KASHI PERSAD Vs. DASRATH AND OTHERS

JUDGEMENT

(1.) The petitioner and Dasrath, opposite party no. 1 were two rival candidates for the office of the Pradhan of village Dih Koeran, in district Banaras, in an election which was held on the 28th of Dec., 1955. The petitioner was duly elected by defeating the opposite party no. 1 by twenty-one votes. An election petition was filed before the S. D. O. of Gayanpur, challenging the validity of the election of the petitioner by the opposite party no. 1. Two grounds were urged by the opposite party no. 1. Firstly, it was contended that the petitioner was below thirty years of age and as such, disqualified to be elected a Pradhan and his nomination was wrongfully accepted. Secondly, it was contended that the petitioner indulged in corrupt practice and undue influence and consequently the whole election was void. The S. D. O. did not accept the allegation of the opposite party no. 1 that corrupt practice and undue influence extensively prevailed at the election. But he came to the conclusion that the petitioner was aged below' thirty years. The petitioner had produced a certificate from the Civil Surgeon, Banaras, to the effect that the age of the petitioner was between thirty-two and thirty-five years on the 26th of June, 1955 when the nomination papers were filed. On the findings that the petitioner was aged below thirty years, the S. D. O. allowed the election petition and set aside the election of the petitioner.

(2.) This is a petition under Art. 226 of the Constitution challenging the order of the S. D. O. setting aside the election of the petitioner. The main contention raised by the petitioner is that in view of the provisions of Sections 12-C, 6-A and R. 14 of the Panchayat Raj Act, the S. D. O. had no jurisdiction to decide the question relating to the age of the petitioner. Notices were issued to the opposite parties and a counter-affidavit has been filed in which it is stated that the question was not raised before the S. D. O. that the matter should have been referred to the Tahsildar and it is denied that the S. D. O. had no power to go into the question of age. Sec. '5-A of the Panchayat Raj Act provides that a person shall be disqualified for being chosen, nominated or appointed to, and for holding any office in the Gaon Sabha or the Gaon Panchayat, or the Nyaya Panchayat constituted under Sec. 42, if he-

(3.) Sec. 5-B of the said Act provides that a member of a Gaon Sabha shall not be qualified to be chosen as Pradhan unless he is not less than thirty years of age. Sec. 6-A of the Act provides that if any question arises as to whether a person has become subject to any disqualification mentioned in Sec. 5, 5-A or 5-B or in sub-Section (1) of Sec. 6, the question shall be referred to the prescribed authority for the decision and his decision shall, subject to the result of any appeal as may be prescribed, be final, and the name of the person shall, if necessary, be struck off from the register of members. Sec. 9 then provides for the preparation of the register of members and Sec. 11-B provides for the election of Pradhan. Sec. 12-C provides that the election of a person as Pradhan of a Gaon Sabha or as member of a Gaon Panchayat including the election of a person who may be appointed as a Panch of a Nyaya Panchayat under Sec. 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that-