Satyanarayana Raju, J.
1. This is a petition, under Article 226 of the Constitution of India, to quash the order of the Election Tribunal, Elluru (Andhra) in Election Petition No. 7 of 1955 dated 6-4-1956
2. In order to appreciate the contentions raised on behalf of the petitioner, it is necessary to state the following facts: The petitioner and respondents 2 to 10 filed their nomination papers for election of the Andhra Legislative Assembly from the double-member constituency of Salur in Srikakulam District. Of the two seats, one was reserved for the Scheduled Tribes and the other was a general constituency. The petitioner and respondents 2 and 3 filed their nominations to the reserved seat. Respondents 4 to 10 were nominated to the general seat. On 7-1-1955 the date fixed for scrutiny of the nomination papers, the petitioner filed objections to the nomination of the 2nd respondent on the ground that he was not a member of the Scheduled Tribes. The Reluming Officer dismissed the petition observing as follows:
'Heard Arguments of the learned pleader for the candidate Sri Gadepalli Parayya (petitioner herein). At this stage no impediment can be attached to nomination on the grounds raised in this petition. They can be raised if any at the time of counting the votes before the declaration of the results under Section 54 of the Representation of the People Act, 1951. The petition is dismissed.'
Having rejected the objection, the Returning Officer made the following endorsement on the nomination paper of the 2nd respondent.
'I have scrutinised the eligibility of the candidate, the proposer and the seconder and decide as follows:
'Accepted.' (vide Ext. A-10).
The polling took place on 18-2-1955 and the results announced on 2-3-1955. At the poll the 2nd respondent secured 13473 votes; the 3rd respondent 8774 votes and the petitioner 4286 votes. The 2nd respondent was declared duly elected to the reserved seat and the 4th respondent was declared elected to the general seat. The result was duly notified in the Official Gazette on 11-3-1955. Here it is necessary to state that on the date of counting, the petitioner filed another objection petition against the acceptance of the nominations of both respondents 2 and 3. Before declaring the result, the Returning Officer held that the 2nd respondent and 3rd respondent both belonged to tha Scheduled Tribes and that the objection raised by the petitioner was untenable.
3. On the 6th May, 1955, the petitioner herein filed a petition under Section 81 of the Representation of the People Act (XLIII of 1951) alleging inter alia that the Returning Officer was bound to decide under Section 36(2) all objections raised to the nominations at the time of scrutiny, that the Returning Officer erroneously postponed his decision till the time of the counting of votes and that this had materially affected the result of the election, that his was the only valid nomination for the reserved seat and that he should have been duly declared elected thereto. He therefore prayed to declare the entire election wholly void and to declare him as having been duly elected to the reserved seat. The second respondent filed a written statement denying the material averments. On the pleadings, the following issues were framed:
1. Whether the respondents 1 and 2 are not members of the Scheduled Tribes?
2. Whether the Returning Officer made any enquiry regarding the objection raised to the nominations of respondents 1 and 2 at the time of scrutiny under Section 36 Clause (2) of the Representation or the People Act, and if not, what is the effect of his accepting the nominations of respondents 1 and 2?
3. Whether the petitioner can claim alternative reliefs, if not, which relief he elects to choose?
4. Whether the election of the third respondent can be questioned in this election petition and if so, is the election void?
5. Whether the verification to the petition is proper?
6. Whether the election is materially affected for all or any of the reasons mentioned in the petition?
7. To what relief is the petitioner entitled?
4. On a consideration of the evidence adduced by the parties, the Election Tribunal found as a fact as follows: The second respondent is a member of the Scheduled Tribes. But that the Returning Officer had not followed the procedure prescribed by Section 36 of the Act and this contravention would brine the case within the scope and ambit of Section 100(2)(c) of the Act, But, inasmuch as the petitioner had not succeeded in establishing that the result of the election had been materially affected, the petitioner was not entitled to have the election set aside.
