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Venkatappa Vs. S. Subba Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 61 of 1956
Judge
Reported inAIR1957Kant79; AIR1957Mys79; (1957)35MysLJ142
ActsMysore Town Municipalities Act, 1951 - Sections 14, 20, 20(1), 20(2), 20(3) and 20(5); Mysore Town Municipalities Election Rules, 1951 - Rule 26; Mysore Town Municipalities Election Rules, 1950 - Rule 26; Code of Civil Procedure (CPC), 1908 - Sections 208(2); Mysore City Municipalities Act, 1933; City of Bangalore Corporation Act, 1949; Rajasthan Municipalities Act, 1951 - Sections 19; Bombay District Municipal Act, 1901 - Sections 22, 22(1) and 22(2)
AppellantVenkatappa
RespondentS. Subba Rao and ors.
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateK.R. Gopivallabha Iyengar, Adv.
Excerpt:
- section 142: [k.ramanna,j] dishonour of cheque complaint by manager of partnership firm maintainability - cheque issued to partnership firm - complaint filed by a person who was neither partner nor authorized by partners to file complaint held, authorisation is necessary. even a person who is looking after entire business affairs of firm cannot file such complaint without authorization. in the absence of authorization, complaint is liable to be dismissed. - the learned election commissioner was therefore perfectly justified in holding that the first respondent had not incurred any disqualification for being chosen as a member of the municipal council and setting aside the election of the appellant and directing fresh elections to be held in the sixth division. courts in india as.....hombe gowda, j.1. this is an appeal filed under section 20(2) of the mysore town municipalities act of 1951 against the order passed by the election commissioner, chikmagalur in election mis. (old no. 24/56) new no. 13 of 1956 on his file, setting aside the election of the appellant as a municipal councillor from the sixth division of the town municipal council, chikmagalur held on 27-2-1956 and directing fresh election to be held in the said division.2. the undisputed facts are as follows: the appellant and the first respondent subba rao are the residents of chikmagatur town and they are the voters in the 6th division for the municipal council. the appellant, the first respondent, another person by name kappanna and some others filed their nomination papers for the election to be held on.....
Judgment:

Hombe Gowda, J.

1. This is an appeal filed under Section 20(2) of the Mysore Town Municipalities Act of 1951 against the order passed by the Election Commissioner, Chikmagalur in Election Mis. (old No. 24/56) New No. 13 of 1956 on his file, setting aside the election of the appellant as a Municipal Councillor from the sixth Division of the Town Municipal Council, Chikmagalur held on 27-2-1956 and directing fresh election to be held in the said Division.

2. The undisputed facts are as follows: The appellant and the first respondent Subba Rao are the residents of Chikmagatur Town and they are the voters in the 6th Division for the Municipal Council. The appellant, the first respondent, another person by name Kappanna and some others filed their nomination papers for the election to be held on 27-2-1956 to the Municipal Council from the 6th Division of Chikmagalur Town. At the time of the scrutiny, of the nomination papers by the Returning Officer, Sri Kappanna raised an objection to the candidature of the first respondent Subba Rao.

He urged that the first respondent was disqualified for being chosen as a member of the Municipal Council as he was holding an office of profit under the Government being a licensed Stamp Vendor. The Returning Officer upheld that objection and rejected the nomination paper of the first respondent. The first respondent preferred an appeal under Rule 26(b) of the Rules framed by the Government of 'Mysore under the Mysore Town Municipalities Act of 1951 to the deputy Commissioner of Chikmagalur District. The learned Deputy Commissioner, who heard the parties, upheld the decision of the Returning Officer and rejected the appeal filed by the first respondent.

Subsequently Kappanna withdrew his notice of candidature within the time allowed for withdrawal and the elections were held on 27-2-1956. The present appellant was declared elected having secured the highest number of votes. The first respondent Subba Rao then presented an election petition under Section 20 of the Mysore Town Municipalities Act to the court of the Civil Judge and Election Commissioner, Chikmagalur. Subsequently an application was made by ten of the voters of the sixth Division for being impleaded as parties and they were also added as respondents.

The appellant opposed the petition on various grounds. The first respondent examined himself and closed the case. The learned Election Commissioner came to the conclusion that the first respondent had not incurred any disqualification under Section 14 of the Mysore Town Municipalities Act and the rejection of his nomination paper by the Returning Officer was improper and that the same had materially affected the result of the election and therefore set aside the election and ordered fresh election to be held for the Sixth Division of Chikmagalur Town. It is against this decision that the present appeal is preferred by the appellant.

