# • Appeal allowed. DURGA SHANKAR MEHTA v. THAKUR RAGHURAJ SINGH AND OTHERS

- **Citation:** [1955] 1 S.C.R. 267
- **Court:** Supreme Court of India
- **Decided:** 1953-04-30
- **Case number:** Civil Appeal No. 150 of 1953
- **Bench:** Mehr Chand Mahajan C.J, MuKHERJEA, VIVIAN BosE, Bhagwati, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appeal-allowed-durga-shankar-mehta-v-thakur-raghuraj-singh-and-others-385
- **Pages:** 13

## Headnote

._
Constitution
of
India, articles 136, 173, 329-Supreme Court
.,.,-
-Power to grant special leave to appeal-Decision of Election Tribunal-Representation of the
People Act (XLIII of 1951), ss. 36,
100(1) (c) and (2) (c), 105-Non-compliance with the provisions of
, article
17 3-C onstitutional
disability-Election
void-Whether
under s. 100(1) (c) or s. 100(2) (c) of the Act-Non-compliance with
the provisions of Constitution in s. 100(2) (c)-Scope of.
Article 136 of the Constitution is worded in the widest terms
possible.
It vests in the Supreme Court a plenary jurisdiction
in
the matter of entertaining and hearing appeals by granting special
)-
leave against any kind of judgment or order made by a Court or
~ Tribunal in any cause or matter and the powers can be exercised
in spite of the specific provisions for appeal contained in the Constitution or other laws. The powers given by the· article are, however,
in the nature of special or residuary powers which are exercisable
outside th.e purview of ordinary law, in cases where the needs
of
justice demand interference by the Supreme Court.
The non obstante clause in article 329 of the Constitution
which debars the Supreme Court as well as any other Court in
India from entertaining a suit or a proceeding calling in question
~ . any
election to
Parliament or the State
Legislature
and section 105 of the Representation of. the l'eopk Act which. gives finality to the decision of the Election· ·Tribunal so far as that Act is
18-86 S.C, India/59
1954
T., C. Basappa
v.
T. Nagappa
and Another.
1954
May 19.
1954
DMrga Shankar
i..M1hta
.. ,
v.
Thakur Raghuraj
Singh and
Otlurs.
268
SUPREME COURT REPORTS
[1955]
concerned and does not provide for any further appeal, do not cut
down or affect the overriding powers which the Supreme Court can
exercise in the matter of granting special leave
under article 136
of the Constitution .
The overriding power vested in the Supreme Court under
article 136 of the Constitution is wider than the prerogative right
of entertaining an appeal exercised by the Judicial Committee
of
the Privy Council in England because the prerogative right of the
Crown can be taken away or curtailed by
express legislation but
the Constitutional provision
in article
136
cannot
be limited or
taken away
by any
Parliamentary legislation
and this
Constitu~
tional provision overrides ordinary
laws
and no presumption can
arise from words and expressions declaring an
adjudication
of a
particular Tribunal to be final and conclusive
that there
was an
intention to exclude the exercise of the special power.
Where on the finding of the Tribunal there has been a viola·
tion of or non-compliance with the provision of article
173 of the
Constitution because the candidate suffers
from
a
Constitutional
-Jf
disability by reason of his under-age the case
falls under sub.sec· ,.
tion (2)(c) of section 100 of the Representation of the People Act
and not under sub-section ( 1) ( c) of section 100 of the Act and election should be held to be void on the ground of the Constitutional
disqualification of the candidate and not on the ground that his
nomination was improperly accepted by the Returning Officer and
therefore the election of that candidate only
should
be
declared
void and not the whole election.
The
expression
"non-compliance with the provisions
of the
Constitution"
in clause (c) of sub-section (2) of section 100 of the
Act is sufficiently wide to cover such cases where the question is
not one of improper acceptance or rejection of the nomination by
the Returning Officer but there is a fundamental disability in the
candidate to stand for election at all.
Bharat Bank Ltd., v. Employees of the Bharat Bank Ltd.