5. At the outset, we may mention that the finding of fact reached by the Tribunal that the petitioner is a member of the Scheduled Tribes is not open to challenge in a writ proceeding and for this reason, learned counsel for the petitioner was content with raising the following point of law, namely, that as the acceptance of the nomination of the 2nd respondent by tile Returning Officer was improper within the meaning of Section 36 of the Act, the result of the election had been materially affected by reason of such improper acceptance and that the Tribunal was bound to declare the, election to be wholly void under Section 100(1)(c) of the Act. On the other hand Mr. K. Ramachandra Rao learned counsel for the 2nd respondent, has argued that the case is not covered by Section 100(1)(c) but by Section 100(1)(c) of the Act.
6. The Representation of the People Act has been extensively amended by the Second Amendment Act (XXVII of 1956). But this case has to be decided with reference to the provisions of the unamended Act as that was the statute in forcer when the election was held and on the date when the petitioner initiated the proceedings for having the election set aside.
7. Before we consider the contention raised by the petitioner, it will be convenient to refer to the provisions of the Representation of the People Act, 1951 bearing on the question. Section 32 of the Act provides that
'Any person may be nominated as a candidate for election to fill a seat in any constituency if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act.'
Section 33 of the Act deals with the presentation of the nomination paper and lays down the requirements for a valid nomination. As much or the argument before us turns upon the provisions of Section 36, we may as well set out that section;
'36 (1). On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer and one seconder of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint; and tile Returning Officer shall give them all reasonable facilities for Examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33.
2. 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 refuse any nomination on any of the following grounds:
(a) that the candidate is not qualified to be chosen to fill the seat under the constitution of this Act; or
(b) that the candidate is disqualified for being chosen to fill the seat under the constitution of this Act; or
(c) that a proposer or seconder is disqualified from subscribing a nomination paper under Subsection (2) of Section 33:
(d) x x x x x(e) x x x x X 3. x x x x x4. x x x x x5. The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is made the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned :
(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of bis reasons for such rejection.(7) x x x x x'
Under the terms of the above section, the Returning Officer is required on the date fixed for the scrutiny of the nomination, to examine the nomination paper and decide all objections which may be made to any nomination and after such summary enquiry, if any, as he thinks necessary, is entitled to refuse the nomination on certain grounds mentioned in Sub-section 2. Sub-section (6) lays down that
''The Returning Officer shall endorse cm each nomination paper his decision accepting Or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.'
This sub-section shows that where the nomination paper is accepted, no reasons are required to be given,
8. We shall now turn to Section 100 which enumerates the grounds for declaring an election to be void and the material part of the Section reads:
(1). 'If the Tribunal is of opinion--
(a)xx xx xx (b)xx xx xx (c) that the result of the election has been
materially affected by the improper acceptance or rejection of any nomination the Tribunal shall declare the election to be wholly void.
(2) Subject to the provisions of Sub-section (3). if the Tribunal is of opinion--
(a) xx xx xx(b). xx xx xx(c) that the result of the ejection has beenmaterially affected by the improper reception orrefusal of a vote or by the reception of any votewhich is void, or by any non-compliance with theprovisions of the Constitution or of this Act or ofany rules or orders made under this Act or anyother Act or rules relating to the election, or byany mistake in the use of any prescribed form,the Tribunal shall declare the election of thereturned candidate to be void.'
9. Now the whole controversy before us centres upon the exact connotation and the meaning of the expression 'improper acceptance' occurring in Section 100(1)(c). According to the petitioner, when the Returning Officer does not decide the objections made to any nomination, as be is bound to do under Section 36(2), the acceptance of the nomination paper must be held to be improper. According to the learned counsel for the 2nd respondent, when the nomination paper of a candidate is accepted by the Returning Officer, there is a proper acceptance within the meaning of Section 36(6) of the Act and the failure of the Returning Officer to decide the objections would amount to no more than a mere non-compliance with the provisions of the Act, bringing the case under Section 100(2)(c).
