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Gangadhar Dandwate Vs. Premchand Kashyap and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 3 of 1958
Judge
Reported inAIR1958MP182
ActsConstitution of India - Article 226; Madhya Bharat Nagar Palika Nigam Parshad Nirwachan Niyam - Rules 23(1) and 31(3)
AppellantGangadhar Dandwate
RespondentPremchand Kashyap and ors.
Appellant AdvocateShejwalkar, Adv.
Respondent AdvocateA.B. Mishara, Adv. for Opponents Nos. 1 and 2 and ;Shiv Dayal, Dy. Govt. Adv. for Opponent No. 3
DispositionPetition allowed
Cases ReferredPrahlad Pandey v. Collector of Bhind
Excerpt:
- - it is clearly inside down that a nomination-paper is not to be rejected on slight technical grounds......objection is overruled.6. coming, now, to the facts of the case, i find that the returning officer (nirwachan nirikshak) in rejecting the nomination-paper merely acted perfunctorily, and followed neither the letter nor the spirit of the law. the ground on which the nomination-paper was rejected was that the seconder did not say in the nomination-paper that he was presenting it as a seconder and that in this manner the provisions of section 23 of the niyam were contravened. the relevant portion of the section 23 runs thus:--fu;kstu&i;= izlrqrdrkz dk drzo; gksxk fd mlij vius izlrqr djus ds glrk{kj fuokzpu fujh{kd ds le{k djs vksj rhuksa esa ls ogdksu gs ;g hkh li'v :i ls fy[ksathere is no doubt that there is a direction in the law that the candidate or his propose or his seconder.....
Judgment:
ORDER

A.H. Khan, J.

1. The petitioner, desiring to contest the election of Municipal Corporation, Gwalior, from Ward No. 2 filed his nomination paper on 13th January, 1958, through one Jagan Ku-mar Gupta, his seconder, A scrutiny was held on the 16th January, 1958, and, the Nirwachan Nirikshak (Returning Officer) rejected the nomination-paper on the ground that according to Section 23 (1) of the Rules, made under the Madhya Bharat Nagar Palika Nigam Parshad Nirwachan Niyam (hereafter referred to as the 'Niyam') the seconder had not put down the capacity in which he had signed the nomination-paper before the Nirwachan Nirikshak. According to Section 31 of the Niyam, an application was filed before the Nirwachan Padadhikari (Collector), challenging the decision of the Returning Officer. This application was rejected and now the petitioner has come up to the High Court under Article 226 and Article 227 of the Constitution of India.

2. A preliminary objection raised in this case is that because under Section 441 of the Madhya Bharat Municipal Corporation Act, the rejection of a nomination paper can be challenged by an election petition, the remedy by way of a writ is not open to the petitioner.

3. A similar objection was raised in Basantilal v. Nirwachan Padadhikari, Civil Misc. Case No. 45 of 1957, reported in 1958 MPC 44 : (AIR 1958 M P 181) (A). I had considered the point and had held the scheme of MadhyaBharat enactment was different from the Representation of the People Act, in that it provided an interim remedy against the rejection of the nomination-paper. Clause (3) of Section 31 of the Niyam says that an order passed by Nirwachan Padadhikari would be final. In this view of the matter, I adhere to the opinion already expressed in Basantilal v. Nirwachan Padadhikari (A) referred to above.

4. Happily, I find that I am also supported in my view by a Full Bench decision of the Nagpur High Court reported in, Kanglu Baula Kotwal v. Chief Executive Officer, Jan-pad Sabha, Durg, (S) AIR 1955 Nagpur 49 (B). Sinha C. J. (as he then was) observed that the powers of the High Court are untrammelled by a law made by the Legislature and even though Section 22 of the C. P. and Berar Local Government Act says that elections can be challenged only by way of an election petition before a Tribunal created by the Act, the jurisdiction of the High Court which is derived from the Constitution can in no way be affected.

It was also observed that although ordinarily the High Court would not interfere under Article 226 of the Constitution where another remedy, which is equally convenient, is open to the petitioner, yet the existence of another remedy is not in every case, a bar to the exercise of the powers of a High Court under Article 226, and the Court can interfere if the circumstances of the case demand interference.

