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PETITIONER:

DURGA SHANKAR MEHTA

Vs.

RESPONDENT:

THAKUR RAGHURAJ SINGH AND OTHERS.

DATE OF JUDGMENT:

19/05/1954

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

AIYYAR, T.L. VENKATARAMA

MAHAJAN, MEHAR CHAND (CJ)

BOSE, VIVIAN

BHAGWATI, P.N.

CITATION:

1954 AIR 520 1955 SCR 287

CITATOR INFO :

R 1955 SC 233 (8)

F 1955 SC 425 (12)

R 1959 SC 422 (11,16)

E&D 1960 SC 368 (4,8,9,17)

E&D 1960 SC1049 (17)

RF 1963 SC 677 (18)

R 1963 SC 874 (9)

R 1965 SC1595 (9,19,40)

D 1971 SC1348 (8,10)

R 1973 SC2362 (4,6)

R 1975 SC1843 (35)

RF 1975 SC2299 (273)

R 1976 SC1207 (565)

RF 1977 SC2155 (23)

E&R 1978 SC 851 (24,30,83,124)

R 1979 SC1284 (5)

E 1980 SC 856 (21)

E 1981 SC 547 (17,20,25)

R 1986 SC 103 (5)

D 1987 SC1629 (13)

RF 1991 SC2176 (16)

R 1992 SC 248 (34)

RF 1992 SC2219 (53,135)

ACT:

Constitution of India, articles 136, 173, 329-Supreme Court

-Power to grant special leave to appeal-Decisioin of

Election Tribunal-Represeiztation of the People Act (XLIII

of; 1951), ss. 36, 100(1) (c) and (2) (c), 105-Non-

compliance with the provisions of article 173-Constitutional

disability-Election void - Whether under s. 100(1) (c) or s.

100 (2) (c) of the Act-Non-compliance with the provisions of

Constitution in s. 100(2) (c)-scope of.

HEADNOTE:

Article 136 of the Constitution is worded in the widest

terms possible. It vests in the Supreme Court a plenary

jurisdiction in the matter of entertaining and hearing

appeals by granting special leave against any kind of

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judgment or order made by a Court or' Tribunal in any cause

or matter and the powers can be exercised in spite of the

specific provisions for appeal contained in the Consti-

tution'or other laws. The powers given by the article are,

however, in the nature of special or residuary powers which

are exercisable outside the purview of ordinary law, in

cases where the needs of justice demand interference by the

Supreme Court.

The non obstante clause in article 329 of the Constitution

which debars the Supreme Court as well as any other Court in

India from entertaining a suit or a proceeding calling in

question any election to Parliament or the State Legislature

and section 105 of the Representation of the People Act

which gives finality to the decision of the Election

Tribunal so far as that Act is

268

concerned and does not provide for any further appeal, do

not cut down or affect the overriding powers which the

Supreme,Court can exercise in the matter of granting special

leave under article 136 of the Constitution.

The overriding power vested in the Supreme Court under

article 136 of the Constitution is wider than the

prerogative right of entertaining an appeal exercised by the

Judicial Committee of the Privy Council in England because

the prerogative right of the Grown can be taken away or

curtailed by express legislation but the Constitutional

provision in article 136 cannot be limited or taken away by

any Parliamentary legislation and this Constitutional

provision overrides ordinary laws and no presumption can

arise from words and expressions declaring an adjudication

of a particular Tribunal to be final and conclusive that

there was an intention to exclude the exercise of the

special power.

Where on the finding of the Tribunal there has been a viola-

tion of or non-compliance with the provision of article 173

of the Constitution because the candidate suffers from a

Constitutional disability by reason of his under-age the

case falls under sub-section (2) (c) of section 100 of the

Representation of the People Act and not under sub-section

(1) (c) of section 100 of the Act and election should be

held to be void on the ground of the Constitutional

disqualification of the candidate and not on the ground that

his nomination was improperly accepted by the Returning

Officer and therefore the 'election of that candidate only

should be declared void and not the whole election.

The expression " non-compliance with the provisions of the

Constitution " in clause (c) of sub-section (2) of section

100 of the Act is sufficiently wide to cover such cases

where the question is not one of improper acceptance or

rejection of the nomination by the Returning Officer but

there is a fundamental disability in the candidate to stand

for election at all.

Bharat Bank Ltd., v. Employees of the Bharat Bank Ltd.

([1950] S.C.R. 459), Theberge v. Laudry ( [1876-771 2 A.C.

