GADHAVI GANESHBHAI BHURDANJI Vs. DOSHI RAMNIKLAL CHIMANLAL

JUDGEMENT

(1.) The petitioner whose election to the office of member of District Panchayat, Banaskantha has been set aside by the Election Tribunal [Civil Judge (J.D.)], Vav by its impugned order dated 8th September, 1997 seeks to challenge the validity of Rule 15(7) of the Gujarat Panchayats Election Rules, 1994, on the ground that it disqualifies the voter from contesting the election if the proposer is disqualified. It is also the petitioner's case that his proposer was not in fact disqualified because he was an octroi contractor of the Vav Gram Panchayat and not the District Panchayat and therefore, he had no interest in the District Panchayat.

(2.) . The learned Counsel appearing for the petitioner strongly contended that Sec. 30 of the Gujarat Panchayats Act, 1993 which lays down disqualifications of persons from being members of the Panchayat does not lay down that such person would be disqualified if his proposer is disqualified. It is, therefore, contended that Rule 15(7) is beyond the scope of S.30 and therefore, ultra vires and should be set at naught. It is further contended that Clause 23 of the terms and conditions of the octroi contract, which was given to the proposer of the petitioner, contemplated payment of the taxes of the District Panchayat and Taluka Panchayat, which would be due on the octroi actually collected by the said contractor. The proposer had, by separate agreement, undertaken to pay such amount to the District Panchayat as per the certified xerox copy of the agreement produced by the learned Counsel for the petitioner. The learned Counsel, therefore, submitted that there was no contract between the proposer and the District Panchayat, which would have disqualified the proposer from becoming a member of the District Panchayat.

(3.) Rule 15 of the said Election Rules provides for scrutiny of nomination papers. Under sub-rule (7) of Rule 15, a voter named in the certified copy of an entry made in the list of voters of the electoral division can rely upon such entry as conclusive evidence of his right to vote, unless it is proved that the candidate or, as the case may be, the proposer is disqualified, within the meaning of sub-S.(2) of S.28 of the Act, to contest the election. Under sub-rule (2)(b) of Rule 15, nomination paper can be rejected on the ground that the proposer is disqualified from subscribing a nomination paper. It will be clear from the provisions of Rule 15 that it does not lay down that the candidate who has filled in nomination, is disqualified if his proposer is disqualified. It only lays down that the nomination of such a candidate whose proposer is disqualified, is required to be rejected. Rejection of nomination form which does not comply with the requirements of the rule is altogether different from disqualification of the candidate, who has filled in that form. The fact that nomination form is rejected on any of the grounds including the ground that the proposer is disqualified, is not the same thing as saying that the candidate is disqualified under S.28(2) read with S.30. Rule 15(7) therefore is, in no way, in conflict with the provisions of S.28(2) or S.30, since it deals with altogether a different issue of validity of nomination papers and does not pronounce upon qualification of the candidate, who has filled in such nomination paper. There is, therefore, no substance in the challenge against the validity of the provision of Rule 15(7) of the said Rules.