SATYANARAYAN SHRIVALLABH Vs. BHAGWANTRAO MAROTIRAO

JUDGEMENT

(1.) THE facts giving rise to this petition briefly are that the petitioner and opponent No. 1 were candidates at the election held in Walgaon electoral division for electing councillors of the Zilla Parishad for the Amravati District. The election was held on 27th May 1962. The result of the election was declared on 1st June 1962 and the petitioner was declared to be elected. On 15-6-1962 opponent No. 1 filled an election petition in which he challenged the election of the petitioner. Opponent No. 1 also joined in his election petition opponents 2 to 10, who had originally stood as candidates, but who had withdrawn from the election before the date appointed in this behalf, i. e. , 12-5-62. On 24-7-1962 the petitioner filed his written statement in reply to the election petition. In his statement he contended that opponent No. 1 was not competent to file the election petition as he was not a voter in Walgaon constituency. On the same day he made an application that a preliminary issue should be framed regarding the maintainability of the election petition. Opponent No. 8, who is also a voter in the constituency, then made an application for being transposed as petitioner No. 1. Another application for the same purpose was made on 4-10-1962. That application for transposition was opposed by the petitioner. His objections were overruled and the learned Assistant judge allowed the application of opponent No. 8 to be transposed as petitioner No. 1. The order is being challenged before us.

(2.) SUB-SECTION (1) of Section 27 of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961, states that if the validity of any election of a councillor is brought in question by any person qualified to vote at the election to which such question relates, such person may at any time within fifteen days after the date of the declaration of the results of the election, apply to the District judge of the district within which election has been held for the determination of such question. Under this sub-section, the validity of an election can be brought in question by any person qualified to vote at the election to which such question relates. It is not in dispute that opponent No. I who had filed the election petition, was not qualified to vote in the constituency from which the petitioner was declared elected and it is the election from this constituency which is sought to be challenged by the election petition. Mr. Chandurkar has therefore contended that as opponent No. 1 was not qualified to note at this election, the petition filed by him could not have been entertained under sub-section (1) of Section 27. Mr. Mandlekar, who appears on behalf of the respondents, has on the other hand contended that the language used in sub-section (1) of Section 27 suggests that the procedure laid down in this sub-section is to be followed only if the validity of the election is questioned by a voter. He has contended that this provision does not debar another interested person from filing an election petition. This argument is not correct. Sub-section (2) and (3) of this section. Sub-section (2) states that an enquiry shall thereupon be held by a judge. The word "thereupon" in the context means on the filling of a petition under sub-section (1 ). This is further made clear by sub-section (1), in which the validity of the election of councillors to represent the same electoral division is in question, shall be heard by the same judge and the applications in which the validity of the election of the same councillor elected to represent the same electoral division is in question, shall be heard together. Sub-section (2) and (3), therefore, leave no doubt that the enquiry, which is to be held by the judge is an enquiry into the applications made under sub-section (1 ). Under sub-section (1) it is only the person qualified to vote at the election who can apply to the District judge. It follows that a voter in the constituency in which the election is held, and no other person can file an election petition under Section 27. In this connection, I may refer to the observations of the Supreme Court in Mallappa Basappa v. Basavaraj Ayappa, 1959 SCR 611 : (AIR 1958 SC 698) that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. See also Jagan Nath v. Jaswant Singh, 1954 SCR 892 : (AIR 1954 SC 210 ).

(3.) MR. Mandlekar has also urged that the word "election" in sub-section (1) of Section 27 should be held to refer to the election of all the councillors from the district and not only to the election in the constituency in regard to which the dispute arises. This argument seems to be without any substance. The words "the election to which such question refers" have reference to the particular election of a councillor, whose election is challenged. If therefore, the election of any councillor is challenged, the questions, which can be determined in the enquiry, will relate only to that particular election and not to the elections from the other constituencies in the district.