TMI Blog1958 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... nd thus rendering the proceedings infructuous. - Civil Appeals Nos. 231 and 232 of 1958 - - - Dated:- 24-11-1958 - AIYYAR, T.L. VENKATARAMA, GAJENDRAGADKAR, P.B. AND SARKAR, A.K., JJ. For the Appellant: R. Ganapathy Iyer, S. B. Adityan and G. Gopalakrishnan, For the Respondent: A. N. Sinha and P. K. Mukherjee, JUDGMENT: VENKATARAMA AIYAR., J.- These appeals raise a question of considerable importance as to the scope of an enquiry in an election petition wherein election is called in question under s. 100(1)(c) of the Representation of the People Act, 1951 (43 of 1951), on the ground that a nomination paper had been improperly rejected. The facts are that during the general elections which were held in 1957 six persons including the,, appellant, Veluswami Thevar, the second respondent Chellapandian, and the fourth respondent, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli At the 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 Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 valid 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 Writ Petitions Nos. 675 and 676 of 1957, preferred 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 that a writ of certiorari be issued to quash the order in 1. A. No. 5 of 1957 and a writ of prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopals Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in these terms: " We are clearly of opinion that the enquiry before the Tribunal must be restricted to the objections which the returning officer had to consider a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his 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 paper 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 election 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... improper rejection within s. 100(1)(c). Acoording to the -respondent, when the nomination paper of a candidate is rejected by the returning officer on the ground that he is subject to a specified disqualification, the rejection is improper, if it is found that that disqualification does not exist. If the former view is correct, then the scope of an enquiry before the Tribunal must extend to all matters which are mentioned in s. 36(2), and if the latter, then it must be limited to determining whether the ground on which the returning officer has rejected the nomination is well-founded. Now, to decide what the expression " improperly rejected " in s. 100(1)(c) precisely imports, it is necessary to examine the relevant provisions of the Act bearing on the question and the setting of the above section therein. Under s. 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the Constitution and the Act. Section 36(2) authorises the returning officer to reject any nomination paper on the ground that he is either not qualified, that is, under ss. 3 to 7 of the Act, or is disqualified under the provisions referred to therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal exercises in hearing an election petition even when it raises a question under s. 100(1)(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 to 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 as may be found in the Act. It should be noted in this connection that if a petition to set aside an election on the ground of improper rejection of a nomination paper is in the nature of an appeal against the decision, of the returning officer, then logically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either 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 was 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 Mehta v. Thakur Raghuraj Singh and others ([1955] 1 S.C.R. 267), 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be bad, the Tribunal has no option but to set aside the election under s. 100(1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own-terms. It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no 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 the propriety of the nomination and not the decision of the returning officer on the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehta s case ([19551 1 S.C.R. 267), 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 within s. 100(2)(c) as it then stood and not under s. 100(1)(c), and that the election of the appellant could not be declared void. This is not a direct pronouncement on the point now in controversy, and that is conceded. In Vashist Narain Sharma v. Dev Chandra and others ([1955] 1 S.C.R. 509), a question was raised as to what would be " improper acceptance " within the meaning of s. 100; but in the view tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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