- (1.) THIS is an appeal by one Ahmad under sec. 46 of the Rajasthan Municipalities Act, 1959 ( hereinafter referred to as the Act ) against a decision of the Civil Judge, Nagaur, acting as a Tribunal under sec. 34, dismissing his election petition challenging the election of Mohammad Umar respondent from ward No. 11 on the ground that the nomination paper of one Mohammad Sattar was improperly rejected. The appeal was contested on behalf of Mohammad Umar.
(2.) THE facts necessary to understand the dispute are briefly these. Mohammad Sattar filed nomination papers, one for election to ward No. 1 and another for election to ward No. 11. In both the nomination papers he gave his parentage, las Noor Mohammad. In the electoral roll his name appears at serial No. 205 where he is described as son of Noor Mohammad and is shown as residing in house No. 6758 in ward No. 11. THE following electors are shown as residing in this house: - S. No. Name 201 Noor Mohammad. 202 Hamila wife of Noor Mohammad. 203 Jafar son of Noor Mohammad. 204 Zaitun wife of Jafar. 205 Mohammad Sattar son of Noor Mohammad. 206 Bano, wife of Mohammad Sattar. At the time of the scrutiny of the nomination paper of Mohammad Sattar for ward No. 1 an objection was taken that the nomination paper was defective inasmuch as Mohammad Sattar was not the son of Noor Mohammad, but was the son of Akbar Khan. Mohammad Sattar admitted before the Returning Officer that he was the son of Akbar Khan no doubt, but alleged that he had been adopted by Noor Mohammad. At this it was pointed out to the Returning Officer that Mohammad Sattar's real brother Jafar had been adopted by Noor Mohammad and that no one could take in adoption more than one son. This contention prevailed with the Returning Officer and he came to the finding that Mohammad Sattar could not be the adopted son of Noor Mohammad because had already adopted Jafar. Another argument which appealed to the Returning Officer was that no proof of adoption was produced before him. He accordingly rejected the nomination paper of Mohammad Sattar on the ground that his parentage had been wrongly given in the nomination paper. After the rejection of Mohammad Sattar's nomination paper for ward No. 1 he left and his nomination paper for ward No. 11 was rejected for similar reasons. Abdul Gafoor one of the candidates from ward No. 11 took an objection to the validity of this nomination paper. After the rejection of the nomination paper of Mohammed Sattar election to ward No. 11 took place in which Mohammad Umar was declared as duly elected, having secured the maximum number of valid votes. This election was challenged by Ahmad appellant on the ground that the election was void as Mohammad Sattar's nomination paper was improperly rejected. The petition was contested by Mohammad Umar. Firstly, it was contended that as the correct parentage of Mohammad Sattar did not tally with the entry in the electoral roll his identity was not established. Secondly, it was contended that even if the nomination paper of Mohammad Sattar was improperly rejected the election could not be declared to be void on that ground without showing further that the result of the election was thereby materially affected. It was pointed out in the written statement that Mohammad Sattar could not stand as a candidate from two wards and it was alleged that he was a dummy for Abdul Gafoor. The learned Civil Judge held that the nomination paper of Mohommad Sattar was improperly rejected. He further held that the election of Mohammad Umar could not be held to be void merely on this ground without proof that on account of the rejection of the nomination paper of Mohammad Sattar the result of the election was materially affected. He found that Mohammad Sattar was a dummy for Abdul Gafoor and if his nomination paper had not been rejected he would have withdrawn his candidature from ward No. 11. He accordingly held that the result of the election was not materially affected and dismissed the election petition. On behalf of the appellant it is contended that the learned Civil Judge erred in interpreting the provisions of sec. 44 and that upon a proper construction, sub-sec. (4) of this (section, which runs - "the judge shall declare the election of a returned candidate to be void on any of the grounds specfied in cluses (a) to (d) of sec. 34. should be read as "the Judge shall declare the election of returned candidate to be void on any of the grounds specified in clauses (a) to (d ). It was pointed out that sec. 34 enumerates the grounds on which the election may be called in question. It stands to reason that if any of the grounds mentioned in sec. 34 is proved it will lead to some consequence. The consequences in respect of each of the grounds mentioned in sec. 34 are given in sec. 44 except for grounds (b) and (c ). Sec. 34 and 44 run as follows: - "sec. 34. Grounds on which election may be called in question.- The election of any person as member of a board may be questioned by an election petition on one or more of the following grounds namely : (a) that on the date of election a returned candidate was not qualified to be chosen to fill the seat under this Act, or (b) that any corrupt practice specified in section 35 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or (c) that any nomination has been improperly rejected, or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or (iii) by the improper reception, refusal or rejection of any vote which is void, or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes". Sec. 44. Decision of the Judges.