{[1950] S.C.R. 459), Theberge v. Laudry ([1876-77] 2 A.C.
102),
Stowe v. Jolliffe (9 C.P. 734) and Ponnuswami v. Returning Officer,
Namakkal Constituency and Others ([1952] S.C.R- 218) referred to.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 150 of 1953.
Appeal by Special Leave from the

## Text

S.C.R.
S,UPREME COURT REPQRT~
Tribunal's order which deals with the matter in deiaH.
On the whole our opinion , is that the so-called apparent errors pointed out by the High Court are neither
.-). .
' errors of law nor do they appear on the face of the
record. 'An appellate
Court might have on a review of
this evidence come to a different conclusion but these
are not matters which would justify the issue of a writ
of certiorari.. In our opinion the judgment of the High
Court cannot be supported and this appeal must be
allowed. The writ issued by the High Court will therefore be vacated. We make no order as to costs of this
appeal.
. .
...
•
Appeal allowed.
DURGA SHANKAR MEHTA
v.
THAKUR RAGHURAJ SINGH AND OTHERS.
[MEHR CHAND MAHAJAN C.J., MuKHERJEA,
VIVIAN BosE, BHAGWATI and VENKATARAMA
AYYAR JJ.]
._
Constitution
of
India, articles 136, 173, 329-Supreme Court
.,.,-
-Power to grant special leave to appeal-Decision of Election Tribunal-Representation of the
People Act (XLIII of 1951), ss. 36,
100(1) (c) and (2) (c), 105-Non-compliance with the provisions of
, article
17 3-C onstitutional
disability-Election
void-Whether
under s. 100(1) (c) or s. 100(2) (c) of the Act-Non-compliance with
the provisions of Constitution in s. 100(2) (c)-Scope of.
Article 136 of the Constitution is worded in the widest terms
possible.
It vests in the Supreme Court a plenary jurisdiction
in
the matter of entertaining and hearing appeals by granting special
)-
leave against any kind of judgment or order made by a Court or
~ Tribunal in any cause or matter and the powers can be exercised
in spite of the specific provisions for appeal contained in the Constitution or other laws. The powers given by the· article are, however,
in the nature of special or residuary powers which are exercisable
outside th.e purview of ordinary law, in cases where the needs
of
justice demand interference by the Supreme Court.
The non obstante clause in article 329 of the Constitution
which debars the Supreme Court as well as any other Court in
India from entertaining a suit or a proceeding calling in question
~ . any
election to
Parliament or the State
Legislature
and section 105 of the Representation of. the l'eopk Act which. gives finality to the decision of the Election· ·Tribunal so far as that Act is
18-86 S.C, India/59
1954
T., C. Basappa
v.
T. Nagappa
and Another.
1954
May 19.
1954
DMrga Shankar
i..M1hta
.. ,
v.
Thakur Raghuraj
Singh and
Otlurs.
268
SUPREME COURT REPORTS
[1955]
concerned and does not provide for any further appeal, do not cut
down or affect the overriding powers which the Supreme Court can
exercise in the matter of granting special leave
under article 136
of the Constitution .
The overriding power vested in the Supreme Court under
article 136 of the Constitution is wider than the prerogative right
of entertaining an appeal exercised by the Judicial Committee
of
the Privy Council in England because the prerogative right of the
Crown can be taken away or curtailed by
express legislation but
the Constitutional provision
in article
136
cannot
be limited or
taken away
by any
Parliamentary legislation
and this
Constitu~
tional provision overrides ordinary
laws
and no presumption can
arise from words and expressions declaring an
adjudication
of a
particular Tribunal to be final and conclusive
that there
was an
intention to exclude the exercise of the special power.
Where on the finding of the Tribunal there has been a viola·
tion of or non-compliance with the provision of article
173 of the
Constitution because the candidate suffers
from
a
Constitutional
-Jf
disability by reason of his under-age the case
falls under sub.sec· ,.
tion (2)(c) of section 100 of the Representation of the People Act
and not under sub-section ( 1) ( c) of section 100 of the Act and election should be held to be void on the ground of the Constitutional
disqualification of the candidate and not on the ground that his
nomination was improperly accepted by the Returning Officer and
therefore the election of that candidate only
should
be
declared
void and not the whole election.
