MANGLA RAM Vs. SITAL DASS

JUDGEMENT

(1.) APPELLANT-defendant No. 1 Mangla Ram has preferred this appeal under Section 46 (1) of the Rajasthan Municipalities Act, 1959 (here in after referred as Act of 1959) against the judgment dated 7. 04. 2003 passed by the learned District Judge, Pali. The learned District Judge, Pali vide judgment dated 7. 04. 2003 allowed the election petition filed by the respondent No. 1-plaintiff Shital Das against the appellant-defendant No. 1 and set aside the election of appellant, declaring him, ward member for ward No. 10 of Municipal Council, Pali. After setting aside the election of the appellant, the court below also declared plaintiff-respondent No. 1 as elected ward member for the ward No. 10 of Pali Municipal Council.

(2.) BRIEF facts of the case are that election for the ward members for Municipal Council, Pali were held on 26th Nov. , 1999. Counting took place on 27th Nov. , 1999. The appellant was declared elected by margin of one vote only. The respondent No. 1 challenged the election petition of the appellant by filing election petition under Section 34 of the Act of 1959. Election of the appellant was principally challenged on two grounds. First ground is that one of the children of the appellant born after 27th Nov. 1995 and before that date appellant already had more than two children. As per clause (xiv) of Sec. 26 read with proviso (e) of Act of 1959, a person who has more than two children and one is born after 27th Nov. 1995 then such person incurs disqualification to contest the municipal election. Second ground is that, when appellant and the respondent No. 1, both secured equal votes then the respondent No. 1 submitted application for recounting of the votes upon which the returning officer ordered recounting of the votes of the appellant and respondent No. 1 only but after recounting, one of the vote of another candidate Amba Lal was counted in favour of appellant and he was declared elected by margin of only one vote. There were other grounds also, but those grounds were not passed by the respondent No. 1-plaintiff before the court below.

(3.) THE Trial Court after evidence and opportunity of hearing to both the parties held that defendant had five children and at the time of filing of nomination paper he had one child born after 27th Nov. , 1995, which was the cut out date and, therefore, the appellant was disqualified to contest the election and his nomination paper was wrongly accepted by the Returning Officer. THE issues No. 2 and 3 about the election being in violation of rules and wrong allotment of election symbol to the returned candidate were not pressed by the plaintiff, therefore, decided against the plaintiff-respondent No. 1 THE court below further held that when in first counting plaintiff Shital Dass secured 452 votes and returned candidate-appellant secured only 451 votes then the plaintiff Shital Dass should have been declared elected, by not doing so, the returning officer committed error in counting and declaring appellant as elected and consequentially, the Trial Court decided issue No. 5 in favour of the plaintiff and declared him as elected ward member from ward No. 10 of the Municipal Council, Pali.