3. Four points arise for consideration in this appeal and they are:

(1) Whether the first respondent Subba Rao holds an office of profit and is thereby disqualified for feeing chosen as a member of the Municipal Council? (2) Whether the improper rejection of his nomination paper is a material irregularity in the conduct of the election which affected the result of the election? (3) Whether the decision of the Deputy Commissioner in appeal preferred by the first respondent against the decision of the Returning Officer under Rule 26 (i) of the Rules framed under the Mysore Town Municipalities Act. is final for all purposes? and (4) Whether an appeal under Section 20 of the Mysore Town Municipalities Act would not lie against the rejection of the nomination paper by the Returning Officer on the ground that the same has materially affected the result of the election?

4. We will take up the first point first. The first respondent Subba Rao was admittedly a stamp vendor on the date on which he presented his nomination paper. As stamp vendor he was entitled to get commission at a fixed rate from the Government on the value, of stamps sold by him. The Returning Officer was therefore of the opinion that the first respondent held an office of profit. The term 'Office of Profit' has not been defined in the Act.

It is not disputed that the first respondent is not entitled to get any fixed remuneration for vending stamps from the Government. The question is whether the commission he gets can be called as 'profit', which will disentitle him from being a candidate. Sri v. Krishnamurthy, the learned counsel for the appellant, fairly conceded that he cannot reasonably contend that a stamp vendor is a person who holds an office of profit'.

What is an office of profit which will bring about a disqualification under Section 14 of the Act, came up for consideration by the Supreme Court in Ravanna Subanna v. G. Section Kaggeerappa : AIR1954SC653 . His Lordship Bijan Kumar Mukherjea observed in the course of judgment as follows:

'The plain meaning of the expression seems to be that an office must be held under Government to which any pay salary, emoluments or allowance is attached. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material: but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.'

and came to the conclusion that the Chairman of the Talus Development Committee, who received a sum of Rs. 6/- as sitting fee or charge for attending a meeting did not hold an 'office of profit' and was not, therefore disqualified under Section 14 of the Mysore Town Municipalities Act for being chosen as a member of a TOWN Municipal Council. When that is so, a stamp vendor, who does not get any such fixed remuneration but gets only a commission on the sales he conducts cannot be considered to be a person holding an office of Profit. The Returning Officer was not justified in rejecting his nomination paper on that account. The learned Election Commissioner was therefore perfectly justified in holding that the first respondent had not incurred any disqualification for being chosen as a member of the Municipal Council and setting aside the election of the appellant and directing fresh elections to be held in the Sixth Division.

5. The second question for consideration is whether the improper rejection of a nomination paper is an irregularity which materially affects the result of an election. Courts in India as well as in England have uniformly held that the improper rejection of a nomination paper materially affects the result of an election and that the election court is bound to set aside the election on that ground. (See Sat Narain v. Hanuman Par-shad. AIR 1946 Lah 85 (B) ). Sri V. Krishnamurthy, the learned counsel for the appellant did not dispute before us the fact that the improper rejection of a nomination paper, as a rule, materially affects the result of an election.

6. The nest important point for consideration is whether the decision of the Deputy Commissioner on ah appeal preferred under Rule 26(b) by a candidate whose nomination paper was rejected by the Returning Officer is final for all purposes. Rule 26(b) of the Mysore Town Municipalities Election Rules, 1951, reads thus:

'An appeal by any aggrieved person against the order rejecting the nomination paper shall lie to the Deputy Commissioner, provided it is mads within three days of the date of such order and accompanied by a copy of the same. The order passed by the Deputy Commissioner on such an appeal shall be final.'

It was argued by Sri V. Krishnamurthy for the appellant that the above rule vested in the Deputy Commissioner absolute power to decide the question finally, and in the absence of specific mention in Section 20 that the said decision can be challenged by means of an election petition after the election is over, no court or tribunal can sit in judgment over the same.

According to his contention, a candidate whose nomination paper is improperly rejected should look up to the Deputy Commissioner for redress and if he fails in his appeal before him, he has no other remedy at law even if that decision is erroneous. It was on the other hand urged by Sri Gopivallablia Iyengar for the first respondent that what the word 'final' in Rule 26(b) indicates is that the decision of the Deputy Commissioner is final for the purpose of the election, that is, at the pre-election stage because unless some such finality is provided for at the pre-election stage, it would become very difficult to conduct the election in accordance with the calendar of events published and that its progress is likely to be clogged up by the litigation and public administration will be held up for an indefinite period.

