Decided on March 11,1953

Narendra Chandra Pradhan Appellant
Raghu Rout Respondents


PANIGRAHI, J. - (1.) THIS is a petition under Article 227 of the Constitution seeking to revise the order of an Election Tribunal refusing to set aside the election of opposite party No. 1. The petitioner and 4 others were candidates tor election as Commissioner of the Cuttack Municipality from Ward No. XVII. Opposite party No. 1 was declared elected having secured the largest number of votes. The petitioner's case is that opposite party No. 2 Bishnu Charan Mukherji was disqualified for standing as a Councillor and that the Election Officer improperly accepted his nomination paper. It is contended that if this irregularity had not been committed by the Returning Officer, the petitioner would have secured the largest number of votes and would have been elected. The petitioner, therefore, prayed that the election of the opposite party No. 1 may be set aside and that he himself be declared elected.
(2.) THE Election Tribunal held that opposite party No. 2 was disqualified on the date f his nomination as a candidate but also held that the improper acceptance of his nomination paper did not materially affect the result of the election. The petition of the unsuccessful candidate Shri Narendra Chandra Pradhan was accordingly dismissed. The admitted facts are that the contesting candidates secured votes in the following order : I. Raghu Rout - - 468. 2. Nerendra Chandra Pradhan - - 31 -8. 3. Bishnu Charan Mukerji - -286. 4. Brajabandhu Das - -157. 5. Amitav Mohapatra - -70. The petitioner's case is that the votes polled for Bisnnu Charan Mukherji would have gone to him if his nomination paper had not been improperly accepted and that he would have topped the polls. It is also admitted that on the date of the nomination, opposite party No. 2 was disqualified within the meaning of Section 16 Sub -clause (ix), Orissa Municipal Act, 1950, from standing as a candidate as he was employed as legal practitioner against the Municipality. Another fact which is not seriously disputed is that the petitioner alone stood as a party candidate, his candidature having been supported by an organisation known as Town Committee while the other candidates stood each on his own strength and were independent candidates. A further fact that emerges from the evidence is that all the candidates except the petitioner were residents of Ward No. XVII and the petitioner was a voter registered in Ward No. XVIII of the Municipality. The petitioner is the Printer and Publisher of a local newspaper and 3 of the opposite parties are lawyers while the successful candidate is a journalist. Upon these facts, it is argued on behalf of the petitioner that the election is void as it had not been conducted in accordance with the provisions of the Orissa Municipal Act and the non -compliance with the mandatory provision of Section 16(ix) has affected the result of the election. Section 18(1)(c) lays down that the election of any person as a councillor may be questioned by election petition on the ground that such person though enrolled as an elector was disqualified for election under the provisions of Sections 15, 16 and 29. Section 13(2)(b), however, lays down that the election of any person as a councillor shall not be questioned on the ground that any non -compliance with this Act .....or of any error, irregularity or informality on the part of the officer or officers, charged with carrying out the provisions of this Act or any rules, unless such non -compliance, mistake, error, irregularity or informality has materially affected the result of the election. The functions of the Tribunal are laid down in Section 25 which prescribes when the election proceedings may be avoided. Section 25 reads as follows : '25. Notwithstanding anything contained in the preceding sections, if the Tribunal, in the course of hearing of an election petition, is of opinion that the evidence discloses : (i) ..... (ii) ..... (iii) the result of election has been materially affected by improper acceptance or refusal of a candidate's nomination : It shall set aside the whole proceedings .....'. A plain reading of Sections 18 (2) (b) and 25 (iii) makes it clear that the mere fact of improper acceptance or refusal of a candidate's nomination, 'will not justify the avoidance of election proceedings. It has further to be proved to the satisfaction of the Tribunal that the result of the election has been materially affected thereby. The non -compliance with a provision of the Act is not of sufficient importance to avoid the election because the election may have been notwithstanding such error substantially conducted in accordance with the Act. There is no provision in the Act which lays down that mere non -compliance of any of the provisions would render the election void. On the other hand, the provisions imply that a breach however extensive cannot as such avoid election unless it has materially affected the result of the election.
(3.) THE petitioner's contention is that if the non -compliance with the Act has been established, it is for the successful candidate to prove that the result of the election has not been materially affected thereby while the stand taken by the successful candidate is that the petitioner must show not only that there was a non -compliance with provision of the Act but that there was no real electing at all. In other words, the Tribunal should be satisfied that the constituency had not in fact had a fair and free opportunity of electing a candidate by a majority vote. If the Tribunal is satisfied that notwithstanding the irregularity in the election proceedings there was a free and fair election and that every candidate was allowed to take his chance, the existence of any irregularity would not entitle the Tribunal to declare the election void. The question, therefore, is what is the true statement of the rule under which an election may be avoided. The Tribunal after recording evidence held that the petitioner would not have secured a majority of votes even if opposite party No. 2 had not entered the field. It also held that the onus of proving that the election had been materially affected by the improper acceptance of the nomination of opposite patty No. 2 rested upon the petitioner which he had failed, to discharge.;

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