# N. T. VELUSW AMI THEVAR v. G. RAJA NAINAR AND OTHERS

- **Citation:** [1959] Supp. 1 S.C.R. 623
- **Court:** Supreme Court of India
- **Decided:** 1958-01-29
- **Case number:** Civil Appeals Nos. 231 and 232 of 1958
- **Bench:** T. L. Venkatarama Aiyar, P. B. Gajendragadkar, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-t-velusw-ami-thevar-v-g-raja-nainar-and-others-1574
- **Pages:** 16

## Headnote

Election Dispute-Rejection of Nomination paper by Returning
Officer-Validity of rejection raised before Election petition-
] urisdiction of Tribunal to entertain grounds of disqualification not
raised before Returning Officer-" Improperly rejected", meaning of
-Representation of the People Act, r95r (43 of r95r), ss. 7, 36(2),
roo(r)(c), roo(r)(d)(i).
The nomination paper of the fourth respondent who was
one of the candidates for election to the Legislative Assembly of
the State, was rejected by the returning officer on the ground
that as he was the Headmaster of a Government-aided school he
was disqualified under s. 7(d) and (e) of the Representation of the
People Act, 1951, to be chosen for election. One of the voters of
the constituency filed a petition praying that the election of the
appellant be declared void under s. rno(1)(c) of the Act on the
ground that the rejection of the nomination paper of the fourth
respondent was improper because the latter had ceased to be a
Headmaster at the time of his nomination and that, further, the
institution was a private one. The appellant, who was the
second respondent in the petition, contended that the nomination
paper of the fourth respondent was rightly rejected not only on
the ground put forward before the returning officer but also for
the reasons that he was interested in Government contracts and
that he had agreed to serve as a teacher under the District
Board. The question was whether in an election petition. chalJe11ging the validity of the rejection of a nomination paper under
s. rno(r)(c) of the Act, it was open to the parties to raise grounds
Subba Rao ].
624
SUPREME COURT REPORTS [1959] Supp.
z958
of disqualification other than those put forward before the re·
turning officer. It was contended for the respondent that the
Veluswami Thevar proceedings before the Election Tribunal were really by way of
v.
appeal against the decision of the returning officer and that,
Raja :blainar
therefore, the scope of the enquiry in the election petition must
be.co-extensive with that before the returning officer and must
he limited to the grounds taken before him.
Held, that an election petition is an original proceeding
instituted by the presentation of a petition under s. Sr of the
Representation of the People Act, 1951, and that the jurisdiction
which a Tribunal exercises in he.aring an election petition even
when it raises a question under s. roo(r)(c) of the Act is not in
the nature of an appeal against the decision of the returning
officer.
Held, further, that in considering whether a nomination
paper was improperly rejected under s. roo(r)(c), the real question for decision would be whether the candidate was duly qualified and was not subject to any disqualifications as provided in
s. 36(2) of the Act. The Tribum,l would, consequently, be com·
petent to entertain grounds of disqualification other than those
put forward before the returning officer.
The expression" improperly rejected" ins. roo(r)(c) of the
Act, explained.
Mengh Raj v. Bhimandas, (1952) 2 E. L. R. 301, Tej Singh v.
Election Trib1mal, J aip11r, (1954) 9 E. L. R.· 193 and Dhanraj
Deshlchara v. Vishwanath Y. Tamaskar, (1958) 15 E. L. R. 260,
approved.

## Text

(1) S.C.R.
SUPREME COURT REPORTS
623
ORDER
The appeal is allowed. The order of the Income Basheshar Nath
Tax Commissioner, Delhi, dated January 29, 1958, is Th c v ...
'd
d
11
d"
d"
.L'
•
I
e
o"'"''ss1oner
set as1 e an a procee mgs now pen mg 1or Imp eof Income-tax
mentation of the order of Union Government dated Delhi & Rajastl:an
July 5, 1954, a.re quashed. The appellant shall get
& Another
costs of this appeal.
N. T. VELUSW AMI THEVAR
v.
G. RAJA NAINAR AND OTHERS
(T. L. VENKATARAMA AIYAR, P. B. GAJENDRAGADKAR
and A. K. SARKAR, JJ.)
Election Dispute-Rejection of Nomination paper by Returning
Officer-Validity of rejection raised before Election petition-
] urisdiction of Tribunal to entertain grounds of disqualification not
raised before Returning Officer-" Improperly rejected", meaning of
-Representation of the People Act, r95r (43 of r95r), ss. 7, 36(2),
roo(r)(c), roo(r)(d)(i).
