S.K. Sambandhan vs Election Tribunal, Madras and Others

Venkatarama Aiyar, J.—These petitions arise out of proceedings taken for setting aside the election of members to the Madras Legislative

Council by the members of the State Legislative Assembly, at an election held on 27-3-1953. On 4-3-1953 the Governor of Madras issued a

notification u/s 18(1)(b), Representation of the People Act (43 of 1951) hereinafter referred to as the Act calling upon the members of the

Legislative Assembly to elect 24 members to the Legislative Council. The last date fix-ed for nomination was 13th March; for scrutiny of the

nomination paper 14th March; and for polling 27th March. One Sri U. C. Subramania Bhatt who is the respondent in W. P. No. 72 of 1953

presented his nomination paper on the 12th March and along with it he filed a printed copy of Block No. 15 of the electoral roll for the Mangalore

City Constituency wherein his name is entered as a voter, the serial number being 26. On 14-3-1952 the Returning Officer passed the following

order on the nomination paper:

Time given till 3 p. m. on the 16 for producing certified extract from the electoral roll."" It may be mentioned that 18-3-1952 was a Sunday and the

certified extract as required by the order was actually produced on 17-3-1953. But the nomination paper had in the meantime been actually

rejected on 16-3-1952 for non-compliance with the order.

Subramania Bhatt filed election petition No. 261 of 1952 for setting aside the election on the ground that his nomination paper had been

improperly rejected. The Election tribunal which went into this matter upheld his contention and set aside the election. W. P. No. 72 of 1953 has

been filed for the issue of a writ of certiorari to quash this decision.

The petitioner in W. P. 72 of 1953 is one Sri S. K. Sambandam. He is not one of the persons who have been unseated as a result of the

decision of the Election tribunal in Election Petition No. 261 of 1952, but his Interest in the matter arises by reason of the fact that he was one of

the unsuccessful candidates at the election which was held on 27-3-1952. He filed election petition No. 324 of 1952 to set aside the election on

the ground that in counting the votes the Election officer had applied the rules which had been enacted on 10-3-1952, whereas he ought to have

followed those which were in force on 4-3-1952 and that according to those rules he was entitled to be declared elected. This contention was

overruled by the Election tribunal on the ground that the rules in question related to procedure in which the petitioner had no vested right and that

the matter was governed by the rules which had been enacted on 10-3-1952. In the result, election petition No. 324 of 1952 was dismissed. It is

to o.uash this order of dismissal that W. P. No. 869 of 1952 has been filed.

It will be seen that even if the petitioner is right in his contention that the rules applicable for the counting of votes are those, which were in force on

4-3-1952 and that in accordance therewith no should be declared elected, that will do him no good, unless the decision in Election Petition No.

261 of 1952 that by reason of the improper rejection of the nomination paper of Subramania Bhatt the entire election should be set aside, is also

set aside. In other words, he must succeed in both the petitions, if he is to have any relief.

Taking W. P. No. 72 of 1953 the only point for determination is whether the rejection of the nomination/paper of Subramania Bhatt on 16-3-

1952 by the Returning officer is improper. The statutory provisions relating to the matter are these: Section 39 deals with the nominations of

candidates for election to the Legislative Council of the state by the members of the Legislative Assembly of that state. Section 39(4) enacts that

the provi-sions of subnotions (1), (3), (4), (5) and (7) of Section 33 and Sections 34 to 38 shall apply to the nomination of candidates, deposits to

be made on such nominations and withdrawal of candidatures.

Section 36(2) provides for rejection of nomination paper and is as follows: ""(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, refuse any nomination on any of the following grounds:

(a) that the candidate is not qualified to be chosen to fill the seat under the constitution or this Act; or

(b) that the candidate is disqualified for being chosen to fill the seat under the Constitution or this Act; or

(c) that a proposer or seconder is disqualified from subscribing a nomination paper under sub-section (2) of Section 33; or

(d) that there has been any failure to comply with any of the provisions of Section 33 or Section 34; or

(e) that the signature of the candidate or any proposer or seconder is not genuine or has been obtained by fraud.