The
expression
"non-compliance with the provisions
of the
Constitution"
in clause (c) of sub-section (2) of section 100 of the
Act is sufficiently wide to cover such cases where the question is
not one of improper acceptance or rejection of the nomination by
the Returning Officer but there is a fundamental disability in the
candidate to stand for election at all.
Bharat Bank Ltd., v. Employees of the Bharat Bank Ltd.
{[1950] S.C.R. 459), Theberge v. Laudry ([1876-77] 2 A.C.
102),
Stowe v. Jolliffe (9 C.P. 734) and Ponnuswami v. Returning Officer,
Namakkal Constituency and Others ([1952] S.C.R- 218) referred to.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 150 of 1953.
Appeal by Special Leave from the Judgment and
Drder dated the 30th April, 1953, of the Election Tribunal, Jabalpur, at Nagpur in Election Petition No. 1
·Of 1952.
B. Sen, T. P. Naik and I. N. Shroff for the appel-
. ant.
R. M. Hajarnavis, /. B. Dadac.hanii and Rajinder. - _e,
. Narain for respondent No. 1.
......
•
)\
v
S.C.R.
SUPREME COURT REPORTS
269
1954. May 19. The Judgment of the Court was
delivered by
MuKHERJEA J.-This appeal, which has come before
us on special leave, is directed against the judgment
and order of the Election Tribunal, Jabalpur, at Nagpur,
dated the 30th April, 1953, whereby the Tribunal declared the -election held on the 29th
December, 1951, for
the double member Lakhnadon Legislative Assembly
Constituency, to be wholly void under section 100( 1) ( c)
of the Representation of the People Act (hereinafter
called "the Act").
To appreciate the contentions that have been raised
by the parties to this appeal, it would be necessary to
state briefly the material facts. The Lakhnadon Legistive Assembly Constituency in Madhya Pradesh is a
double member constituency, one of the seats in which
is reserved for Scheduled Tribes. The appellant and
respondents Nos. 1, 3, 5 and 7 were duly nominated
candidates for the general seat in the said constituency,
while respondents Nos. 2, 4 and 6 were nominated for
the reserved seat. No objection was taken before the
Returning Officer in respect of the nomination of either
the appellant or respondent No. 2, Vasant Rao. Out
of these eight candidates, respondents Nos. 5, 6 and 7
withd.rew
their
candidature
within the prescribed
period under section 37 of the Act and the actual contest at the election was between the remaining five
candidates,
namely,
the appellant and
respondents
Nos. 1 to 4. The votes secured by these five candidates
at the polling were found to be as follows : -
(1) The appellant (General)
18,627
(2) Respondent No. 1 (General)
7,811
(3) Respondent No. 2 (Reserved)
14,442
(4) Respondent No. 3 (Reserved)
7,877
(5) Respondent No. 4 (General)
6,604
Accordingly the appellant and respondent No. 2
were declared elected to the general and reserved seat
respectively, under section 66 of the Act, and the results
were duly published in the Madhya Pradesh Gazette on
·8th of February, 1952. On the 14th of May, 1952, the
1954
Durga Sh1111A;ar
M1hla
v.
Thakur Raglrurqj
Singh and
Othlrs.
'.954
IJ.urga Shankar
Mehta
v.
TkatμT RagltUTaj
Singh and
Others.
270,
SUPREME. C0.URT R:EP0RTS
[1955~
respondent No .. 1, Raghuraj Singh,' filed an election petition against the appellant and
the other respondents,
u.nder section 81 of the Act, praying that the said election to the. Lakhnadon Legi'slative
Assembly
Constituency be declared wholly void or in the alternative the
dection of Vasarit Rao and/or, that of the appellant,
Durga Shankar Mehta, be declared .void. There was s,
string of allegations made· in the. petition accusing the
appellant of various
corrupt practices in the matter of
securing, votes. but none of these
are material for our
present purpose, as the Tribunal, by a !J?.ajority, held
these allegations to be unfounded and not supported
by proper evidence.
