Hari Swarup, J. - (1.) (for self and for K. S. Varma, J.):-This petition has been filed to challenge the order of the Sub-Divisional Officer passed under Section 12-C of the Panchayat Raj Act for the election of the Pradhan of the Gaon Sabha Saraiya Ojhipur. The election was upheld. Two persons filed nominations. One was Ram Autar the petitioner and the other was Mahabir, respondent no. 3. Nomination of Mahabir was rejected and Ram Autar was declared elected. Mahabir filed an election petition under Section 12-C of the Panchayat Raj Act challenging the election on the ground that his Domination paper had been improperly rejected.
(2.) SECTION 11-B of the Act provides for the election of a Pradhan. According to sub-section (1) of Sec. 11-B the Pradhan has to be elected by the members of the Gaon Sabha from amongst themselves in such manner as may be prescribed. According to the Rules framed under the Act, the District Magistrate has to supervise the conduct of elections subject to the control of Nirvachan Nirdeshak Panchayat. For each Sabha there has to be a Nirvachan Adhikari (Returning Officer) who shall be such officer of Government as the District Magistrate may designate or nominate. Sahayak Nirvachan Adhikari with equal powers can be appointed by the District Magistrate under SECTION 11-C of the Act. The Tribunal hearing the petition under SECTION 12-C of the Act found that the District Magistrate had appointed Block Development Officer, Aliya as Nirvachan Adhikari and he in turn appointed one Lata Ram Saxena, Sahayak Vikas Adhikari, as Sahayak Nirvachan Adhikari. He was the person who received the nomination papers and found that the nomination paper of respondent no. 3 could not be accepted as he was a disqualified person within the meaning of SECTION 5-A of the Panchayat Raj Act as he was in arrears of some 'tax, fee or rate' due by him to the Gaon Sabha for the period prescribed. The Tribunal held that because Data Ram Saxena had not been appointed by the District Magistrate as contemplated by Rule 16-C he had not the authority either to accept or reject the nomination papers. After this finding he did not proceed to decide the main issue in the case as to whether the nomination paper of respondent no. 3 was improperly rejected or not. He held that because the nomination papers had not been received by the proper authority, they must be held to have been wrongly accepted and rejected. On this basis, he set aside the election and directed a fresh election. It has been contended by the learned counsel for the petitioner that the Sub-Divisional Officer went beyond the scope of his authority under Section 12-C of the Act and was in error in setting aside the election without recording a finding that the election had been materially affected. The relevant portion of Section 12-C runs as under : "12-C (1) The election of a person as Pradhan of Gaon Sabha.........shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that - (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected'- (i) by the improper acceptance or rejection of any nomination ; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder." The ground on which the election in the present case was questioned was ground (b). The contention of the election petitioner was that the result of the election had been materially affected because his nomination paper had been improperly rejected. The finding of the Tribunal, in substance, is that there was gross failure to comply with the provisions of the Rules inasmuch as the nomination papers had been received, accepted and rejected not by the Nirvachan Adhikari but by a person who had not been appointed a Nirvachan Adhikari in accordance with law. After arriving at this finding, the election was set aside by the Sub-Divisional Officer without recording the further finding that the election had thereby been materially affected. In the present case, the person who had received the nomination papers and rejected that of the respondent no. 3 was only acting on behalf of the Nirvachan Adhikari because he had been appointed by him to assist him. It was, therefore, only a case of an irregularity in dealing with the nomination papers. Further, as there were only two candidates in the field and the nomination of one of them had been rejected, then the election could not be deemed to have been materially affected if that person was, in fact, disqualified from being a candidate at the election. Hence, for determining whether election had been materially affected, it was incumbent on the authority to determine whether the nomination paper had been improperly rejected, i. e., some one entitled to contest was not permitted to seek election. This is what is contemplated by condition (1) in clause (b) of sub-section (1) of Section 12-C. The authority has failed to determine if the rejection of the nomination paper was otherwise improper. He could not have set aside the election without a finding that respondent no. 3, viz., the election petitioner had been improperly prohibited from participating in the election. He had set aside the election without a finding that the election had been materially affected. The order of the Sub-Divisional Officer thus suffers from error both of jurisdiction and law.
(3.) IN the result, the petition is allowed. The order of the Sub-Divisional Officer passed in the election petition is quashed and he is directed to readmit the election petition and decide it afresh in the light of the observations made above. Costs on parties. As the election had taken place quite a long time back, the Sub-Divisional Officer should decide the matter without delay. This order may be communicated to the authority concerned forthwith. The stay order, if any, is vacated. Petition allowed.;