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Venkatrao Vithalrao Vs. Vithal Sambhaji - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1730 of 1962
Judge
Reported in(1963)65BOMLR545; 1963MhLJ834
AppellantVenkatrao Vithalrao
RespondentVithal Sambhaji
DispositionPetition dismissed
Excerpt:
.....the election on the ground that the person declared elected was a disqualified person at the time his nomination paper was filed.;jagan nath v. jaswant singh [1954] a.i.r. s.c. 210, referred to. - - guttal is well founded and it is not, therefore, necessary to deal with the other two contentions. 4. it would be convenient at this stage to notice the relevant provisions of the act as well as the rules. but then, it is a well-settled rule of construction that a statute has to be considered as a whole, and the intention of the legislature has to be gathered not from reading one section isolated from other sections having relevance to the subject-matter of the legislation. jaswant singh [1954]1scr892 :the general rule is well settled that the statutory requirements of election law..........are called the 'maharashtra zilla parishads election rules, 1962'. rule 2 is the interpretation rule. rules 3 to 10 deal with the administrative machinery in the conduct of elections. rule 11 provides for fixation of various stages of the election. rule 12 provides for the publication of the programme of election; rule 14 relates to the presentation of nomination papers and requirements for valid nominations. rule 15 permits a person to contest election in more than one electoral division of a district if he is qualified to do so. rule 16 relates to the grant of symbols at the election of the councillors. rule 17 relates to the deposit to be made at the time of nomination. rule 18 provides that the returning officer shall, on receiving the nomination paper under sub-rule (1) of rule.....
Judgment:

Tambe, J.

1. This is a petition under Article 227 of the Constitution of India, wherein it is prayed that the order of the Election Tribunal, respondent No. 4 to this petition, be quashed. The question that principally arises for consideration is whether in an Election Petition, filed under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, V of 1962, (hereafter referred to as the Act), it is open to a voter to challenge the election on the ground that the person declared elected was a disqualified person at the time his nomination paper was filed, and the matter arises thus:

2. An election was scheduled to be held on May 27, 1962, for election of a councillor from Barahalli Electoral Division in Nanded District, for a seat in the Zilla Parishad of Nanded District. The petitioner and respondents Nos. 2 and 3 filed their nomination papers for contesting the election. At the time of the scrutiny, it appears, no objection was raised to the candidature of the petitioner by any person. The scrutiny Officer, therefore, accepted the nominations of all the three candidates. After the acceptance of the nomination paper, respondent No. 3 withdrew his candidature, and the contest remained only between the petitioner and respondent No. 2. A poll was taken on May 27, 1962, and after counting of votes on June 1, 1962, the petitioner was declared elected by a majority of 945 votes. On June 16, 1962, respondent No. 1, a qualified voter from that constituency, filed an election petition before the District Judge, Nanded, seeking to set aside the election of the petitioner and for a declaration that respondent No. 2 has been duly elected. The grounds on which the election petition was founded were two-fold. Firstly, it was contended that the petitioner was disqualified from being a candidate and being elected as a councillor under Section 16(1)(h) of the Act, inasmuch as he was a Police Patel under the service of Government. The second contention was that the election was vitiated on account of certain practices resorted to by the petitioner. This election petition was sent for inquiry to respondent No. 4 under the provisions of Section 27(2) of the Act. In opposing the election petition, the petitioner denied the allegations contained in the petition. According to him, he was not the Police Patel at the time of his nomination, but had resigned the office sometime before. He also denied that he resorted to any corrupt practices. He further raised two contentions. Firstly, it was his contention that the petition was barred by time, and secondly, it was his contention that even if the petitioner suffered from a disqualification under Section 16(1)(h) at the time of the nomination, it was not open to respondent No. 1 to challenge the election on that ground, inasmuch as the decision of the Returning Officer in accepting his nomination paper was final and conclusive under Clause (8) of Rule 20 of the Maharashtra Zilla Parishads Election Rules, 1962, framed under the Act. The Election Tribunal held that the petition was not barred by time; that the corrupt practices had not been proved; that the petitioner was a Police Patel in the service of the Government at the time of the nomination and was, therefore, disqualified from being a councillor in the Zilla Parishad; that the provisions of Clause (8) of Rule 20 of the rules did not come in the way of respondent No. 1 from challenging the election of the petitioner on the ground of disqualification. In this view of the matter, the Election Tribunal allowed the election petition, set aside the election of the petitioner, and directed that a copy of the judgment be forwarded to the Collector, Nanded, forthwith for the purpose of holding a fresh election in the Electoral Division in question. It is this order of respondent No. 4 that the petitioner seeks to get quashed by this application.

