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Mohamed HossaIn Vs. Md. Raffique and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1941Cal130
AppellantMohamed Hossain
RespondentMd. Raffique and ors.
Excerpt:
- .....that only one election agent shall be appointed he is justified in rejecting the nomination papers. rule 14, sub-rule (3) is not applicable if each of the nomination papers was valid, and there was no irregularity as contemplated by that sub-rule. but the rejection was for failure to comply with the act. in support of this view reference has been made to an earlier ease which is to be found in vol. i of hammond's report of indian election cases, 1920. the facts in that case are not very clear but apparently each of the respondents filed documents purporting to appoint in one case 26 persons and in the other 18 persons as election agents. the rule there was similar to the rule which is now under contemplation and it was pointed out that unless the view which was taken by the.....
Judgment:
ORDER

McNair, J.

1. The petitioner in this application was a candidate from the Mahomedan constituency of Colootolla No. 8 for which there are two seats. The petitioner's nomination was rejected by the returning officer and three other candidates who are made parties to this petition withdrew their candidature, and in the result Mohamed Raffique and Dr. Sayed Zaffar Ahmad were declared elected and their names were published in the Calcutta Gazette. The petitioner contends that the result of the election has been materially affected by the improper rejection of his nomination papers and/or by reason of irregularity in respect of the nomination papers and/or by non-compliance with the provisions of the Act. These submissions which appear in his petition are based on Sections 46 and 47, Calcutta Municipal Act, as amended. Two questions arise on this petition : first, as to the validity of the nomination papers which were rejected and secondly, whether the returning officer's decision can be questioned Tinder Sections 46 and 47, Municipal Act. On 23rd February 1940 the petitioner delivered to the returning officer two nomination papers each accompanied by a declaration in writing stating that the petitioner had appointed Mr. Fazal Ahmed as his election agent. On 26th February 1940 the petitioner delivered to the returning officer six more nomination papers each accompanied by a declaration in which he appointed himself as his election agent and on 27th February he delivered five more nomination papers again in each appointing himself by a declaration as his election agent.

2. There is no question that the nomination papers were within time and it is also clear that in the first two nomination papers Mr. Fazal Ahmad was appointed the petitioner's election agent and in the subsequent nomination papers the petitioner appointed himself. It is noteworthy that in the subsequent nomination papers in which the petitioner appointed himself as the nomination agent he did not attempt to revoke the previous nomination of Mr. Fazal Ahmad as his election agent. There was a scrutiny on 4th March by the returning officer and he then rejected all the nomination papers. But on one of the nomination papers containing the declaration that Mr. Fazal Ahmad is the petitioner's election agent the endorsement of the returning officer is as follows: 'Rejected as the candidate has appointed himself as his election agent in serial Nos. 11, 12, 13 and some other nomination papers.' Similarly, in the other nomination papers, an endorsement has been made giving as the reason for the rejection that another election agent had been nominated in other papers.

3. With regard to the present election the Provincial Government under Section 44, Calcutta Municipal Act, is empowered by order to authorize any matter or thing to be done which appears to them necessary for the proper preparation or publication of the first electoral rolls or holding of the elections. That order was issued by the Provincial Government and published in the Calcutta Gazette on 4th August 1939. The order substitutes new rules for the rules which previously existed and were issued under Section 30, Municipal Act, for the conduct of elections. During the argument the provisions of this order have been referred to as rules and I shall so refer to them in this judgment. Turning first to the sections of the Act, Section 27, Sub-section (2) provides that on or before the date on which a candidate is nominated the candidate shall make in writing and sign a declaration appointing either himself or some other person who is not disqualified to be his election agent. Section 3, Sub-section (29) of the Act defines election agent as the person appointed under Section 27, Sub-section (2) by a candidate as his agent for an election. Section 33 provides that the appointment of an election agent whether the election agent appointed be the candidate himself or not may only be revoked in writing signed by the candidate and lodged with the officer receiving nominations and shall operate from the date on which it is so lodged. From these sections it is clear that the Act contemplates a single election agent and indeed it has not been seriously argued that more than one election agent is permissible. Rule 4 of the Government order provides that nominations should be made by means of a nomination paper in Form I annexed to the order and Rule 5 provides that each candidate shall deliver to the returning officer a nomination paper completed in Form I. Rule 7 provides that every nomination paper delivered under para. 5 (to which I have referred as Rule 5) shall be accompanied by a declaration in writing subscribed by the candidate in the manner laid down in Sub-section (2) of Section 27 of the Act. Sub-section (2) of Section 27 refers to the declaration appointing an election agent. By Rule 10, the returning officer appoints an hour and place for the scrutiny of the nomination and Rule 14 which is largely relied on by the petitioner refers to the scrutiny of nominations by the returning officer. Rule 14, Sub-rule (1) provides that the returning officer shall examine nomination papers and decide all objections and empowers him to refuse any nomination on certain grounds. Rule 14 (1) (iii) contains the relevant ground, viz.,