- (1) At the conclusion of the trial of an election petition, the Judge shall make an order - (a) dismissing the election petition, or (b) declaring the election of all or any of the returned candidates to be void, or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. (2) At the time of making an order under sub-sec. (1), the Judge shall also make an order (a) where any change is made in the petition of any corrupt practice having been committed at the election, recording - (i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the cosent of, any candidate or his agent at the election and the nature of that corrupt practice, and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that corrupt practice, and (b) fixing the total amount of costs,payaable and specifying the persons by and to whom costs shall be paid : Provided that a person who is not a party to the election petition shall not be named in the order under sub-cl. (ii) of clause (a) unless - (a) he has been given notice to appear before the Judge and to show cause why he should not be so named, and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the Judge and has given evidence against him, of calling evidence in his defence and of being heard. (3) The Judge shall dismiss an election petition which does not comply with the provisions of section 36 or section 37 or section 53. (4) The Judge shall declare the election of a returned candidate to be void on any of the grounds specified in cls. (a) and (d) of sec. 34. (5) If, in the opinion of the Judge, the returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice specified in sec. 35, but the Judge is satisfied - (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent, (b) that all such corrupt practices were of a trivial and limited character or took the form of customary hospitality which did not affect the result of the election, (c) that the candidate and his election agent took all reasonable steps for preventing the commission of corrupt practices at the election, and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, the Judge may decide that the election of the returned candidate is not void. (6) If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected, the Judge, if satisfied as to the matters specified in clauses (e) and (f) of sec. 34, shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. (7) If during the trial of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then - (a) any decision, made by the returning officer under the provisions of this Act or any rules made thereunder shall, in so far as it determines the question between those candidates, be effective also for the purpose of the petition; and (b) in so far as that question is not determined by such a decision, the Judge shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote. (8) The Judge shall, after announcing the orders made under this section, send a copy thereof to such authority or officer, as may be appointed by the State Government for the purpose. (9) In sub-sec. (2) and (5) the expression 'agent' has the same meaning as in sec. 35. " Sec. 44 lays down what decision a Judge shall give if grounds (a), (d), (e) and (f) are established. It does not lay down what decision he shall give if grounds (b) and (c) are proved. Nor does any other provision of the Act lay down the consequences of proof of grounds (b) and (c ). In the Bill which was published before the Act was passed by the Legislature sub-sec. (4) of sec. 34 stood exactly as it stood in the Act which was passed by the Legislature. The learned counsel for the appellant therefore contended that in all probability there was a clerical error in drafting the Bill which was not noticed by the Legislature when it was passed. The ground in clause (b) is that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. Clause (c) is that any nomination has been improperly rejected. Clause (d) enumerates the grounds on which the election can be held to be void without proof that the result was materially affected on account of the existence of one or more of the grounds mentioned therein. Clause (d) (ii) contains the ground that the result of the election has been materially affected by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent. On this ground the election is to be held void under sec. 44 (4 ). It could not have been the intention of the Legislature that any corrupt practice committed by a returned candidate or his election agent or by someone else with their consent should not result in any consequence. In the same way clause (d) (i) contains the ground that the result of the election has been materially affected by improper acceptance of any nomination and sec. 44 (4) provides that the election is to be declared void on this ground. The Legislature could not have intended that ground (c) "that any nomination has been improperly rejected" should have no consequence. Improper rejection of a nomination is a much more serious affair than the improper acceptance of it. For if the nomination paper is improperly rejected it is impossible to prove that the result was materially affected thereby. In the Representation of the People Act, 1951 as originally enacted in 1951 the election could not be set aside on the ground of improper rejection of a nomination without proof that the result has been materially affected thereby. This Act was amended in 1956 and under the amended Act an election is to be declared void merely on proof that any nomination was improperly rejected. Lastly it was contended that the provisions contained in secs. 34 and 44 of the Act have been borrowed from the corresponding provisions contained in the Representation of the People Act, 1951,, as it stood after its amendment in 1956. On behalf of the respondent it was conceded that some error was made in drafting the Act. but it was contended firstly that it is not open to the Court to correct the error and secondly that it was not the intention of the Legislature in the Act that an election should be declared to be void merely on proof that a nomination was improperly rejected without proving that the result of the election was thereby materially affected. Having heard the learned counsel for the parties I am of the opinion that the only irresistible conclusion in the present case is that the Legislature intended that the