Skip to content


Veera Gounder and ors. Vs. V. Ramaswamy Gounder and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Reported in(1968)1MLJ146
AppellantVeera Gounder and ors.
RespondentV. Ramaswamy Gounder and anr.
Cases ReferredSatyanarayana v. Mallikarjun
Excerpt:
- .....they secure d less number of votes. the number of votes secured by the candidates is as follows:karuppan chetti .. 127veera gounder .. 119p. kandaswami .. 119ramaswami gounder .. 78govindan .. 71annamalai .. 702. ramaswami gounder filed an election petition before the principal-district munsif, salem, who was the election court constituted by the rules framed under the madras panchayat act (xxxv of 1958) by notification no. 10. the election was challenged on the ground that karuppan chetti's name had been, deleted in 1963 itself from the electoral roll and therefore, under section 22 of the act, he was not qualified to stand for election at all and his nomination paper should have been rejected. it was alleged that the returning officer had before him only the original list of voters.....
Judgment:

K.S. Venkataraman, J.

1. This petition has been filed under Article 227 of the Constitution by three persons, Veera Gounder, Kandaswami and Karuppan Chetti. They were elected as members of Veera Gounder, Panchayat, Ward No. 1, in the election held on 2nd February, 1965. Three other persons, namely, Ramaswami Gounder, Annamalai and Govindan, also contested the election. But they secure d less number of votes. The number of votes secured by the candidates is as follows:

Karuppan Chetti .. 127

Veera Gounder .. 119

P. Kandaswami .. 119

Ramaswami Gounder .. 78

Govindan .. 71

Annamalai .. 70

2. Ramaswami Gounder filed an election petition before the Principal-District Munsif, Salem, who was the Election Court constituted by the rules framed under the Madras Panchayat Act (XXXV of 1958) by Notification No. 10. The election was challenged on the ground that Karuppan Chetti's name had been, deleted in 1963 itself from the electoral roll and therefore, under Section 22 of the Act, he was not qualified to stand for election at all and his nomination paper should have been rejected. It was alleged that the Returning Officer had before him only the original list of voters in which the name of Karuppan Chetti found place, but did not have with him the list of electors published in 1963, according to which the name of Karuppan Chetti was ordered to be deleted by the Revenue Divisional Officer. It was alleged that the result of the election was materially affected by the improper reception of the nomination paper and by non-compliance with Section 22 of the Act. It is here necessary to quote Rule 11(c) so far as, is relevant:

If in the opinion of the Election Court (c) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by the non-compliance with the provisions of the Act and the rules made thereunder, the election of such returned candidate shall be void.

3. The petitioner wanted that the election of the three returned candidates should be declared void on the above ground; in addition he wanted a declaration that he must be deemed to have been elected. Rule 12 is on these lines.

12. (1) At the conclusion of the enquiry the Election Court shall declare whether the election of the returned candidate or candidates is void under Rule 11.

(2) If the Election Court declares the election of the returned candidate or candidates void, it shall further pass an order either:

(a) declaring that any other party to the petition who has under these rules claimed the seat has been duly elected, or (b) ordering a fresh election.

(3) The order of the Election Court under Sub-rule (1) and (2) shall be final.

4. In the election petition, the three returned candidates figured as respondents 1, 2 and 3 in the following order. Veera Gounder, Kandaswami and Karuppan Chetti. The other two, Annamalai and Govindan figured as respondents 4 and 5. The election petition was contested by the returned candidates. The Election Court held that the Karuppan Chetti's name had been ordered to be deleted in 1963 by the Revenue Divisional Officer, that he was therefore not qualified under Section 22 of the Act to stand for the election, that the Returning Officer did not have before him the list of deletions and that the acceptance of the nomination of Karuppan Chetti was improper, though no objection was taken before him at the time of the scrutiny of the nominations. The Election Court further held that the result of the election of all the three returned candidates had been materially affected by the improper reception of the nomination paper of Karuppan Chetti. His point was that it could not be predicated that the wasted votes, namely 127, cast in favour of Karuppan Chetti, would have been cast in favour of one or the other of the contesting candidates and therefore the only course open to him' was to declare the whole election void. On the same reasoning, he declined to declare the election petitioner, Ramaswami Gounder, elected.

