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Tekchand Vs. Banwarilal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Appln. No. 154 of 1955
Judge
Reported inAIR1956Raj185
ActsConstitution of India - Article 226; Rajasthan Town Municipalities Act, 1951 - Sections 19 and 19(5)
AppellantTekchand
RespondentBanwarilal and ors.
Appellant Advocate M.M. Vyas, Adv.
Respondent Advocate Sumerchand, Adv. for Non-Petitioner 1; Kansingh, Dy. Government Adv.
DispositionPetition dismissed
Cases ReferredPurushottamdas v. Collector
Excerpt:
.....out or any non-compliance with the provisions of this act or the rules made thereunder whereby the result of election has been materially affected, (6) .6. we cannot help stating that the scheme and wording of section 19 are not as happy as we should have expected it to be. 8. we now propose to answer briefly a few contentions raised on behalf of the petitioner to show that section 19 of the rajasthan act entirely excludes the possibility of an election petition being filed in a case like the present. state of madhya bharat, air 1952 madh b 97 (fb) (c) it was held that the election in that case commenced when the nomination paper of the person seeking election was presented to the returning officer, and ended when the returning officer declared the result of the election, and therefore,..........on certain grounds which are not material for the purposes of the present application. the returning officer who is opposite party 4 accepted this objection and rejected the nomination paper of the petitioner.consequently, the petitioner has come forward with this petition and he prays that his nomination paper was wrongly rejected by the returning officer, and, therefore we should quash that order. the petitioner further stated in his application that, he is entitled to the writ of certiorari because section 20 of the rajasthan act bars a civil suit and the remedy by way of an election petition is only a post-election remedy and it would be no consolation to a person whose nomination paper is wrongly rejected to be told that he must let the election go and then have it set aside.....
Judgment:

Modi, J.

1. This is a petition by Tekchand under Article 226 of the Constitution praying for a writ of certiorari in connection with the rejection of his nomination paper.

2. The petitioner is a resident of Karanpur which is a municipality under the Rajasthan Town Municipalities Act, 1951, 23 of 1951 (hereinafter referred to as the Rajasthan Act). The case of the petitioner is that he stood as a candidate for the municipal elections of the Karanpur municipality, which were scheduled to be held on 5-12-1955, and filed his nomination paper from Ward No. 3 for that purpose.

Opposite parties 1 to 3 also filed their nomination papers from the same ward. On the day fixed for the scrutiny of the nomination papers, opposite party 1 Banwarilal objected to the nomination paper of the petitioner on certain grounds which are not material for the purposes of the present application. The Returning Officer who is opposite party 4 accepted this objection and rejected the nomination paper of the petitioner.

Consequently, the petitioner has come forward with this petition and he prays that his nomination paper was wrongly rejected by the Returning Officer, and, therefore we should quash that order. The petitioner further stated in his application that, he is entitled to the writ of certiorari because Section 20 of the Rajasthan Act bars a civil suit and the remedy by way of an election petition is only a post-election remedy and it would be no consolation to a person whose nomination paper is wrongly rejected to be told that he must let the election go and then have it set aside by an election petition.

3. The application has been opposed by the Returning Officer (opposite party 4) and Banwarilal (opposite party 1) although no written reply has been filed on behalf of the latter. The stand taken by the Returning Officer in his reply is that the nomination paper of the petitioner was rightly rejected (with which aspect of the matter we do not propose to deal as already stated above); and, secondly, that the petitioner has a remedy by way of an election petition, & consequently he is not entitled to any relief by way of a writ of certiorari in the extraordinary Jurisdiction of this Court.

4. The first question for determination before us is whether the petitioner has a remedy by way of an election petition or not against the alleged improper rejection of his nomination paper toy the Returning Officer, and the second question is whether where a remedy by way of an election petition is available to the petitioner, this Court should interpose at this stage and consider his application on the merits.

5. We take up the first question first. The determination of this question depends upon the interpretation of Section 19 of the Rajasthan Act. The material portion of Section 19 is in these terms:

(1) At any time within 10 days after the date of the declaration of the result of an election, any candidate who stood for election, or any ten persons qualified to vote at that election may apply.... to the Judge having jurisdiction over the district within which the election has been or should have been held for the determination of the validity of the election.