102), Stowe v. Jolliffe (9 C.P. 734) and Ponnuswami v.

Returning Officer, Namakkal Constituency and Others ( [1952]

S.C.R. 218) referred to.

JUDGMENT:

CIVIL APPFLLATE, JURISDICTION: Civil Appeal No. 150 of 1953.

Appeal by Special Leave from the Judgment and Order dated

the 30th April, 1953, of the Election Tribunal, Jabalpur, at

Nagpur in Election Petition No. I of 1952.

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B. Sen, T. P. Naik and I. N. Shroff for the appellant.

R. M. Hajarnavis, J. B. Dadachanji and Rajinder Narain for

respondent No. 1.

269

1954. May 19. The Judgment of the Court was delivered by

MUKERJEA J.-This appeal, which has come before us on special

leave, is directed against the judgment and order of the

Election Tribunal, Jabalpur, at Nagpur dated the 30th April,

1953, whereby the Tribunal declared the election held on the

29th December, 1951, for the double member Lakhnadon

Legislative Assembly Constituency, to be wholly void under

section 100(1)(c) of the Representation of the People Act

(hereinafter called "the Act").

To appreciate the contentions that have been raised by the

parties to this appeal, it would be necessary to state

briefly the material facts. The Lakhnadon Legistive

Assembly Constituency in Madhya Pradesh is a double member

constituency, one of the seats in which is reserved 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

270

respondent No. 1, Raghuraj Singh, filed an election petition

against the appellant and the other respondents, under

section 81 of the Act, praying that the said election to the

Lakhnadon Legislative Assembly Constituency be declared

wholly void or in the alternative the election of Vasant Rao

and/or that of the appellant, Durga Shankar Mehta, be

declared void. There was a string of allegations made in

the petition accusing the appellant of various corrupt

practices in the matter of securing votes but none of these

are material for our present purpose, as the Tribunal, by a

majority, held these allegations to be unfounded and not

supported by proper evidence. The substantial ground upon

which the petitioner sought to assail the validity of the

election was, that the respondent No. 2, Vasant Rao, who was

declared duly elected to the reserved seat in the said

constituency was, at all material times, under 25 years of

age and was consequently not qualified to be chosen to fill

a seat in the Legislative Assembly of a State under article

173 of the Constitution. This allegation was found to be

true by the majority of the Tribunal and by its judgment

dated the 30th of April, 1953, the Tribunal came to the

conclusion that the act of the Returning Officer in

accepting the nomination of Vasant Rao, who was disqualified

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to be elected a member of the State Legislature under the

Constitution, amounted to an improper acceptance of

nomination within the meaning of section 100(1)(c) of the

Act and as the result of the election was materially

affected thereby, the whole election must be pronounced to

be void. It is the propriety of this decision that has been

challenged before us in this appeal.

Mr. Hazarnavis, appearing for the respondent No. I before

us, took a preliminary point challenging the competency of

the appeal. It is contended by the learned counsel, that

article 329(b) of the Constitution ousts the jurisdiction of

all ordinary Courts in election disputes and provides

expressly that no election to either House of Parliament or

to either House of the Legislature of a State shall be

called in question, except by and an election petition

presented to such authority a in such manner as may be

provided for by or

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under any law made by the appropriate Legislature. It is

urged that there can be no challenge to the validity of an

election except by way of an election petition, and the

authority 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 law is available to

a person in regard to election disputes. The jurisdiction

with which the Election Tribunal is endowed is undoubtedly a

special jurisdiction ; but once it is held that it is a

judicial Tribunal empowered and obliged to deal judicially

with disputes arising out of or in connection with election,

the overriding power of this Court to grant special leave,

in proper cases, would certainly be attracted and this power

cannot be excluded by any Parliamentary legislation. The

non obstante clause with which article 329 of the

Constitution begins and upon which the respondent's counsel

lays so much stress debars us, as it debars any other Court

in the land, to entertain a suit or a' proceeding calling in

question any election to the Parliament or the State

Legislature. It is the Election Tribunal alone that can

decide such disputes, and the proceeding has to be initiated

by an election petition

272

and in such manner as may be provided by a statute. But

once that Tribunal has made any determination or

adjudication on the matter, the powers of this Court to

interfere by way of special leave can always be exercised.

