SARFARAZ AHMAD KHAN Vs. ELECTION TRIBUNAL AND OTHERS

JUDGEMENT

(1.) The appellant, Sarfaraz Ahmad Khan filed a writ petition challenging an order of the Election Tribunal whereby his election as Chairman, Town Area, Bugarasi district Bulandshahr, was set aside. For the said office of Chairman there were three candidates, the appellant Sarfaraz Ahmad Khan, and respondent Nos. 2 and 3, Mohammad Abdul Salam Khan and Ausaf Ahmad Khan. The appellant secured 1265 votes while the second and the third respondents secured 780 and 703 votes respectively. The appellant was declared elected. Thereafter Mohammad Abdul Salam Khan, respondent No. 2 filed an election petition. The election petition was allowed on the ground that the appellant was disqualified from being chosen as Chairman in view of the provisions of Sec. 6-K of the Town Area Act inasmuch as he had been dismissed from service under the Delhi Police Force. The Election Tribunal further directed respondent No. 2 to be declared elected. The writ petition filed by the appellant was dismissed. The learned Single Judge also set aside the order of the Tribunal directing respondent No. 2 to be declared elected and directed the Tribunal to decide the question as to whether respondent No. 2, was entitled to be declared elected or not in the light of the observations made by him in the judgment. Against this judgment two appeals have been filed. Sarfaraz Ahmad Khan filed Special Appeal No. 34 of 1973 while Mohd. Abdul Salam Khan filed Special Appeal No. 36 of 1973.

(2.) Learned counsel for Sarfaraz Ahmad Khan has made two submissions in support of his appeal. Firstly that under Rule 48-C the Election Tribunal had jurisdiction to set aside the election of a candidate elected as a Chairman only on the ground that he was not qualified to be nominated as a candidate. It was urged that the words "not qualified to be nominated as a candidate" do not include the person who was disqualified for being chosen. According to him the question as to whether any candidate was fit for being chosen as a candidate exclusively fell within the jurisdiction of the Returning Officer and it could not be made the subject-matter of an election petition. Secondly that the appellant could not be said to be a dismissed servant within the meaning of Sec. 6-K of the Act. With regard to the first submission it is to be pointed out that Sec. 6-K of the Act which provides for the disqualification in this regard is in these terms:-

(3.) Learned counsel for the appellant placed reliance upon Sec. 6-J and Sec. 8-A(l) of the Act. The relevant portion of Sec. 6-J provides that:-