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Gogineni Satyanarayana Rao Vs. T.S. Rao, District Panchayat Officer, Kammam and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 815 of 1959
Judge
Reported inAIR1960AP337
ActsOsmania University Act, 1959 - Sections 17
AppellantGogineni Satyanarayana Rao
RespondentT.S. Rao, District Panchayat Officer, Kammam and anr.
Appellant AdvocateP.A. Chowdhary and ;P. Venkayamma, Advs.
Respondent AdvocateK. Madhava Reddy, Adv.
DispositionPetition dismissed
Excerpt:
.....provides for the mode of making a nomination, paragraph 3 for despatch of nomination papers to the returning officer, while paragraph 4 enjoins upon the returning officer to reject the nomination papers in certain contingencies namely, failure to send them by registered post or to deliver them either in person or by messenger as indicated in paragraph 3. after the issue of the notification, the returning officer called for nominations from the khammameth local bodies' constituency. that is satisfied when the candidate has signed in the form indicating his acceptance of the nomination. failure to observe strictly this condition cannot lead to the rejection of the nomination paper because the returning officer is authorised to reject the nomination papers only in circumstances which are..........and sent by registered post so as to reach the district panchayat officer, khammameth who is the returning officer appointed by the collector not after than 5-00 p.m. on monday the 17th august, 1959 or they may be delivered to the returning officer during office hours either in person or by messenger before the date and hour prescribed above.nomination pupers that are not sent by registered post or are not delivered in person or by messenger as required above, will be rejected.* * * * *4. it is seen from the above notification that paragraph 2 provides for the mode of making a nomination, paragraph 3 for despatch of nomination papers to the returning officer, while paragraph 4 enjoins upon the returning officer to reject the nomination papers in certain contingencies namely, failure to.....
Judgment:

Chandra Reddy, C.J.

1. This is a petition to quash the order of the District Panchayat Officer, Khammam, accepting the nomination of the second respondent for election to the Senate of the Osmania University from the Local Bodies' Constituency, Khammamet District to be held in the month of August-September 1959.

2. The Osmania University Act (IX of 1959) was enacted in February 1959) Section 11 of the Act indicates the authorities of the University of which the Senate is one. The composition of the Senate is provided for in Section 17. The Senate should consist of three kinds of members such as (i) Ex-officio members, (ii) Life members and (iii) other members. Under class (iii) one person has to be elected from among themselves (other members) by the members of the Committees of Municipalities, the members of the District Boards and the Saipanchas of Gram Pancliayats in each district in the University area. It is in connection with the election of such persons that a notification was issued by the Osmania University in July 1959.

3. Having regard to the role which this notification plays in the context of this enquiry, it is useful to extract the relevant terms thereof in extenso:

'Whereas one member is to be elected by the Local Bodies' Constituency (consisting of the members of the Committees of Municipalities, the members of the District Boards and Sarpanchas of Gram Panchayats in each district in the University area) under section 17, class III, sub-section 2 of the Osmania University Act of 1959, it is hereby notified that an election of one person to the senate of the Osmania University, from the said constituency in the district of Khammameth will be held in the month of August-September 1959.

Each elector shall be at liberty to nominate a duly qualified person. Every nomination shall be made by an elector in writing and seconded by another elector in writing. Every such nomination shall be in the prescribed form and shall be accompanied by the consent in writing of the nominee, agreeing to serve on the Senate, if elected.

Nomination papers should be enclosed in an envelope superscribed 'Nomination to the Senate by the Local Bodies' Constituencies' and sent by registered post so as to reach the District Panchayat Officer, Khammameth who is the Returning Officer appointed by the Collector not after than 5-00 P.M. on Monday the 17th August, 1959 or they may be delivered to the Returning Officer during office hours either in person or by messenger before the date and hour prescribed above.

Nomination pupers that are not sent by registered post or are not delivered in person or by messenger as required above, will be rejected.

* * * * *

4. It is seen from the above notification that paragraph 2 provides for the mode of making a nomination, paragraph 3 for despatch of nomination papers to the Returning Officer, while paragraph 4 enjoins upon the Returning Officer to reject the nomination papers in certain contingencies namely, failure to send them by registered post or to deliver them either in person or by messenger as indicated in paragraph 3. After the issue of the notification, the Returning Officer called for nominations from the Khammameth Local Bodies' constituency.

5. Pursuant to this, two of the electors duly proposed and seconded the name of the second respondent who accepted the nomination by affixing his signature to the nomination form. An objection was raised by the petitioner to this nomination on the ground that the nomination paper did not conform to the requirements of the notification in that it was not accompanied by a separate consent in writing of the nominee agreeing to serve on the Senate, if elected.

6. This opposition was Overruled by the Returning Officer in the view ''that the consent of the candidate is included in the form itself in which the name of the candidate and his consent in writing is included'. The Returning Officer also observed:

'If there was any necessity for accompanying the agreeing of the candidate in writing separately the University authorities would have supplied a separate pro-forma for this purpose'.

In the result, be accepted the nomination of the second respondent. It is to remove this order on certiorari that the petitioner has presented this petition under Article 226 of the Constitution.

