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Dudhnath Prasad Vs. Mulchand and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2310 of 1956
Judge
Reported inAIR1958All7
ActsUttar Pradesh Land Revenue Act, 1901 - Sections 18(1); Uttar Pradesh Panchayat Raj Rules, 1947 - Rules 18C, 24 and 25; Uttar Pradesh Panchayat Raj Act, 1947 - Sections 5B, 12C, 12C(4); Representation of the People Act, 1951 - Sections 100(1)
AppellantDudhnath Prasad
RespondentMulchand and ors.
Appellant AdvocateM.H. Beg, Adv.
Respondent AdvocateRama Shankar Prasad, Adv. and Standing Counsel
DispositionApplication allowed
Excerpt:
(i) election - delegation of power - rules 24 and 25 of uttar pradesh panchayat rules,1947 - legislature does not empower state government to appoint additional sub-divisional officer - no delegation of such authority to state government - therefore collector also does not have any such powers to appoint the concerned additional sub-divisional officer. (ii) transfer of election petition - rules 24 and 25 of uttar pradesh panchayat raj rules, 1947 - no provision empowering sub-divisional officer to transfer election petition - petition to be tried by officer to whom it is presented - petition not to transfered. (iii) consolidation of petitions - section 12-c of uttar pradesh panchayat raj act, 1947 - no express provision for consolidation of two or more election petitions - consent of.....orderdesai, j.1. this is a petition for a writ of certiorari to quash the decision of opposite party no. 1 sri mulchand, additional sub-divisional officer, rasra and any other writ or direction that may be deemed necessary in the interest of justice.2. the petitioner contested election for the office of pradhan of village chaukia; he was elected by an overwhelming majority on 12-3-1956. the defeated candidate, babu bam filed an election petition which was dismissed on 11-8-1956 by opposite party no. 1. another election petition was filed by sukh raj ram and others, opposite parties 2 to 16, and it was allowed by opposite party no. 1 on the same date on the ground that the petitioner was less than thirty years of age and was, therefore, disqualified for the office of pradhan.3. the.....
Judgment:
ORDER

Desai, J.

1. This is a petition for a writ of certiorari to quash the decision of opposite party No. 1 Sri Mulchand, additional Sub-Divisional Officer, Rasra and any other writ or direction that may be deemed necessary in the interest of justice.

2. The petitioner contested election for the office of Pradhan of village Chaukia; he was elected by an overwhelming majority on 12-3-1956. The defeated candidate, Babu Bam filed an election petition which was dismissed on 11-8-1956 by opposite party No. 1. Another election petition was filed by Sukh Raj Ram and others, opposite parties 2 to 16, and it was allowed by opposite party No. 1 on the same date on the ground that the petitioner was less than thirty years of age and was, therefore, disqualified for the office of Pradhan.

3. The petitioner claims that he was more than thirty years of age when he contested the Election, that according to the family register prepared for the purpose of the elections he was 31 years of age and that an objection to his beinga candidate for the election on the ground of his being of under age had been rejected by the polling officer before whom it was raised. He also contested the jurisdiction of opposite party No. 1 to dispose of the election petition; he contended that opposite party No, 1 was a judicial officer and also additional sub-divisional officer but not sub-divisional officer.

Two election petitions were amalgamated by opposite party No. 1 and evidence was recorded in one, merely that filed by Babu Ram, and was treated as evidence in the other petition also; the petitioner contended that this was an illegal procedure adopted by opposite party No. 1. He therefore prayed for the decision of opposite party No. 1 setting aside his election and declaring a vacancy in the office of pradhan, being quashed.

4. The petition was opposed by opposite party No. 7. He pleaded that the petitioner was found to be less than 30 years of age on an enquiry by opposite party No. 1, that he had jurisdiction to decide the election petition, that he amalgamated the two petitions and recorded evidence in one to be used in both with the consent of all the parties and that the election was not fair and was vitiated by some illegalities.

5. The election of pradhan was held under the U. P. Panchayat Raj Act (No. XXVI of 1947). The relevant provisions of the Act and of the Rules framed by the State Government in exercise of the powers conferred by Section 110 of the Act are as follows. (References to sections are to sections of the Act and references to rules are to rules of the U. P. Panchayat Raj Rules, 1947).

