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2021 DIGILAW 737 (RAJ)

Purushottam Lal v. Jitendra Goyal

2021-04-01

SANJEEV PRAKASH SHARMA

body2021
JUDGMENT 1. The petitioner assails the order dated 4.2.2021 whereby the Court of Additional District and Session Judge No.1, Bharatpur allowed the application under Order 7 Rule 11 CPC and dismissed the election petition No.09/2020 filed before it challenging the election of the Vice Chairman of the Nagar Palika, Roopwas. 2. Learned counsel for the petitioner submits that the order of rejecting the election petition is illegal and unjustified. Learned counsel submits that as the petitioner was the voter, he has a right to challenge the election of any candidate. 3. Learned counsel submits that the petitioner has a right emanating from the Act as he participates in the election. He, therefore, obviously can raise the issue especially in cases where the person elected is on the post. 4. The election petition filed by the petitioner was dismissed on the application moved under Order 7 Rule 11 CPC on the same ground that the petitioner as a voter would not have a right to file the election petition. 5. Learned counsel submits that under Section 31 of Rajasthan Municipalities Act, 2009 (hereinafter referred to as "the Act of 2009")/ the election petition can be filed by any person and therefore the Rules which only allow election petition to be filed by those who have participated in the election, would not come in a way for filing of election petition by the voter. 6. Learned counsel also relies on the judgment passed in the case of Smt. Sameera Bano Vs. State of Rajasthan & Ors. reported in 2007(2) WLC(Raj.) 526 to submit that a Full Bench has also taken a view that a voter can file an election petition. 7. I have considered the submissions. 8. Section 31 of the Rajasthan Municipalities Act, 2009 reads as under:- "31. State of Rajasthan & Ors. reported in 2007(2) WLC(Raj.) 526 to submit that a Full Bench has also taken a view that a voter can file an election petition. 7. I have considered the submissions. 8. Section 31 of the Rajasthan Municipalities Act, 2009 reads as under:- "31. Election petition.- (1) The election of any person as a member of a Municipality may be questioned by an election petition filed within one month from the date of election before the District Judge having territorial jurisdiction over the municipal area on one or more of the following grounds, namely: (a) that on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act, or (b) that any corrupt practice specified in Section 29 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or (c) that any nomination has been improperly rejected, or (d) that the result of the election, in so far as it concerns a returned candidate has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes. (2) In hearing the election petition, the District Judge shall follow such procedure and exercise such powers as may be prescribed. 9. (2) In hearing the election petition, the District Judge shall follow such procedure and exercise such powers as may be prescribed. 9. From the perusal of the aforesaid provision of Section 31 of the Act of 2009, it is apparent that the word "petitioner" has been used in Clause-(e) and (f) which clearly indicates that the petitioner has to be a person to file an election petition who has participated in the election as a candidate. Interpretation sought to be made by the learned counsel for the petitioner is therefore found to be wholly misconceived. 10. Further submission of learned counsel for the petitioner with reference to the case of Smt. Sameera Bano (supra) is also found to be misconceived as in para 33 of the judgment mentioned that even under Section 43 of the Rajasthan Panchayati Raj Act, 1994, third party cannot challenge the election. The candidate can alone challenge election of the successful candidate. The only observation in Smt Sameera Bano (supra) is with reference to filing of writ petition directly by any of other persons which would be in the nature of writ of quo warranto. In fact, similar observation was made by the Single Bench in one case which has been set aside by the Division Bench in D.B. Special Appeal (Writ) No.1120/2013: Hanuman Vs. State of Rajasthan & Ors. decided on 2.5.2014. 11. The interpretation sought to be made by the counsel for the petitioner is therefore without any basis. The order passed by the learned Additional District and Session Judge No.1, Bharatpur rejecting the election petition filed by incompetent person namely person who was not a candidate in the election, does not warrant any interference. 12. The writ petition is accordingly dismissed.