7. In support of this petition, Sri Chowdary the learned counsel for the petitioner, advanced before us the same contention. The point as presented by Sri Chowdary is the affixture of the nominee's signature in the nomination form indicating his acceptance of nomination is not sufficient. He should, in addition, annex a separate declaration agreeing to serve on the Senate, if elected. We do not think this contention is sustainable on the language of paragraph 2 of the notification. All that the notification requires is that the nomination would be made by an elector in writing and it should be seconded by another elector in writing.

The following sentence lays down as to what the nominee has to do. He is required to give his consent in writing, agreeing to serve on the Senate, if elected. ,It is immediately clear that the nominee is not called upon to express his consent in writing twice. It is enough if the consent is expressed in writing to serve on the Senate. The expression 'accompanied' does not mean that the consent should be in a separate form. It is also worthy of remark that the notification does not contemplate a declaration by the nominee. What is needed is only the consent of the person nominated to serve on the Senate.

Nor is it an essential requisite that he should write there that be agrees to serve on the senate, if elected. That clause only indicates that the nominee should be willing to be a member of the Senate. It does not communicate the thought that the consent should be in the very words mentioned therein. The object of this instruction is that the person nominated should be one who is prepared to serve on the Senate. This purpose is served when the candidate indicates his acceptance of nomination which means that he is willing to serve on the Senate.

8. The nomination form prescribed by the University authorities contains a provision for the proposal by an elector, the seconding by another elector and the expression of consent in writing of the nominee. That very form fulfills all the three conditions enumerated in paragraph 2. The notification does not prescribe that the consent should be in a particular mode. All that is necessary is that the consent should be conveyed by the nominee in writing. That is satisfied when the candidate has signed in the form indicating his acceptance of the nomination. It docs not require a separate declaration agreeing to serve on the Senate, it elected. It should be remembered that the third requisite, namely, that the consent in writing should accompany the nomination is not an empty formality hut is intended to serve a definite purpose, namely, that only persons who are willing to be elected alone are to be nominated.

9. Assuming for the sake of arguments that a separate form declaring the candidate's intention to serve on the Senate is an essential ingredient of a valid nomination, non-compliance with that requirement does not entail the consequence of rejection of the nomination paper. It is to be borne in mind that when the second respondent has indicated his acceptance of nomination by signing in the nomination form, there is a substantial compliance with that requirement. Failure to observe strictly this condition cannot lead to the rejection of the nomination paper because the Returning Officer is authorised to reject the nomination papers only in circumstances which are indicated in paragraph 4 of the notification.

He cannot reject the nomination paper of a person who has not disregarded the two requirements envisaged in paragraph 4. As pointed out by Bose, J. in Pratap Singh v. Shri Krishna Gupta, : [1955]2SCR1029 , 'It is the substance that counts and must take precedence over mere form'. To accept the contention of the learned counsel for the petitioner would be to lay emphasis more on the form rather than on the substance. Further, when the Statute does not provide for the consequence of non-compliance with a particular requirement, that should be regarded merely as directory and not mandatory and omission to comply with iuch a requirement would not result in penal consequence. In this connection the observations of Gajcndragadkar J. in Bam Ram v. Smt. Prasanni, : [1959]1SCR1403 the very decision upon which Sri Chowdary has relied for the proposition arc apposite;

'Where, however, the statute requires specific facts to be proved in a specific way and it also provides for the consequence of non-compliance with the said requirement it would, be difficult to resist the application of the penalty clause on the ground that such an application is based on a technical approach.'

10. The rule stated by a Bench of the Madras High Court in Sambandhan v. Election Tribunal, : AIR1954Mad231 accords with our opinion. The question there was whether the Returning Officer could reject a nomination paper for non-compliance with the proviso to Section 39(4) of the Representation of the People Act (XLIII of 1951) by which the Returning Officer may, at the time of the presentation of the nomination paper, require the person presenting the same to produce either a copy of the electoral roll in which the name of the candidate is included or a certified copy of the relevant entries in such roll.

In the cited case a copy of the electoral roll was not produced as asked for by the Returning Officer and so he rejected that nomination paper of the candidate who defaulted in that behalf and accepted the nominations of other candidates. The persons whose nominations were accepted went to polls and one of them was declared, elected. The candidate whose nomination was rejected filed a petition to set aside the election on the ground that his nomination was improperly rejected. The Election Tribunal upheld this objection and set aside the election.

This order of the Election Tribunal was sought to be quashed. The learned judges dismissed the writ petition in the view that since there was no provision for rejection of nomination papers for failure to comply with the proviso to Section 39(4) of the Representation of the People Act, the He-turning Officer has no power under the Act to reject the nomination paper for non-compliance with the terms of the other provisions in the Act. The doctrine of : AIR1954Mad231 governs the instant case. As we have already pointed out, it is only in two eventualities that a nomination paper could be rejected and they are set out in paragraph 4 of the notification. That does not include an objection relating to the consent of the candidate. Even on this ground, the petitioner should fail. In these circumstances, we think that the order of the Returning Officer is not open to challenge on any ground and has to be affirmed.

11. In the result, the writ petition is dismissed with costs. Advocate's fee is fixed at Rs. 150/-.


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