The substantial ground upon
which the petitioner sought to assail the validity of the
election was, that the respondent No. 2, Vasant Rao,
who was declared duly elected to the reserved seat in
the said constituency was, at all material times, under
25 years of age and was consequently not qualified to
be chosen to fill a seat in the Legislative Assembly of a
State under article 173 of the Constitution. This allegation was found to be true by the majbrity of the
Ttiburial and by its judgment dated the 30t~ of April,
1953, the Tribun.al came to the conclusion that the act
of the Returning Officer in accepting the nomination
of Vasant Rao, who was disqualified to be elected a
member of the State Legislature under the Constitution,
amounted to an improper acceptance of nomination
'within the meaning of section 100(1) (c) of the Act and
·as the · result of the election was materially affected
thereby, the whok election must be pronounced to be
void. It is the propriety of this decision that has been
challenged before us in this appeal.
Mr. Hazarnavis, appearing for the respondent No. 1
before us, took a preliminary point challenging the
competency of the appeal.
It is
contended by the
learned counsel, that article 329(b) of the Constitution
ousts . the .jurisdiction of all ordinary Courts in. election
disputes and . provides expressly that no election to
either House of Parliament or to either House of the
I,egislat,ure 0f a State. shall be called. in question, ex-
.cept by. an, election, petition presented to such authority and in, such manner as may be provided. for· by or
..
./
' 'J
S;C.R.
SUPREME COURT REP@l(TS
271
under any Jaw 'rn:ade :by the appropriate Legislature.
[t is urged that there can be" no ' challenge to the validity of an election except by way of an election · petition,
and the authority lo which, :and the manner in which,
such petition is to be
presented~ . have been embodied
in the Representation of the People Act which :ha:s been
enacted by the Parliament under article 327 of the
Constitution. Section 80 of the Act, which is worded
almost in the same manner as article 329(b ), provides
that "no election shall be called in question. e:Xcept by
an election petition presented in aci::ordance with the
provisions of this Part" ·; ·ahd section 105 says that
"every order of the Tribunal made under this Act ·shall
be final and conclusive."
It is contended by the ·learn- ·
ed counsel that the jurisdiction that is created in the
Election Tribunal is a special jurisdiction which can· be
invoked by an aggrieved party only by means of an
election petition and the de.cision of the Tribunal is
final and conclusive.
These arguments, though apparently attractive, appear to us on 'closer 'examination to be untenable. ·We
agree with the learned counsel that the right of seeking
election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the
Constitution' provides · a special remedy for enforcing
that right, no other remedy by ordinary action in a
Court of law is available to a person in regard· to election disputes.
The ·jurisdiction with which the Election
Tribunal is endowed is undoubtedly a special· jurisdiction ; but once it is held that it is a iudicial Tribunal
empowered ·and obliged to deal judicially with disputes
arising out of or in connection with election, the overriding p'ower of this Court to grant special leave; in
proper
cases, ·would certainly be
attracted and this
power cannot be excluded by any Parliatnenta'ry 'legislation. The non obstante clause with which attit'le 329
of the ConslitutiOn begins and upon which 'the respondent's counsel lays so tnuch stress ·debars us, a's it
debars any other Court in' the land,· to enterfaih 'a suit
·or a proceeding calling in, question any . election to the
Parliament or the State Legislature. · It is · the Election
Tribunal alone that can decide such ·disputes, and. the
proceeding has
to be
initiated by an election petition
' 1954
.Darga Shon!tar
:Mehta
v.
·T-ilakttr Rag/illraj
SiREh illld
·Others.
Mwihe;jea ].
195<1,
· Dwga Slwaklw
M1lrltt
••
T llaiw< Rag,.,,,aj
Singh and
Othns.