It is now well settled by the majority decision of this

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Court in the case of Bharat Bank Ltd. v. Employees of the

Bharat Bank Ltd. (1) that the expression "Tribunal" as used

in article 136 does not mean the same thing as "Court" but

includes, within its ambit, all adjudicating bodies,

provided they are constituted by the State and are invested

with judicial as distinguished from purely administrative or

executive functions. The only Courts or Tribunals, which

are expressly exempted from the purview of article 136, are

those which are established by or under any law relating to

the Armed Forces as laid down in clause (2) of the article.

It is well known that an appeal is a creature of statute and

there can be no inherent right of appeal from any judgment

or determination unless an appeal is expressly provided for

by the law itself. The powers given by article 136 of the

Constitution however are in the nature of special or

residuary powers which are exercisable outside the purview

of ordinary law, in cases where the needs of justice demand

interference by the Supreme Court of the land. The article

itself is worded in the widest terms possible. It vests in

the Supreme Court a plenary jurisdiction in the matter of

entertaining and hearing 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,

273

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

the Crown's prerogative of entertaining an appeal but the

scheme and purpose of the Act show unmistakably that there

was never any' intention of creating a Tribunal with the

ordinary incident of an appeal to the Crown annexed to it,

the Privy Council would not admit an appeal from the

decision of such Tribunal. This is illustrated by the

decision of the Privy Council in The berge v. Laudry(1) upon

which Mr. Hozarnavis places considerable reliance. In that

case the petitioner having been declared duly elected a

member to represent the electoral district of Montmanier, in

the Legislative Assembly of the Province of Quebec, his

election was afterwards, on petition, declared null and

void, by judgment of the superior Court under the Quebec

Controverted Elections Act, 1875, and he himself was

declared guilty of corrupt practices. He applied for

special leave to appeal to His Majesty in Council. The

application was refused and Lord Cairns in delivering the

judgment of the Board held, that although the prerogative of

the Crown could not be take in away or limited except by

express words and the relevant section of the Quebec

Controverted Elections Act of 1875 providing that "such

judgment shall not be susceptible of appeal" did not mention

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either the Crown or its prerogative, yet the fair

construction of the above Act as also of the previous Act

of/1872 was that it was the intention of the Legislature to

create a Tribunal for the purpose of trying election

petitions in a manner which would make its decision final

for all purposes and should not annex to it the incident of

its judgment being reviewed by the Grown under its

prerogative.

This decision in our opinion does not assist Mr. Hazamavis.

In the first place article 136 is a

(I) (1876-77) 2 App.Cas. 102.

274

constitutional provision which no Parliamentary legislation

can limit or take away. In the second place the provision

being one, which overrides ordinary laws, no presumption can

arise from words and expressions declaring an adjudication

of a particular Tribunal to be final and conclusive, that

there was an intention to exclude the exercise of the

special powers. As has been said already, the non obstante

clause in article 329 prohibits challenge to an election

either to Parliament or any State Legislature, except in the

manner laid down in clause (2) of the article. But there is

no pro hibition of 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 had been used in the wide sense to connote the

entire process, culminating in a candidate's being declared

elected and that the scheme of Part XV of the Constitution

was -that all matters which had the effect of vitiating

election should be brought up only after the election was

over and by. way of an election petition. The particular

point, which arises for considers. tion here, was not

decided in that case and was expressly

(I) [1952] S.C.R. 218.

275

left open. In our opinion therefore the preliminary point

raised by Mr. Hazarnavis cannot succeed.

Coming now to the appellant's case, Mr. Sen who appeared in

support of the appeal, has pressed only one point for our

consideration. He plainly stated that he could not

challenge the propriety of the finding, arrived at by the

majority of the Tribunal that respondent, Vasant Rao, was

below 25 years of age at all material times. This, he

concedes, is a finding of fact and being based on evidence,

is not open to challenge before us in an appeal by special

leave. His contention in substance is, that there has been

no improper acceptance of nomination in the present case, as

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has been held by the Tribunal and consequently the provision

of section 100(1)(c) of the Act would not be attracted to it

and the entire election could not have been declared void.

It is, true, says the learned counsel, that on the finding

of the Tribunal there has been a violation of or non-

compliance with the provision of article 173 of the

Constitution and as respondent No. 2 suffers from a

constitutional disability by reason of his under-age and is

not qualified to be chosen to fill a seat in the Legislative

Assembly of a State, his election can undoubtedly be

declared void under section 100(2)(c) of the Act, but there

was no justification for pronouncing the whole election,

including that of the appellant, to be void. The whole

controversy thus centres round the point as to whether, upon

the facts admitted and proved, the present case comes within

the -purview of sub-section (1)(c) of section 100 of the Act

or of sub-section (2)(c) of the same section. The relevant

portions of section 100 of the Act so far as are material

for our present purpose may be set out as follows:-

"100. Grounds for declaring election to be void-

(1) If the Tribunal is of opinion---

(a) ......................................................

