RANAWAT, J. - (1.) THIS is an appeal by Baneysingh, a successful candidate, at the election of the Municipality, Bharatpur, from Ward No. 2, against the judgment of the District Judge, Bharatpur, of the 19th of August, 1953, declaring his election to be invalid.
(2.) AN election petition was filed by Gangasahai in the court of the District Judge, Bharatpur, challenging the validity of the election of Baney Singh who was declared elected from Ward No. 2 of the City of Bharatpur. The petition was based on a number of grounds, one of which was that Baney Singh was below 21 years of age at the time the electoral rolls were prepared and he was therefore hot qualified to vote at or to stand for the election. Baneysingh's plea on this point was that he was above 21 years of age at the time of the preparation of the electoral rolls. After holding an enquiry, the learned District Judge, Bharatpur, held that Baneysingh was below 21 years of age even on the date the election was held, and he was therefore not qualified to vote at the election or to stand for it. His election was therefore set aside and it was ordered that the votes for Shri Gangasahai and other candidates be computed afresh and whoever was found to have secured the greatest number of valid votes should be declared to be duly elected. Baneysingh has come to this Court in appeal under sec. 19 (2) of the Rajasthan Town Municipalities Act of 1951 (hereinafter to be referred to as the Act) and the following points of law have been urged on his behalf - (1) that the entries in the electoral rolls were final and their correctness could not be challenged in an election petition. The name of Baneysingh was on the electoral rolls of Ward No. 2 of the City of Bharatpur and he was, therefore, qualified to contest the election. (2) that the lower court had no jurisdiction to declare another candidate elected in place of Baneysingh after computing afresh valid votes. The District Judge, if he came to the conclusion that the election of Baneysingh was invalid, should have set aside the entire election. A preliminary objection was raised by the opposite party that as no appeal was filed by Baneysingh against the final order passed by the District Judge, declaring Gangasahai elected he could not agitate the second point noted above in this appeal. The District Judge, while setting aside the election of Baneysingh proceeded to mention in the same order the manner in which the votes of other candidates were to be computed by him and the mode of declaring another candidate elected. What remained to be done after this by the District Judge was to count the votes and to declare such person elected as he obtained the greatest number of valid votes in accordance with the terms of his previous order. Technically, therefore, though Baneysingh might have filed another appeal from the order of the District Judge declaring Gangasahai elected in his place, yet as the manner and mode of declaring other candidate elected were already given in the previous order of the District Judge by which Baneysingh's election was set aside, he cannot be debarred in this appeal from challenging the principles underlying the computation of votes and declaration of another candidate elected. The preliminary objection is therefore disallowed. It has been argued by learned counsel of the appellant that correctness of entries in an electoral roll could not form the basis of an election petition filed under sec. 19 of the Act, because an election petition is provided to question only the validity of an election and in the meaning of the term "election" preparation of the electoral roll could not have been contemplated by the Act. Sec. 19 (5) of the Act runs as follows - ''if the validity of the election is brought in question only on the ground of an error by the officers charged with carrying out or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election. " In the Explanation to this sub-section it is further provided that - "the expression "error" in this sub-section does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or the rules made thereunder whereby the result or election has been materially affected. " Sec. 205 (2) (b) of the Act provides as follows inter alia - "in particular and without prejudice to the generality of the foregoing power the Government may make rules or orders - (a) x x x x x (b) x x x x x (i) x x x x (ii) for prescribing the qualifications of voters and of candidates, (iii) for preparing and revising the lists of voters from time to time fixing the date after which no application for enrolment, in any such list under preparation or revision shall be recorded and prescribing the restrictions, if any, on the number of votes which a voter may give. " It would be noticed that preparation and revision of electoral rolls is one of the subjects on which the Government is authorised to make rules under sec. 205 (2) (b ). It is clear from the language used in sub-sec. (5) of sec. 19 that the validity of an election can be brought into question even on the ground of an error by the officer or officers charged with carrying out the rules made under sec. 205 (2) (b ). It however precludes the judge from setting aside the election, unless the case is covered by the explanation. The explanation apparently divides 'errors' into two viz. , those that materially affect the result of the election and those which do not and shows that an ''error" which materially affects the result of the election is not an "error" as defined in sub-sec. (5 ). Such an "error" not coming under sub-sec. (5) can be made a ground for attack in an election petition under sec. 12 (1) and the Judge would be at liberty to pass any order authorised by sub-sec. 19 (2 ). By R. 6 (1) of the Rajasthan Town Municipal Election Rules, 1951, it has been enjoined on a Returning Officer to prepare a list of voters showing the persons entitled to vote in the municipality or where it has been divided into wards for electoral purposes, in each ward. By R. 5 (2) (b) among the qualifications of voters it has been specified that a person shall not be entitled to be enrolled i|n the list of voters if he has not attained the age of 21 years. By R. 6 (1) a duty is cast on the Returning Officer to enter the names of all such persons off the locality as are of 