(2) The Judge may, after such enquiry as he deems necessary and subject to the provisions of Sub-section (3), pass an order confirming or amending the declared result of the election or setting the election aside..... .... .. .... .... .... ....

(3) (a) The Judge, if satisfied that a candidate has within the meaning of Sub-section (4) committed any corrupt practice for the purpose of that election, shall declare the candidate disqualified ..........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 such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected.

(4) ........ (This sub-section defines corruptpractice)

(5) If the validity of the election is brought In question only on the ground of an error by the officer or officers charged with carrying out the rules made under Clause (b) of Sub-section (2) of Section 205 or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election.

Explanation: The expression 'error' in this subsection 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 election has been materially affected,

(6) .... .... .... .... .. .... .... .... ....

6. We cannot help stating that the scheme and wording of Section 19 are not as happy as we should have expected it to be.

On a perusal of the section as a whole, however, we consider that a candidate who has stood for election or any ten persons qualified to voteat that election have a right to present an election petition to the District Judge (unless any other Judge is appointed for the purpose) with the object of questioning the validity of the election on the ground (i) of any corrupt practice as defined in the section (See Sub-section (3) (a) and Sub-section (4)) or on the ground of any substantial error or irregularity as the part of the officer or officers charged with the duty of conducting the election provided that such error or irregularity has affected or would have the effect of materially affecting the result of the election (See Sub-section (5) with the explanation).

Sub-section (2) gives the Judge the authority to confirm or amend or set aside the election subject to certain other provisions contained in the section. Thus, for example, where a case of corrupt practice has been established, It is provided that the election must be set aside (Sub-section (3) (a).)

Where, however, the ground of challenge is not as serious but is, say, a wrong computation of the valid votes of the respective candidates, then the Judge is required to re-compute the valid votes cast in favour of the respective candidates and declare the candidate who is found to have the greatest number of valid votes to have been, duly elected (See Sub-section (3) (b) ).

Lastly, where the election is sought to be set aside on the ground of a mere error or irregularity, the section lays down that such an error or irregularity would be no ground for setting aside the election; but it is further provided that where the error or irregularity is material in the sense that the result of the election is or would be affected thereby, then such an error or irregularity may also be a ground for setting aside the election and this result, in our opinion, is produced by reading Sub-sections (5) and (2) together,

7. Now, it was not disputed before us, and indeed no such dispute could nave been successfully raised, that the improper rejection of a nomination paper is, as a rule, a material irregularity which affects the result of the election. (See Sat Narain v. Hanuman Parshad AIR 1946 Lah 85 (A)).

That being the position in law, so far as the rejection of a nomination paper is concerned, we are definitely of the opinion that Section 19 does not contain anything to preclude an election petition from being filed against such improper rejection before the District Judge having jurisdiction over the district within which the election is held, and the remedy of filing such a petition would be available to the petitioner after the result of the election.

As election in ward No. 3 wherefrom the petitioner intended to stand has not taken place so far, this remedy would undoubtedly be available to him within the time permitted by Section 19 of the Rajasthan Act.

8. We now propose to answer briefly a few contentions raised on behalf of the petitioner to show that Section 19 of the Rajasthan Act entirely excludes the possibility of an election petition being filed in a case like the present. In the first place, it was urged that an election petition could be filed only by a candidate who stood for election and that the petitioner was not a candidate properly so-called.

The submission was that the word 'candidate' connotes a person whose nomination paper has been accepted and who is in a position to stand for the election. In the second place it was contended (and this contention is indirectly involved in the first contention also) that the term 'election' cannot be rightly applied to a stage where merely the nomination papers are invited and scrutinized or decided and that this is merely a preliminary process which sets the stage for an election In the proper sense of the term.

9. Having given our careful consideration tothese contentions, we have arrived at the conclusion that there is no force in them. Taking up the second contention first, we desire to point out that there is abundant authority for holding that the term 'election' has both a wide and a narrow meaning and that where necessary, there can be no objection whatever to giving it a wider meaning which embraces the entire process of election right from the time when a written notice in connection with the holding of an election is given down to the stage where the Returning Officer declares the result of the election.

Thus it was held in Sat Narain v. Hanuman Parshad (A) already cited above that the rejection of a nomination paper even in a case where the candidate is elected without contest is a matter arising in the course of election. Reliance was placed in arriving at this conclusion on Srinivasalu Reddy v. Kupuswami Goundar, AIR 1928 Mad 253 (B) which took the same view.

