SARAT KUMAR ACHARYA Vs. MAHESH PRASAD SAHU

JUDGEMENT

(1.) The Additional District Judge, 3rd, Court at Chaibassa, acting as an Election Commissioner, has, by his order dated the 13th September, 1971, passed in Miscellaneous (Election Petition) Case No. 1 of 1968, set aside the election of the petitioner as a Commissioner of Seraikella Municipality at the instance of the opposite party. The latter has also been declared as duly elected by the same order. The petitioner has obtained a rule from this Court under Section 115 of the Code of Civil Procedure against the opposite party to show cause why the order aforesaid be not set aside. Cause has been shown on his behalf.

(2.) A notification dated the 19th, July, 1967 was issued by the Deputy Commissioner of Singhbhum under Rule 7 of the Bihar Municipal Elections and Election. Petitions Rules, 1953, hereinafter called the Rules, notifying that the election of Commissioners in all the Wards of the Seraikella Municipality within the district of Singhbhum would be held on 19-9-67. A copy of this notification is Ext. J. According to the programme published, the petitioner as well as the opposite party filed their nomination papers to contest the election to the office of the Commissioner from Ward No. 2. The nomination papers of both were accepted by the Returning Officer on the 24th of August, 1967. The opposite party objected to the acceptance of the nomination paper of the petitioner on the ground that he was in arrears of municipal tax for his house situated in Ward No. 2 of the Seraikella Municipality and as such he was not eligible to be elected as a Commissioner under sub-clause (vii) of Rule 6 (b) of the Rules. The Returning Officer overruled the objection and accepted the nomination paper of the petitioner. Poll was held on 19-9-67 at which the petitioner was duly elected; the opposite party was defeated at the election. Thereafter he filed the Election Petition in accordance with Rules 63 to 65 of the Rules. The election of the petitioner was challenged before the Election Commissioner only on two grounds-- (i) that the petitioner was disqualified for the election and his nomination paper has been improperly accepted as a result of which the election has been materially affected and (ii) that the petitioner had indulged in corrupt or illegal practice, in that his voters had been taken to the booths in his conveyance.

(3.) The Court below has held that the allegation of corrupt practice could not be substantiated at all. But on the first ground it has declared the election of the petitioner void, and since the opposite party was the only candidate left thereafter in the field, he has been declared duly elected as Commissioner of Seraikella Municipality from Ward No. 2. The petitioner has come up in revision to this Court. 3-A. A preliminary objection was raised on behalf of the opposite party that the revision application is not maintainable since the learned Additional District Judge acting as an Election Commissioner is not a Court subordinate to the High Court within the meaning of Section 115, C, P. C. Learned Counsel for the petitioner pointed out that the application was one under Article 227 of the Constitution of India also. But that apart, in my opinion, the decision of this Court in Abdul Razak v. Kuldip Narain, AIR 1944 Pat 147, holding that the Election Commissioner appointed under the Bihar District Board Electoral Rules is a Court subordinate to the Court within the meaning of Section 115 is still a good law and has not yet been overruled alter the advent of the Constitution. The preliminary objection is, therefore, repelled.