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Ram Khilari Vs. Hari Singh - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 17 of 1959
Judge
Reported inAIR1959Raj274
ActsRajasthan Town Municipal Election Rules, 1951 - Rules 15 and 17; Rajasthan Town Municipalities Act, 1951 - Sections 19(5)
AppellantRam Khilari
RespondentHari Singh
Appellant Advocate D.P. Gupta, Adv.
Respondent Advocate S.M. Mehta, Adv.
DispositionPetition allowed
Cases ReferredBhan v. Randhir Singh
Excerpt:
.....date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. .....board, bharatpur from ward no. 19. 19th march, 1956 was the date fixed for election. hari singh filed his nomination paper on 4-3-56, polling took place on 19-3-56 as a result of which hari singh was declared elected. ram khilari filed an election petition inter alia on the ground that the nomination paper of hari singh was invalid having been filed beyond time. the learned district judges found that the nomination paper was in fact filed beyond time. but he held that the case fell under sub-clause (5) of sec. 19 and the election of hari singh was not vitiated. against this decision, the present appeal has been filed.3. the first question for decision is as to whether rule 15 of the rajasthan town municipal election rules, 1951 is mandatory. it runs as follows :'every person who.....
Judgment:

Jagat narayan, J.

1. This is an appeal by one Ram Khilari against an. order of the District Judge, Bharatpur, dismissing his election petition against Hari Singh.

2. Ram Khilari and Hari Singh were candidates for election to the Municipal Board, Bharatpur from Ward No. 19. 19th March, 1956 was the date fixed for election. Hari Singh filed his nomination paper on 4-3-56, Polling took place on 19-3-56 as a result of which Hari Singh was declared elected. Ram Khilari filed an election petition inter alia on the ground that the nomination paper of Hari Singh was invalid having been filed beyond time. The learned District Judges found that the nomination paper was in fact filed beyond time. But he held that the case fell under sub-clause (5) of Sec. 19 and the election of Hari Singh was not vitiated. Against this decision, the present appeal has been filed.

3. The first question for decision is as to whether Rule 15 of the Rajasthan Town Municipal Election Rules, 1951 is mandatory. It runs as follows :

'Every person who intends to stand for election in any ward shall, not less than fifteen days before the date fixed for election, signify his intention by applying in writing to the Returning Officer in the form mentioned in Schedule I.'

4. The wording of this rule shows that it is mandatory. No decision to the contrary was cited on behalf of the respondent.

5. The next question for determination is whether the nomination paper was filed beyond time. The date of election was 19-3-56 and the nomination paper was filed on 4-3-56; that is it was filed only 14 clear days before the date of election and not 15 clear days before it. In Anokh Mal v. Chief Panchayat Officer, Rajasthan, ILR 1956 Raj 1044: (AIR 1957 Raj 388), a Division Bench of this Court held that the words 'at least seven days before the date of election' as used in Rule 4 of the Rajasthan Panchayat Election Rules meant that 7 clear days' interval was required between the date of announcement of notice and the date of election. A number of decisions were considered in that case in which the words 'not less than 7 days' notice' were interpreted to mean 7 clear days' notice. In view of this authority of our Court, there can be no doubt that the nomination paper should be filed 15 clear days before the date fixed for election.

6. On behalf of the respondent, the decision of the Supreme Court in Harinder Singh v. Karnail Singh, (S) AIR 1957 SC 271 was cited. That decision is of no assistance in the present case. Section 31(1) of the Representation of the People Act lays down that the election petition may be presented 'within such time as may be prescribed''and Rule 119 which was framed under that section provides that an election petition shall be presented 'not later than 14 days.' It was held that as the wordings of the section must prevail upon wordings of the rule, the words used in the rule must be taken to mean the same thing as 'within that period of 14 days.'

7. In Sura] Bhan v. Randhir Singh, AIR 1958 Punj 483, interpreting another rule framed under the Representation of the People Act, a view was taken by the Punjab High Court which is different from the view taken by our Court in the case referred to above. But sitting singly, I am bound by the decision of the Division Bench of our Court. I accordingly hold that the nomination paper was filed beyond time. It was therefore invalid.

8. The last question which arises for determination is whether the election is not vitiated in view of Sub-section (5) of Section 19 of the Rajasthan Town Municipalities Act, 1951 which runs as follows :

'If the validity of the election is brought in question only on the ground of an error by the officer or officers charged with carrying out the rules made under Clause (b) of Sub-section (2) of Section 205 or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election.

Explanation: The expression 'error' in this sub-section does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or the rules made thereunder whereby the result of election has been materially affected.'

9. The argument on behalf of the respondent is that the Returning Officer fixed 4-3-56 as the last day for filing nomination papers and so the error in filing the nomination paper beyond time was the error of the Returning Officer. Rule 15 of the Election Rules casts a duty on the candidate to file his nomination paper within time and if he does not do so it cannot be said that theerror is that of the Returning Officer. In Rule 17(1), it is mentioned that the Returning Officer shall, at 5 p.m. on the last day fixed for receiving applications for candidature, read out the names or the candidates whose applications have been received. The proper interpretation of this rule in my view is that it cannot be said on its basis that a duty is cast on the Returning Officer to fix the date for filing nomination papers. The words 'on the last day fixed' occurring in this rule in my opinion mean the last day fixed under Rule 15.

10. It was also argued on the basis of a statement made by Hari Singh that he went to file his nomination paper on 3-3-56, but could not find the Returning Officer as he had left his court room at 1.30 P.M. Even if this fact is taken to be correct, there is no provision for condoning the delay in filing the nomination paper whatever may be the reason for it. If the Returning Officer was not present, the nomination paper should have been left with clerk incharge of the office.

11. I accordingly hold that the nomination paper of Shri Harisingh was invalid and the detect is not cured by Section 19(5) of the Rajasthan Town Municipalities Act. I, therefore, allow the appeal, set aside the order of the District Judge, allow the election petition, set aside the election of Harisingh and declare Ram Khilari to be duly elected as member of the Municipal Board, Bharatpur.

12. In the circumstances of the case, I direct that parties shall bear their own coststhroughout.


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