N. T. VELUSWAMI THEVAR versus G. RAJA NAINAR AND OTHERS

ORDER

The appeal is allowed. The order of the Income Basheshar Nath Tax Commissioner, Delhi, dated January 29, 1958, is Th v ... 'd 11 d" d" .L' • I o"'"''ss1oner set as1 an procee mgs now pen mg 1or Imp e-of Income-tax mentation of the order of Union Government dated Delhi & Rajastl:an July 5, 1954, a.re quashed. The appellant shall get & Another costs of this appeal. Subba Rao ].

N. T. VELUSW AMI THEVAR

G. RAJA NAINAR AND OTHERS

(T. L. VENKATARAMA AIYAR, P. B. GAJENDRAGADKAR and A. K. SARKAR, JJ.)

Election Dispute-Rejection of Nomination paper by Returning Officer-Validity of rejection raised before Election petition-] urisdiction of Tribunal to entertain grounds of disqualification not raised before Returning Officer-" Improperly rejected", meaning of -Representation of the People Act, r95r (43 of r95r), ss. 7, 36(2), roo(r)(c), roo(r)(d)(i).

The nomination paper of the fourth respondent who was one of the candidates for election to the Legislative Assembly of the State, was rejected by the returning officer on the ground that as he was the Headmaster of Government-aided school he was disqualified under s. 7(d) and (e) of the Representation of the People Act, 1951, to be chosen for election. One of the voters of the constituency filed petition praying that the election of the appellant be declared void under s. rno(1)(c) of the Act on the ground that the rejection of the nomination paper of the fourth respondent was improper because the latter had ceased to be Headmaster at the time of his nomination and that, further, the institution was private one. The appellant, who was the second respondent in the petition, contended that the nomination paper of the fourth respondent was rightly rejected not only on the ground put forward before the returning officer but also for the reasons that he was interested in Government contracts and that he had agreed to serve as teacher under the District Board. The question was whether in an election petition. chal-Je11ging the validity of the rejection of nomination paper under s. rno(r)(c) of the Act, it was open to the parties to raise grounds

z958 of disqualification other than those put forward before the re· turning officer. It was contended for the respondent that the Veluswami Thevar proceedings before the Election Tribunal were really by way of v. appeal against the decision of the returning officer and that, Raja :blainar therefore, the scope of the enquiry in the election petition must be.co-extensive with that before the returning officer and must he limited to the grounds taken before him.

Held, that an election petition is an original proceeding instituted by the presentation of petition under s. Sr of the Representation of the People Act, 1951, and that the jurisdiction which Tribunal exercises in he.aring an election petition even when it raises question under s. roo(r)(c) of the Act is not in the nature of an appeal against the decision of the returning officer.

Held, further, that in considering whether nomination paper was improperly rejected under s. roo(r)(c), the real ques-tion for decision would be whether the candidate was duly quali-fied and was not subject to any disqualifications as provided in s. 36(2) of the Act. The Tribum,l would, consequently, be com· petent to entertain grounds of disqualification other than those put forward before the returning officer.

The expression" improperly rejected" ins. roo(r)(c) of the Act, explained.

Mengh Raj v. Bhimandas, (1952) 2 E. L. R. 301, Tej Singh v. Election Trib1mal, J aip11r, (1954) 9 E. L. R.· 193 and Dhanraj Deshlchara v. Vishwanath Y. Tamaskar, (1958) 15 E. L. R. 260, approved.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 231 and 232 of 1958.

Appeal by special leave from the judgment and order dated October 21, 1957, of the Madras High Court in Writ Petitions Nos. 675 and 676 of 1957.

R. Ganapathy Iyer, S. B. Adityan and G. Gopa/,a.

krishnan, for the appellant.

A. N. Sinha and P. K. Mukherjee, for respondent

1958. November 24. The Judgment of the Court was delivered by

Ven/1atarama VENKATAHAl\!A AIYAR, J.-These appeals raise Aiya. J. question of considerable importance as to the scope of an enquiry in an election petition wherein election is called in question under s. lOO(l)(c) of the Represen-tation· of the People Act, 1951 (43 of 1951), on the ground that nomination paper had been improperly rejected.