The nomination paper of the fourth respondent who was
one of the candidates for election to the Legislative Assembly of
the State, was rejected by the returning officer on the ground
that as he was the Headmaster of a Government-aided school he
was disqualified under s. 7(d) and (e) of the Representation of the
People Act, 1951, to be chosen for election. One of the voters of
the constituency filed a petition praying that the election of the
appellant be declared void under s. rno(1)(c) of the Act on the
ground that the rejection of the nomination paper of the fourth
respondent was improper because the latter had ceased to be a
Headmaster at the time of his nomination and that, further, the
institution was a private one. The appellant, who was the
second respondent in the petition, contended that the nomination
paper of the fourth respondent was rightly rejected not only on
the ground put forward before the returning officer but also for
the reasons that he was interested in Government contracts and
that he had agreed to serve as a teacher under the District
Board. The question was whether in an election petition. chalJe11ging the validity of the rejection of a nomination paper under
s. rno(r)(c) of the Act, it was open to the parties to raise grounds
Subba Rao ].
624
SUPREME COURT REPORTS [1959] Supp.
z958
of disqualification other than those put forward before the re·
turning officer. It was contended for the respondent that the
Veluswami Thevar proceedings before the Election Tribunal were really by way of
v.
appeal against the decision of the returning officer and that,
Raja :blainar
therefore, the scope of the enquiry in the election petition must
be.co-extensive with that before the returning officer and must
he limited to the grounds taken before him.
Held, that an election petition is an original proceeding
instituted by the presentation of a petition under s. Sr of the
Representation of the People Act, 1951, and that the jurisdiction
which a Tribunal exercises in he.aring an election petition even
when it raises a question under s. roo(r)(c) of the Act is not in
the nature of an appeal against the decision of the returning
officer.
Held, further, that in considering whether a nomination
paper was improperly rejected under s. roo(r)(c), the real question for decision would be whether the candidate was duly qualified and was not subject to any disqualifications as provided in
s. 36(2) of the Act. The Tribum,l would, consequently, be com·
petent to entertain grounds of disqualification other than those
put forward before the returning officer.
The expression" improperly rejected" ins. roo(r)(c) of the
Act, explained.
Mengh Raj v. Bhimandas, (1952) 2 E. L. R. 301, Tej Singh v.
Election Trib1mal, J aip11r, (1954) 9 E. L. R.· 193 and Dhanraj
Deshlchara v. Vishwanath Y. Tamaskar, (1958) 15 E. L. R. 260,
approved.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
231 and 232 of 1958.
Appeal by special leave from the judgment and
order dated October 21, 1957, of the Madras High
Court in Writ Petitions Nos. 675 and 676 of 1957.
R. Ganapathy Iyer, S. B. Adityan and G. Gopa/,a.
krishnan, for the appellant.
A. N. Sinha and P. K. Mukherjee, for respondent
No. 1.
1958. November 24.
The Judgment of the Court
was delivered by
Ven/1atarama
VENKATAHAl\!A AIYAR, J.-These appeals raise a
Aiya. J.
question of considerable importance as to the scope of
an enquiry in an election petition wherein election
is called in question under s. lOO(l)(c) of the Representation· of the People Act, 1951 (43 of 1951), on the
ground that a nomination paper had been improperly
rejected.
(1) S.C.R.
SUPREME COURT REPORTS
625
The facts are that during the general elections
r958
which were held in 1957 six persons including the v 1
--. Th
.
h
d
d
e uswami
cvar
appellant, Veluswam1 Thevar, t e secon
respon ent
v.
Chellapandian, and the fourth respondent, ArunachaRaja Nainar
lam, were nominated for election to the Legislative
Assembly of the State of Madras from Alangulam
Venkatarama
Constituency in the District of Tirunelveli. At the
Aiyar f.
time of the scrutiny which was on February 1, 1957,
Chellapandian raised an objection to the nomination
of Arunachalam on the ground that he was the Head
Master of the National Training School, Tiruchendur,
which was a Government-aided school, and that he
was therefore disqualified under s. 7, els. (d) and (e) of
the Representation of the People Act., 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection,
the returning officer observed :
"Sri S. Arunachalam is not present at the time of
scrutiny of nominations nor any authorised agent of
his could take notice of the objection and file a reply.
