A K SUBBARAYA GOUNDAR Vs. MUTHUSAMI GOUNDAR
HIGH COURT OF MADRAS
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Rajamannar, C.J. -
(1.) This is an application under Article 226 of the Constitution for the issue of a writ of certiorari to quash the proceedings and order of the Election Tribunal, Coimbatore, in Election Petition No. 1 of 1952 on the file of that Tribunal declaring the election of the petitioner to the Madras Legislative Assembly from the Kangayam General Constituency void. The petitioner and the first respondent were the two candidates for election to the Madras Legislative Assembly from the Kangayam General Constituency. The respondent filed two nomination papers on 20-11-1951. Both the nomination papers were rejected by the Returning Officer on scrutiny made by him on 28-11-1951 on the ground that the respondent had not filed a declaration relating to the appointment of his election agent. The petitioner was therefore declared elected as he was the only duly nominated candidate for the seat. The respondent thereupon filed an election petition under Section 81, Representation of the People Act, 1951. The Election Tribunal held that the rejection of the nomination of the respondent was wrong and declared the election of the petitioner void.
(2.) The following provisions of the Representation of People Act, 1951 and the rules framed thereunder are material for the disposal of this application. Section 33, Sub-section (3) is as follows:
"Every nomination paper delivered under Subsection (1) shall be accompanied by a declaration in writing subscribed by the candidate that, the candidate has appointed as his election agent for the election either himself or another person who is not disqualified under this Act for the appointment and who shall be named in the declaration, and by such other declarations, if any, as may be prescribed; and no candidate shall be deemed to be duly nominated unless such declaration is, or all such declarations are, delivered along with the nomination paper." (The provisos to the subsection are not material).
(3.) Section 36, Sub-section (2) in so far as it is relevant runs thus:
"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 enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds: (d) that there has been any failure to comply with any of the provisions of Section 33 or Section 34." Sub-section (4) of this section says that the Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. Section 40 provides for the appointment of an election agent by a candidate at an election. He may appoint himself or some other person to be his election agent. The appointment has to be in writing. Rule 4 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, provides that every nomina-nation paper delivered under Sub-section (1) of Section 33 or under that sub-section read with Sub-section (4) of Section 39 shall be completed in the form specified in Schedule II. Rule 5 requires that every nomination paper delivered under Sub-section (1) of Section 33 shall be accompanied by a declaration in writing specifying the particular symbol which the candidate has chosen for his first preference out of the list of symbols published by the Election Commission by notification in the Official Gazette. Rule 11-A prescribes Form 5-A for the appointment of an election agent under Section 40. The form of the nomination paper as given in Schedule II to these rules does not consist only of what may be strictly called the nomination paper under Section 33(1) of the Act, but also contains after the nomination portion forms of declaration by the candidate of the appointment of the election agent and the choice of symbols, and also in concerned cases formal declaration by the candidate who is a member of the scheduled caste or any scheduled Tribes.;
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