1. Six candidates including Velusami Thevar, the 1st respondent, Chellapandian, the second respondent, Ambalavana Pillai, the third respondent, and Arunachalam, the fourth respondent, filed their nomination papers for election from the Alangulam Constituency for the Madras State Legislative Assembly. After the scrutiny of the nominations on 1st February, 1957, the Returning Officer rejected the nomination of Arunachalam, the fourth respondent, on an objection preferred by Chellapandian, the second respondent. Respondents 1, 2 and 3 were the candidates that eventually contested the election. The polling was held on 8th March, 1957. Velusami Thevar, the first respondent, was declared elected.
2. The objection preferred on 1st February, 1957, by the second respondent to the Returning Officer ran:
Arunachala Nadar has filed nomination for Alangulam Constituency for Assembly (1). He is employed as Headmaster, National Training School, Tiruchendur, which is run with Government's grants-in-aid and as such he holds office of profit in a concern, where the State Government has financial interest. Therefore his nomination is objected to as invalid under Section 7(d) and (e) of Act XLIII of 1951.
3. The order of the Returning Officer, which itself pointed out that the decision had to be given ex parte Arunachalam, was:
Sri S. Chellapandian raises objection to the nomination as a candidate for Alangulam Assembly Constituency on the ground that he is employed as Headmaster in the National Training School, Tiruchendur, which is run with Government grants-in-aid and as such he holds office of profit in a concern where the State Government has financial interest and as such his nomination is invalid under Section 7(d) and (e) of Act XLIII of 1951. Sri S. Arunachalam is not present at the time of scrutiny of nominations nor any authorised agent of his could take notice of the objection and file a reply. In view of the objection which has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in a concern, in which the State Government has financialinterest, the objection is upheld and Sri A. Arunachalam is disqualified under Section 7(d) and (e) of Act XLIII of 1951. Accordingly his nomination is rejected.
4. In the written statement that he filed in answer to the election petition, the returned candidate Veluchami Thevar pleaded that Arunachalam was disqualified on several other grounds as well which it may not be necessary to enumerate at this stage. The petitioner preferred I.A. No. 5 of 1957 in effect to confine the enquiry before the Tribunal to the correctness or otherwise of the objections preferred by the second respondent before the Returning Officer. The Tribunal rejected the contentions of the petitioner and dismissed I.A. No. 5 of 1957 on 17th August, 1957. The petitioner applied under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order of the Tribunal and also for the issue of a writ of prohibition.
5. The main question for determination in these proceedings before us is what is the scope of the enquiry before the Tribunal, when, in the exercise of the jurisdiction conferred on it by Section 100(1)(c) of the Representation of the People Act (XLIII of 1951) (hereinafter referred to as the Act), it has to decide whether or not the Returning Officer improperly rejected the nomination of a candidate.
6. With reference to the date fixed for the scrutiny of the nominations the relevant portion of Section 36(2)(a) of the Act runs:
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 thinks necessary, reject any nomination on any of the following grounds:
(a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:
Articles 84, 102, 173 and 191 and Part II of this Act....
Section 36(5) of the Act runs:
The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 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 made, 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.
Section 36(6) directs:
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.
Section 100(1)(c) of the Act is to this effect:
Subject to the provisions of Sub-section (2), if the Tribunal is of opinion...
(c) that any nomination has been improperly rejected .... the Tribunal shall declare the election of the returned candidate to be void.
7. The other provisions of the Act which we shall set out at this stage are Sections 90(1) and 98. The relevant portion of Section 90(1) runs:
Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure (V of igo8) to the trial of suits.
Section 98 provided:
At the conclusion of the trial of an election petition the Tribunal shall make an order--
(a) dismissing the election petition ; or
(b) declaring the election of all or any of the returned candidates to be void....
8. It should be noted that the decision of the Returning Officer is based on a summary enquiry. The proviso to Section 36(5) limits the period to two days within which the candidate, the validity of whose nomination has been challenged, could rebut that challenge. Section 100(1)(c) clothes the Tribunal with jurisdiction to decide whether the Returning Officer has improperly rejected a nomination. That decision has to be given after a trial of the issue whether the rejection of, the nomination was improper. In the absence of any provision to the contrary in the Act or in the Rules framed thereunder, that trial has to be conducted in accordance with the provisions of the Civil Procedure Code. If, at such a trial, proof is furnished by the election petitioner and accepted by the Tribunal that a nomination has been improperly rejected, the Tribunal has to declare the election of the returned candidate void under Section 98(a) read with Section 100(1)(c) of the Act.
