(1) The appellant was one of the two candidates for the general seal for election to the Mysore Legislative assembly from the Malabagal constituency, respondent 1 being the other candidate for the general seat and the remaining respondents being candidates for the reserved seat in the constituency which was a double member one. The last date for filing nomination papers was 29-1-1957, the latest time being 3 P.M. Respondent 1 filed two nomination papers marked as Exhibits P-14 and P-15 on 28-1-1957 and 29-1-1957 respectively. The date fixed for the scrutiny of nominations was 1-2-1957. The appellant objected to respondent 1's nomination on the ground that the latter was a recognized engineering contractor and was executing a number of works under various contracts with the State Public Works Department, and that those contracts were subsisting both on the 28th and on the 29th January 1957.
He also urged that the certificate of release obtained by respondent 1 from its having been obtained at 4. P. M. on that day, did not show that the mutual obligations between Government and the respondent had been settled. It was further urged that the works taken up by respondent 1 had not been completed when he purported to have been released from the contracts, and that respondent 1's brother Srinivasalu who was alleged to have entered into an agreement with the Public Works Department to take over the remaining part of the works was only a name-lender for respondent 1 who still continue to be interested in the contracts.
On the day of scrutiny, i.e., on 1-2-1957, the Returning Officer postponed the proceedings to the next date at the request of respondent 1 to enable him to produce some documents. On 2-2-1957 he completed the summary enquiry, and rejected the nomination paper filed on 28-1-1957 on the ground that respondent 1 had not ceased to be a contractor on that date. As regards Exhibit P. 15, the nomination paper filed on the next day, he held that the contracts had ended before that nomination paper was presented, and accepted respondent 1's nomination. In the election held respondents 1 and 2 were declared to be the successful candidates as respondent 1 ahd secured the largest number of votes for the general seat and respondent 2 for the reserved seat.
he appellant thereupon filed an election petition under Ss. 80 and 81 of the Representation of the People Act challenging respondent 1's election on the ground that he was disqualified for being chosen as a member of the Assembly under S. 7(d) of the Act since he had subsisting contracts with Government both at the time of his nomination and on the date of election. The appellant also claimed a declaration that he himself was elected to the general seat, since, if respondent 1's nomination had been rejected as it ought to have been, the appellant having secured the next largest number of votes would have been the successful candidate.
(2) The Election Tribunal which enquired into the petition held that at the time of the presentation of the second nomination paper respondent 1 had ceased to hold any contract, that respondent 1's brother Srinivasalu, who had entered into an agreement with the P.W.D. Authorities to complete the remaining part of the work under the two contracts in question, was not a name-lender for respondent 1, and that the rejection of the first nomination paper of respondent 1 did no entail the rejection of the nomination. The last finding was with reference to the contention urged that under S. 36(3) of the Representation of the People Act it was only when fresh nomination papers were filed which came under clauses (b) and (c) of sub-s. (1) of S. 36, and not when he fresh nomination paper was directed to cure a defect under clause (a) of S. 36(1), that the candidate could avoid rejection of his nomination. It may also be mentioned that the Tribunal rejected another contention raised by the appellant that the result of the election had been materially affected by the Returning Officer failing to publish the list of the contesting candidates in alphabetical order and in arranging the ballot boxes in the same order.
(3) In this appeal against the decision of the Tribunal the appellant has urged that the learned Tribunal was in error in all its findings.
(4) It is not disputed that Respondent 1 had taken up two works from the Public Works Department, i.e., restoration of Dodda Marappanna Kunte tank and improving the feeder channel of the tank. These appear to have been taken up some time in 1954 and 1955 respectively. It is also not disputed that neither work had been completed when on 25-1-1957 Respondent 1 applied to the Executive Engineer, Kolar District, to be freed from the two contracts. At the same time, Respondent 1's brother B. L. Shreenivasalu applied under ex. 5 to take over the works and complete them on the original terms. It should be mentioned that in Ex. P-6 Respondent 1 stated that he intended to stand as a candidate in the ensuing General Elections and that that was the reason for his request to be freed from the contracts.
