A change of mind by a voter after marking a ballot paper in favor of a candidate does not constitute a spoilt ballot paper within the meaning of clause 43 of the Rajasthan Municipalities Election Order, 1960.

JUDGEMENT :- This is a miscellaneous election appeal filed under Section 46 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act') and is directed against the order of the learned Munsiff Magistrate. Beawer dated 3rd June, 1972, whereby the learned Munsiff allowed the election petition of respondent No. 1 and set aside the election of the petitioner and in his place declared respondent No. 1 as duly elected member of the Beawer Municipal Council from Ward No. 2 thereof.

The general election for Beawer Municipal Council were held on 25th Oct, 1970. Petitioner Lala Maharaj and respondent No. 1 were the candidates from ward No. 2 and both of them secured equal votes i.e. 320 votes each. The Returning Officer after drawing lots under clause 56(c) of the Rajasthan Municipalities Election Order, 1960, declared Lala Maharaj as duly elected candidate from ward No. 2 of the Municipal Council, Beawer. The election of Lala Maharaj was then challenged by respondent No. 2 mainly on the ground that one of the votes was illegally accepted and counted in favour of Lala Maharaj and therefore, his election may be declared as void and in his place Ramcharan, who was the petitioner, before the learned Munsiff may be declared duly elected. After the trial of the election petition the learned Munsiff held that the Presiding Officer illegally cancelled the ballot paper bearing serial No. 00337, issued to a blind voter and in its place issued another ballot paper bearing serial No. 00335 which was cast in favour of Lala Maharaj. According to the averment made in the petition the former ballot paper which was said to have been illegally cancelled by the Presiding Officer, was marked by the Presiding Officer at the instance of the voter for Ramcharan but later on the said ballot paper was cancelled at the request of the Voter and another ballot paper was issued to her and was then marked in favour of Lala Maharaj and thus according to the respondent No. 1, who was the petitioner before the learned Munsiff, the ballot paper bearing serial number 00335 could not be counted in favour of Lala Maharaj. In view of this averment it was craved that Ramcharan be declared as duly elected from ward No. 2 as he secured one vote more than Lala Maharaj. The learned Munsiff recorded the finding that the ballot paper bearing serial number 00337 was illegally cancelled by the Presiding Officer and the second ballot paper issued to the same voter, cannot, therefore, be taken to a valid vote. In this view of the matter, the learned Munsiff set aside, the election of Lala Maharaj and declared respondent No. 1 Shri Ramcharan as duly elected member from Ward No. 2 to the Municipal Council, Beawer.

2. This appeal has been filed by Lala Maharaj challenging the order passed by the Munsiff, mainly on two grounds; (1) that the learned Munsiff sitting at Beawer had no Jurisdiction to entertain, and hear the election petition because the Civil Judge with headquarters at Ajmer has been directed by the State Government under Notification of June 1, 1970, published in the Rajasthan Rajpatra of June 2, 1970, to sit at Beawer as is apparent from Column No. 5 of the said Notification. That notification was issued by the State Government under the powers conferred by Sub-Section (1) of Section 7 read with Sub-Section (1) of Section 12 and Sub-Section (1) of Section 16 of the Rajasthan Civil Court Ordinance, 1950. (2) That the judgement of the trial Court recording cancellation of vote on ballot papers bearing serial number 00335 is ex facie, erroneous because the ballot paper issued to the same voter was spoilt as it was marked in a manner different from the desire of the voter.

3. Election petitions are presented in accordance with Section 40 of the Act which reads as follows :-

"Section 40 : Who shall hear petition - (1) An election petition may be presented to and shall be heard by - (a) the District Judge sitting at the place where the Municipal office