LALA MAHARAJ Vs. RAM CHARAN

JUDGEMENT

(1.) THIS is a miscellaneous election appeal filed under sec. 46 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act') and is directed against the order of the learned Munsiff Magistrate, Beawer dated 23rd June, 1972, whereby the learned Munsiff allowed the election petition of respondent No. 1 and set aside the election of the petitioner and in his place declared respondent No. 1 as duly elected member of the Beawer Municipal Council from Ward No. 2, thereof.

(2.) THE general election for Beawer Municipal Council were held on 25th October, 1970. Petitioner Lala Maharaj and respondent No. 1 were the candidates from Ward No. 2 and both of them secured equal votes i. e. 320 votes each. THE Returning Officer after drawing lots under clause 56 (c) of the Rajasthan Municipalities Election Order, 1960, declared Lala Maharaj as duly elected candidate from ward No. 2 of the Municipal Council, Beawer. THE election of Lala Maharaj was then challenged by respondent No. 2 mainly on the ground that one of the votes was illegally accepted and counted in favour of Lala Maharaj and therefore, his election may be declared as void and in his place Ramcharan, who was the petitioner, before the learned Munsiff may be declared duly elected. After the trial of the election petition the learned Munsiff held that the Presiding Officer illegally cancelled the ballot paper bearing Serial No. 00337, issued to a blind voter and in its place issued another ballot paper bearing Serial No. 00335 which was cast in favour of Lala Maharaj. According to the averment made in the petition the former ballot paper which was said to have been illegally cancelled by the Presiding Officer, was marked by the Presiding Officer at the instance of the voter for Ramcharan but lateron the said ballot paper was cancelled at the request of the voter and another ballot paper was issued to her and was then marked in favour of Lala Maharaj and thus according to the respondent No. l, who was the petitioner before the learned Munsiff, the ballot paper bearing serial No. 00335 could not be counted in favour of Lala Maharaj. In view of this averment it was prayed that Ramcharan be declared as duly elected from ward No. 2 as he secured one vote more than Lala Maharaj. THE learned Munsiff recorded the finding that the ballot paper bearing Serial No. 00337 was illegally cancelled by the Presiding Officer and the second ballot paper issued to the same voter, cannot, therefore, be taken to a valid vote. In this view of the matter, the learned Munsiff set aside the election of Lala Maharaj and declared respondent No. 1 Shri Ram Charan as duly elected member from Ward No. 2 to the Municipal Council Beawer.

(3.) THE word 'sitting' can be interpreted to me that the Civil Judge holds his court at that place. We have, therefore, now to see whether in the scheme of sec. 40, a Civil Judge, who occasionally sits at a place of the headquarters of the Municipal Boards or councils, is also empowered by this provisions to entertain and hear the election petition by excluding the Munsiff, who by virtue of the notification of the State Government dated April 19,1961, is also conferred with the jurisdiction to entertain and hear such election petitions. In this connection it will be relevant to refer the notification issued by the State Government while appointing Civil Judge, Ajmer with headquarters at Ajmer, enjoying his jurisdiction through out the territory of Ajmer District with a specified instructions that he would sit at three places namely, Ajmer, Beawer and Kishangarh. In this notification the State Government has specifically mentioned that the headquarters of the Civil Judge will be at Ajmer but in column No. 5, 'place (s) of sitting' the names of Ajmer, Beawer and Kishangarh have been mentioned. From this column there is no doubt that the Civil Judge has a place of sitting at Beawer also and I am told by the learned counsel for the petitioner that the learned Civil Judge sits for 10 days in a month at Beawer. Whether this sitting for 10 days in a month at Beawer would confer jurisdiction on him to entertain and hear the election petition under sec. 40 of the Act. Looking to the scheme of sec. 40, the jurisdiction to entertain and hear the election petition is given to the District Judge, if the Municipal Office is situated in a place where the District Judge sits or hold his court and under clause (b) if there is no District Judge at that place then to the Civil Judge if he sits or holds his court in the town where the Municipal office is situated. But the question that has to be determined is that if the District Judge or Civil Judge hold his court occasionally in that town even then shall be entitled to entertain and dispose of the petitions under this provision of the law or not.