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Batu Lalu Vs. P.S. Malvankar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 220 of 1962
Judge
Reported inAIR1967Bom216; (1964)66BOMLR573; ILR1964Bom866
ActsMaharashtra Zilla Parishad Election Rules, 1962 - Rules 14(2), 14 (6) and 19(3)
AppellantBatu Lalu
RespondentP.S. Malvankar and ors.
Appellant AdvocateB.R. Mandlekar, Adv.
Respondent AdvocateS.M. Hajranavis, Asst. Govt. Pleader and ;C. S. Dharmadhikari, Adv.
Excerpt:
.....19(3) - whether under rule 14(2) proposer prevented from subscribing to more than one nomination paper in respect of same candidate--infringement of rule 14(2) whether brings about total rejection of nomination of candidate--same proposer subscribing to nomination of more than one candidate for seat in electoral division whether prohibited from doing so.;under rule 14(2) of the maharashtra zilla parishad election rules, 1962, a proposer is not prevented from subscribing to more than one nomination paper in respect of the same candidate in an electoral division. the limit of exercise of this power is reached as soon as four nomination papers, whether subscribed by the same proposer or different proposers, in respect of the same candidate are received or presented to the returning..........scheme of the election rules in deciding the respective contentions. under r. 13 of the election rules, a candidate is to be nominated by presenting a nomination paper completed in form no. ii. that form requires the proposer to nominate candidate for election from the electoral division. then certain information is to be given seriatim as stated in the form. it would appear that an elector alone can be a proposer and there is no question of there being any seconder to such a nomination. rule 14 requires that each candidate shall either in person or by his proposer deliver to the returning officer during the time and at the place specified in the order the nomination paper completed as required by rule 13. the returning officer is required under r. 18 on receiving a nomination paper.....
Judgment:
ORDER

1. This petition is by one of the candidates for election to the Zilla Parishad from a constituency called Dharni Constituency, in which a seat was reserved for Scheduled Tribes or Adim Jati. The petitioner is a person belonging to the Korku caste and a member of a Scheduled Tribe or Adim Jati. An election programmer was drawn up by the Collector, Amravati, for holding elections to the Zilla Parishad in this constituency. This constituency is known as the Dharni Electoral Division in the Dharni Block in Amravati district. According to the election programme, the date for receiving nomination papers was 4th May 1962. Nomination papers were to be received by that date. The date of scrutiny was 7th May 1962, and the poll was to be taken if necessary, on 21-5-62. The petitioner was one of the candidates nominated, and so were the respondents 5, 6 and 7. The nomination of the petitioner by presenting a nomination paper was done in the following way. At 1.50 p.m. one Surjya Mahating proposed the name of the petitioner as a candidate for this constituency by presenting the nomination paper. That paper was No. 9 and the date and hour of presentation of the paper is endorsed on it. It was presented on 3-5-1962. The same proposer, Surjya Mahating, filed another nomination paper on the dame day but at 3.50 p.m. and the endorsement shows that it was numbered as 19. Another elector by name Ramlal Mangal, presented a nomination paper proposing the petitioner as a candidate on 3-5-62 at 1.55 p.m. that paper bears serial No, 10. The same elector Ramlal presented another nomination paper proposing the petitioner on the same date but at 3.50 p.m. and this nomination paper bears serial No 18 as endorsed by the Returning Officer. The petitioner has filed certified copies of the nomination paper filed by Surjya Mahating and Ramlal Mangal. On the date of the scrutiny the Returning Officer rejected the nomination of the petitioner on the ground that each of the proposer, namely,. Ramlal and Surjya Mahating, had subscribed as proposer to more than one nomination paper. All the nomination papers proposing the petitioner as a candidate were therefore rejected. Apparently, the rejection is referable to R. 14 (2) of the rules framed by the State Government, called Maharashtra Zilla Parishad Election Rules, 1962.