The Executive Engineer directed the concerned Assistant Engineer to take appropriate action. The latter thereupon had the quantity of work done measured and checked and final bills prepared. They were passed and cheques under the signature of the Executive Engineer were issued for the final bill amounts in respect of the two contracts in favour of Respondent 1 on 29-1-1957. According to Respondent 1 he immediately obtained a certificate from the Executive Engineer to the effect that this claims had been finally settled and that he had ceased to be a contractor from 29-1-1957 and filed the fresh nomination paper Ex. P. 15 on the same day within the prescribed time.
It is also seen from Ex. P. 15 that the Returning Officer has noted that the nomination paper was presented at 2-45 P.M. The Appellant's contention is that even if there was an effective and real release from the contracts, it took place after 3 P. M. For this he depends upon the information supplied by the Executive Engineer in writing to the Appellant in response to the latter's request made on the night of 29-1-1957. Obviously, the appellant was thinking of objecting to the nomination of Respondent 1 as he was fully entitled to do and therefore wanted to arm himself with relevant information. The Executive Engineer's reply is marked Ex. P. 7 and is dated 30-1-1957. The last sentence in that reply is:
'The contract release certificate was issued at about 4 P.M. on 29-1-1957.'
Respondent 1 has stated that he obtained the certificate even before he presented the second nomination paper, i.e. before 3-45 P.M. The Executive Engineer examined as P.W. 4 has stated that the certificate may have been written about 4 O'clock and that the time mentioned in his reply to the Appellant, i.e., 'at about 4 P.M.' was mentioned purely out of money.
(5) The appellant has also drawn attention to the writing on the back of the counterfoils D. 3(a) and D. 4(A) of the two cheques. On the back of D. 3(a) are found Respondent 1's signature and the time 1-57 p.m. and the date 29-1-1957 underneath. Similarly, on the back of D. 4(a) are to be found Respondent 1's signature and underneath it '1-58 p.m.' and '29-1-57'. It is urged that the figures relating to time and date on the back of both the counterfoils appear to be in different writings. It is also urged that it was not the practice--nor did the procedure require--that the time of the receipt of the cheque should be noted on the counterfoil. It is suggested that these circumstances indicate that the time indicated on the counterfoils must be a later interpolation.
(6) We have examined the writings and we see no force in the suggestion. There are other documents like Ex. P 5 and P 6 admittedly in the writing of Respondent 1. There appears to be a variation in the forms of figures in those two documents. The figures in Ex. P-5 pertaining to the date seem to resemble the figures on the back of Ex. D-3(a) and D-4(a). The variation appears to be natural.
(7) As regards the marking of the time it is no doubt true that in none of the other counterfoils is the time noted. But it has to be remembered that Respondent 1 had to get himself freed from the contracts before 3 p.m., that he anticipated the objection on the score of his holding contracts with the P.W. Department (as indeed proved to be justified and as is evidenced by the appellant's application to the Executive Engineer presented on the same night) and that as payment in settlement of the final bills would, according to Respondent 1, imply his release from the contracts, there was nothing unnatural in his nothing the time on the counterfoils. So far as the certificate is concerned, the Executive Engineer has stated that in mentioning the time as about 4 p.m. he only relied upon his memory.
The circumstances also probabilise Respondent 1 obtaining the certificate before he presented the second nomination paper. If he succeeded in having his final bills settled and cheques paid to him well before 2-45 p.m. there is nothing improbable in his having secured the certificate also before that time. But the matter is really of no importance as the certificate contains only a statement of fact and does not in itself operate as a release of Respondent 1 from the contracts. There is nothing in the Public Works Account Code to show that a certificate is necessary to effect such release nor have we been apprised of any other rule or provision. Judging from the intrinsic nature of the contracts, if the two parties to it settled accounts and released each other from mutual obligations, the point of time at which such settlement and release took place would be the time at which the contract terminated.
By payment in full settlement of the final bill such termination would take place. Hence, if the handing over of the cheques constituted payments, it follows that the contractual relationship terminated at that time. It may also be mentioned that the cheques counterfoil book Ex. D-4 shows that a good number of cheques have been issued on 29-1-1957 after the one issued to Respondent 1 as is also evidenced by the entries of that date in Ex. D-16, the Works Cash Book. This indicates the cheques having been issued in the earlier part of the day and supports Respondent 1's version.