that there has been any failure to comply with any of the provisions of the Act or of this order relating to the nomination of candidates,

and Rule 14, Sub-rule (3), so far as it is relevant, provides that nothing contained in clause (iii) of Rule 14 (b) shall be deemed to authorize the refusal of the nomination of any candidate on the ground of any irregularity in respect of the nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. Rule 15 provides that the returning officer shall endorse on each nomination paper his decision and if the nomination paper be rejected a brief statement of the reason for such rejection. Now, it is clear that the returning officer has rejected these nominations on the ground that they contained declarations of more than one election agent. I have already stated that it is not contested that only one election agent is permissible. But, on the construction of Rule 14, it is argued that the nomination papers or each of them were valid and that there was no justification for rejecting a valid nomination paper because on comparison with another nomination paper the returning officer discovered that more than one election agent had been appointed. It is argued that the returning officer is bound to take each nomination paper as a separate entity and come to his decision on that paper and it is further argued that this construction is supported by sub-rule (3) of Rule 14.

4. The returning officer was, in my opinion, justified in rejecting these nomination papers. It is admitted on behalf of the successful candidates that the nomination papers were in order. But it is argued and in my opinion rightly that the returning officer was bound to reject them under Rule 14 (1) (iii) because there has been a failure to comply with the provisions of the Act. Section 27 of the Act provides that in each nomination paper the candidate shall sign a declaration appointing either himself or some other person to be his election agent and on looking at the nomination papers the returning officer was made aware that the candidate had attempted to appoint not either himself or some other person but both himself and some other person. The returning officer had no power to decide which was the election agent whom the candidate wanted to appoint, but the candidate had power under Section 33 to revoke either of the appointments and had he done so no fault would apparently have been found with the nomination. But the nomination and the declaration are both contained in Form I and they are considered as a single unit and if the returning officer is of opinion that the candidate has in his nomination papers failed to comply with the provision of the Act which provides that only one election agent shall be appointed he is justified in rejecting the nomination papers. Rule 14, Sub-rule (3) is not applicable if each of the nomination papers was valid, and there was no irregularity as contemplated by that sub-rule. But the rejection was for failure to comply with the Act. In support of this view reference has been made to an earlier ease which is to be found in Vol. I of Hammond's Report of Indian Election Cases, 1920. The facts in that case are not very clear but apparently each of the respondents filed documents purporting to appoint in one case 26 persons and in the other 18 persons as election agents. The rule there was similar to the rule which is now under contemplation and it was pointed out that unless the view which was taken by the returning officer in this case prevailed it would be possible for the candidate to appoint a number of persons as his election agents when the Act contemplated only a single election agent.

5. The next point which arises is whether the decision of the returning officer can be questioned on this motion. I have already pointed out in a previous election petition the difficulty of construing Sections 46 and 47 of the Act, but I held there that Section 46 sets out the grounds on which an application may be made to the Court and Section 47 sets out the grounds on which the election of the returned candidate may be declared void, and unless the grounds set out in Section 47 are established the Court is not empowered to declare the election void. The relevant provision of S.47 is Sub-section (1) (c) on which reliance has been placed here but in my view none of the grounds set out in S.47(1) (c) have been contravened and for that reason the decision of the returning officer cannot in any event be questioned. The returning officer has been made a party to this application but in my view he is not a party who should have been joined. He is dismissed from the application and the petitioner must pay his costs. The application is dismissed with costs of all parties appearing.


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