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2007 DIGILAW 618 (RAJ)

Mamta Jain v. Pushaplata Bansal

2007-03-21

MANAK MOHTA

body2007
Judgment Manak Mohta, J.—This appeal has been preferred against the order dt. 05.02.2007 passed by the learned District Judge, Jalore as Election Tribunal (hereinafter referred to as “the Election Tribunal”) in Civil Misc. Case (Election Petition) No. 47 of 2005, whereby, the election of the non-petitioner-appellant has been declared void and petitioner-respondent has been declared duly elected as Member of Ward No. 17 of the Municipal Board, Jalore. With the consent of the learned counsel for the parties, the appeal is finally heard. 2. Brief facts of the case, are that the State Government declared elections of Municipal Board, Jalore, which were held in the month of November, 2004. The petitioner-respondent Smt. Pushaplata Bansal and non-petitioner-appellant Smt. Mamta Jain both contested the election for Ward Member from Ward No. 17. On 25.11.2004, the counting of votes took place, in which, the non-petitioner-appellant secured 315 votes and petitioner-respondent secured 244 votes, therefore, the non-petitioner-appellant was declared elected by a margin of 71 votes. After declaration of the result, the petitioner-respondent preferred an election petition under Sec. 34 of the Rajasthan Municipalities Act, 1959 (for short “the Act of 1959”) before the learned District Judge, Jalore with the allegation that the non-petitioner-appellant was holding salaried appointment under the Medical and Health Services, Government of Rajasthan. In this respect, it was alleged that the appellant was holding the post of Counsellor in the Rajasthan AIDS Control Society controlled by the Directorate of Medical and Health Services, Government of Rajasthan, Jaipur. It was further stated in the election petition the non-petitioner-appellant took charge of that post by making an application on 11.12.2003 to the Principal, Medical Officer, Jalore and she was drawing the salary under the Administrative and Financial sanction issued by the Project Director, Directorate of Medical and Health Services, Rajasthan, Jaipur. In this way, the petitioner-respondent came up with the case that the non-petitioner-appellant was disqualified from contesting the election by virtue of the provisions of Sec. 26(viii) of the Act of 1959. It was prayed that the election of the non-petitioner appellant may be declared void and the petitioner-respondent be declared as duly elected Ward Member from Ward No. 17 of Municipal Board, Jalore. 3. It was prayed that the election of the non-petitioner appellant may be declared void and the petitioner-respondent be declared as duly elected Ward Member from Ward No. 17 of Municipal Board, Jalore. 3. A reply to the Election Petition was filed on behalf of the non-petitioner-appellant (Returned Candidate) stating therein that she was not holding any salaried appointment under the Medical and Health Department, Government of Rajasthan as she was appointed as AIDS Counsellor by a Non-Government Voluntary Organization Mahaveer International and for that services, she was not being paid any salary by the State Government. It was averred that the said Organization is neither controlled nor financed by the State Government, therefore, she was not disqualified to contest the election as Member of the Municipal Board, Jalore on the date of election. The rest of the averments made against her in the Election Petition were denied. A request was made to dismiss the election petition. 4. On the basis of the pleadings of the parties, the learned Court-below framed the following issues :- ß1- D;k vizkFkhZ;k uxjikfydk pquko uoEcj] 2004 ds le; jktdh; lsok esa oSrfud fu;qfä /kkj.k fd, gq, Fkh ,oa ukekadu ds le; mlus ;g rF; fNik;k\ 2- vuqrks"kAÞ 5. In support of the pleadings, the plaintiff Smt. Pushaplata got examined herself as AW 1 and Dr. B.K. Gupta, Dy. Controller, Government Hospital, Jalore as AW 2. Certain documents were produced and got exhibited. The returned candidate Smt. Mamta Jain got herself examined as NAW 1. In defence, certain documents were produced and got exhibited. After examining oral and documentary evidence, the learned Election Tribunal arrived at the finding that the appellant was not holding the salaried appointment but was holding the post of profit and thus she was disqualified to contest the election by virtue of the provisions of Sec. 26(viii-a) of the Act of 1959. The learned Election Tribunal, further while deciding issue No. 1 in favour of the petitioner-respondent (election petitioner) declared the election of the non-petitioner-appellant (returned candidate) as null and void and declared the petitioner-respondent (election petitioner) as duly elected member from Ward No. 17 of the Municipal Board, Jalore vide judgment dt. 05.02.2007, hence, this appeal. 