3. Mr. Guttal, learned advocate appearing for the petitioner, has raised three contentions before us. He first contends that it was not open to respondent No. 1 to challenge the petitioner's election on the ground that the petitioner was disqualified at the time of nomination, inasmuch as finality has been given to the decision of the Returning Officer, accepting or rejecting the nomination papers. He next contends that the petition filed by respondent No. 1 was barred by time, and therefore, should have been dismissed in limine. Lastly, he contends that the office of the Police Patel is not an office of profit, and therefore, in any event, the Tribunal was in error in setting aside the election of the petitioner. On the other hand, Mr. Adik, appearing for respondent No. 1, contends that the petition has not been barred by time. The office of the Police Patel is an office of profit under the Government, and Clause (8) of Rule 20 does not come in the way of a voter, other than a candidate, from raising a challenge by way of an election petition, that the returned candidate was disqualified from being nominated as a councillor; the rule would come in the way only of the candidates who had an opportunity of objecting to the nominations at the stage of the scrutiny of nomination papers. In our judgment, the first contention raised by Mr. Guttal is well founded and it is not, therefore, necessary to deal with the other two contentions.

4. It would be convenient at this stage to notice the relevant provisions of the Act as well as the rules. Section 10 provides that the councillors shall be elected in the manner provided by or under the Act. The term of office of councillors is normally 5 years unless otherwise provided for. Section 11 prescribes the date of the commencement of the office of councillors. Section 12 provides for the division of a District into electoral divisions, and the manner of division of a District into electoral divisions. Section 13 deals with the preparation of list of voters and the preparation of the electoral roll. Section 14 provides that the election of persons to a Zilla Parishad shall be held on such date or dates (including a date for holding a fresh election under Sub-section (2) of Section 27) as the Collector may appoint in this behalf. The proviso to Sub-section (1) of Section 14 is not material for the purposes of this case. Sub-section (2) of Section 14, which is material for the purpose of the decision of the question that arises before us, is in following terms:

(2) The State Government shall make rules for the conduct of such elections (including the provision for an appeal to a judge not below the rank of a District Judge against the decision of a returning Officer accepting or rejecting the nomination paper and the finality of his decision) and subject to the provisions of Sub-section (1) and of Sections 15, 17 and 18, the election shall be conducted in accordance with these rules.

Section 15 provides that every person whose name is in the list of voters of any electoral division in a District, shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected, and every person whose name is not in such list shall not be qualified to be elected from any electoral division of that District. Section 16 enumerates the various disqualifications. Clause (h) of Sub-section (1) of Section 16 is in following terms:

(h) if he holds any office of profit under a panchayat or Zilla Parishad or under or in the gift of the Government;

Section 17 deals with and enumerates persons who are entitled to vote at the election. Section 18 provides that subject to any disqualification incurred by a person, the list of voters shall be conclusive evidence for the purpose of determining under Sections 15 and 17 whether any person is qualified or is not qualified to vote, or as the case may be, is qualified or is not qualified to be elected at any election. Sections 19 to 25 are not material for the purposes of this case. Section 26 provides the procedure to be followed if the contesting candidates poll equal votes. In short, it empowers the Collector or an officer authorised by him to declare the results by drawing lots. Section 27 relates to the determination of validity of an election and inquiry in respect thereof, the material part whereof is in the following terms:

27. (1) If the validity of any election of a Councillor or the legality of any order made or proceedings held under Section 26 is brought in question by any person qualified to vote at the election to which such question refers, such person may, at any time within fifteen days after the date of the declaration of the result of the election or the date of the order or proceeding, apply to the District Judge of the district within which the election has been held, for the determination of such question.

(2) An enquiry shall thereupon be held by a Judge, not below the rank of an Assistant Judge, appointed by the State Government either specially for the case, or for such case generally; and such Judge may, after such inquiry as he deems necessary, pass an order confirming or amending the declared result of the election or the order of the Collector or of any officer empowered by him in that behalf under Section 26, or setting the election aside. For the purposes of the said enquiry, the Judge may exercise any of the powers of a civil court, and his decision shall be conclusive. If the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 14.

Sub-sections (3) to (8) of Section 27 are not material for the purposes of this case. Section 274 empowers the State Government to make rules. Clauses (i) and (iii) of Sub-section (2) thereof are relevant, and they read:

(2) In particular and without prejudice to the generality of the foregoing provisions, the State Government may make rules for all or any of the following matters-

(i) under Sub-section (2) of Section 9, prescribing the time at which and the manner in which the names of Councillors shall be published;

(ii) ....

