisions of Hindu Adoption and Maintenance Act and after carefully scanning the judgment rendered in the case of Mukesh Kumar Ajmer v. State of Rajasthan and Ors. (supra), the submission made by the counsel for the petitioner that children born out before 27.11.1995 and after 27.11.1995 should be treated only two units is totally misconceived, contrary to the provision and learned counsel for the petitioner has tried to interprete the explanation in wrong perspective which cannot be accepted as already discussed hereinabove. The theory of adoption is also not tenable in the eye of law as Section 19(1)(iv) has been upheld by the Division Bench of this Court in the case of Mukesh Kumar Ajmera v. State of Rajasthan and Ors. (supra). The ratio decided by the aforesaid judgment is fully applicable to the instant case. The writ petition is devoid of merit, therefore, 1 do not want to interfere with the order of the Election Tribunal dated 13.3.2002.
39. Consequently, the writ petition fails and the same is hereby dismissed with no order as to costs.