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Bhagwati Prasad Vs. J.K. Tandon and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 6 of 1956
Judge
Reported inAIR1957All354
ActsUttar Pradesh Panchayat Raj Act, 1947 - Sections 12(1) and 12C; Uttar Pradesh Panchayat Raj Rules, 1947 - Rules 16, 16A and 25; Constitution of India - Article 329; Representation of the People Act, 1951 - Sections 80
AppellantBhagwati Prasad
RespondentJ.K. Tandon and ors.
Appellant AdvocateH.D. Srivastava and ;Umesh Chandra, Advs.
Respondent AdvocateB.K. Dhaon and ;B.N. Roy, Advs. for 1, 2 and 4 and ;S.M. Yusuf, Adv. for No. 3
DispositionPetition allowed
Excerpt:
.....final selection of candidate - authority to determine disputed questions - no powers conferred to director of elections - director of election rejected nomination papers - acted without jurisdiction - election could be challenged by election petition. - - or (ii) by gross failure to comply with the provisions of this act or the rules framed thereunder,'the application is described as an election petition in rule 25 of the panchayat raj rules, and the authority to whom it must be presented and who is to hear the petition is the sub-divisional officer. ' 9. in my opinion it is in the wider sense also that the word 'election' has been used in section 12-c (1) of the panchayat raj act notwithstanding the fact that the sub-section is couched in terms which differ from those used in..........pradhan of a gaon sabha. both candidates duly presented their nomination papers to the assistant returning officer on the 23rd november, 1955, which was also the date fixed for the scrutiny of nominations.the nomination paper of each of these candidates was, after scrutiny, accepted by the assistant returning officer. on the 3rd december, 1955, the assistant returning officer made an order rejecting the nomination paper of the third respondent on the ground that he, having been convicted of an offence involving moral turpitude, was disqualified from nomination, and on the following day, that is on the 4th december, the assistant returning officer declared the petitioner duly elected to the office of pradhan.3. on the 19th december the third respondent filed a petition in this court.....
Judgment:

Mootham, C.J.

1. This is a petition under Article 226 of the Constitution which raises a question of some importance as to the powers of the Director of Elections appointed under the Panchayat Raj Rules.

2. The relevant facts can be shortly stated. The petitioner and the third respondent were nominated as candidates for election to the office of Pradhan of a Gaon Sabha. Both candidates duly presented their nomination papers to the Assistant Returning Officer on the 23rd November, 1955, which was also the date fixed for the scrutiny of nominations.

The nomination paper of each of these candidates was, after scrutiny, accepted by the Assistant Returning Officer. On the 3rd December, 1955, the Assistant Returning Officer made an order rejecting the nomination paper of the third respondent on the ground that he, having been convicted of an offence involving moral turpitude, was disqualified from nomination, and on the following day, that is on the 4th December, the Assistant Returning Officer declared the petitioner duly elected to the office of Pradhan.

3. On the 19th December the third respondent filed a petition in this Court under Article 226 of the Constitution with the prayer that a writ be issued quashing the order of the Assistant Returning Officer dated the 3rd December, 1956. The matter then appears to have been brought to the attention of the Director of Elections who, by an order dated the 29th December, 1955, directed that

'(1) the subsequent orders of the Assistant Returning Officer reviewing his order dated November 23, 1955, relating, to the nomination paper of Sri Shah Mohammad Khan'--meaning the third respondent--'quashed; and

(2) subsequent proceedings relating to poll, if any taken, be quashed and re-poll taken for the office of Pradhan in all constituencies of Gaon Sabha, Russinpur, in respect of candidates including Sri Shah Mohammad Khan.'

4. This order was made, we are informed without notice to either party, and as a result of the order the writ petition which had been filed by the third respondent was dismissed on the 5th January, 1956.

6. Immediately thereafter the petitioner filed the petition which is now before us in which he is in his turn seeks the issue of a writ of certiorari quashing the order of the Director of Elections dated the 29th December, 1955. The petitioner's contention is that his election could be challenged only by an election petition, and that the Director of Elections in purporting to set aside his election acted wholly without jurisdiction.

7. Sub-section (1) of Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947, provides that

'The election of a person as Pradhan of a Gaon Sabha or as member of a Gaon Panchayat ..........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-

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

(b) that the result of 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,'

The application is described as an election petition in Rule 25 of the Panchayat Raj Rules, and the authority to whom it must be presented and who is to hear the petition is the Sub-Divisional Officer. This provision may be compared with Section 80 of the Representation of the People Act, 1951, which enacts that

'80. Election Petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this part.' and with Article 329(b) of the Constitution which provides that '(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.'