(8) It is urged by the appellant that the 'cheques' issued by the Executive Engineer, though they go under that name, are not negotiable instruments as under Note 1 to R. 299 of the Code such cheques can be endorsed only once in favour of a banker or a messenger to whom the money is to be paid and that, in any event, until the money under the cheque is actually received by the contractor, it cannot be said that the mutual obligation under the contract have been settled. Reliance is placed upon the decision reported in Chaturbhuj Vithaldas v. Moreshwar Parashram, 1954 SCR 817: (AIR 1954 236). That was a case relating to an election to a parliamentary seat. The concerned candidate was a partner of a firm which it was alleged had entered into contracts with the Central Government for the supply of bidis. It was found that between the last date for nomination and the date on which the results were declared a number of contracts were outstanding at one time or another.
It was urged on behalf of the candidate that the contract must be regarded as having terminated when his firm fulfilled its part of the contract by the supply of goods. It was in this context that the Supreme Court held that the contract does not terminate when the good are supplied but continues in being till payment is made. These observations would no doubt prevent Respondent 1 from urging that since he had fulfilled his part of the contract it must be regarded as having ended, even if no payment had been received by him. But it does not touch the question whether payment by a cheque or a pay-order for payment of the final bill even though money has not actually been received, discharges the contract.
It may, however, be mentioned that there are observations in the above decision to show that the performance by both parties of their respective parts of the contract is necessary before the contract can terminate and that if only one party has fully executed his part for which the other party has to make payment there is always a possibility of the liability being disputed before actual payment is made and that, therefore, a contract continues in being till it is discharged by both sides. In a case like the present one there is no question of any dispute as to the department's liability, i.e., regarding the amounts payable, the final bills having been checked and both parties having accepted their correctness. It was quite open to both the parties to agree upon the mode of payment.
(9) Considering that the contracts related to Governmental work, there would be nothing strange it the practice was to accept payment by cheques. But the matter is placed beyond doubt by the procedure indicated in the Public Works Account Code. Rule 305 provides that all payments should, as far as possible, be made by cheques for payment at the treasury and that payments of under Rs. 10/- should be made in cash. Rule 296 provides that after an audit of the bill by the Divisional Officer a cheque will be drawn up for the amount entered in the cash book drawn up for the amount entered in the cash book and made over to the party concerned after obtaining and made over to the party concerned after obtaining his discharge on the original bill for presentation at the treasury. There is a note appended to R. 299 which says that the contractor's subsequent acknowledgment of the cheque which contains the particulars of the several claims constitutes a full and sufficient discharge for the payment.
Rule 299 no doubt deals with cheques drawn for bills when the payee cannot appear in person in the Divisional office to receive payment. But it makes it clear that acknowledgement of the cheque constitutes a full and sufficient discharge. There can be no doubt that these provisions, quite apart from the question whether they have statutory force, represent the accepted practice and hence the understanding between the concerned authorities with the contractor in regard to payment and discharge. Therefore, in the words of the decision reported in : 1SCR817 , the receipt of the cheque in the manner indicated above represents the contract being discharged by both sides. It must accordingly be held that Respondent 1 ceased to have any interest in the contracts well before the presentation of the nomination paper Ex. P-16 on 29-1-1957.
(10) The learned Advocate for the appellant has referred to the case reported in In re Gloucester Municipal case, 1900; Ford v. Newth, (1901) 1 KB 683. That was a case in which a candidate for a Town Councillorship had entered into a contract for supply of certain goods to the Council. The candidate being anxious to stand as a candidate at the forthcoming election of Councillors applied to a Committee of the Council to be relieved from the contract. The Committee resolved to release him subject to approval by the Council. The resolution was later on ratified by the Council. Meanwhile, the candidate had filed his nomination paper. The question for consideration was whether the ratification related back to the date of the resolution of the Committee. The Court held it did not. In that view, it will be seen that when the nomination was made, the candidate had not been released from the contract.
No question arose as to whether the nomination was effective from the last date fixed for nominations or from the date of the presentation of the nomination paper. In the case on hand, no question of ratification arises since, as will presently appear, we are of the view that the Executive Engineer could release Respondent 1 from the contract and that the Superintending Engineer's approval was not necessary. Hence, no assistance can be derived from the decision referred to above.