· Mukl1'ij1a ].
272
SUPREME COURT REPORTS
[1955]
.and in such manner as may be provided by a statute.
.BiJt once that Tribunal has made any determination or
.adjudication on the matter, the powers of this Court to
.interfere by way of special leave
can always be exercised. It is now well settled by the majority decision of
this Court in the case of Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd.(') that the expression
'"Tribunal" as used in article 136 does
not mean the
·same thing as "Court" but includes, within its
ambit,
all adjudicating bodies, provided they are constituted
by the State and are invested with judicial as distinguished from purely administrative or executive functions. The only Courts or Tribunals, which are expressly exempted from the purview of article 136, are those
which are established by or under any law relating to
the Armed Forces as laid down in clause (2) of the
article. It is well known that an appeal is a creature of
·statute and there can be no inherent right of appeal
from any judgment or determination up.less an appeal
is expressly provided for by the law itself. The powers
given by article 136 of the Constitution however are in
the nature of special or residuary powers which are
exercisable outside the purview of ordinary law, in
cases where the needs of justice demand interference by
the Supreme
Court of the land. The article itself is
worded in the widest terms possible. It vests in the
Supreme Court a plenary jurisdiction in the matter of
entertaining and hearing appeals, by granting of special
leave, against any kind of judgment or order made by
a Court or Tribunal in any cause or matter and the
powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other
laws. The Constitution for the best of reasons did not
choose to fetter or circumscribe the powers exercisable
under this article in any way. Section 105 of the Representation of the People
Act certainly gives finality
to the decision of the Election Tribunal so far as that
Act ,is concerned and does not provide for any further
appeal but that cannot in any .way cut down or affect
the overriding powers which this Court can exercise in
the matter of granting special kave under article 136
of the Constitution .
. (i) [1950]'~.C.R. 459.
I -·-·
} . \
S.C.R.
SUPREME COURT REPORTS
273
This overriding power, which has been vested in the
Supreme Court
under article 136 of the Constitution, is
in a sense wider than the prerogative right of entertaining an appeal exercised by the
Judicial Committee of
the Privy Council in England. The prerogative of the
Crown can be taken away or curtailed by express legislation and even when there are no clear words in a
particular statute expressly taking away the
Crown's
prerogative of entertaining an appeal but the scheme
and purpose of the Act show unmistakably that there
was never any intention of creating a Tribunal with
the ordinary incident of an appeal to the Crown annexed to it, the Privy Council would not admit an appeal
from the decision of such Tribunal. This is illustrated
by the decision of the Privy Council in Theberge v.
Laudry(1) upon which Mr. Hazarnavis places considerable reliance. In that case the petitioner having been
declared duly elected a member to represent the electoral district of Montmanier, in the Legislative Assembly of the Province of Quebec, his election was afterwards on petition, declared null and void, by judgment
of the superior Court under the Quebec Controverted
Elections Act, 1875, and he himself was declared guilty
of corrupt practices.
He applied for . special leave to
appeal to His Majesty in Council. The application
was refused and Lord Cairns in delivering the judgment
of the Board held, that although the prerogative of the
Crown could not be taken away or limited except by
express words and the relevant section of the Quebec
Controverted Elections Act of
1875
providing that
"such judgment shall not be
susceptible of appeal"
did not mention either the Crown or its prerogative,
yet the fair construction of the above Act as also of the
previous Act of 1872 was that it was the intention of
the Legislature to create a Tribunal for the purpose .. of
trying election petitions in a manner which would make
its decision final for all purposes and should not annex
to it the incident of its judgment being reviewed by the
Crown under its prerogative.
This
decision
in
our · opinion does not assist
Mr. Hazarnavis. In the first place article 136 is a
(1) (1876.77) 2 App. Cas. 102.
1954
Durga Shank"'
Mehta
v.
T ha/cur Raghuraj
Singh and Others.
Mukhujta].
'954:
'/Jurga shmlkar
Me/μa
"·
Thakur 'Rathuraj
· Si"ngh awl Othefs.
