V.P. Tyagi, J.
1. This is a miscellaneous election appeal filed under Section 46 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act') and is directed against the order of the learned Munsiff Magistrate. Beawer dated 3rd June. 1972, whereby the learned Munsiff allowed the election petition of respondent No. 1 and set aside the election of the petitioner and in his place declared respondent No. 1 as duly elected member of the Beawer Municipal Council from Ward No. 2 thereof.
The general election for Beawer Municipal Council were held on 25th Oct. '1970. Petitioner Lala Maharaj and respondent No. 1 were the candidates from ward No. 2 and both of them secured equal votes i.e. 320 votes each. The Returning Officer after drawing lots under Clause 56 (c) of the Rajasthan Municipalities Election Order, 1960, declared Lala Maharai as duly elected candidate from ward No. 2 of the Municipal Council, Beawer. The election of Lala Maharai was then challenged by respondent No. 2 mainly on the ground that one of the votes was illegally accepted and counted in favour of Lala Maharai and therefore, his election may be declared as void and in his place Ramcharan, who was the petitioner, before the learned Munsiff may be declared duly elected. After the trial of the election petition the learned Munsiff held that the Presiding Officer illegally cancelled the ballot paper bearing serial No. 00337, issued to a blind voter and in its place issued another ballot paper bearing serial No. 00335 which was cast in favour of Lala Maharai. According to the averment made in the petition the former ballot paper which was said to have been illegally cancelled by the Presiding Officer, was marked by the Presiding Officer at the instance of the voter for Ramcharan but later on the said ballot paper was cancelled at the request of the Voter and another ballot paper was issued to her and was then marked in favour of Lala Maharai and thus according to the respondent No. 1, who was the petitioner before the learned Munsiff the ballot paper bearing serial number 00335 could not be counted in favour of Lala Maharai. In view of this averment it was prayed that Ramcharan be declared as duly elected from ward No. 2 as he secured one vote more than Lala Maharai The learned Munsiff recorded the finding that the ballot paper bearing serial number 00337 was illegally cancelled by the Presiding Officer and the second ballot paper issued to the same voter, cannot, therefore, be taken to a valid vote. In this view of the matter, the learned Munsiff set aside the election of Lala Maharai and declared respondent No. 1 Shri Ram Oharan as duly elected member from Ward No. 2 to the Municipal Council. Beawer.
2. This appeal has been filed by Lala Maharaj challenging the order passed by the Munsiff, mainly on two grounds;
(1) that the learned Munsiff sitting at Beawer had no jurisdiction to entertain, and hear the election petition because the Civil Judge with headquarters at Aimer has been directed by the State Government, under Notification of June 1. 1970, published in the Rajasthan Rajpatra of June 2, 1970, to sit at Beawer as is apparent from Column No. 5 of the said Notification. That notification was issued by the State Government under the powers conferred by Sub-section (D of Section 7 read with Sub-section (11 of Section 12 and Sub-section (1) of Section 16 of the Rajasthan Civil Court Ordinance, 1950.
(2) That the judgment of the trial Court recording cancellation of vote on ballot papers bearing serial number 00335 is ex facie, erroneous because the ballot paper issued to the same voter was spoilt as it was marked in a manner different from the desire of the voter.
3. Election petitions are presented in accordance with Section 40 of the Act which reads as follows:--
'Section 40: Who shall hear petition-(1) An election petition may be presented to and shall be heard by -- (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.'
The State Government by issuing a notification No. F. 1 (48) LSG/A/59 dated April 19, 1961, appointed the Munsiffs having headquarters at the place of any such office of the Municipal Board to entertain and hear the election petitions filed under Section 40 of the Act. This notification reads as follows:--
'In exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 40 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act No. 38 of 1959), the State Government hereby directs that the elections 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 Munsiff having headquarters at the place of any such office or where there is no such Munsiff the Civil Judge having jurisdiction in the area.'
4. Mr. Mridul submits that the Munsiff can exercise its jurisdiction under Clause (c) of Sub-section (1) of Section 40 of the Act under the said notification only when the Civil Judge does not sit at a Place where the office of the Municipal Board is located. Since the Civil Judge with headauarters at Aimer has been specificallv directed by the State Government to have the sitting of his court at Beawer, the Munsiff posted at Beawer cannot exercise his jurisdiction under Section 40 by virtue of the notification dated April 19. 1961. He also argued that the notification of April 19. 1961 shall govern the election petitions in respect of the Municipal Boards alone and not in respect of the Municipal Council, since the Beawer Municipality is a council, therefore, the Munsiff cannot assume jurisdiction to entertain and hear election Petition under the said notification.
