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Patel Kanchanbhai Mangalbhai and anr. Vs. Maneklal Maganlal Gandhi and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appn. No. 81 of 1964
Judge
Reported inAIR1966Guj19; (1965)GLR200
ActsGujarat Panchayats Act, 1961 - Sections 15, 15(2), 15(2A), 18, 18(1), 19, 20, 21, 22, 23, 24, 24(5), 26 and 323; Gujarat District Panchayats Election Rules, 1962 - Rules 8, 10, 10(5), 14, 14(2), 14(3), 14(8), 14(4), 48, 50, 56(2), 58(3), 59, 62 and 67; Constitution of India - Articles 226 and 329; Code of Civil Procedure (CPC) , 1908; Madras Local Boards Act, 1920; Punjab Municipal Act, 1911
AppellantPatel Kanchanbhai Mangalbhai and anr.
RespondentManeklal Maganlal Gandhi and ors.
Appellant Advocate R.M. Vin, Adv.
Respondent Advocate P.B. Patwari,; S.L. Vakil, Adv.,; J.M. Thakore, Adv.
DispositionPetition allowed
Cases ReferredBurgoyne v. Collins
Excerpt:
election - scrutiny of nomination - gujarat panchayats act, 1961 and gujarat district panchayats election rules, 1962 - nomination filed by plaintiffs and defendant - nomination papers of plaintiffs rejected on ground that they were subscribed by same proposer in contravention of second proviso to rule 10 (5) - respondent declared elected as he remained only contesting candidate - second proviso to rule 10 (5) did not have effect of invalidating all nomination papers which subscribed by proposer in favour of candidate - only effect of proviso was that nomination paper other than first accepted by returning officer were invalid - returning officer in error in rejecting nomination papers of petitioners - election of respondent declared illegal and void. - - senior division, as the case.....bhagwati, j. 1. two questions of considerable importance and significance arise on this petition. one is whether under the provisions of the gujarat panchayats act, 1901, and the gujarat district panchayats election rules, 1962, made by the government of gujarat in exercise of its powers under section 323 of the act, it is open to an aggrieved person to challenge the validity of an election under section 24 on the ground that the nomination paper of a candidate was improperly rejected by the returning officer or is the decision of the returning officer regarding rejection of the nomination paper dual in the sense that it cannot be impugned even as a ground for setting aside the election under section 24. the other is as to what is the consequence if more than one nomination paper in.....
Judgment:

Bhagwati, J.

1. Two questions of considerable importance and significance arise on this petition. One is whether under the provisions of the Gujarat Panchayats Act, 1901, and the Gujarat District Panchayats Election Rules, 1962, made by the Government of Gujarat in exercise of its powers under Section 323 of the Act, it is open to an aggrieved person to challenge the validity of an election under Section 24 on the ground that the nomination paper of a candidate was improperly rejected by the Returning Officer or is the decision of the Returning Officer regarding rejection of the nomination paper dual in the sense that it cannot be impugned even as a ground for setting aside the election under Section 24. The other is as to what is the consequence if more than one nomination paper in favour of a candidate are subscribed by the same proposer: are all the nomination papers invalid in such a case or is the nomination paper first accepted by the Returning Officer valid and only the other nomination papers are invalid? The determination of these questions depends on the true construction of certain provisions of the Act and the Rules, but in order to appreciate how the questions arise, It is necessary to briefly state the facts Riving rise to the petition.