(1) S.C.R.

The facts are that during the general elections which were held in 1957 six persons including the . v 1 appellant, Veluswam1 Thevar, t secon respon ent Chellapandian, and the fourth respondent, Arunacha-lam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time of the scrutiny which was on February 1, 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was Government-aided school, and that he was therefore disqualified under s. 7, els. (d) and (e) of the Representation of the People Act., 1951 (herein-after referred to as the Act), as holding an office of pro-fit under the Government. In upholding this objection, the returning officer observed :

1 1 uswami --. Th v. Raja Nainar

cvar

Venkatarama Aiyar f.

"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 reply. In \iew of the objection 'vhich has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in concern in which the State Government has financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under Sections 7(d) and (e) of Act 43 of 1951. Accordingly his nomination is rejected."

The five nomination papers were accepted; two of the candidates subsequently withdrew from the elec-tion; the other three went to the polls, and ou March 10, 1957, the appellant who secured the largest number of votes was declared elected.

On April 18, 1957, Raja Nainar, the first respondent, who was not candidate but voter filed E. P. No. 109 of 1957 praying that the election of the appel-lant be declared void on the ground that the rejection of the nomination paper of Arunachalam was impro-per, because he had ceased to be Head i\Iaster at the time of his nomination, and that further the institu-tion was private one. The appellant filed a. written statement in which he pleaded that Arunachalam was

1958 not qualified to be chosen not merely on the ground . . put forward by Ohella.pandia.n before the returning V•l••w•mi [1 ]h""' officer but also on the grounds that he was interested Uaja v. .'Vaii"" as partner in con tracts for the execution of works for the Government., and that further he had entered Vn;kuta'""'" into an agreement with the District Boa.rd, Chittoor, .Hya, J. to serve as teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Na.inar then came out with the application, 1. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disqnali-iication raised in the statement of the appellant on the ground that the Tribunal had no jurisdictiou to en-quire into any ground of disqualification which was not t-aken before the returning officer, and that accord-ingly the new grounds put forward by the appellant should be struck out.

By its order dated August 17, 1957, the Tribunal

held that the question to be decided by it was whether there was v11-lid nomination paper, and that to decide that, it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nai-nar in two Vi'rit Petitions Nos. 675 and 676 of 1957, pteferred under Art. 226. Therein, he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed tb.at writ of certiorari be issued to quash the order in I. A. No. 5 of 1957 and writ of prohibition, to rest-rain the Tribunal from enquiring into t-he new grounds raised by the appellant.

These applications were heard by Bench of the

Madras High Court consisting of Rajagopalan and Rajagopala Ayyangar, JJ., who upheld the conten-tion of the petitioner, .and stated their conclusion in these terms :

""Ve are clearly of opinion that the enquiry

before the Tribunal must be restricted to the objec-tions which the returning officer had to consider and decide, but not necessarily to the material placed

before tlw returning officer at the stage of the sum-r95[8 ]mary enquiry. The Tribunal has jurisdiction ~o a.?ju- vcz,, .. ,.,;:;:: n .. w dicate upon the truth and validity of those objections v. on relevant material, eveu if that material be other Ra.ia Nai•m than that placed before the returning officer. The Tribunal has no jul'isdiction to investigate the truth l'enkataramd or validity of the objections which were not put for-Ai)·ar 1 ward before the returning otlieer, and which he had therefore no occasio11 to consider. Ouc:e a.gain we have to point Pllt that we a1·e discussing only the position of 1~ candidate whostl nomination wit~ rejected, and not, for instance, that nf ret.nrned cttrnlidate." furt.he1· objection vrns ahm takeu before the learned judges that. a.s t.ht'1 decision of U1e Election Tribunal was open to appeal under s. l l6A of the Act, the court should, in exet·cise of its di~cretion under Art. 226, decline to entertain writ petitions against interlocu-tory order8. But the learned judges held that as the Tribunal had no jurisdietion to entert1iin ground11 other t.han those which were pnt forw1Hrl before the returning officer, writs could issue under Art. 226. In the result, they quashed the order of the Electiou Tri-bunal in I. A. No. 5 of 1957, and issued ti \Hit of mandamus directing it to dispose of the application afresh iu accordance with law as laid down iu the judgment. It is against this judgment that the pn•-sent appeals h1n-e been p1·efcrred on lei.we g1·anted by this Court under Art. 136, and the point that arises for decision is whether in an election petition question-ing t.he pl'Upriety of the rejection of nomination paper under s. lOO(l)(c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forwtud before the returning otlieer.