In \iew of the objection 'vhich has not been cleared
by Sri S. Arunachalam by satisfying me that he is not
holding an office of profit in a concern in which the
State Government has financial interest, the objection
is upheld and Sri S. Arunachalam is disqualified under
Sections 7(d) and (e) of Act 43 of 1951.
Accordingly
his nomination is rejected."
The five nomination papers were accepted; two of
the candidates subsequently withdrew from the election; the other three went to the polls, and ou March
10, 1957, the appellant who secured the largest number
of votes was declared elected.
On April 18, 1957, Raja Nainar, the first respondent,
who was not a candidate but a voter filed E. P.
No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection
of the nomination paper of Arunachalam was improper, because he had ceased to be a Head i\Iaster at the
time of his nomination, and that further the institution was a private one. The appellant filed a. written
statement in which he pleaded that Arunachalam was
19
626
SUPREME COURT HEPORTS
(1959] Supp.
1958
not qualified to be chosen not merely on the ground
. .
put forward by Ohella.pandia.n before the returning
V•l••w•mi 1 h""' officer but also on the grounds that he was interested
v.
as a partner in con tracts for the execution of works
Uaja .'Vaii""
for the Government., and that further he had entered
Vn;kuta'""'"
into an agreement with the District Boa.rd, Chittoor,
.Hya, J.
to serve as a teacher in that Board, and that his
nomination paper was therefore
rightly rejected.
Raja Na.inar then came out with the application, 1. A.
No. 5 of 1957, out of which the present proceedings
arise, to strike out the additional grounds of disqnaliiication raised in the statement of the appellant on the
ground that the Tribunal had no jurisdictiou to enquire into any ground of disqualification which was
not t-aken before the returning officer, and that accordingly the new grounds put forward by the appellant
should be struck out.
By its order dated August 17, 1957, the Tribunal
held that the question to be decided by it was whether
there was a v11-lid nomination paper, and that to
decide that, it could go into grounds other than those
which were put forward before the returning officer,
and, in that view, dismissed the application. The
correctness of this order was challenged by Raja Nainar in two Vi'rit Petitions Nos. 675 and 676 of 1957,
pteferred under Art. 226.
Therein, he repeated his
contention that it was not competent to the Tribunal
to enquire into any but the grounds which had been
put forward before the returning officer, and prayed
tb.at a writ of certiorari be issued to quash the order
in I. A. No. 5 of 1957 and a writ of prohibition, to restrain the Tribunal
from enquiring into t-he new
grounds raised by the appellant.
These applications were heard by a Bench of the
Madras High Court consisting of Rajagopalan and
Rajagopala Ayyangar, JJ., who upheld the contention of the petitioner, .and stated their conclusion in
these terms :
""Ve are clearly of opinion that the enquiry
before the Tribunal must be restricted to the objections which the returning officer had to consider and
decide, but not necessarily to the material placed
(1) S.C.R. SUPREME COURT REPORTS
627
before tlw returning officer at the stage of the sumr958
mary enquiry. The Tribunal has jurisdiction ~o a.?ju- vcz,, .. ,.,;:;:: n .. w
dicate upon the truth and validity of those objections
v.
on relevant material, eveu if that material be other
Ra.ia Nai•m
than that placed before the returning officer.
The
Tribunal has no jul'isdiction to investigate the truth
l'enkataramd
or validity of the objections which were not put forAi)·ar 1
ward before the returning otlieer, and which he had
therefore no occasio11 to consider.
Ouc:e a.gain we
have to point Pllt that we a1·e discussing only the
position of 1~ candidate whostl nomination wit~ rejected,
and not, for instance, that nf a ret.nrned cttrnlidate."
A furt.he1· objection vrns ahm takeu before the learned
judges that. a.s t.ht'1 decision of U1e Election Tribunal
was open to appeal under s. l l6A of the Act, the
court should, in exet·cise of its di~cretion under Art. 226,
decline to entertain writ petitions against interlocutory order8.
