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R.P. Gundappa Vs. Vice President, Town Muncipal Council, Sagar Town and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 380 of 1959
Judge
Reported inAIR1960Kant189; AIR1960Mys189
ActsMysore Town Municipalities Act; Mysore Town Municipalities Election Rules, 1951 - Rule 10; Constitution of India - Article 329
AppellantR.P. Gundappa
RespondentVice President, Town Muncipal Council, Sagar Town and ors.
Excerpt:
.....permission of the government. the mortgage of the said land by the defendant/grantee in favour of the plaintiff authorizing the plaintiff to enjoy usufructs was clearly in violation of the provisions of section 4 of the ptcl act. the burden is heavy on the plaintiff to prove that the said mortgage was not obtained by him in contravention of the provisions of section 4 of the ptcl act. on facts held, the transaction is in total violation of the provisions of section 4(1) of the ptcl act, the possession of the land in question along with the mango trees grown thereon by the plaintiff could not be held to be lawful possession. therefore, the appellate court was quite justified in passing the impugned judgment and decree dismissing the suit. .....for the election of the president of the town municipal council of sagar. on 27-5-1959, the nomination paper of the petitioner for the said election was rejected. from the order of the returning officer, it appears that the said nomination paper was rejected on two grounds; (a) that it was not typed but was only a manuscript, and (b) that it was not in proper form.that the rejection of the nomination paper was not in accordance with the mysore town municipalities act or in accordance with the rules was not seriously disputed before us. what, however, was contended by the learned advocate appearing on behalf of the respondents who opposed this petition was that the only remedy of the petitioner was to file an appeal under r. 10 of the mysore town municipalities election rules,.....
Judgment:

S.R. Das Gupta, C.J.

(1) The present petition is directed against an order rejecting the nomination paper of the petitioner. The petitioner was a candidate for the election of the President of the Town Municipal Council of Sagar. On 27-5-1959, the nomination paper of the petitioner for the said election was rejected. From the order of the Returning Officer, it appears that the said nomination paper was rejected on two grounds; (a) that it was not typed but was only a manuscript, and (b) that it was not in proper form.

That the rejection of the nomination paper was not in accordance with the Mysore Town Municipalities Act or in accordance with the Rules was not seriously disputed before us. What, however, was contended by the learned advocate appearing on behalf of the respondents who opposed this petition was that the only remedy of the petitioner was to file an appeal under R. 10 of the Mysore Town Municipalities Election Rules, 1951. It should be mentioned that this very question came up for decision before us in Subba Rao v. Returning Officer, W. P. No. 254 of 1958 and we negatived that contention.

(2) If is now contended before us that before arriving at our decision in the said writ petition we did not take into consideration the decision of the Supreme Court reported in Ponnuswami v. Returning Officer, Namakkal Constituency. : [1952]1SCR218 , as it was not cited before us when we decided the said writ petition, and that had it been so cited, our conclusion would have been different. We have carefully examined this contention but we do not find any reason to revise the view which we took in the said writ petition. It seems to us that the learned Advocate for the respondents rested their clients' case, deals with the effect of the provisions of the Representation of the People Act and of Art. 329(b) of the Constitution.

The ratio decidendi of the decision in the said case is that both the Representation of the People Act and Art. 329 of the Constitution specifically provide for only one remedy, being by way of an election petition to be presented after the election is over and that there is no remedy provided at any intermediate stage. The learned Advocates appearing for the respondents could not point out any similar provision in the Mysore Town Municipalities Act under which the election in the present case is to take place. On reference to S. 80 of the Representation of the People Act and Art. 329(b) of the Constitution, it appears that there is a prohibition against any intermediate application and the only remedy which is provided for therein is the remedy by way of an election petition. There is no such prohibition in the Mysore Town Municipalities Act with which we are concerned in the present case. It seems to me that on this ground the present case is distinguishable from the case decided by their Lordships of the Supreme Court.

(3) In this connection I should also mention that whereas Art. 329(b) provides for a remedy, even though it is the only remedy, there is no remedy provided under the Town Municipalities Act, which the petitioner can avail himself of to challenge the improper rejection of his nomination paper. In other words, the Act makes no provision enabling the petitioner to raise this contentions enabling the petitioner to raise this contention even by way of an election petition to be presented after the election is over. The learned Advocates for the respondents no doubt referred us to Rule 10 of the Rules which provides that the validity of the Rules which provides that the validity of the election may be contested within seven days from the date of election by an appeal signed by at least three Councillors and filed before the Deputy Commissioner alleging specific grounds for setting aside the election.

Referring to this Rule, the learned Advocate contended that there is a remedy available to the petitioner under the Act and that as there is a remedy provided in the Act he should avail himself of the same and not come at an intermediate stage with an application of the learned Advocates for respondents cannot be accepted as sound. In the first place, Rule 10 does not give any remedy to the petitioner himself. If two other Councillors do not agree to join the petitioner in filing an appeal then the petitioner cannot have any remedy.

In other words, the remedy given is not an exclusive remedy to the petitioner himself. We have held to the petitioner himself. We have held in the said W. P. 254/58 that this is by no means an adequate remedy which is available to the petitioner. In the second place, the Act itself gives no remedy to the petitioner against an improper rejection of his nomination paper. There is no provision for setting aside an election of the President or the Vice-President. It is only in the Rules that, for the first time, such a provision is made and, as I have said, the said provision is not a provision which enables the petitioner himself to prefer an appeal. It, for any reason, no other Councillor comes forward to join the petitioner in the appeal. If, for any reason, no other Councillor comes forward to join the petitioner in the appeal, then the petitioner would be helpless and would not be entitled to maintain an appeal. This being the position, I do not think the contention of the learned Advocate for the respondents, viz., that Rule 10 provides a remedy for the petitioner which alone should be availed of by him can be accepted as sound.

(4) The learned Government Pleader opposing this application relied on two decisions, one of Allahabad High Court and another of the Calcutta High Court, reported in Majid Ahmad v. Asst. Returning Officer, : AIR1954All234 and Narayan Chandra v. District Magistrate, Hooghly, : AIR1954Cal32 ; respectively. In both these cases, it would be seen there was a total prohibition of the nature as is to be found in the Representation of the People Act and in Art. 329(b) of the Constitution. From the decision of the Calcutta High Court, it would also appear that there were specific provisions in the Act in question which gave specific remedies to the petitioner in that case which are not to be found in the present case.

In my opinion, these two decisions are also distinguishable from the present case. In the result, therefore, I hold that this petition should succeed and we make an order accordingly. The order of the Returning Officer dated 27-5-1959 rejecting the nomination paper of the petitioner for the election to the office of the President of the Town Municipal Council, Sagar Town, is quashed, and the Returning Officer is directed to accept the said nomination paper and to proceed with the election expeditiously. The petitioner will get the costs of this application from respondents Nos. 1 and 6. Advocate's fee Rs. 100/-.

A.R. Somnath Iyer, J.

(5) I agree.

(6) Petition allowed.


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