rt will be 0011venient at this stage to refer to the prnvisions of the Act bearing on this question. Section :~2 of the Act proddes that,

"Any person may be nominated as candidate for election to till seat if he is qualified to be chosen t-o fill that seat under the proYisions of thP C'onstitu-t ion and t.J1i.s .-\ct.''

rnder s. 33(1), the candidate is to deliver to the ret.urning officer nomination pa.per completed in tht>

prescribed form and signed by the candidate and by an elector of the constituency as proposer. Section 33

Veluswami Thevar (4) enacts that,

"On the presentation of nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls :

R . ~:., . •;• ' ainer venkaioram• Aiyar J.

Provided that the returning officer shall permit any clerical or technical error in the nomination pape1· in regard to the said names or numbers to be corrected in order to bring them into conformity with the corres-ponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked."

Section 35 provides inter alia that the returning officer shall cause to be affixed in some conspicuous place in his office notice of the nomination containing des-criptions similar to those contained in the nomination paper both of the candidate and of the proposer. Section 36, omitting what is not material, is as follows:

36. (1) "On the date fixed for the scrutiny of nomi-

nations under section 30, the candidates, their electii:Jn agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facili-ties for examining the nomination papers of all candi-dates which have been delivered within the time and in the manner laid down in section 33.

(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 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:-

(l) S.C.R. SUPREME COURT REPORTS

Articles 84, 102, 173 and 191,

Pa.rt II of this Act,

V 1luswami T htvar v. Raja Naina1

(b) that there has been failure to comply with

any of the provisions of section 33 or section 34 ; or

Venkatarama Aiyar J.

(c} that the signature of the candidate or the pro-

poser on the nomination paper is not genuine .

• • • • •• o 0 0 0 • o 0 0 • t 0 0 0 • 0 0. o 0. 0 0 0 0 0 0 0 0 0 0 •• o o 0 0 0 t 0 o 0 0 o 0 o 0 I 0 0 0 0 I 0 0 0 0 o

(5) 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 inter-rupted or obstructed by riot or open violence or by causes beyond his control:

Provided that in case an objection is ruatle 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 brief statement of his reasons for such rejection."

Then, we have s. lOO(l)(c), the construction of which

is the main point for determination. It is as follows:

100. (1) "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 t.he returned candidate to be void."

Now, the whole controversy between the parties is

as to what the expression "improperly rejected" in s. lOO(l)(c) means. According to the appellant, when the nomination paper of candidate who is under no such disqualification as is mentioned in s. 36(2} has been rejected, that is improper rejection within s. IOO(l)(c). According to the respondent, when the

r958 nomination papel' of oandidate is rejeoted by the returning office I' on the ground that he is subject to V•l•su•ami n,.., specified disqualification, the rejection is improper, if Raja ·~'ofra. it is found t.hat that disqualification does not exist. If the former Yiew is correct, then the scope of an enquiry v,nk••••••"" before the Tribunal must extend to all matters which Aiyat J. 1He mentioned in s. 36(2), and if the latter, then it must be limited to determining whether the gronnd on which tho returning officer has reject..d the nomina-tion is "·ell-founded. Now, to decide what the expres-sion "improperly rejected" in s. lOO(l)(c) precisely imports, it is necessary to examine the relevant provi-sions of the Act bearing on the question and the setting of the above :1ection therein. Under s. 32 of t.he Act, any person may be nominated as candidate for election if he is duly qualified nuder the provisions of the Constitution and t.he Act. Sect.ion 36(2) autho-rises the returning officer to reject. any nomination paper on the ground that he is either not qualified, that is, 1111der s~. 3 to 7 of the Act, or is disqualified under the provisions referred to therein. lf there are no grounds for rejecting nominatkou paper under · s. 36(2), then it has to be accepted, and the name of the candidate is to be included in list. Vide s. 36(8). Then, we eome to s. lOO(lXc) aud ti. lOO(l)(d)(i), which provide remedy to persons who Me aggrieYed by an order improperly rejecting or improperly accepting any nominat.ion. lu the context, it appears to us that tho improper rejection or acceptance must have refer-ence to s. 36(2), and t.hat the rejection of nomiuation paper of candidate who is qualified to be chosen fur election and who does not tiU!fer from any of the dis-qualifications mentioned iu s. 36(2) would be improper within s. IOO(l)(c), and that, likewise, acceptance of nomination paper of candidate who is not qualified or who is disqualified will equally be improper under s. IOO(l)(d)(i). Section 32 confers substantfre right on a. candidate to be chosen to the legislature subject. onlv to the limitations enacted in Arts. 84, 102, 173 and 191 of the Constitution and ss. 3 to 7 of the Act, and ss. 36 and 100 provide the machinery for the exercise and enforcement of that right. It is sound