(2) Against rejection of his nomination the petitioner filed an appeal as provided in R, 20 of the Election Rules to the District Judge Amravati. The appeal was heard on 11-5-62 and rejected on the same day. The District Judge took the view that inasmuch as each proposer had subscribed to more than one nomination paper, all the nomination papers were liable to be rejected under R. 19 (2) of the rules. There are two statements in the order of the learned District Judge which are factually inaccurate as now admitted between the parties. In paragraph 4 of the order the District Judge mentioned that all the nomination papers filed by the appellant (petitioner) were subscribed by one and the same person. This is obviously not correct. Two of them were subscribed by Ramlal and two others were subscribed by Surjya Mahating. Similarly it is also stated in the same paragraph that there is nothing on record to show that all the nomination papers were not filed by the appellant at the same time. this statement is also not correct in view of the endorsements indicating the hour when each of the nomination papers was presented before the Returning Officer. It appears that the learned Judge did not have the original nomination papers before him and must have accepted the statements made before him as correct.

(3) The learned District Judge took the view that the provisions of R. 14 (2) were mandatory and even though sub-rule (3) of R. 19 permitted a certain amount of discretion in the Returning Officer in the matter of rejection of nomination paper on the ground of irregularity in the paper, it could not be held that the petitioner was duly nominated because the subscription to more than one nomination paper by the same proposer invalidates each of those papers. The learned Judge also considered that the petitioner was not entitled to relief under sub-rule (4) of r. 19 because it could not be said that this was not a defect of a substantial character. These findings of the learned District Judge are challenged before us in this petition.

(4) Now, it is necessary to understand the scheme of the Election rules in deciding the respective contentions. Under R. 13 of the Election Rules, a candidate is to be nominated by presenting a nomination paper completed in form No. II. That form requires the proposer to nominate candidate for election from the electoral division. Then certain information is to be given seriatim as stated in the form. It would appear that an elector alone can be a proposer and there is no question of there being any seconder to such a nomination. Rule 14 requires that each candidate shall either in person or by his proposer deliver to the Returning Officer during the time and at the place specified in the order the nomination paper completed as required by Rule 13. The Returning Officer is required under R. 18 on receiving a nomination paper under sub-r (1) of R. 14, to enter on the same its serial number and make an endorsement, called a certificate, stating the date on which and the hour at which the nomination paper has been delivered to him. Then follows sub-rule (2) of R. 14 which has raised a dispute between the parties. The sub-rule is as follows:

'Any person who is not subject to any disqualification as a voter under the Act and whose name is entered in the list of voters for the electoral division for which the candidate is nominated, may subscribe as proposer. He shall not subscribe as proposer more than one nomination paper.'

(5) There is a preliminary power of rejecting the nomination paper soon after it is presented to the Returning Officer under sub-rule (4) of R. 14. The Returning Officer is required to satisfy himself that the names and numbers in the list of voters as candidate and proposer as entered in the nomination papers are the same as those in the list of voters referred to in R. 13. But apart from this power the nomination papers are required to be scrutinized by the procedure prescribed in R. 19. On the date fixed for scrutiny of nomination papers the candidates, their election agents, one proposer of each candidate and one other person duly authorized in writing by each candidate, but not others, are entitled to attend at the time and place appointed for scrutiny. They are to be given reasonable facilities for examining the nomination papers of all the candidates which have been delivered. The follow sub-rule (2) in the following terms:

'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:

(b) that the proposer is disqualified from subscribing a nomination paper:

(c) that there has been a failure to apply any of the provisions of R. 14 or 17;

(d) that the signature of the candidate or the proposer on the nomination paper is not genuine.'

(6) Sub-rule (3) of R. 19 is also relevant and important. It provides:

'Nothing contained in Clause (c) or (d) of sub-rule (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nomination by means of another nomination paper in respect of which no irregularity has been committed.'

The follows sub-rule (4) enjoining on the Returning Officer that no nomination shall be rejected on the ground of any defect which is not of any substantial character.

(7) It is necessary to notice one other provision viz. sub-rule (6) of R. 14 to understand the scheme of nominations and rejections. That sub-rule is as follows:

'Nothing in this rule shall prevent any candidate from being nominated by more than one nomination paper for election in the same electoral division: Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer for election in the same electoral division.'