(iii) under Sub-section (2) of Section 14, the manner in which election of persons to a Zilla Parishad shall be conducted and other matters specified therein;

In exercise of Clauses (i) and (iii) of Sub-section (2) of Section 274 of the Act read with Sub-section (2) of Section 14, and all other powers providing it to make rules in this behalf, the Government of Maharashtra has framed rules, which are called the 'Maharashtra Zilla Parishads Election Rules, 1962'. Rule 2 is the interpretation rule. Rules 3 to 10 deal with the administrative machinery in the conduct of elections. Rule 11 provides for fixation of various stages of the election. Rule 12 provides for the publication of the programme of election; Rule 14 relates to the presentation of nomination papers and requirements for valid nominations. Rule 15 permits a person to contest election in more than one electoral division of a District if he is qualified to do so. Rule 16 relates to the grant of symbols at the election of the councillors. Rule 17 relates to the deposit to be made at the time of nomination. Rule 18 provides that the Returning Officer shall, on receiving the nomination paper under Sub-rule (1) of Rule 14, inform the person or persons delivering the same of the day, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing description similar to those contained in the nomination paper, both of the candidate and of the proposer. Rule 19 relates to the scrutiny of nomination, and, inter alia, provides as follows:

19. (1) On the date fixed for the scrutiny of nomination under Rule 11, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at the time and place appointed in this behalf under Rule 11 and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered as required by Sub-rule (1) of Rule 14.

(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, that is to say:

(a) that the candidate is disqualified for being chosen to fill the seat by or under the Act;...

(3) ....

(4) ....

(5) ....

(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

(7) ....

(8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall, subject to the provisions of Rule 20, prepare a list of candidates whose nominations have been accepted. Immediately after the scrutiny is over, the Returning Officer shall affix the list on his notice board and shall record the date on which, and the time at which, the list was so affixed.

Rule 20 deals with the right of appeal against the decision of the Returning Officer, and the material part thereof is in the following terms:

20. (1) Any candidate, aggrieved by a decision of the Returning Officer accepting or rejecting a nomination paper, may present an appeal therefrom to the District Judge of the District in which the area of the Zilla Parishad is situate within a period of three days from the date on which the notice, containing the names of the candidates accepted by the Returning Officer is affixed on the notice board under Sub-rule (8) of Rule 19 and shall ordinarily furnish on the same day to the Returning Officer a copy of the petition of appeal together with as many copies of the petition as there are candidates whose nomination papers have been accepted (excluding himself).

Sub-rule (2) deals with the steps which the Returning Officer has to take on receipt of the copies of the appeal furnished to him by the appellant. Sub-rule (3) enjoins a duty on the part of the Returning Officer to supply forthwith to the candidate a copy of the decision if he so requires. Sub-rule (4) enumerates the persons who are to be joined to the election petition. Sub-rule (5) relates to the notice to he given of the hearing of the appeal and it provides that the notice affixed to the notice board of the Returning Officer under Clause (a) of Sub-rule (2) shall be deemed to be sufficient notice, both of the presentation of an appeal and of the date on which the hearing thereof shall commence before the District Judge, and it shall not be necessary to give any other notice to the appellant or the respondent and the appeal shall be deemed to have been fixed for peremptory hearing on the said date. Sub-rule (6) relates to the power of the District Judge in hearing the appeal, and Sub-rule (7) provides that the appeal shall he heard from day to, day and decided expeditiously. Sub-rule (8) is as follows:

(8) The decision of the District Judge on appeal under this rule and, subject only to such decision, the decision of the Returning Officer accepting or rejecting the nomination of a candidate shall be final and conclusive and shall not be called in question in any court or before a Judge referred to in Sub-section (2) of Section 27.

