MAMTA JAIN Vs. PUSHAPLATA BANSAL

JUDGEMENT

(1.) THIS appeal has been preferred against the order dt. 05.02.2007 passed by the learned District Judge, Jalore as Election Tribunal (hereinafter referred to as "the Election Tribunal") in Civil Misc. Case (Election Petition) No. 47 of 2005, whereby, the election of the non -petitioner -appellant has been declared void and petitioner -respondent has been declared duly elected as Member of Ward No. 17 of the Municipal Board, Jalore. With the consent of the learned counsel for the parties, the appeal is finally heard. Brief facts of the case, are that the State Government declared elections of Municipal Board, Jalore, which were held in the month of November, 2004. The petitioner -respondent Smt. Pushaplata Bansal and non -petitioner -appellant Smt. Mamta Jain both contested the election for Ward Member from Ward No. 17. On 25.11.2004, the counting of votes took place, in which, the non -petitioner -appellant secured 315 votes and petitioner -respondent secured 244 votes, therefore, the non -petitioner -appellant was declared elected by a margin of 71 votes. After declaration of the result, the petitioner -respondent preferred an election petition under Sec. 34 of the Rajasthan Municipalities Act, 1959 (for short "the Act of 1959") before the learned District Judge, Jalore with the allegation that the non -petitioner -appellant was holding salaried appointment under the Medical and Health Services, Government of Rajasthan. In this respect, it was alleged that the appellant was holding the post of Counselor in the Rajasthan AIDS Control Society controlled by the Directorate of Medical and Health Services, Government of Rajasthan, Jaipur. It was further stated in the election petition the non -petitioner -appellant took charge of that post by making an application on 11.12.2003 to the Principal, Medical Officer, Jalore and she was drawing the salary under the Administrative and Financial sanction issued by the Project Director, Directorate of Medical and Health Services, Rajasthan, Jaipur. In this way, the petitioner -respondent came up with the case that the non -petitioner -appellant was disqualified from contesting the election by virtue of the provisions of Sec. 26(viii) of the Act of 1959. It was prayed that the election of the non -petitioner appellant may be declared void and the petitioner -respondent be declared, as duly elected Ward Member from Ward No. 17 of Municipal Board, Jalore.

(2.) A reply to the Election Petition was filed on behalf of the non -petitioner -appellant (Returned Candidate) stating therein that she was not holding any salaried appointment under the Medical and Health Department, Government of Rajasthan as she was appointed as AIDS Counselor by a Non -Government Voluntary Organization Mahaveer International and for that services, she was not being paid any salary by the State Government. It was averred that the said Organization is neither controlled nor financed by the State Government, therefore, she was not disqualified to contest the election as Member of the Municipal Board, Jalore on the date of election. The rest of the averments made against her in the Election Petition were denied. A request was made to dismiss the election petition.

(3.) IN support of the pleadings, the plaintiff Smt. Pushaplata got examined herself as AW 1 and Dr. B.K. Gupta, Dy. Controller, Government Hospital, Jalore as AW 2. Certain documents were produced and got exhibited. The returned candidate Smt. Mamta Jain got herself examined as NAW 1. In defence, certain documents were produced and got exhibited. After examining oral and documentary evidence, the learned Election Tribunal arrived at the finding that the appellant was not holding the salaried appointment but was holding the post of profit and thus she was disqualified to contest the election by virtue of the provisions of Sec. 26(viii -a) of the Act of 1959. The learned Election Tribunal, further while deciding issue No. 1 in favour of the petitioner -respondent (election petitioner) declared the election of the non -petitioner -appellant (returned candidate) as null and void and declared the petitioner -respondent (election petitioner) as duly elected member from Ward No. 17 of the Municipal Board, Jalore vide judgment dt. 05.02.2007, hence, this appeal.