5. This petition has been filed by the three returned candidates whose election has 'been set aside Sri R. Balasubramaniam, learned Counsel for the petitioners before me does not challenge the finding of the Election Court that Karuppan Chetti's name had been deleted in 1963 and that he was not therefore qualified. He concedes therefore that he could not seriously challenge the finding of the Election Court setting aside the election of Karuppan Chetti. But he submits that there was no justification for setting aside the election of the other two returned candidates. His argument is that under Rule 11(c) quoted above, it was necessary for the election petitioner to show that the result of the election of the other two returned candidates Veeia Gounder and P. Kandaswami, was also materially affected by the improper reception of the nomination paper of K. Karuppan Chettiar or by non-compliance with Section 22 if the Act relating to K. Karuppan Chetti. He submits that in order to show that the result of the election was materially affected regarding Veera Gounder and Kandaswami, the election petitioner should have shown that the 127 votes, which were wasted on Karuppan Chetti would, if he had not contested, been so distributed to the other contesting candidates as to bring about the defeat of Veera Gounder and Kandaswami. The learned Counsel urges that the election petitioner made no such attempt and that consequently, he could not succeed in setting aside, the election of Veera Gounder and Kandaswami.

6. In support of his contention, learned Counsel relies on the decision of the Supreme Court in Vashist Narain Sharma v. Dev Chandra : [1955]1SCR509 , Seewalal v. P.K. Choudry (1960) 21 E.L.R. 137. In Vashist Narain Sharma v. Dev Chandra : [1955]1SCR509 , there was only-one member who had to be elected. The votes polled by the five contesting candidates were as follows:

1. Vashist Narain Sharma .. 12,868

2. Vereshwar Nath Rai .. 10,996

3. Mahadeo .. 3,950

4. Dudh Nath .. 1,983

5. Gulabchand .. 1,768

7. Three electors filed an election petition to declare the election of Vashist Narain. Sharma void on the ground that the nomination of Dudh Nath (No. 4) was improperly accepted by the election officer. It was found that his nomination has been improperly accepted because he filed his nomination under a false name. But it was held that it was not proved by the election petitioners that the result of the election had been materially affected by the improper acceptance of the nomination. Their Lordships envisaged three possible situations:

(1) Where the candidate, whose nomination was improperly accepted has secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes; (2) where the person referred to above secured more votes (than the said difference); and (3) where the person whose nomination had been improperly accepted was the returned candidate himself. Their Lordships point out that in the first case, the result is not affected at all because, even if the votes wasted on the candidate whose nomination was improperly accepted, are entirely added to the second highest candidate, it would make no difference to the result, and the returned candidate would retain the seat. Again, in the third case, there can be no doubt that the result has been materially affected by the improper acceptance of the nomination of the returned candidate. So far as the case is concerned, their Lordships observe thus:

But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted Votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.

8. In Seewalal v. P.K. Chowdry and Ors. (1960) 21 E.L.R. 137, there were five contesting candidates.. The votes secured by them at the election were as follows:

P.K. Chowdry .. 5,308

Seewalal .. 4,074

Amarchand .. 3,908

Nilapchand .. 1,500

Narain Singh .. 719

9. P.K. Chowdry was declared elected, Seewalal, next to him, filed an election petition alleging that Amarehand was disqualified to contest the, election for the reason that he was a Government contractor and that the result of the election had been materially affected by the improper acceptance of Amarchand's nomination paper. The election petition was dismissed. Seewalal filed on appeal which came up before the Madhya Pradesh High Court, The learned Judges, following the Supreme Court decision in Vashist Narain Sharma v. Dev Chandra : [1955]1SCR509 , observed that the burden lay on Seewalal to establish that the result of the election had been materially affected by the improper acceptance of Amarchand's nomination paper in other words, it was incumbent on him to show that more than 1,234 votes (which was the difference between him and the votes of P.K. Chowdry) would have gone to Seewalal out of the 3,908 votes polled by Amarchand. The learned Judges examined the evidence tendered by the Seewalal on this aspect and held that the evidence was not sufficient to discharge the burden.

