MADANLAL Vs. NANDLAL
LAWS(RAJ)-1967-10-1
HIGH COURT OF RAJASTHAN
Decided on October 10,1967

MADANLAL Appellant
VERSUS
NANDLAL Respondents

JUDGEMENT

- (1.) THIS is a writ petition by one Madanlal challenging an order of Munsif, Bhilwara dated 28th February, 1966 (Exhibit 3 on record) whereby, on an election petition by non-petitioner Nandlal, the election of the petitioner as Panch as also as Up-sarpanch of Gram Panchayat Kachola, Tehsil Mandalgarh, was set aside. The relevant facts are briefly these.
(2.) ELECTIONS for the Gram Panchayat Kachola were held ward-wise on 7th January, 1965. Petitioner Madanlal stood as a candidate from ward No. 5 for the office of Panch and he was elected as Panch from that ward. Non-petitioner Nandlal, who was an elector of ward No. 2 of the Gram Panchayat stood as a candidate for the office of the Panch from that ward and he too was elected. After the election, co-option for other members of the Panchayat took place and another Nandlal, Smt. Kajodi and Smt. Udi were co-opted as members of the Gram Panchayat at a meeting held on 9th January, 1965. Thereafter, the election of Up-sarpanch was held and the petitioner, who was already elected as a Panch, was elected as Up sarpanch. Non-petitioner Nandlal then filed a single election petition before the Munsif, Bhilwara wherein he challenged (1) the election of the petitioner as Panch, (2) election of the petitioner as Up-sarpanch and (3) the co-option of Nanda, Smt. Kajodi and Smt. Udi. The election of the petitioner as Panch and Up-sarpanch was challenged on the ground that he was below 25 years of age. I need not refer to the grounds on which co-option of Nanda, Smt. Kajodi and Smt. Udi was challenged as this writ petition does not concern the co-option. The petitioner contested the election petition and it was asserted by him that he was above the prescribed age of 25 years, being 26 and was, therefore, qualified to stand as a Panch or Up-sarpanch. He also pleaded that the election petition was not in accordance with Rules and it was, therefore, not maintainable. Both the parties led evidence. The Munsif came to the conclusion, on consideration of the evidence that the petitioner was below 25 years of age on the date of election and was consequently not eligible for election. In the result he set aside the election of the petitioner both as a Panch and an Upsarpanch. In assailing the judgment of the learned Munsif it is contended by the petitioner that the non-petitioner Nandlal was not competent to file the election petition against the petitioner as he was not an elector from ward No. 5 from which the petitioner had been returned as a Panch. It was next urged that a single petition could not have been filed for challenging the election of the petitioner as a Panch and Up-sarpanch as also the co-option of other persons. Then, it was argued that only one set of costs of Rs. 50/-was deposited. Then, finally it was urged that the finding of the learned Munsif about the petitioner being below 25 years of age on the date of election was erroneous. The writ petition has been opposed by Nandlal. Before dealing with the points raised before me it will be convenient to refer to the relevant provisions of the Rules under which the election was challenged. The group of rules beginning with rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, hereinafter to be referred as the Rules, lays down the procedure for challenging an election or co-option. Rule 78 provides that the election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-sarpach of a Panchayat may be challenged on the grounds stated therein. One of the grounds on which the election is liable to be challenged is that on the date of election or co-option a returned candidate was not qualified for such election. 25 years is the qualifying age prescribed for a candidate for election. Rule 79 lays down as to who can present an election petition. It is in the following terms: "who may present election petition - (1) A petition under rule 78 may be presented by an elector or by any candidate at such election or co-option as the case may be. Explanation I - "elector" means the person who was entitled to vote at the election or cooption to which the petition relates whether he has voted at such election or co-option or not. Explanation II - The petition shall be deemed to have been duly presented if it is delivered by the person making the petition or by a person authorised in writing in this behalf by the person making the petition. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs 50/- along with the petition by way of security for the costs of the oppsite party. ' Rule 80 lay down as to what are to be the contents of an eletion petition and how it has to be verified. Like a plaint it has to contain a concise statement of the material facts on which the petitioner relies and it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. Rule 83 provides for the hearing of petitions and it lay down that the procedure provided in the Code of Civil Procedure in regard to suits shall, insofar as it can be made applicable, be followed in the hearing of the petition. This rule is subject to certain provisos with which I am not concerned. Now, I have no doubt that the election petition suffers from the vice of multifariousness. The election petitioner had not only lumped together the present petitioner and other co-opted members in the same election petition but against the two sets of non-petitioners to the election petition the causes of action were distinct and separate. It was not advisable or proper for the tribunal to have entertained such a petition. But it is remarkable that no objection was raised by the petitioner regarding