TMI Blog1954 (5) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 withdrew 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. I 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. I (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 respondentNo. - 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 respondent No. 1, Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to which, and the manner in which, such petition is to be presented, have been embodied in the Representation of the People Act which has 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 except by an election petition presented in accordance with the provisions of this Part ; and section 105 says that every order of the Tribunal made under this Act shall be final and conclusive. It is contended by the learned 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 decision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 leave under article of the Constitution. (i) [195o] S.C.R. 459, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exercise of its powers by the Supreme Court in proper cases 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 constitution of the Legislature may be distinctly and speedily known. But the powers under article 136 are exercisable only under exceptional circumstances. The article does not create any general right of appeal from decisions of all Tribunals. As regards the decision of this Court in Ponnuswami v. Returning Officer, Namakkal Consistituency, and Others (1), 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 bad no jurisdiction, under article 226 of the Constitution, to interfere by a writ of certiorari, with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate. It was held that the word election in article 329(b) of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ........................................ (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void. (2) Subject to the provisions of subsection (3), if the Tribunal is of opinion- (a).............................. (b).............................. (c) that the result of the election has been materially 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 or orders made under this Act or of any other Act or rules relating to 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposer 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 section 100(1)(c) of the Act contemplates. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontemplating cases where there has been infraction of the provisions of 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 section 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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