N.D. Ojha, J. - (1.) The appellant, Sarfaraz Ahmad Khan filed a writ petition challenging an order of the Election Tribunal whereby his election as Chairman, Town Area, Bugarasi district Bulandshahr, was set aside. For the said office of Chairman there were three candidates, the appellant Sarfaraz Ahmad Khan, and respondent Nos. 2 and 3, Mohammad Abdul Salam Khan and Ausaf Ahmad Khan. The appellant secured 1265 votes while the second and the third respondents secured 780 and 703 votes respectively. The appellant was declared elected. Thereafter Mohammad Abdul Salam Khan, respondent No. 2 filed an election petition. The election petition was allowed on the ground that the appellant was disqualified from being chosen as Chairman in view of the provisions of Sec. 6-K of the Town Area Act inasmuch as he had been dismissed from service under the Delhi Police Force. The Election Tribunal further directed respondent No. 2 to be declared elected. The writ petition filed by the appellant was dismissed. The learned Single Judge also set aside the order of the Tribunal directing respondent No. 2 to be declared elected and directed the Tribunal to decide the question as to whether respondent No. 2, was entitled to be declared elected or not in the light of the observations made by him in the judgment. Against this judgment two appeals have been filed. Sarfaraz Ahmad Khan filed Special Appeal No. 34 of 1973 while Mohd. Abdul Salam Khan filed Special Appeal No. 36 of 1973.
(2.) Learned counsel for Sarfaraz Ahmad Khan has made two submissions in support of his appeal. Firstly that under Rule 48-C the Election Tribunal had jurisdiction to set aside the election of a candidate elected as a Chairman only on the ground that he was not qualified to be nominated as a candidate. It was urged that the words "not qualified to be nominated as a candidate" do not include the person who was disqualified for being chosen. According to him the question as to whether any candidate was fit for being chosen as a candidate exclusively fell within the jurisdiction of the Returning Officer and it could not be made the subject-matter of an election petition. Secondly that the appellant could not be said to be a dismissed servant within the meaning of Sec. 6-K of the Act. With regard to the first submission it is to be pointed out that Sec. 6-K of the Act which provides for the disqualification in this regard is in these terms:- "A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as, and for being, a member or Chairman of a Committee if he - (a) is a dismissed servant of a local authority, the State or Central Government and is debarred from reemployment therein, or (b) ..................."
(3.) Learned counsel for the appellant placed reliance upon Sec. 6-J and Sec. 8-A(l) of the Act. The relevant portion of Sec. 6-J provides that:- "A person shall not be qualified to be chosen to fill a seat on a committee, unless - (a) ....................... (b) in the case of any other scat, he is an elector for any ward in the Town Area. " Section 8-A(l) provides: "The chairman of every committee shall be an elector of the town area." According to learned counsel for the purposes of determining whether the appellant was qualified for being elected as a Chairman the only thing required to be looked into was whether the appellant was an elector for any ward in the Town Area or not and this was the limited question which could have been gone into by the Election Tribunal. He tried to draw a distinction in the phraseology of Rule 22(2) and Rule 48-C. Rule 22(2) provides:- "The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, rejected any nomination on any of the following grounds, namely - (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified to be chosen to fill the seat under the Act or is disqualified for being chosen to fill the seat under the Act; or (b) .................." Rule 48-C on the other hand uses only the words "was not qualified to be nominated as a candidate.". On the distinction of the phraseology between the two rules it was submitted that whereas the Returning Officer was given the authority to reject a nomination paper on both these grounds, namely, that he was not qualified to be chosen and also on the ground that he was disqualified for being chosen, whereas Rule 48 does not provide for the latter contingency. We are, however, not impressed by this argument. The rules are framed for carrying out the intention of the Act. The relevant portion of Sec. 6-K a quoted above specifically provides for a disqualification for being chosen or for being a member or Chairman. In other words if a candidate comes within the purview of Sec. 6-K he is not entitled to be chosen or for being a member of the Committee. It is in this -context that the rules have to be interpreted. Viewed from this angle there seems to be no manner of doubt that the language used in Rule 48-C is comprehensive enough to include even such candidates who are disqualified under Sec. 6-K. In this view of the matter the first submission made by the learned counsel has no substance.;