(8) In support of this petition I is urged on behalf of the petitioner that the authorities below have fallen into an error in interpreting sub-rule (2) of R. 14. The authorities have interpreted this rule to mean that it prohibits a subscriber from proposing as a candidate the same candidate in the electoral division by more than one nomination paper. It is pointed out that sub-rule (6) in express terms permits more than one nomination paper, to the maximum of four, being presented in respect of the same candidate by or on behalf of the candidate in an electoral division. The proviso prohibits presentation by or on behalf of the candidate more than four nomination papers proposing his name as a candidate from the electoral division, and also prevents the Returning Officer from accepting more than four nomination papers proposing the name of the same person as a candidate in the electoral division. It is urged that interpretation of sub-rule (2) cannot be considered without reference to the provision in sub-rule (6) of the same rule. If four different electors are entitled to subscribe to nomination of the same candidate for the electoral division by four separate nomination papers, it is contended that the inhibition in sub-rule (2) cannot be so interpreted as to prohibit one elector from subscribing to four nomination papers in respect of the same candidate. According to the petitioner, what is prohibited under sub-r, (2) is a proposer subscribing to nomination of more than one candidate and not subscribing to nomination of the same candidate by more than one nomination paper. In our opinion, this contention is well founded. We do not see any principle on the basis of which it can be contended that even though four nomination papers in respect of the same candidate may be filed by four different proposers, the same proposer is disentitled or prohibited from subscribing to more than one nomination paper in respect of the same candidate. A situation may well arise when a proposer having subscribed one nomination paper in respect of a candidate, and filed it, finds that he has committed some mistake. By way of abundant caution therefore he files another nomination paper subscribed by him, but proposing the same candidate. We fail to see any logic in preventing him to do so when the same result could have been achieved by some other proposer in the electoral division subscribing to another nomination paper but proposing the same candidate in the electoral division. The fallacy perhaps lies in equating a nomination paper in respect of different candidates. What is prohibited according to rule is the same proposer subscribing to nomination of more than one candidate for a seat in the electoral division. It is true that a proposer or an elector cannot possibly subscribe as a proposer to nomination of more than one candidate for a seat in an electoral division, but we fail to see how by an artificial interpretation of sub-rule (2) a proposer can be prevented from subscribing to more than one nomination paper in respect of the same candidate. We have not discovered any principle on which such a prohibition can be read in the interpretation of sub-rule (2) of R. 14.

(9) That this may not be the intention is also clear form sub-rule (3) of R. 19 which prescribes the circumstances in which a nomination paper is liable to be rejected on scrutiny. Sub-rule (3) if in the nature of a saving clause to Clause (c) or Clause (b) of sub-rule (2) of R. 19. Under sub-rule (3) it is provided that a nomination is not liable to be rejected in respect of a candidate on the ground of any irregularity in respect of the nomination paper if the candidate has been duly nominated by means of another nomination paper. The rule does not say that such another nomination paper may not be a nomination paper subscribed by the same proposer. We therefore hold that on a proper interpretation of sub-rule (2) of Rule 14, a proposer is not prevented from subscribing to more than one nomination paper in respect of the same candidate in an electoral division. The limit of exercise of his power by a proposer is given in sub-rule (6). That limit is reached as soon as four nomination papers in respect of the same candidate are received or presented to the Returning Officer. Whether they are subscribed by the same proposer or different proposers is not a matter of any consequence so long as the totality of the number of such nomination papers does not exceed four in respect of a single candidate.

(10) There is another aspect of this matter also which is to be considered in all such questions. The prohibition of subscribing more than one nomination paper in respect of a candidate, assuming that there is any room for accepting such interpretation of the opponents so far as sub-rule (2) of rule 14 is concerned, will only apply to invalidate subsequently presented nomination paper by the same proposer in respect of the same candidate. We fail to see how the first nomination paper, which may otherwise be valid, can be rejected on the ground that more than one nomination paper have been subscribed by a proposer in respect of the same candidate. The subsequently presented nomination paper by a proposer subscribing to the nomination of the same candidate would have been considered invalid and may be rejected because there has already been a nomination in respect of the candidate. Total rejection of the nomination infringement of sub-rule (2) unless the nomination paper which was otherwise valid and was initially presented is not capable of being acted upon. We therefore find that on either consideration the Returning Officer could not have rejected the nomination of the petitioner because more than one nomination paper was subscribed by the proposer in respect of the petitioner or because the subsequently presented nomination papers by the same proposer in respect of he petitioner were liable to be rejected under sub-rule (2).

