HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 1848 / 2016
Jaishree Sikhwal wife of Shri Nikhil Sikhwal, aged about 22 years,
By Caste Brahamin, Resident of Kharesh, Tehsil Deedwana, District
Nagaur.
----Petitioner
Versus
1. Civil Judge, Deedwana, District Nagaur.
2. Smt.Balu Kanwar wife of Shri Padam Singh, By caste Rajput,
Resident of Kharesh, Tehsil Deedwana, District Nagaur.
… PLAINTIFF-ELECTION PETITIONER.
3. Pushp Kanwar wife of Shri Vikram Singh, By caste Rajput,
Resident of Kharesh, Tehsil Deedwana, District Nagaur.
4. Returning Officer, Gram Panchayat Kharesh, Tehsil
Deedwana, District Nagaur through District Collector, Nagaur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Rajesh Joshi Sr.Advocate with Mr.Harshit
Bhurani.
For Respondent(s) : Mr.K.K.Shah.
Mr.Manish Patel, AGC.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order
3/2/2017
By way of this writ petition, the petitioner Smt.Jaishree
Sikhwal has approached this Court for assailing the judgment cum
decree dated 11.2.2016 passed by the learned Senior Civil Judge,
Deedwana, District Nagaur in Election Petition No.3/2015 declaring
that the petitioner was not qualified to contest the election of
Sarpanch on the aspect of age and thus, annulled and set aside
her election as Sarpanch, Gram Panchayat Kharesh, Tehsil
Deedwana, District Nagaur.
Facts in brief:The petitioner’s date of birth is 1.2.1994. Elections were
announced by the Panchayati Raj Institution for various Gram
(2 of 6)
[CW-1848/2016]
Panchayats in State of Rajasthan. The petitioner filed her
nomination for the post of Sarpanch, Gram Panchayat Kharesh.
After due scrutiny, her nomination form was accepted. She
contested the election and was was declared elected for the post
of Sarpanch Gram Panchayat. The respondent No.2 being a
loosing candidate submitted an election petition in the court of the
District Judge, Merta challenging the election of the petitioner on
the principal ground that she was under age and not eligible to
contest the election. The election petition was transferred by the
District Judge to the Court of Senior Civil Judge, Deedwana who
framed the following issues for determination:
(i)
As to whether the petitioner Jaishree Sikhwal had not
completed 21 years of age by 31.1.2015 and if so, being
eligible whether her election on the post of Sarpanch should
be annulled;
(ii) As to whether, recounting should be directed in the matter.
Witnesses were examined on behalf of both the parties and
the Election Tribunal, proceeded to decide the issue No.1 against
the petitioner vide the impugned judgment cum decree and set
aside
her
election
as
Sarpanch,
Gram
Panchayat
Kharesh
whereupon, the instant writ petition came to be filed before this
Court under Article 227 of the Constitution of India.
While entertaining the writ petition, this Court by order dated
19.2.2016, stayed the effect and operation of the order dated
11.2.2016 passed by the Election Tribunal. The said order was
challenged by the respondent No.2 Smt.Balu Kanwar through a
Letters Patent Appeal which was dismissed on 25.2.2016 upon
(3 of 6)
[CW-1848/2016]
being withdrawn by the petitioner’s counsel.
Shri Rajesh Joshi learned Senior Advocate assisted by Shri
Harshit Bhurani learned counsel appearing for the petitioner relied
upon the Supreme Court Judgments in the cases of Prabhu
Dayal Sesma Vs. State of Rajasthan & Anr. reported in
(1986) 4 SCC 59, Salag Ram Sharma Vs. State of Rajasthan
& Anr. reported in (2005)10 SCC 77 and Eerati Laxman Vs.
State of Andhra Pradesh reported in (2009)3 SCC 337 and
urged that the petitioner’s date of birth is 1.2.1994 and thus,
without any doubt, she had completed the required age of 21
years on 31.1.2015 and was eligible to contest the election. He
invited special attention of the Court to the following observations
made in Prabhu Dayal Sesma’s judgment:“9. It is plain upon the language of Rule 11-B that a
candidate 'must have attained the age of 21 years and must
not have attained the age of 28 years on the first day of
January next following the last date fixed for receipt of
application'. Last day fixed for receipt of application in this
case, was January 1, 1983. First day of January next
following that day would be January 1, 1984. The object
and intent in making Rule 11-B was to prescribe the age
limits upon which the eligibility of a candidate for direct
recruitment to the Rajasthan Administrative Service and
other allied services is governed. At first impression, it may
seem that a person born on January 2, 1956 would attain
28 years of age only on January 2, 1984 and not on January
1, 1984. But this is not quite accurate. In calculating a
person's age, the day of his birth must be counted as a
whole day and he attains the specified age on the day
preceding, the anniversary of his birth day. We have to
apply well accepted rules for computation of time. One such
rule is that fractions of a day will be omitted in computing a
period of time in years or months in the sense that a
fraction of a day will be treated as a full day. A legal day
commences at 12 o'clock midnight and continues until the
same hour the following night. There is a popular
misconception that a person does (sic not) attain a
particular age unless and until he has completed a given
number of years. In the absence of any express provision, it
is well-settled that any specified age in law is to be
computed as having been attained on the day preceding the
anniversary of the birth day. ”
(4 of 6)
[CW-1848/2016]
And submitted that the Hon'ble Supreme Court in the
abovequoted portion of the judgment, in no unequivocal terms
held that while calculating a person’s age, the day of his birth
must be counted as a whole day and he would attain the specified
age on the day preceding the anniversary of his birthday.