He argued that the rules framed by the Government on the authority conferred by Section 208 of the Act cannot abrogate specific provisions of the Act or put fetters upon its operation. He further contended that if the argument of the appellant that the decision of the Deputy Commissioner under Rule 26(b) is final is accepted it would lead to absurdity, inasmuch as while section 20 of the Act which is enacted by the Legislature entitles a person to challenge the validity of the election by means of a petition on the ground that the irregularity committed by the Returning Officer in rejecting his nomination paper has materially affected the result of the election, the rule which Is framed by a subordinate; authority would be taking away that right.

In our opinion Sri Gopivallabha lyengar is right. Rule 26(8) states that the Returning Officer who rejects the nomination paper should furnish a copy of the order passed by him within 24 hours to the candidate. Rule 26(b) provides that the candidate may prefer an appeal against the decision of the Returning Officer rejecting the nomination paper to the Deputy Commissioner and that the Deputy Commissioner should dispose of the matter within four days from the date of its presentation. It is clear from 'the above that it is only a person whose nomination paper is rejected by the Returning Officer that is entitled to prefer an appeal to the Deputy Commissioner under Rule 26(b).

But under Section 20 of the Act not only a candidate who stood for election but also ten or more voters are entitled to file an election petition. There may be, as a matter of fact there are, instances where ten or more voters of the constituency choose to challenge the validity of an election by means of a petition presented to the Election Commissioner on the ground that a Returning Officer improperly rejected the nomination paper of a qualified candidate and that the same materially affected the result of the election.

Any decision, given by the Deputy Commissioner in an appeal filed by a candidate under Rule 26(b) cannot act as a bar and prevent them from agitating the matter, since they were not parties to the appeal. The decision of the Deputy Commissioner cannot bind the voter-petitioners. The result, then is, the decision of the Deputy Commissioner will be final in so far as the candidate is concerned but the same cannot preclude an election petition by voters of the constituency on the very, same ground.

This can never be the intention of the Legislature. The finality contemplated in Rule 26(b) of the Rules framed under the Mysore Town Municipalities Act of 1951 is the finality at the pre election stage. This rule cannot override the sections and take away a right of a person to file an election petition under Section 20 of the Act challenging the validity of the election itself on the ground that the improper rejection or his nomination paper materially affected the result of the election and pray for the election being set aside.

That because, the rejection of the nomination paper by 'the Returning Officer can thus be challenged at two stages--once before' the election by presenting an appeal to the Deputy Commissioner and then again before the Election Commissioner by means of an election petition under Section 20 of the Act, it cannot reasonably be urged that a statute has provided two cumulative remedies. There is no substance in the contention of the learned counsel for the appellant that election petition would not lie and that the decision of the Deputy Commissioner under Rule 26(b) is final for all purposes.

7. The question therefore narrows itself down to whether an election petition under Section 20 of the Act can be founded by a candidate on the ground that the improper rejection of his notice of candidature materially affected the result of the election. We have listened to an interesting discussion on whether Section 20 of the Act enables a person or persons to present an election petition on any and every ground or restricts it only to the two grounds mentioned in Sub-Clause 3(a) and 3(b) of Section 20. Section 20 of the Mysore Town Municipalities Act reads as follows:

'(1) At any time within ten days after the date of the (notification in the Mysore Gazette of the name of the person elected as a councillor) any candidate who stood for 'election or any ten persons qualified to vote at, 'that election, may apply, together with a deposit' of fifty rupees as security for - costs' to the Election Commissioner appointed by the Government in this behalf for the determination of the validity of the election.

(2) The Election Commissioner may, after such enquiry as he deems necessary and subject to the provisions of Sub-section (3), pass an order confirming or amending the declared result of the election, or setting the election aside. For the purpose of the said enquiry, the said Election Commissioner may summon or enforce the attendance of witnesses and compel them 'to give evidence as if he were a civil court and he may also direct, by whom the whole or any part of the costs of such enquiry shall be paid. If the costs are to be paid by the candidate whose election is contested, the whole of such costs and if the costs are to he paid by the petitioner or petitioners, such portion, if any, of the costs as is in excess of the sum paid at the time of the presentation of the application, shall be recoverable as if it had been awarded in a suit under the Code of Civil Procedure. The Code of Civil Procedure shall, as far as possible, be followed in such enquiries. An appeal shall lie to the High Court from the order of the Election' Commissioner, provided it is only on a point of law and is preferred within one month from the date of such order, exclusive of the time requisite For obtaining a copy of the order. If the Election Commissioner sets aside an election, a date shall forthwith be fixed and the necessary steps taken for holding a fresh election.

