D. Mahaboob vs B. Krishna Singh and Others

Subba Rao, C.J.—This is an application under Article 226 of the Constitution of India to quash the order of the Election Commissioner, Nandyal dismissing the application filed by the Petitioner for a declaration that he was the duly elected President of the Chagalamarri village Panchayat.

Election to the office of the President of the Panchayat of Chagalamarri village was scheduled to be held on 9-2-1953. The Petitioner D. Mahaboob filed this nomination paper, but the Election Officer rejected his nomination on the ground that the names of the Petitioner, his propose and the seconder did not tally with the names found in the electoral roll- As there was no other candidate, the election could not be held .

The District Munsif, Nandyal dismissed the application on the ground that it was not maintainable as no election was held within the meaning of Rule 1 of the Decision of Election Dispute Rules hereinafter referred to as "the Rules". The-aforesaid writ was filed to quash that order.

Mr. Net Subrahmanyam contends that the word "election" in Rule (1) of the Rules means the entire process starting from the issue of a writ up to the declaration of the results, and therefore even though the Election Officer did not declare any person as duly elected on the ground that there was no validly nominated candidates, the said order could only be questioned by way of an election petition. Rule Id) reads:

Save as otherwise provided, no election held under the Act whether of a member, President or Vice President of a panchayat shall be called in question except by an election .petition presented in accordance with these rules to an election Commissioner at defined in Sub-rule (2) by any candidate or ejector against the candidate who has been declarer to have been duly elected.

5.To attract the provisions of this rule two conditions should be complied with. (1) An election should have been held. (2) A candidate should have been declared duly elected. If those two contortions are complied with, that election can only set aside by an election petition. Those two conditions clearly indicate that unless a candidate is declared elected, no election petition will lie to set aside his election. Reliance is placed by the learned Counsel on the decision of the Supreme Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, (A) in support of his contention. There, before the election was held, a writ was filed in the High Court of Madras for quashing the order of the Returning Officer, rejecting a nomination paper. The Madras High Court held that by reason of Article 392(b) of the Constitution of India, no election can be set aside except by filing an election petition, and therefore the High Court would not issue a writ in favour of the Petitioner before an election was held. The judgment was taken in appeal and was confirmed by the Supreme Court. The Supreme Court, after considering the case-law on the subject and after construing the relevant provisions of the Constitution, laid down the following propositions at page 234:

(1) Having regard to the important functions which the Legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the ''election''; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the ''election'' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress.

Their Lordships also accepted the wide connotation of the word "election" to connote the entire process culminating in a candidate being declared elected. That decision, in our view, has no bearing on the question to be decided in this case. To say that the entire process ending with the declaration of the candidate is election is not to say that every link in the process of election, though the election is not completed, should be questioned only by an election petition. Indeed, Their Lordships were emphasising the fact that all the links in the chain of election can be questioned only after the candidate is declared elected. They were not called upon nor did they express any opinion that even though the election was not held in the sense that a candidate was not declared elected all the irregularities, that were committed in the course of the process, which did not fructify in a declaration of the candidate, could be questioned is an election petition.

A Division Bench of the Madras High. Court consisting of Madhavan Nair and Curgenven JJ in A.V. Srinivasalu Reddy and Another Vs. S. Kuppuswami Goundar, (B) have held that an election petition would lie to set aside a declaration of a candidate duly elected though he happens to be the sole candidate in the election. The reason for the decision is found in the judgment of Curgenven J. at page 3G5 (of Mad LW): (at p 255 of AIR) and it is as follows:

I think, therefore, that the, term ''election'' may toe taken to embrace the whole procedure whereby an ''elected member'' is returned, whether or not it be found necessary to take a poll.

The other learned Judge Madhavan Nair J. observes to the same effect when he says "The term as used in the Act seems to cover the whole procedure whereby an ''elected member'' is returned whether or not it be found necessary to take a poll." This decision, therefore, clearly lays down that the necessary condition for the maintainability of the election petition is that the elected member is returned. Unless a candidate is declared elected whether there is a contest or not, no election petition lies for the simple reason that no election is held. Whatever may be the meaning of the word election in different contexts, the words "election held" in Rule 1 clearly indicate that Rule 1 applies not to in fructuous election processes but only to a case where a candidate is declared elected. This is also reinforced by the second part of the rule which says that an election petition can be presented against the. candidate who has been declared to have been duly elected." If the learned Counsel''s argument is correct, the second part of Clause (1) becomes otiose. We therefore hold without any hesitation that Rule 1 of the Decision of Election Dispute Rules can be invoked only in a case where a candidate has been duly declared as elected, whether there was a contest or not. In this view, the application fails and is dismissed with costs.