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Shiam Kishore Vs. Madan Gopal Mahendra and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 137 of 1954
Judge
Reported inAIR1958All14
ActsUttar Pradesh Municipalities Act, 1916 - Sections 19(1), 29, 43B, 292(2), 295(1), 296, 296(1) and 296(2); Uttar Pradesh Election Petition (Presidents of Municipal Boards) Rules, 1949 - Rule 3 and 3(1); Uttar Pradesh Election Petition (Presidents of Municipal Boards) (Amendment) Rules, 1953; Uttar Pradesh Municipalities (Amendment) Act, 1953; Municipal Corporations Act, 1882 - Sections 87; Code of Civil Procedure (CPC) , 1908
AppellantShiam Kishore
RespondentMadan Gopal Mahendra and ors.
Appellant AdvocateS.D. Misra and ;J.S. Trivedi, Advs.;Standing Counsel
Respondent AdvocateH.D. Srivastava, Adv. for Opposite Party (No. 1)
DispositionPetition dismissed
Excerpt:
(i) election - municipality election - sections 29, 43 b and 295 of the uttar pradesh municipality act 1916 - rule made under the act by the state government - amendment done after repeal of section 29. (ii) municipality election - rule 3 of election petition (president of municipal boards) rules, 1949 - nomination improperly rejected - returning officer equipped with less amount of time to deal with questions of fact as he has to conduct enquiries summarily - therefore election tribunal can arrive at different conclusions after examining evidence before it - determination of issue by election tribunal may differ from what it is by returning officer. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v......mootham, c.j.1. this is a petition under art. 226 of the constitution. the facts are these :the petitioner and respondents nos. i to 9 were candidates for the office of president of the municipal board of sitapur at an election to be held on the 26th october, 1953. they filed their nomination papers on the preceding 5th october. objection was then taken by the ninth respondent to the nomination of the first respondent on the ground that the latter had not attained the age of thirty years, the qualifying age for election for residents under section 43 (4) of the municipalities act, 3916. the returning officer thereupon held a summary enquiry under the uttar pradesh municipalities (conduct of election, of presidents) rules 1953, and on the 7th october he rejected the nomination paper of the.....
Judgment:

Mootham, C.J.

1. This is a petition under Art. 226 of the Constitution. The facts are these :

The petitioner and respondents Nos. I to 9 were candidates for the office of President of the Municipal Board of Sitapur at an election to be held on the 26th October, 1953. They filed their nomination papers on the preceding 5th October. Objection was then taken by the ninth respondent to the nomination of the first respondent on the ground that the latter had not attained the age of thirty years, the qualifying age for election for residents under Section 43 (4) of the Municipalities Act, 3916.

The Returning Officer thereupon held a summary enquiry under the Uttar Pradesh Municipalities (Conduct of Election, of Presidents) Rules 1953, and on the 7th October he rejected the nomination paper of the first respondent. Thereafter respondents Nos. 4 to 9 withdrew their candidatures. The election was accordingly fought between the petitioner and second and third respondents, the petitioner being declared elected.

2. On the 12th December, 1953, the first respondent filed an election petition on the ground that his nomination had been improperly rejected. The Election Tribunal recorded evidence with regard to the age of the first respondent and came to the conclusion that the latter had attained the age of thirty years. It was accordingly of opinion that the first respondent's nomination paper had been improperly rejected by the Returning Officer and toy an order dated the 9th December, 1954, it allowed the petition, set aside the election of the petitioner and declared a casual vacancy to exist.

3. The petitioner thereafter filed the petition which is now before us. He challenges the validity of the order of the Election Tribunal on three grounds. He says, first, that the rules regarding election petitions against the President of a Municipal Board, known as the Election Petition (Presidents of Municipal Boards) Rules, 1949 are invalid; secondly, in the alternative, that the amendments to those rules which came into force on the 9th November, 1953, had no retrospective effect and, thirdly, that the Election Tribunal had no jurisdiction to arrive at a finding as to the age of the first respondent on the basis of additional evidence recorded by it. It is convenient to consider these submissions in that order.

4. The U. P. Municipalities Act 1916 (hereinafter called the Principal Act) was amended by U. P. Act VII of 1949 which came into force on the 22nd June, 1949. By that amending Act a new section, Section 43-B, was inserted in the principal Act. Sub-section (1) of that section provided that no election of the President of a Municipal Board shall be called in question except by an election petition presented to the State Government in accordance with the provisions of that section, and Sub-section (2), so far as is material, reads as follows :

'42-B (2), An election petition may be presented jointly by ten electors entitled to vote in any ward or by a candidate for Presidentship whose nomination paper has been rejected or who has been defeated at the poll in such manner and on such grounds and within such period as may be prescribed.............'