Again in Shankar Rao v. State of Madhya Bharat, AIR 1952 Madh B 97 (FB) (C) it was held that the election in that case commenced when the nomination paper of the person seeking election was presented to the Returning Officer, and ended when the Returning Officer declared the result of the election, and therefore, the act of the Returning Officer in accepting or rejecting the nomination paper or refusing to receive the sums was clearly a matter which formed a part of the entire process of election.

This view met the approval of their Lordships of the Supreme Court in Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 54 (D) where they adopted the larger meaning of 'election', and made the following observations:

'The word 'election' 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 to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire, process culminating in a candidate being declared elected.'

With respect, we are of opinion that the last words are clearly applicable to the case before us.

10. We also desire in this connection to invite attention to the rules framed by the Government under Sub-section (2) of Section 205 of the Rajasthan Act (hereinafter called the rules) and in particular to such of them as begin with R. 14, which is headed as 'time and place for election', and end with Rule 36 which says that the result of the election shall be declared by the Returning Officer.

The entire scheme and wording of these rules leave no doubt, in our mind, that the term 'election' is used therein in a comprehensive sense and fortify us in coming to the conclusion to which we have come.

11. We, have, therefore, no hesitation in holding that the word 'election' as used in Section 19 properly bears, and should be understood in, its extensive sense, namely, that it embraces within itself the entire process of election beginning with the filing of a nomination paper and the several stages and steps subsequent thereto culminating in the declaration of the result by the Returning Officer.

12. Similarly, we have arrived at the conclusion that the word 'candidate' in Section 19 and in the rules referred to above must also be understood in its wider sense and must not be confined to a person whose nomination paper has been accepted and who, therefore, is in a position to stand for the poll.

After the heading 'time and place for election' in the rules, the next heading is 'applications for candidates'. Rule 15 then provides that every person who intends to stand for election in any ward shall, not less than fifteen days before the date fixed for election, signify his intention by applying in writing to the Returning officer in the prescribed form. The next rule No. 16 is important and is in the following terms:

16. (1) Every candidate shall deposit or cause to be deposited in the Office of the Municipal Board a sum of twenty-five rupees in cash and forward the receipt along with his application for candidature and no application shall be valid unless accompanied by such receipt.

The use of the word 'candidate' in this rule is not without significance and obviously includes the entire lot of persons who have duly signified their intention to stand for the election by putting in nomination papers, regardless of the consideration whether such nomination paper in the case of a particular individual is accepted or rejected.

Sub-rule (2) of Rule 16 further provides that any 'candidate' may withdraw his candidature by notice in writing subscribed by him and delivered to the Returning Officer at any time before the poll has commenced, and that a 'candidate' who has withdrawn his candidature shall not be allowed to cancel such withdrawal.

Rule 17 then provides that the Returning Officer on the last day fixed for receiving applications for candidature shall read out the names of the 'candidates' whose applications have been received and shall also put up a list of such candidates on the notice board with a notice that objections, if any, to the candidature of the persona specified in the list will be heard and disposed of by him on a specified day.

The rule finally lays down that after such objections are heard and disposed of, the Returning Officer shall frame a list of such of the candidates whose forms are not rejected, and these are called eligible candidates and the said officer shall publish a list of such candidates under his signatures.

13. In this state of affairs, we have no hesitation in holding that the expression 'candidate who stood for election' occurring in Section 19 connotes not merely the eligible candidates who actually take part in the poll but also those who fill their nomination papers to contest the election but stand rejected by the Returning Officer and who have thus been thrown out at an earlier stage and are disabled from actually taking part in the poll. We accordingly overrule this contention also.

14. Yet another objection which was raised before us is grounded on the language of Sub-section (5) of Section 19 and its explanation, it was contended that a mere error or irregularity in the conducting of an election can be no ground for challenging an election. (See Sub-section (5)) and the explanation merely excludes, from the purview of the main sub-section, an error or omission to carry out, or any non-compliance, with the provisions of the Act or the rules made thereunder whereby the result of election has been materially affected.

The argument was that the wrong rejection of a nomination paper was not an error of the description covered by the explanation, inasmuch as any error therein was not an error to carry out The provisions of the Act or the Rules or an omission to do so on a non-compliance with such provisions and therefore an election petition in a case of this character was not competent.