2. The District Panchayal of Panchmahals District was to be constituted for the first time under the Act and for that purpose members were to be elected to the District Panchayat under Section 15(2). The date of election was, therefore, fixed by the District Development Officer as 20th February 1964 under Section 18(1). After appointing the date of election, the District Development Officer acting under Rule 8 appointed 29th January 1964 as the last date for filing nomination papers and 31st January 1964 as the date for scrutiny of nomination papers. One of the electoral divisions for the election was Kalol electoral division. From this electoral division, respondent No. 1 filed three nomination papers, two on 28th January 1964 and the third on 29th January 1964 and they were numbered respectively 1, 2 and 8. Petitioner No. 1 filed two nomination papers on 29th January 1964 and since they were filed immediately after the nomination papers bearing Nos. 1 and 2, they were given serial Nos. 3 and 4. Petitioner No. 2 filed three nomination papers on 29th January 1964 after the filing of the nomination papers by petitioner No. 1 and the numbers given to the nomination papers filed by petitioner No. 2 were 5, 6 and 7. Roth the nomination papers of petitioner No. 1 were subscribed by the same proposer, namely, Parmar Mohansinh Sabursinh while out of the three nominal] on papers of petitioner No. 2, two bearing Nos. 5 and 6 were subscribed by the same proposer, namely, Thakore Kishorsinh Samatsinh. On 31st January 1964, at the time of scrutiny of the nomination papers, an objection to the validity of the nomination papers of the petitioners was raised by the agent of respondent No. 1. The Returning Officer, upholding the objection, rejected the nomination papers of the petitioners. The ground on which the nomination papers of petitioner No. 1 were rejected was that they were subscribed by the same proposer in contravention of the second proviso to Sub-rule (5) of Rule 10 and were, therefore, liable to be rejected under clause (c) of Sub-rule (2) of Rule 14. The rejection of the nomination papers of petitioner No. 2 bearing Nos. 5 and 6 was also based on the same ground, namely, that they were subscribed by the same proposer. The nomination paper of petitioner No. 2 bearing No. 7 was rejected on a different ground, but it is not necessary to refer to it as there is no dispute about the validity of that rejection. Since the nomination papers were rejected on the ground of non-compliance with the second proviso to Sub-rule (5) of Rule 10, the petitioners preferred the present petition against respondent No. 1 and the Returning Officer and the District Development Officer as respondents Nos. 2 and 3 respectively, praying for a writ directing the Returning Officer to cancel the rejection of the nomination papers of the petitioners and to accept the same and to proceed with the election according to law on the basis that the nomination of the petitioners was valid. The petition was filed on 7th February 1964; but before the filing of the petition, the Returning Officer, by an order dated 4th February 1964, declared respondent No. 1 elected, as he remained the only contesting candidate in the field after the rejection of the nomination papers of the petitioners and communicated the name of respondent No. 1 to the District Development Officer and the District Development Officer, acting under Rule 59, published the name of respondent No. 1 as elected candidate by issuing a notification dated 4th February 1964. This notification was, however, published in the Gujaral Government Gazette on 13th February 1964 and the petitioners wore, therefore, presumably not aware that respondent No. 1 was already declared as elected candidate. It appears, however, that soon after the filing of the petition, when the interim order obtained by the petitioners was sought to be served by them, the petitioners came to know that respondent No. 1 was already declared elected candidate and the petitioners, therefore, applied for leave to amend the petition by introducing paragraph 8-A and prayers 12(bb) and 12(cc) challenging the validity of the election of respondent No. 1. Leave to amend was granted and the petition as amended became a petition impugning the validity of the election of respondent-No. 1 on the ground that the nomination papers of the petitioners were wrongly rejected by the Returning Officer. The main ground of attack against the decision of the Returning Officer was that on a true construction, the second proviso to Sub-rule (5) of Rule 10 did not have the effect of invalidating all the nomination papers which may have been subscribed by a proposer in favour of a candidate but that the only effect of that proviso was that the nomination papers other than the first accepted by the Returning Officer were invalid and the first nomination paper accepted by the Returning Officer was not invalidated on that count. It was also urged in the petition in the ulternative, that in any event even if there was a defect arising from non-compliance with the second proviso to Sub-rule (5) of Rule 10, such defect was 11 technical defect not of a substantial character and the nomination papers of the petitioners were, therefore, not liable to be rejected on the ground of such defect by reason of Sub-rule (4) of Rule 14. These were the two broad grounds on which the validity of the decision of the Reluming Officer was challenged. These grounds were denied by respondent No. 1 in the affidavit filed by him in opposition to the rule and the decision of the Returning Officer was sought to be sustained on merits. But in addition to the defence on merits, a preliminary objection was also raised by respondent No. 1 and the preliminary objection was that inasmuch as the petitioners had a specific alternative remedy available to them under Section 24 for challenging the validity of the election of respondent No 1 on the ground of improper rejection of their nomination papers, this Court in the exercise of its extraordinary jurisdiction should not interfere under Article 226 of the Constitution even if the grievance of the petitioners was wellfounded. It was also stated in the affidavit in reply that an application under Section 24 was presented before the Civil Judge, Junior Division, Kalol, by Thakore Kishorsinh Samatsinh for setting aside the election of respondent No. 1 and that was urged as an additional circumstance why this Court should refuse to interfere in the exercise of its discretion under Article 226 of the Constitution. The affidavit in reply was handed in at the time when the petition reached hearing before us and it was, therefore, stated by the learned Advocate General appearing on behalf of the Returning Officer as also by Mr. Patwari, appearing on behalf of respondent No. 1, that they were merely relying on the fact that such an application had been filed by Thakore Kishorsinh Samatsinh and that they did not rely on the further allegation made in the affidavit in reply that the said application was filed by reason of the instrumentality of the petitioners. In view of this no affidavit in rejoinder was filed on behalf of the petitioners.

3. Now ordinarily in petitions of this kind, the Officer or Tribunal whose decision in favour of one party is assailed by the other, does not appear to contest the petition but leaves it to the successful party to repel the attack levelled against his or its decision in the petition. We should have, therefore, expected the Returning Officer in the present case to take up a non-contentions attitude and to offer to be guided by whatever decision the Court would arrive at after hearing the petitioners and respondent No. 1 who were the contesting parties affected by the result of the petition. But presumably in view of the fact that the question arising on the preliminary objection was an important question relating lu procedure to he followed when the decision of the Returning Officer as regards acceptance or rejection of a nomination paper is sought to be challenged, the Returning Officer instructed the learned Advocate General to appear for him and the learned Advocate General appearing for the Returning Officer made his submissions on the various questions arising in the petition. The result of course was that a view was canvassed which was favourable to respondent No. 1 and much of the effort on the part of Mr. Patwari, learned advocate appearing on behalf of respondent No. 1. was saved.

4. When the hearing of the petition commenced before us, the learned Advocate General indicated that he proposed to press the preliminary objection to the petition and accordingly after the facts were stated by Mr. Vin on behalf of the petitioners, the learned Advocate General argued the preliminary objection. He put the preliminary objection on two grounds. The first ground was that the Act and the Rules constituted a self-contained Code under which the petitioners had a specific alternative remedy available to them by way of an application to the Civil Judge, Junior Division, under Section 24 by which they could get the same relief which was prayed for in the petition, namely, setting aside the election of respondent No. 1 on the ground of improper rejection of their nomination papers and this Court should not, therefore, interfere by issuing a writ under Article 226 of the Constitution even if the contentions of the petitioners were well founded and the election was bad and illegal. Secondly, the learned Advocate General urged that in any event an application under Section 24 was filed before the Civil Judge, Junior Division, challenging the validity of the election and there would, therefore, be two parallel proceedings, one before the Civil Judge, Junior Division, and the other before this Court in which different conclusions might be reached resulting in confusion and conflict and that this was an additional ground why this Court should refuse to exercise its jurisdiction under Article 226 of the Constitution. Both these grounds were contested by Mr. Vin on behalf of the petitioners The main plank of his argument against the preliminary objection was Sub-rule (8) of Rule 14. Relying on this sub-rule, he contended that it was not open to the petitioners to challenge the decision of the Returning Officer regarding the rejection of their nomination papers in an application under Section 24 for setting aside the election and that the petitioners had, therefore, no other specific alternative remedy available to them nor would there be any possibility of conflicting decisions if this Court entertained the petition and made an order on it on merits. The argument was that the, decision of the Returning Officer in regard to the rejection of the nomination papers being final could be challenged only by way of an application for a writ under Article 226 and the present petition was, therefore, the only appropriate remedy available to the petitioners. Mr. Vin also urged that in any event, in view of the facts and circumstances of the present case, this Court should entertain the petition and not refuse to exercise its jurisdiction. The question raised was an important one relating as it did to the scope and ambit of the power of the Civil Judge. Junior Division, or Civil Judge. Senior Division, as the case may be, under Section 24 and interesting arguments were advanced upon it on both sides.