On the 20th June, 1950, the Election Petition (Presidents of Municipal Boards) Rules, 1949, (hereinafter referred to as the Election Petition Rules) were published. These rules were made under Section 296 (1) of the Principal Act. That subsection provides that

'296 (1). The State Government shall make rules consistent with this Act in respect of the matters described in Ss 29 43-A, 44-A, 95, 127, 153, 235 and 248.'

'29. The following matters shall be regulated and governed by rule, namely :

(a) .............................

(b) the qualifications of candidates for election;

(c) the preparation and revision of electoral rolls and candidate lists;

(d) the nomination of candidates;

(e) the dates, time and manner of holding elections, general or casual;

(f) the prohibition of corrupt or improper practices committed in connection with elections and the punishment of persons guilty of the same;

(g) any other matter relating to elections or election petitions in respect of which the Act makes no provision or insufficient provision and provision is, in the opinion of the State Government, necessary.

It is not in dispute that the Election Petition Rules as originally promulgated in 1950 were valid.

5. In 1953 both the principal Act and the Election Petition Rules were amended. The principal Act was amended by U. P. Act VII of 1953 which came into force on the 20th February of that year, and by Section 11 of this amending Act Section 29 of the Principal Act was repealed. Later in the same year, on the 9th November, 1953, rules 3, 4 and 6 of the Election Petition Rules were amended, those amendments being made by a notification made under Section 296 (2) read with Section 43-B of the Principal Act. The argument of the petitioner is that as a consequence of the repeal of Section 29 of the Principal Act the State Government not only lost the power to amend the Election Petition Rules but that those rules ceased to be operative. In my opinion this submission cannot be sustained.

6. Sub-section (1) of Section 296 of the Principal Act I have already quoted; Sub-section (2) of that section, so far as is material provides that

'296 (2). The State Government may make rules consistent with this Act :

(a) providing for any matter for which power to make provision is conferred, expressly or by implication, on the State Government by this or any other enactment in force at the commencement of this Act, and

(b) generally for the guidance of a board or any Government officer in any matter connected with the carrying out of the provisions of this or any other enactment relating to municipalities.'

It was under this provision, read with Section 43-B, that the Election Petition Rules were amended in 1953. Now the original rules were made by the State Government under Section 296 (1), and this is probably to be accounted for by the fact that not only had the State Government power to make such rules under Section 29 (which is not disputed) but the rules were no doubt drafted before Section 43-B was introduced into the Act, although that section became law shortly before the rules were promulgated. Sub-section (2) of Section 296 of the Principal Act empowers the State Government to make rules providing for any matter for which power to make provision is conferred expressly or by implication on it, and there can, in my opinion, be no doubt that Section 43-B did by implication confer such power.

I am therefore of opinion that the State Government had power under Section 296 (2) of the Principal Act to amend the Election Petition Rules in 1953 notwithstanding the repeal of Section 29. I am also of opinion that as Section 43-B was in force when these rules were first promulgated in June, 1950, the rules although in fact made under Section 296 (1) could equally well have been made underSection 296 (2). There is therefore in my judgment no sufficient ground for holding that those rules ceased to have effect when Section 29 was repealed. The first submission made by the petitioner is therefore in my opinion without foundation.

7. I turn now to the second and alternative argument, namely that the amendments to the Election Petition Rules which came into force on the 9th November, 1053, have no retrospective effect. To appreciate this argument it was necessary to refer to Rules 3 and 4. Rule 3 as it originally stood read as follows :

'3. Power to question election by petition :

1. The election of any person as a President of a Board may be questioned by election petition on the ground :

(a) that such person committed during or in respect of the election proceedings a corrupt practice as defined in Section 28 of the Act, or

(b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes, or

(c) that such person was disqualified for election as President under the provisions of Section 43 of the Act.

2. The election of any person as President of a Board shall not be questioned :

(a) on the ground that the name of any person qualified to vote has been omitted from or the name of any person not qualified to vote has been inserted in the electoral roll or rolls, or,

(b) on the ground of non-compliance with any provision of the Act or any rule or of any mistake in the forms required thereby or of any error, irregularity or want of formality On the part of the officer or officers charged with carrying out the purposes Of the Act, or any rule, unless such non-compliance, mistake, error, irregularity, or want of formality has materially affected the result of the election.'