(11) It is contended for the Appellant that it was only the Superintending Engineer that had the right to release Respondent 1 from the contracts and since it was the Executive Engineer who acted in the matter there was no effective release. For this contention reliance is placed upon a note in R. 6 of the Public Works Account Code. That note reads:
'Contracts made by a Divisional Officer under his powers may not be cancelled without a report to Superintending Engineer and his approval to it.'
It may be mentioned that R. 61 itself makes it clear that whether the work is an original work or work in the nature of repairs, the Executive Engineer can sanction it if is within Rs. 5,000/-. Both the works in question are well within that limit. There is, however, some doubt as to what exactly is a 'contract', as dealt with in the Public Works Account Code. While the definition in clause 7 of R. 1 is comprehensive and includes any kind of undertaking, R. 48 says that the term 'contract' as used in the Code has a limited and technical meaning and does not include agreements for carrying out works by petty contract on fixed rates whether it be piece work where no restriction is imposed on the quantity of task work, where the dimensions or quantities are specified, nor does it include mere ordinary purchases of materials or stores.
It was contended for the Appellant that the works undertaken by Respondent 1 were not in the nature of petty contracts or piece work while it was contended for Respondent 1 that the works were of such a character. This clearly is a question of fact. It is in evidence that there was no written agreement in regard to these undertakings. Considering that the two items of work related to putting in proper condition an existing tank and a channel it is difficult to hold on the material on record that the entrustment of the work to the Respondent represented contracts, the cancellation of which required the approval of the Superintending Engineer. Though the petitioner mentioned this latter ground in the pleadings it is noteworthy that no suggestion on those lines was made to the Executive Engineer's evidence is clear that the termination of the relationship between Respondent 1 and the Department was quite in order and there is no material worth mentioning to show that it was not so.
(12) The next contention urged by the Appellant. Is that even though to all appearances Respondent 1 released himself from the contracts and they were taken over by his brother, the latter was only a name lender. Respondent 1 and his brother Srinivasalu have both denied the truth of this allegation. There is documentary evidence to show that the latter had separated himself from the family some years earlier as shown by the registered release deed (Ex. D. 17) dated 16-2-1953. The mere fact that the two happened to be brothers is not in itself sufficient to establish that Srinivasalu was a name lender and that Respondent 1 continued to be interested in the contracts. There is thus no substance in this contention.
(13) It is next urged for the appellant tht Respondent 1's competence to be a candidate has to be determined with reference to the time of presentation of the first nomination paper, Ex. P-14 which was presented at 2-50 P. M. On 28-1-1957. There is no dispute that Respondent 1 still continued to be interested in the contract at that time, since the final bills were passed and payments were made only on the next day. According to the Appellant, that nomination paper was liable to be rejected and, indeed, it was rejected by the Returning Officer after scrutiny. It is urged on the strength of S. 36(3) of the Representation of the People Act, 1951, that the rejection of this nomination paper filed on the next day also. Sub-section (3) of S. 36 reads:
'Nothing contained in clause (b) or clause (c) of sub-s.(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 nominated by means of another nomination paper in respect of which no irregularity has been committed.'
Section 36 relates to the scrutiny of nomination: sub-clause (1) regulates who would be present at the time of scrutiny and provides for reasonable facilities being given for examining nomination papers of all candidates. Sub-section (2) reads:
'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:
(a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:
Articles 84: 102, 173 and 191 and Part II of this Act.
x x x x x (b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34, or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.'
It will be seen that while clause (a) provides for the rejection of a nomination on the ground that the candidate lacks qualification or is disqualified, cls. (b) and (c) provide for such rejection for failure to comply with the provisions of Section 33 or Section 34 of the Act or on the ground that the signature of the candidate or the proposer on the nomination paper is not genuine. Section 33 relates to the presentation of nomination papers and the requirements for a valid nomination. A nomination paper has to be completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer and delivered in person by the candidate or by his proposer to the Returning Officer at a specified place on or before the last date for making nominations between 11 A. M. and 3 P.M.
On presentation the Returning Officer has to satisfy that the numbers of the candidate and proposer as entered in the nomination paper are the same as those entered in the electoral roll. He has also to permit the correction of any clerical or technical error is regard to the names or electoral numbers. Sub-section 6 enables the candidate being nominated by more than one nomination paper for election in the same constituency. Section 34 relates to deposits and says that the deposit is a necessary condition for a due nomination and that the deposit should be made in cash with the Returning Officer or a receipt showing that the deposit has been made should be enclosed with the nomination paper at the time of the delivery of the nomination paper.
