Pushpadhar Chaliha vs Bibhuti Prosad Chaliha and another

G. Mehrotra, C.J.—The only point raised in this petition under Article 226 of the Constitution is that the District Judge was not right in holding that no security was required in an appeal filed u/s 16(c) of the Assam Municipal Act, 1956�Assam Act XV of 1957 (hereinafter called the Act'') The petitioner was declared elected by the returning officer as his only opponent''s nomination paper was rejected. The opposite Party filed an appeal before the District Judge as provided for u/s 16(c) of the Act, challenging that rejection of his nomination paper. A preliminary point was raised by the present appellant that no appeal was maintainable as the security deposit required u/s 16 was not made. The District Judge held that no such security was required in an appeal u/s 16(c). The correctness of this decision is challenged by means of this petition.

Section 16 of the Act reads as follows:

If the validity of an election of a Commissioner is brought in question by an unsuccessful candidate or person qualified to vote at the election to which such question refers, such person may, at any time within twenty one days after the date of the declaration of the result of the election file a petition in the prescribed manner before the District Judge of the district within which the election has been or should have been held and in the case of the Shillong Municipality to the District Judge Lower Assam Districts and shall at the same time deposit one hundred rupees in Court as security for the costs likely to be incurred:

Provided that the Deputy Commissioner or the Sub-divisional Officer, as the case may be, may be authorised by the State Government to receive election petitions on behalf of the District Judge for transmission to him

Provided further that the validity of such election shall not be questioned in any such petition--

(a) on the ground that the name of any person qualified to vote has been omitted from the electoral roll; or

(b) on the ground that the name of any person not qualified to vote has been inserted in the electoral roll; or

(c) on the ground of acceptance or refusal of nomination of candidates provided further that an appeal in the manner prescribed shall lie to the District Judge against such acceptance or refusal of nomination.

Under this section the validity of an election of a Commissioner can be questioned by an unsuccessful candidate or person qualified to vote at the election in the prescribed manner. Under sub-section (c) of section 16 the right of appeal has been given to a person whose nomination paper has been rejected, in a prescribed manner. Rules have been framed both under the substantive part of section 16 and sub-section (c) of section 16 but in none of these rules any provision has been made for the security deposit. The first paragraph of section 16 which may be called the substantive part of section 16 requires the deposit of one hundred rupees in court as security for the costs likely to be incurred. The only question, therefore, is whether this part of section also controls sub-section (c) of section 16 or not.

The answer to this question depends on the meaning to be given to the words �an appeal in the manner prescribed'' under sub-section (c) of section 16. If the appeal filed under sub-section (c) is a petition contemplated u/s 16 substantive part, challenging the validity of tile election, then undoubtedly the security will be required. But if it is an independent right conferred on the person who is aggrieved by the order of the returning officer accepting or rejecting the nomination paper, then the condition for making an application under the substantive part of section 16 will not control such an appeal. From the very language of the substantive part, it is clear that it does not control the appeals under sub-section (c).

The election petition is to be filed by a person who is an unsuccessful candidate and within twenty-one days of the election, while an appeal under sub-section (c) can be filed by a person whose nomination has been rejected against a person whose nomination has been wrongfully accepted within seven days of the order of the returning officer. Thus an appeal under sub-section (c) cannot be equated with the petition under the substantive part of section 16. Secondly it will appear that the proviso clearly lays down that the validity of an election cannot be challenged on the ground of tile wrongful acceptance or refusal of a nomination paper. Thus any challenge to the election on the ground of wrongful acceptance or rejection of the nomination cannot be made by an application contemplated by the substantive part of section 16

Mr. Goswami for the petitioner contends that u/s 17(3) of the Act the Judge may at any stage of the proceedings, require the petitioner to deposit in Court a further sum as the costs incurred or likely to be incurred by any respondent. This also indicates that a security is required in an appeal. We do not think that any such result follows on the proper interpretation of section 17(3). Section 17(3) itself contemplates a petition filed for challenging the election petition under the substantive part of section 16 and not an appeal u/s 16(c) . This will be evident from sub-section (1) of section 17 which says that the court on petition will follow a prescribed procedure and subject to the provisions sections 18 and 19 pass an order confirming or amending the declared result of the election or setting the election aside. This clearly shows that section 17 deals with the petition challenging the validity of the election and not an appeal filed under sub-section (c) of section 16.

In fact the legislature took away the right of an unsuccessful candidate to challenge the election on the ground of wrongful acceptance or rejection of nomination. But it conferred a distinct right of appeal against that order to a person who is aggrieved by that order. It necessarily follows that the right of appeal is a distinct right conferred on a person who is aggrieved by the order of rejection or acceptance of a nomination paper and this right had to be conferred as the right to challenge the election on the ground of wrongful acceptance or rejection of nomination was taken away from an unsuccessful candidate. There is thus no force in this petition and it is rejected. But we make no orders as to cost.