(3)(a) The Election Commissioner, if satisfied that a candidate has, within the meaning of Sub-section (4) committed any corrupt practice for the purpose of the election, shall declare the candidate disqualified both for the purpose of that election, and of such fresh election as may be held under Sub-section (2) and shall set aside the election of such, candidate if he has been elected.

(b) If in any case to which Clause (a) does not apply, the validity of in election is in dispute between two or more candidates the Election Commissioner shall, after a scrutiny and communication of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected:

Provided that, for the purpose of such computation, no vote shall be reckoned as valid if the Election Commissioner finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it.

4. A person shall be deemed to have committed a corrupt practice within the meaning of the last preceding sub-section,

(i) who with a view to inducing, any voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of Individual profit, or holds out any threat of injury to any person, or

(ii) who gives, procures, or abets the giving of a vote in the name of a voter who is not the person giving such vote.

And a corrupt practice shall be deemed to have been committed by a candidate, if it has been committed with his knowledge and consent, or by a person who is acting under the general or special authority of such candidate with reference to the election.

Explanation:--A 'promise of individual profit' includes a promise for the benefit of the person, himself or of any one in whom he is interested. It does not include, a promise to vote for or against any particular municipal measure.

5. If the validity of the election is brought in question only on the ground of an error by the officer or officers charged with carrying out the rules made under Clause (b) of Sub-section (2) of Section 20B or of an irregularity or informality not corruptly caused, the Election Commissioner snail not set aside the election.

Explanation:--The expression 'error' in this sub-section does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or rules made there under whereby the result of election has been materially affected.

(6) If the Election Commissioner sets aside an election under Clause (a) of Sub-section (3) he may, if he thinks fit declare any person by whom any corrupt practice has been committed within the meaning of this section, to be disqualified from being a candidate for the office of a councillor of president or both in that or any other municipality constituted under this Act or the Mysore City Municipalities Act, 1933, or the City of Bangalore Corporation Act, 1949, or for the office of a member or president or vice-president in a District Board or of a member or chairman in a village panchayat for a term of years not exceeding seven and the Election Commissioner's decision shall be conclusive:

provided that no such declaration shall be made in respect of any person without such person being given an opportunity to show cause why such declaration should not be made:

Provided further that such person may by an order which the Government is hereby empowered to make, if it shall think fit, in that behalf be at any time relieved from such disqualification.

It is strenuously contended by Sri V, Krish-namurthy, the learned counsel for the appllant, that no election petition would lie under Section 20 on grounds other than the two grounds mentioned in Sub-sections . (3) (a) and (3)(b) of Section 20, that is (1) on the ground that the candidate at an election committed corrupt practice and (2) where there is a wrong computation of valid votes of the candidate. To support this stand, he strongly relied upon some observations of the Supreme Court in : AIR1954SC653 . Their Lordships have nowhere laid down in that case' that an election petition under Section 20 of the Act is net competent on grounds other than those mentioned in Sub-sections (3) (a) and (3)(b). On the other hand his Lordship Bijan Kurnar Mukher-jea. J. has in the course of the judgment observed as follows:

'The explanation appended to Sub-section (5) of Section 20 of the Act undoubtedly introduces a difficulty and it seems that the different parts of this section have not been drafted with proper care. To reconcile the provisions of this section with those of Section 14 of the Act we would have either to put a restricted interpretation upon Sub-section (3) of Section 14 or on Sub-section (5) of Section 20 or else we would have to assume that the remedies provided under the two sections are cumulative, which would hardly be a reasonable assumption. We think, however, that it would not be necessary for us in the present case to express any final opinion on this question inasmuch as we have come to the conclusion that the appeal is entitled to succeed on the second point raised by the appellant, namely that he was not subject to any disqualification, tendering him ineligible to be elected as a councillor under Section 14 of the Act.' It is clear from the above that his Lordship has refrained to express his final opinion on this matter. His Lordship's comments were directed against the scheme and want of lucidity in the wording of Section 20 of the Mysore Town Municipalities Act. None of the observations in that case, in our opinion, lend any support to the contention of the learned counsel for the appellant.