5. Mr. Bhargava appearing on behalf of respondent No. 1. on the other hand, argued that the word 'sitting' appearing in Clause (b) of Sub-section (1) of Section 40 cannot, mean the Civil Judge sitting occasionally. According to him, this expression means that the Civil Judge must sit permanently or normally at the place where the Municipal office is situated otherwise he cannot exercise his jurisdiction if he sits at such place occasionally.
6. The word 'sitting' can be interpreted to mean that the Civil Judge holds bis court at that place. We have therefore, now to see whether in the scheme of Section 40, a Civil Judge, who occasionally sits at a place of the headquarters of the Municipal Boards or councils, is also empowered by this provision to entertain and hear the election petition by excluding the Munsiff, who by virtue of the notification of the State Government dated April 19. 1961, is also conferred with the jurisdiction to entertain and hear such election petitions. In this connection it will be relevant to refer the notification issued by the State Government while appointing Civil Judge, Aimer with headquarters at Aimer, enjoying his jurisdiction throughout the territory of Aimer District with a specified instructions that he would sit at three places namelv Aimer. Beawer and Kishangarh. In this notification the State Government, has specifically mentioned that the headquarters of the Civil Judge will be at Aimer but in column No. 5. 'Place (s) of sitting the names of Aimer. Beawer and Kishangarh have been mentioned. From this column there is no doubt that the Civil Judge has a place of sitting at Beawer also and I am told by the learned counsel for the petitioner that the learned Civil Judge sits for 10 days in a month at Beawer. Whether this sitting for 10 days in a month at Beawer would confer jurisdiction on him to entertain and hear the election petition under Section 40 of the Act. Looking to the scheme of Section 40, the jurisdiction to entertain and hear the election petition is given to the District Judge, if the Municipal Office is situated in a place where the District Judge sits or holds his court and under Clause (b) if there is no District Judge at that place then to the Civil Judge if he sits or holds his Court in the town where the Municipal office is situated. But the Question that has to be determined is that if the District Judge or Civil Judge holds his court occasionally in that town even then shall he be entitled to entertain and dispose of the petitions under this provision of the law or not.
7. The word 'sitting' as pointed above can be interpreted to mean holding the Court A district Judge or Civil Judge enjoying jurisdiction over the entire District can hold his court anywhere within his jurisdiction but if he occasionally sits at some place it is difficult to say that he holds his court within the meaning of Section 40 at the place where he occasionally sits. He holds the court normally at his headquarters though looking to the exigency of work the District Judge or the Civil Judge is competent to sit at any Place within his Jurisdiction. Therefore, while interpreting the expression 'so sitting' in Section 40 (1) (b) we shall have to see whether the Civil Judge holds his Court regularly and normally at the places where the headquarters of the Municipal Board or Council is situated. In my opinion the scheme of Section 40 can be read to mean that the jurisdiction to entertain and hear the election petition to a Civil Judge is given only for that place if the Headquarters of the Municipality is situated in that place where the Court is headquartered and where the Civil Judge normally sits. If he is required to sit under the orders of the Government at places other than his headquarters then those places in my opinion, will not be covered under Clause (b) of Sub-section (1) of Section 40 of the Act and simply because the Civil Judge holds his Court at the place other than his head quarter, he will not have thejurisdiction to entertain and dispose of the election petition at those Place or places also where he occasionally sits by virtue of Section 40 (1) (b).
8. It was next argued by Mr. Mridul that notification dated April 19, 1961, referred to above confers jurisdiction on the Munsiff only in respect of the election of the Municipal Boards and not of Municipal Council as the words used in the said notification are 'Municipal Boards' which according to Mr. Mridul is a term entirely different from the expression 'Municipal Council' as used in the Act. Both these expressions 'Municipal Board and Municipal Council' have been defined by the Act. It is true that the expression 'Municipal Boards' carries a different connotation than the expression 'Municipal Council', but in Section 3 (8) of the Act the Legislature has put an explanation, which has great relevance to dispose of the point raised by Mr. Mridul. This explanation reads as follows:--
'Explanation:-- References in any provision of this Act other than clauses (2) and (15) of the section: Sub-sections (1), (2) and (3) of Section 65, Section 73. Section 308, Section 310 and Section 311 to a Board or Municipal Board or to a member or officer or servant of Board or Municipal Board or to the Chairman, Vice-Chairman or Executive Officer of a Board or a Municipal Board shall, in the case of a city be construed as being references respectively to a council or a Municipal Council or to a councillor, officer or servant of a Council or a Municipal Council or to the President, Vice-president or Municipal Commissioner of a Council or a Municipal Council unless such construction is repugnant to the subject or context;'
This explanation makes it clear that except for certain clauses mentioned in this explanation a Municipal Board for the purposes of this Act shall be synonimous to the expression 'Municipal Council' and if the context so requires the words 'Municipal Board' can be read as Municipal Council. Keeping this explanation in view if the notification issued by the State Government on April 19. 1961, conferring jurisdiction on the Munsiff to entertain and dispose of election petition in respect of the elections of the Municipal Board is read then we can conveniently read that the Munsiff by virtue of this notification has been empowered to entertain and dispose of election petition in respect of the elections of the Municipal Councils also. In view of this provision of the Act where the Municipal Council has been explained by the Legislature itself to mean Municipal Board. I do not find anv life in the contention raised by Mr. Mridul.