10. Two other cases where the test propounded by the Supreme Court was applied may be mentioned, namely, Devasharan Singh v. Sheo Mahadev Prasad and Ors. (1954) 10 E.L.R. 461, and Ratan Shukla v. Dr. Brinjendra Swarup and Ors. (1955) 11 E.L.R. 332.

11. It seems to me that the contention of the learned Counsel must be accepted so far as Veer a Gounder and Kandaswami are concerned, the wording of Rule 11(c) of the Election rules framed under the Madras Panchayats Act (XXXV of 1958) is such that the principles laid down in the above decisions will clearly apply and it is necessary for the election petitioner to prove that the improper reception of the nomination of Karuppan Chetti and his want of qualification under Section 22 of the Act materially affected the election of the other two returned candidates Veera Govinder and Kandaswami. The rule contemplates that the petitioner should have the election of each of the returned candidates to be void. Emphasis may be made on the use of the words 'the return of such returned candidates shall be void.' Merely because the election of Karuppan Chetti has to be set aside, it would not automatically follow that the election of the other two has to be set aside, unless it is proved that their election has been materially affected by the improper reception of the nomination of Karuppan Chetti and his want of qualification under Section 22 of the Act. Here it is not contended by Sri N.C. Raghavacharij for the respondents, that any attempt was made by the election petitioner to show that the result of the improper reception of the nomination of Karuppan Chetti and his want of qualification has materially affected the result regarding Veera Gounder and Kandaswami. The Election Court has in setting aside, their election merely said

It cannot be said at this stage that if the third respondent was not allowed to contest the election, how and in what proportion the voters polled in his favour would have been divided among the other contesting candidates. Therefore, in my opinion because of the improper acceptance of the nomination of the third respondent for the election of Ward No. 1 of Veera Gounder Panchayat, the result of the election had been materially affected.

But, it is precisely this reasoning which has been condemned by their Lordships of the Supreme Court, because they say;

It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.

12. Mr. N.C. Raghavachari, learned Counsel for the respondents, however, relies on two other decisions of the Supreme Court to justify the order of the Election Court. The first is Durga Shankar v. Thakur Raghuraj Singh : [1955]1SCR267 , and the other is Surendra Math Khosla and Anr. v. Dalip Singh and Ors. (1957) S.C.J. 162 : (1956) 12 E.L.R. 370. It must be observed at the outest that the Act which their Lordships had to apply in these cases was the Representation of the People Act, 1951, as it stood before its amendment by Act XXVII of 1956. Section 100 as it originally stood, so far as material ran thus:

Section 100(1) : If the Tribunal is of opinion - (c) 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.

Sub-section (2) stated:

Subject to the provisions of the Sub-section 3, if the Tribunal is of opinion - (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non-compliance with the provisions of the Constitution or of this Act or of any rules or order made under this Act or any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candidate to be void.

13. Thus in the old Act, Section 100(1) contemplated contingencies where the Tribunal had to declare the election to be wholly void, and Section 100(2) contemplated contingencies where the Tribunal had to declare the election of the returned candidates alone to be void. As a result of the amendment by the Act of 1955 this distinction was swept away and Section 100(1)(c) and (d)(i) to (iv) read thus:

Section 100(1). - Subject to the provisions of Sub-section (2) if the Tribunal is of opinion (c) that any nomination has been improperly rejected or;

(d) that the result of the election in so far as it concerns a returned candidate, has been materially affected:

(e) etc: - (i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

The Tribunal shall declare the election of the returned candidate to be void.