6. A gaon sabha consists of all adults ordinarily resident within the area in which it is established but non-citizens of India and Lunatics are disqualified to be members, vide Section 5. Every gaon sabha has a pradhan (Section 11-A) and he is to be elected by the members of the gaon sabha from amongst them (Section 11-B). It is provided in Section 12-C that the election of a person as pradhan shall not be called in question except by an application

'presented to such authority within such time and in such manner as may be prescribed on the ground that ...................... (b) the resultof the election has been materially affected (i) by the improper acceptance or rejection of any nomination; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.'

A person is disqualified for being chosen, nominated or appointed to, and for holding any office in the gaon sabha if he is not a member of the gaon sabha, holds any office of profit under a State Government, is a salaried servant of a gaon sabha, has been dismissed from the service of a State Government, is in arrears of any tax due to the gaon sabha, is suffering from leprosy, is an undischarged insolvent, has been convicted of an offence involving moral turpitude, had been ordered to give security under Section 109 Or 110, Criminal P. C., has been sentenced to imprisonment for a term exceeding six months under the Essential Supplies Act or is convicted of an election offence or under the Removal of Social Disabilities Act.

These are the disqualifications mentioned in Section 5A. There is a further disqualification for the office of pradhan; it is that a member of a gaon sabha who is less than 30 years of age is not qualified to be chosen as pradhan, vide Section 5-B. It is laid down in Section 6A that if any question arisesas to whether a person has become subject to any disqualification mentioned in Sections 5, 5A or 5B.

'the question shall be referred to the prescribed authority for the decision and his decision shall, subject to the result of any appeal as may be prescribed, be final, and the name of the person shall, if necessary, be struck off from the register of members'.

The prescribed authority for this purpose is the Tahsildar, vide Rules 4J (1) and 14. The Secretary of the Sabha is required to prepare a register of members in two parts, part 1, (known as the family register), containing names and particulars of all persons residing within the jurisdiction of the gaon sabha and part 2 (known as the adult register) containing names and particulars of only those adults who are entitled to be members of the sabha under Section 5; See Section 9 and Rules 4 and 4-A.

A person registered in the family register who wag not less than 21 years of age on the date of establishment of the sabha is entitled to be registered in the adult register. A person is disqualified for registration in the adult register if he is not a citizen of India and is a lunatic; see Rule 4-E. The draft register of members prepared by the Secretary of the Sabha is to be published and the Secretary has to announce the fact of the publication by beat of drum and a date is to be fixed for filing claims and objections.

Claims and objections are required under Rule4-H to be addressed to the Panchayat Inspector who has jurisdiction under Rule 4-J to dispose them of. If a claim or an objection raises any question about any disqualification mentioned in Sections 5,5-A or 5-B, it must be referred by the Panchayat Inspector to the Tahsildar, who is the prescribed authority to dispose of it. Any claim or objection not raising such a question is to be disposed of by the Panchayat Inspector after a summary enquiry.

Any order of the Panchayat Inspector may be revised by the Tahsildar within seven days and the Tahsildar's decision, which is final, is to be communicated to the Secretary of the Sabha, who must amend the register in accordance with the decision. The register so amended is required to be re-published and then becomes final, vide Rule 5. Rule 6 deals with disposal 'of a reference made to the Tahsildar by the Panchayat Inspector under Rule 4-J; the Tahsildar is required to forward his decision to the Secretary of the Sabha who must as reouired under Rule 7 strike off the name of the person concerned from the register of members, if necessary.

Where any question of disqualification under Sections 5, 5-A or 5-B is raised otherwise than in a claim or objection, it must be referred to the Tahsildar by the officer before whom it arises for consideration: the Tahsildar is required to Rive his decision, which is subject to an appeal to the Sub-Divisional Officer, and a copy of his order is to be forwarded to the Secretary who must strike out the name of the person concerned from the adult register, if necessary; see Rule 14.