10. Now under Sec, 32 of the Act, any person may be nominated as a candidate for election to fill a seat in any constituency if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act. Section 36(2), authorises the Returning Officer to reject any nomination paper on the ground that the candidate is either not qualified or is disqualified under the provisions of the Act. If there are no grounds for rejecting a nomination paper under Section 36(2), then it has to be accepted and the name of the candidate is to be included in the list of candidates validly nominated. Section 100(1)(c) and Section 100(2)(c) provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly accepting any nomination.
That being the position and having regard to the now unchallenged finding of fact reached by the Tribunal below that the 2nd respondent is a member of the Scheduled Tribe, it cannot really be said that there was an improper acceptance ot the 2nd respondent's nomination. The acceptance was proper, but the Returning Officer did not follow the procedure prescribed by Section 36(2) in that he did not decide the objections filed by the petitioner to the nomination of the 2nd respondent immediately. The purpose of scrutiny is to see whether a candidate suffers from any disability Or disqualification which would debar him from a standing for election. The Returning Officer, as is seen by the endorsement made by him on Ex. A. 10, indeed accepted the nomination and included the 2nd respondent's name in the list of validly nominated candidates. There is therefore nothing more than a contravention of a statutory duty imposed upon the Returning Officer.
11. It is no doubt true that, under Section 100(1)(c) of the Act, where the result of the election has been materially affected by improper acceptance of any nomination, the Tribunal shall declare the election to be wholly void. But where the only irregularity is the non-observance of the statutory provisions, the case clearly comes under Section 100(2)(c). Under Section 100(2)(c), before an order setting aside an election could be made, two conditions must be satisfied. It must firstly be shown that there had been improper reception or refusal of a vote or reception of any vote which is void. Or non-compliance with the provisions of the Constitution or of the Act or of any other Act or rules relating to the election or any mistake in the use of the prescribed form.
It must further be shown that as a consequence thereof, the result of the election had been materially affected. The two conditions are cumulative, and must both be established and the burden of establishing them is on the person who seeks to have the election set aside. It was so held by their Lordships of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque, : 1SCR1104 . In the present case, the first condition has been satisfied. There then remains the second and the question is whether the petitioner has established that the result of the election had been materially affected by the contravention of Section 36(2) of the Act. Here it may be stated that the petitioner has not adduced any evidence before the Tribunal to show that the result of the election had been so affected and indeed that was the ground on which the Tribunal rejected the petitioner's claim for relief.
Here Mr. Vidyasagar has argued that by reason of the uncertainty and doubt in the mind of the electorate, the petitioner had suffered a prejudice though it is not possible to predicate with certainty as to how the result of the election would have been but for the so-called uncertainty and doubt. The requirements of Section 100(2)(c) are mandatory and the burden of establishing that the result of the election had been affected lay upon the petitioner. It was incumbent upon him to prove by positive and specific evidence that the result had been affected. It would not do for him to merely say that the result could have been different on some speculative ground.
That apart, we are really unable to see how the petitioner had been prejudiced by reason ot uncertainty and doubt prevailing in the mind of the electorate with regard to the nomination of the 2nd respondent. The doubt and uncertainty, if any, should have led the electorate to hesitate in casting their votes in favour of the 2nd respondent and it is difficult to accept that by reason of such uncertainty votes that would have been cast in favour of the petitioner were lost to him.
12. We are convinced that the petitioner cannot complain of any plausible prejudice having resulted to him by reason of the default of the Returning Officer to decide his objections before the date of the election as required by law. It is well settled that the success of a candidate who has won at any election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. On this ground as well, we are not satisfied that this is a fit case for the exercise of the prerogative jurisdiction of this Court under Article 226.
13. This writ petition therefore fails and is dismissed with costs of respondents 2 and 4. Advocate's fee Rs. 200/-.