(b) ............................................

(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.

276

(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

and electoral numbers of the candidate and his proposer and

seconder as entered there were the- same as those entered in

the electoral rolls. It is also not disputed that the

nomination paper was received within proper time as is laid

down in section 33, sub-section (4) of the Act. Section 36

of the Act provides for scrutiny of nominations and under

subsection (2) the Returning Officer has got to examine the

nomination papers and decide all objections that may be made

to any nomination and he may either on such objection or oh

his own, motion, after such summary enquiry, if any, as he

thinks necessary, refuse any nomination on any of the

grounds which are specified in the different clauses of the

sub-section. The ground mentioned in clause (a) of the sub-

section is, that the candidate is not qualified to be chosen

to fill the seat under the Constitution or the Act. The

contention of the respondent No. 1 is that the nomination of

Vasant Rao should have been rejected on this ground and as

the Returning Officer did not do that, his act

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277

amounted to an improper acceptance of nomination within the

meaning of section 100(1)(c) of the Act. We do not think

that this contention is sound. If the want of

qualification.of a candidate does not appear on the face of

the nomination paper or of the electoral roll, but is a

matter which could be established only by evidence, an

enquiry at the stage of scrutiny of the nomination papers is

required under the Act only if there is any objection to the

nomination. The Returning Officer is then bound to make

such enquiry as he thinks proper on the 'result of which he

can either accept or reject the nomination. But when the

candidate appears to be properly qualified on the face of

the electoral roll and the nomination paper and no objection

is raised to the nomination, the Returning Officer has no

other alternative but to accept the nomination. This would

be apparent from section 36, subsection (7) of the Act which

runs as follows:

"(7) For the purposes of this section-

(a) the production of any certified copy of an entry made

in the electoral roll of any constituency shall be

conclusive evidence of the right of any elector named in

that entry to stand for election or to subscribe a

nomination paper, as the case may be. unless it is proved

that the candidate is disqualified, under the Constitution

or this Act, or that the proposer 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

278

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 the

materials placed before him. When neither of these things

happened, the acceptance of the nomination by the Returning

Officer must be deemed to be a proper acceptance. It is

certainly not final and the Election Tribunal may, on

evidence placed before it, come to a finding that,* the

candidate was not qualified at all. But the election should

be held to be void on the ground of the constitutional

disqualification of the candidate and not on the ground that

his nomination was improperly accepted by the Returning

Officer. In our opinion Mr. Sen is right that a case of

this description comes under sub-section (2)(c) of section

100 and not under sub-section (1)(c) of the section as it

really amounts to holding an election without complying with

the provisions of the Constitution, and that is one of the

grounds specified in clause (c) of subsection (2). The

expression " non-cgmpliance with the provisions of the

Constitution " is in our opinion sufficiently wide to cover

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such cases where the question is not one of improper

acceptance or rejection of the nomination by the Returning

Officer, but there is a fundamental disability in the

candidate to stand for election at all. The English law,

after the passing of the Ballot Act of 1872, is

substantially the same as has been explained in the case of

Stowe v. Jolliffe(1). The register which corresponds to our

electoral roll is -regarded as conclusive except in cases

where persons are prohibited from voting by any statute or

by the common law of Parliament.

It is argued on behalf of the respondent that the

expression" non-compliance as used in subsection (2)(c)

would suggest the idea of not acting according to any rule

or command and that the expression is not quite appropriate

in describing a mere lack of

(1) 9 C.P. 734.

279

qualification. This, we think, would be a narrow way of

looking at the thing. When a person is incapable of being

chosen as a member of a State Assembly under the provisions

of the Constitution itself but has never. theless been

returned as such at an election, it can be said without

impropriety that there has been noncompliance with the

provisions of the Constitution materially affecting the

result of the election. There is no material difference

between " non-compliance " and " non-observance " or "

breach" and this item in clause (c) of sub-section (2) may

be taken as a residuary provision contemplating 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 appellant however

will stand. We make no order as to costs of this appeal.

Order accordingly.

280