5. The determination of this question depended primarily on the true construction of Section 24 and Rule 14, Sub-rule (8). But in order to appreciate the various arguments advanced before us, it is necessary to refer also to some other provisions of the Act and the Rules. The Act is a bulky Act containing multitudinous sections, the scheme and import of which it is not always easy to follow, but fortunately it is not necessary to refer to more than two or three provisions of the Act for the purpose of the present petition. Section 15 deals with the constitution of a District Panchayat and provides for the election of certain members to the District Panchayat The subject of elections is dealt with in Chapter III and the first Section in that Chapter is Section 18. Subsection (1) of that Section provides that the election of members to a Panchayat shall be held on such date as may be appointed by the District Development Officer and Sub-section (2) declares that such election shall be conducted in the prescribed manner. The manner of conducting the elections is prescribed by different sets of Rules according as the election is to the Gram or Nagar Panchayat, the Taluka Panchayal or the District Panchayat and in the present case we are concerned only with the Gujarat District Panchayats Election Rules, 1962, which contains the rules prescribing the manner of conducting elections to the District Panchayat. We will presently refer to the relevant rules but before we do so, we must refer to Section 24, the material part of which is in the following terms:

'24.(1) If the validity of nay election of a member of a panchayat is brought in question by any person qualified In vote at the election to which such question refers, such person may, at any lime within fifteen days after the date of the declaration of the results of the election, apply to the Civil Judge (Junior Division), and if there be no Civil Judge (Junior Division), then to the Civil Judge (Senior Division), (hereinafter referred to as 'the Judge') having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question.

(2) An enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result, or setting the election aside. For the purposes of the said enquiry the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive

(2A) If the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under Section 323, or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election.

'Explanation: The expression 'error' in this sub-section does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or the rules made thereunder whereby the result of the election has been materially affected.

(3) All applications received - under Sub-section (1) -

(a) in which the validity of the election of members to represent the same electoral division is in question, shall be heard by the same Judge, and

(b) in which the validity of the election of the same member elected to represent the same electoral division is in question, shall be heard together.

(4) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Judge shall not permit-

(a) any application to be compromised or withdrawn, or

(b) any person to niter or amend any pleading unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive.

(5) (a) If on the holding of such enquiry the Judge finds that a candidate has for the purpose of the election committed a corrupt practice within the meaning of Sub-section (6) he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under Section 26 and shall set aside the election of such candidate if 'he has been elected.

(b) If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected: Provided that for the purpose of such compulation no vole shall be reckoned as valid if the Judge funds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it:

Provided further that after such computation if an equality of votes is found to exist between any candidates and the addition of one vole will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid voles found to have been received in favour of such candidate or candidates, us the case may be, selected by lot drawn, in the presence of the Judge in such manner as he may determine xx xx xx'

We have not reproduced Sub-section (6)of Section 24 since all that it says is that as towhen a person shall be deemed to have committed a corrupt, practice and in this petitionwe are not concerned with what is a corruptpractice. Section 323 empowers the Government to make rules for carrying out the purposes of the Act and it is in exercise of thepowers conferred by this Section that the Government of Gujarat has made the GujaratDistrict Panchayats Election Rules. 1962.Turning In the Rules we find that Rule 8 provides for the fixing of various stages of election by the District Development Officer. Rule 10deals with presentation of nomination papersand requirements for a valid nomination andthe requirements for a valid nomination are laiddown in this Rule in the following terms:

'10. Presentation of nomination papers and requirements for a valid nomination:

(1) Nomination paper in Form II shall be supplied by the Returning Officer to any voter asking For the same

(2) On or before the date appointed for making nominations under Rule 8, each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Rule 9 a nomination paper completed in the form specified in Sub-rule (1) and signed by the candidate and by a voter of the electoral division as proposer

(3) On the presentation of a nomination paper, the Returning Officer shall satisfy him self that the names and numbers in the list of voters of the candid ate and his proposer as entered in the nomination paper are the same as those, entered in the list of voters:

Provided that the Returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them in conformity with the corresponding entries in the list of voters and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.

(4) Where the candidate is a voter in a different electoral division a copy of the list of voters of that division or of the relevant part thereof or a certified copy of the relevant entries in such list shall, unless it has been filed along with the nomination paper, he produced before the Returning Officer at the time of scrutiny.

(5) Nothing in this rule shall prevent any candidate from being nominated by more than one nomination paper:

Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer for election in the same electoral division.

Provided further that not more than one nomination paper shall he subscribed by any proposer.'

Rule 14 provides for scrutiny of nomination papers and sets out the grounds on which nomination papers may be rejected by the Returning Officer. Since a considerable part of the argument on the preliminary objection as also on the merits turned on Rule 14, it is desirable to set it out in full. It runs as follows :

'14 Scrutiny of nomination papers: On the date fixed for the scrutiny of nomination of, candidates, the candidates and their election agents, if any one proposer of each candidate and one other person duly authorised in writing by each candidate and one other person may attend at such time and place as the Returning Officer (may) appoint; and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time fixed under Rule 8 and in the manner laid down in Rule 10.

(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he considers necessary reject any nomination paper on any of the following grounds:

(a) that the candidate is disqualified for being chosen to fill the scat under the Act,

(b) that a proposer is disqualified from subscribing a nomination paper,

(c) that there, has been a failure to comply with any of the provisions of Rule 10 or 13,

(d) that the candidate or the proposer is not identical with the person whose electoral number is given in the nomination paper as number of such candidate or proposer, as the case may be,

(e) that the signature of the candidate or

any proposer is not genuine or has been obtained by fraud.

(3) Nothing contained in clause (b), (c) or (e) of Sub-rule (2) shall be deemed to authorise the refusal of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another paper in respect of which no irregularity has been committed.

(4) The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character.

(5) The Reluming Officer shall hold the scrutiny on the appointed date 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.

Provided that in case an objection is raised by the Returning Officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same, and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

(7) For the purposes of this rule, the production of a certified copy of an entry made in the list of voters of any electoral division shall he conclusive evidence of the right of any voter named in that entry to stand for election of to subscribe a nomination paper, as the case may be, unless it is proved that the candidate or as the case may be, the proposer, is disqualified.

