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Ramnarayan Maluram and anr. Vs. Vishnu Krishnarao and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Case Nos. 61 and 62 of 1955
Judge
Reported inAIR1957MP20
ActsCantonment Act, 1924 - Sections 31; Cantonment Electoral Rules, 1945 - Rule 43
AppellantRamnarayan Maluram and anr.
RespondentVishnu Krishnarao and ors.
Appellant AdvocateS.L. Dubey, Adv.
Respondent AdvocateS.L. Garg, Adv. for Nos. 1 and 2 in No. 61 of 1955 and for Nos. 1 and 3 in No. 62 of 1955
DispositionPetitions dismissed
Cases ReferredShankar Rao v. State of Madhya Bharat
Excerpt:
.....election' by the learned counsel for the petitioners is accepted as correct, then a person whose nomination paper has been rejected would himself have no right to file an election petition on the ground of the improper refusal of his nomination paper but would have to depend on a defeated candidate or five voters filing an election petition for taking up his cause. again in an election petition filed by five voters, or even by a defeated candidate (assuming the possibility of a defeated candidate filing an election petition on the ground of some one else's nomination paper having been improperly rejected), it would be difficult to establish the essential condition that the result of the election has been materially affected by the improper rejection of a nomination paper unless the..........between 'a candidate at the election' and 'a candidate for the election' and said that in the rules a candidate seeking election has been, upto the stage of withdrawal following the scrutiny of nomination papers and the publication of a list of valid nominations, referred to as a ''candidate for the election' and that it is only after this stage that he has been described in the rules as a 'candidate at the election'. reliance was placed on the decisions in sitaram hirachand v. yograjsingh, air 1953 bom 293(a) and sheokumar v. v. g. oak, air 1953 all 633 (b), in support of the contention that the words 'at the election' have reference to the actual time when the voting takes place and that a candidate who has withdrawn or whose nomination paper hale been rejected cannot be regarded.....
Judgment:

Dixit, J.

1. In these two petitions under Articles 226 and 227 of the Constitution of India, the applicants apply for an order of certiorari to bring up and quash a decision of the District Judge, Indore, setting aside the election of the opponents Ramnarayan Maluram and Babulal Keshoram to the Cantonment Board from Ward No. 4, Mhow, and directing a fresh election.

2. The election to the Cantonment Board was held in 1954. The petitioners Ramnarayan and Babulal and the opponents Vishnu Krishnarao Kelkar and Ramchandra Narayan were candidates for election to the Board from Ward No. 4. Two persons were to be elected from this ward, one for filing the general seat and the other for a seat reserved for the scheduled caste. The nomination papers of Vishnu Krishnarao Kelkar and Ramchandra Narayan were rejected by the Returning Officer at the time of scrutiny. The opponent Triyoginarayan also filed a nominationpaper, which was rejected. Ramnarayan Maluram and Babulal Keshoram being the only candidates left in the field for filling the two seats were declared as elected to the Board from Ward No. 4.

Thereafter Vishnu Krishnarao Kelkar and Ramchandra Narayan presented two election petitions before the District Judge of Indore under Rule 43 of the Cantonments Electoral Rules, 1945, made under the Cantonments Act, 1924, contending that their nomination papers had been improperly rejected by the Returning Officer. The successful candidates opposed the petitions saying that, the nomination papers of Vishnu Kelkar and Ramchandra Narayan were rightly rejected; that as their nomination papers had been rejected, they were not candidates at the election; and that, therefore, under Rule 43 they were not entitled to present election petitions calling in question the validity of the election.

The objection as to the competency of Vishnu Kelkar and Ramchandra Narayan to file election petitions was overruled by the learned District Judge. He found that their nomination papers had been improperly rejected by the Returning officer and accordingly set aside the election of the present petitioners.

3. Mr. Dubey, learned counsel for the petitioners, first submitted that under Rule 43 an election petition could be presented either by a person who was a candidate at the election or by not less than five persons entitled to vote at the said election; that the election petitions before the District Judge were not presented either by a candidate at the election or by five voters; that a candidate at the election was one whose nomination paper had been accepted after scrutiny and who had not withdrawn thereafter and who was a contestant at the election; that the nomination papers of Vishnu Kelkar and Ramchandra Narayan having been rejected at the time of scrutiny they could not be called candidates at the election; that, therefore, they were not entitled to present election petitions challenging the election. Learned counsel referred to some of the rules f the. Cantonments Electoral Rules to emphasise the distinction between 'a candidate at the election' and 'a candidate for the election' and said that in the rules a candidate seeking election has been, upto the stage of withdrawal following the scrutiny of nomination papers and the publication of a list of valid nominations, referred to as a ''candidate for the election' and that it is only after this stage that he has been described in the rules as a 'candidate at the election'.