8. It was brought to our notice that Acts that govern the constitution of Local Boards in Bombay and Rajasthan States also contain in them a provision similar to Section 20 of the Mysore Town Municipalities Act. A question somewhat similar to the one on hand in this case, relating to filing of election petitions under Section 19 of the Rajasthan Municipalities Act of 1951 was raised before a Division Bench of the Rajasthan High Court in Tekchand v. Banjarilal .

Their Lordships considered the question whether an election petition is competent on grounds other than those mentioned in Sub-section (3) (a) and Sub-section (3)(b) and more particularly, the question whether the petitioner has a remedy by way of an election petition or not against the alleged improper rejection of his nomination paper by the Returning Officer. As already stated Section 19 of the Rajasthan Act is almost in' the same terms as Section 20 of the Mysore Town Municipalities Act. After examining the several parts of the section and after observing that the scheme and wording of Section 19 are not as happy as one would have expected it to be his Lordship Modi J. observed as follows:

'On a perusal of the section as a whole however we consider that a candidate who has stood for election or any ten persons qualified to vote at that election have a right to present an election petition to the District Judge (unless any other Judge is appointed for the purpose) with the object of questioning the validity of the election on the ground (1) of any corrupt practice as defined in the section (see Sub-section (3) (a) and Sub-section (4)) or on 'the ground of any substantial error or irregularity on the part of the officer or officers charged with the duty of conducting the election, provided that such error or irregularity has affected or would have the effect of materially affecting the result of the election (see sub-section (5) with the explanation). Sub-section (2) gives the Judge the authority to confirm or amend or set aside the election subject to certain other provisions contained in the section. Thus for example where a case of corrupt practice has, been established it is provided that the election must be seb aside, (see Sub-section 3(a) ). Where however the ground of challenge is not as serious but is say a wrong computation of the valid votes of the respective candidates then the Judge is required to recompute the valid votes cast in favour of the respective candidates and declare the candidate who is found to have the greatest number of valid votes to have been duly elected (see Sub-section (3) (b)). Lastly where the election is sought to be set aside on the ground of a mere error or irregularity the section lays down that such an error or irregularity would be no ground for setting aside the election but it is further provided that where the error or irregularity is material in the sense that the result of the election is or would be affected thereby then such an error or irregularity may also be a ground for setting aside the election and this result in our opinion is produced by reading Sub-sections (5) and (2) together.'

Section 20 of the Mysore Town Municipalities Act does not contain anything in it precluding an election petition from being filed against improper rejection of the nomination paper. On the other hand the wordings of Sub-sections (1), (2) and (5) make it clear that the validity of the election can be challenged on any valid ground. It was argued for the appellant that the right to stand as a candidate for the election nut being a civil right but a creature of the statute, it must be subject to the limitations imposed by the very statute and that since Section 20 of the Mysore Town Municipalities Act has not specified the grounds on which an election petition can be founded, the validity of the election can only be challenged on the two grounds mentioned in Sub-section (3) and on no other ground. We cannot Subscribe to this view, it is no doubt desirable that the statute should specify the grounds on which an election can be challenged by means of an election petition but it cannot reasonably be urged that in the absence of such specification the validity of an election cannot at all be challenged.

9. It was argued that a mere irregularity in the conduct of the election cannot be a ground for challenging an election. This argument was founded on the ground that the explanation to Sub-section (5) does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or the rules made thereunder whereby the result of the election has teen materially affected. It was contended that the improper or wrong rejection of the nomination paper was not an error of the description covered by the explanation inasmuch' as any error therein was not an error to carry out the provisions of the Act or the rules or a non-compliance with such provisions and therefore an election petition in a case of this character was not competent.

We see no substance in this contention. Once it is conceded that the improper rejection of a nomination paper is an error which materially affects the result of the election it cannot reasonably be urged that Sub-section (5) (with its explanation) of Section 20 does not cover such a ease. No doubt, the language of Sub-section (5) of Section 20 and its explanation is not as happy as one could have expected it to be but we entertain no doubt that an error committed by the Returning Officer in improperly rejecting a nomination paper was intended by the legislature to fall within the ambit, of the explanation to Sub-section (5) and can be made the foundation for an election petition.

