1954 JTR(SC) 98
1954 AIR(SC) 520 ; 1954 2 MLJ 385 ; 1955 SCA 501 ; 1954 SCJ 723 ; 1955 1 SCR 267 ; 1954 KHC 515 ; 1954 KLT(Online) 1006
SUPREME COURT OF INDIA
Mehr Chand Mahajan, CJI., B.K. Mukherjea, Vivian Bose, N.H. Bhagwati, T.L. Venkatarama Ayyar, JJ.
Durga Shankar Mehta – Appellant
Versus
Raghuraj Singh and others – Respondent
Civil Appeal No. 150 of 1953
Decided On : 19-05-1954
Act
Referred
:CIVIL PROCEDURE CODE : S.9
CONSTITUTION OF INDIA : Art.329(b), Art.136
REPRESENTATION OF THE PEOPLE ACT : S.105, S.100(2)(c), S.80, S.36, S.100(1)(c)
CANDIDATE APPEARING TO BE PROPERLY QUALIFIED ON THE FACE OF ELECTORAL ROLL AND NOMINATION PAPER AND NO OBJECTION RAISED TO THE NOMINATION PAPER - POWER OF THE SUPREME COURT TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE DECISION OF THE ELECTION TRIBUNAL - “non-compliance’ — constitution of India - THE ARTICLE DEBARS COURT FROM ENTERTAINING SUITS ON ELECTION DISPUTES
– with the provisions of the Constitution is sufficiently wide to cover where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all, as held in Durga Shankar v. Raghuraj Singh, AIR 1954 SC 520; S.M. Banerji v. Sri Krishna Agarwal, AIR 1960 SC 368. Failure to prove material effect would render the petition liable to dismissal even though non-compliance of orders may have been established.
-held, the Art. 329 with its opening non-obstanate clause, debars Supreme Court like any other Court in law from entertaining election suit calling in question any election to Parliament or State Legislature. Power has been vested in Election Tribunal to decide such disputes when proceedings is initiated by an election petition. But after determination or adjudication on the matter by that Tribunal, the power of Supreme Court to interfere by way of special leave to appeal can always be exercised.
-see decision in Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520=1954 SCJ 723=(1955) 1 SCR 267.
– with the provisions of the Constitution is sufficiently wide to cover where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all, as held in Durga Shankar v. Raghuraj Singh, AIR 1954 SC 520; S.M. Banerji v. Sri Krishna Agarwal, AIR 1960 SC 368. Failure to prove material effect would render the petition liable to dismissal even though non-compliance of orders may have been established.
-held, the Art. 329 with its opening non-obstanate clause, debars Supreme Court like any other Court in law from entertaining election suit calling in question any election to Parliament or State Legislature. Power has been vested in Election Tribunal to decide such disputes when proceedings is initiated by an election petition. But after determination or adjudication on the matter by that Tribunal, the power of Supreme Court to interfere by way of special leave to appeal can always be exercised.
-see decision in Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520=1954 SCJ 723=(1955) 1 SCR 267.
Jurisdiction - Relied upon to support the proposition that even if a special tribunal has exclusive jurisdiction over election disputes, the High Court's appellate jurisdiction under Article 136 is not thereby excluded.
Election - Referred to in the context of the right to challenge an election only by way of an election petition as per Article 329(b).
Messrs B. Sen, T. P. Naik and I. N. Shroff, Advocates, for Appellant; Messrs. R. M. Hajarnavis, J. B. Dadachanji and Rajinder Narain, Advocates for Respondent No. 1.
Judgment
MUKHERJEA, J. : This appeal, which has come before us on special leave, is directed against the judgment and order of the Election Tribunal, Jabalpur at Nagpur, dated the 30th April 1953, whereby the Tribunal declared the election held on the 29th December 1951, for the double member Lakhnadon Legislative Assembly Constituency, to be wholly void under section 100 (1) (c) of the Representation of the People Act (hereinafter called The Act ).
