- (1.) The petitioner Jamak Lal, respondent in election petition No.1/2005 pending in the court of Additional District Judge No.1, Udaipur, has preferred this writ petition challenging the orders dated 30.01.2006 (Annex.7 & 8) rejecting two applications submitted by the petitioner respectively under Sections 34 and 35 of the Rajasthan Municipalities Act, 1959 read with Order 7 Rule 11 of the Code of Civil Procedure and under Section 41 (1) of the Rajasthan Municipalities Act, 1959 (the Act) read with Order 7 Rule 11 of the Code of Civil Procedure (CPC).
(2.) Brief facts relevant for determination of the questions involved in this writ petition are that the respondent Ajay Kumar (referred herein as election petitioner) has submitted an election petition under Section 36 of the Act questioning election of the petitioner Jamak Lal as Member of Ward No.43 of the Municipal Council, Udaipur in the elections held on 24/25.11.2004. The election petition has been submitted on various grounds as stated in Para 5 of the election petition, including the grounds of improper refusal to 47 voters to cast their votes for their names being found in the electoral rolls of Ward No.43 as well as Ward No.50; and of improper reception of bogus votes. The election petitioner has also alleged in the election petition that on his conference with the Returning Officer on 18.12.2004 he had admitted depriving the voters from casting their votes in Ward No.43 at the instructions of the Zonal Magistrate; and such dialogue between the election petitioner and the said Presiding Officer was tape-recorded and the transcription of such recording has been annexed with the election petition as Annexure-36 whereas the audio cassette containing such record has been annexed with the election petition as Annexure-37.
(3.) The present petitioner moved two applications aforesaid with the submissions in the first application (Annex.3) that the grounds stated in the election petition do not make out any cause of action for maintaining the petition and the grounds as stated in Para 5 of the election petition do not answer to any of the grounds envisaged by Section 34 and 35 of the Act on which the election of the petitioner could be called in question. This application was replied by the election petitioner with the submissions that refusing to receive valid votes and so also permitting bogus polling remain material grounds; and the Officer concerned having accepted such acts has also been stated in the election petition; and the petition was, therefore, competent.;