(8) The decision of the Returning Officer regarding acceptance or rejection of the nomination paper shall be final.' It was on the basis of Sub-rule (8) that the petitioners contended that the rejection of their nomination papers by the Returning Officer could not be challenged in an application under Section 24 for setting aside the election. Having set out these relevant provisions we will now proceed to consider the validity of the preliminary objection urged by the learned Advocate General.

6. Now what are the questions which can be raised by an aggrieved person in an application under Section 24. The Section empowers an aggrieved person--and any person qualified to vote at an election would he an aggrieved person--to bring the validity of the election into question before the Civil Judge, Junior Division, or the Civil Judge, Senior Division, as the case may he, by making an application within fifteen days from the date of declaration of the result of the election. What questions can be raised in such an application must, therefore, depend on what is comprehended within the expression 'bringing the validity of the election into question'. When an aggrieved person questions the decision of the Returning Officer rejecting a nomination paper, can it be said that he is questioning the validity of the election or bringing the validity of the election in question? That raises the question what is the true meaning to he given to the word 'election' in Section 24. That word, as observed by the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal : [1952]1SCR218 'has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used Io 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'. The Supreme Court in this case while interpreting the words 'no election shall be called in question' in Article 329(b) of the Constitution, took the view that the word 'election' was used in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature and that the jurisdiction of the High Court under Article 226 was, therefore, excluded under Article 320(b) in regard to all stages in the process leading upto the declaration of the result of the election including the rejection of nomination papers. Earlier also, the same wide meaning was given to the word 'election' by a Division Bench of the Madras High Court in Srinivasalu v. Kuppuswami : AIR1928Mad253 , when considering Rule 1 of the Rules framed under the Madras Local Boards Act, 1920, which provided that no election held under that Act shall be called in question except by an election petition presented in accordance with the Rules. Curgenven and Madhavan Nair JJ. both said that the word 'election' may be taken to embrace the whole procedure whereby an elected member is returned, whether or not it be found necessary to take a poll. These observations of the learned Judges of the Madras High Court were quoted with approval by a Division Bench of the Lahore High Court in Sat Narain v. Hanuman Parshad AIR 1946 Lah 85, in a case arising under the Punjab Municipal Act, 1911. It is, therefore, clear that the word 'election' is used with reference to the entire process which consists of several stages and embraces many steps some of which may have an important bearing on the result of the process and bears this wide meaning whenever we talk of elections in a democratic country. Vide the observations of Fazl Ali J., in Ponnuswami's case : [1952]1SCR218 of the report. The Act in the present case is an Act providing for decentralization of self-Government and it is, therefore, reasonable to conclude that unless there is anything in the context to indicate a contrary intention, the word 'election' has this wide meaning when it occurs in Section 24. If the word 'election' has this wide meaning, it is apparent that when an aggrieved person questions a decision of a Returning Officer regarding rejection of a nomination paper, he is questioning the validity of the election and he can bring an application before the Civil Judge, Junior Division, or the Civil Judge, Senior Division, as the case may be, challenging the validity of the election on the ground that the decision of the Returning Officer rejecting the nomination paper was wrong.

7. The context of Section 24 also supports the view that the word 'election' has been used in the Section in a wide sense and not in a narrow sense. Section 24 occurs in Chapter III which contains a fasciculus of Sections commencing from Section 18 and ending with Section 26 dealing, as the heading of the Chapter shows, with 'Election, Appointment or Co-option of Members of Panchayats, Election Disputes Etc.,' We have already pointed out that Section 18 provides that election shall he conducted in the manner prescribed by the Rules. Section 19 deals with the circumstances in which members may be appointed in lieu of elected members. The division of the electorate into electoral divisions is provided in Section 20 while Section 21 provides for the preparation of the list of voters. Who shall be the person qualified to vote and be elected is dealt with in Section 22 and Section 22-A imposes restrictions on simultaneous or double membership of Panchayats. Section 23 lays down the disqualifications which disentitle a person to be a member of the Panchayat or to continue as such member. Then comes Section 24 which provides for the determination of validity of elections. Apart from there being nothing in the language of Section 24 which would indicate that the word 'election' has been used in a narrow sense, there is positive evidence in the Section itself which shows that the word 'election' as used in it has a wide meaning and questioning the validity of the election within the meaning of the Section includes questioning of the decision of the Returning Officer as regards rejection of a nomination paper. Sub-section (2A) is a provision which throws considerable light on this question. It clearly shows that the validity of an election can be questioned under Section 24 on the ground of any breach of or any omission to carry out or any non-compliance with the provisions of the Act or the rules whereby the result of the election has been materially affected. Unless such a ground is a valid ground available to an aggrieved person for questioning the validity of the election under Section, it is difficult to see why the legislature should have thought it necessary to introduce Sub-section (2A) and particularly the Explanation to it. The Legislature was obviously anxious to provide that a mere error by the officer charged with carrying out the rules or a mere irregularity or informality not corruptly caused should not be a ground for questioning the validity of an election but it made it clear by enacting the Explanation that if there is any breach of or, any omission to carry out or any non-compliance with the provisions of the Act or the rules by reason of which the result of the election has been materially affected, the election may be set aside by the Civil Judge under section 24. Now Sub-rule (2) of Rule 14 lays down the grounds on which a nomination paper may be rejected by the Returning Officer. If the Returning Officer has rejected a nomination paper otherwise than in accordance with these grounds, the rejection of the nomination paper would dearly amount to a breach of or non-compliance with Sub-rule (2) of Rule 14 and if in consequence of that, the result of the election has been materially affected--which it undoubtedly would be--the election can be set aside by the Civil Judge The validity of the election can, therefore, be questioned by an aggrieved person under Section 24 on the ground that the nomination paper was improperly rejected by the Returning Officer. This much is clear on a construction of Section 24

8. Mr. Yin appearing on behalf of the petitioners; however, contended that whatever might be the position if Section 24 stood alone, we had to take into account Sub-rule (8) of Rule 14 and it was that sub-rule which made all the difference so far as this particular question was concerned. Mr. Vin contended that the Rules were statutory rules made by the Government of Gujaral in exercise of its powers under Section 323 and they had as much force of law as the provisions of the Act themselves. Sub-rule (8) of Rule 14, argued Mr. Vin. made the decision of the Returning Officer regarding acceptance or rejection of the nomination papers final and since this sub-rule had the force of law, such decision could not be assailed before the authority constituted under Section 24 to hear applications questioning the validity of an election. Reference was made in this connection to the following passage from Maxwell on Interpretation of Statutes. Tenth Edition, pages 50 and 51

