Decided on March 31,1953



Venkatarama Aiyar, J. - (1.) These petitions arise out of proceedings taken for setting aside the election of members to the Madras Legislative Council by the members of the State Legislative Assembly, at an election held on 27-3-1953. On 4-3-1953 the Governor of Madras issued a notification under Section 18(1)(b), Representation of the People Act (43 of 1951) hereinafter referred to as the Act calling upon the members of the Legislative Assembly to elect 24 members to the Legislative Council. The last date fix-ed for nomination was 13th March; for scrutiny of the nomination paper 14th March; and for polling 27th March. One Sri U. C. Subramania Bhatt who is the respondent in W. P. No. 72 of 1953 presented his nomination paper on the 12th March and along with it he filed a printed copy of Block No. 15 of the electoral roll for the Mangalore City Constituency wherein his name is entered as a voter, the serial number being 26. On 14-3-1952 the Returning Officer passed the following order on the nomination paper: "Time given till 3 p. m. on the 16 for producing certified extract from the electoral roll." It may be mentioned that 18-3-1952 was a Sunday and the certified extract as required by the order was actually produced on 17-3-1953. But the nomination paper had in the meantime been actually rejected on 16-3-1952 for non-compliance with the order. Subramania Bhatt filed election petition No. 261 of 1952 for setting aside the election on the ground that his nomination paper had been improperly rejected. The Election tribunal which went into this matter upheld his contention and set aside the election. W. P. No. 72 of 1953 has been filed for the issue of a writ of certiorari to quash this decision.
(2.) The petitioner in W. P. 72 of 1953 is one Sri S. K. Sambandam. He is not one of the persons who have been unseated as a result of the decision of the Election tribunal in Election Petition No. 261 of 1952, but his Interest in the matter arises by reason of the fact that he was one of the unsuccessful candidates at the election which was held on 27-3-1952. He filed election petition No. 324 of 1952 to set aside the election on the ground that in counting the votes the Election officer had applied the rules which had been enacted on 10-3-1952, whereas he ought to have followed those which were in force on 4-3-1952 and that according to those rules he was entitled to be declared elected. This contention was overruled by the Election tribunal on the ground that the rules in question related to procedure in which the petitioner had no vested right and that the matter was governed by the rules which had been enacted on 10-3-1952. In the result, election petition No. 324 of 1952 was dismissed. It is to o.uash this order of dismissal that W. P. No. 869 of 1952 has been filed. It will be seen that even if the petitioner is right in his contention that the rules applicable for the counting of votes are those, which were in force on 4-3-1952 and that in accordance therewith no should be declared elected, that will do him no good, unless the decision in Election Petition No. 261 of 1952 that by reason of the improper rejection of the nomination paper of Subramania Bhatt the entire election should be set aside, is also set aside. In other words, he must succeed in both the petitions, if he is to have any relief.
(3.) Taking W. P. No. 72 of 1953 the only point for determination is whether the rejection of the nomination/paper of Subramania Bhatt on 16-3-1952 by the Returning officer is improper. The statutory provisions relating to the matter are these: Section 39 deals with the nominations of candidates for election to the Legislative Council of the state by the members of the Legislative Assembly of that state. Section 39(4) enacts that "the provi-sions of subnotions (1), (3), (4), (5) and (7) of Section 33 and Sections 34 to 38 shall apply to the nomination of candidates, deposits to be made on such nominations and withdrawal of candidatures." Section 36(2) provides for rejection of nomination paper and is as follows: "(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, refuse any nomination on any of the following grounds: (a) that the candidate is not qualified to be chosen to fill the seat under the constitution or this Act; or (b) that the candidate is disqualified for being chosen to fill the seat under the Constitution or this Act; or (c) that a proposer or seconder is disqualified from subscribing a nomination paper under sub-section (2) of Section 33; or (d) that there has been any failure to comply with any of the provisions of Section 33 or Section 34; or (e) that the signature of the candidate or any proposer or seconder is not genuine or has been obtained by fraud." The contention of the petitioner is that the order of rejection of the nomination paper falls under Section 36(2)(d). Section 34 relates to deposit and has no application. As for Section 33, as already mentioned, section 39(4) expressly provides that sub-sections (1), (3), (4), (5) and (7) of Section 33 shall apply to elections to Legislative Council by the members of the Legislative Assembly. It is conceded by Mr. T. Lakshmiah, the learned advocate for the petitioner, that there has been no failure to comply with any of the above provisions. The result then is that the nomination paper is not liable to be rejected under Section 36(2)(d) and as there is no other provision conferring power on the Election officer to reject it, the order of rejection is manifestly erroneous.;

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