SULEMAN FAKRUDDIN ANSARI Vs. S B KULKARNI
LAWS(BOM)-1962-9-2
HIGH COURT OF BOMBAY
Decided on September 20,1962

SULEMAN FAKRUDDIN ANSARI Appellant
VERSUS
S.B.KULKARNI Respondents





Cited Judgements :-

MHALU NAIK VS. ASSISTANT ELECTION OFFICER AND RETURNING OFFICER [LAWS(BOM)-2012-1-172] [REFERRED TO]
RAJESH KUMAR C. VS. PRASAD M. CHERIAN [LAWS(KER)-2023-11-35] [REFERRED TO]
ABRAHAM VS. RETURNING OFFICER [LAWS(KER)-1993-2-14] [REFERRED TO]
KHALIL AHMED SHAIKH MANNU VS. ELECTION COMMISSIONER OF INDIA [LAWS(BOM)-2011-4-8] [REFERRED TO]
PANDURANG HINDURAO PATIL VS. STATE OF MAHARASHTRA [LAWS(BOM)-1983-3-2] [REFERRED TO]
RAJESH KUMAR C. VS. PRASAD M. CHERIAN [LAWS(KER)-2023-11-13] [REFERRED TO]


JUDGEMENT

Chainani, C.J. - (1.)The facts giving rise to this petition are briefly these. The general elections for electing councillors of the Poona Municipal Corporation are to be held on 23rd September 1962. The last date for filing nomination papers was 3ist August 1962, 5th September 1962 was fixed as the date for scrutiny of nomination papers. The petitioner and opponent No. 2 had filed nomination papers from Ward No. 4. Opponent No. 2 submitted three nomination papers Nos. 32, 33 and 34. These nomination papers did not bear his signature. An objection was, therefore, raised that as opponent No. 2 had not signed the nomination papers, as required by Clause (c) in Sub-rule (2) of Rule 9 of the Election Rules contained in the Schedule Jo the Bombay Provincial Municipal Corporations Act, the nomination papers were invalid. The Municipal Commissioner, who is the Returning Officer, heard all the parties and thereafter overruled the objection. In his opinion two points arose for consideration: (1) Whether willingness of the candidate to accept the nomination must be signified by his signature only and in no other manner. (2) If signature is not obligatory and a candidate may express his willingness in some other manner, whether Shri Mithapalli has clearly expressed his willingness to accept the nomination. On the first point the Municipal Commissioner took the view that the signature of the candidate is required for the purpose of knowing whether he is willing to accept the nomination, that although it is advisable that the candidate's willingness should be signified by signature, it would be adequate if the purpose is fulfilled in some other manner and that consequently the mere absence of the signature of the candidate would not by itself invalidate the nomination, if the candidate has signified his willingness unambiguously in some other manner. On the second point the Municipal Commissioner took into consideration the facts that opponent No. 2 had himself obtained three blank nomination papers from the Municipal Commissioner and had personally signed on the counterfoils for having received the blank forms, that he himself had paid the deposit of Rs. 100 on 31st August 1962 as required by Election Rule No. 10, that the receipt for this amount had been issued in his name and that opponent No. 2 had personally handed over three nomination papers to the Municipal Commissioner. In his opinion these facts clearly indicated that he was not only willing, but even anxious to accept the nomination and to stand for the election. The Municipal Commissioner, therefore, held the nomination of opponent No. 2 to be valid. The order passed by him is being challenged before us in this petition.
(2.)In order to consider the various arguments which have been advanced before us, it is necessary to refer to the relevant provisions of the Bombay Provincial Municipal Corporations Act and the Rules. Section 14 of the Act states that elections of councillors shall be held in accordance with the rules. Sub-section (1) of Section 16, in so fat as it is material, provides that if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination ......... any person enrolled in the municipal election roll may, at any time within, ten days after the result of the election has been declared, submit an application to the Judge for the determination of the question. One of the grounds on which the election may, therefore, be questioned is that the Commissioner had improperly rejected a nomination paperor nomination papers. Section 403 lays down the procedure, which is to be followed in an election inquiry Sub-section (3), in so far as it is material, states , that if, after making such inquiry as he deems necessary, the Judge finds that ......... the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election ............ he shall declare the election of the returned candidate to be void and if he does not so find he shall confirm the election of the returned candidate. An election may therefore be set aside, if the Judge hearing the election petition finds that the result of the election has been materially affected by the improper acceptance or rejection of any nomination. Sub-section (6) of this section states that the Judge's order under this section shall be conclusive. Sub-section (7) provides that every election not called in question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election. Section 453 provides that the rules in the Schedule as amended from time to time shall be deemed to be part of this Act. The election rules, under which the election of the councillors is to be held, are contained in Chapter 1 of the Schedule to the Act. The material rule is Rule 9, Sub-rule (1) of this rule provides that candidates for election at award election must be duly nominated in writing in accordance with the provisions thereinafter contained. Sub-rule (2) states that with respect to such nominations, Subject to Sub-rule (3), the following provisions shall have effect, viz:
(a) nomination papers shall be in Form A; ..... (c) each nomination, paper must state the name, abode and description of the candidate in full, and be subscribed by two persons entitled to vote at the election as proposer and seconder and must bear the signature of the person nominated in token of his willingness, to be so nominated; (d) every nomination paper subscribed and signed as aforesaid must be delivered at the Commissioner's office before five O'clock in the afternoon of the day fixed for the nomination of candidates; ..... (h) if any person nominated - (i) is not enrolled in the municipal election roll as voter of a ward, (ii) has not made or caused to be made the deposit referred to in Sub-rule (1) of Rule 10, or (iii) is disqualified under any provision of this Act for being a councillor, the Commissioner shall declare such person's nomination invalid. Clauses (i), (j), (k) and (l) provide for certain contingencies. Clauses (i) states that if there is no valid nomination, it shall be deemed that no council has been elected and proceedings for filling the vacancy or vacancies shall be taken under Section 18, Clause (j) lays down what Is to happen when the number of valid nominations is less than that of the vacancies. Clause (k) states that if the number of valid nominations is the same as that of the vacancies, the persons nominated shall be deemed to be elected. Clause (l) lays down that if the number of valid nominations exceeds that of the vacancies, the election of councillors shall be made from among the persons nominated.