7. The rules regarding election of pradhan are contained in chapter 1-D of the Rules subject to certain modifications mentioned in Rule 20. A member of a sabha who desires to be nominated as a candidate is required to deliver to the returning officer a printed nomination paper in the specified form, vide Rule 18. All nomination papers received after the close of the hour fixed for the purpose must be rejected under Rule 18 (3) by the returning officer.

He has to fix the date, time and place for the scrutiny of nominations and give information ofthe same to every candidate nominated. Rule 18-C provides that on the appointed date he must examine the nomination papers in the presence of the candidates; he may reject any nomination on the ground that the candidate was not qualified under the Act to be chosen to fill the seat or that he was disqualified for being chosen to fill 'the seat under Section 5-A or that there had been failure to comply with any of the provisions of Rule 18. If he rejects any nomination paper, he must record a brief statement of his reasons.

8. Rule 24 lays down that an application under Section 12-C, which may for the sake of convenience be referred to as an election petition, must be presented 'before the Sub-Divisional Officer within whose jurisdiction the sabha concerned lies within thirty days' of the date on which the result of the election is announced Under Rule 25,

'every election petition shall be tried by theSub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits, provided that he may maintain only a memorandum of evidence and that the District Magistrate may at any stage transfer the election petition for hearing to another Sub-Divisional Officer.'

9. The election of the petitioner was challenged by the opposite parties on the grounds that he was less than 30 years of age and was, therefore, disqualified under Section 5-B, that there had been a gross failure to comply with the election rules and the result of the election was materially affected thereby and that the election was also vitiated by corrupt practices. The petition was filed in the court of the Sub-Divisional Officer, Rasra.

The District Magistrate on 22-5-1956, passedan order to the effect that with a view to ensure expeditious disposal of election petition Sri Mulchand Singh (opposite party No. 1) was appointed additional Sub-Divisional Officer of Rasra subdivision and that the Sub-Divisional Officer, Rasra, should distribute the election petitions between himself and the additional Sub-Divisional Officer. Consequently the Sub-Divisional Officer transferred the election petition filed by the opposite parties to opposite party No. 1, who thereupon disposed of it.

'Sub-Divisional Officer' is not defined in the Panchayat Raj Act and even in the Land Revenue Act. Section 18 (1) of the Land Revenue Act lays down that the State Government may place any Assistant Collector of the first class in charge of one or more sub-divisions; he is thereupon called an Assistant Collector in charge of a subdivision or in popular language Sub-Divisional Officer. The State Government may delegate, and has delegated, its powers under Section 18 to every Collector.

So a Collector can appoint any Assistant Collector of the first class as the Sub-Divisional Officer of a sub-division. But no power has been conferred upon the State Government by the Legislature, and therefore upon the Collector through delegation, to appoint an additional Sub-Divisional Officer. The Land Revenue Act contemplates only one Assistant Collector of the first class being placed in charge of a Sub-Division; on being placed in charge of it he becomes entitled to exercise all the powers conferred upon an Assistant Collector in charge of a sub-division.

Sections 12 and 14 of the Land Revenue Act provide for the appointment of a Commissioner in each division and of a Collector in each district; but there are also Sections 13 and 14-A which provide for appointment of Additional Commissioners and Additional Collectors and their powers. There is no provision for the appointment of an additional Sub-Divisional Officer; this confirms that there cannot be an additional Sub-Divisional Officer.

The Collector in the present case had already placed an Assistant Collector of the first class in charge of Rasra Sub-Division and thereby exhausted his powers under Section 18 (3); he had no power to appoint another Assistant Collector of the first class in charge of the Sub-Division unless he removed the Assistant Collector of the first class previously appointed. It is immaterial that Section 18 (1) of the Land Revenue Act uses the word 'any' and not 'only one'.

Further under the delegated authority the Collector can only place an Assistant Collector in charge of a sub-division and cannot appoint a Sub-Divisional Officer or an Additional Sub-Divisional Officer. A person becomes a Sub-Divisional Officer as the result of his being placed in charge of a sub-division; that is the legal effect of his being placed in charge of a sub-division. A Collector can achieve this result not by calling an officer a Sub-Divisional Officer but by placing him in charge of a sub-division.