Reliance was placed on the decisions in Sitaram Hirachand v. Yograjsingh, AIR 1953 Bom 293(A) and Sheokumar v. V. G. Oak, AIR 1953 All 633 (B), in support of the contention that the words 'at the election' have reference to the actual time when the voting takes place and that a candidate who has withdrawn or whose nomination paper hale been rejected cannot be regarded as 'a candidate at the election'. It was further contended that the Cantonments Electoral Rules were amended in 1954 when the view taken, by the Bombay and the Allahabad High Courts as to the proper meaning and significance of the expression 'at the election'' was before the framers of the Rules and that if they had thought that the words 'at the election' included persons whose nomination papers had been wrongly rejected, an express provision to that effect would have been made in the Rules. Learned counsel sought to illustrate the point by referring to the provisions of U.P. Panchayat Act, where there is an express provision enabling a person whose nomination paper has been rejected to file an election petition.

4. In my view, this contention advanced on behalf of the petitioners cannot be accepted. The matter is not one of the meaning of the expressions 'at the election' and 'for the election'' in abstract without reference to the context in which they have been used. The words 'a candidate at the election' and 'a candidate for the election' have not acquired a settled and fixed meaning so as to hold that wherever and whenever the said expressions are used they, have 'that meaning and no other meaning.

The meaning of the expressions ''a candidate at the election' and 'a candidate for the election' as used in the Cantonments Electoral Rules has to be ascertained on a comprehensive consideration of the relevant rules, their scheme and of the purpose and requirements of Rule 43 as to the filing of an election petition challenging an election. When the matter is investigated with reference to the Rules, it becomes clear that the expressions 'a candidate at the election' and ''a candidate for the election' have been used synonymously without drawing any-distinction between a candidate who is actually a contestant at the poll and one who is not so. Rule 16 provides that a candidate for election shall be nominated by a nomination paper in Form VI. The nomination paper has to be strictly in Form VI and not substantially according to Form VI. This is plain from the use of 'in' and not 'according to' in relation to Form VI. Now, the prescribed Form VI is thus:--

'We, the undersigned, being duly qualified electors ...... nominate the undermentioned person as a candidate for the Ward No...... ...at the election.'

5. It will thus be seen that even at the stage of filing of the nomination paper a person seeking election has been referred to as a 'candidate for election' and also in the alternative as a 'candidate at the election'. In connection with the Rules 19, 20 and 21, which deal with the drawing up of a list of candidates in Form VII after the receipt of nomination papers, objection to the eligibility of candidates to stand for election and with the prohibition as regards re-nomination of a candidate who has withdrawn following the scrutiny of nomination papers, the expression used is ''candidate for the election' and not 'candidate at the election'. But that by itself does not indicate that the Rules recognise that up to the stage of withdrawal a candidate filing a nomination paper is only a 'candidate for the ejection' and not a 'candidate at the election'. For, one finds in Rule 22 candidates validly nominated and who have and not withdrawn described as 'candidates standing for election'' for the preparation of a list under Rule 22(2). The sub-rule of Rule 22 lays down that if, after the time allowed for withdrawal has expired, the number of candidates standing for election in a ward is equal to, or less than, the number of members to be elected, the Returning Officer shall declare such candidates to be duly elected, and further that if the number of candidates is more than the number of candidates to be elected, a poll shall be taken. It will be noticed that Sub-rule (i) of Rule 22 is concerned with the stage after the time for withdrawal of candidates has expired following the scrutiny of nomination papers and acceptance of nomination papers as valid, and before the voting.