Rule 4 then provides that a petition must be presented within fifteen days from the date on which the result of the election is announced by the Returning Officer.

8. On the 9th November, 1953, Rules 3, 4 and 6 were amended, but we are not concerned with the amendment of Rule 6. The amendment in the case of Rule 3 was the deletion of Clause (c) or Sub-rule (1) and the substitution therefor of a new Clause (c) reading as follows :

'That such person was not qualified or was disqualified for election as President or that the nomination paper of the petitioner was improperly rejected:'

Rule 4 was also amended, the provision now being that a petition must be presented within thirty days from the date on which the result of the election is notified by the State Government under Section 56 of the Act, that is to say in the official Gazette.

9. Now the election was held on the 26th October. 1953, and the Returning Officer declared the petitioner to be elected on the 28th October. The result of the election was notified in the official Gazette on the 14th November and the election petition was filed on the 12th December. The amendments to Rules 3 and 4 did not therefore come into force until twelve days after the result of the election was declared. Now the petitioner contends that, as the unamended Election Petition Rules were in force at the date of his election, that election could be challenged only on one or more of the grounds specified in the unamended Rule 3. At that time the election of a person as President of a Board could not be questioned on the ground that the nomination paper of the petitioner had been improperly rejected, and that as that was the ground upon which his election was challenged, the election petition was not maintainable.

In reply to this contention the learned Standing Counsel advanced two arguments. He says in the first place that even under the unamended Rule 3 the rejection of a nomination paper was a ground upon which an election could be challenged and that the only effect of the amendment was to make explicit what was previously implicit. The second argument is that the amendment to Rule 3 has retrospective effect and applies to election petitions filed in respect of elections, which had already taken place.

10. In support of his first contention the learned Standing Counsel has argued that the improper rejection of a nomination paper was 'an error, irregularity or want of formality' on the part of an officer charged with carrying out the purposes of the Act or any rule, and would therefore, under Rule 3 (2) (b) constitute a ground upon which the election of a President can be challenged provided such error, irregularity or want of formality has materially affected the result of the election.

11. I take a different view. Rule 3 of the Election Petition Rules is in substantially the same terms as Section 19 of the Principal Act which enumerates the grounds upon which the election of a member of a board may be questioned. Clause (b) of Subsection (1) of Section 19 and Clause (b) of Sub-rule (1) of Rule 3 provide inter alia that the election of a person as a member of a Board or as a President of a Board respectively can be challenged on the ground that such person was 'for any other reason not duly elected by a majority of lawful votes.' There can, I think, be little doubt that those words are taken from Section 87 of the Municipal Corporations Act, 1882 (45 & 46, Vict. C 5). That section provides that a Municipal election may be questioned by an election petition on the grounds specified therein of which the fourth, numbered (d), is that the person whose election is questioned 'was not duly elected by a majority of lawful votes.'

Now it is to be observed that Section 87 of the Municipal Corporations Act does not expressly make provision for a municipal election to be questioned on the ground that the nomination paper of a candidate was improperly rejected, but nevertheless an election can undoubtedly be questioned on that ground for it has been held that the improper rejection of a nomination paper comes under head (d) of Section 87, namely that the person whose election is questioned was not elected by a majority of lawful votes. (See Arnold's Law of Municipal Corporations, 7th Edn., pp. 198, 264). In the circumstances I see no reason why the similar words used in Section 19 (1) of the principal Act and in Rule 3 (1) of the Election Petition Rules should be given a more restricted meaning than in the Municipal Corporations Act from which the words were, I think, derived.

I think therefore that the learned Standing Counsel is right in saying that the addition of the words 'or that the nomination paper of the petitioner was improperly rejected' effected by the amendment of the Rules in 1953 makes explicit what previously was implicit, but that this provision was implicit in Clause (b) or Sub-rule (1) of.Rule 3 and not implicit in Clause (b) of Sub-rule (2). If that be so, it follows that no question of retrospective operation of this amendment arises. The second contention of the petitioner is therefore, in my judgment, ill founded.