(11) A preliminary objection was taken that there is remedy of an election petition and that the prohibition contained in sub-rule (8) of rule 20 of the Election Rules does not come in the way of the petitioner. In our opinion, there is no substance in this objection. Here, the nomination papers have been rejected by the Returning Officer, but the order does not show whether the rejection was as a result of objection raised by any candidate or his representatives or suo motu by the Returning Officer. The remedy of an election petition under section 27 of the Act is a limited remedy. The election tribunal under section 27 has to hold an enquiry under sub-section (2) of section 27. But these powers have been circumscribed by the rules as to nomination, the method of objecting to that nomination, the decision on that objection and an appeal against this decision and a finality attached to the decision of the appellate authority. In this petition we are not called upon to decide the validity of sub-rule (8) of rule 20. That being the position, we fall to see how it can still be contended that the petitioner could have challenged the decision of the Returning Officer or the District Judge in an election petition, when in terms such a decision of the District Judge on appeal is made conclusive in the matter of nomination. The appeal was preferred by the candidate. The candidate is one of the persons who can either raise an objection to the acceptance of nomination or prefer an appeal against an adverse order of the Returning Officer to the District Judge. That being the position, we do not see that there is any scope for canvassing that prohibition of sub-rule (8) of rule 20 will not come in the way of the petitioner if he were to challenge the decision regarding his nomination in an election petition.

(12) The learned counsel for the opponents 5 to 7 has attempted to support the decision of the authorities below on the ground that the prohibition is in express terms and that prohibition is that the proposer shall not subscribe more than one nomination paper. We must it is urged give effect to this provision as it stands, and it is not permissible for the petitioner to canvass that the prohibition is capable of different interpretation. In our opinion, such a contention ignores the provision of sub-rule (6) of rule 14 which must be taken into consideration and borne in mind while interpreting the prohibition contained in sub-rule (2) of rule 14 supposed to be laying down an absolute prohibition in a proposer to subscribe more than one nomination paper in a literal sense. What is intended to be prohibited is nomination of more than one candidate by the same proposer by subscribing to more than one nomination paper in respect of more than one candidate in an electoral division. An examination of the rules would show that there is no other provision prohibiting a proposer from subscribing to more than one nomination in respect of more than one candidate. It is not disputed that it is a general principle of election franchise that as for as possible a voter or a proposer or an elector is entitled to propose only one candidate for one seat, and there is considerable sense in this. If there is only one seat in an electoral division, then a proposer cannot possibly say that he is nominating or proposing more than one candidate for the same seat. The elector has to make his choice in respect of a particular candidate just as a voter has to do. Otherwise, the proposal would be meaningless. In our opinion, this result is brought about by the provision of the last sentence of sub-rule (2) of rule 14 though the language used has led to a different interpretation on account of the looseness in which the prohibition is cast. It is for this purpose that we are called upon to interpret and find out the real intention of the rule. In our opinion, that intention is to prohibit the same proposer from nominating more than one candidate for one seat in the electoral division. We therefore hold that the view taken by the Courts below that the nomination of the petitioner was liable to be rejected because more than one nomination paper were filed by two proposers in respect of the petitioner is not correct.

(13) After the scrutiny and rejection of the nomination of the petitioner, and respondents 5 and 6 are alleged to have withdrawn their candidature. The result of our decision is that the parties are relegated to the position in which they would be at the time of scrutiny of the nomination papers. We have held that the nomination of the petitioner was not liable to reject because two persons had filed two nomination papers proposing the petitioner as their candidate. The result therefore is that the case will go back to the Returning Officer for a scrutiny of the nomination paper and for his proceeding with the election process from that stage onwards. This necessarily results in respondent no. 7, who is declared as elected unopposed, being considering as still only a candidate in the election. We therefore set aside the order of the Returning Officer, declaring respondent no. 7 as having been elected unopposed to the seat in the Dharmi constituency reserved for Scheduled Tribes.

(14) The result is that the petition is allowed, but in the circumstances there will be no order as to costs.

(15) Petition allowed.


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