Rule 21 deals with the withdrawal of the candidature. Rule 22 deals with the preparation of list of contesting candidates thereafter, and Rule 23 relates to the publication of the list of contesting candidates. These are all the relevant rules for the purpose of the decision of the issue, and it is clear that the Legislature in no uncertain terms has expressed its intention that a rule should be made for providing an appeal against the decision of the Returning Officer accepting or rejecting the nomination paper, and finality should be given to such decision of the Returning Officer, and rule in respect thereof should be made by the State Government. The State Government has accordingly made rules, and Sub-rule (8) of Rule 20 is the rule made in this respect, and on the language of that sub-rule, it is clear that the decision of the Returning Officer accepting or rejecting the nomination paper, subject to the decision in appeal by the District Judge, is made final and conclusive in all respects including the proceedings in election petition provided in Sub-section (2) of Section 27 of the Act. In our opinion, therefore, it was not open to respondent No. 1 to challenge the election of the petitioner on the ground that the nomination paper of the petitioner ought not to have been accepted because he was disqualified for being chosen to fill the seat by or under the provisions of the Act. It is, however, the contention of Mr. Adik that the finality and conclusiveness which is given in Sub-rule (8) of Rule 20 operates only against the candidates and other persons mentioned in Sub-rule (1) of Rule 19, who have been given a right to appear before the Returning Officer and challenge the nomination of any candidate. It is the argument of Mr. Adik that Section 27 confers an unqualified right on a voter to challenge the validity of the election of a returned candidate. There is no limitation placed on his right by Section 27. We would, therefore, not be justified in placing any restriction on that right by holding that it is not open to a voter to challenge the election of a returned candidate on the ground of improper acceptance of his nomination paper. The reasoning adopted by respondent No. 4, also is similar to the argument of Mr. Adik. It is true that Section 27 read by itself indicates that an unqualified right is conferred on a voter to challenge an election. In other words, Section 27 read by itself would show that a voter could challenge the election of a returned candidate on any ground available to him under the law. But then, it is a well-settled rule of construction that a statute has to be considered as a whole, and the intention of the Legislature has to be gathered not from reading one section isolated from other sections having relevance to the subject-matter of the legislation. Chapter II deals with the constitution of Zilla Parishads, and has been divided under different heads. Sections 10 to 37 fall under the head 'Election of Councillors'. Sections 14 and 27 fall under this head. They both relate to the same subject-matter. The intention of the Legislature in respect of this subject-matter has to be gathered from the various provisions contained in the sections falling under this head and as already stated, the Legislature while dealing with the subject-matter, has, in clear terms expressed in Sub-section (2) of Section 14 its intention of giving finality to the decision of the Returning Officer either accepting or rejecting the nomination paper. It is, therefore, that the Legislature has directed that the appeal to be provided against such a decision of the Returning Officer should lie to a Judge not below in rank of a District Judge, and it is to this decision of such a high Judicial Officer that the Legislature has directed that finality should be given. These two Sections 14(2) and 27(2) will have to be read together in construing, and when so construed, it becomes apparent that though the voter has been given a right to challenge the validity of the returned candidate, he cannot challenge that election on the ground which could have been raised before the Returning Officer at the time of the scrutiny of the nomination paper. And the relevant rule, viz. Clause (a) of Sub-rule (2) of Rule 19 shows that the nomination of a candidate could be challenged on the ground that he was disqualified for being chosen to fill the seat by or under the Act. This ground, therefore, would not be open to the voter for challenging the election under Section 27 of the Act. It is true that voters other than the candidates, i.e. the agents and proposers of each candidate and one other person authorised in writing by each candidate only, have not been given a right to appear at the time of the scrutiny of the nomination paper and raise objections to the acceptance of the nomination paper, and the voters apart from these persons would not have the opportunity of objecting to the nomination paper. But from that it does not necessarily follow that voters other than those mentioned in Sub-rule (2) of Rule 19 would have or must have that right by filing an election petition, and therefore we must read that right in Section 27, or we must hold that that right is not taken away by the rules framed to give effect to the intention of the Legislature disclosed in Sub-section (2) of Section 14 of the Act. It has to be kept in view that in matters of election, there are no common law or inherent rights as such. The rights in relation thereto are only those as can be inferred from the provisions of the Act. It has been pointed out by their Lordships of the Supreme Court in Jagan Nath v. Jaswant Singh : [1954]1SCR892 :

The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.

It is clear that the right to set aside the election cannot be claimed apart from the provisions of the statute, and if the statute does not give it, it cannot be imported from the common law. The fact, therefore, that a voter other than those mentioned in Sub-rule (2) of Rule 19 has no right to challenge the validity, of the nomination paper, would be no ground for holding that he has a right to raise that challenge in an election petition. Further, it is not the case that a person who suffered a disqualification under the provisions of the Act could not be removed from his office at all if no objection is raised to his candidature at the nomination stage. It does appear from the provisions of Section 40 of the Act that a machinery is provided therein for a declaration that the office of such a councillor has become vacant.

5. For the reasons stated above, in our opinion, the Tribunal was not justified in holding1 that it was open to respondent No. 1 to challenge the election on the ground that the nomination paper of the petitioner was improperly accepted, he being at the time, disqualified for being chosen to fill the seat by or under the Act. The petition, therefore, will have to be allowed.

6. In the result, the rule is made absolute, the order of respondent No. 4 is hereby quashed, and the election petition filed by respondent No. 1 is dismissed. Respondent No. 1 shall pay the costs of the petitioner.


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