MOHAMMAD ISMAIL Vs. ZAFAR MOHAMMAD

JUDGEMENT

(1.) THIS is an appeal by one Mohammad Ismail whose election to the Kotah Municipality was set aside by the District Judge, Kotah, on an election petition file by 10 electors under sec. 19 of the Rajasthan Town Municipalities Act, 1951.

(2.) THE general election to the Kotah Municipality took place on 26. 7. 59. THE nomination papers of four candidates who stood for election from the Chandghate South Ward were accepted by the Returning Officer. THEse candidates were Mohammad Ismail Kishanlal, Insaf Ali and Mohammad Hussain. Kishanlal subsequently withdrew from the contest. According to the result of the election declared on 27. 7. 59 Mohammad Hussain polled 408 valid votes and Mohammad Ismail polled 411 valid votes. Mohammad Ismail was accordingly declared elected. Against his election the present election petition was filed by 10 of the electors under sec. 19 of the Rajasthan Town Municipalities Act 1951. THE four candidates were impleaded as respondent Nos. 1 to 4. Mohammad Ismail contested the petition. THE learned District Judge allowed the petition holding that six ballot papers Nos. 1142, 1272, 1279, 1313, 1332 and 1333 were improperly rejected by the Returning Officer. THE ballot papers were counted as valid votes for Mohammad Hussain who was accordingly declared as duly elected. Against the decision of the learned District Judge the present appeal has been filed. It has been contested by Mohammad Hussain.

(3.) COMING now to the second point that Mohammad Ismail's ballot paper was accepted in contravention of Rule 15 of the Rajasthan Town Municipal Election Rules 1951 and that as he was the returned candidate the result of the election was materially affected a preliminary objection was taken on behalf of the appellant that the respondents having given up the point in court below it is not open to them to agitate it in appeal. In my opinion this preliminary objection has no force.