6. I have heard the learned counsel for the parties and have carefully perused the record of the case. 7. 05.02.2007, hence, this appeal. 6. I have heard the learned counsel for the parties and have carefully perused the record of the case. 7. During the course of arguments learned counsel for the appellant submitted that the learned Election Tribunal has failed to consider and appreciate the material available on record in right perspective and gave an erroneous judgment, that is not sustainable and liable to be set-aside. It was contended that from the perusal of the Election Petition, it is revealed that the election of the appellant was challenged on the ground that the appellant was holding salaried appointment under the Medical and Health Department, Government of Rajasthan on the date of election. Such allegations of disqualification were related to Sec. 26 (viii) of the Act of 1959. The allegations were specifically denied by the appellant that she was not holding any salaried appointment under the Central or State Government or any Local Authority. Further it was stated that she was rendering the services as Counsellor under a Non-Government voluntary Organisation Mahaveer International and that was not a salaried appointment under the Central or State Government as mentioned in Sec. 26 (viii) of the Act of 1959. The petitioner-respondent has not been able to prove that the appellant was holding the salaried appointment under the Central or State Government or any Local Authority. Learned counsel for the appellant drew my attention towards the statements of the witnesses and again retreated the contentions that it was crystal clear that the appellant was not holding salaried appointment as alleged by the petitioner-respondent. It was also urged that the learned Tribunal has not recorded any finding that the appellant was holding any salaried appointment under the Central or State Government or any Local Authority, contrary the learned Tribunal has held that the appellant was not holding any salaried appointment under the State as mentioned in Sec. 26 (viii) of the Act of 1959, therefore, the sole issue No. 1 was required to be decided against the petitioner-respondent and election petition was liable to be dismissed. But the learned Election Tribunal in this case travelled beyond the pleadings and grounds raised in the petition and wrongly held the appellant was disqualified on different issue. But the learned Election Tribunal in this case travelled beyond the pleadings and grounds raised in the petition and wrongly held the appellant was disqualified on different issue. It was contended that the petitioner-respondent has nowhere pleaded and raised this issue that the appellant was holding salaried appointment under an University or any Corporation, body Enterprise or Co-operative Society, which is either controlled or wholly or partly financed by the State Government as mentioned disqualification in Sec. 26 (viii-a) of the Act of 1959. No issue was framed in this respect by the learned Election Tribunal, therefore, the appellant was highly prejudiced, even though the petitioner-respondent has not been able to prove that the appellant working as AIDS Counsellor under a Non-Government Voluntary Organization Mahaveer International, was holding a salaried appointment under the controlled and financed by the State Government. It was urged by the learned Counsel for the appellant that on the contrary, the appellant has denied and able to explain, especially by producing letter of the State of Rajasthan dt. 13.09.2006, which was admitted by the petitioner-respondent’s side that holding the post of AIDS Counsellor was not financed by the State Government, therefore, working as a Counsellor on the advertisement for appointment of (VCTC) Counsellor issued by Mahaveer International Society was no more disqualification under Sec. 26 (viii-a) of the Act of 1959. Thus, it was submitted that the finding of the learned Election Tribunal that the appellant was disqualified under Sec. 26 (viii-a) of the Act of 1959 is against the record and liable to be quashed. It was further contended that the learned Election Tribunal at the conclusion of Issue No. 1 has not specifically held that the appellant was holding salaried appointment under Sec. 26 (viii-a) of the Act of 1959 but has held that the appellant as Counsellor was holding the post of profit, therefore, she was disqualified to contest the election but holding the post of profit has not been prescribed as disqualification under Sec. 26 (viii-a) of the Act of 1959. Thus, on the basis of the above submissions, it was urged that the learned Election Tribunal has exceeded its jurisdiction and arbitrarily decided the case against the appellant. It was prayed that impugned judgment and order may be quashed and set-aside. The election petition may be rejected and the appeal be allowed. 