'Instruments made under an Act which prescribes that they should be laid before Parliament for a prescribed number of days, during which period they may be annulled by a resolution of either House, but that if not so annulled they are to be of the same effect as if contained in the Act, and are to be judicially noticed, must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act. If there is a conflict between one of these instruments and section of the Act, it must be dealt with in the same spirit as a conflict between two sub-sections of the Act would be dealt with. If reconciliation is impossible, the subordinate provision must give way, and probably the instrument would be treated as subordinate to the section '

Now it is undoubtedly true that the Rules framed by the Government of Gujarat in exercise of its powers under Section 323 are statutory rules having the force of law and that they must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act and if there is a conflict between a provision of the Act and a provision of the Rules, it must be dealt with in the same spirit as a conflict between two subsections of the Act would be dealt with. We must, therefore, read Sub-rule (8) of Rule 14 along with Section 24 and arrive at a harmonious interpretation of the two provisions. While doing so, we must also remember another well-settled rule of interpretation, namely, that no part of a statute must be construed in isolation, for the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context. Bearing these principles of interpretation in mind, we will now proceed to consider what is the true effect of Sub-rule (8) of Rule 14.

9. At first blush it does, appear that Sub-rule. (8) of Rule 14 excludes the jurisdiction of the Civil Judge under Section 24 to determine the question as regards improper acceptance or rejection of a nomination paper. Rut on a close scrutiny of the relevant provisions, we must come to the conclusion that such is not tins position. First of all let us consider the provisions of Rule 14 itself before we go to the other provisions. The subject dealt with in Rule 14 is scrutiny of nomination papers and the Returning Officer has to decide on a scrutiny of the various nomination papers filed before him as to whether he must accept or reject any of them This he is empowered to do after a summary inquiry and even what that summitry inquiry shall be is left entirely to his discretion. The grounds on which he may reject a nomination paper include amongst others the ground that a candidate is disqualified from being chosen to fill the seal or that the proposer is disqualified from subscribing a nomination paper or that the signature of the candidate or the proposer is not genuine or has been obtained by fraud. The first two of these grounds may involve determination of important questions of law, while, the third may involve consideration of complicated questions of fact. It is difficult to believe that the rule-making authority should have left the determination of these grounds to the final decision of the Returning Officer to such an extent that it cannot even be challenged before the Civil Judge authorized to hear what we may conveniently call an election petition. The time within which the Returning Officer is required to come to a decision on these grounds is also extremely short The Returning Officer can adjourn the proceeding before him only for a day and must give his decision on the adjourned date These considerations militate against the view that the decision of the Returning Officer regarding acceptance or rejection of nomination papers and particularly rejection of nomination papers was intended by the rule-making authority to be made final and not amenable even to the jurisdiction of the Civil Judge under Section 24. It is no doubt true that the word 'final' has been used in regard to the decision of the Returning Officer in Sub-rule (8) of Rule 14. but that has obviously been done in order to eliminate interference at an intermediate stage before the declaration of the result of the election. The machinery for con-dueling the election having been provided by the Rules, the rule-making authority, felt that for the smooth functioning of that machinery it was necessary- that there should be no interference until the election was complete and the rule-making authority achieved this result by providing that the decision of the Returning Officer in regard to acceptance or rejection of nomination papers shall be final. This provision merely gave effect to the principle which is now well recognized, namely, that 'it is', again to use the words of Fazl AH J., in Ponnuswami's case, AIR 1952 SC 64 (supra) 'a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of 'elections should be postponed till after the elections arc over, so that the election proceedings may not be unduly retarded or protracled'. Reading Section 24 along with Sub-rule (8) of Rule 14 and applying the principle of harmonious construction referred to in the aforesaid passage from Maxwell on Interpretation of Statutes, it is clear that so far as the machinery of election is concerned, the decision of the Returning Officer regarding acceptance or rejection of nomination papers is final in the sense that it cannot be, questioned until the election is completed, but when the election is completed, any aggrieved person may prefer an application before the Civil Judge under Section 24 within fifteen days from the date of declaration of the result questioning the validity of the election on the ground that the nomination paper was improperly accepted or rejected in breach of or non-compliance with Sub-rule (2) of Rule 14.

10. This view which we are taking is in accord with the following observations of Chagla C. J., (as he then was) in V.A. Ransing v. Shankar Vithal. 57 Bom LR 254 at p. 257 :

'It is a well-known principle of election laws that decisions of Returning Officers cannot be challenged while the election has still to take place, and we often find provisions in rules where the decision of the Returning Officer is made final. But the finality is only an ad hoc finality. The reason for that finality is that the election should not be held up by parties going to Civil Courts and getting their rights adjudicated. The law provides that the proper time to adjudicate upon these rights is by election petitions after the election has taken place'

