NISAR AHMAD Vs. ADDITIONAL COMMISSIONER JODHPUR DIVISION

JUDGEMENT

(1.) This is an application by Nisar Ahmad under Article 226 of the Constitution of India. The applicant stood as a candidate for election from Ward No. 8 to the Municipality of Jodhpur. Haqiquatullah, opposite party, was a rival candidate for the same ward. The dates for filing nominations were February 21 and 22, 1951 and the date for scrutiny was February 23. The applicant put in his nomination on February 22. On February 23 an objection was raised to the applicant's nomination By Haqiquatullah. This objection was rejected on the same day but the Officer-in-charge, Election, gave detailed reasons for the rejection by his order, dated February 24, 1951.

(2.) Thereafter Haqiquatullah made an appeal against the order accepting the applicant's nomination to the Additional Commissioner who accepted the appeal on the 7th of March 1951 and Held that the nomination of the petitioner was bad and rejected his nomination paper. The applicant made an application for review before the Additional Commissioner on the ground that he had no jurisdiction to interfere with the order of the Officer-in-charge of Elections with respect to nominations but the review application was rejected. Thereafter the applicant preferred a revision before the Minister in charge of Local Self- Government in which he again raised the point of jurisdiction. The then Minister set aside the order of the Additional Commissioner and restored the order of the Officer-in-charge, Elections. Thereafter Haqiquatullah filed a review application. In the meantime, there had been a change in the Ministry and the new minister allowed the review application and set aside the order of the former minister and upheld the order of the Additional Commissioner rejecting the nomination paper of the applicant. Thereupon the present application was made in this Court under Article 226 of the Constitution of India. The main contention of the applicant here is that the order of the Officer-in-charge. Elections accepting his nomination paper could not be questioned in any manner except by an election petition and therefore, this Court should set aside the order of the Additional Commissioner and the minister in charge.

(3.) The application has been opposed by the State of Rajasthan as well as by Haqiquatullah. It is not necessary to set out the reply of the State in detail because that reply is a Justification of the unjustifiable. Learned counsel appearing for the State has admitted that there is no provision in the Jodhpur Municipal Act for filing an appeal against an order under Section 27 by which the Officer-in-charge of Elections accepts the nomination paper of a candidate and rejects the objections filed against it. The position is so that the learned Counsel could not do otherwise. In this view of the matter, we do not think it necessary to examine in detail the various orders passed by the Additional Commissioner and the two ministers. It is enough to say that though the learned. Additional Commissioner tried to show in the order which he passed on the review application how he had jurisdiction, he contented himself by showing that he had jurisdiction against an order passed under Section 21-A, which no one ever disputed and said nothing about his jurisdiction to set aside an order under Section 27. accepting a nomination and rejecting objection to it, which had been done by his first order of the 7th of March. We agree with the view taken by the first minister in his order dated 24th of April, It is only necessary to refer to Rajasthan City Municipal Appeals (Regulation) Act (Act No. III of 1950) in this connection to clear any misapprehension that the order under Section 27 was open to appeal or revision under that Act. It is enough to say that this Act mainly provides for forum for municipal appeals. Section 3 of the Act says that wherever any Municipal law provides for a Municipal appeal, the appeal shall lie to the Commissioner. Therefore, this Act, did not create any right of appeal but merely provided that the appeals under the existing Municipal Acts would lie to the Commissioner. Section 4 of the Act forbids a second appeal but provides revisory powers in Government. But this is only in cases which are open to appeal or cases in which orders have been passed by a Municipal authority. The Officer-in-charge of Elections cannot, in our opinion, be called a Municipal authority within the meaning of this Act and therefore, there was no power of revision in the Government either.