8. Thus, on the basis of the above submissions, it was urged that the learned Election Tribunal has exceeded its jurisdiction and arbitrarily decided the case against the appellant. It was prayed that impugned judgment and order may be quashed and set-aside. The election petition may be rejected and the appeal be allowed. 8. On the contrary, the learned Counsel for the respondent refuted the contentions placed by the appellant’s side and supported the judgment and order of the learned Election Tribunal. It was submitted by the learned Counsel for the respondent that the appellant herself has admitted in her statement that she was appointed as Counsellor and was getting salary of Rs. 4,000/- per month. It was further submitted that the fund of salary is provided by the State Government. Thus, the finding of the learned Election Tribunal that the appellant was disqualified under Sec. 26 (viii-a) of the Act of 1959 is not incorrect and is deserved to be maintained and the appeal may be disallowed. 9. I have considered the rival contentions raised by the learned Counsel for the parties and have gone through the findings given by the learned Election Tribunal and conclusion drawn thereon. 10. From perusal of the election petition, it is revealed that the ground of disqualification was made on the basis of that on the day of election, the appellant was holding salaried appointment under the Medical and Health Department, Government of Rajasthan. This type of allegation has been mentioned as disqualification under Sec. 26 (viii) of the Act of 1959 and the sole issue as stated above was framed accordingly. No other issue was pressed. For ready reference, the provisions of Sec. 26 (viii) is reproduced below:- “26 (viii). Who holds a salaried or part-time appointment under the Central or a State Government or a local authority......” 11. To prove the allegations made in the election petition, two witnesses were produced by the petitioner’s side. A.W. 1 Smt. Pushplata has simply stated that the appellant was working as Counsellor and she was getting salary but in cross-examination, she has deposed that she does not know whether the post of Counsellor is declared as post of Central or State Government. She further stated that she does not know whether the salary is paid by the State Government or not. She further stated that she does not know whether the salary is paid by the State Government or not. A.W. 2 B.K. Gupta has stated that the Budget was provided by the State AIDS Society but has not stated anything in his examination that the non-petitioner-appellant was holding any salaried appointment under the Central or State Government. From the side of the appellant, NAW 1 Smt. Mamta Jain, in her statement, has denied that at the time of election, she was not holding any salaried appointment under the Central or a State Government. She has further stated that she was appointed as AIDS Counsellor by the voluntary organization Mahaveer International and salary was paid by Mahaveer International. On the basis of the aforesaid evidence the learned Election Tribunal has also come to the conclusion that the appellant was not holding salaried appointment under the Central or a State Government or any local authority. For ready reference, the relevant portion of the finding given para 14 at page 7 of the judgment of the learned Election Tribunal is quoted as under : ß14- tgka rd vçkFkhZ;k dk lEcU/k gSa] vçkFkhZ;k dsUnzh; ljdkj ;k jkT; ljdkj ;k fdlh LFkkuh; çkf/kdj.k ds v/khu oSrfud ;k vaÓkdkfyd fu;qfä /kkj.k fd, gq, ugha Fkh-----Þ 12. In view of the aforesaid discussion, I am of the opinion, that the finding of the learned Election Tribunal to this extent, is not incorrect. 13. The learned Election Tribunal has given further finding that the appointment of the appellant as AIDS Counsellor was controlled and financed by the State and thus, she was disqualified under Sec. 26 (viii-a) of the Act of 1959. Section 26 (viii-a) of the said Act is reproduced as under :- “26 (viii-a). Who holds a salaried whole time or part-time appointment under a University or any Corporation, Body, Enterprise or Co-operative Society, which is either controlled or wholly or partly financed by the State Government.........”. 14. In this respect, the learned Election Tribunal has relied on the statement of AW 2 B.K. Gupta but looking to his overall statement of AW 2 B.K. Gupta, he has not able to support the contention of the petitioner that appointment as AIDS Counsellor was salaried appointment controlled or financed by the State Government. 