SHER SINGH Vs. HIRA LAL AND

JUDGEMENT

(1.) THIS writ petition has been filed praying that the order dated 2nd August, 1973 passed by the Prescribed Authority-cum-sub-Divisional Magistrate, Dehra Dun, setting aside the election of the petitioner as Pradhan of village Enfield Grant be quashed. The petitioner contested the election for the office of Pradhan and for that purpose filed his nomination paper on 25th of April, 1972. No objection having been filed against the nomination paper, it was accepted. Election took place on 25th of May, 1972 and the petitioner, having secured the largest number of votes, was declared elected. Respondent no. 1 then filed an election petition challenging the election of the petitioner mainly on the ground that he was below 30 years of age on the date on which the nomination paper was filed and he was, therefore, not qualified to be chosen as Pradhan. The Prescribed Authority, who dealt with the election petition, accepted that contention and, vide his order dated 2nd August, 1973, allowed the petition and declared invalid the election of the petitioner as Pradhan of the Gaon Sabha. It is against that order that the present petition is directed. Learned Counsel for the petitioner contended that the Prescribed Authority acted on the provisions contained in section 12-C of the Panchayat Raj Act (hereinafter called the 'Act') in order to set aside the election. Learned counsel urged that, since no objection was filed against the nomination paper submitted by the petitioner, the authority concerned rightly accepted the nomination paper. Learned counsel added that in the circumstances it could not be held that the nomination paper of the petitioner was improperly accepted, nor could the election of the petitioner be set aside on that ground. Reference in this connection was made by the learned counsel for the petitioner on a single judge decision of this Court in case of Doodhnath Prasad v. Mulchand and others (A.I.R. 1958 Alld. 7.). It must be conceded that the observations contained in the aforesaid case lend some support to the contention raised by the learned counsel for the petitioner. We, however, find that the learned Single Judge for his conclusion relied on a declaration of the Supreme Court in the case of Durga Shanker Singh v. Raghuraj Singh and others (A.I.R. 1954 S.C. 520). In that case the Supreme Court was interpreting the provisions contained in section 100(1)(e) and (2)(c) of the Representation of the People Act, 1951. The provision contained in section 100 (2)(c) of the Representation of the People Act is in parimateria with that contained in section 12-C of the U.P. Panchayat Raj Act. The Supreme Court accepted in that case that when no objection is filed against the nomination paper before the Returning Officer, the Returning Officer has to accept the nomination paper is valid and in such a case it cannot be said that the nomination paper was improperly accepted. The Supreme Court, however, proceeded to say; "It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. In our opinion Mr. Sen is right that a case of this description comes under sub-section (2)(c) of section 100 and not under sub-section (1)(c) of the section as it -really amounts to holding an election without complying with the provisions of the Constitution, and that is one of the grounds specified "In clause (c) of sub-section (2). The expression "non-compliance with the provisions of the Constitution" is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all." In view of the aforesaid pronouncement of the Supreme Court we are unable to agree with the view expressed in case Doodh Nath Prasad v. Mool Chand and others (Supra), that the decision of the Returning Officer on the question of qualification of disqualification of a candidate is final and that the Election Tribunal cannot examine such question. There is nothing in section 12-C (b) (ii) of the Act which bars the Election Tribunal from enquiring into the qualification or disqualification of a candidate. Learned counsel for the petitioner then contended that, in any case the Election Tribunal committed an error in placing reliance on the school certificate as opposed to the statement of the father of the petitioner, the electoral roll and the horoscope. Learned counsel stressed that the Prescribed Authority should have placed reliance on the evidence of the further of the petitioner and on the horoscope which conclusively established the fact that the petitioner was above thirty years of age on the date on which the nomination paper was filed. It was not disputed before us that, according to the school certificate, the petitioner was not thirty years of age on the date on which the nomination paper was filed. The Prescribed Authority had before it on one side the school certificate and on the other side the electoral roll and the horoscope. So far as the statement of the petitioner's father is concerned, the least that can be said is that it was very confusing. It was open to the Tribunal to place reliance either on the school certificate or on the electoral roll and the horoscope to reach a conclusion on the point of age. If the Prescribed Authority, in the exercise of its description, preferred to rely on the school certificate, it cannot be said that he committed any manifest error warranting interference by this Court in the exercise of writ jurisdiction. No other contention having been raised, we find that the petition has no merits and must fail. The petition accordingly, fails and is hereby dismissed. No order, however, is made as to costs.