But the learned judges held that as the
Tribunal had no jurisdietion to entert1iin ground11
other t.han those which were pnt forw1Hrl before the
returning officer, writs could issue under Art. 226. In
the result, they quashed the order of the Electiou Tribunal in I. A. No. 5 of 1957, and issued ti \Hit of
mandamus directing it to dispose of the application
afresh iu accordance with law as laid down iu the
judgment. It is against this judgment that the pn•-
sent appeals h1n-e been p1·efcrred on lei.we g1·anted by
this Court under Art. 136, and the point that arises
for decision is whether in an election petition questioning t.he pl'Upriety of the rejection of a nomination
paper under s. lOO(l)(c) of the Act, it is open to the
parties to raise grounds of disqualification other than
those put forwtud before the returning otlieer.
rt will be 0011venient at this stage to refer to the
prnvisions of the Act bearing on this question. Section
:~2 of the Act proddes that,
"Any person may be nominated as a candidate
for election to till a seat if he is qualified to be chosen
t-o fill that seat under the proYisions of thP C'onstitut ion and t.J1i.s .-\ct.''
rnder s. 33(1), the candidate is to deliver
to the
ret.urning officer a nomination pa.per completed in tht>
628
SUPREME COURT REPORTS [1959] Supp.
19J8
prescribed form and signed by the candidate and by
an elector of the constituency as proposer. Section 33
Veluswami Thevar (4) enacts that,
R . ~:., .
"On the presentation of a nomination paper, the
•;• ' ainer
returning officer shall satisfy himself that the names
venkaioram•
and electoral roll numbers of the candidate and his
Aiyar J.
proposer as entered in the nomination paper are the
same as those entered in the electoral rolls :
Provided that the returning officer shall permit
any clerical or technical error in the nomination pape1·
in regard to the said names or numbers to be corrected
in order to bring them into conformity with the corresponding entries in the electoral rolls; and where
necessary, direct that any clerical or printing error in
the said entries shall be overlooked."
Section 35 provides inter alia that the returning officer
shall cause to be affixed in some conspicuous place in
his office a notice of the nomination containing descriptions similar to those contained in the nomination
paper both of the candidate and of the proposer.
Section 36, omitting what is not material, is as follows:
36. (1) "On the date fixed for the scrutiny of nominations under section 30, the candidates, their electii:Jn
agents, one proposer of each candidate, and one other
person duly authorized in writing by each candidate,
but no other person, may attend at such time and
place as the returning officer may appoint; and the
returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and
in the manner laid down in section 33.
(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,
reject any nomination on any of the
following
grounds:-
(a) that the candidate either is not qualified or is
disqualified for being chosen to fill the seat under any
of the following provisions that may be applicable,
namely:-
(l) S.C.R.
SUPREME COURT REPORTS
629
Articles 84, 102, 173 and 191,
Pa.rt II of this Act,
or
(b) that there has been a failure to comply with
any of the provisions of section 33 or section 34 ; or
(c} that the signature of the candidate or the proposer on the nomination paper is not genuine .
• • • e • e •• o e 0 0 0 • o 0 0 • t 0 0 0 •
0 0. o 0. 0 0 0 0 0 0 0 0 0 0 •• o o 0 0 0 t 0 o 0 0 o 0 o 0 I 0 0 0 0 I 0 0 0 0 o
(5) The returning officer shall hold the scrutiny on
the date appointed in this behalf under clause (b) of
section 30 and shall not allow any adjournment of the
proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by
causes beyond his control:
Provided that in case an objection is ruatle the
candidate concerned may be allowed time to rebut it
not later than the next day but one following the date
fixed for scrutiny, and the returning officer shall record
his decision on the date to which the proceedings have
been adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or rejecting
the same and, if the nomination paper is rejected, shall
record in writing a brief statement of his reasons for
such rejection."
Then, we have s. lOO(l)(c), the construction of which
is the main point for determination. It is as follows:
100. (1) "Subject to the provisions of sub-section
(2), if the Tribunal is of opinion-
( c) that any nomination has been improperly
rejected; ......
the Tribunal shall declare the election of t.he returned
candidate to be void."
Now, the whole controversy between the parties is
as to what the expression "improperly rejected" in
s. lOO(l)(c) means. According to the appellant, when
the nomination paper of a candidate who is under no
such disqualification as is mentioned in s. 36(2} has
been rejected, that is improper rejection within
s. IOO(l)(c).
According to the respondent, when the
V 1luswami T htvar
v.
Raja Naina1
Venkatarama
Aiyar J.
630
SUPREME COURT REPORTS
[1959) Supp.
r958
nomination papel' of a oandidate is rejeoted by the
returning office I' on the ground that he is subject to a
V•l•su•ami n,.., specified disqualification, the rejection is improper, if
Raja ·~'ofra.
it is found t.hat that disqualification does not exist. If
the former Yiew is correct, then the scope of an enquiry
v,nk••••••""
before the Tribunal must extend to all matters which
Aiyat J.
