TYAGI, J. - (1.) THIS is a miscellaneous election appeal filed under sec. 46 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act') and is directed against the order of the learned Munsiff Magistrate, Beawer dated 23rd June, 1972, whereby the learned Munsiff allowed the election petition of respondent No. 1 and set aside the election of the petitioner and in his place declared respondent No. 1 as duly elected member of the Beawer Municipal Council from Ward No. 2, thereof.
(2.) THE general election for Beawer Municipal Council were held on 25th October, 1970. Petitioner Lala Maharaj and respondent No. 1 were the candidates from Ward No. 2 and both of them secured equal votes i. e. 320 votes each. THE Returning Officer after drawing lots under clause 56 (c) of the Rajasthan Municipalities Election Order, 1960, declared Lala Maharaj as duly elected candidate from ward No. 2 of the Municipal Council, Beawer. THE election of Lala Maharaj was then challenged by respondent No. 2 mainly on the ground that one of the votes was illegally accepted and counted in favour of Lala Maharaj and therefore, his election may be declared as void and in his place Ramcharan, who was the petitioner, before the learned Munsiff may be declared duly elected. After the trial of the election petition the learned Munsiff held that the Presiding Officer illegally cancelled the ballot paper bearing Serial No. 00337, issued to a blind voter and in its place issued another ballot paper bearing Serial No. 00335 which was cast in favour of Lala Maharaj. According to the averment made in the petition the former ballot paper which was said to have been illegally cancelled by the Presiding Officer, was marked by the Presiding Officer at the instance of the voter for Ramcharan but lateron the said ballot paper was cancelled at the request of the voter and another ballot paper was issued to her and was then marked in favour of Lala Maharaj and thus according to the respondent No. l, who was the petitioner before the learned Munsiff, the ballot paper bearing serial No. 00335 could not be counted in favour of Lala Maharaj. In view of this averment it was prayed that Ramcharan be declared as duly elected from ward No. 2 as he secured one vote more than Lala Maharaj. THE learned Munsiff recorded the finding that the ballot paper bearing Serial No. 00337 was illegally cancelled by the Presiding Officer and the second ballot paper issued to the same voter, cannot, therefore, be taken to a valid vote. In this view of the matter, the learned Munsiff set aside the election of Lala Maharaj and declared respondent No. 1 Shri Ram Charan as duly elected member from Ward No. 2 to the Municipal Council Beawer. This appeal has been filed by Lala Maharaj challenging the order passed by the Munsiff, mainly on two grounds; (l) that the learned Munsiff sitting at Beawer had no jurisdiction to entertain, and hear the election petition because the Civil Judge with head-quarters at Ajmer has been directed by the State Government under Notification of 1-6-1970, published in the Rajasthan Rajpatra of 2-6-1970, to sit at Beawer as is apparent from Column No. 5 of the said Notification. That notification was issued by the State Government under the powers conferred by sub-sec. (1) of sec. 7 read with sub-sec. (1) of sec. 12 and sub-sec. (1) of sec. 16 of the Rajasthan Civil Court Ordinance, 1950? (2) That the judgment of the trial court recording cancellation of vote on ballot paper bearing S. No. 00335 is ex-facie, erroneous because the ballot paper issued to the same voter was spoilt as it was marked in a manner different from the desire of the voter. Election petitions are presented in accordance with sec. 40 of the Act which reads as follows : "sec. 40 : Who shall hear petition - (1) An election petition may be presented to and shall be heard by - (a) the District Judge sitting at the place where the Municipal office is situated, (b) where there is no such District Judge, the Civil Judge so sitting, or (c) any other Judge specially appointed by the State Government for the purpose. " The State Government by issuing a notification No. F. 1 (48)LGS/a/59 dated 19. 4. 1961, appointed the Munsiffs having headquarters at the place of any such office of the Municipal Board to entertain and hear the election petitions filed under sec. 40 of the Act. This notification reads as follows : - "in exercise of the powers conferred by cl. (c) of sub-sec. (1) of sec. 40 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act No. 38/1959), the State Government hereby directs that the elections in respect of the Municipal Boards the Offices whereof are not situated at the headquarters of the District Judge or the Civil Judge shall be heard by the Munsiff, having headquarters at the place of any such office or where there is no such Munsiff the Civil Judge having jurisdiction in the area. " Mr. Mridul submits that the Munsiff can exercise its jurisdiction under clause (c) of sub-sec. (1) of sec. 40 of the Act under the said notification only when the Civil Judge does not sit at a place where the office of the Municipal Board is located. Since the Civil Judge with headquarters at Ajmer has been specifically directed by the State Government to have the sitting of his Court at Beawer, the Munsiff posted at Beawer cannot exercise his jurisdiction under sec. 40 by virtue of the notification dated April 19, 1961. He also argued that the notification of April 19, 1961 shall govern the election petitions in respect of the Municipal Boards alone and not in respect of the Municipal Council, since the Beawer Municipality is a council, therefore, the Munsiff cannot assume jurisdiction to entertain and hear election petition under the said notification. Mr. Bhargava appearing on behalf of respondent No. 1, on the other hand, argued that the word "sitting" appearing in clause (b) of sub-sec. (1) of sec. 40 cannot mean the Civil Judge sitting occasionally. According to him, this expression means that the Civil Judge must sit permanently or normally at the place where the Municipal office is situated otherwise he cannot exercise his jurisdiction if he sits at such place occasionally.
