- (1.)THIS is a petition filed by a successful candidate at an election held for a seat in the Bombay Legislative Assembly from the Erandol Taluka Constituency. A petition was filed by opponent 1 challenging the petitioner's election. Seven nominations were received for this election. Opponent 7, although he was duly nominated, withdrew from the contest. The scrutiny of the nominations was held on 27-11-1951, and on 28-11-1951, the Returning Officer published the list of valid nominations. The election took place on 7-1-1952, the counting of votes took place on 12-1-1952, and the result of the election was declared on 19-1-1952, and as already pointed out the petitioner was declared to be duly elected. The first opponent filed his election petition on 25-3-1952, and it reached the Election Commission on 27-3-1952. The Election Commission referred the petition to an Election Tribunal which was appointed for the trial of the petition, and the petitioner has now come before us for a writ directed against the Tribunal calling upon the Tribunal to dismiss the election petition.
(2.)MR. Patwardhan who appears for the petitioner has pointed out various defects which appear in the petition. It is pointed out that when the petition was presented it was not properly verified, and Section 83 (1), Representation of the People Act, provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall bo signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. Admittedly, the verification of the petition as presented to the Election Commission did not comply with the provisions of the Code. A list was also furnished to the Commission in accordance with Section 83 (2) and that sub-section provides that the petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. The verification of this list was not also in accordance with the Civil Procedure Code. A further additional list was also sent to the Commission and the Commission in referring the petition to the Tribunal also forwarded with the petition the list and the additional list which was submitted to it.
(3.)IN the first place, it is contended that the Election Commission should have dismissed the petition and should not have appointed an Election Tribunal for the trial of the petition under Section 86 of the Act. Section 85 of the Act provides that if the provisions of Section 81, Section 83 or Section 117 are not complied with, the Election Commission shall dismiss the petition. Mr. Patwardhan contends that inasmuch as the petition and the list were not verified as required by Section 83 (1) and Section 83 (2), it was obligatory upon the Election Commission to dismiss the petition. Now, this petition is not directed against the Election Commission. The petitioner does not require any mandamus against the Election Commission to discharge its statutory obligation. The election petition is directed against the Tribunal, and what we have to consider in this petition is not the statutory obligations of the Election Commission but the statutory obligations of the Tribunal. If the Election Commission failed to dismiss the petition, assuming that it was under an obligation to do so under Section 35, even so, once the election petition is referred to an Election Tribunal, the duty of the Election Tribunal is to dispose of it according to law. It is not open to the Election Tribunal to challenge the competence of the Election Commission to appoint the Tribunal or to refer the election petition to it for trial.