1He mentioned in s. 36(2), and if the latter, then it
must be limited to determining whether the gronnd on
which tho returning officer has reject..d the nomination is "·ell-founded.
Now, to decide what the expression "improperly rejected" in s. lOO(l)(c) precisely
imports, it is necessary to examine the relevant provisions of the Act bearing on the question and the
setting of the above :1ection therein. Under s. 32 of
t.he Act, any person may be nominated as a candidate
for election if he is duly qualified nuder the provisions
of the Constitution and t.he Act.
Sect.ion 36(2) authorises the returning officer to reject. any nomination
paper on the ground that he is either not qualified,
that is, 1111der
s~. 3 to 7 of the Act, or is disqualified
under the provisions referred to therein. lf there are
no grounds for rejecting a nominatkou paper under
· s. 36(2), then it has to be accepted, and the name of
the candidate is to be included in a list. Vide s. 36(8).
Then, we eome to s. lOO(lXc) aud ti. lOO(l)(d)(i), which
provide a remedy to persons who Me aggrieYed by an
order improperly rejecting or improperly accepting
any nominat.ion. lu the context, it appears to us that
tho improper rejection or acceptance must have reference to s. 36(2), and t.hat the rejection of a nomiuation
paper of a candidate who is qualified to be chosen fur
election and who does not tiU!fer from any of the disqualifications mentioned iu s. 36(2) would be improper
within s. IOO(l)(c), and that, likewise, acceptance of a
nomination paper of a candidate who is not qualified
or who is disqualified will equally be improper under
s. IOO(l)(d)(i).
Section 32 confers a substantfre right
on a. candidate to be chosen to the legislature subject.
onlv to the limitations enacted in Arts. 84, 102, 173
and 191 of the Constitution and ss. 3 to 7 of the Act,
and ss. 36 and 100 provide the machinery for the
exercise and enforcement of that right. It is a sound
•
I _,
(1) S.C.lt. SUPREME COURT REPORTS
631
rule of construction that procedural enactments shoul<l
i958
be construed liberally and in such manner as to rende!' v 1
. -.
·
c
f
b
•
• h
ff'
.
t us'(<•am1
7 heuar
the en~orcement o su stant1ve rig ts e echve. Readv.
ings s. lOO(l)(c) in t.he context of the whole enactment,
Rt1ja .Vai11ar
we think that an enquiry before t.he Tribunal must
embrace all the matters as to qualification and disquav".ka1a1am~
lification mentioned in s. 36(2), and that it cannot bt,
Ai.v ... 1
limited to the particular ground of disqualificatfon
which was t.aken before the ret.urning officer.
It was contended for the respondent that the proceedings before the Tribunal are really by way of
appeal against th" decision of the returning officer, and
that, therefore, tl1,. scope of the enquiry in the election
petition must be co-extensive with that before the
returning officer, and must be limited to the ground
taken before him.
It. was argued that a decision
could be said to be improper only with referenC'e
to a ground which was put forward and rl.ecided iu
a particular manner by the returning officer, and
that therefore the expression " improperly rejected"
would, in its true connotation, restrict the scope of the
enquiry before the Tribunal to the ground taken before
the returning officer. We are unable to agree with thiR
contention. The jurisdiction which a Tribunal exercises in hearing an election petition even when it raises
a question under s. lOO(l)(c) is not in the nature of an
appeal against the decision of the returning officer.
An election petition is an original proceeding instituted by the presentation of a petition under s. 81 of the
Act. The respondents have a right to file written
statements by way of reply t-0 it; issues have to be
framed, and subject to the provisions of the Act, the
provisions of the Code of Civil Procedure regulate the
trial of the petition.
All the parties have the right to
adduce evidence, and that is of the essence of an original proceeding as contrasted with a proceeding by way
of appeal. That being the character of the proceedings, the rule applicable is that which governs the
trial of all original proceedings ; that is, it is open to a.
party to put forward all grounds in support of or
negation of the claim, subject only to such limitations
a.s may be found in the Act.
632
SUPREME COURT REPORTS [1959] Supp.