10. We may in this connection refer to a decision of a Division Bench of the Bombay High Court reported in Naravan Maruti Mohskar v. District Judge, Kolaba ILR 1853 Bo:n 942: (AIR 1953 Bom 283) (D). His Lordship M. C. Chagla C. J. dealing with the question as to whether an election petition under Section 22 of the Bombay District Municipal Act, 1901 (which is almost in the same terms as Section 20 of the Mysore Town Municipalities Act) is competent on grounds other then those mentioned in Sub-sections . (3) (a) and (3) (b) observed as follows:

'The jurisdiction Of the District Judge to deal with election petitions arises under Section 22 of the Bombay District Municipal Act. Sub-section (1) provides that if the validity of any election of a councillor in brought in Question by any person qualified either to be elected or to vote at the election to which such question refers, such person may at any time within ten days after the date of the declaration of the result of the election apply to the District Judge of the District within which the election has been or should have been held and then Sub-section (2) provides for the holding of an enquiry by a Judge and further provides that such Judge may after such enquiry as he deems necessary and subject to the provisions of Sub-section (3) pass an order confirming or amending the declared result of the election or setting the election aside.

Sub-section (3) (a) gives the power to the Judge to set aside the election where a candidate has committed a corrupt practice for the purpose of the election and Sub-section (3)(b) gives the power to the Judge to hold a scrutiny of votes and after holding such scrutiny to declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Subsection (4) defines what is a corrupt practice. Now the contention of Mr. Joshi is that the jurisdiction of the District Judge on the election petitions is confined only to two cases; one the case of corrupt practice dealt with in Sub-section (3) (a) of Section 32 and the other, the scrutiny of votes under Sub-section (3) (b) of s. 22 and Mr. Joshi says that it was not competent to the District Judge to set aside the election on the ground that the councillor is not qualified to be elected by reason of his age.

Mr. Goklile on behalf of the Municipality on the other hand contends that the jurisdiction of the District Judge is much wider than deciding cases specified in Sub-sections . (3) (a) and (3)(b) of Section 22. In our opinion, Mr. Gokhle seems to be right because the powers of the Judge are really set out in Sub-section (2) of Section 22 and not in Sub-sections . (3) (a) and (3)(b) of Section 22 and when Sub-section (2) limits his powers by providing that his powers are subject to the provisions of Sub-section (3) all that it means is that in the two cares 'referred to in Sub-sections . (3) (a) and (3) (b) it is obligatory upon him to set aside the election in one case and to declare a particular candidate elected in the other.

But apart from those two cases the District Judge has the power to pass an order confirming or amending the declared result of the election, or setting the election aside. But it must be borne in mind that the power of a District Judge to pass any such order arises provided an ejection itself is challenged or disputed on the ground that something had happened in the course of the election which would justify the petition and which would entitle the Judge to pass the necessary order contemplated by Section 22(2).'

11. We respectfully agree with the above reasoning of the learned Chief Justice. The above observations, in our opinion, effectively answer all the objections raised by the appellant.

12. A Division Bench of this Court held that a candidate whose nomination paper is improperly rejected by the Returning Officer has a remedy provided for under Section 20 of the Act in M. G. Khader Nawaz Khan v. Returning Officer, W. P. No. 44 of 1056 (Mys) (E) (unreported) and refused to issue a Writ of mandamus at the pre-election state.

13. It is clear from the above discussion that a person whose nomination paper is improperly rejected by the Returning Officer is entities to file an election petition under Section 20 of the Mysore Town Municipalities Act challenging the validity of the election within ten days after the result of the election is published in the official Gazette and that he is not precluded from doing so because he had preferred an appeal against the decision of the Returning Officer to the Deputy Commissioner under Rule 26 (b) at the pre-election stage. The learned counsel for the appellant did not cite any decision which supports his contention that no petition under Section 20 is competent in the circumstances.

But ha relied upon some observations of Wild J. in Dayaram Thandomal v. Keshawji Walji, AIR 1933 Sind 416 (F). We have perused that decision and feel that it does not support the contention of the appellant. Moreover, it cannot be gathered from the decision whether an explanation similar to the one found attached to Sub-section (5) of Section 20 of the Mysore Town Municipalities Act is Part of Section 15 of the Sindh Act. It cannot be disputed that explanation makes all the difference. Thus all the four objections raised by the appellant are rejected.

14. For the above reasons, in our opinion, this appeal must fail and is dismissed with costs.

15. Appeal dismissed.


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