9. The scope of the allegation to be made by an election petitioner is limited by Section 100(1)(c)--that the rejection of the nomination by the Returning Officer was improper. What is the scope of the trial before the Tribunal, to establish the truth of that allegation, is the question.
10. In construing the expression ' propriety ' in its context in Section 64-A (Madras Amendment) of the Motor Vehicles Act, as it stood before that section was repealed, the Supreme Court pointed out in Raman and Raman v. Government of Madras (1956) S.C.J. 368 : (1956) 1 M.L.J. (S.C.) 169 : (1956) An. W.R. (S.C.) 162.
The word propriety has nowhere been defined in the Act and is capable of a variety of meanings. In the Oxford English Dictionary, Vol. VIII, it has been stated to mean fitness, appropriateness, aptitude, suitability, appropriateness to the circumstances or conditions, conformity with requirements, rules or principle, Tightness, correctness, justness, accuracy.
11. That was a decision confirming the unreported judgment of this Court in Writ Appeal No. 65 of 1955. In Writ Appeal No. 65 of 1955 the learned Chief Justice stated:
The word 'propriety' has no precise connotation. In the context of judicial or quasi-judicial decisions, its meaning is not synonymous with correctness. Indeed, propriety is a term wholly inappropriate to the finding as regards legal rights of parties...Where, however, legal rights are not involved and we are in the realm of discretion, terms like 'propriety' and 'proper 'are apt.
12. After referring to Section 435, Criminal Procedure Code, where the expressions used were 'correctness, legality or propriety', the learned Chief Justice observed:
Now the finding of an inferior criminal Court as to the guilt or innocence of an accused can be examined by the superior Court from the point of view of correctness or legality, but not from the point of view of propriety. But propriety has got a significance with reference to the sentences. A sentence may be correct and legal in the sense that it does not exceed the sentence prescribed by the Penal Code. Nevertheless the superior Court may find that the sentence is too harsh or severe and say that the proper sentence is something less severe than that what has been awarded by the inferior Court. The use of the words ' correctness' and 'propriety' in juxta-position to our mind indicates that the two words do not cover the same ground.
13. What is the import of the expression 'improper' in its context in Section 100(1)(c), which obviously is different from that, for example of Section 64-A of the Motor Vehicles Act and Section 435, Criminal Procedure Code Section 100(1)(c) of the Act refers only to an improper rejection just as Section 100(1)(d)(i) refers to an improper acceptance of a nomination by the Returning Officer. Section 100(1)(d)(iii) refers to improper reception, refusal or rejection of any vote by the Returning Officer. The propriety or impropriety to be considered is that of the decision of the Returning Officer. Section 36(2) requires the Returning Officer to decide all objections after a summary enquiry, if any. The final rejection, if the Returning Officer orders it, has to be based on an enquiry and the decisions taken on the basis of that enquiry. Whether the objections are those formulated by any of those who could be present at the time of the scrutiny under the provisions of Section 36(1) or whether they are objections taken by the Returning Officer suo motu, Section 35(2) requires those objections to be decided. Section 36(6) requires that an order of rejection should be supported by a brief statement of the reasons on which the rejection was based. It is at least a quasi-judicial determination of a statutory legal right of a person to stand as candidate for election. In Shri Virindar Kumar Satyawadi v. The State of Punjab : 1956CriLJ326 the Supreme Court said the
function of the Returning Officer acting under Section 36 is judicial in character, but he is not to act judicially in discharging it.
14. In such a context it seems to us that the word 'improper' has to be construed as 'wrong, inaccurate or incorrect'. If under Section 100(1)(c) the Tribunal is called upon to decide whether the rejection of a nomination by the Returning Officer was improper, the Tribunal has to decide whether the decision of the Returning Officer was incorrect. That decision has to be reached by the Tribunal after a trial, as against a summary enquiry which alone is permissible to a Returning Officer under Section 36(2). We come back to the question, what is the scope of that trial in which the correctness of the decision of the Returning Officer rejecting a nomination could be canvassed.
15. Our attention has not been drawn to any reported case directly in point where the Supreme Court expressly decided such a question.
Section 100(1)(c) as it stood before it was amended by Act XXVII of 1956 ran:
If the Tribunal is of opinion that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.