(1) S.C.lt. SUPREME COURT REPORTS

rule of construction that procedural enactments shoul<l

the be construed liberally · en~orcement o su stant1ve rig and in such manner as to rende!' • • ts echve. Read-ff' . v t 1 ings s. lOO(l)(c) in t.he context of the whole enactment, we think that an enquiry before t.he Tribunal must embrace all the matters as to qualification and disqua-lification mentioned in s. 36(2), and that it cannot bt, limited to the particular ground of disqualificatfon which was t.aken before the ret.urning officer.

7 heuar

t 1 us'(<•am1 7 v. Rt1ja .Vai11ar

v".ka1a1am~

Ai.v ... 1

It was contended for the respondent that the pro-ceedings before the Tribunal are really by way of appeal against th" decision of the returning officer, and that, therefore, tl1,. scope of the enquiry in the election petition must be co-extensive with that before the returning officer, and must be limited to the ground taken before him. It. was argued that decision could be said to be improper only with referenC'e to ground which was put forward and rl.ecided iu particular manner by the returning officer, and that therefore the expression " improperly rejected" would, in its true connotation, restrict the scope of the enquiry before the Tribunal to the ground taken before the returning officer. We are unable to agree with thiR contention. The jurisdiction which Tribunal exer-cises in hearing an election petition even when it raises question under s. lOO(l)(c) is not in the nature of an appeal against the decision of the returning officer. An election petition is an original proceeding institut-ed by the presentation of petition under s. 81 of the Act. The respondents have right to file written statements by way of reply t-0 it; issues have to be framed, and subject to the provisions of the Act, the provisions of the Code of Civil Procedure regulate the trial of the petition. All the parties have the right to adduce evidence, and that is of the essence of an origi-nal proceeding as contrasted with proceeding by way of appeal. That being the character of the proceed-ings, the rule applicable is that which governs the trial of all original proceedings ; that is, it is open to a. party to put forward all grounds in support of or negation of the claim, subject only to such limitations a.s may be found in the Act.

1958 It should be noted in this connection that if peti-tion to set aside an election on the ground of improper V•luswami Theoa. rejection of nomination paper is in the nature of an Raja ~ainar appeal against the decision of the ret.urning officer, t,hen fogically speaking, the decision of the Tribunal v .. kata1·an;a must be based only on the materials placed before the Aiy•r j. returning officer given with respect to the ground which was urged before him, and no fresh evidence could be admitted before the Tribunal except in ac-cordance with 0. 41, R. 27. The learned judges in the court below, however, observe that though the enquiry before the Tribunal is restricted to the particular ground put forward before the returning officer, it is not restricted to the material placed before him, and that all evidence bearing on that ground could be ad-duced before the Tribunal. This, in our view, is quite correct. The enquiry which returning officer has to make under s. 36 is summary in character. He may make " such summary enquiry, if any, as he thinks neces-sary "; he can act suo motu. Such being the nature of the enquiry, the right which is given to party under s. lOO(l)(c) ands. lOO(l)(d)(i) to challenge the propriety of an order of rejection or acceptance of nomination pa per would become illusory, if the Tribunal is to ba8e its decision only on the materials placed before the returning officer.