In the present case the Collector did not place opposite party No. 1 in charge of a Subdivision and therefore he did not become a Sub-Divisional Officer. Even if there were such an officer as Additional Sub-Divisional Officer, he cannot be deemed to be Sub-Divisional Officer within the meaning of Rule 24 which contemplates the existence of one person being in charge of a subdivision and not two. Even if there is an Additional Assistant Collector of the first class placed in charge of a sub-division and even if he is called Additional Sub-Divisional Officer, he is not the Sub-Divisional Officer.

The rules do not provide for a contingency of there being two Sub-Divisional Officers; otherwise they must have provided for the election petition being presented to one or the other and could not have left it to the sweet will of the petitioner to choose between the two. In the present case the election petition was presented before the Sub-Divisional Officer in compliance with Rule 24 and he was bound by Section 12C (4) and Rule 25 to dispose of it himself. It is laid down in Section 12C (4) that the authority to whom an election petition is presented 'shall, in the matter of (1) hearing of the application and the procedure to be followed at such hearing, have such powers and authority as may be prescribed.'

This means that he cannot pass any order of an election petition presented to him which is not permitted by any rule. He cannot transfer it unless an authority to transfer it has been expressly conferred upon him. He must deal with it exactly as he is required to do; he cannot pass any other order. Even if opposite party No. 1 had jurisdiction to dispose of it, the sub-divisional officer, Rasra could not transfer it to him merely because he had the jurisdiction; opposite party No. 1 notwithstanding his being qualified to dispose of it, could nqt dispose of it unless it, was transferred to him in exercise of a power vesting in the Sub-Divisional Officer, Rasra.

No power of transfer of an election petition has been conferred upon the Sub-Divisional Officer; on the other hand, Rule 25 requires that the election petition must be tried by 'the Sub-Divisional Officer' meaning the Sub-Divisional Officer to whom it was presented. An election petition to dispute the election of an Uppradhan presented to the Sub-Divisional Officer concerned is expressly required by Rule 26 (2) to be heard by himself; but the absence of such an express provision regarding an ejection petition to dispute the election of a pradhan does not mean that it can be transferred by the Sub-Divisional Officer.

Rules 24 and 25 read with Section 12C (4) are equally clear. There is a provision for transfer by the District Magistrate but not by the Sub-Divisional Officer to another officer even if he is styled as Additional Sub-Divisional Officer. The District Magistrate has not exercised his power of transfer in the present case; moreover he could only transfer the petition to another sub-divisional officer, that is an Assistant Collector placed in charge of any other sub-division.

The words 'another Sub-Divisional Officer' occurring in Rule 25, proviso (6) mean an Assistant Collector placed in charge of another sub-division and not an additional Assistant Collector placed in charge of the sub-division within whose jurisdiction the gaon sabha lies. Reliance was placed upon the provisions of Section 192 of the Land Revenue Act under which a Sub-Divisional Officer may make over any case whether arising under the Land Revenue Act or otherwise, for enquiryor decision, from his own file to any of his subordinates competent to deal with such cases.

Assuming that under this section even an election petition can be transferred, the Sub-Divisional Officer, Rasra, could transfer the present petition to opposite party No. 1 only if he was his subordinate and competent to dispose of it. Since the jurisdiction to dispose of an election petition vests in the Sub-Divisional Officer and not in anadditional Sub-Divisional Officer it could not be transferred to opposite party No. 1, Moreover, there is nothing to indicate that he was subordinate to the Sub-Divisional Officer, Rasra.

Section 19 of the Land Revenue Act exhaustively lays down which officers are subordinate to a sub-divisional officer; it does not lay down that an additional sub-divisional officer is subordinate to the sub-divisional officer. Of course as I said earlier, the Land Revenue Act does not contemplate an additional sub-divisional officer and therefore there could not be any provision for his being subordinate to the sub-divisional officer.