·Muk,htrjea J.
SOl'REME COURT REPORTS
[t955j
cdtisfitui.-lonal provisioh Whkh no Patliam'en.taty :legislation t:tn liniit 'or 'take away. In the second place the
provision being one, ·which overrides 'ordinary laws, no
presumption
can arise from words and expressions declaring an adjudication of a particular Tribunal to be
fora\ and mnclusive; that there was an intention ·to
exclude the exercise
of the special powers.
As has
been said already, the ·non obstante clause in article 329
prohibits challenge to an election either to Parliament
·or any State Legislature, except in the manner laid
down in clause (2) bf the article. But there is no prohibition of the exercise' of its powers by the Supreme
Court in proper c'ases under article 136 of the 'Constitution against the decision or determination of an Election · Tribunal which like all other judicial Tribunals
comes 'within· the purview of the article. It is certainly
desirable that the decisions on matters of disputed
election should, as soon as possible, become final and
conclusive so that the i:onititution of
the Legislature
may be distinctly and speedily known. But the powers
under artide 136 are exercisable· only uhder exceptional
circumstances. The ·article does not create any general
right of appeal froin decisions of all Tribunals. As regards the decision of this Court in Ponn'uswami 'v. Returning Officer, Namakka! Constit1Jency, and Others('),
to which reference has been made by the learned counsel, we would only desire to point out that all that this
case decided was that ·the High Court· had no jurisdiction, under article 226 of the Constitution, to interfere
by a writ of ·certiorari, with the order of a Returning
-#
lOfficer who was alleged 'to have wrongly rejected the
noD;iin'ation paper of . a particular candidate. it ·was
held that the word "election" in article 329(b) of the ,-•
. Constitution had been ·used in the wide sense to ·connote
"'-
the 'entire process,
culminating in a cahdidat_e's ·being
declared efected and that the scheme of Part XV of the
Constitution · was ·. that all · inattets which had the effect
of vitiating election should be brought U:p only after
the election was over and by way of 'an election petition. Tile particular. point; which arises· for considera-
. tion here, · was not decided in that case and Was expressly
(') [•952] S.C.R. 218.
} . \
S.:C.R.
SUPREME COURT REPORTS
left open. In our opinion . therefore the preliminary
point raised by Mr. Hazarnavis cannot succeed.
Coming now to the appellant's case, Mr. Sen who
appeared in
support of the appeal,
has pressed only
one point for our consideration. He plainly stated
that he could not challenge the propriety of the finding
arrived at by the majority of the Tribunal that respondent, Vasant Rao, was below 25 years of age at all
material times. This, he concedes, is a findjng of fact
and being based on evidence, is not open to challenge
before us in an appeal by special leave. His contention
.in substance is, that there has been no improper accept-
·ance of nomination in the present case, as has been
held by the Tribunal and consequently the provision of
section lOO(l)(c) of the Act would not be attracted to
it and the entire election could not have been declared
-void. It is true, says the learned counsel, that ·on the
finding of the Tribunal there has been a violation of or
·non-compliance with the provision of article 173 of the
·Constitution and as respondent No. 2 suffers from a
constitutional disability by reason of his under-age and
is not qualified to be chosen to fill a seat in the Legislative Assembly
of a State, his election can undoubtedly
be declared void under section 100(2) ( c) of the Act, but
there was
no justification for
pronouncing the whole
election, including that of the appellant, to be void.
The whole controversy thus centres round the point as
to whether, upon the facts admitted and proved, the
present case comes within the purview of sub-section
( 1) ( c) of section 100 ofthe Act or of sub-section (2) ( c)
·of the sa.me section. The relevant portions of section
100 of the Act so far as are material for our present
purpose may be set out as follows :-
"100. Grounds for declaring election to be void-
(1) If the Tribunal is of opinion-
( a) ... '. ....... ; ............... .
'(b) ............................ ..
( c) that the result of the election has been materially affected by the improper acceptance or rejection
~''
of. any nomination,
,
..