16. In Vashist Narain Sharma v. Dev Chandra and Ors. : 1SCR509 one of the questions that arose was whether the nomination of Dudh Nath, who was eventually defeated at the poll, was improperly accepted by the Returning Officer. At the time of the scrutiny of nominations, objection was taken to the validity of the nomination of Dudh Nath. No proof was given in support of the objection. The Returning Officer overruled the objection and held that the nomination of Dudh Nath was valid. After setting out the contentions which ran:
Mr. Daphtary on behalf of the appellant has argued before us with reference to the provisions of Sections 33 and 36 that this is not a case of improper acceptance of the nomination paper, because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated, the Returning Officer had no option but to accept it. There was, as he says, nothing improper in the action of the Returning Officer. On the contrary, it may, according to him, be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer, inasmuch as the nomination paper contained an inherent defeat which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was not then forthcoming. Such a case, it is argued, is not covered by Section 100(1)(c) but by Section 100(2)(c) in which case the election of the returned candidate is alone to be declared void, whereas in the former case the election is wholly void.
Ghulam Hasan, J., observed :'
We do not propose to express any opinion upon this aspect of the matter, as in our view the appeal can be disposed of on the second question.
17. No reference was made in Vashist Narain Sharma v. Dev Chandra and Ors. : 1SCR509 to the decision in Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. : 1SCR267 decided by another Bench of the Supreme Court the previous day. It was established at the trial of the election petition in Durga Shankar Metha's case : 1SCR267 that Vasant Rao, one of the returned cnadidates, was below 25 years of age and was therefore not qualified to stand as a candidate. Such an objection however had not been taken at the time of the scrutiny of nominations, and there was therefore no occasion for the Returning Officer to decide under Section 36(2) whether Vasant Rao's nomination was liable to be rejected. Mukerjea, J., delivering the judgment of the Bench held at page 277:
But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination.
18. It was in continuation of that that the learned Judge observed at pages 277-78:
As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive ; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which Section 100(1)(c) of the Act contemplates. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.
19. We do not understand this to be a conclusive pronouncement on the question what is the scope of the trial before a Tribunal in a case where on an objection taken the Returning Officer gave a decision under Section 36(2) of the Act rejecting a nomination. We are fortified in this conclusion by the Supreme Court expressly leaving open the question in the later decision Vashist Narain Sharma v. Dev Chandra and Ors. : 1SCR509 , what could be proved at the trial as constituting an improper acceptance of the nomination of a candidate other than a returned candidate.
20. The propriety of the reception of a set of votes had to be considered by the-Supreme Court in Hart Vishnu Kamath v. Syed Ahmed Ishaque and Ors. : 1SCR1104 . That question is now covered by Section 100(1)(d)(iii) of the Act as it has been amended. The contention in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. : 1SCR1104 , based on? the analogous provision, Section 100(2)(c) as it stood before the Act was amended, which the Supreme Court had to consider, was:
Mr. Chatterjee....contends that the enquiry under that section must be limited to the matters raised in the election petition, and that as there was no complaint about the breach-of Rule 23 in that petition, it was outside the scope of the enquiry.
21. The learned Judges observed:
It is unnecessary to consider whether it was open to the Tribunal to enquire into matters other than those set out in' the petition, when the returned candidate merely seeks to support the declaration.
22. They pointed out that in the case before them there was a recrimination petition presented under Section 97 of the Act. At page 1132 the learned Judge observed with reference to Rule 47 (4):
Under this provision, the Tribunal is constituted a Court of appeal against the decision of the' Returning Officer and as such its jurisdiction must be co-extensive with that of the Returning Officer and cannot extend further.
23. But the absence of such an express provision could make no difference to the principle that on such an issue as the improper acceptance or rejection of nomination the jurisdiction of the Tribunal is co-extensive with that of the Returning Officer, the difference made by the Act itself being that the enquiry open to the Returning Officer is summary in its scope, while the issue has to be decided by the Tribunal after a trial held as nearly as possible in accordance with the provisions of the Civil Procedure Code.