It was contended for the respondent that even with

reference to the ground taken before the returning officer, no evidence other than what was placed before him could be brought before the Tribunal, and he relied on the following observations of the learned judges in Oharanjit Lal v. Lehri Singh('):

"Whether nomination has been improperly rejected or not, has to be considered in relation to the state of evidence before the returning officer at the time of the scrutiny. The testimony of the returning officer shows that he rejected the nomination, because it did not appear to him that on the question of age the candidate Shri Pirthi was qualified to stand for election."

(1) A. I. R. 1958 Punj. 433, 435·

There, nomination pa.per had been rejected by the returning officer on the ground that the candidate <lid . . db Vel11swam1 not appear to possess t age qua li ['fi ]cation reqmre y v. Art. 173. The correctness ·of this order was challeng-ed in an election petition. Evidence was taken as to the age of the candidate in this petition, and eventual-ly it was held that the order of the returning officer Aiyar was right. In the order of rejection, the returning officer also stated :

r95B . Tb evar v. Raja Nainar Venkatarama Aiyar J.

" The nomination is rejected as the age is not

mentioned in the nomination paper. Neither the can-didate nor the proposer or any person duly authorised on his behalf is present to testify to his age."

Now, the argument before the High Court was that the failure to mention the age in the nomination paper was formal defect which should have been condoned under s. 36(4) of the Act. The learned judges held that the defect was not merely one of failure to men-tion the age but of want of the requisite qualification in age, and that that could not be cured under s. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of ground which w~s urged before the returning officer, as, in fact, evidence was taken before the Tribunal and finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar JJfehta v. Thakur Raghuraj Singh and others ([1]), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the return-ing officer.

In support of his contention that it is only the

ground that is urged before the returning officer that (1) [1955] 1 S.C.H .. 267.

can be raised before the Tribunal, Mr. Sinha, learned counsel for the respondent, relies on the provision in s. 36(6} th w t en nomma · t' 10n . pa per is reiec , · · t th returning officer should record his reasons therefor. The object of this provision, it is argued, is to enable the Tribunal to decide whether the order ofthereturn-ing officer is right or not, and by implication it confin. es the scope of the enquiry before the Tribunal to the ground put forward before the returning officer. This contention is, in our opinion, unsound. Now, when nomination paper is accepted, s. 36(6) does not re-quire that any reason should be recorded therefor. If the contention of the respondent is right, it would follow that acceptance of nomination paper can never be questioned. But that would be against s. lOO(l}(d}(i), and it must therefore be held that an acceptance can be questioned on all the grounds avail-able under s. 36(2). · Section IOO(l}(d}(i) deals with improper acceptance of nomination paper, and if the word "improper" in that provision has reference to the matters mentioned in s. 36(2), it must have the same connotation ins. lOO(l)(c} as well. The word "improper" which occurs in both s. lOO(l}(c) and s. lOO(l)(d}(i) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown.z95B ., 1 --:- T' ' [1 ]uswam• v. R•j• N•in•• Yenk•t•r•m• Aiyar J.

nevar

There is another difficulty in the way of accepting this argument of the respondent. candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing tha.t the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objec-tions, notwithstanding that under s. 36(2) he has to decide all the objections, is it open to the respondents in the election petition to . adduce evidence on those objections ? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under s. lOO(l)(c), even though the candidate was, in fact, disqualified and his nomination

(I) S.C.R. SUPREME COURT REPORTS

paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be • • anoma.1- v I 1 ous, but he says that the Law of Elect10n 1s full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own terms. It is no doubt true that if on its true construc~1on, statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legis-lature to amend and alter the law. But when on construction of statute, two views are possible, one which results in an anomaly and the other· not, it is our duty to adopt the latter and not the former, seek-ing consolation in the thought that the law bristles with anomalies. Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when question is raised in an elec-tion petition as to the propriety of the rejection of nomination paper, the point to be decided is about th~ propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in s. 36(2)

19$8 -:"'TA I 1 USWllflll 1v11r v. Raja Nait111r Venkatarama Aiyar J.