10. In Kedar Nath v. Mool Chand : AIR1953All62 , the words 'the District Magistrate' in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (No. III of 1947) were held by Sapru J., not to include an Additional District Magistrate. Bose J., observed in Prabhakar Kesheo Tare v. Emperor, ILR (1943) Nag 154: (AIR 1943 Nag 26) (B), that the power conferred by the State Government upon all District Magistrates to detain certain persons could not be exercised by an Additional District Magistrate, at least not until it had been conferred upon him by the State Government.

Merely because a person was an Additional District Magistrate and was authorised to exercise powers of a District Magistrate, he could not exercise the particular power of detaining persons merely because U was a power that could be exercised by a District Magistrate. In Mool chand v. Emperor : AIR1948All281 , Wanchoo J., held that the power of detention delegated by the State Government to all District Magistrates can-not be exercised by an Additional District Magistrate.

11. I do not see any illegality in the two election petitions being heard together and decided on the basis of the evidence recorded in one of them. There may be no provision for consolidation of two petitions, but in this case they' were consolidated with the consent of the parties and it is not open to the petitioner to contend that the consolidation was illegal. He has not suffered at all from it.

12. Opposite party No. 1, if he had jurisdiction, could set aside the election of the petitioner on the ground that the result of the election had been materially affected by the improper acceptance of his nomination. But he has not done so. There was no issue framed by him about improper acceptance of the petitioner's nomination; on the other hand, the relevant issue framed was whether he was less than thirty years of age on the date of his nomination.

It is unfortunate that opposite party No. 1 did not realise that being under age was not the same thing as his nomination being improperly accepted. Not only that, it is not even certain that he realised that he could set aside the election only on finding that there had been an improper acceptance of nomination. He seems to have acted on the supposition that an election can be set aside only on the ground that the successful candidate was less than thirty years of age.

There may be an Improper acceptance of nomination of a candidate less than thirty years of age, but every acceptance of such a nomination cannot be said to be improper. Whether the acceptance is proper or not depends upon what happens at the time of the nomination and not merely on the age of the nominated candidate. If a candidate, whose nomination has been improperly accepted, is successful, it means that the result of the election has been materially affected; if his nomination was rejected, as it ought to have been, he could not have been elected and the result of the election must have been different.

There is, therefore, no doubt that the result of the election has been materially affected in the present case, but it would not be enough for the election being set aside. Opposite party No. 1 ought to have found also that there was an improper acceptance of the petitioner's nomination, but there is no such finding, and on this ground alone his decision deserves to be quashed. He had no jurisdiction to set aside the election merely on the ground that the petitioner was below the age of thirty because that is not a ground mentioned in Section 12C, The question whether the nomination had been improperly accepted or not has not been discussed at all.

13. It is not a mere omission on the part of opposite party No. 1 not to discuss or give a finding on the question of improper acceptance; I find that there has been no improper acceptance. There is no provision anywhere under which the nomination ought to have been rejected on the ground that the petitioner was actually under age. His name and birth date are mentioned in both parts of the register of members.

He was more than thirty years of age Recording to the date of birth mentioned there. There was no defect in the nomination paper or in its presentation. At the time of the scrutiny the returning officer was only required to examine the nomination papers and to reject any nomi-nation on the ground that the candidate was not qualified under the Act to be chosen to fill the seat or was disqualified for being chosen under Section 6A.

For this the only material that he had was the nomination paper, the register of members and objection, if any, against the nomination. There was no objection against the nomination of the petitioner; nobody informed the returning officer that the entries of the birth date in the register were erroneous and that the petitioner was really less than thirty years of age. A returning officer is not presumed to be omniscient and even if he were, he is not required to act on his own knowledge.

According to the register the petitioner did not suffer from the disqualifications mentioned in Section. 5A and 5B. The actual age of the petitioner was irrelevant, at least in the absence of an objection; the returning officer was only concerned with the age recorded in the register. If according to the register a candidate is under age and the returning officer without any evidence accepts his nomination, it amounts to his nomination being improperly accepted.

But when he acts on the only material on which he is required to act, the acceptance does not become improper merely because on a subsequent enquiry it transpires that the age recorded in the register was incorrect. Whether the acceptance was proper or improper must be judged with reference to the facts existing at the time of the scrutiny and not the facts which are brought to light during the hearing of an election petition.