24. As pointed out by the Supreme Court in Durga Shankar Metha's Case : 1SCR267 , no question of the impropriety of a decision accepting a nomination can arise for consideration at the trial of an election petition, when no objection was taken at all at the proper stage, the scrutiny of nominations, and the Returning Officer had no occasion to decide that the objection was not well founded. Whether an objection is taken either suo motu by the Returning Officer, or by anyone entitled to prefer an objection at the appropriate stage of the scrutiny of nomination, the Returning Officer has to give a decision. We shall confine ourselves to the question that arises in the proceedings before us, where objections were taken to a nomination, whether it was a case of an improper rejection of a nomination. Other considerations may possibly arise in other circumstances. If the nomination is rejected by the Returning Officer, it should be on the ground that the objection is well founded in the opinion of the Returning Officer. It is the correctness of that decision that is open to review by the Tribunal at the trial of an election petition presented for that purpose. What the Returning Officer and at the later stage, the Tribunal, have to determine is the same question : Are the objections to the nomination well founded, that is, are those objections true and valid What is the scope of the evidence permissible to sustain or to rebut those objections is however a different question. Since only a summary enquiry is contemplated before the Returning Officer gives his decision, and the time at the disposal of the parties is so short, it may well be that neither the objector nor the candidate, the validity of whose nomination has been challenged, nor both, placed all the material available to them before the Returning Officer in that summary enquiry, to sustain or rebut the objection. A trial affords a full opportunity to both the parties to marshal all their evidence. Though in form what the Tribunal has to decide is whether the Returning Officer's rejection was improper, the real question the Tribunal has to decide is the same as what the Returning Officer had to decide : Did the objector establish the truth and the validity of his objections We are not to be taken as having even considered the question of burden of proof at either the stage of summary enquiry or the trial. We are only focussing attention on the question for determination by the Tribunal. The correctness of the decision of the Returning Officer, which the Tribunal has to consider, is with reference to the objections the Returning Officer had to consider, but on the fuller material which a trial enables the parties to place before the Tribunal. . It is the objection formulated for decision at the appropriate stage of scrutiny of nominations that limits the scope of the investigation both in the summary enquiry before the Returning Officer and at the trial before the Tribunal. At both stages the parties should be confined to the objections, which alone the candidate, the validity of whose nomination was challenged, had or could have had an opportunity to answer before the Returning Officer. In other words, it is not open to the respondent to an election petition, whether or not he was the person who had formulated the objection with reference to which the Returning Officer gave his decision, to establish that the candidate whose nomination was rejected could have been disqualified on grounds other than those which the Returning Officer was called on to consider and decide.
25. As the learned Advocate-General pointed out, where the Legislature intended to enlarge the scope Of an investigation into the question, whether a candidate was in fact disqualified, express provision was made as in Section 100(1)(a) of the Act. That is confined to the returned candidate. It has nothing to do with any decision of a Returning Officer. It has nothing even to do with the stage of the scrutiny of nominations. The relevant date for purpose of Section 100(1)(a) is the date of election, which is fixed with precision by Section 67-A of the Act.
26. Mr. Mohankumaramangalam, the learned Counsel for the first respondent, urged that if in fact it could be proved at the trial before the Tribunal that the fourth respondent was disqualified at the stage of nomination even if it be on grounds other than the objections on the basis of which the Returning Officer rejected the nomination of the fourth respondent, factually the decision of the Returning Officer could be proved to be correct and therefore not improper. A further submission was, that to shut out such evidence at the trial would be to penalise the returned candidate who was himself, as in the present case, in no way responsible for the decision of the Returning Officer, which was challenged subsequently as improper. The learned Counsel pleaded that it should be open to the first respondent, as the returned candidate, to prove at the trial that the rejection of the fourth respondent's nomination was correct, though on grounds other than those advanced by the second respondent at the stage of the scrutiny of nominations. The plea may sound plausible, but we are unable to accept it. Though it may not be the test to apply, suppose in this case, instead of the second respondent objecting to the nomination of the fourth respondent, it was the first respondent, the returned candidate himself who had preferred the objections which were upheld by the Returning Officer. In such circumstances could the returned candidate claim that it was open to him to support the decision of the Returning Officer on grounds other than those which he himself had invited the Returning Officer to consider and decide If we start with this position, that where no objection was taken and no decision was given by the Returning Officer, there could be no occasion for the Tribunal to consider any impropriety of a decision, it should follow that, when objection was taken before the Returning Officer and decided by him there could be no question of an improper ' decision ' on another objection possible at that stage but not put forward at all for the Returning Officer to consider. The question of propriety or impropriety of the decision of the Returning Officer has to be determined only with reference to the objection which the Returning Officer purported to consider and decide Who preferred those objections at that stage would be immaterial in the ultimate determination by the Tribunal of the issue, whether those objections which were considered and decided by the Returning Officer were well-founded.