1958
It should be noted in this connection that if a petition to set aside an election on the ground of improper
V•luswami Theoa. rejection of a nomination paper is in the nature of an
Raja ~ainar appeal against the decision of the ret.urning officer,
t,hen fogically speaking, the decision of the Tribunal
v .. kata1·an;a
must be based only on the materials placed before the
Aiy•r j.
returning officer given with respect to the ground
which was urged before him, and no fresh evidence
could be admitted before the Tribunal except in accordance with 0. 41, R. 27. The learned judges in the
court below, however, observe that though the enquiry
before the Tribunal is restricted to the particular
ground put forward before the returning officer, it is
not restricted to the material placed before him, and
that all evidence bearing on that ground could be adduced before the Tribunal. This, in our view, is quite
correct. The enquiry which a returning officer has to
make under s. 36 is summary in character. He may make
" such summary enquiry, if any, as he thinks necessary "; he can act suo motu. Such being the nature of
the enquiry, the right which is given to a party under
s. lOO(l)(c) ands. lOO(l)(d)(i) to challenge the propriety
of an order of rejection or acceptance of a nomination
pa per would become illusory, if the Tribunal is to ba8e
its decision only on the materials placed before the
returning officer.
It was contended for the respondent that even with
reference to the ground taken before the returning
officer, no evidence other than what was placed before
him could be brought before the Tribunal, and he
relied on the following observations of the learned
judges in Oharanjit Lal v. Lehri Singh('):
"Whether a nomination has been improperly
rejected or not, has to be considered in relation to the
state of evidence before the returning officer at the
time of the scrutiny. The testimony of the returning
officer shows that he rejected the nomination, because
it did not appear to him that on the question of age
the candidate Shri Pirthi was qualified to stand for
election."
(1) A. I. R. 1958 Punj. 433, 435·
•
(1) S.C.R.
SUPREME COURT REPORTS
633
There, a nomination pa.per had been rejected by the
r95B
returning officer on the ground that the candidate <lid
. Tb
h
l'fi
.
. db Vel11swam1
evar
not appear to possess t e age qua i cation reqmre
y
v.
Art. 173. The correctness ·of this order was challengRaja Nainar
ed in an election petition. Evidence was taken as to
the age of the candidate in this petition, and eventualVenkatarama
ly it was held that the order of the returning officer
Aiyar J.
was right. In the order of rejection, the returning
officer also stated :
" The nomination is rejected as the age is not
mentioned in the nomination paper. Neither the candidate nor the proposer or any person duly authorised
on his behalf is present to testify to his age."
Now, the argument before the High Court was that
the failure to mention the age in the nomination paper
was a formal defect which should have been condoned
under s. 36(4) of the Act.
The learned judges held
that the defect was not merely one of failure to mention the age but of want of the requisite qualification
in age, and that that could not be cured under s. 36(4).
In this context, the observations relied on could not
be read
as meaning that no evidence could be
adduced even in respect of a ground which
w~s
urged before the returning officer, as, in fact, evidence
was taken before the Tribunal and a finding given,
and if they meant what the respondent suggests they
do, we do not agree with them. It is to be noted that
in many of the cases which came before this Court, as
for example, Durga Shankar JJfehta v. Thakur Raghuraj
Singh and others (1), the finding of the Tribunal was
based on fresh evidence admitted before it, and the
propriety of such admission was never questioned.
And if the true position is, as we have held it is, that
it is open to the parties to adduce fresh evidence on
the matter in issue, it is difficult to imagine how the
proceedings before the Tribunal can be regarded as in
the nature of appeal against the decision of the returning officer.
In support of his contention that it is only the
ground that is urged before the returning officer that
(1) [1955] 1 S.C.H .. 267.
80
1·
\
634
SUPREME COURT REPORTS [1959) Supp.
z95B
can be raised before the Tribunal, Mr. Sinha, learned
., 1
--:- T'
counsel for the respondent, relies on the provision in
' 1 uswam•
nevar
36(6} th t
h
· t'
.
·
· t d th
v.
s.
a w en a nomma 10n pa per is reiec e ,
e
R•j• N•in••
returning officer should record his reasons therefor.
The object of this provision, it is argued, is to enable
Yenk•t•r•m•
the Tribunal to decide whether the order ofthereturnAiyar J.
ing officer is right or not, and by implication it confin.
es the scope of the enquiry before the Tribunal to the
ground put forward before the returning officer. This
contention is, in our opinion, unsound.
Now, when
a nomination paper is accepted, s. 36(6) does not require that any reason should be recorded therefor. If
the contention of the respondent is right, it would
follow that acceptance of a nomination paper can
never be questioned.