The contention of the petitioner is that the order of rejection of the nomination paper falls u/s 36(2)(d). Section 34 relates to deposit and has no

application. As for Section 33, as already mentioned, section 39(4) expressly provides that sub-sections (1), (3), (4), (5) and (7) of Section 33

shall apply to elections to Legislative Council by the members of the Legislative Assembly. It is conceded by Mr. T. Lakshmiah, the learned

advocate for the petitioner, that there has been no failure to comply with any of the above provisions. The result then is that the nomination paper is

not liable to be rejected u/s 36(2)(d) and as there is no other provision conferring power on the Election officer to reject it, the order of rejection is

manifestly erroneous.

It is argued for the petitioner that u/s 33(6) of the Act the Returning officer is so entitled, to call upon the candidate to produce either a copy of

the electoral roll in which the name of the candidate is included or a certified copy of the relevant entries in such roll; that though this provision is

not as such applicable, u/s 39(4), to elections to Legislative Council, it is substantially enacted in the second proviso to Section 39(4); and that as

the terms of that proviso have not been strictly complied with, the returning officer had power to reject the nomination paper.

There are two answers to this contention: (i) there has been a substantial compliance with the terms of the proviso to Section 39(4) and (ii) even

if there has been no such compliance, the Re-turning officer has no power to reject the nomination paper on that ground.

(i) The second proviso to Section 39(4) runs as follows :

Provided further that at the time of the presentation of the nomination paper, the Returning officer may require the person presenting the same to

produce either a copy of the electoral roll in which the name of the candidate is included or a certified copy of the relevant entries in such roll.

In the present case, the candidate produced not the entire roll of the Mangalore Constituency, but that portion of it wherein his name was entered,

i. e. block 15, That it is an authentic and accurate copy was not in dispute; nor was it disputed that the portion of the rolls actually produced was

all that was relevant and material for the purpose of the nomination paper; nor can it toe argued that the Returning officer is entitled to call upon the

candidate who has produced a copy of the electoral roll to produce also a certified copy of the relevant entries in the rolls; the proviso does not

authorise the Returning officer to call upon the candidate who has produced either a copy of the rolls or a certified copy of the relevant entries to

produce also the other.

The contention that is urged is that the electoral roll is a single document containing the names of all the electors of the constituency; that a portion

relating to a block therein is not ""the electoral roll"" referred to in the section; that the production of the portion of the roll relating to block No. 15

was not, therefore, a production of the electoral roll as required by the proviso; and that the Returning Officer was within his rights in calling upon

the candidate to produce a certified copy of the relevant entries in the rolls. Tins argument attaches more importance to the form than to the

substance of the enactment. It has often been observed that Section 33(6) and Section 39(4) proviso and similar provisions in statutes in ''pari

materia'' enact a rule of evidence and that their object is to enable the Returning officer to satisfy himself as provided in Section 33(5) ""that the

names and electoral roll numbers of the candidate and his proposer and seconder as entered in the nomination paper are the same as those entered

in the electoral rolls."" The purpose of the proviso to Section 39(4), therefore, is not to prescribe ordeals for the intending candidates to undergo,

but to provide guides to the Returning officer in deciding on the identity of the candidate and of the proposer and seconder. In the Basti Election

Cases, it was held by the Election-tribunal that an order of the Returning officer rejecting a nomination paper on the ground that a certified copy of

the entries in the Rolls had not been produced was erroneous ard that the election was, therefore, liable to be set aside (vide -- ''Sen and Peddar

Indian Election Cases, p. 106).'' The principle of that decision is clearly applicable to the present case.

As already mentioned, there was no dispute about the genuineness of the copy of the electoral roll which was produced, nor about the identity of

either the candidate or proposer and seconder. It must, therefore, be held that in producing the copy of the electoral roll there has been a

substantial compliance with the requirements of the proviso. In this view, it is unnecessary to go into the question whether having regard to Section

22(a), block No. 15 can be considered to be a distinct unit and the portion of the electoral roll actually produced held to be an electoral roll for the

purpose of Section 39(4).

(ii). Even if it were to be held that the nomination paper did not conform to the requirements of Section 39(4) proviso, the question still remains

whether the Returning Officer had power to re-ject it on that ground. The proviso itself does not confer any such power on the Returning officer.

The only other provision in the Act conferring sunn power is Section 36(2)(d) which, as already mentioned, has no application. The contention of

Mr. T. Lakshmiah, the learned advocate for the petitioner, is that it would have been competent to the Returning Officer, u/s 36(2)(d) to dismiss

the nomination paper for non-compliance with Section 33(6); that though that provision has not been made applicable u/s 39(4) to elections to

Legislative Council, nevertheless, it is in su""-stance and with suitable modifications enacted in the proviso to Section 39(4) and that, therefore, what

the Returning officer could do in case of non-compliance with Section 33(6), he could do for non-compliance with the proviso to Section 39(4).