9. On the basis of the pleadings of the parties the learned Munsiff framed issue No. 4, which reads as follows.--
'Whether the respondent, No. 3 illegally cancelled the ballot paper after the voter has exercised her choice and improperly issued a new ballot paper, if so to what effect?'
10. The burden of this issue obviously was on the election petitioner namely respondent NQ. 1. In this connection he produced Shri Surajmal (PW2) who was the Presiding Officer of Polling Station No. 2 of Ward No. 2. The statement of this witness was that a lady came to the booth to cast her vote and she was issued a ballot paper bearing serial number 00337. She asked the Presiding Officer to mark that ballot paper in favour of the respondent No. 1, Ramcharan and a mark was put against, the column of Ramcharan, by the Presiding Officer as the voter was blind. After having put that mark she communicated Jo the Presiding Officer that she wanted to vote in favour of Lala Maharai. On receiving this request from the voter the Presiding Officer cancelled the ballot paper bearing serial No. 00337 and issued a fresh ballot paper having serial number 00335 and it was accordingly marked in favour of Lala Maharai by the Presiding Officer and was Put In the ballot box. That ballot was counted in favour of Lala Maharai. Lala Maharai produced no evidence in rebuttal. The Question that arises for the determination of this Court is that the cancellation, of the former ballot paper bearing serial number 00337 was in accordance with the Rules of the election or not. In this connection reference may be made to Clause 43 of the Rajasthan Municipalities Election Order, 1960 which reads as follows:--
'Spoilt ballot papers -- A voter who has inadvertently dealt with his ballot paper in such a manner that it cannot conveniently be used as a ballot paper may, after delivering such ballot paper to the Presiding Officer and satisfying him of such inadvertence, obtain another ballot paper in place of the spoilt paper and the latter shall be marked cancelled.'
11. Under this provision of Election the Order. 1960 a voter is entitled to get another ballot paper only when the ballot paper which was issued to him is spoilt by him inadvertently and that such a ballot paper cannot conveniently be used by him as a ballot paper. In the present case the voter asked the Presiding Officer to put a mark against the name of Ramcharan, and it was done by him in compliance with the instructions received from the voter. Thereafter it appears that the voter changed her mind, and expressed her desire to cast her vote in favour of Lala Maharai. In order to accommodate the voter a fresh ballot paper was issued to the 'voter, treating the first ballot paper as a spoilt ballot paper and marked the fresh ballot in favour of Lala Maharai. The question arises whether a ballot paper on which the choice has been expressed by a voter can be treated as a spoiled-ballot paper if the voter subsequently changes his mind to cast his vote in favour of the candidate other than the one in whose favour he has already expressed his choice of vote by putting a mark on the ballot paper against his name. If we correctly read the scope of clause 43 of the Election Order, 1960 then the fresh ballot can be issued by the Presiding Officer after cancelling the previously issued ballot paper only when that ballot paper was spoiled on account of the inadvertence on the part of the voter and that such a ballot paper was rendered useless to be utilised as a ballot paper on account of the inadvertence of the voter. Whether subsequent change of mind by a voter, to cast his vote for a candidate other than the one in whose favour he has already expressed his choice by putting a mark on the ballot paper issued to him would bring the previously marked ballot paper within the expression of 'spoilt' ballot paper through inadvertence. In my opinion the change of mind after cutting the mark on the ballot paper in favour of one candidate cannot be called the inadvertent act of the voter and on that account a fresh ballot cannot be issued to him by declaring the first ballot paper as 'spoilt' within the meaning of clause 43 of the Order. It is not the case of the appellant that it was on account of slip of tongue of the voter that a mark was out by the Presiding Officer in the column of respondent No. 1. In this case the voter has not been examined as a witness by any of the parties nor has the Presiding Officer, been cross-examined by Lala Maharai on this point that the mark was put in the column of the respondent due to the inadvertence on the Part of the voter. In such circumstances issuing of a second ballot paper by the Presiding Officer to the lady voter was not warranted under the provisions of clause 43 of the Election Order, 1960 The vote cast on the ballot paper bearing serial number 00335, therefore, cannot be counted as a valid vote and the learned Munsiff in my opinion, has rightly rejected that vote. In this view of the matter I do not find any illegality in the order Passed by the learned Munsiff. Beawer.
12. The appeal, therefore, fails and it is hereby dismissed with costs.