We are constrained to repeat that the language of Sub-section (5) and its explanation is far from happy and is involved to a degree. Nevertheless, we see no substance in the contention raised before us. In the first place, there is no gainsaying the legal position that, generally speaking the wrong rejection of a nomination paper is an error which materially affects the result of an election.

As to the next question, namely, whether an error made by a Returning Officer in improperly rejecting a nomination paper was intended by the Legislature to fall within the ambit of the explanation to Sub-section (5), our view is that the error in this case, if any, is an error made by an officer charged with the duty of conducting an election in carrying out the provisions of the Act relating to elections (Section 12(1)(viii) is the relevant provision here) -- and is, therefore, one which, to our mind, falls within the four walls of the explanation, and can be made a foundation for an election petition.

15. We take this opportunity of pointing out here one obvious defect in the wording of this provision, apart from what we have already stated above. This is that while the explanation talks of the breach of any provisions of the Act or the rules made thereunder, the main sub-section merely strikes at errors in the carrying out of the rules and omits to make any reference to similar errors in carrying out the provisions of the Act itself. This is an apparent omission, and appears to us to be the result of a mere oversight.

We should have expected that after the words 'carrying out' and before the words 'the rules' in the body of the sub-section, some such words as 'the provisions of the Act' should have been there.

Be that as it may, reading the rule along with the explanation as a whole, we are definitely of the view that Sub-section (5) divides errors or irregularities made by officers charged with the duty of carrying out the provisions of the Act and the rules relating to election into two categories: (1) formal or slight errors which are of no consequence being neither corruptly caused nor likely to materially affect the result of the election (2) errors or irregularities whether corruptly caused or not but which are material and are likely to affect the result of the election.

Then, this sub-section read with Sub-sections (1) and (2) clearly leads us to the conclusion that a candidate or any ten persons qualified to vote at the election in dispute have a right under the Act to file an election petition questioning the validity of the election, where the error or irregularity complained against is of the second category, namely, that it is calculated to materially affect the result of the election.

16. The result of the above discussion, therefore, is that the petitioner in the present case has a remedy to question the validity of the election by an election petition on the ground that his nomination paper was wrongly rejected by the Returning Officer, and we hold accordingly.

17. The next question is whether in view of the result arrived at above, we should interfere with the decision of the Returning Officer at this stage in the exercise of our certiorari jurisdiction under Article 226 of the Constitution. After a careful consideration of this question, our answer to it is in the negative. There are various reasons which have induced us to come to this conclusion, and We would brieily indicate them.

18. The first reason is that where a right or liability is created by a statute and that statute gives a special remedy for enforcing it, the remedy provided by the statute must be availed of.

Section 19 provides for an election petition to a District Judge and it is further provided that where the decision of the District Judge is challenged on a point of law, an appeal shall lie to the High Court from such a decision. It appears to us that the intention of the Legislature was to provide a self-contained set of provisions for questioning election matters under the Act. We are, therefore, most reluctant to hear them in our writ jurisdiction.

19. Apart from this, we see a still stronger objection in the way of the applicant and that is that even if we were to hear him at this stage and decide the matter one way or the other, an election petition would still lie under Section 19 of the Rajasthan Act to the persona designata, and this authority would be perfectly competent in hearing such a petition and to come to such conclusion as he may feel induced to according to his light and that conclusion may in a particular case conceivably be different from the one at which we may arrive.

Such a situation would be highly undesirable, and this, in our opinion, clinches the issue and induces us firmly to come to the conclusion that where the remedy of an election petition is open to a petitioner, this Court should never interfere before the remedy by way of an election petition is exhausted.

20. Our attention was drawn by learned counsel on behalf of the petitioner in this connection to Purushottamdas v. Collector, Gird, ( (S) AIR 1955 Madh B 179 (E) where it was held that it was no consolation and remedy to a person complaining that a nomination paper had been improperly accepted to tell him that he must let the election go on and then have it set aside by an election petition and pray for a fresh election order, and that such a post-election remedy was wholly inadequate.

With respect, we cannot subscribe to this opinion for the reasons already indicated and are definitely of the opinion that the High Court should not interfere where any interference on its part is likely to place it in a position in which it is open to an inferior authority under the law to arrive at an opinion contrary to it.

21. In view of the reasons mentioned above, this petition fails and is hereby dismissed but without costs.


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