(3.) THE word 'sitting' can be interpreted to me that the Civil Judge holds his court at that place. We have, therefore, now to see whether in the scheme of sec. 40, a Civil Judge, who occasionally sits at a place of the headquarters of the Municipal Boards or councils, is also empowered by this provisions to entertain and hear the election petition by excluding the Munsiff, who by virtue of the notification of the State Government dated April 19,1961, is also conferred with the jurisdiction to entertain and hear such election petitions. In this connection it will be relevant to refer the notification issued by the State Government while appointing Civil Judge, Ajmer with headquarters at Ajmer, enjoying his jurisdiction through out the territory of Ajmer District with a specified instructions that he would sit at three places namely, Ajmer, Beawer and Kishangarh. In this notification the State Government has specifically mentioned that the headquarters of the Civil Judge will be at Ajmer but in column No. 5, 'place (s) of sitting' the names of Ajmer, Beawer and Kishangarh have been mentioned. From this column there is no doubt that the Civil Judge has a place of sitting at Beawer also and I am told by the learned counsel for the petitioner that the learned Civil Judge sits for 10 days in a month at Beawer. Whether this sitting for 10 days in a month at Beawer would confer jurisdiction on him to entertain and hear the election petition under sec. 40 of the Act. Looking to the scheme of sec. 40, the jurisdiction to entertain and hear the election petition is given to the District Judge, if the Municipal Office is situated in a place where the District Judge sits or hold his court and under clause (b) if there is no District Judge at that place then to the Civil Judge if he sits or holds his court in the town where the Municipal office is situated. But the question that has to be determined is that if the District Judge or Civil Judge hold his court occasionally in that town even then shall be entitled to entertain and dispose of the petitions under this provision of the law or not. The words 'sitting' as pointed above can be interpreted to mean holding the court. A District Judge or Civil Judge enjoying jurisdiction over the entire District can hold his court anywhere within his jurisdiction but if he occasionally sits at some place it is difficult to say that he holds his court within the meaning of sec. 40 at the place where he occasionally sits. He holds the court normally at his headquarters though looking to the exigency of work the District Judge or the Civil Judge is competent to sit at any place within his jurisdiction. Therefore, while interpreting the expression 'so sitting' in sec. 40 (1) (b) we shall have to see whether the Civil Judge holds his court regularly and normally at the places where the headquarters of the Municipal Board or Council is situated. In my opinion the scheme of sec. 40 can be read to mean that the jurisdiction to entertain and hear the election petition to a Civil Judge is given only for that place if the Headquarters of the Municipality is situated in that place where the court is headquartered and where the Civil Judge normally sits. If he is required to sit under the orders of the Government at places other than his headquarters then those places in my opinion, will not be covered under clause (b) of sub-sec. (1) of sec. 40 of the Act and simply because the Civil Judge holds his court at the place other than his headquarter, he will have the jurisdiction to entertain and dispose of the election petition at those place or places also where he occasionally sits by virtue of sec. 40 (1) (b ). It was next argued by Mr. Mridul that notification dated April 19, 1961, referred to above confers jurisdiction on the Munsiff only in respect of the election of the Municipal Boards and not of Municipal Council as the words used in the said notification are "municipal Boards" which according to Mr. Mridul is a term entirely different from the expression "municipal Council" as used in the Act. Both these expressions 'municipal Board and Municipal Councils' have been defined by the Act. It is true that the expression Municipal Boards carries a different connotation than the expression 'municipal Council', but in sec. 3 (8) of the Act the Legislature has put an explanation, which has great relevance to dispose of the point raised by Mr. Mridul. This explanation reads as follows : - "explanation - References in any provision of this Act other than clauses (2) and (15) of this section ; sub-secs. (1), (2) & (3) of sec. 65, sec. 73, sec. 308, sec. 310 and sec. 311 to a Board or Municipal Board or to a member or officer or servant of Board or a Municipal Board or to the Chairman, Vice-Chairman or Executive Officer of a Board or a Municipal Board shall, in the case of a city, be construed as being references respectively to a council or a Municipal Council or to a councillor, officer or servant of a Council or a Municipal Council or to the President, Vicepresident or Municipal Commissioner of a Council or a Municipal Council unless such Construction is repugnant to the subject or context;" This explanation makes it clear that except for certain clauses mentioned in this explanation a Municipal Board for the purposes of this Act shall be synonymous to the expression 'municipal Council' and if the context so requires, the words 'municipal Board' can be read as Municipal Council. Keeping this explanation in view if the notification issued by the State Government on April 19, 1961, conferring jurisdiction on the Munsiff to entertain and dispose of election petition in respect of the elections of the Municipal Board is read then we can conveniently read that the Munsif, by virtue of this notification has been empowered to entertain and dispose of election petition in respect of the elections of the Municipal Councils also. In view of this provision of the Act where the Municipal Council has been explained by the Legislature itself to mean Municipal Board, I donot find any life in the contention raised by Mr. Mridul. ;