Full Judgment
G.M. Lodha, J.
1. In this writ petition, the petitioner whose election was set aside by the election tribunal, has challenged the judgment of the Election Tribunal. The short point in dispute in the election petition before the Tribunal was about the age of the petitioner. The petitioner was elected as Panch of the Gram Panchayat for Ward No. 7 of Anthera on 10th December, 1981.
2. Ghanshyam, the respondent filed an election petition mentioning that the petitionerNarainsingh was born on 6th June, 1962 and, therefore, he was not 25 years of age at the time of acceptance of the nomination papers.
3. The Tribunal on a proper appreciation of evidence including the statement of Ghanshyam (PW 2), the electoral rolls of the Panchayat Ex. 2 containing an entry that Narainsingh was of 23 years of age, the statement of P. W. 1, Babulal, Head Master, Government Higher Secondary School Talera who proved the date of birth of Narainsingh as recorded in school Register, as 6th June, 1962; came to the conclusion that allegation of the election petitioner was correct and on account of that, Narainsingh was not qualified to contest the election of Panch, as he was below 25 years of age.
4. According to Section 11(b) of the Rajasthan Panchayat Act, 1953, a Panch is required to be at least 25 years of his age for being elected as a Panch in Gram Panchayat, Section 11(b) of the Act, 1953 reads as under :
'11. Qualification of Panchas.-- Every person, who is entitled to vote at an election in any Panchayat Circle or a ward thereof for the purposes of this Act, shall be qualified for election or appointment as a Panch unless such person : --
((a) not relevant here.)
(b) is under 25 years of age;'
5. The above finding of the fact is just and proper and is based on proper appreciation of the evidence which is unrebutted. 1 am not inclined to interfere against this finding of fact.
6. It was then argued that the Election Tribunal had no authority to declare the election petitioner as elected in place of Narain Singh. It was conceded that the nomination papers were filed by two persons, namely. Narain Singh and another, Ghanshyam.
7. As a legal and logical corollary, when there were only two contestants out of which, one Narain Singh was disqualified on account of non-fulfilment of requirement of age according to the provisions contained in Section 11(b) of the Rajasthan Panchayat Act Shri Ghanshyam was entitled to be declared elected.
8. Mr. Sharma, the learned counsel for the petitioner, submitted that no such powerhas been given to Election Tribunal under the law to declare some other person as elected. I find that this is against the express provisions of Rule 85(1)(c) of the Panchayat & Nyaya Panchayat Election Rules, 1960 because Rule 85(1) (c) of the Rules of 1960 expressly empowers the Munsif or Civil Judge acting as Election Tribunal in the election dispute to declare the petitioner or any other candidate to have been duly elected. Rule 85(1)(c) of the Rules 1960 reads as under : --
'85. Order of Court.- (1) Upon the conclusion of the hearing the Munsif or Civil Judge shall make an order- (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.'
9. The learned counsel relied upon the decision of this court in Gangaram v. Sheokaran (1962 Raj LR 454). In this case, the question was regarding difference of votes and in that context, it was held that it cannot be assumed that the votes which were cast in favour of Gangaram would have gone to Shiv Karan. In view of the above, I am of the opinion that the principles laid down in Gangaram's decision has got no application in the present case.
10. The petitioner's counsel then submitted that the election petition was time barred. I find from the judgment of the Election Tribunal that no such objection was raised before it and, I am, therefore, not inclined to accept this objection, as it is the first time when such objection regarding election petition having been filed after the expiry of the limitation period is being raised before this Court and because basically it is a fact to be adjudicated on the basis of the factual date by the original forum.
11. With the above observations, this writ petition fails and is hereby dismissed in limine.