(3.)Mr. Kotwal, who appears on behalf of opponent No. 2, has first urged that we should not Interfere at this stage. The election is still to be held. It will be open to the petitioner to challenge the election on the ground that the nomination papers of opponent No. 2 had been wrongly accepted. The petitioner is therefore not without an alternative remedy. Mr. Kotwal has therefore contended that as the petitioner can urge the same grounds, on which he has questioned the action of the returning officer in accepting the nomination papers of opponent No. 2, in an election petition, we should not at this stage exercise our powers under Articles 226 and 227 of the Constitution. He has relied on the decision of this Court in Shankar Nanasaheb v. Returning Officer, Kolaba, 54 Bom LR 137: (AIR 1952, Bom 277). That was, however, a case of an election to the Bombay Legislative Assembly. In view of Article 329(b) of the Constitution it was held that the only way any matter relating to or in connection with such an election can be called in question is by an election petition and that consequently this Court could not issue a writ under Article 226 of the Constitution, in order to correct the decision of the returning officer before the election was held. In this case, therefore, the jurisdiction of this Court was held to have been taken away by Article 329 of the Constitution. That is not the position in the case before us. Mr. Kotwal has also relied on the decision of the Supreme Court in N. P. Pounuswami v. Returning Officer, Namakkal Constituency, 3952 SCR 218: (AIR 1952 SC 64). One of the conclusions arrived at by Fazl Ali J. has been summed up in the judgment in the following words at p. 234:
"In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached, to anything which does not affect the 'election'; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress".
On the basis of these observations, it has been urged that no relief should be granted to the petitioner at the present stage but that he should be directed to seek his remedy later on by an election petition. The decision in Ponnuswami's case, 1952 SCR 218; (AIR 1952 SC 64) has been considered by the Calcutta High Court in Narendra Nath v. Bally Municipality, AIR 1962 Cal 53. As pointed out by the Calcutta High Court, the case before the Supreme Court was one under the Representation of the People Act, which had to be decided in the light of Article 329 of the Constitution, under which no election can be called in question except by an election petition presented after the election is over. After giving due weight to the observations made by the Supreme Court, the Calcutta High Court has held that the High Court has jurisdiction to and may, interfere, even at the pre-election stage, if it finds that a candidate's nomination paper for a municipal election had been improperly rejected.


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