BHANWAR SINGH Vs. CIVIL JUDGE JODHPUR

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution by one Bhanwar Singh against an order of Civil Judge, Jodhpur, acting as a Tribunal under the Rajasthan Panchayat Samitis and Zila Parishads (Election Petition) Rules, 1959 declaring Sohan Singh respondent as a duly elected Pradhan under rule 9 (2) (b).

(2.) THE election of the Pradhan of the Panchayat Samiti Jaisalmer was held on 11.1.61. THE nomination papers of four persons were accepted for this office - Bhanwar Singh, Sohan Singh, Guman Singh and Arjun Singh. Guman Singh and Arjun Singh withdrew their candidature and Bhanwar Singh and Sohan Singh contested the election. Bhanwar Singh polled 22 votes and Sohan Singh polled 14 votes. As a result, Bhanwar Singh was declared as elected. Sohan Singh filed an election petition against the election of Bhanwar Singh on the ground that the latter was below 25 years, of age on the date of filing his nomination paper. He also prayed that he may be declared elected in place of Bhanwar Singh. THE Tribunal held that Bhanwar Singh was below 25 years of age and set aside his election. It also declared Sohan Singh as duly elected in place of Bhanwar Singh under rule 9(2) of the Election Petition Rules. THE relevant portion of rule 9(2) runs as follows : - "If the Judge finds that the election of any person was invalid, he shall either - (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate." It is contended on behalf of the petitioner that the discretion conferred on the Tribunal under the above provision is a judicial discretion which is to be exercised in accordance with the provisions of the Rajasthan Panchayat Samitis and Zila Parishads, Act 1959 and the rules framed thereunder and where the Act and the rules are silent, in accordance with the general law relating to elections. It is pointed out that under rule 9 (7) (a) of the Rajasthan Panchayat Samitis and Zila Parishads (Election of Pradhan, Up-Pradhan, Pramukh and Up-Pramukh) Rules, 1959, the Returning Officer is only empowered to declare the candidate securing largest number of valid votes to have been elected and the Tribunal cannot, in exercise of the powers conferred under rule 9 (2) (b) of the Election Petition Rules, declare a candidate to be elected who has not secured the largest number of valid votes. Further that in the absence of any evidence to show that the voters were aware of the disqualification of Bhanwar Singh to stand for election, the votes cast for him are valid votes as his nomination paper was duly accepted by the Returning Officer. It is contended that it was Bhanwar Singh who polled a majority of valid votes and not Sohan Singh and Sohan Singh could not therefore have been declared to be duly elected under rule 9 (2) (b) of the Election Petition Rules. For the last proposition reliance is placed on the decision of their Lordships of the Supreme Court in Keshav Lakshman vs. Dr. Deorao (1), on the decision of a Full Bench of the Madras High Court in Gopala Ayyangar vs. Mahomed Ibrahim Rowther(2) and on the observations made in Article 549 of Volume 14 of Halsbury's Laws of England, Lord Simonds Edition.