Referring to the above principle, Shri Joshi for the petitioner urged
that the day preceding the anniversary of the petitioner’s 21 st
birthday was 31.1.2015 and thus, she had attained 21 years of
age on that day and consequently was undeniably eligible to
contest the election. On the day following 31.1.2015, the
petitioner became a day older than 21 years. He points out that
the judgment in Prabhu Dayal Sesma’s case was later on followed
in the cases of Salag Ram and Eerati Laxman (supra) and thus,
the learned Tribunal was totally unjustified in holding that the
petitioner had not completed 21 years of age on 31.1.2015 and in
setting aside her election while declaring her to be ineligible for
contesting the election. He thus urged that the impugned order is
grossly arbitrary and illegal and should be quashed and set aside.
Per contra, Shri K.K.Shah learned counsel appearing for the
respondent
Smt.Balu
Kanwar
vehemently
opposed
the
submissions advanced by the petitioner’s counsel. He urged that a
person born on 1.2.1994 would be completing 21 years of age at
the stroke of midnight on 31.1.2015 and would celebrate his/her
21st birthday on 1.2.2015 and thus, definitely and without any
doubt, the petitioner had not completed the age of 21 years by
the last date for submission of the nomination form and
consequently, was ineligible to contest the election. He thus
(5 of 6)
[CW-1848/2016]
supported the judgment passed by the Election Tribunal and
prayed for dismissal of the writ petition.
Shri Manish Patel, AGC adopted the arguments advanced by
Shri Shah and supported the judgment passed by the Election
Tribunal.
I have heard the arguments advanced by the learned
counsel for the parties and have gone through the material
available on record.
The short controversy which requires adjudication in this writ
petition is as to whether the petitioner Smt.Jaishree Sikhwal can
be considered to have completed 21 years of age as on 31.1.2015
so as to be eligible for contesting election for the post of
Sarpanch.
Admittedly,
the
date
of
birth
of
the
petitioner
Smt.Jaishree Sikhwal is 1.2.1994. The Hon’ble Supreme Court
examined an exactly identical controversy in the case of Prabhu
Dayal Sesma’s case and held that while calculating a person’s age,
the day of his/her birth must be counted as a whole day and “he
attains
the
specified
age
on
the
day
preceding
the
anniversary of his birthday”. Testing the facts of case in hand
on the anvil of the above principle, there is no doubt that the
petitioner Smt.Jaishree Sikhwal had attained the age of 21 years
on 31.1.2015 i.e. the day preceding her birthday which was
1.2.1994. The learned Election Tribunal misdirected itself whilst
deciding this issue against the petitioner. The Tribunal failed to
appreciate the ratio of the judgment rendered in Prabhu Dayal
Sesma’s case in the right perspective. Rather, it appears that the
important conclusions postulated by the Hon'ble Supreme Court in
(6 of 6)
[CW-1848/2016]
the above referred judgment were totally ignored by the learned
Tribunal while deciding the important issue against the petitioner
and allowing the election petition.
The argument advanced by Shri Shah learned counsel for the
respondent that a person born on 1.2.1994 would celebrate
his/her 21st birthday on 1.2.2015 and as such, it has to be inferred
that such person completed 21 years of age on that day is
fallacious in view of the ratio of the Supreme Court Judgments
referred to supra.
As a consequence of the above discussion, the writ petition
deserves to be and is hereby allowed. The impugned
judgment
cum decree dated 11.2.2016 passed by the learned Senior Civil
Judge, Deedwana, District Nagaur setting aside the petitioner’s
election on the post of Sarpanch, Gram Panchayat Kharesh is
declared to be illegal and erroneous on the face of record and is
hereby quashed and set aside.
No order as to costs.
(SANDEEP MEHTA)J.
/tarun/