;the Triqunal shall declare the electic,m to be whollr void.
'1954
'Durga Shankar
Mehta
'V.
Thakur Raghuraj
·Singh and Others.
Mukherjea J.
1954
Durga S/wckar
M1hta
V•
Thakur Raghuraj
Singh and Others.
Mu/J,,rje• J.
Z76
SUPREME COURT ,REPORTS
[1955}
.
. ' .
.
' '
.
. .. . . . . . . . . . ··'· ........................ .
(2) Subject to the provisions of sub-section
(3), if
the Tribunal is of opinion-
( a) ........................... .
(b) ........................... .
( c) that the result of the election has been materi-·
ally affected by the improper reception or refusal of a·
vote or by the reception of any vote which is void, or
by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made
under this Act or of any other Act or rules relating t<>
the election, or by any mistake in the use of any prescribed form,
the Tribunal shall declare the election of the returned
candidate to be void."
The first point for our consideration is whether the
nomination of Vasant Rao was improperly accepted
by
the Returning Officer and that has materially affected
the result of the election. It is not suggested on behalf
of . the respondent
that the nomination paper filed
by
Vasant Rao was in any manner defective. It is admitted that the names and electoral numbers of the candidate and his proposer and seconder
as
entered there
were the same as those entered in the electoral rolls.
It is also not disputed that the nomination paper was.
received within proper time as is laid down in section
33, sub-section ( 4) of the Act. Section 36 of the Act
provides for scrutiny of nominations and under subsection (2) the Returning Officer has got
to examine
the nomination papers
and decide all objections that
may be made to any nomination and he 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 grounds which are specified in the different clauses of the sub-section.
The
ground mentioned in clause (a) of the sub-section is,
that the candidate. is· not qualified · to be chosen to fill
the seat under the Constitution or the Act. The contention of the respondent No. 1 is that. the nomination
_of Vasan\ Rao should have been rejected on this ground
and as the Returning Officer did not do that, his act
••
I
S.C.R.
SUPREME COURT REPORTS
;~ ·amounted to an improper acceptance of nomination
within the meaning of section lOO(l)(c) of the Act. We
do not think that this contention is sound. If the
want of qualification of a candidate does not appear
on the face of the nomination paper or of the electoral
roll, but is a matter which could be established only
by evidence, an enquiry at the stage of scrutiny of the
nomination papers is required under the Act only if
there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he
thinks proper on the result of which he can either
accept or reject the nomination. But when the candidate appears to be properly qualified on the face of
the electoral roll and the nomination
paper and no
objection is raised to the nomination, the Returning
>-
Officer has no other alternative but to accept the nomi-
> nation. This would be apparent from section 36, subsection (7) of the Act which runs as follows :
).
,, \
"(7) For the purposes of this section-
(a) the production of any certified copy of an entry
made in the electoral roll of any constituency shall be
conclusive evidence of the right of any elector named
in that entry to stand for election or to subscribe a
nomination paper, as the case may be, unless it is proved that the candidate is disqualified under the Constitution or this Act, or that the proposer or seconder,
as the case may be, is disqualified under sub-section (2)
of section 33."
In other words, the electoral roll is conclusive as to
the qualification of the elector except where a disqualification is expressly alleged or proved.
The electoral
roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore
he was fully qualified to be chosen a member of the
State Legislative Assembly.
As no objection was taken
to his nomination before the Returning Officer at the
time of scrutiny, the latter was bound to take the entry
in the electoral roll as conclusive; and if in these
circumstances he did not reject the nomination of
Vasant Rao, it cannot be said that this was an improper acceptance of
nomination on his
part which
l954
Durga Shanktw
Mehta
v.
Thakur Raghura
Singh and Others.
Mukherjea J.
1954
·Durga fSharikar
Mehta
.v.
Thahw dlaghurqj
Sin·gh and Othets.
Mukhn"ea ].