This contention is clearly untenable. The power to reject a nomination paper for non-compliance with Section 33(6) is conferred on the Returning

Officer by Section 36(2)(d). There is no similar provision either in that section or elsewhere for the rejection of a nomination paper for failure to

comply with the proviso to section 39(4) and a power which is a creation of the statute must be found within its terms and cannot be extended by

analogy. We, therefore, agree with the Election Tribunal that the Returning officer had no power under the Act to reject the nomination paper for

non-compliance with the terms of the proviso to Section 39(4).

In the result, W. P. No. 72 of 1953 is dismissed with costs -- one set, advocate''s fee Rs. 250.

In this view, the question raised in W. P. No. 869 of 1952 is purely of academic interest; for even if it be held that the petitioner should have

been elected on the basis of the rules which were in force on 4-3-1952 that is of no practical interest to him as the entire election has to be set

aside on the ground that the nomination paper of Subramania Bhatt had been improperly rejected. But as Mr. Lakshmiah, the advocate for the

petitioner, has pressed on us to give our decision on the question, we proceed to do so.

It will be remembered that the notification, for election to the Legislative Council was issued by the Governor u/s 18 (1) (b) of the Act on 4-3-

1952. On 6-9-1951 in exercise of the powers conferred on them by Section 169 of the Act, the Central Government enacted a body of rules for

the conduct of elections under the Act and it is these rules that weru in force at the time of the notification on 4-3-1952. On 10-3-1952 the Central

Government repealed Rules 91 and 96 to 102 of the Rules framed on 6-9-1951 and substituted therefore new rules. The Election officer applied

these rules in counting the votes and following the method of counting prescribed therein, declared respondents 2 to 25 to the pstition as duly

elected. It is stated for the petitioner that if the votes are counted in accordance with the rules as they stood before 10-3-1952 he is entitled to be

declared elected, unseating one of the respondents and that is conceded by the learned Advocate-General. The point in dispute is whether the

counting of votes should be in accordance with the rules which were enacted on 6-8-1951 or with those which came to be substituted therefore on

10-3-1952.

The contention on behalf of the petitioner is that the election commenced with the issue of the notification u/s 18(1)(b) on 4-3-1952; that the right

which is conferred on a candidate to stand for election is a substantive right which accrues to him at the commencement of the election; that any

subsequent change in the election, rules could not operate to prejudice such a right; and that in consequence the votes should be counted in

accordance with the rules as they stood; on 4-3-1952 and not the new rules which came into force on 10-3-1952. That an election commences

with the issue of a notification is well-settled; that was so held by the Supreme Court in -- N.P. Ponnuswami Vs. Returning Officer, Namakkal

Constituency and Others, , wherein Fazi All J. observed:

That word (election) has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired

both a wide and a narrow meaning. In-the narrow sense, it is used to mean the final selection of a candidate which may embrace there-suit of the

poll when there is polling or a parti-cular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote

the entire process culminating in candidate being declared elected..... The discussion in this passage makes it clear that the word ''election'' can be

and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which

may have an important bearing on the result of the process.

Taking it then that the election commenced on 4-3-1952, the question is what substantive rights the petitioner acquired on that day with refer-once

to the election and whether those rights have been interfered with by the new rules.

It will be convenient at this stage to examine the nature of the change that was introduced by the new rules. Both under the old and the new rules

the election to the Legislative Council is based on the principle of proportional representation by means of a single transferable vote. Rules 96 and

97 of the old rules are as follows: ""96. Counting of votes: The Returning officer shall then count the number of papers in each parcel, and credit

each candidate with one vote in respect of each valid paper on which a first preference has been recorded for him, and he shall ascertain the total

number of valid papers 97. Ascertainment of quota: The Returning Officer shall then divide the total number of valid papers by a number exceeding

by one of the number of vacancies to be filled, and the result increased by one, disregarding any fractional remainder, shall be the number of votes

sufficient to secure the return of a candidate (in this chapter referred to as the ''quota'')."" The new rules which were substituted on 10-3-1952 run

as follows:

Counting of votes: (1) The Returning officer shall then count the number of papers in each parcel and credit the candidate concerned with the

value of those papers. He shall also ascertain and record the total number of valid papers.