The rules simply provide for scrutiny and not for any enquiry. I think that even if there had been an objection that the petitioner's age was incorrectly recorded in the register, the returning officer, would have been justified in acting upon the entry in the register. If there was any erroneous entry in the register it should have been got corrected in the manner laid down in Rules 4H, 4I and 4J by those who were likely to be affected by it.

The remedy of the opposite parties was to object to the entries of the petitioner's birth-date in the register and to have them corrected; when they failed to do so, the entries became final and binding upon the returning officer, who was not authorised to make any enquiry into their correctness and to reject a nomination paper on the ground that they were incorrect. I am inclined to the view that even if there had been an objection and it had been overruled, the acceptance of the nomination could not be said to be improper.

It is not necessary, however, to have my decision on this because there was no objection in the present case. The rules are undoubtedly defective and cannot be harmonised with one another or with the provisions of the Act. It seems that the Legislature has amended the Act by adding certain sections and the State Government has added rules, without taking care to see that the additions harmonise with the existing provisions.

Section 6-A has been added, but it does not explain on which occasion the question of disqualification should be referred to the prescribed authority. The language is wide enough to make it applicable when the question arises through an objection against the draft register, or an objection made at the time of scrutiny or an objection made through an election petition, but I doubt if it was the intention of the Legislaturethat the question arising on all these occasions should be referred to the prescribed authority.

It would be absurd for a sub-divisional officer being required to refer the question of age arising in an election petition to a Tahsildar for his decision and to be bound by it. It is doubtful if the question arising at the time of the scrutiny also must be referred by the returning officer to the Tahsildar. The register is a register of all residents and of all adults; it is to include the names of all persons even though they are disqualified under Section 5-A or 5-B; yet Section 6-A provides that the name of a person who is disqualified under Section 5-A or 5-B can be struck off from the register.

Since the register is bound to contain names of all residents and of adults provided they are citizens of India and not declared to be of unsound mind, though they may be subject to the disqualifications mentioned in Sections 5-A and 5-B, there is no occasion for any objection being filed under Rule 4-H against the entry of any person's name on the ground that he is subject to any disqualification mentioned in Section 5-A or 5-B. Rule 4-J contemplates an objection on the ground that the person entered in the register of members is subject to such a disqualification; it is not understood how there can be any such objection.

There remains only the stage of scrutiny of nominations; this seems to be the first occasion when the nomination of a candidate can be objected to on the ground that he suffers from any disqualification mentioned in Section 5-A or 5-B. But as I explained earlier, the returning officer would be bound by the entries in the register which are final and would have no material for allowing the objection.

Rule 18-C regarding scrutiny of nominations does not provide for any enquiry into the correctness or otherwise of the entries in the register or even into the alleged disqualification under Section 5-A or 5-B. The returning officer is required to reject a nomination on the ground that the candidate was not qualified to be chosen to fill the seat or was disqualified for being so chosen under Section 5-A; but how he has to be satisfied about the qualification or disqualification is not stated anywhere in the rules. He is only required to scrutinise the nominations & there is no express provision empowering him to make an enquiry.

It is not easy for a returning officer to comply with Rule 18-C and it seems that the State Government was labouring under the misapprehension that the name of a person who is disqualified under Section 5-A ought not to be in the register.

14. The words 'the improper acceptance or rejection of any nomination' are used in the Representation of the People Act (No. XLIII of 1951). Section 100 (1) (c) is in exactly the same language as Section 12-C (1) (b) (1). Section 100 (2) (c) of the Representation of the People Act lays down that if

'the result of the election has been materially affected ........................ by any non-compliance with the provisions of the Constitution or of this Act or of any rules made under this Act .................... the election shall bedeclared to be void';

this provision is similar to Section 12-C (1) (b) (ii) of the Act. Section 36 of the Representation of the People Act deals with scrutiny of nomina-tions and contains provisions similar to those of Rule 18-C, but with this material difference that it provides for summary enquiry. These provisions of the Representation of the People Act came uplor consideration before the Supreme Court in Durga Shankar Mehta v. Raghuraj Singh : [1955]1SCR267 (D). Mukherjea J., speaking for the Court overruled the contention that the acceptance of a nomination becomes improper if the candidate is not qualified to be chosen to fill the seat. He observed at page 277,

'If the want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks paper on the result of which he can either accept or reject the nomination.