It is also supported by a consideration of certain other provisions of the Rules. Rule 56, Sub-rule (2), Clause (vi) empowers the Returning Officer to reject a ballot paper and if any candidate or any election or counting agent questions the correctness of the rejection of any ballot paper, the Returning Officer is required to record briefly on such ballot paper the grounds for its rejection. The grounds for rejection of ballot papers are set. out in Rule 58, Sub-rule (1) and Sub-rule (3) of Rule 58 provides that the decision of the Returning Officer as fo the validity of a ballot paper contained in a ballot box or of the postal ballot paper received under Rule 48 or Rule 50 shall be final. Now can it be suggested that if the Returning Officer has wrongly rejected a ballot paper, his decision cannot be questioned in an election petition under Section 24? Mr. Vin was of course driven to argue that just as in Sub-rule (8) of Rule 14, so also in Sub-rule (3) of Rule 58, the decision of the Returning Officer was final and the rejection of the ballot paper by the Returning Officer could not be questioned before the Civil Judge under Section 24. But the argument is patently wrong and there are several reasons which compel us to reject it. Rule 63 provides for the preservation of the ballot papers until the expiry of fifteen days from the date of the declaration of the result of the election or if an application under Section 24 has been made in the meantime, then until the final disposal of the application. This shows that the ballot papers may be required by the Civil Judge for disposal of the application under Section 24 and affords a strong indication that the decision of the Returning Officer as regards the validity of ballot papers is not immune from the scrutiny of the Civil Judge under Section 24. The Civil Judge acting under Section 24 can also by virtue of Rule 62 direct that the ballot papers may be opened and inspected by a candidate or any other person. This power would be futile if the decision of the Returning Officer as regards the validity of ballot papers was final in the sense that it could, not be questioned before the Civil Judge. But more eloquent than these two provisions of Rules 62 and 63 is the provision in Section 24(6) (b). That provision empowers the Civil Judge in a case where the validity of an election is in dispute between two or more candidates to scrutinize and compute the voles recorded in favour of each candidate and to declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. This provision clearly postulates that the Civil Judge has to decide the question of validity of the ballot papers after scrutinizing them and then to ascertain which of the two candidates has secured the greatest number of valid votes in his favour On a consideration of these provisions, we are of the view that though the decision of the Returning Officer as to the validity of the ballot paper is made final by Sub-rule (3) of Rule 58, such finality is only an ad hoc finality for the purpose of the machinery of election and it does wot exclude the jurisdiction of the Civil Judge under Section 24 to go into the question whether a particular ballot paper is valid or not. To the same effect we find the provision in Rule 67 which says that if any question arises as to the interpretation of the Rules, the question shall be referred for the decision of the District Development Officer and his decision shall be final. Here also the decision of the District Development Officer as regards the interpretation of the rules is made final, but that is again for the purpose of the machinery of election and it has no binding force on the Civil Judge when it is contended before the Civil Judge that there has been a breach of a particular rule materially affecting the result of the election. If the word 'final' in Sub-rule (3) of Rule 58 and Rule 67 has this meaning and does not make the decision of the Returning Officer or the District Development Officer immune from the scrutiny of the Civil Judge hearing an election petition, it can he safely assumed that the word 'final' in Sub-rule (8) of Rule 14 has been used by the rule-making authority to convey the same meaning, particularly when we find that that meaning is supported by the scheme and language of Section 24 and Rule 14.

11. We arc, therefore, of the view that the decision of the Returning Officer as regards the acceptance or rejection of a nomination paper can he challenged in an application preferred under Section 24 questioning the validity of the election and the petitioners had, therefore, an alternative remedy available to them under Section 24 for challenging the validity of the election of respondent No. 1. But the existence of the alternative remedy is in our opinion not sufficient on the facts of the present case to throw out the petition. There is no hard and fast rule that where there is an alternative remedy, the Court should not entertain a petition under Article 226 or refuse to grant relief to the petitioner. There is always a discretion vested in the Court to entertain the petition and grant relief to the petitioner notwithstanding the existence of an alternative remedy. Of course the discretion to be exercised is a judicial discretion and the exercise of the discretion must consequently depend on the facts and circumstances of each case. Vide A.V. Venkateswaran v. H.S. Wadhwani AIR 1061 SC 1506. We must, there-fore, examine the facts and circumstances of the present case and see whether there is anything in them which would justify us in exercising our discretion in favour of the petitioners, notwithstanding the fact that they had an alternative remedy under Section 24. We think there is. The petition was filed on 7th February 1964 before the notification declaring respondent No. 1 as an elected candidate was published in the Gazette and the petition was, therefore, initially confined only to challenging the decision of the Returning Officer rejecting the nomination papers of the petitioners. But when the petitioners came to know that respondent No. 1 was already declared as an elected candidate, the petitioners immediately applied for and obtained leave to amend the petition. The petitioners believed and that was the view strongly advocated before us which we have rejected as aforestat-ed--that it was not open to the petitioners to challenge the validity of the election of respondent No. 1 before the Civil Judge under Section 24 on the ground that the nomination papers had been improperly rejected by the Returning Officer. The petitioners, therefore, contended themselves by filing the present petition and did not prefer an application under Section 24 before the Civil Judge, Junior Division, challenging the validity of the election of respondent No. 1. The result is that if we throw out the petition to-day on the preliminary objection, the petitioners would be without any remedy. The time for filing an application under Section 24 having already expired, the petitioners would not be entitled to file an application under S. 24. Of course it is well-settled that merely because a petitioner allows his alternative remedy to get time barred. It does not mean that he can have the indulgence of the Court in a writ petition under Article 228, hut in a case like the present where the question as to the existence of the alternative remedy was a highly debatable one, we do not think it would be right to refuse relief to the petitioners if they arc otherwise entitled to the same, merely on the ground that they did not pursue the alternative remedy. It is no doubt true that there is an application preferred by Thakore Kishorsinh Samatsinh under Section 24 challenging the election of respondent No. 1, but that is not an application by the petitioners and it cannot, therefore, be taken into account for the purpose of denying relief to the petitioners. The petitioners have no control over that application and that application cannot be regarded as a circumstance calling for the exercise of our discretion against the petitioners. An apprehension was also expressed in the course of the arguments that if this Court entertained the petition on merits, there might be conflicting decisions of this Court and the Civil Judge, Junior Division, but that apprehension was entirely unjustified since the Civil Judge, Junior Division, being in any view of the matter a subordinate Tribunal, any decision given by this Court on a question of law would be binding upon him. We must, therefore, reject the preliminary objection and proceed to decide the petition on merits.

12. The main argument on merits was that the Returning Officer had committed an error of law apparent on the face of the record in rejecting both the nomination papers in the case of each of the petitioners. The petitioners contended that on a true construction of the second proviso to Sub-rule (5) of Rule 10 read with Sub-rules (2) and (3) of Rule 14, the Returning Officer, was, if at all, entitled to reject only the second nomination paper of each of the petitioners but was bound to accept the first nomination paper and that the rejection of both the nomination papers was, therefore, bad. If more than one nomination paper were subscribed by any proposer, argued Mr. Vin, all the nomination papers would not be invalid. The nomination paper first received by the Returning Officer would be valid and only the other nomination papers would be invalid. This proposition was disputed by the learned Advocate General and Mr. Palwari who both contended that in such a case all the nomination papers would be invalid. These rival contentions raised a question the determination of which depended on the true construction to be put on the second proviso to Sub-rule (5) of Rule 10 read with Sub-rules (2) and (3) of Rule 14.

