M.L. Chaturvedi, J. - (1.) THIS is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the order of the Sub -Divisional Officer passed on an election petition under the Panchayat Raj Act and also that a writ of mandamus be issued directing the Sub -Divisional Officer to decide the election petition in accordance with law.
(2.) THE Petitioner and the first Respondent were the candidates for election to the office of Pradhan of Gaon Sabha of village Faridaha, Pargana, Khanpur, district Ghazipur. The Petitioner's nomination paper was rejected by the returning officer on the ground that the Petitioner not having attained the age of thirty years was not qualified for election as Pradhan of the Gram Sabha. The first Respondent was then declared as the duly elected Pradhan. The Petitioner filed an election petition in which the same question was raised and the election tribunal held that the Petitioner had failed to prove that he had attained the age of thirty years. The Learned Counsel for the Petitioner has argued that the returning officer had no authority to reject the Petitioner's nomination paper because the Petitioner's age was entered in the family register as more than thirty years. For this he has relied on S. 6 A of the Panchayat Raj Act. and R. 5 (2) of the rules framed under that Act. S. 6A of the Act says that if any question arises as to whether a person has become subject to any disqualification mentioned in S. 5, 5A or 5B or in sub S (1) of S. 6, the question shall be referred to the prescribed authority for decision and his decision shall, subject to the result of any appeal, be final. The contention of the Learned Counsel is that this section applies even to election proceedings and if after a nomination has been made and an objection is raised that one of the parties to the petition was not qualified to seek election, the election tribunal should stay its hands and refer the matter for decision to the prescribed authority who is the District Magistrate of the District. The argument is that S. 5A says that the disqualifications mentioned in that section are disqualifications for being chosen, nominated or appointed to any post in the Gaon Sabha, and it is argued that these disqualifications are disqualifications for election also and therefore, all these matters are to be decided by the prescribed authority Under Section 6A of the Act. If this is the interpretation it would be in conflict with the provisions of S. 12C of the Act. Section 12C says that the election of a person shall not be called in question except by an election petition. It also lays down the grounds upon which an election petition can be filed and the ground mentioned in Clause (b) is that the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper or by gross failure to comply with the provisions of this Act or the rules. This shows that an election petition can be filed on the ground that the nomination paper was improperly accepted or rejected. The election tribunal has to consider whether this was so or not, and if it comes to the conclusion that the nomination paper was improperly accepted or rejected and that this acceptance or rejection has materially affected the result of the election, it is bound to grant the election petition. No authority is needed for the proposition that if a person not qualified to seek election files his nomination paper then the nomination papers should be rejected and the function is of the returning officer to scrutinise the nomination papers. R. 18 C of Chapter 1 D of the Rules is important and sub R. (2) of that Rule says that the returning officer may reject any nomination on the ground that the candidate is not qualified to be chosen to fill the seat or that he is disqualified for being chosen to fill the seat Under Section 5 A of the Act.
(3.) THE duty has been cast on the returning officer to decide whether the candidate is qualified under the Act or he suffers from any of the disqualifications mentioned in Section 5 A of the Act. If the intention of the legislature was that the returning officer should not look into the matter at all and should at once refer the question for decision by the prescribed authority, R. 18C, sub R (2) would not have been worded in the manner it is worded. I think that the operation of S. 6 A of the Act should be confined to cases where the question arises during proceedings other than election proceedings. The subject of election has been separately dealt with in the Act and also in the Rules and when any question arises as to whether the returning officer or the election tribunal have acted legally or not, the provisions that are to be seen are the provisions of the Act concerning elections. Coming now to R. 4 A of the Rules the position appears to be somewhat similar to the one described above. The Chapter in which the Rule occurs in Chapter 1 B and it is headed as Register of Members. It provides for the preparation of a register of each village in two parts. A members' register is first to be prepared and then it is to be published. Claims and objections then can be filed u/R. 4 H. They are disposed of by the Tahsildar u/R. 4 J, and R. 5 then says that on receipt of a copy of the order passed u/R. 4 J the Secretary of the Sabha shall cause the register to be amended accordingly sub R. (2) is as follows: The Register of Members as amended in sub R. (1) shall be republished in the manner specified in the R. 4 F. The Register so republished shall be final.;