27. Mr. Kumaramangalam referred to Bhikaji Keshao v. Brijlal Nandlal A.I.R. 1955 S.C. 611 . At page 619, Jagannadha Das, J., observed:
Having regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates, it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal. It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition.
28. That however dealt with a case which would now fall directly under Section 100(1)(a) of the Act, confined to the returned candidate. What we have now to consider is whether fresh grounds of disqualification could be urged against a candidate whose nomination was rejected.
29. Mr. Kumaramangalam placed considerable reliance, even as the Tribunal did, on Tej Singh v. Election Tribunal, Jaipur . Dealing with the plea that objections advanced by the returned candidate before the Tribunal other than those put forward before the Returning Officer should not be investigated at the trial, the learned Judges referred to the provisions of Section 36(2) of the Act and proceeded at page 206:
The nomination paper is thus liable to be rejected on any one or more of the five grounds, and this can be done either on objection or suo motu by the Returning Officer. It is conceivable that there may exist more than one defect, but the Returning Officer may consider the objection to be justified on only one of the objections and may refuse the nomination on that ground alone. But the candidate who wishes to call in question the election which may be held subsequently on the ground that his nomination paper was improperly rejected has to aver his due nomination as a candidate, and that allegation involves an averment that the nomination paper did not suffer from any of the defects mentioned in Clauses (c) to (e) of Sub-section (2) of Section 36. It is only when such candidate can prove that he had been duly nominated that the Election Tribunal can come to the finding that his nomination paper had been improperly rejected. In our opinion, therefore, the respondent to an election petition is entitled to raise a plea that the nomination paper, though rejected on one ground by the Returning Officer, was defective on one or more of the other grounds mentioned in Section 36(2), and such plea, if taken, has to be enquired into by the Election Tribunal.
30. With all respect to the learned Judges, we are not able to agree with the line of reasoning or with the final conclusion. What an election petitioner has to aver with reference to Section 100(1)(c) is primarily that the rejection of the nomination of the candidate in question was improper. That rejection was based on the decision of the Returning Officer. We come back to the question : What was it the Returning Officer decided That decision was with reference to the objections put forward before' him which he had to consider. In alleging the impropriety of the decision with reference to those objections, the election petitioner has necessarily to aver that those objections were untenable, that is, they were not true or valid. We do not consider that Section 100(1)(c) imposes a further liability on the election petitioner to aver that the candidate whose nomination was rejected was . in no way disqualified. The election petitioner is not called upon to meet in advance possible objections, objections not taken at the appropriate stage before the Returning Officer. Section 83(1)(a) requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies. The primary material fact is the decision of the Returning Officer, and the primary plea is that that decision was improper. We have to repeat that the decision has necessarily to be correlated to the objections taken before the Returning Officer on the basis of which he gave his decision.
31. In our opinion the wider scope of Section 100(1)(c) for which Mr. Kumaramangalam pleaded is not permissible.
32. We are clearly of opinion that the enquiry before the Tribunal must be restricted to the objections which the Returning Officer had to consider and decide, but not necessarily to the material placed before the Returning Officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material even if that material be other than that placed before the Returning Officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the Returning Officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not for instance, that of a returned candidate.
33. In view of what we have recorded above, it should be clear that the dismissal of I.A. No. 5 of 1957, which was presented by the petitioner to the Tribunal led to an assumption of jurisdiction which the Tribunal did not have.
34. The next contention of Mr. Kumaramangalam was that, since the issue of a writ under Article 226 of the Constitution was at the discretion of this Court, the discretion should be exercised against the petitioner, the error if any, committed by the Tribunal could be corrected, if necessary in the appeal for which Section 116-A of the Act provides. We have discussed this question in full in W.P. Nos. 611 and 668 of 1957; Muthia Chettiar v. Sa. Ganesan Since reported : (1958)1MLJ110 , and and we are of the opinion that writs should issue in these cases to prevent the exercise of a jurisdiction which the Tribunal, in our opinion, did not have at all.
35. The rule nisi issued in W.P. No. 675 of 1957 will be confirmed and a writ of certiorari will issue to set aside the order of the Tribunal in I.A. No. 5 of 1957.
36. It was a writ of prohibition or any other appropriate writ that was asked for in W.P. No. 676 of 1957. In our opinion the appropriate writ would be one of mandamus, directing the Tribunal to dispose of I.A. No. 5 of 1957 afresh in accordance with the law on the subject which we have endeavoured to explain in this judgment.
37. There will be no order as to costs in either of these petitions.