SOJITRA MOHAN HARIBHAI Vs. VALA VISAMAN KALUBHAI

JUDGEMENT

(1.) Whether Rule 8 of Gujarat Municipalities Election Rules 1964 requiring that the nomination papers shall be delivered by the nominators personally to the Returning Officer is mandatory or directory ? If the nomination papers at a Municipal Election are received by the Returning Officer without challenge or demur and if the election of the successful candidate is subsequently questioned on the ground that the nomination papers ought to have been lodged by the hand of the nominator and not that of the candidate himself can the election be set aside ? These are the two questions raised in these petitions under Articles 226 and 227 of the Constitution of India both of which arise out of Election Petition No. I of 1965 decided by the learned District Judge of Amreli on June 30 1967 who allowed the petition and set aside the election of the successful candidates.

(2.) The dispute relates to the election of Municipal Councilors under the Gujarat Municipalities Act 1963 and the Election Rules framed thereunder (hereinafter referred to as the Act and the Election Rules respectively) held on September 5 1965 in respect of Manekpara Ward No. 9 of Amreli. As common questions of facts and law arise both the petitions will be disposed of by this common judgment. The facts leading to these petitions stated briefly and to the necessary extent are as follows:-

(3.) The Collector of Amreli had notified August 16 to 18 as the days for submitting the nomination papers. The petitioners in both the petitions had lodged their nomination papers within the specified time. By whose hand these nomination papers were presented is in serious dispute. The returning officer received the nomination papers without any demur. Neither the rival candidates nor any one else challenged the act of presentation as wanting in legality or regularity on that day. On August 19 1965 which was the date of scrutiny an objection was raised by respondent Nos. 1 and 2 the candidates who were the rivals of the petitioners questioning the validity of the filing of the nomination papers of the petitioners. The objection was grounded on the allegation that the nomination papers were presented by the candidates themselves (i.e. the petitioners) and not by the nominators as required by Rule 8 of the Election Rules. No evidence appears to have been adduced before him and the Returning Officer who himself had received the nomination papers passed an order (which was unfortunately not a speaking order) rejecting the objections. Polling took place on September 5 1965 and on the next day September 6 1965 the petitioners were declared as duly elected. Thereupon respondents Nos. 1 and 2 the defeated candidates instituted Election Petition No. 1 of 1965 in the Court of the District Judge Amreli challenging the legality and validity of the election on various grounds. Only one of these grounds namely the ground that the returning officer had illegally and wrongly accepted the nomination papers of the successful candidates (petitioners) is relevant for the present purposes. The basis of this challenge was (1) the premise that it was a mandatory requirement of Rule 8 that the nomination paper should be submitted personally by the hand of the nominator and the presentation at the hand of the candidate himself was illegal and invalid and (2) the factual allegation that the presentation had been made by the candidate himself. Before the learned District Judge the petitioners as also the returning officer contended that the relevant nomination papers were in fact presented by the nominators and not by the candidates as alleged. The learned District Judge recorded a mass of evidence. He disbelieved the testimony on oath of the returning officer as well as that of the successful candidates to the effect that the nomination papers were lodged by the hand of the nominator concerned. He accepted the testimony of the defeated candidates and others and recorded a finding upholding the allegation of the unsuccessful candidates respondents Nos. 1 and 2 that the nomination papers were lodged by the candidates themselves (petitioners) and not by their respective nominators. It would not be open to this Court exercising jurisdiction under Articles 226 and 227 to examine the evidence afresh and to re-examine this issue of fact. For the purposes of these petitions we must therefore proceed on the assumption that the nomination papers of the successful candidates the petitioners before us were presented to the Returning Officer by their own hands and not at the hands of their respective nominators. The question then is whether this fact in the circumstances of the present case renders their election invalid as has been held by learned District Judge upon taking the view that the relevant requirement contained in Rule 8 of the Election Rules is mandatory and not directory. And it may be stated that the said question is the sole question debated before us the petitioners not having pressed the numerous other points (which we need not unnecessarily set out) raised by them in these petitions.