8. Now the word 'election' has in connection with the process of selection of political representatives in a democracy acquired two meanings: 'In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected' see Ponnuswami v. Returning Officer, Nanekkal Constituency, 1952 SCR 218 at p. 226: (AIR 1952 SC 64 at p. 67) (A) and it is clear on the authority of this case that the word 'election' in Article 329(b), and in Section 80 of the Representation of the People Act, 1951, is used in the wider sense with the consequence that the question whether a nomination paper has been rightly accepted or rejected can be determined only by an election tribunal.

In the emphatic words of Fazl Ali, J., in that case, the argument 'that an election has been vitiated by the improper rejection of a nomination paper 'cannot be urged in any other manner, at any other stage and before any other Court.'

9. In my opinion it is in the wider sense also that the word 'election' has been used in Section 12-C (1) of the Panchayat Raj Act notwithstanding the fact that the sub-section is couched in terms which differ from those used in Section 80 of the Representation of the People Act, 1951. In the first place Section 12-C was inserted in the original Act by an amending Act of 1955 (Act II of 1955).

The general law relating to elections was then well understood, and it appears to me most unlikely that the State Government intended in the case of elections to a Gaon Sabha or a Gaon Panchayat to effect, without clearly so saying, a radical change in the law and to permit the question of the validity of an order rejecting or accepting a nomination paper to be challenged prior to the declaration of the resuit of the election. Secondly, if the word 'election'means only the final selection, of the candidate, then either there is, or there is not, some authority empowered by the Act to determine disputed questions prior to the declaration of the result of the elections.

If there be no such authority no difficulty arises; but if there be such an authority and the respondent in this case contends that there is the risk of a conflict between that authority and the prescribed authority immediately arises, for the former may, prior to the dale of poll, order the rejection of a nomination paper while after the poll the prescribed authority may decide that that rejection was improper as the result of the poll has been materially affected thereby,

10. The alternative authority with which we are concerned in this case is the Director of Elections who is defined in Rule 16 of the Panchayat Raj Rules as the officer appointed by the State Government to perform the functions of the Director of Elections under those rules. The only rule to which our attention has been drawn which deals with the function of Director of Elections is Rule 16-A, Sub-rule (1) of which provides that 'The conduct of elections under this chapter shall be under the general superintendence, direction and control of the Director of Elections'.

This provision appears to be founded on Article 324(1) of the Constitution which provides that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Parliament and to Legislature of every State and of elections to the offices of President and Vice-President shall be vested in the Election Commission.

11. No powers are conferred on the Director of Elections by the Act which contains no reference to his office. The appointment is a creation of Rules which the State Government is empowered to make for carrying out the purposes of the Act.

It appears to me therefore that the authority of the Director of Elections is an administrative superintendence, control and conduct of elections, and that he is vested with no powers of a judicial or quasi-judicial character. Accordingly he cannot, in my opinion, adjudicate upon the legality of an order made by a Returning Officer accepting or rejecting a nomination paper.

12. It was conceded that the Director of Elections could not interfere with an order made by a Returning Officer if in making that order the Returning Officer was not exceeding the powers vested in him under the Act, but it was suggested that if the Returning Officer had acted without jurisdiction the Director of Elections could not only set aside that order but could make such further orders consequential thereon, including the setting aside of an election, as were necessary.

I do not think that this contention is well founded and no authority was cited in its support. The question whether the Returning Officer has acted without jurisdiction is however, itself a question of law upon which the Director of Elections has in my opinion been given no authority to adjudicate.

13. If my view that the word 'election' in Section 12-C is used in the wider sense be wrong, and that election' as there used means merely the final selection of the candidate, that selection had been made on the 4th December, 1955.

It seems to me to be immaterial whether, in formally declaring the result of the election, the Returning Officer acted illegally or without jurisdiction. Once the result of the election has been formally declared it can be challenged only by an election petition.

14. In my opinion this petition must succeed, and a writ must issue quashing the order of the Director of Elections dated the 29th December, 1955. The petitioner is entitled to his costs which I would fix at Rs. 100.

15. KIDWAI, J.:--I agree and have nothingto add.


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