12. I now come to the third and most important of the petitioner's submissions. It is that the Question which the Election Tribunal had to consider was whether the Returning Officer, on the materials before him, came to a wrong conclusion with regard to the first respondent's age. For the respondents it is urged that the question of age was at large before the Tribunal whose duty it was to decide that question not only on the basis of the material before the Returning Officer but taking into account such further evidence as the parties chose to lay before it.

13. The question which the Tribunal had to decide was whether, in the words of Clause (3) of Sub-rule (1) of Rule 3 of the Election Petition Rules, 'the nomination paper of the petitioner was improperly rejected.' Now that phrase is in my opinion ambiguous; for it may mean that the nomination paper of the petitioner was (a) wrongly rejected by the Returning Officer on the material before him or (b) wrongly rejected in the light of facts disclosed at the enquiry before the Election Tribunal. I think therefore that the Court, in seeking to construe these words, is prima facie entitled to consider the consequences which would follow from the acceptance of either of the alternative contentions; for 'although in construing an Act............the argument as to theresults is entitled to little weight, yet, in order to determine the intentions of the framers, we may consider the results of suggested constructions of the language employed by them, in order that We may give effect to their intentions, if we can do so without putting a forced interpretation on their language': Queen v. Nyn Singh, 2 N W P H C R 117 (PB) (A).

14. The procedure which is to be followed at the time of scrutiny is to be found in the Uttar Pradesh Municipalities (Conduct of Election of Presidents) Rules, 1953, to which it is convenient to refer as 'the Conduct of Election Rules.' Rule 11 of these Rules provides that the provisions of paragraph 20 (except sub-paragraph (3) and paragraphs 21 to 25 of the U. P. Municipalities (Conduct of Election of Members) Order, 1953, (herein referred to as 'the order') shall apply mutatis mutandis to the nomination of candidates for the office of President of a Board.

Paragraph 20 of that Order prescribes the procedure for the filing of nomination papers. Paragraph 21 provides that the Returning Officer shall, on receiving a nomination paper, inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations. Paragraph 23 then makes provision for scrutiny. Sub-paragraph (1) of this paragraph makes provision for the persons who may be present at the time of scrutiny. Sub-paragraph (2) then directs that the Returning Officer shall examine the nomination papers and shall decide objection that may be made to any nomination paper, and may, either on such objection or on his own Nomination,

'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 for being chosen to fill the office of President; or

(b) that the candidate is disqualified for being chosen to fill that office; or

(c) that there has been a failure to comply with any of the provisions of paras 16 and 17 of the Order; or

(d) that the signature of the candidate or any proposer or seconder is not genuine or has been obtained by fraud.

Sub-para (6) provides that the Returning Officer shall hold the scrutiny on the date appointed 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; but this provision is subject to the proviso, that in case an objection to a nomination 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.

It is clear therefore that the Rules provide for the determination by the Returning Officer of objections within a very limited period and in a very summary manner; presumably on the ground that on no account should the election itself be postponed.

15. It is desirable at this point to examine a little more closely the grounds upon which a Returning Officer is enjoined to refuse a nomination. The first two of these grounds are that the candidate is not qualified to be chosen, or is disqualified for being chosen, to fill the office of President. Under the principal Act, as it stood in 1953, all members and persons qualified to be members of a municipal board were eligible for election to the office of President, provided that no whole-time salaried servant of the Government or any member or servant of a district board would be eligible (Section 43 (1) ), and provided further that no elector shall be qualified as President unless he has attained the age of 30 years (Section 43 (4) ).

The qualifications and disqualifications for membership of a Board are enumerated in Sections 13C and I3D of the Principal Act. Section 13C is a short section and the only provision in it applicable in the case of a candidate for presidentship is that be must be an elector in any ward in the municipality. Section 13D on the other hand is a long section, and it enumerates no less than ten grounds of disqualification. It reads thus:

'13-D Disqualifications for membership,--

A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as, and for being, a member of a board if he-

(a) is a dismissed servant of a local authority the State or Central Government and is debarred from re-employment therein, or

(b) is debarred from practising as a legal practitioner by order of any competent authority, or

(c) holds any place of profit in the gift or disposal of the Board, or

(d) is disqualified under Section 27 or Section 41 (that is to say that having been declared by an Election Tribunal of having committed a corrupt practice he is incapable of being elected a member of the board for five years or he has been removed by the State Government under Section 40 of the Act) or

'(e) is disqualified under Section 145 of the Representation of the People Act, 1951', (that is to say that he had been convicted of certain offences or has been disqualified from exercising any electoral right for a period of not less than five years on account of any corrupt practices in connection with an election--), or