(14) It is argued that sub-section 3 of Section 36 enables a defective nomination being validated by means of a fresh nomination paper only when the defect comes under cls. (b) and (c) of sub-sec.(2) i.e., when the defect relates to completion of the nomination paper in the prescribed from and its presentation in person by the candidate or his proposer during the specified hours and at the specified place as provided by Section 33 or when it relates to the making of the deposit, i.e., either in cash with the Returning Officer or by enclosing a receipt for the same with the nomination paper at the time of its delivery to the Returning Officer.
It is pointed out that sub-section 3 omits from its purview clause (a) of sub-section 2, i.e., does not allow the curing of defects relating to the qualification of the candidate or in the shape of a disqualification, by the presentation of a fresh nomination paper. It is suggested that the necessary implication is that such defects, if they invalidate a nomination, cannot be rectified by the presentation of another nomination paper after the qualification has been acquired or the disqualification has been removed. It is urged that the canons governing the interpretation of statutes lead to the inference that the omission is deliberate and that the consequence of such omission is to restrict the operation of sub-section 3 only to providing for the curing of defect coming under cls. (b) and (c) of sub-sec 2.
(15) Reliance is placed upon certain passenger in Craies on Statute Law and observations of the Supreme Court in the case reported in AIR 1956 SC 202, H. S. Gupta v. Uttar Pradesh Government, to the effect that the necessary implications of the language of a Statute have to be given effect to and that interpretation which involves the addition of qualifying words is not permissible. It is urged that when the requirements for a valid nomination as prescribed under Section 33 and 34 are completed, the nomination is complete and any lack of qualification or any disqualification which attaches to the candidate at that time continues to be operative in the absence of any specific provision enabling the candidate to take advantage of the subsequent elimination of these defects. It is no doubt true that sub-section 3 of Section 36 makes no reference to clause (a) of sub-section 2 of that section.
It may also be conceded that when cls. (b) and (c) of the preceding sub-section are referred to in sub-sec 3, the omission of clause (A) is deliberate. But before applying the principles of construction mentioned above and before any inference can be drawn that the consequence of such omission is to preclude the rectification of a nomination suffering from any defect coming under clause (a) of sub-section 2, it has to be seen what the object of sub-section 3 is and whether the defects contemplated under cls. (b) and (c) of sub-section 2 are of the same category as those under clause (a). The latter relates to the lack of qualification or the existence of a disqualification in respect of a candidate. Clauses (b) and (c) relate to defects in fulfilling the requirements of Secs. 33 and 34 of the Act.
The requirements under Section 33 are : (i) that the candidate should present the nomination paper in person or by his proposer: (ii) that it should be presented between 11 A.M.and 3 P.M. on or before the date appointed for the purpose; (iii) that the nomination paper should be completed in the prescribed from and signed by the candidate and by an elector of the Constituency as proposer. There are some additional requirements in respect of a candidate for a reserved seat, a candidate who is an elector in a different constituency and a candidate who has been under a disqualification described in Section 7(f), i.e., dismissal from Government service. Section 34 requires that the amount specified in it should be deposited with the Returning Officer in cash or a receipt showing such deposit should be enclosed with the nomination paper at the time of the delivery of the nomination paper.
(16) It will be noticed that any defects or deficiency in fulfilling the above mentioned requirements referred to in S. 36(2)(b) relate to the contents of the nomination paper itself or to the mode of its presentation or to other papers accompanying it, such as in the case of a dismissed Government servant a certificate by the election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State or to payment of the deposit amount. In their very nature, they are capable of being rectified by the presentation of a fresh nomination paper. Similarly, adverting to S. 36(2)(c), if the signature of the candidate or the proposer in the nomination paper is not genuine this defect can be rectified paper is not genuine this defect can be rectified by presenting a fresh nomination paper with the genuine signatures.
