RAMSWAROOP MANDAL Vs. M A Q AHSAN

JUDGEMENT

(1.) This application under Article 227 of the Constitution has been filed by a person who claims to be a voter of Rudpai Gram Panchayat. His prayer is that the order passed by the sole member of the Election Tribunal of Bhagalpur, dated the 5th June, 1961, be set aside, and consequently, the election held in pursuance of that order be also quashed.

(2.) The relevant facts are as follows: Nomination papers for the election of office-bearers of Rudpai Gram Panchayat were filed on the 29th February, 1960. Scrutiny was held, and the nomination papers of two candidates, viz., Mahendra Mehta and Siyalal Mehla, were rejected. Mahendra filed an objection under Rule 23 (4) of the Bihar Panchayat Election Rules, 1959 (hereinafter to be referred to as the Rules) before the Sub-Divisional Magistrate of Banka. By his order, dated the. 4th April, 1960, the Sub-Divisional Magistrate allowed the objection, and directed the nomination papers of not only Mahendra but also Siyalal to be accepted, Election was held on the 16th April, 1960, and Asarfi Das opposite party No. 6 in this case, was declared elected as Mukhiya. One Gudar Nath Pandey filed an election petition on the 6th May, 1960, before the Additional District Magistrate of Bhagalpur, who formed the Election Tribunal, and it was numbered as Election case No. 3 of 1960-61. The Tribunal called the election case to be an appeal, and disposed it of by its order, dated the 5th June, 1961, after hearing the petitioner as well as Asarfi Das, By that order, it allowed the petition, holding that the Sub-Divisional Magistrate, had no jurisdiction to accept the nomination paper of Siyalal, when he had not filed an objection under Rule 23 (4) of the Rules. Thereafter, an election was held on the 6th July, 1962, and Siyalal, opposite party No. 3, was declared elected as the Mukhiya. The petitioner has filed the present application on the 26th July, 1962.

(3.) The first point which Mr. Satayanand Kumar has argued on behalf of the petitioner is that there is no provision for an appeal against an order passed by a Sub-Divisional Magistrate under Rule 23(4), and hence the Additional District Magistrate had no jurisdiction to entertain an appeal. There seems to be no substance in this contention. It is true that the Additional District Magistrate had no jurisdiction to enertain an appeal, and it is difficult to see why he kept referring to the election case before him as an appeal. As the sole member of the Election Tribunal, however, it was within his jurisdiction to entertain an election petition. Mr. Kumar has urged that the appeal, as it was called by the Tribunal, cannot be treated as being an election petition. In support of this argument he has relied upon my decision in Kartik Mandal v. Inderdeo Singh, 1982 BLJR 761. That decision does not support learned counsel's contention. What I have laid down in that case is that the appeal, which was filed in that case, could not be treated as an election petition because, election not having been held, that was not the stage at which an election petition could be filed. In the present case, there is no donubt that Gudar Nath Pandey could file an election petition on the 6th May, 1960, because the election had already been held on the 16th April, 1960. The mere fact that the Election Tribunal referred wrongly to the election petition all through as an appeal is not at all material, It was actually, an election petition, and it is manifest that the Tribunal had full jurisdiction to entertain it.