' (f) is in the service of the State or the Central Government or any local authority, or is a District. Government Counsel or an Additional or Assistant District Government Counsel or an Honorary Magistrate or an Honorary Munsif or an Honorary Assistant Collector; or

(g) is in arrears in the payment of municipal tax or other dues in excess of one year's demand to which Section 166 applies; or(h) is suffering from leprosy; or (i) is an undischarged insolvent;

(j) has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under the Essential Supplies (Temporary Powers), Act, 1946, or the U. P. Control of Supplies (Temporary Powers) Act, 1947, or for an offence which is declared by the State Government to imply such moral turpitude or to render him unfit to be a member, or has been ordered to find security for good behaviour in consequence of proceedings taken under Sections 109 or 110 of the Code of Criminal Procedure, 1898, such sentence or order not having been subsequently reversed or remitted or the offender pardoned:

Provided that in cases of (a) and (b) the disqualification may be removed by an order of the State Government in this behalf:--

Provided further that in the case of (g), the disqualification shall cease as soon as the arrears are paid.'

16. These grounds are not only numerous but some of them may involve difficult questions of fact. It is I think clear that disputed objections based on many of these grounds may give rise to questions of fact which by their nature are not susceptible of proper determination at a summary enquiry. Such, for example, may be the case if the allegation is that the candidate is disqualified under Section 27 or Section 41 of the principal Act, or is in arrears in the payment of municipal tax, or is suffering from leprosy. Again, under Clause (d) of para 22 (2) of the Order the allegation may be that the signature of a proposer or seconder has been obtained by fraud. The duty imposed upon the Returning Officer is however, under Rule 11 of the Conduct of Election Rules read with para 22 of the Order 1953, to refuse any nomination, if he is of opinion that the candidate is disqualified, such opinion being formed after such summary Inquiry, if any, as he thinks necessary.

In such circumstances I think it is difficult to hold that it was the intention of the framers of the rule that such questions of fact were to be finally determined on the basis of such material as the parties could place before the Returning Officer at the summary enquiry. Even if an adjournment is granted by the Returning Officer it can under para 22 (6) of the Order, be only for a period of two days, and it may well be impossible for a candidate against whose nomination an objection has been lodged to produce the necessary evidence to establish his case within that period.

Suppose, for example, the objection is that the candidate has been sentenced to transportation for an offence which is declared by the State Government to imply moral turpitude, and the objector produces a certified copy of the judgment of the candidate's conviction by the trial court. The candidate's reply is that he was acquitted on apppeal but he may be unable to produce a certified copy of the appellate court's order within the limited time allowed.

Evidence to prove that the candidate has received his discharge in insolvency, or that he is no longer suffering from leprosy, may be physically impossible to produce within two days. It is apparent therefore that unless the Election Tribunal is at liberty to enquire into these matters and reach a conclusion on the basis of the evidence adduced before it, serious injustice may be done to a candidate.

17. It appears to me therefore more reasonable to think that the framers of the rule intended that questions of fact should be finally determined on the material before the Returning Officer; and I would accordingly hold, unless I am compelled by the course of judicial decision to take a different view, that it is open to the Election Tribunal to differ from a finding of fact arrived at by the Returning Officer, on the basis of the evidence adduced before it, and in the light of its own finding determine whether the nomination has been improperly rejected.

18. There is very little authority on the point. In Dudhnath Prasad v. Additional Sub-Divisional Officer, Rasra, Civil Misc Writ No. 2310 of 1956. D/-8-1-1957; (AIR 1958 All 7 (B), Desai J., held that the correctness of the decision of the Returning Officer had to be determined on the material before him at the time of scrutiny. That was however a case under the U. P. Panchayat Raj Act in which the election of a Pradhan was challenged under Section 12C of the Act on the ground that a nomination paper had been improperly accepted. The point arose in Vashit Narain Sharma v. Dev Chandra, 1955-1 SCR 509: (AIR 1954 SC 513) (C), but was not decided. The decision of the Supreme Court in Durga Shankar v Raghuraj Singh, 1955-1 SCR 267: (AIR 1954 SC 520) (D), calls however for careful consideration. In this case a number of persons were nominated as candidates for a double member parliamentary constituency. No objection to the nomination paper of any candidate was taken, at the time of scrutiny, and at the election the appellant and one Vasant Rao were declared elected. The election was subsequently challenged on the ground, inter alia, that the nomination paper of Vasant Rao had been improperly accepted as Vasant Rao, it was alleged, was under twenty-five years of age.