It remains to deal with one:more contention advanc-ed on behalf of the respondent, and that is based-on the following observations in Hari Vishnu Kamath v. Syed Ahmad Ishaque an4 others (1):

"Under this provision [R. 47(4)], the Tribunal is constituted 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."

The argument is that if the jurisdiction of the Tribu-nal is co-extensive with that of the returning officer, then the enquiry before it must be confined to the grounds which were urged before the returning officer. Now, the observations quoted above were made statedly with reference to R. 47, and assuming that they apply to an enquiry under s. lOO(l)(c), the ques-tion still remains, what is the jurisdiction of the return-ing officer in he11oring objections to nomination papers ?

(1) [1955] I S.C.R. no4, n32.

His jurisdiction is defined in s. 36(2), and the Tribunal must therefore have jurisdiction to decide all the ques-"""' t' 10ns w h' IC can raise · un er t sect10n. t · Th " t iac that particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided ifit had been raised, could . be decided by the Tribunal, when raised.

-. Th VI • uswam• v. Raja Naina• Venkata•ama Aiya• f.

Mr. Ganapathy Iyer, learned coun8el for the appel-

lant, invited our attention to the decisions of the Election Tribunals on the question whether grounds other than those raised before the returning officer could be put forward in an enquiry in an election peti-tion. They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj v. Bhimanda,~ ([1]) as settled law that the rejection of nomination paper can be sustained on grounds not raised before the returning officer. If the legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a. departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret s. lOO(l)(c) as not intended to alter the law as laid down in those decisions.

It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehta's case('), the election was to double-member con-stituency. The appellant who obtained the largest number of votes was declared elected to the general seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to stand. The Election Tribunal upheld that objection, and set aside the entire election. The decision was taken in appeal to this Court, and the point for . determination was whether the election of the appellant was liable to be set aside on account of the disqualification of Vasantarao. It was held that the matter fell withins. 100(2)(c) as it then stood and not under s. IOO(l)(c), and that the election of the appellant could not be declared void. (1) [1952] z E.L.R. 301, 310. (z) [1955] 1 S.C.R. 267 .

(1) S.C.R.

This is not direct pronouncement on the point now

in controversy, • and that is conceded. In Vashist v us 1 wami -. Tit Narain Sharma v. Dev Chandra and others (1), ques-v. tion was raised as to what would be "improper Roja Naittar Naittar acceptance " within the meaning of s. 100 ; but in the view taken by this Court, no opinion was expressed Vettkatarama thereon. Aiyar J.

evar

v. Roja Naittar Naittar

Vettkatarama Aiyar J.

The question now under consideration came up directly for decision before the High Court of Rajas-than in Tej Singh v~ Election Tribunal, Jaipur (2), and it was held that the respondent to an election petition was entitled to raise plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in s. ·36(2) of the Act, and that such plea, if taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwa-nath Y. Tamaskar ([3]), it was observed by Bench of the Madhya. Pradesh High Court that h~ determining whether nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it, and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao ([4]) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.

As the question has also been raised as to the pro-priety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is

(1) [1955] l S.C.R. 509.

(2) [195~] 9 E.L.R. 193· (4) Special Appeal No. 1 of 1957.

(3) [1958] 15 E.L.R. 26o.

1958 undoubted ; but then, it is well settled that where there is another remedy provided, the court may pro-v eluswa:'. Thev•• perly exercise its discretion in declining to interfere Roja Naina• under Art. 226. It should be remembered that under the election law as it stood prior to the amendment in VenAalarama 1956, election petitions were dismissed on preliminary Aiya• J. grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. signal example of case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi and another v. Brijlal Nandlal Biyani and others ([1]). It is to remedy this defect that the legislature has now amended the law by providing right of appeal against decision of the Tribunal to th·e High Court under s. 116-A, and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a. proper exercise of discretion under Art. 226 to decline to interfere with interlocutory orders.

In the result, we allow the appeals, set a.side the orders of the court below, and dismiss the writ peti-tions filed by the respondent, with costs here a.nd in the court below.

Appeals allowed.