But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination.

'............. the Electoral roll is conclusiveas to the qualification of the elector except where a disqualification is expressly alleged or proved. The Electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified .to be chosen a member of the State Legislative Assembly aS no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in thesecircumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which Section 100 (1) (c) of the Act contemplates.

It would have been an improper acceptance, if the want of qualification was apparent on the Electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed be-for him.'

I hold that the nomination of the petitioner had not been improperly accepted by the Returning Officer and the election petition could not succeed merely on the ground that he was less than thirty years of age at the relevant time.

15. The opposite parties questioned the petitioner's election also on the ground of gross failure to comply with the provisions of the Act and the rules. No issue dealing precisely with this allegation was framed by opposite party No. 1; he only enquired into the question of age. He has not set aside the election on the ground of any gross failure to comply with the rules. But it was contended before me that the election deserved to be set aside on this ground also.

The only non-compliance alleged was in allowing the petitioner to be chosen as pradhan in spite of his being less than thirty years of age. It was said on behalf of the petitioner that if he was really less than thirty years of age & was still allowed to be chosen as pradhan, it was not on account of any failure to comply with the rules, but it was on account of failure on the part of the opposite parties themselves to get the wrong entries of birth-date in the register corrected.

It was pointed out that no provision of the Act or the rules was contravened or not complied with by the wrong birth date being entered in the register or by its being retained in it. There can be failure to comply with the provisions of the Act or the rules only when they require something to be done and that is not done. Laying down a disqualification does not amount to requiring something not to be done.

The Act only laid down that a person of less than thirty years of age is not qualified to be chosen as a pradhan; this provision does not require any act to be done or not to be done. It only lays down substantive law; it has nothing to do with the procedure. There has been no non-compliance with the procedure. There has been no non-compliance with the procedural law resulting in the petitioner being chosen as pradhan. A procedural law may be obeyed or disobeyed but there is nothing like substantive law being obeyed or disobeyed; substantive law is enforced through the procedural law.

If the procedural law is complied with correctly, there is no failure to comply with the Act or the rules even though the result is not in conformity with the substantive law. If a question of fact, such as of age, is wrongly decided and a person not qualified to be chosen as pradhan is chosen, it is not a case of failure to comply with the provisions of the Act or the rules, much more less is it a case of gross failure. Section 5-B does not require any act to be done.

It does not say that a person of less than thirty years of age shall not be chosen as pradhan. If these were the words used, it might be contended that choosing a person of less than thirty years of age as a pradhan is non-compliance with the provisions of section 5-B, but even then it would be non-compliance by the electorate and such non-compliance is not meant to be a ground for avoiding an election. It was urged that failure to comply, within the meaning of section 12-C, is failure on the part of the authorities responsible for the conduct of the election.

If the improper acceptance or rejection of a nomination itself amounted to failure to comply with the provisions of the Act or the rules, there would have been no necessity for the Legislature's enacting the provision in Section 12-C(1) (b) (i) because that under Section 12-C(1)(b)(ii) would have been enough. There is much force in all these arguments advanced on behalf of the petitioner, but the opposite view has been taken by the Supreme Court in the case of Durga Shankar (D) (Supra).

It was held there that if a person constitutionally disqualified is elected, it is a case of non-compliance with the provisions of the Constitution. On this reasoning allowing the petitioner, if he was under age, to be elected as pradhan would amount to non-compliance with the pro-visions of Section 5-B of the Act.

However, as the petitioner's election has not been set aside on the ground of non-compliance, it is unnecessary to say anything more.

16. Opposite party No. 1 has acted without jurisdiction in setting aside the petitioner's election. I, therefore, allow this application and direct a certiorari to be issued quashing his order dated 11-5-1956. A mandamus also shall be issued requiring him to dismiss the election petition No. 14 of 1956. The petitioner will get his costs from opposite parties Nos. 2 to 16.


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