TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner was a candidate in the election for Sarpanch for the Gram Panchayat Raipur, Panchayat Samiti Raipur for which the elections were held on 31. 1. 2000. THE petitioner's nomination paper was rejected by the Returning Officer on the ground that a child was born to him after cut off date i. e. 27. 11. 1995. THE petitioner in his nomination paper disclosed that he had two sons Harsh and Abhishek. Harsh was given in adoption to Braham Dutt on 21. 9. 1993 by registered adoption deed. THE petitioner also enclosed a copy of the said adoption deed and copy of ration card of Braham Dutt wherein the name of petitioner's son was very much there. THE petitioner also produced the school certificate obtained from the school which also shows that the petitioner's son was shown as adopted son of said Braham Dutt. After election, the petitioner submitted an election petition on 28. 2. 2000 and prayed that it may be declared that the petitioner's nomination paper was wrongly rejected and the order of rejection may be declared illegal null and void. It will be pertinent to mention here that the petitioner who was a candidate for the post of Sarpanch, still the petitioner did not choose to challenge the election of the elected candidate. It is further relevant to mention here that the candidate, who won the election, has not even been impleaded as party respondent in the election petition. The Trial Court, after evidence, dismissed the petitioner's election petition on the ground that there is no provision under sub-clause (1) of Section 19 read with Proviso (iv) appended to Section 19 of the Rajasthan Panchayati Raj Act, 1994 (for short the "act") which makes the person a qualified candidate to contest the election who had two children before the cut off date and gave one of the children in adoption to another before the cut off date and another issue born to that person after cut off date. 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 counted irrespective of the fact that that person has already gave his child to other person in adoption before the cut off date. According to Trial Court, such exclusion has not been permitted by any provision of law made in the Act. Explanation to Proviso (iv) only provides that in case the couple has only one children from earlier delivery or deliveries on the date of commencement of this Act and thereafter, any number of children born out of single subsequent delivery shall be deemed to be one entity. Meaning thereby, this provides that in case more children are born to couple by one delivery, then that will not be disqualification even if by that delivery, number of children exceeds from two.
(3.) THE petitioner is, therefore, aggrieved against the judgment of the Trial Court dated 26. 8. 2003. According to learned counsel for the petitioner, the Law is now well settled by the Division Bench judgment of this Court delivered in the case of Hira Lal vs. State of Rajasthan & Others (1 ). The Division Bench of this Court while considering an almost identical dispute observed that when law recognises adoption and when there is no provision, the legal consequences shall follow. The Division Bench also held that even in cases where the adoption deed is not registered as the custom governs adoption, then by proving the actual handing over and taking over of the child, adoption can be proved. The Division Bench further held that the Court in that case totally misdirected itself in law by raising a presumption that in the absence of any registered document, adoption is not valid. This mistake was found to be a mistake apparent on the face of the record by the Division Bench of this Court. In view of the Division Bench judgment of this Court, the adopted child given in adoption to someone else in accordance with the law applicable to the parties cannot be included in number of children on or after the cut off date. The position is now well settled in view of the decision of the Division Bench referred above and a person who has given in adoption any of his children before the cut off date, that children cannot be treated as a children of the person giving out in adoption while considering the qualification of a candidate under Section 19 of the Act. ;