1. It is quite obvious that the order of the learned Election Commissioner in this case was wholly without jurisdiction. Rule 10 of the rules for the settling of disputes about Elections to Local Board is as follows:
2. If in the opinion of the Election Commissioner
(a) the returned candidate, his agent or any other person with the connivance of such candidate or agent, has committed, or abetted the commission of any Election offence falling under Section 58 of the Act or Ch. 9-a I.P.C., or .
(b) the election of the returned candidate has been procured or induced or the result of the election has been materially affected, by any of the following corrupt practices:
(i) any Election offence falling under Section 54 of the Act or under Ch. 9-a I.P.C., when committed by a person who is not a candidate or his agent or a person acting with the connivance of a candidate or his agent;
(ii) any payment or promise of payment to any person whomsoever on account of the conveyance of any Elector to or from any place for the purpose of recording his vote;
(iii) the hiring, employment, borrowing or using for the purposes of the election of any beat, vehicle or animal usually kept for taking on hire or for the conveyance of passengers by hire.
Provided that any Elector may hire any beat, vehicle or animal or use any beat, vehicle or animal which is his own property to convey himself to or from the place where the vote is recorded;
(iv) the hiring, using or letting, as a committee room or for the purpose of any meeting to which Electors are admitted, of any building, room, or other place where intoxicating liquor is sold to the public; or
(v) the result of the Election has been materially affected by any irregularity in respect of a nomination paper or by. the improper reception or refusal of a nomination paper or vote or by any non-compliancs with the provisions of the Act or the rules made thereunder, the election of the returned candidate shall be void;
and Rule 11 provides that at the conclusion of the inquiry the Election Commissioner shall declare whether the Election of the returned candidate is void under Rule 10. There is no provision in the rules by which an Election Commissioner can declare an Election void unless he is of opinion that the conditions stated in the first part of Rule 10 have been fulfilled. In the present case the learned Election Commissioner has declared the Election of respondent 2 void and has also gone on to declare that the petitioner who claimed the seat has been duly elected. This is without jurisdiction because the learned Commissioner has not stated that in his opinion any of the offences mentioned in Rule 10 had been committed. So far as his order shows respondent 2 consented to the Election of himself being declared void without admitting the truth of the allegations in the petition.
3. The learned Commissioner goes on to say in para. 6 in view of the above I find the Election of the returned candidate void'. This means that the learned Commissioner in view of respondent 2's conduct in which he does not admit the truth of the allegations declares the election void. This he has no jurisdiction to do. His order declaring the petitioner elected is also without jurisdiction because it does not appear that respondent 4 who was still opposing the petitioner was given any opportunity to let in evidence to prove that the petitioner's own election would have been void under Rule 9 of the rules. In these circumstances the writ is made absolute and the order of the learned commissioner is set aside. He is directed to dispose of the matter in accordance with the rules. The petitioners will recover costs of this petition from respondent 1 Vakil's fee Rs. 100.