14. In this respect, the learned Election Tribunal has relied on the statement of AW 2 B.K. Gupta but looking to his overall statement of AW 2 B.K. Gupta, he has not able to support the contention of the petitioner that appointment as AIDS Counsellor was salaried appointment controlled or financed by the State Government. AW 2 B.K. Gupta, in his statement has admitted that appointment of the appellant as AIDS Counsellor was made through Non-Government Organization Mahaveer International and payment of salary is also made through Non-Government Organisation. The appellant Mamta Jain was appointed by Mahaveer International, the advertisement for this post was also issued by Mahaveer International. He further admits that the post of Counsellor is not the post of Government Service. He has stated only that Budget is also provided through AIDS Society under Medical and Health Department but this is not found to be correct. After closure of his evidence, one letter date 13.09.2006 given by the Rajasthan State AIDS Control Society to appellant Smt. Mamta Jain was produced by the non-petitioner-appellant with a prayer to recall AW 2 B.K. Gupta for re-cross-examination with reference to this letter, on hearing the contents of this letter dt. 13.09.2006 was admitted by the petitioner-respondent that is verified by the order-sheet of the case title dt. 15.01.2007 and narration of admitted document is also in the judgment. The letter dt. 13.09.2006 issued by the Rajasthan State AIDS Control Society, the Director, Medical and Health Services, Government of Rajasthan, Jaipur, in which, it is stated that the Society is not getting any grant from the State. The letter dt. 13.09.2006 is reproduced as under :- ßjktLFkku LVsV ,M~l dUVªksy lkslk;Vh funsÓkky;] fpfdRlk ,oa LokLF; lsok;sa (LokLF; Hkou] fryd ekxZ] jktLFkku] t;iqj) Øekad % ,M~l@laLFkk@lwpukf/kdkj@fofo/k@2006@2121 fnukad % 13-09-2006 Jherh eerk tSu] iRuh Jh bZÓoj esgrk (,MoksdsV)] dY;k.k uxj] tkykSjA fo"k; % lwpuk ds vf/kdkj vf/kfu;e] 2005 ds rgr vkids i= fnukad 05-09- 2006 ds Øe esaA mijksDr fo"k;kUrZxr ys[k gS fd jktLFkku LVsV ,M~l dUVªksy lkslk;Vh] t;iqj dks jktLFkku ljdkj ls fdlh izdkj dk dksbZ vkfFkZd vuqnku izkIr ugha gks jgk gSaA gLrk{kj ifj;kstuk funsÓkdÞ 15. On the basis of this admitted document, it can be inferred that the State Government has not financed any fund to Non-Government Organization like Mahaveer International for the payment of salary to the Counsellors and in this way, the oral statement of AW 2 B.K. Gupta to this extent is not correct. No further explanation has been placed by the petitioner-respondent with reference to letter dt. 13.09.2006. The documents exhibited Ex. 1-A and Ex. 3-A by the petitioner-respondent’s side also do not help to conclude that it was financed by the State. NAW 1 Mamta Jain has stated in her statement that she was appointed as AIDS Counsellor by Mahaveer International a Non-Government Organization and she was getting salary from Mahaveer International. Thus, after perusal of the total evidence, it is not established that whatever the appellant was getting as AIDS Counsellor was financed by the State Government as required to prove as disqualification under Sec. 26 (viii-a) of the Act of 1959. The learned Election Tribunal to this extent has not properly appreciated the material available on record. The learned Election Tribunal also misread the admitted letter dt. 13.09.2006 issued by the Rajasthan State AIDS Control Society, in which, the Society has clearly stated that no fund was provided by the State Authority, therefore, it is also not proved that the appellant was holding salaried appointment as AIDS Counsellor and the fund of the salary was financed by the State as required to be proved to hold disqualification under Sec. 26(viii-a) of the Act of 1959. Thus, the finding of the learned Election Tribunal in this respect is not sustainable. Though this was not specifically pleaded by the petitioner-respondent in her election petition but even this ground of disqualification is not proved and the petitioner-respondent is not entitled to get any relief on this count. Further the learned Election Tribunal at the conclusion of issue No. 1 held that the appellant was holding the post of office but to this extent neither it was the case of the petitioner nor it has been prescribed as disqualification under Sec. 26 (viii) or Sec. 26 (viii-a) of the Act of 1959 nor it was a matter within the scope of issue No. 1 framed by the learned Election Tribunal. Thus, from the finding given by the learned Election Tribunal with regard to disqualification of the appellant to contest the election and chosen as elected Ward Member is not established and the judgment passed by the Election Tribunal is not sustainable and is liable to be set-aside and quashed. 16. On the basis of the aforesaid discussion, the appeal deserves to be accepted, therefore, that is hereby allowed and the judgment and order of the learned Election Tribunal in Election Petition No. 47 of 2005 dt. 05.02.2007 is set aside and quashed. The election petition of the petitioner-respondent is disallowed. It is held that the non-petitioner-appellant was disqualified to contest the election and she was duly and validly elected member of Ward No. 17 of the Municipal Board, Jalore. No order as to costs.