14. Now, there is no provision for declaring the election to be wholly void where1 there are two or more returned candidates. In Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. : [1955]1SCR267 it was a double member constituency one a general constituency and the other reserved for the scheduled tribes. The appellant Durga Shankar was declared elected for the general seat, having secured 18,267 votes. Vasant Rao (respondent 2) was declared elected for the reserved seat having secured 14,442 votes. At the time of the nomination, he was under 25 years and was consequently not qualified to stand for the election under Article 173 of the Constitution. But this objection was not taken before the Returning Officer. It was taken at the time of the election petition arid was found to be established. The election of Vasant Rao was therefore clearly void. But the further question arose whether the election of Durga Shankar had to be declared void. The decision on that turned on, the question whether it was the provisions of Section 100(1)(c) of the old Act applied or Section 100(2)(c). If Section 100(1)(c) applied, the Tribunal had to declare the election to be wholly void, which meant that the: appellant's election also had to to be declared void. But if it was Section 100(2)(c) which applied, that would vitiate only the election of Vasant Rao and not of the appellant. On behalf of the appellant it was contended that because no objection was taken before the Returning Officer that Vasant Rao was below 25 years of age and his name actually found place in the Voter List, the Returning Officer was justified in accepting his nomination and it could not be said to be a case of improper acceptance of Vasant Rao's nomination and that the case would only be non-compliance with the provisions of the Constitution Their Lordships accepted that submission and held that consequently Section 100(1)(c) did not apply and Section 100(2)(c) applied. In that view, the election of the appellant was upheld. Mr. N.C. Raghavachari presses this decision into his service in this case on the ground that here also there was only want of qualification of Karuppan Chetti under Section 22 of the Act and it was not a case of improper acceptance of his nomination. But this case is of no assistance to him, because the wording of Rule 11(c) of the rules under the Madras Panchayat Act already quoted. Rule 11(c) makes it incumbent on the election petitioner to prove that the result of the election has been materially affected not merely in the case of improper reception of the nomination paper but also in the case of non-compliance with the provisions of the Act.

15. In Surendranath Khosla and Anr. v. Dalip Singh and Ors. : [1957]1SCR179 it was a double member constituency, one was a general seat and the other was a reserved seat. The first appellant, Surendranath Khosla, secured the highest number of votes, 13,853 in the general seat and the second appellant Pritam Singh secured the highest number of votes in the reserved seat 13,663. One Buta Singh had also filed his nomination for the general seat, but it had been improperly rejected. Hence, the Tribunal acting under the provisions of the then Section 100(c) of the Act, declared the election to be wholly void. It was contended before their Lordships that the election of the second respondent-appellant should not have been set aside, but their Lordships repelled this contention observing that the Tribunal had to declare the ejection to be wholly void. The election in that case was in respect of a double member constituency and was an integral one, and if it had to be declared void, the Tribunal was justified in setting aside the election as a whole. As I have already pointed out, this conclusion was based on the language of Section 100(1)(c) of the Representation of the People Act as it then stood. Now even the Representation of the People Act has been amended and similarly Rule 11(C) of the rules under the Madras Panchayats Act contains no provision for declaring the election to be wholly void. Therefore, the above decision cannot apply.

16. Sri N.C. Raghavachari, however, seeks to justify the act of the Election Court under Rule 12(b) of the rules, namely, that it could order fresh election. But this rule has to be read along with Rule 11, and if, on a true construction of Rule 11, the election of Veera Gounder and Kandaswami is not liable to be set aside for want of proof of the result of the election having been materially affected in their case Rule 12 cannot be invoked by the election petitioner. Rule 12 can only mean that the Election Court could have ordered fresh elections only in the case of Karuppan Chetti.

17. Mr. N.C. Raghavachari then contended that the jurisdiction of this Court under Article 227 of the Constitution could not be invoked to correct the error which might have been committed by the Election Court in this case, and in support of this contention, he relied on a decision of the Supreme Court in Satyanarayana v. Mallikarjun : [1960]1SCR890 . That was a case where their Lordships held that the error of law, even if there was any, was not apparent on the face of the record and therefore, the High Court was not justified in exercising their power under Section 115, Civil Procedure Code or under Article 227. Here however, the error of the Tribunal (Election Court) is apparent on the face of the record.

18. Sri N.C. Raghavachari then urged that his client, the election petitioner, should be declared elected on the place of Karuppan Chetti. But this cannot be done, because in the first place, he has not filed any petition challenging the portion of the order of the Election Court declining to declare him elected and secondly, he has not shown that the 127 votes wasted on Karuppan Chetti would have come to him to an extent to make him successful as between him and the other two respondents, Annamalai and Govidaswami.

19. In the result, I confirm the order of the Election Court setting aside the election, of Karuppan Chetti, but set aside the order of the Election Court in respect of Veera Gounder and Kandaswami. Their election is upheld. Fresh elections will take place in respect of the vacancy caused by the setting aside of the election of Karuppan Chetti. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //