1. The petitioner in this petition had filed an election petition under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as the 'Zilla Parishads Act') challenging the election to the Panchayat Samiti of North Sholapur from three wards, namely, Mardi-Wadala, Kasbe Sholapur-Bale and Degaon Kumthe from which each of the respondents Nos. 1 to 3 respectively were candidates. The petitioner himself is a voter only from Degaon village and it is not now disputed before us that he would be entitled, if at all, to challenge the election only so far as respondent No. 3 is concerned. In other words, it is conceded that the challenge to the election of respondents Nos. 1 and 2 was not maintainable at the instance of the present petitioner.
2. The petitioner's case against respondent No. 3 appeared to be that he was in arrears of the amount of hire in respect of engine of the North Sholapur Panchayat Samiti taken by him on hire from the said Panchayat Samiti and he had so remained in arrears for more than six months despite the service of a demand notice on him. The election petition came to be tried by the Extra Assistant Judge, Sholapur, who had framed several issues for determination on merits but did not think it necessary to give a finding on all the issues. Since the election of respondent No. 3 was challenged on the ground that he was initially disqualified to be elected, the learned Judge first took up for consideration the contention of the elected candidates that the petition challenging the election of the candidate wag not maintainable under Section 27 of the Zilla Parishads Act. The learned Judge relied upon the decision of this Court in Gopikishan Agarwal v. District Judge, Bhandara 1966 Mh LJ 321 and came to the conclusion that an election petition on the basis of an allegation of a disqualification incurred before the date of the nomination could not be entertained. He, however, seems to have taken the view that the proper remedy of the petitioner was to approach the Commissioner under Section 40 of the Zilla Parishads Act. Since the election petition filed by the petitioner came to be rejected, this petition has been filed by him challenging the decision of the learned Assistant Judge.
3. It was contended on behalf of the petitioner by Mr. Kankaria that the learned Judge was in error in applying the decision in Gopikishan Agarwal's case, because according to the learned Counsel, the election challenged in the instant proceedings was not an election as councillor of the Zilla Parishad, but the election was in respect of the Panchayat Samiti and the relevant rules regulating the scrutiny of the nomination papers did not contain a clause that the decision of the scrutinising authority would be final and conclusive and not open to challenge in an election petition.
4. Now, so far as the elections and election disputes with regard to the election of members of a Panchayat Samiti are concerned, the relevant provision is to be found in Section 58 which reads ag follows:--
'(1) The provisions of Section 16 relating to the disqualifications of Councillors shall apply in relation to the disqualifications of the members of a Panchayat Samiti with the modification that in clause (d) of Sub-section (1) of Section 16, for the figures '39' the figures '61' shall be substituted.
(2) The provisions of Sections 19 to 25 (both inclusive) and 27, 23, 28-A. to 28-D (both inclusive), 29 to 33 (both inclusive), 33-A and 34 to 37 (both inclusive) relating to elections and election disputes and any rules made thereunder shall apply mutatis mutandis in relation tc election of members under clause (f) Of Sub-section (1) of Section 57.'
Thus even where the election of a member of a Panchayat Samiti is to be challenged, the relevant provision which must be looked into is Section 27 of the Zilla Parishads Act. Under Section 27 (2) it is provided that after the election petition is filed before the District Judge, an enquiry shall thereupon be held by a Judge, not below the rank of an Assistant Judge, appointed by the State Government either especially for the case, or for such cases generally, and such Judge may, after such enquiry as he deems necessary, pass an order confirming or amending the declared result of the election or the order of the officer empowered by the Collector in that behalf under Section 26, or setting the election aside. The Judge trying the election petition is empowered to exercise eny of the powers of the Civil Court and his decision has been made conclusive. Sub-section (5) of Section 27 is as follows:--
'(a) If on holding such enquiry, the Judge finds that a candidate has, for the purpose of election, committed a corrupt practice within the meaning Of Sub-section (6), he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under Sub-section (2) and shall set aside the election of such candidate if he has been elected.
(b) If in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge, after a scrutiny and computation of the votes recorded in favour of each candidate, is of opinion that in fact any candidate in whose favour the declaration is sought has received the highest number of the valid votes, the Judge shall after declaring the election of the returned candidate to be void declare the candidate in whose favour the declaration is sought, to have been duly elected:
Provided that, for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person, known or unknown, in giving or obtaining it:
Provided further that, after such computation if an equality of votes is found to exist between any candidates and the addition of one vote will entitle any candidate to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate selected by lot drawn in the presence of the Judge in such manner as he may determine.'
Under Sub-section (6) the corrupt practices have been set out as those specified in Section 123 of the Representation of the People Act subject to certain modifications which are not material for the purposes of the present petition. In view of Section 58 of the Zilla Parishads Act it is clear that the jurisdiction of the Court trying the election petition challenging the election of a member of a Panchayat Samiti is also regulated by Sub-sections (2) and (5) in Section 27 of the Zilla Parishads Act. Under clause (a) of Sub-section (5) it is made obligatory on the Judge to declare a candidate disqualified for the purpose of an election or of such fresh election as may be held as contemplated by Sub-section (2) if the Judge finds that a candidate has for the purpose of election committed a corrupt practice within the meaning of Sub-section (6). However, in a case where corrupt practice is not proved against a candidate who has been elected, the question of setting aside his election on that ground under clause (a) of Sub-section (5) does not arise. Another power which is given to the Court which tries the election petition is in a case which is not covered by Sub-section (5) (a) and that is to be found in clause (b) of Sub-section (5) under which the Court is empowered to scrutinise and compute the votes recorded in favour of each candidate and then if it is of opinion that in fact a candidate in whose favour a declaration is sought has received the highest number of valid votes, the Court has to declare the election of the returned candidate to be void and declare the candidate in whose favour the declaration is sought to have been duly elected. In other words, Sub-section (5) gives the grounds on which an election of an elected candidate can be set aside. It is difficult to take the view that when an enquiry is made on an election petition, the scope and the nature of the enquiry permissible to the Court relates to matters other than those provided in Sub-section (5). There does not, therefore, appear to be any power in the Court to go into the question as to whether the elected candidate was disqualified at the time when his nomination paper was accepted. In other words, the validity of the order of acceptance of a nomination paper is not open to challenge in an election petition filed under Section 27 of the Zilla Parishads Act.
5. Now, it is no doubt true that in the rules relating to the election of councillors of the Zilla Parishad, under Sub-rule (8) of Rule 20 it is provided that the decision of a District Judge on appeal under that rule and subject only to such decision, the decision of the Returning Officer accepting or rejecting the nomination paper of a candidate shall be final and conclusive and shall not be called in question in any Court or before a Judge referred to in Sub-section (2) of Section 27. No such provision is to be found in the rules tiled as Maharashtra Panchayat Samitis (Registration of Voters and Conduct of Election) Rules, 1962.
6. Under Rule 19 (6) of the rules relating to conduct of election to the Panchayat Samitis it is only provided that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected, he has to record in writing a brief statement of his reasons for such rejection. Thereafter under Sub-rule (7) it is provided that the Returning Officer shall prepare a list of candidates whose nominations have been accepted and he has to affix the list on his notice board recording the date on which and the time at which the list was so affixed. Rule 20 deals with withdrawal of candidature and R. 21 deals with preparation of list of contesting candidates. Under R. 22 provision is made of publication of list of contesting candidates. Rules 23 to 27 deal with appointment of election agent, polling agent and counting agent and provision is made in Chap. VI and thereafter in the matter of actual election. There is thus no rule-making final the decision of the Returning Officer regarding the acceptance of the nomination paper. The absence of a provision in the Maharashtra Panchayat Samitis Conduct of Election Rules analogous to the provision in Sub-rule (8), however, in our opinion, would not make any difference since we are basing our decision on the substantive provisions in Section 27 (5) of the Zilla Parishads Act. We are supported in the view which we have taken by a Division Bench decision of this Court in Brijlal Sao v. D. J,, Bhandara, reported in 1965 Mh LJ 56. There also the election of an elected candidate to the Panchayat Samiti was declared void on an election petition under Section 27 of the Zilla Parishads Act on the ground that he was disqualified under Section 16 (1) and that order was challenged by a writ petition. The Division Bench took the view that the challenge to the election of a candidate on the ground of his disqualification under Section 16 is not open in an election petition under Section 27.
7. Mr. Kankaria emphasised the words 'validity of any election' in the opening part of Section 27 of the Zilla Parishads A-.-t and the argument made v.as that when the legislature used the words 'any election', it must be taken to mean that an election could be challenged on any ground whatsoever including disqualification incurred even before the nomination paper was filed. It is difficult for us to accept this contention. It is difficult to appreciate how these words could indicate, even remotely, the scope of the challenge which could be made in an election petition or how those words could give any indication with regard to the powers of the Court entertaining an election petition. All that Section 27 does is to give a right to file an election petition when validity of any election of a councillor is brought in question either by a candidate or by any person qualified to vote at the election the validity of which is put in issue. The jurisdiction which the Court trying the election petition could exercise would have to depend on the statutory provisions made in Sub-section (2) and Sub-section (5) and, as we have already pointed out, none of these provisions indicate that the question of initial disqualification of a candidate could be put in issue while challenging his election. In our view, there is no substance in this petition. The petition must fail an 1 is dismissed. Rule discharged with costs.
8. Petition dismissed.