1. This is an application by Anandilal for a writ, direction or order under Article 226 of the Constitution and arises in the following circumstances :
2. Election for the Tehsil Panchayat of Jamwa Ramgarh was to be held on 31st of May, 1955. Nominations were called up to 19th of May, 1955, and the scrutiny of nominations was to take place between 20th of May and 22nd of May. 23rd of May was fixed for withdrawal of candidates. The applicant filed a nomination paper for election as Panch of this Panchayat.
His case is that the scrutiny did not take place between 20th and 22nd of May as provided in the programme of the election, and that it was held actually on 23rd of May. The Returning Officer after the scrutiny accepted the nomination of the applicant, and published a list of nominated candidates according to Rule 28 of the Panchayat Election Rules 1954.
The applicant's case further is that thereafter he only came to know on 31st of May, 1955, when 'the election was taking place, that his name had been removed from the list of candidates nominated for the election, and this came as a great surprise to him. He brought the matter to the notice of the Returning Officer who was, however, not prepared to do anything for him. He then took the matter to the higher authorities, and eventually came to this Court as he did not get any redress.
His main case is that the Returning Officer had no authority to remove his name from the list of nominated candidates once it had been put there by him under Rule 28. Other points have also been raised on his behalf, but we need not go into them for present purposes.
3. The application has been opposed by the opposite parties. According to them, the facts are that the applicant's nomination paper was rejected actually on 22nd of May, 1955, but by some oversight (which appears to us very strange) his name was included in the list of duly nominated candidates published under Rule 28.
The Returning Officer, however, came to know this mistake on that very day, and therefore published the correction by another order dated 23rd of May, 1955, by which the name of the applicant, was removed from the list. It is said that the applicant knew of this removal, and that was why he had not even applied for a symbol, and his name was consequently not included in the ballot paper.
4. On this reply it has been contended on behalf of the applicant that assuming that his nomination paper was rejected on 22nd of May 1955, as alleged by the opposiie parties, the order of the Returning Officer rejecting the nomination paper is illegal inasmuch as the reason given by him for such rejection is not a valid reason in law. Therefore, the rejection of the nomination paper was obviously illegal, and consequently the election of Panches to the Tahsil Panchayat was vitiated.
5. Two points arise in view of this further plea taken on behalf of the applicant. The first question is whether the applicant has a right to file an election petition under Rule 19 of the Panchayat Election Rules. If he has such a right we would not be disposed to interfere at this stage for be has admittedly not filed any election petition so far.
For that we have to look to Rule 19 which provides that the validity of the election of any Panch, Sarpanch or Up-sarpanch may be challenged by a petition presented by a defeated candidate or by any ten duly qualified electors. This rule applies to the Tahsil Panchayat also by virtue of Rule 40 subject to necessary changes. The applicant, therefore, could only file an election petition if he was a defeated candidate.
6. This brings us immediately to the meaning of the words 'defeated candidate'. There is no doubt that inasmuch as the applicant filed his nomination paper he was a candidate at this election; but the question is whether he was a defeated candidate, It has been urged by the learned Deputy Government Advocate that in fact he was defeated because he did not come out successful in the election.
We are of opinion that this is not the meaning of the words 'defeated candidate'. Defeat involves that there should be a contest, and then one or more of the contestants should lose or be overthrown. We may in this connection refer to the meaning of the word 'defeat' as given in the Shorter Oxford Dictionary where one of the meanings of the word 'defeat' is given as an act of overthrowing in a contest.
It seems to us that a candidate cannot be said to have been defeated unless he has an opportunity to enter into a contest with others and to solicit the votes of the electors and then lose on account of not being able to get sufficient number of votes. The applicant, however, was never given an opportunity of entering into a contest for election and solicit the votes of the voters, for his name was rejected by the Returning Officer. Though, therefore, the applicant was a candidate at the election, he cannot be called a defeated candidate, and it was not possible for him to file an election petition under Rule 19 read with Rule 40 as a defeated candidate.
7. Next, it is urged that even if it was not possible for the applicant to file an election petition alone under Rule 19, it was possible for him to do so along with nine others for it is possible for 10 duly qualified electors to present a petition. We are of opinion that where a person stands as a candidate at an election, and his nomination paper is rejected, he has a right in himself to contest the rejection of his nomination paper if it has been done illegally, and he should not be compelled to beg nine other persons to come to his help.
As the applicant was a candidate for the election, and as he cannot by himself file an election petition because we cannot call him a defeated candidate, we are of opinion that he is entitled to come to us because it is not possible for him to file an election petition to safeguard his rights which have been invaded by the rejection of his nomination paper.
8. The next question which then arises is whether the Returning Officer was right in rejecting the nomination paper of the applicant. The order rejecting the nomination paper is in these words
'The candidate is again absent today, without his presence no action is possible. It is 6 P.M., but he has not turned up. Hence rejected.'
Rejection of nomination paper is provided in Rule 26. That rule does not give any grounds on which a nomination paper for an election to a Tehsil Panchayat can be rejected. Section 58 (4) of the Rajasthan Panchayat Act (No. 21 of 1953) provides the qualification for election as a Panch to a Tehsil Panchayat.
This qualification is that he should for the time being be qualified for election or appointment as a Panch or Sarpanch of a Panchayat established under 6. 3 within the Tehsil for which the Tehsil Panchayat is established under this section. Section 11 provides the qualifications of the Panchas, and Section 10 provides for qualifications of electors.
A Panch has to be an elector within the mean-tog of Section 10, and in addition there are certain other qualifications which he must have, and there are certain deficiencies from which he must be free before he can stand for election as Panch under Section 11. The Returning Officer for a Tahsil Panchayat, therefore, has in our opinion, power to reject the nomination paper only if the candidate is not qualified under Section 10 or suffers from any of the infirmities given in Section 11,
A nomination paper cannot be rejected for any other reason. In this case, the nomination paper has been rejected not because the applicant was not an elector within the Tahsil in some panchayat; nor was it rejected on the ground that he was suffering from any of the infirmities specified in Section 11. It has been rejected on the ground that he was absent at the time of the scrutiny.
No rule has been pointed out to us which requires that a candidate must be present at the time of the scrutiny, and that if he is absent his nomination paper is liable to be rejected. On the face of it, therefore, the Returning Officer's order rejecting the nomination paper of the applicant is against law.
In these circumstances as the applicant was prevented from contesting the election, we are of Opinion that the entire election of the Panches of this Tahsil Panchayat must be set aside, for we do not know what would have been the result if the applicant had been allowed to contest the election. We may point out, however, that this does not in any way affect the election of the Sarpanch for that is a separate election altogether, and the applicant was not a candidate for that office.
9. We, therefore, allow the application and set aside the election of the Panchas (but not the Sarpanch) of the Tahsil Panchayat Jamwa Ramgarh. The applicant will get his costs from the opposite parties except the Sarpanch.