An election petition challenging the election of a Chairman of a Municipal Board on the ground of non-compliance with the provisions of the Act or Rules is not maintainable unless it is pleaded that the result of the election was materially affected by such non-compliance.

1. - Instant appeal impugns the judgment dated 24.4.1998 of the learned Additional District Judge No. 1 Bharatpur, whereby the election petition instituted by the respondent No. 1 was allowed and the election of the appellant for the post of Chairman, Municipal Board Bhushawar was declared illegal.

2. Brief resume of the facts is that the election petition was filed by the respondent No.1 Prakash Chand Bansal, under Section 66 of the Rajasthan Municipalities Act, 1959 (for short the Act) wherein it was pleaded that he was elected member of Municipal Board, Bhushwar (for short the Board) from Ward No. 3. The election for the post of Chairman of the Board took place on 19.12.1995, wherein the candidates secured votes as under:-

(i) Prakash Chand Bansal (respondent No. 1) 4 Votes

(ii) Gordhan Lal Garg (appellant) 9 Votes

(iii) Pushpa Devi (respondent No. 7) 1 Vote
It was further pleaded in the election petition that the State Election Commission made a declaration about elections of Municipal Boards in District Bharatpur on 28.11.1995 and as per the said declaration the election for the post of Chairman was fixed on 19.12.1995. Shri Bharatlal Meena was appointed as District Returning Officer for the election of Chairman. A change was introduced and Shri K.R. Kamlesh was appointed as District Returning Officer in place of Shri Bharat Lal Meena. Time for election was fixed as 2.30 p.m. to 5.00 p.m. but the election was completed between 2.00 p.m. to 2.30 p.m. The time of half hour was insufficient. It was further pleaded that Government machinery was mis-used and voters were threatened and undue influence was used. Some elected members proposed more than one candidate which was contrary to the Rules. It was thus prayed that election petition be allowed and the election of appellant be declared illegal. Reply of election petition was filed by the appellant denying the allegations. On the basis of the pleadings of the parties, the learned Court below framed as many as six issues which have been reproduced in the judgment of the Court below. The election petitioner respondent No. 1 examined himself as AW 1, Anil Kumar Gupta as AW 2 and exhibited one document. The appellant examined himself as NAW. 1 and one Ghanshyam as NAW.2 and exhibited three documents. The learned Court below after hearing arguments of the parties decided issues 1, 2 & 5 in favour of the election petitioner respondent No. 1. Issues 3 and 4 were decided against the election petitioner and on the basis of decision on issues 1, 2 & 5 the election of appellant was declared illegal.

3. I have reflected over the rival submissions advanced before me by the learned counsel for the parties Shri Narendra Jain and Shri S.R. Surana and carefully scanned the impugned judgment as well as the material on record. Issues 1, 2 & 5 respectively relate to change of District Returning Officer, in-sufficient time of polling and illegal proposal of candidature of the candidates.

4. Before proceeding further it is necessary at this juncture to examine R. 3 of the Rajasthan Municipal Boards' Chairman and Vice Chairmen and Municipal Councils, Presidents and Vice Presidents (Election Petition) Rules, 1959 (for short Rules 1959). Rule 3 provides as under:

"3. Grounds on which election may be called in question.-The election of a Chairman, Vice Chairman, President, or Vice President maybe questioned by a candidate who has been defeated or whose nomination has been rejected by an election petition on one or more of the following grounds:- (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 35 of the Act has been committed by a returned candidate or by any other person with the consent of returned candidate, or

(c) that any nomination has been improperly rejected or that the result of the election in so far as it concerns a returned candidate has been mat