21 years of age or above on the prescribed date. In case, such officer entered the name of a person who was below 21 years of age in the electrol roll this would amount to an error by such officer in carrying out the rules made under sec. 205 (2) (b) of the Act. The objection of Gangasahai in his election petition regarding the age of Baneysingh was in connection with an error by the Returning Officer in the preparation of the electoral rolls. The confusion is that in view of the language of sec. 19 (5) of the Act correctness of the entries of an electoral roll can be challenged in an election petition. Though the learned advocate of the petitioner has advanced an argument on the basis of the meaning of the term "election" appearing in sec. 19 (1) of the Act, yet as the point raised by him has been answered fully by the implication of the language used in sec. , 19 (5) of the Act, we do not think it necessary to examine at length the meaning of the term ''election" generally. As the regards the second point, we would like to refer to the provisions of sec. 19 (2) of the Act which are as follows : " (19) (2 ). The Judge may, after such enquiry as he deems necessary, and subject to [the provisions of sub-sec. (3), pass an order confirming or amending the declared result of the election or setting the election aside. For the purpose of the said enquiry, the Judge may summon or enforce the attendance of witnesses and compel them to give evidence as if were a Civil Court and he may also direct by whom the whole or any part of the costs of such enquiry shall be paid. If the costs are to be paid by the candidate whose election is contested the whole of such costs, and if the costs are to be paid by the petitioner or petitioners such portion, if any, of the costs as is in excess of the sum paid at the time of the presentation of the application, shall be recoverable as if it had been awarded in a suit under the Code of Civil Procedure, 1908. The said Code of Civil Procedure shall, as far as possible, be followed in such enquiries. An appeal shall lie to the High Court from the order of the Judge, provided it is only on a point of law and is preferred within one month from the date of such order exclusive of the time requisite for obtaining a copy of the order. If the Judge sets aside an election a date shall forthwith be fixed and the necessary steps taken for holding a fresh election. "
(3.) IT would be noticed that after holding an inquiry on an election petition the Judge having jurisdiction over the District has been authorised to pass an order - (1) Confirming the election, (2) Amending the declared result of the election, or (3) Setting the election aside. In the present case, the learned Judge has set aside the election of Baneysingh and he has after computing the valid votes cast in favour of the remaining candidates declared another candidate elected in his place. This order of the learned Judge falls in the scope of the second category referred to above which it was competent for him to make. It has been urged on behalf of the petitioner that by making an order declaring another candidate elected the learned Judge has ignored the valid votes which were cast in favour of Baneysingh for which it is difficult to forecast as to which other candidate would have secured them in the event of Baneysingh being disqualified from contesting at the election. The decision in S. Gopala Ayyangar and another vs. M. K. Mahomed Ibrahim Rowther and others (1) (A. I. R. 1925 Mad. 1119.) has been referred to in support of this argument. In the aforesaid case the learned Judges have placed their reliance on the observations of Mr. Justice Kennedy in an English case of Hobbs vs. Morey (1904) I. K. B. 74. It has been observed as follows: - "if a voter throws away a vote by ignoring something which he could have known and which have told him that he was throwing away his vote because he was giving it for a person who could never succeed in the election, then his vote has to be taken as wiped out of the election, and if there are enough of such votes to destroy the majority, the man who has the next highest number of votes can be declared duly elected; but if the votes were given in ignorance of the disqualification under which the candidate of his choice was in fact labouring, then it would be inequitable to allow the votes to be thrown away for that reason and the only proper course is to order a fresh election. " The principle which has been enunciated in the Madras case noted above is an equitable principle which is of great importance and which should serve for the guidance of such tribunals. We would have applied it as it cannot be said in this case that the voters voted for Baneysingh knowing him to be below 21 years of age. But the provisions of sec. 19 (3) stand in our way. It run as follows: - "3 (a ). The Judge, if satisfied that a candidate has, within the meaning of sub-sec. (4), committed any corrupt practice for the purpose of the election, shall declare the candidate disqualified both for the purpose of that election and of such fresh election as may be held under sub-sec. (2) and shall set aside the election of such candidate if he has been elected. 3 (b ). If in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall, after a scrutiny and computation of the votes recorded in favour of each such candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected. " The learned counsel is not right in saying that the impugned order is not covered by the provisions of sec. 19 (3) (b ). Under that provision an order can be made only where an election is in dispute between two or more candidates, and in the present case, there was such dispute between two or more candidates. We would like to note that the two provisions of sub-sec. 3 (a) and (b) are not exhaustive and it cannot be said that any order which does not fall within the scope of sec. 19 (3) (a) and (b) would be ultra vires, as, for example, in a case where an election petition is filed by a voter against a person elected without contest on the ground that he was below 21 years of age and could not be enrolled as a voter. Under these circumstances, the order of the learned Judge is in conformity with sec. 19 (3) (b) and must be upheld. This appeal therefore fails and is dismissed with costs. . ;