(2) For the purpose of facilitating the processes prescribed in Rules 97 to 102, such valid ballot paper shall be deemed to be of the value of one

hundred.

(3) In carrying out the provisions of Rules 97 to 102, the Returning officer shall disregard all fractions and ignore all preferences recorded for

candidates already elected or excluded from the poll.

Ascertainment of quota: The Returning officer shall add together the values of the papers in all the parcels and divide the total by a number

exceeding by one, the number of vacancies to be filled. The quotient so obtained increased by one shall be the number sufficient to secure the

return of a candidate, hereinafter called ''the quota''.

It will be seen that under both the sets of rules the procedure prescribed for counting the votes is, firstly to total up the number of valid votes, then

to divide that total by the number of candidates plus one and the resulting figure plus one is taken as the quota, and candidates whose votes equa1

or exceed the quota are to be declared elected.

The change introduced by the new rules consists in this that while under the old rules fractions were to be disregarded, under the new rules that

situation is avoided by allotting to each valid paper the value of 100. The effect of the change is to avoid the inexactitude arisins by reason of

elimination of fractions. The rules of construction being well settled that a statute is not to be construed as having retrospective operation otner wise

than as regards matters of procedure, the question is, does the change introduced in the rules on 10-3-1952 relate to matters of substantive right or

of procedure? Mr. T. Lakshmiah contended that while the enforcement of a right is a matter of procedure, its existence or extent is a matter of

substantive right and cited passages from Maxwell on ""Interpretation of Statutes"", Craies on ""Statute Law"", Cheshire on ""Private International

Law"", Salmond on ""Jurisprudence"" and Paton on ""Jurisprudence"", in support of the position. It is unnecessary to refer to the passages themselves

because the distinction is well-settled, the only difficulty being in deciding whether the particular Act deals with substantive rights or procedure.

Counsel for the petitioner also relied on the decision of the Supreme Court of the United States in -- ''United States v. Classic'', (1941) 85 Law Ed

1368 (B). There the question was whether the right of a citizen to choose a representative which is conferred under Article I, Section (2) of the

Constitution extends to the right to vote in the primary elections. In holding that it did, Stone J. observed:

The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its

exercise is prescribed by state action in conformity to the Constitution, is a right established and guaranteed by the constitution & hence is one

secured by it to those citizens and inhabitants of the State entitled to exercise the right ..... Obviously included within the right to choose, secured

by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted at congressional elections. This Court

has consistently held that this is a right secured by the Constitution.

What this decision lays down is that a right to vote conferred by a statute is a substantive right. It has 110 application to the present case because

the new rules neither take away the right of any ejector to record a vote nor of the candidate to stand for election. They only provide for a method

for counting of the votes and that is ''prima facie procedural. The rules do not affect or impair any substantive right; they only regulate, to adopt the

language in -- ''(1941) 85 Law Ed. 1358 (B)'', ""the mode of its exercise"". It may be conceded that changes in rules, though they may ostensibly

relate to matters of procedure, might in effect affect substantive rights. But in this case, the changes introduced by the new Rules are wholly

procedural and the Election officer rightly adopted those rules in counting the votes.

There is the further ground in this case that the petitioner presented his nomination paper only on 11-8-1932 while the new rules had come into

force on 103-1952. Though the election commenced on 4-3-1952 when the Governor issued the Notification, it is difficult to hold that the

petitioner acquired any rights of a substantive charac-ter on that date. The petitioner was no doubt entitled to stand as a candidate for election but

he was not bound to, and until he chooses to stand, it is difficult to say that he acquires any rights in respect of the election. As on the date of the

nomination, the new rules had come into force, it is not open to the petitioner to contend that the counting should be in accordance with the old

rules.

It remains only to notice one other contention put forward by the petitioner. That is based on the language of the Notification dated 10-3-1952

which runs as follows:

In exercise of the powers conferred by Section 169 of the Representation of the People Act, 1951 (43 of 1951) the Central

Government....hereby directs that the following further amendments shall be made.....

The argument for the petitioner is that the Central Government has not itself enacted these rules, but has merely directed some other authority to do

so. The argument has only to be stated to be rejected.

In the result, we agree with the Election Tribunal that the counting of votes was govern ed by the Rules which came into force on 10-3- 1952

and that under those rules respondents 2 to 25 were properly declared as elected. This petition is accordingly dismissed. But, in the circum stances

there will be no order as to costs.