But that would be against
s. lOO(l}(d}(i), and it must therefore be held that an
acceptance can be questioned on all the grounds available under s. 36(2). · Section IOO(l}(d}(i) deals with
improper acceptance of a nomination paper, and if the
word "improper" in that provision has reference to
the matters mentioned in s. 36(2), it must have the
same connotation ins. lOO(l)(c} as well.
The word
"improper" which occurs in both s. lOO(l}(c) and
s. lOO(l)(d}(i) must bear the same meaning in both the
provisions, unless there is something in the context to
the contrary, and none such has been shown.
There is another difficulty in the way of accepting
this argument of the respondent. A candidate may
be subject to more than one disqualification, and his
nomination paper may be questioned on all those
grounds. Supposing tha.t the returning officer upholds
one objection and rejects the nomination paper on the
basis of that objection without going into other objections, notwithstanding that under s. 36(2) he has to
decide all the objections, is it open to the respondents
in the election petition to . adduce evidence on those
objections ? According to the respondent, it is not,
so that if the decision of the returning officer on the
objection on which he rejected the nomination paper
is held to be bad, the Tribunal has no option but to
set aside the election under s. lOO(l)(c), even though the
candidate was, in fact, disqualified and his nomination
(I) S.C.R. SUPREME COURT REPORTS
635
paper was rightly rejected.
Mr. Sinha for the
19$8
respondent concedes that the result would be anoma.1- v 1
-:"'TA
•
•
I USWllflll
1v11r
ous, but he says that the Law of Elect10n 1s full of
v.
anomalies, and this is one of them, and that is no
Raja Nait111r
reason for not interpreting the law on its own terms. It
is no doubt true that if on its true
construc~1on, a
Venkatarama
statute leads to anomalous results, the Courts have no
Aiyar J.
option but to give effect to it and leave it to the legislature to amend and alter the law.
But when on a
construction of a statute, two views are possible, one
which results in an anomaly and the other· not, it is
our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles
with anomalies. Anomalies will disappear, and the
law will be found to be simple and logical, if it is
understood that when a question is raised in an election petition as to the propriety of the rejection of a
nomination paper, the point to be decided is about th~
propriety of the nomination and not the decision
of the returning officer on the materials placed before
him, and that decision must depend on whether the
candidate is duly qualified and is not subject to any
disqualifications as provided in s. 36(2)
It remains to deal with one:more contention advanced on behalf of the respondent, and that is basedon
the following observations in Hari
Vishnu
Kamath v. Syed Ahmad Ishaque an4 others (1):
"Under this provision [R. 47(4)], the Tribunal is
constituted a court of appeal against the decision of the
returning officer, and as such its jurisdiction must be
co-extensive with that of the 'returning officer and
cannot extend further."
The argument is that if the jurisdiction of the Tribunal is co-extensive with that of the returning officer,
then the enquiry before it must be confined to the
grounds which were urged before the returning officer.
Now, the observations quoted above were made
statedly with reference to R. 47, and assuming that
they apply to an enquiry under s. lOO(l)(c), the question still remains, what is the jurisdiction of the returning officer in he11oring objections to nomination papers ?
(1) [1955] I S.C.R. no4, n32.
•
•
636
SUPREME COURT REPORTS [1959] Supp.
z958
His jurisdiction is defined in s. 36(2), and the Tribunal
VI
-. Th
must therefore have jurisdiction to decide all the ques-
• uswam•
"""' t'
h' h
b
· d
d
h t
·
Th " t
v.
10ns w IC can e raise un er t a sect10n.
e iac
Raja Naina•
that a particular ground which could have been raised
was not, in fact, raised before the returning officer does
Venkata•ama
not put an end to his jurisdiction to decide it, and
Aiya• f.
what he could have decided ifit had been raised, could
. be decided by the Tribunal, when raised.
Mr. Ganapathy Iyer, learned coun8el for the appellant, invited our attention to the decisions of the
Election Tribunals on the question whether grounds
other than those raised before the returning officer
could be put forward in an enquiry in an election petition. They held, with one solitary exception, that it
is permissible, and indeed, it is stated in Mengh Raj v.
Bhimanda,~ (1) as settled law that the rejection of a
nomination paper can be sustained on grounds not
raised before the returning officer. If the legislature
which must be taken to have knowledge of the law as
interpreted in those decisions wanted to make a.
departure from it, it would have said so in clear terms,
and in the absence of such an expression, it would be
right to interpret s. lOO(l)(c) as not intended to alter
the law as laid down in those decisions.