2. To appreciate the contentions that have been raised by the parities to this appeal, it would be necessary to state briefly the material facts. The Laknadon Legislative Assembly Constituency in Madhya Pradesh is a double member constituency, one of the seats in which is reserved for scheduled tribes. The appellant and respondent Nos. 1, 3, 5 and 7 were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat.
No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent No. 2 Vasant Rao. Out of these eight candidates, respondent Nos. 5, 6 and 7 withdrew their candidature within the prescribed period under section 37 of the Act and the actual contest at the election was between the remaining five candidates, namely, the appellant and respondents Nos. 1 to 4. The votes secured by these five candidates at the polling were found to be as follows :
(1) The Appellant (General) .. 18,627
(2) Respondent No. 1 (General) .. 7,811
(3) Respondent No. 2 (Reserved) .. 14,442
(4) Respondent No. 3 (Reserved) .. 7,877
(5) Respondent No. 4 (General) .. 6,604
Accordingly the appellant and respondent No. 2 were declared elected to the General and Reserved seat respectively, under section 66 of the Act, and the results were duly published in the Madhya Pradesh Gazette on 8th of February 1952. On the 14th of May 1952 the respondent No. 1 Raghuraj Singh filed an election petition against the appellant and the other respondents, under section 81 of the Act, praying that the said election to the Lakhnadon Legislative Assembly Constituency be declared wholly void or in the alternative election of Vasant Rao and/or that of the appellant Durga Shankar Mehta be declared void.
There was a string of allegations made in the petition accusing the appellant of various corrupt practices in the matter of securing votes but none of these are material for our present purpose, as the Tribunal, by a majority, held these allegations to be unfounded and not supported by proper evidence. The substantial ground upon which the petitioner sought to assail the validity of the election was, that the respondent No. 2 Vasant Rao, who was declared duly elected to the Reserved seat in the said constituency was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Article 173 of the Constitution.
This allegation was found to be true by the majority of the Tribunal & by its judgment dated the 30th of April 1953 the Tribunal came to the conclusion that the act of the Returning Officer in accepting the nomination of Vasant Rao, who was disqualified to be elected a member of the State Legislature under the Constitution, amounted to an improper acceptance of nomination within the meaning of section 100 (1) (c) of the Act and as the result of the election was materially affected thereby, the whole election must be pronounced to be void. It is the propriety of this decision that has been challenged before us in this appeal.
3. Mr. Hazarnavis appearing for the respondent No.1 before us, took a preliminary point challenging the competency of the appeal. It is contended by the learned counsel, that Article 329(b) of the Constitution ousts the jurisdiction of all ordinary courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question, except by an election position presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
It is urged that there can be no challenge to the validity of an election except by way of an election petition and the authority to which, and the manner in which, such petition is to be presented, have been embodied in the Representation of the People Act which has been enacted by the Parliament under Article 327 of the Constitution. Section 80 of the Act, which is worded almost in the same manner as Article 329(b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part"; and section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive". It is contended by the learned counsel that the jurisdiction that is created in the Election Tribunal is a special jurisdiction which can be invoked by an aggrieved party only by means of an election petition and the decision of the Tribunal is final and conclusive.
4. These arguments, though apparently attractive, appear to us on closer examination to be untenable. We agree with the learned counsel that the right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a court of law is available to a person in regard to election disputes. The jurisdiction with which the Election Tribunal isssembly under the provisions of the Constitution itself but has nevertheless been returned as such at an election, it can be said without impropriety that there has been non-compliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between "non-compliance" and "non-observance or "breach" and this item in clause (c) of sub-section (2) may be taken as a residency provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub-s. (2) (c) of section 100 of the Act applies. The result therefore is that in our opinion the contention of the appellant succeeds. We allow the appeal in part and modify the order of the Election Tribunal to this extent that the election of respondent No. 2 Vasant Rao only is declared to be void; the election of the appellant however will stand. We make no order as to costs of this appeal.
Appeal partly allowed.
For Citation : AIR 1954 SC 520 = 1955(1) SCR 267 = 1954 SCJ 723