5. For reasons stated above the preliminary objection is overruled.

6. Coming, now, to the facts of the case, I find that the Returning Officer (Nirwachan Nirikshak) in rejecting the nomination-paper merely acted perfunctorily, and followed neither the letter nor the spirit of the law. The ground on which the nomination-paper was rejected was that the seconder did not say in the nomination-paper that he was presenting it as a seconder and that in this manner the provisions of Section 23 of the Niyam were contravened. The relevant portion of the Section 23 runs thus:--

fu;kstu&i;= izLrqrDrkZ dk drZO; gksxk fd mlij vius izLrqr djus ds gLrk{kj fuokZpu fujh{kd ds le{k djs vkSj rhuksa esa ls ogdkSu gS ;g Hkh Li'V :i ls fy[ksA

There is no doubt that there is a direction in the law that the candidate or his propose or his seconder at the time of presenting the nomination-paper to the Returning Officer must also put down in what capacity he did so. I have the record of the election before me. On returning to the printed nomination-paper, Onpage 2, under the heading ^^izLrqr djus dk izek.k the following is written :--

^^;g fu;kstu i= eq>s esjs dk;kZy; esa fnukad--------------- dks ------------ cts-------------- vfHkyk'kh }kjk izLrqrfd;k x;kA

izLrkod

vuqeksnd

fuokZpu fujh{kd

In the above form, the word 'Abhilashi' is crossed out. Against the word ''Prastavak' nothing is written, but against the word 'Anumodak', the seconder, Jagan Kumar Gupta has put down his signatures. The form after filing stands thus:--

^^;g fu;kstu&i;= eq>s esjs dk;kZy; esafnukad 13&1&58 dks 2-12 cts vfHkyk'kh }kjk izLrqr fd;k x;kA

txu dqekj xqIrk

vuqeksn

izLrkod

vuqeksnd txu dqekj xqIrk

fuokZpu fujh{kd**

It appears that to make assurance doubly sure, the Nirwachan Nirikshak in his own handwriting has put down the name of the seconder, together with the word 'Anumodak' a portion underlined by me. After a perusal of the nomination-paper and considering the manner in which it is filled up, it is wrong to find fault with it and the mistake of the returning officer is apparent on the face of the record. I have no doubt that it substantially fulfills all the requirements of Section 23 of the Niyam.

7. This matter may be considered from another angle also. Section 30 of the Niyam provides for the manner in which the scrutiny of the nomination-paper should be conducted. Clause (3) of Section 31 reads as follows :-- '

^^fuokapu fujh{kd fdlh fu;kstu i= dks dsoy fdlhNksVs ikfjHkkf'kd (Slight technicaldefect) mnkgj.kkFkZ fdlh uke dksfy[kkoV esa v'kqf ds vk/kkj ij vLohdkj ugha djsxk vkSj mls vf/kdkj gksxk fd og,sls fdlh nks'k ;k =qfV dks nwj djus ds vk'; ls fu;kstu i= dh fdlhizfo'V dks la'kks/ku djus dh vuqKk nsosA**

This direction to the Nirwachan Nirikshak shows that the nomination-papers are not to be scrutinised with a narrow outlook. It is clearly Inside down that a nomination-paper is not to be rejected on slight technical grounds. It is not always easy to define what the expression 'technical defect' means. I, however, venture to suggest that a technical defect in law is one which may come within the four corners of it, but in fact it does not affect the merits of the case. It is a mistake which does not go to the core of the matter. Their Lordships of the Supreme Court in Pratap Singh v. Shri-krishna Gupta, AIR 1956 SC 140 (C), have observed:

'that the tendency of the Courts towards technicality is to ,b? deprecated, that it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and, exercising 'a nice discrimination, sort outone class from the other along broad based; commonsense lines. This principle was enunciated by Viscount Maugham in Punjab Cooperative Bank Ltd., Amritear v. Income-tax Officer, Lahore, AIR 1940 PC 230 (D).' I feel fortified in my view by the observations of their Lordships and since no prejudice is caused to anybody, I have no doubt that the Returning Officer was in error to reject the nomination-paper on what may be called a merely technical ground.

A similar point was decided by my learned colleague Dixit J. in Prahlad Pandey v. Collector of Bhind reported in MBLJ 1955 HCR 1567 (E). My learned brother held that the omission on the part of the candiate to indicate that he was the subscribing candidate while presenting his nomination-paper and signing it in the presence of the Returning Officer, is a technical defect, not invalidating the nomination-paper. I find myself in complete accord with the view expressed by my learned .brother.

8. For reasons stated above the orders of the Nirwachan Padadhikari and the Nirwachan Nirikshak are quashed and they are directed to-accept the nomination paper and proceed further according to law. Parties to bear their own costs.


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