this the Election Tribunal (Munsif) and therefore I am not inclined to entertain this plea in a writ petition under Art 226 of the Constitution for the first time. Now as regards the contention whether Nandlal could have questioned the election of the petitioner as a Panch or Up-sarpanch, the answer has to be found from rule 79 of the Rules re-produced above. The right to seek an elective office is a creature of a statute and likewise the right to challenge any election is also a right created by the statute. Rule 79 specifically lays down as to who may present an election petition and therefore this implies and leads to the necessary corollary that the Election Tribunal (Munsif) would be acting wholly without jurisdiction in entertaining an election petition at the instance of the person not entitled to file it. This rule 79 provides that a petition under rule 78 may be presented by an elector or by any candidate at such election. It is common ground between the parties that non-petitioner Nandlal was not a candidate for election as Panch from ward No. 5 from which the petitioner was elected. The only question, therefore, is whether Nandlal could be regarded as an elector within the meaning of this rule. He was an elector from ward No. 2 from where he himself stood as a Panch for that ward. The term 'elector' is defined in Explanation-I of the rule to mean the person who was entitled to vote at the election. Here, the term 'election' cannot be construed in a generic sense to embrace the election of the Panchayat comprehensively but in the context it would mean the election of a Panch from the ward in question. The significant words in the explanation are "election. . . . . . . . . to which the petition relates. " Now, an election petition can, in the very nature of things, relate only to the election of a member from a ward and not to the election generally. There is no provision under which the entire election of the Panchayat can be challenged by an election petition. Rule 78 only provides that "the election or co-option of any person as the Panch of a Panchayat or the election of any person as Sarpanch or Up-sarpanch of a Panchayat. . . . . . . . may be called in question by presenting a petition to the Munsif. . . . . . . . . " The grounds specified in Cls. (a) to (f) also contemplate challenging of an individual's election. In my view, therefore, the term 'elector' within the meaning of rule 79 means a voter in the ward for which the returned candidate stood as a Panch. In the case of a Sarpanch the term 'elector' will mean the voters in the entire Panchayat circle. In other words, the term 'elector' means the person who had a right to cast his vote in relation to the electorate which elected the person whose election was sought to be challenged. Applying this test non-petitioner Nandlal cannot be held entitled to challenge the election of the petitioner as a Panch from ward No. 5 of Gram Panchayat Kachola. Now, I may take up the question of the petitioner's election as a Up-sarpanch. An Up-sarpanch is elected by the members of the Panchayat and for that the electoral college consists of all the elected members of the Panchayat, viz. , Panchas. Nandlal was certainly a member of the Panchayat and had a right to cast his vote for the election of Up-sarpanch. Therefore, he was undoubtedly an elector within the meaning of rule 79 of the Rules for questioning the election of the petitioner as Up-sarpanch. It follows that non-petitioner Nandlal could maintain the election petition for challenging the election of the petitioner as Up-sarpanch. Learned counsel for the non-petitioner submitted that the point was not argued by the petitioner before the Election Tribunal (Munsif ). But this is not correct, though I may observe that the point was not presented in the manner it was done here. In the reply to the election petition the petitioner has placed reliance on rule 79 of the Rules in urging that the election petition was not maintainable. The issue No. 4 in this regard ran as follows - "was not the election petition filed in accordance with rule 79 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 and therefore it cannot proceed? (Translated) As regards the finding of the Election Tribunal on the question of petitioner's age it is sufficient to say that it was only a finding of fact and cannot be allowed to be agitated in a writ petition under Art 226 of the Constitution unless some legal principle is shown to have been violated in arriving at it. I am not unmindful of the somewhat odd result that as an outcome of the proceedings commenced by Nandlal non-petitioner, the petitioner will be held disqualified on the ground of age as Up-sarpanch but he will be continuing as Panch. It will be for the competent authorities to find a solution to this anomaly and it is not for this Court to suggest one. The position that has emerged from rule 79 of the Rules is that it is only an elector who can challenge the election by an election petition. For the office of Panchship from ward No. 5 non-petitioner Nandlal was not the elector but he was certainly an elector for the office of the Up-sarpanch and for that office he could certainly challenge the election. The result is odd but one cannot help it on account the restrictive language of the Rules. The result is that the writ petition is allowed in part. The judgment of the Election Tribunal (Munsif Bhilwara) dated 28th February, 1966 is set aside insofar as the election of the petitioner as Panch from ward No. 5 is concerned but it is allowed to stand in other respects. In the circumstances of the case the parties are left to bear their own costs. . ;


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