These are the matters that come under sub-cls. (b) and (c) of S. 36. Sub-clause (a), however falls outside the purview of the contents of a nomination paper or of any document which is required to accompany it, the manner of their presentation on the payment of the deposit. Apart from this circumstance, the requirements of Secs. 33 and 34 are capable of being rectified if there has been any failure to do so as they relate to what may be called the mechanics of the presentation of a nomination paper. Thus, if the presentation has not been made at the proper time, to a proper person or at the proper place that can be remedied by doing it again in the appropriate way.
The errors in regard to the contents of the form, i.e., regarding the names and numbers of the candidate and the proposer in the electoral roll can be similarly rectified; omission to fill in a declaration by a candidate for a reserved seat or an error in such a declaration can be made good in the same manner. Any defect relating to making the deposit can also be rectified. As regards clause (a) of sub-section 2 of Sec. 36, however, dealing as it does with the qualification or disqualification of a candidate, any defect by way of absence of the necessary qualification or the existence of a disqualification cannot be cured by merely presenting a new nomination paper.
Such a defect cannot therefore constitute an irregularity in respect of a nomination paper. What sub-sec.3 of Section 33 says is that any irregularity in respect of a nomination paper shall not be a ground for rejection, if such irregularity has been rectified by the presentation of another nomination paper. As the sub-section is concerned only with irregularities in respect of nomination papers, it seems to be appropriate that it should refer only to cls. (b) and (c) of sub-section 2 of Section 36.
(17) It may be that when a nomination paper is presented in terms of Secs. 33 and 34 of the Act, the process of nomination is completed. From this it does not follow that the competency of the candidate for being chosen to fill a seat has to be determined will reference to the point of title at which the nomination is completed. When a time is fixed up to which the nomination papers can be presented, all candidates who have entered the field within the time so fixed will naturally stand on the same footing in the absence of any provision to the contrary. There is nothing in reason or principle that the question of their possessing the requisite qualification or suffering from any disqualification should be adjudged not with reference to this point of time, i.e., the last date or hour fixed for presenting nomination papers, but with reference to the particular point of time the nomination paper of each candidate was presented.
It may be mentioned that though this particular point did not arises for consideration in the case reported in : 1SCR817 , there is an indication that it is the last date fixed for presenting the nomination paper that has to be taken into consideration for determining a question of disqualification. It will be remembered that in that case the disqualification alleged was that the candidate's firm had entered into contracts with the Central Government for supply of goods. After referring to S. 7 dealing with disqualification it is stated:
'Now the words of the section are 'shall be disqualified for 'being chosen'' the choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen...............We have, therefore, to see whether any contracts of supply of goods to Government...............existed at any time on or between the relevant dates.'
As to what the relevant dates are it is stated:
'The crucial dates with which we are concerned are 15th November, 1951, 'the last date for putting in the nomination', and the 14th February 1952, the date on which the results were declared.'
(The underlying (here in ' ') is by us). It will thus be seen that the starting step in the process of choice namely, the nomination, is regarded as being taken on the last date for putting in the nomination.
(18) The learned Advocate for the respondent has relied on sub-section 6 of Section 33 which reads:
'Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper for election in the same constituency.'
It is urged by him that sub-section 3 of Section 36 while it forbids rejection of the nomination of a candidate on the ground of any irregularity in respect of a nomination paper if another nomination paper rectifying the irregularity has been presented, neither that sub-section nor any other provision compels the rejection of a nomination even when the candidate has filed a fresh nomination paper after the disqualification has terminated and when the filing of such a fresh nomination paper is authorised under Section 33(60).
It is urged that though more nomination papers than one may be presented in respect of one candidate for election in the same constituency the nomination is only one and that though the nomination under the first nomination paper may be defective on account of the candidate's disqualification at the time, the nomination would become effective by the presentation of a fresh nomination paper after the elimination of the disqualification and that, therefore, the nomination cannot be rejected.
There is no controversy between the parties as to the nomination being only one whatever the number of nomination papers presented in respect of a candidate for election in the same constituency. Indeed, the Appellant's contention which we have dealt with above is based on the proposition that the nomination being only one and having materialised by the presentation of the nomination paper at a time when the candidate was disqualified it could not be remedied by the presentation of another nomination paper when the disqualification had disappeared.
It seems to us that Section 36, comprehensive as it is in its terms is intended to meet various contingencies as, for example, when more than one elector wishes to nominate a particular person as a candidate. We have held that the question has to be considered as on the last date or at the last hour fixed for presenting nomination papers, whatever might be the date or hour when the nomination paper of a candidate was presented. In this view, it is a matter for consideration whether a fresh nomination paper need be presented at all, it before the last date or hour fixed for presenting nomination papers the disqualification has dis-appeared.