13. The first question that requires to he considered is whether the second proviso to Sub-rule (5) of Rule 10 is a real proviso or is a substantive enactment in the garb of a proviso. This question is very material in order to understand the precise scope and content of the second proviso. Now it is well-settled that the proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. As observed by N. H. Bhagwati J.. in Ram Narain Sons Ltd. v. Asst. Commr. of Sales Tax : [1955]2SCR483

'It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other'.

The territory of a proviso, therefore, is to carve out an exception to the main enactment and exclude something which otherwise would be within the main enactment. The duty of the Court must, therefore, he to give to the proviso, as far as possible, a meaning which brings it within the ambit and purview of the main enactment. If a proviso is capable of a wider connotation and is also capable of a narrower connotation, if the narrower connotation brings it within the purview of the main enactment, then the Court must prefer the narrower connotation rather than the wider connotation. It is true that sometimes a legislature does enact a substantive provision in the garb or guise of a proviso, but the Court would construe a proviso as a substantive provision only if the Court is satisfied that the language used in the so-called proviso is incapable of making it applicable to the Section. It is only if the language of the proviso is so intractable that it cannot be read as discharging the orthodox function of a proviso that the Court would read it as a substantive enactment. If these principles are borne in mind it is clear that the second proviso in the present case is a real proviso and not a substantive provision in the garb or guise of a proviso. The second proviso can be given full effect by reading it as a proviso. Sub-rule (5) enacts that nothing in Rule 10 shall prevent any candidate from being nominated by more than one nomination paper. The first proviso then declares that not more than four nomination papers shall be presented by or on behalf of any candidate for election in the same electoral division and then the second proviso says that not more than one nomination paper shall be subscribed by any proposer. The second proviso on a plain and natural construction can he read as a proviso to the main provision contained in Sub-rule (5). It can and does fit in with the main provision. So read it is clear that all that the second proviso means is that though a candidate may be nominated by more than one nomination 'paper, not more than one nomination paper shall he subscribed by the same proposer in favour of such candidate If that be the true meaning of the second proviso, it is obvious that the same proposer may subscribe two or more nomination papers in favour of different candidates (for apart from the ban contained in the second proviso, there is no other ban in the rules regarding the number of nomination papers that may be subscribed by a proposer) but he cannot subscribe more than one nomition paper in favour of the same candidate.

14. It is apparent from the aforesaid discussion that the object of the second proviso seems to be to secure that a proposer must subscribe only one nomination paper in favour of a candidate. He may subscribe nomination papers in favour of as many candidates as he pleases, but his right to subscribe a nomination paper in favour of any one candidate shall be limited only to one nomination paper. He can validly subscribe one nomination paper in favour of a candidate but as soon as he dots so, his right to subscribe a nomination paper in favour of that candidate is exhausted and he cannot subscribe other nomination papers in favour of that candidate. The second proviso says that a proposer may subscribe one nomination paper in favour of a candidate but shall not subscribe more than fine i.e., any additional nomination papers in favour of the-same candidate. If a proposer does so, such additional nomination papers would be in breach of the provision enacted in the second proviso but not the first one which he was entitled to subscribe. This appears to us to be the right construction of the second proviso. It is difficult to believe that the Legislature could have intended that if a proposer subscribes more than one nomination paper in favour of a candidate, all the nomination papers should be invalidated. We do not see. what particular, object or purpose could the Legislature have had in view in bringing about such a result: what public policy could be intended to be served by visiting such a consequence. If a proposer subscribes one nomination paper in favour of one candidate and another nomination paper in favour of another candidate, neither nomination paper should be invalid hut it a proposer subscribes two nomination papers in favour of the same candidate, must both the nomination papers be invalid? We think not. The object of the Legislature being that there should be a different proposer for each nomination paper in favour of a candidate, the second proviso provides that the same proposer shall not subscribe more than one nomination paper in favour of the same candidate. He may subscribe one munition paper but having subscribed that, be shall not he entitled to subscribe any more.

15. This view which we are inclined to take is supported by a decision of the Court of Queens Bench in Knglund in Burgoyne v. Collins, (1882) 8 QBD 150 The question in that case arose under Section 1, Sub-section 2 of the Municipal Elections Act, 1875. which provided that every candidate al a municipal election shall be nominated in writing subscribed by two burgesses as proposer and seconder. and by eight others as assenting to the nomination, and that 'each candidate shall be nominated by a separate nomination paper, but the same burgesses, or any of them, mav subscribe as many nomination papers as there are vacancies to be filled, but no more''. At a municipal election where there were four vacancies to be filled a burgess subscribed four nomination papers, which were delivered within due time and subsequently he subscribed a fifth nomination paper, which Was also delivered in due lime. In each case he subscribed as one of the eight assenting burgesses required by the Act. The question arose whether all the nomination papers were invalid or only the fifth nomination paper was invalid. The answer to the question was considered by the learned Judges to be a simple one not requiring any elaborate discussion and Mathew J., observed 'if the mayor could entertain the objection to the nomination papers at all he ought to have decided that the nomination papers of the four petitioners were valid, and that of Hughes was invalid' The same principle which we have referred earlier was followed and it was held that all the nomination papers were not invalid but only the last one was invalid. Since the burgess was entitled to subscribe four nomination papers, the first four nomination papers subscribed by him were valid and since he was not entitled to subscribe any more nomination papers, the fifth one was invalid.

16. What we have said above in regard to the construction of the second proviso also receives support from a consideration of Sub-rule (3) of Rule 4. That Rule specifically provides that nothing contained in clause (c) of Sub-rule (2) of Rule 14, which refers In failure to comply with any of the provisions of Rule 10, shall be deemed to authorize the refusal of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another paper in respect of which no irregularity has been com-mitted. If any irregularity is committed in respect of a nomination paper by a proposer subscribing it in addition to the one nomination paper which he was entitled to subscribe, such nomination paper may be invalid but the nomination paper which has been validly subscribed by the proposer must be, taken into account and the candidate must be regarded as duly nominated. We may of course point out that this sub-rule can be of assistance only if the construction which we have placed on the second proviso is correct, but it does throw some little light on the intention of the rule-making authority. We have referred to it merely as affording an indication of the intent of the rule-making authority and we do not wish to place any undue emphasis on it or to over-emphasize its importance.