This allegation was found to be true by the Election Tribunal which held that as Vasant Rao was disqualified the acceptance of his nomination paper by the Returning Officer was improper, and as the result of the election was materially affected thereby it declared the whole election to be void under Section 100(1)(c) of the Representation of People Act, 1951. The finding that Vasant Rao was under twenty-five years of age and therefore disqualified for election was not challenged by the appellant whose contention was that there had been no improper acceptance of Vasant Rao's nomination paper and that consequently the whole election should not have been set aside under Section 100(1)(c), but that as Vasant Rao was disqualified his election and not the whole election should have been set aside under Section 100(2)(c).

This contention was accepted, The Supreme Court held that as the nomination paper of Vasant Rao was on its face in order and no objection was raised, the Returning Officer had no alternative but to accept the nomination and that that acceptance could not in the circumstances be said to be improper. What the Court said on this point at page 277 (of SCR): (at p. 524 of AIR) was-

'The electoral roll in the case of Vasant Rao did describe him as having been of proper ageand 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 these circumstances 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.'

The Court then proceeded to say that

'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 before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance.'

19. These observations were relied upon by the petitioner in support of his contention that the question of the propriety of the acceptance or rejection of a nomination paper must be determined on the basis of the materials which were before the Returning Officer. Does however this decision conclude the matter in favour of the petitioner? With respect, I do not think it does. In the first place, at page 278 (of SCR): (at p. 524 of AIR) of the report the Court pointed out that the acceptance of the nomination by the Returning Officer.

'is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all.'

The position therefore appears to be this, that although in the circumstances which obtain in Durga Sanker Mehta's case (D), the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance, the question of fact, namely whether the candidate was qualified for election was open for consideration by the Tribunal. Such a view gives rise to no difficulty where the election is challenged on the ground that a nomination paper has been improperly accepted, for it is always open to the Election Tribunal to find that notwithstanding the acceptance of the nomination paper the candidate was constitutionally disqualified and that therefore his election was void under Section 100 of the Representation of People Act. 1951.

If however the Tribunal can, on the material before it, come to a finding that a candidate was not qualified for election it can also, if the evidence so warrants, come to the conclusion that he was qualified or not disqualified; but if that candidate's nomination paper has been rejected it can give him no relief unless it can go a stage further and hold that the rejection was improper.

20. Secondly the facts in Durga Shankar Mehta's case (D), were very different to those in the case before us. In the former case the validity of the election was challenged on the ground that a nomination paper had been improperly accepted. No objection was taken to the nomination paper in question at the time of scrutiny and the finding of the Election Tribunal that the respondent Vasant Rao was below twenty five years at all material time was not questioned. The basic question before the Court was therefore whetherupon the admitted facts the case fell within the ambit of Sub-section (1) (c) or of Sub-section (2) (c) of Section 100 of the Representation of People Act as it then stood.

The question which falls for decision in the present case was not considered in Durga, Shan-kar Mehta's case (D), for it did not arise, and I trust that it shows no want of respect for the Supreme Court to hold that that Court's decision in Durga Shankar Mehta's case (D), does not conclude the question before us. If this be so, then I think this court should place upon the words 'the nomination paper is improperly rejected' that interpretation which is consistent with what it considers must have been the intention of the legislature. For the reasons which I have endeavoured to state I am of opinion that it is open to the Election Tribunal to hold, on the basis of the evidence adduced before it, that the rejection of a nomination paper by the Returning Officer was improper.

21. Some additional support for this view can, I think, be derived from the fact that, so faras learned counsel have been able to ascertain, it has been the consistent practice of Election Tribunals to decide whether a nomination paper has been improperly rejected on the basis of the material placed before it. That practice must have been known to the State Government when the Election Petition Rules were promulgated, and to Parliament when the Representation of people Act was passed in 1951 and when it was amended in 1956. Had either body intended that the existing practice should be changed it may, I think, be presumed that it would have taken appropriate steps to make its intention clear.

22. On the whole, therefore, I am of opinion that this petition fails. I would accordingly dismiss it with costs which I would assess at Rs. 200/-.

Randhir Singh, J.

23.I agree with the order proposed.

BY THE COURT

24.The petition is dismissed with costs which are assessed at Rs. 200/-.


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