AHMAD Vs. MOHAMMAD UMAR

JUDGEMENT

(1.) THIS is an appeal by one Ahmad under sec. 46 of the Rajasthan Municipalities Act, 1959 ( hereinafter referred to as the Act ) against a decision of the Civil Judge, Nagaur, acting as a Tribunal under sec. 34, dismissing his election petition challenging the election of Mohammad Umar respondent from ward No. 11 on the ground that the nomination paper of one Mohammad Sattar was improperly rejected. The appeal was contested on behalf of Mohammad Umar.

(2.) THE facts necessary to understand the dispute are briefly these. Mohammad Sattar filed nomination papers, one for election to ward No. 1 and another for election to ward No. 11. In both the nomination papers he gave his parentage, las Noor Mohammad. In the electoral roll his name appears at serial No. 205 where he is described as son of Noor Mohammad and is shown as residing in house No. 6758 in ward No. 11. THE following electors are shown as residing in this house: - S. No. Name 201 Noor Mohammad. 202 Hamila wife of Noor Mohammad. 203 Jafar son of Noor Mohammad. 204 Zaitun wife of Jafar. 205 Mohammad Sattar son of Noor Mohammad. 206 Bano, wife of Mohammad Sattar. At the time of the scrutiny of the nomination paper of Mohammad Sattar for ward No. 1 an objection was taken that the nomination paper was defective inasmuch as Mohammad Sattar was not the son of Noor Mohammad, but was the son of Akbar Khan. Mohammad Sattar admitted before the Returning Officer that he was the son of Akbar Khan no doubt, but alleged that he had been adopted by Noor Mohammad. At this it was pointed out to the Returning Officer that Mohammad Sattar's real brother Jafar had been adopted by Noor Mohammad and that no one could take in adoption more than one son. This contention prevailed with the Returning Officer and he came to the finding that Mohammad Sattar could not be the adopted son of Noor Mohammad because had already adopted Jafar. Another argument which appealed to the Returning Officer was that no proof of adoption was produced before him. He accordingly rejected the nomination paper of Mohammad Sattar on the ground that his parentage had been wrongly given in the nomination paper. After the rejection of Mohammad Sattar's nomination paper for ward No. 1 he left and his nomination paper for ward No. 11 was rejected for similar reasons. Abdul Gafoor one of the candidates from ward No. 11 took an objection to the validity of this nomination paper.

(3.) A comparison of the provisions of sec. 34 and sec. 44 of the Act with the corresponding provisions of the Representation of the People Act, 1951 as it stood when the Rajasthan Municipalities Act 1959 was enacted goes to show that the language of clauses (a) to (d) of sec. 34 has been borrowed from sec. 100 of the Representation of the People Act 1951 and that of clauses (e) and ( f) from that of sec. 101. The result of proof of grounds contained in clauses (a), (d), (e) and ( f ) of sec. 34 is the same under sec. 44 as that enacted under secs. 100 and 131 of the Representation of the People Act 1951. From this also it can be inferred that the Legislature intended that the consequences on proof of grounds contained in clauses (b) and (c) of sec. 34 should be the same as under sec. 100 of the Representation of the People Act 1951. Under the latter provisions an election shall be declared to be void if the Tribunal is of opinion that: " (b) that any corrupt practice specified in sec. 35 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or (c) that any nomination has been improperly rejected. " On behalf of the respondent it was also contended that the nomination paper of Mohammad Sattar was rightly rejected. I have perused the evidence on record with the help of the learned counsel for the parties. It is abundantly proved from this evidence that Mohammad Sattar who filed his nomination paper for ward No. 11 was residing in house No. 6758 and is the same person who was shown at serial No. 205 of the electoral roll of ward No. 11 as Mohammad Sattar son of Noor Mohammed. Some of the witnesses produced on behalf of the respondent alleged that Mohammed Sattar lives in the house of his father Akbar Khan. Akbar Khan lives in house No. 6745 in ward No. 11. He and members of his family are entered in the electoral roll at serial Nos. 165 to 172. Mohammed Sattar does not appear in the electoral roll as residing in this house. Before the Returning Officer there was no dispute about the identity of the person who had filed his nomination paper. The nomination paper was rejected on the ground that whereas he was the son of Akbar Khan he has given his father's name as Noor Mohammad in the nomination paper. The Returning Officer lost sight of the proviso to clause 12 (2) of the Rajasthan Municipalities Election Order which runs as follows: "provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name. . . . . . . . . . . . . . . . . . of any other particulars relating to the candidate. . . . . . . . . . . . . . . if the identity of the candidate. . . . . . . . . can otherwise be established beyond reasonable or doubt. "