17. This view which we are taking is considerably strengthened if we refer to the first proviso to sub-rule (5). That proviso also lays down a prohibition by providing that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer for election in the same electoral division. Suppose five nomination papers are presented by or on behalf of a candidate: can it be contended in such a case that all the five nomination papers are invalid? When I put this question to Mr. Palwari, he was not in a position to contend that all the five nomination papers would be invalid. The answer to the question would clearly be that the first four nomination papers presented by or on behalf of the candidate and accepted by the Returning Officer would be valid and the fifth one would be invalid as being in breach of the first proviso. The same reasoning must also apply when more than one nomination paper arc subscribed by the same proposer.

18. The main difficulty pointed out on behalf of the respondents in the way of this construction of the second proviso was that there was no reason why when more than one nomination paper were subscribed by a proposer, the nomination paper accepted by the Returning Officer first in point of time should be preferred to the other nomination papers accepted subsequently by the Returning Officer and that the former should be considered valid and the latter invalid. The argument was stressed in the form of an interrogation : Why should the first nomination paper have any preferential consideration as against other nomination papers? The argument is in our opinion without force. If our construction of the second proviso is correct, there is no difficulty at all in principle in accepting the position that since only one nomination paper can be subscribed by a proposer, the nomination paper which is received by the Returning Officer first in point of time should be regarded as a valid nomination paper and the nomination papers which arc subsequently received must be regarded as invalid since more than one nomination paper cannot be subscribed by the same proposer. It is undoubtedly true that the question whether nomination papers arc valid or not arises only after all the nomination papers are filed but when the Returning Officer has to consider whether any particular nomination paper is valid or not, he has naturally to apply his mind to the question whether that nomination paper is validly subscribed by the proposer and if a prior nomination paper is already subscribed by the same proposer, the nomination paper in question being a subsequent nomination paper cannot be accepted by him as valid. When the Returning Officer considers this question, he certainly examines all the nomination papers and considers the validity of the particular nomination paper in relation to the other nomination papers, but the question to which he applies his mind is whether the particular nomination paper is valid or not and if it is subscribed by a proposer who has already subscribed a nomination paper received by him earlier in point of time, the Returning Officer must reject that nomination paper as invalid. The form of the nomination paper clearly shows that as and when a nomination paper is received by the Returning Officer, he has to give a Serial Number to the nomination paper and he is also required to hand over a receipt to the person presenting the nomination paper which receipt also sets out the Serial Number of the nomination paper. The Serial Number has to be given to the nomination papers in the order in which they are received by the Returning Officer. The giving of Serial Numbers is a matter of substance, and if the Returning Officer finds that a nomination paper bearing an earlier Serial Number is subscribed by a proposer the nomination paper bearing a later Serial Number subscribed by the same proposer cannot be regarded by him as valid by reason of the second proviso. On this point the argument advanced on behalf of the respondents was that the two nomination papers in the case of each of the petitioners were presented simultaneously and the rule could not, therefore, be applied that the earlier nomination paper should be accepted as valid and the latter should he rejected as invalid But this argument overlooks the fact that though the two nomination papers may have been presented simultaneously, the Returning Officer must accept and in the present case did accept one nomination paper first and the other thereafter. The two nomination papers may have been placed before the Returning Officer at the same time, but he took up one nomination paper first and gave a serial number to it and thereafter took up the other nomination paper and gave the nest serial number to it. Out of the two nomination papers, one was, therefore, earlier in point of time than the latter and the principle which we have pointed out above can certainly be applied.

19. Another difficulty pointed out was that the Returning Officer was not bound to take up for consideration at the time of scrutiny the nomination paper in the Serial Order given to them. This is certainly true, but that cannot make any ditference to the position. Even if the Returning Officer picks out any nomination paper irrespective of its serial number, when he comes to consider the validity of it, he has to consider whether at the time when that nomination paper was presented and accepted there was already a nomination paper presented and accepted which was subscribed by the same proposer. If there was, then the nomination paper subsequently presented and accepted would be invalid.

20. The ground in Clause (c) on which a nomination paper can be rejected is that there has been a failure to comply with the provisions of Rule 10 but in respect of the nomination paper first received by the Returning Officer, there cannot be said to have been a failure to comply with the provisions of the second proviso, because the proposer was entitled to subscribe one nomination paper The failure to comply with the provisions of the second proviso occurred in respect of the subsequent nomination papers since, having already subscribed one nomination paper, namely, that received first by the Returning Officer, the proposer was not entitled to subscribe other nomination papers and the subscription of the other nomination papers by the proposer was, therefore, in contravention of the provisions of the second proviso.

21. In this view of the matter we are of the opinion that the Returning Officer was clearly in error in rejecting both the nomination papers of each of the petitioners. He was bound to accept nomination paper No. 3 in the case of petitioner No. 1 and nomination paper No. 5 in the case of petitioner No. 2 since, those respective nomination papers were accepted by the Returning Officer earlier in point of time than the other nomination papers hearing Nos. 4 and 6 respectively. This conclusion would necessarily result in the election of respondent No. 1 being declared illegal and void. Mr. Palwari, however, argued that even if this be the view we are inclined to take, we should not interfere in the exorcise of our jurisdiction under Article 226, because two views of the const ruction of the second proviso were possible and if the Returning Officer took one view and rejected the nomination papers of the petitioners, we should not interfere with the decision of the Returning Officer. We can not accept this argument for we are of the view that the construction put by the Returning Officer was not a construction which could be said to be a reasonably possible construction and there was, therefore, clearly an error of law apparent on the face of the record which must invite our interference under Article 226.

22. In the result the petition succeeds and there will, therefore be a writ quashing and setting aside the rejection of the nomination paper of petitioner No. 1 hearing S. No. 3 and the nomination paper of petitioner No. 2 bearing S. No. 5 and declaring the election of respondent No 1 as illegal and void. There will he no order as to costs.


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