It is now necessary to refer to the decisions which
have been cited before us. In Durga Shankar Mehta's
case('), the election was to a double-member constituency. The appellant who obtained the largest
number of votes was declared elected to the general
seat and one Vasantarao, to the reserved seat. The
validity of the election was challenged on the ground
that Vasantarao was below the age of 25 years, and
was, therefore, disqualified to stand. The Election
Tribunal upheld that objection, and set aside the entire
election. The decision was taken in appeal to this
Court, and the point for . determination was whether
the election of the appellant was liable to be set aside
on account of the disqualification of Vasantarao. It
was held that the matter fell withins. 100(2)(c) as it
then stood and not under s. IOO(l)(c), and that the
election of the appellant could not be declared void.
(1) [1952] z E.L.R. 301, 310.
(z) [1955] 1 S.C.R. 267 .
(1) S.C.R.
SUPREME COURT REPORTS
637
This is not a direct pronouncement on the point now
19S8
in controversy, and that is conceded. In Vashist v 1 -. Tit
•
e us wami
evar
Narain Sharma v. Dev Chandra and others (1), a quesv.
tion was raised as to what would be "improper
Roja Naittar
acceptance " within the meaning of s. 100 ; but in the
view taken by this Court, no opinion was expressed
Vettkatarama
thereon.
Aiyar J.
The question now under consideration came up
directly for decision before the High Court of Rajasthan in Tej Singh v~ Election Tribunal, Jaipur (2), and
it was held that the respondent to an election petition
was entitled to raise a plea that the nomination of the
petitioner rejected on one ground by the returning
officer was defective on one or more of the other
grounds mentioned in s. ·36(2) of the Act, and that
such a plea, if taken, must be enquired into by the
Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar (3), it was observed by a Bench of
the Madhya. Pradesh High Court that h~ determining
whether a nomination was improperly rejected, the
Election Tribunal was not bound to confine its enquiry
to the ground on which the returning officer rejected
it, and that even if the ground on which the returning
officer rejected the nomination could not be sustained,
the rejection could not be held to be improper if the
Tribunal found other fatal defects in the nomination.
An unreported judgment of the Andhra Pradesh High
Court in Badrivishal Pitti v. J. V. Narsing Rao (4) has
been cited before us, and that also takes the view that
in an enquiry before the Election Tribunal, it is open
to the parties to support an order of rejection of a
nomination paper on grounds other than those which
were put forward before the returning officer. We are
in agreement with these decisions.
As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226
with interlocutory orders passed in the course of an
enquiry before the Election Tribunal, we shall express
our opinion thereon. The jurisdiction of the High
Court to issue writs against orders of the Tribunal is
(1) [1955] l S.C.R. 509.
(2) [195~] 9 E.L.R. 193·
(3) [1958] 15 E.L.R. 26o.
(4) Special Appeal No. 1 of 1957.
638
SUPREME COURT REPORTS [1959] Supp.
1958
undoubted ; but then, it is well settled that where
there is another remedy provided, the court may prov eluswa:'. Thev•• perly exercise its discretion in declining to interfere
Roja Naina•
under Art. 226. It should be remembered that under
the election law as it stood prior to the amendment in
VenAalarama
1956, election petitions were dismissed on preliminary
Aiya• J.
grounds and the correctness of the decision was
challenged in applications under Art. 226 and in
further appeals to this Court, with the result that by
the time the matter was finally decided, the life of the
legislatures for which the election was held would have
itself very nearly come to an end, thus rendering the
proceedings infructuous. A signal example of a case
of this kind is to be found in the decision reported in
Bhikaji Keshao Joshi and another v. Brijlal Nandlal
Biyani and others (1). It is to remedy this defect that
the legislature has now amended the law by providing
a right of appeal against a decision of the Tribunal to
th·e High Court under s. 116-A, and its intention is
obviously that proceedings before the Tribunal should
go on with expedition and without interruption, and
that any error in its decision should be set right in an
appeal under that section. In this view, it would be a.
proper exercise of discretion under Art. 226 to decline
to interfere with interlocutory orders.
In the result, we allow the appeals, set a.side the
orders of the court below, and dismiss the writ petitions filed by the respondent, with costs here a.nd in
the court below.
Appeals allowed.
(1) (1955] 2 S.C.R. 428.