Sub-rule (i) refers to candidates whose nomination papers have been accepted as valid and who have not withdrawn within the time fixed for it as 'candidates standing for election' and not as 'candidates standing at election.' Sub-rule (i) of Rule 22 thus does not lend support to the argument of the learned counsel for the petitioners. Sub-rule (2) of Rule 22 enjoins that the Returning Officer shall draw up a list, ward by ward, of candidates who are standing for election and also a list of candidates, if any, who have been declared duly elected under Sub-rule (1) and shall publish the list not later than twenty days before the date of poll. The list referred to in Sub-rule (2) is the list which has to be drawn up after the, stage of withdrawal of Candidates and is of persons declared elected without contest and of persons contesting the election. That sub-rule describes the contesting candidates as 'candidates standing for election''. Rule 22 alone thus negatives the contention that a person who has tiled a nomination paper becomes 'a candidate at the election' after his nomination paper has been accepted as valid and his right to withdraw has disappeared. According to the distinction sought to be drawn by the learned counsel for the petitioners between a 'candidate standing for election' and one standing 'at the election', the appropriate expression that one would have found in Rule 22 is 'candidates standing at the election' and not ''candidates standing for election'. Rule 28 also refers to candidates at the time of actual voting as 'candidates for election', Sub-rule (4) of Rule 28 says that the Returning Officer shall in the case of every elector who has been permitted to give has vote at the election by postal ballot send by registered post to each such elector a ballot paper in Form VIII-A together with a letter in Form VIII-C. Now in Form VIII-C the voter is addressed thus:--

'The persons whose names are printed on the ballot paper sent 'herewith have been nominated as candidates for the election to the Cantonment Board.......'

It is thus amply clear that Rule 28 itself describes candidates at the time of actual poll sometimes as candidates at the election and sometimes as candidates for the election. It cannot, therefore, be maintained with any degree of force that in the Cantonments Electoral Rules the expression 'a candidate at the election' has been used to distinguish a candidate who continues in the contest after the stage of withdrawal from one before it. Both the expressions 'a candidate at the election' and a 'candidate for the election' have been used in the said Rules to denote a candidate at any stage of election starving with the filing of nomination papers and ending with the declaration of the result. If the words 'a candidate at the election' have not the limited meaning of a candidate at the time of the poll, then it seems to me that it would be against the ordinary canons of construction to read the words in that limited sense for the purposes of Rule 43. That the limited connotation of the words would be repugnant to the context of Rule 43 and its object becomes clear when one considers the provisions of Rule 47. Under Rule 47 one of the grounds on which an election can be declared void is that the result of theelection has been materially affected by improperrefusal of a nomination paper. This ground for declaring an election void necessarily imports that aperson whose nomination paper has been improperlyrejected has himself the remedy to have the electiondeclared void' on that ground. . '

If the construction sought to be put on the expression 'a candidate at the election' by the learned counsel for the petitioners is accepted as correct, then a person whose nomination paper has been rejected would himself have no right to file an election petition on the ground of the improper refusal of his nomination paper but would have to depend on a defeated candidate or five voters filing an election petition for taking up his cause.

I do not think that the framers of the Rules while making the improper refusal of a nomination paper a ground for declaring the election void intended that the real person aggrieved by the refusal of his nomination paper could not avail himself, of this ground but that it could be availed of by other persons if they chose to.

Again in an election petition filed by five voters, or even by a defeated candidate (assuming the possibility of a defeated candidate filing an election petition on the ground of some one else's nomination paper having been improperly rejected), it would be difficult to establish the essential condition that the result of the election has been materially affected by the improper rejection of a nomination paper unless the person whose nomination paper has been rejected is, as one interested in having the election declared void, given notice of the election petition.

Now under Rule 45 a notice of the election petition is issued only to the candidates concerned at the election. On the construction suggested by the learned counsel a person whose nomination paper has been rejected not being a candidate at the election will not be entitled to a notice of the petition. It is difficult to see how the petitioner or petitioners in such a case can establish the fact that the result of the election has been materially affected by the improper rejection of nomination paper of a person, without giving that person a notice of the petition. I am clear in my mind that the expression 'a candidate at the election' as used in Rule 43 includes a candidate whose nomination paper has been rejected.

6. The Bombay and Allahabad cases cited by the learned counsel for the petitioners are not of much help in the construction of the words 'a candidate at the election' as used in the Cantonments Electoral Rules. Those are decisions in which the meaning of the said words was considered with reference to the provisions of the Representation of the People Act, 1951, and in particular with reference to Section 82 of the Act, and it was held that the words 'a candidate at the election' as used in Section 82 meant one who was a candidate at the actual poll and did not include a person who had withdrawn from the contest before the polling.