It may be mentioned that the nomination form prescribed under the rules contains no column or entry relating to the qualification or disqualification of a candidate for a general seat. It might be that if those particulars had to be filled in there would be need to file a fresh nomination paper. That, however, is not a question arising for consideration in this case since Respondent 1 had filed another nomination paper after his disqualification had terminated.
It is no doubt true that the Election Officer rejected his first nomination paper. He was bound to deal with it, since Section 33(6) says that he shall endorse on each nomination paper his decision accepting or rejecting the same. But the rejection of that nomination paper does not, as argued for the Appellant, entail the rejection of a nomination, for the reasons given above.
(19) The Appellant has also contended that Respondent 1 laboured under a disqualification under Section 7(d) of the Act even on the date of election. This, however, is on the ground that he had a subsisting interest in the contracts in question as his brother who had taken over the work was only a name lender. We have found that the latter contention is not substantiated. It therefore follows that Respondent 1 suffered from no such disqualification on the date of the election.
(20) The last contention of the Appellant is that the list of contesting candidates prepared and notified by the Returning Officer was not in alphabetical order as required under Section 38(2). that the ballot boxes were not kept in the polling station in the same order (i.e., alphabetical order) as that required by R. 23(8) of the Rules under the Act, that if these things had been properly done his ballot box and that of the candidate for the reserved seat who belonged to the same party as himself would have been side by side, that these irregularities resulted in his being deprived of a substantial number of votes as it prevented those who voted for the candidate for the reserved seat from his party from voting for him also and that the result has, therefore, been materially affected.
The learned Election Tribunal in rejecting this contention has drawn attention to the fact that by a curious chance in his election the substantive parts of the names of four out of the six candidates are the same, that the differences are only in the suffixes and that, therefore, it could not be said that the names were not arranged in proper order in the list of contesting candidates and that the ballot boxes were not similarly arranged. On behalf of the respondent, it is urged that according to a circular issued by the Election Commission the order had to be in accordance with the alphabetical order in the regional language. It will be noticed that under R. 11 of the Rules, it is provided that if the list of contesting candidates is prepared in more languages than one, the names of candidates therein shall be arranged alphabetically according to the script of such one, the those languages as the Election Commission may direct.
The names of the candidates in the order in which they are shown in the list of contesting candidates (Ex. P. 22) were, Gangappa, G. Narayana Gowda (Appellant), G. Narayana Swany, B. L. Narayanaswami, (Respondent), Narayanappa and A. C. Venkatasami. It is seen that except the first and the last candidates the substantive parts of the names of the other candidates is 'Narayana. It is urged for the appellant, however, that the suffix also is an integral part of the name and if that is taken into account the name of the candidate for the reserved seat from his party would have come immediately after his name. This is no doubt so. It is however contended for the respondent that if the names are to be spelt in the regional language (Kannada) the order in the list is correct.
We do not see how this could be so. It appears reasonable that if the substantive parts of the names are the same they should be arranged in the alphabetical order with reference to the suffixes. But the real question for consideration is whether the Appellant has been prejudiced by the failure to do so. It has to be remembered that the ballot boxes in addition to having the name of candidates had also symbols placed upon them and it cannot be suggested that even the illiterate voters could have been misled by the order in which the boxes were placed. No candidate can ask the Returning Officer to prepare the list of candidates so that the names of candidates of one political party appeared one after the other or that their ballot boxes should be placed side by side, for, the relevant provisions as mentioned above require that the alphabetical order should be adopted.
If in the present case the names of the two candidates of the same party would appear side by side in the alphabetical order, it would be purely accidental. The appellant cannot make a grievance out of it. It cannot be said that the result has been materially affected by the failure to observe the order. In fact, the returns show that the Appellant and his part candidate for the reserved seat have got comparable numbers of votes and that indeed the appellant has secured a somewhat larger number of votes. We therefore find that this contention also has no force.
(21) The appeal fails and is accordingly dismissed with costs (Advocate's fee Rs. 100/-).
(22) I agree.
(23) Appeal dismissed.