7-78
SUPREME COURT REPOR'tS
TJ~551
;ection·iOO(l)(c) nf the Ax:t contemplates. It would·:have
been an improper acceptance,-:if the want of •qualification
was apparent ·on the electoral' roll itself or ·on' the face
rof ·the nnmination paper and the Reruining · ·Officer
overlooked 'that •defect or jf any ·objeetion was raised
·and enqillry made .as ro the absence of qualificlftion in
the candidate and the Returning . Officer came to a
wrong conclusion ·On the · materials placed before him.
When neither of these things happened, the :acceptance
of the nomination by the Returning Officer· must be
deemed to be a proper acceptance.· It is certainly not
final and the Election Tribunal ·may; on evidence placed
before it, ·come to a finding that the candidate was not
qualified at all.
·But the 'election should be held to be
void on the 'ground of .the· con~titutional disqualification
of the candidate and not on the ground that his nomination
was
improperly »ccepted · '.by
the · Returning
Officer. In our opinion Mr. Sen is· right that a case of
this description .comes under sub-section (2)(c) of section 100 and not under sub-section (l)(c) of the section
as it really amounts to holding an election without
complying with the provisions .of the 'Constitution, and
that is one of the grounds specified in Clause ( c) ii.£ siibsection . (2)., The , e'.'pression "non-compliance with the
provisions of the Constitution" is in out opinion suffi-
....,_
ci~ntly wide· to cover such cases where the question is
not one of improper acceptdnce or rejection of 'the
nomination by 'the Retllrning Officer, but 'there 'is a
fundamental disability in the candidate to stand for
dection at all.
The English law, after the passing of
the Ballot Act of .1872, is . substantially the same ·as has
been explained i11 the ·case of .Stowe v. follifje(').
The
register whi0h corresponds' to . our .electoral' roll is / ·(
regardecd as :conclusive except in cases, whe.re persons
ate prohibited ·from •Voting by any , statute ·Or ·by the
·common· law of · Parliament.
, . ,
· It . is. arg)led · on . 'behalf~ of '~he ,respo~dent that .the
exp~ession "non-complia,11ce".
.as . u.sed
in .• sub-.~ection
(2) (c), woul\l suggest, the, idea of.not a.cting aFcording to
any , rule . or co1'1rnand a9,d that.. th~ .expressi9n , i~ not
qJ:l~te appfopriate .in . descri~ing
,a
mere ... lack
o,f
(1) 9 C.P. 734.
(
••
--
--
•
~.CR.
SUPREME COURT REPO.RTS
2~9.
qualification. This, we think, would be a narrow way of
looking at the thing.
When a person is incapable of
being chosen as a member of a. State Assembly under
the provisions of the Constitution itself but has nevertheless been returned as such at an election, it can be
said without impropriety that there has been non-compliance with the. provisions of the Constitution materially affecting the result of the election. . There is no
material difference
between
"non-compliance"
and
"non-observance" or "breach" and this item in clause
( c) of sub-section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions o~ the Constitution or of the Act
but which have not been specifically enumerated in the
> . other portions of the clause. When a person is not
qualified to be elected a member, there can be no doubt
that the Election Tribunal has got to declare his election to be void.. Under section 98 of the Act this is
one of the orders which the Election Tribunal is competent to make. If it is said that se.ction 100 of the
Act enumerates exhaustively the grounds on which
an election could be held void either as a whole or with
regard to the returned candidate, we think that it
would be a correct view to take that in the case of a
candidate who is constitutionally incapable of being
returned as a member there is non-compliance with
the provisions of the Constitution in the holding of the
election and as such sub-section
(2) ( c) of section 100
of the Act applies. The result therefore is that in our
opinion the contention of the appellant succeeds. We
;_
'
allow the appeal in part and modify the order of the
Election Tribunal to this extent that the election of
respondent No. 2 Vasant Rao only
is
declared to be
void ; the election of the appellant however will stand.
We make no order as to costs of this appeal.
Order accordingly.
"
1954
Durga Shankar
Metha
v.
Thakur Raghuraj
Singh and Others.
Mukherjea J.