This conclusion was based on an examination of various provisions of the Representation of the People Act and of the object of Section 82 of the Act. The decisions in AIR 1953 Bom 293 (A) and AIR 1953 All 633 (B), are not authorities for the proposition that the expression 'a candidate at the election' has a rigid and inflexible meaning in any law using that expression. The meaning of the expression being dependent on the context, the provisions of the statute in which it has been used and on the object of the particular provision where the expression has been used, no assistance can be derived from, the Bombay and Allahabad cases or from the decision in Mohammad Umair v. Ham Charan Singh, AIR 1954 Pat 225 (C), taking a view contrary to that taken by the Bombay and Allahabad High Courts, or from the assumption that these decisions were before the framers of the Cantonments Electoral Rules when they were amended in 1954, or from the provisions of U.P. Panchayat Act or U.P. Municipalities Act,

In this connection, the observations of the Supreme Court in Bhikaji Kesheo v. Brijlal Nandlal, (S) AIR 1955 SC 610 (D), are very pertinent. In that case the question of the construction of Section 82 of the Representation of the People Act came up for consideration and it was argued before the Supreme Court that persons who filed their nominations but who withdrew from the contest within the prescribed lime inspire of their nominations having' been found to be in order on scrutiny by the Returning Officer could not be said to come within the category of 'candidates duly nominated at the election'. The decisions in AIR 1953 Bom 293 (A), AIR 1953 All 633 (B) and AIR 1954 Pat 225 (C), were cited before the Supreme. Court. The Supreme Court observed:

''It appears to us to be unnecessary and academic to go into this judicial controversy having regard to the decision of this Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 (E). If we were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase 'at the election' but on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose if any, of the requirement under Section 82 as to the joinder of parties other than the returned candidate.'

The Supreme Court no doubt did not decide as to what the expression ''a candidate at the election' as used in Section 82 of the Representation of the People Act meant, but the learned Judges of the Supreme Court indicated that the phrase 'at the election' should be construed on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose of the particular provision in question.

It is on this approach to the question of the construction of the words 'a candidate at the election' that I have endeavoured to show that the phrase as used in Rule 43 of the Cantonments Electoral Rules has not the narrow and limited meaning of a candidate who continues to be a contestant at the poll but includes a candidate whose nomination paper has been rejected.

The view I have taken finds support in the decision of the Allahabad High Court in Vishwa Mitra v. District Judge, Jhansi, AIR 1956 All 89 (F), where it has been held that under Rule 43 of the Cantonments Electoral Rules a candidate whose nomination paper has been improperly rejected is competent to file an election petition.

Learned counsel submitted that the decision in AIR 1956 All 89 (F), proceeded on the basis that the Supreme Court had decided in AIR 1955 SC 610 (D), that the phrase 'a candidate at the election' should not be construed in a narrow and limited sense and that the Supreme Court had not given any such decision. The suggestion is altogether untenable.

A perusal of the judgment in Vishwa Mittra's case (F), is sufficient to show that in that case the learned Judge based his view as to the construction of the expression 'a candidate at the election' as used in Rule 43 on a consideration of the context, the provisions of the various rules of thee Cantonments. Electoral Rules and the object of Rule 43, and the decision of the Supreme Court has been referred to by the learned Judge only to emphasise the point that the phrase has to be construed 'in the light of the context, in view of the other provisions of the statute and in view of the object underlying.'

7. The other contentions of the learned counsel for the petitioners related to the rejection of the nomination papers of Vishnu Kelkar and Ramchandra Narayan. It was said that the nomination papers of these candidates were rightly rejected by the Returning Officer. Before the Returning Officer three objections were taken to Kelkar's nomination paper; (i) first that in the electoral roll his name was entered as Shri Vishnu Krishnarao Kelkar, while in the nomination paper he was described as Vishnu Krishnarao Kelkar; (ii) secondly that he had not mentioned in the nomination paper whether he was a candidate for filling the general seat or the seat reserved for the scheduled castes; and (iii) thirdly his address as given in the electoral roll was Hiralal Baoli whereas in the nomination paper it was stated to be Gokulganj.

The first two objections were rejected by the Returning Officer, who was satisfied as to the identity of Vishnu Kelkar and held that Vishnu Krishnarao Kelkar was no other than Shri Vishnu Krishnarao Kelkar. The Returning Officer, however, accepted the objection as to the variation in the address. In his opinion though it was a 'trifling discrepancy' it should have been got rectified earlier. The learned District Judge held that the Returning Officer having satisfied himself as to the identity of Kelkar was not justified in rejecting his nomination paper on the ground of the slight variation in the address and that in fact there was no variation in the address as given in the electoral roll and as entered in the nomination paper.