election of the returned candidate should be declared to be void on any of the grounds specified in clauses (a) to (d) of sec. 34. Sub-sec. (4) of sec. 44 should therefore be read as if it contained the word "to" between clauses (a) and (d) instead of the word "and". On behalf of the respondent it was argued that the words of sec. 44 (4) are clear and unambiguous and there is no scope for interpreting them otherwise than literally. The following decisions were referred to in this connection : Rai Brinandan Prashad Vs. Mahabir Prasad (l) Nalinakhya Vs. Shyam Sunder (2) Hira Devi Vs. District Board Shahjahanpur (3), Amar Singhji Vs. State of Rajasthan (4 ). These cases are all distinguishable in my opinion. No inconsistency was created in them by putting the literal interpretation on the words of the statutes concerned. In the present case if the words of sec. 44 (4) are given literal meaning inconsistency is created between sec. 34 and sec. 44 as has been pointed out by the learned counsel for the appellant. Next it was argued on a behalf of the respondent that the intention of the Legislature to hold the election to be void on the ground of improper rejection of a nomination paper without proof that the result of the election was materially affected thereby cannot be inferred. I am unable to accept this argument. An examination of sec. 34 goes to show that the grounds on which, in the opinion of the Legislature, the election should not be set aside without proof that the result was materially affected thereby have been grouped together under clause (d ). The grounds on which the election is to be declared void without proof of material effect on the result were put before clause (d ). If the Legislature had intended that the election should not be held to be void merely on proof of improper rejection of a nomination it would have included this ground under clause (d) and not before clause (d ). As has been pointed out above it is not possible to prove that the result of the election has been materially affected by improper rejection of a nomination paper, but it could, be proved that it has been materially affected by the improper acceptance of a nomination. That is why an amendment in this behalf was made when the Representation of the People Act, 1951 was amended in 1956.
(3.) A comparison of the provisions of sec. 34 and sec. 44 of the Act with the corresponding provisions of the Representation of the People Act, 1951 as it stood when the Rajasthan Municipalities Act 1959 was enacted goes to show that the language of clauses (a) to (d) of sec. 34 has been borrowed from sec. 100 of the Representation of the People Act 1951 and that of clauses (e) and ( f) from that of sec. 101. The result of proof of grounds contained in clauses (a), (d), (e) and ( f ) of sec. 34 is the same under sec. 44 as that enacted under secs. 100 and 131 of the Representation of the People Act 1951. From this also it can be inferred that the Legislature intended that the consequences on proof of grounds contained in clauses (b) and (c) of sec. 34 should be the same as under sec. 100 of the Representation of the People Act 1951. Under the latter provisions an election shall be declared to be void if the Tribunal is of opinion that: " (b) that any corrupt practice specified in sec. 35 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or (c) that any nomination has been improperly rejected. " On behalf of the respondent it was also contended that the nomination paper of Mohammad Sattar was rightly rejected. I have perused the evidence on record with the help of the learned counsel for the parties. It is abundantly proved from this evidence that Mohammad Sattar who filed his nomination paper for ward No. 11 was residing in house No. 6758 and is the same person who was shown at serial No. 205 of the electoral roll of ward No. 11 as Mohammad Sattar son of Noor Mohammed. Some of the witnesses produced on behalf of the respondent alleged that Mohammed Sattar lives in the house of his father Akbar Khan. Akbar Khan lives in house No. 6745 in ward No. 11. He and members of his family are entered in the electoral roll at serial Nos. 165 to 172. Mohammed Sattar does not appear in the electoral roll as residing in this house. Before the Returning Officer there was no dispute about the identity of the person who had filed his nomination paper. The nomination paper was rejected on the ground that whereas he was the son of Akbar Khan he has given his father's name as Noor Mohammad in the nomination paper. The Returning Officer lost sight of the proviso to clause 12 (2) of the Rajasthan Municipalities Election Order which runs as follows: "provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name. . . . . . . . . . . . . . . . . . of any other particulars relating to the candidate. . . . . . . . . . . . . . . if the identity of the candidate. . . . . . . . . can otherwise be established beyond reasonable or doubt. " A feeble attempt was made by putting a question to Mohammed Sattar in cross-examination as to whether any Mohammad Sattar who was servant of Jafar was residing in Noor Mohammad's house. In reply he stated that he did not know. No witness of the respondent stated that there was any Mohammad Sattar living in Noor Mohammad's house other than the Mohammad Sattar who filed his nomination for ward No. 11. From the evidence on record it is clear that there was no doubt about the identity of Mohammed Sattar. . The finding of the learned Civil Judge that the nomination paper of Mohammad Sattar for ward No. 11 was improperly rejected is therefore correct. In view of my finding that the Intention of the Legislature was that the election should be declared to be void if it is proved that a nomination has been improperly rejected, I allow the appeal and set aside the election of Mohammad Umar respondent from ward No. 11. In the circumstances of the case, I direct that parties shall bear their own costs of this appeal. . ;