GOVINDLAL Vs. BHANWARLAL

JUDGEMENT

(1.) THIS is an appeal by one Govindlal whose election to ward No. 3 of Kapasin Municipality has been set aside by Munsif, Kapasin, acting as a Tribunal under sec. 40 of the Rajasthan Municipalities Act, 1959. The appeal has been contested by Bhanwarlal respondent No. 1, who filed the election petition. 2. Four persons filed their nomination papers for being elected to this ward. Out of them two withdrew their candidature and only Govindlal and Bhanwarlal contested the election. Govindlal was declared duly elected. Bhanwarlal filed the present election petition on a number of grounds. It was allowed on the ground that Govindlal and his election agent Ganeshlal published a pamphlet Ex. 1 which contained a false allegation in relation to the personal character or conduct of Bhanwarlal and which prejudiced his election. 3. The election petition was presented to the Munsif, Kapasin and was tried by him. Sec. 40 of the Act runs as follows: " 40 Who shall hear] petition (1) An election petition may be presented to and shall be heard (a) the District Judge sitting at the place where the municipal office is situated, (b) where there is no such District Judge, the Civil Judge so sitting, or (c) any other Judge specially appointed by the State Government for the purpose : Provided that, where an election petition is presented as aforesaid to a District Judge, he may for reasons to be recorded in writing transfer the same for hearing and disposal to a Civil Judge subordinate to him and sitting at the place where the municipal office is situated. (2) The District Judge or Civil Judge or any other Judge to whom an election petition is presented or transferred and by whom it is heard in accordance with the provisions of sub-sec. (1) is hereinafter referred to as the Judge. " 4. In exercise of the powers conferred by clause (c) of sub-sec. (1) the State Government published the following notification: No. F. 1 (48) LSG/a/59in exercise of the powers conferred by clause (c ). of sub-sec. (1) of sec. 40 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act No. 38 of 1959), the State Government hereby directs that the election petitions in respect of the Municipal Boards the offices whereof are not situated at the headquarters of the District judge or the Civil Judge shall be heard by the Munsif, having headquarters at the place of any such office, or where there is no such Munsif, the Civil Judge having jurisdiction in the area. " 5. It was in pursuance of the above notification that the Munsif entertained this election petition and tried it. The first contention on behalf of the appellant is that only a District Judge or a Civil Judge could try the petition and not a Munsif. It is urged that cls District Judge and (a) and (b) of sub-sec. (1) of S. 40 refer to trial of a petition by a a Civil Judge respectively and the proviso to cl. (c) also refers to a Civil Judge and it should be inferred from this that the legislature intended that either a District Judge or a Civil Judge alone should be appointed u/cl. (c) and not a Munsif. I am unable to accept this contention. "munsif" is an Urdu expression for Judge and a Munsif is a Judge inferior in rank to a Civil Judge. A Munsif can be appointed under sec. 40 (1) (c) of the Act by the State Government. 6. The next contention is that a separate order should be passed by the State Government in each case. In support of the argument stress is laid on the expression "for the purpose" occurring in clause (c) and reliance is placed on the following two decisions Gour Chandra vs. Public Prosecutor, Cuttack (1), K. G. Anjaneyalu vs. Puri Municipality (2 ). The expression "in this behalf" came up for interpretation in the above two cases. But the interpretation was based on the context in which the expression was used. In Gour Chandra vs. Public Prosecutor, Cuttack (1) sec. 198-B (3) (a) came up for interpretation which runs as follows: " 198-B (3) (a ). No complaint under sub-sec. (1) shall be made by the Public Prosecutor except with the previous sanction; (a) in the case of the President or the Vicepresident or the Governor of a State, of any Secretary to the Government authorised by him in this behalf. " 7. It was held that there were two restrictions placed on the power of the Public Prosecutor to lodge a complaint with respect to defamation of a high dignitary such as the Governor. The first was that he must have been given a sanction to lodge such complaint and the second was that the sanction should be accorded by a Secretary to the Government, authorised by the Governor in this behalf. It was observed: " THIS means that the Governor has first to consider for himself whether the alleged defanatory statement is of a kind of which he should take notice and seek to vindicate himself or whether the defamatory statement being of a trivial nature or having been made by an irresponsible person or for some other reason should be ignored. THIS decision has to be taken by the Governor himself and as we read the section, we are unable to say that he can leave it to some other person or an authority like the Government to decide whether a complaint should be lodged or not. " 8. In the present case the legislature left it to the Government to appoint a Judge to try an election petition arising out of an election to a municipality where no District Judge or Civil Judge is posted at the place where the office of the municipality is located. Before making an appointment in a particular case it is not necessary for the Government to apply its mind to the facts of the election petition. As such it is open to it to nominate a Judge by a general order of the nature contained in the notification referred to above. 9. Next it was contended that the notification only empowered the Munsif to hear the petition and did not empower him to entertain it. Sec. 40 (1) (c) authorises the State Government to appoint a Judge not only for hearing the petition but also for receiving it. In my opinion the intention of the State Government was that the officers appointed under the notification should not only hear the petitions but also receive them. 10. Coming now to the merits of the case the pamphlet in question runs as follows: *** 11. The contention on behalf of the appellant is that the above pamphlet did not contain an attack on the personal character of Bhanwarlal but only attacked his public or political character. Reference was made to the observations contained in the following two decisions. Inder Lal vs. Lal Singh (3), Khubchand Baghel vs. Vidyacharan Shukla (4 ). In my opinion the pamphlet contains an attack on the personal character of Bhanwarlal. A reading of the pamphlet as a whole leads to the inference that Bhanwarlal who was elected as an independent candidate on the basis of his assurance to the electorate that he would oppose the Congress toed congress line, on account of monetary gain. Such monetary gain could only have been made illegitimately. Such an insinuation involves moral turpitude and cannot merely be regarded as an attack on the political or personal character of the candidate. 12. Lastly it was urged that it has not been established beyond reasonable doubt that pamphlet Ex. 1 was published by Govindlal candidate or his election agent Ganeshlal or by some other person with their consent. Twenty witnesses were examined in this connection on behalf of Bhanwarlal. Nineteen of them stated that the pamphlet was distributed by Govindlal or Ganeshlal. Eighteen of these witnesses were regarded by the learned Munsif as partisan witnesses and the remaining two who are police men were regarded as independent witnesses. Out of them Aziz Mohammad stated that one of these pamphlets was given to him by Ganeshlal and he had handed over that pamphlet to Sangram Singh. Sangram Singh corroborated Aziz Mohammad. Of course Sangram Singh did not see Ganeshlal handing over the pamphlet to Aziz Mohammad, but his evidence is of value as it goes to show that the pamphlet was given to Aziz Mohammad at about the time when he stated in court that it was given to him and that Aziz Mohammad told Sangram Singh that Ganeshlal had given it to him. Fifteen of the witnesses examined on behalf of Bhanwarlal produced one pamphlet each. A perusal of the statements of these witnesses goes to show that the learned Munsif rightly relied on their evidence. 13. I accordingly see no reason to interfere with the finding of the Tribunal and dismiss the appeal. In the circumstances of the case, I direct that parties shall bear their own costs of this appeal. 14. Leave to file special appeal was sought but is declined.