I think the learned District Judge took the right view. The prescribed nomination form does not require that in the case of a double member constituency where a seat is reserved for a scheduled caste a candidate should enter in the nomination paper the seat which he is contesting. The opponent Kelkar's name is no doubt entered in the electoral roll as Shri Vishnu Krishnarao Kelkar. But it is obvious from the electoral roll, and it is common knowledge also, that the word 'Shri'' is only a title prefixed to a man's name and is not a part of the name itself.

As to the variation in the address, the electoral roll no doubt says, that house No. 2513-14 of Vishnu Kelkar is on Hiralal Baoli Road. But it is apparent from the roll and the evidence on record that in the Cantonment area all houses have been numbered separately; that they are not numbered separately with reference to roads or Mohallas; that Gokulganj includes houses bearing numbers 2425 to 2544; and that of these, houses bearing Nos. 2507 to 2516 are situated on Hiralal Baoli Road which is a part of Gokulganj.

If in these circumstances the opponent Kelkar gave his address in the nomination paper as Gokulganj it cannot be said that the address given by him differed so materially from that entered in the electoral roll as to indicate that he was not the person whose name was entered in the electoral roll at serial No. 1548 as Shri Vishnu Krishnarao Kelkar residing in house No. 2513-14, Hiralal Baoli Road.

On the name as entered in the nomination paper and house number given therein and the serial number given in the electoral roll, the Returning Officer having satisfied himself as to the identity of Kelkar, the variation, if any, in the address given by him was clearly inconsequential. The Returning Officer was thus clearly in error in rejecting Vishnu Kelkar's nomination paper on the ground that fee did.

8. Ramchandra Narayan's nomination paper was rejected by the Returning Officer on the ground that the name of his seconder did not appear in the electoral roll at the serial number given in the nomination paper by the seconder.

The seconder was one Rajaram Morati. His name has been entered at serial No. 372 in the English text of the electoral roll. But in the Hindi version of the electoral roll the serial number, on account of some printing error, has been shown as '472' instead of '372'.

In the Hindi text Rajaram's name is preceded by the name of one Rajju Rai at serial No. 371 and followed by the name of one Laxmi Bai at serial No. 373. There can, therefore, be no doubt that the serial number of Rajaram entered, in the Hindi list of voters was a printing mistake. In the nomination paper Rajaram entered the 'incorrect number shown in the Hindi list. Rajaram, therefore, did all that was required to be done by him properly and according to the electoral roll, albeit the Hindi one.

The defect in the nomination paper as regards the correct serial number of the seconder arose not on account of any fault of the seconder or of the candidate but on account of an official mistake in the printing of the electoral roll. For this official error Rajararn Moroti could not clearly be disenfranchised -- much less a nomination paper seconded by him, after filling in the number given in the electoral roll could be invalidated. The learned District Judge was, therefore, right in holding that the Returning Officer was not justified in rejecting Ramchandra Narayan's nomination paper on the ground of a printing error.

With regard to Ramchandra Narayan's nomination paper, learned counsel for the applicants also said that Rajaram Moroti signed the nomination paper not as a seconder but only as a witness. There is no substance in this contention. In his evidence Raj'aram has clearly said that he signed the nomination form as a seconder. He no doubt said in his cross-examination that some seven or eight days before the filing of the nomination form Ramchandra Narayan had told him that he would have to sign the nomination paper as a witness. From this statement it does not at all follow that when the nomination form was actually, signed by Rajaram seven days after this talk, it was merely as a witness and not as a seconder.

Learned counsel also raised the objection that while declaring the election void the learned District Judge did not give any finding on the question whether the result of the election had been materially affected by the improper rejection of the nomination papers of Vishnu Kelkar and Ramchandra Narayan. The objection may be disposed of by saying that in the case of a petition presented by a person whose nomination paper has been improperly rejected, if the election tribunal finds that the nomination paper was improperly rejected, it must be taken that the result had been materially affected.

It was pointed out by a Full Bench of the Madhya Bharat High Court in Shankar Rao v. State of Madhya Bharat, AIR 1952 Madh B 97 (G), that in such a case the election tribunal would have no option but to hold that the result of the election has been materially affected and to declare the election to be wholly void. In fact, the learned District Judge has given a distinct finding that where a nomination paper has been improperly rejected it must be presumed that the result of the election has been materially affected.

9. For these reasons, I am of the view that the learned District Judge rightly set aside the election of the petitioners. Accordingly, I dismiss these petitions leaving the parties to bear their own costs.

Samvatsar, J.

10. I agree.


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