PALANIAPPA PILLAI Vs. SELLAPPA GOUNDER AND ORS.

JUDGEMENT

(1.) THIS appeal against the judgment of Rajagopala Ayyangar, J., in W.P. No. 22 of 1954 relates to the election of the President of the Panchayat Board of Andhiyur. The election took place on 28th April, 1953 and the appellant was declared elected as having obtained the largest number of votes. Originally five candidates filed their nomination papers, namely, the appellant and the contesting respondent (first respondent) and three others, namely, Manicka Mudali, Angappa Mudali and Perianna Gounder. The date for the scrutiny of the nominations was 11th April, 1953. A valid withdrawal of a nomination could have been effected under the rules by notice in writing sent by the candidate and communicated to the Election Officer before 13th April, 1953. The three candidates other than the appellant and the first respondent sent up written communications by post withdrawing their candidature on 14th April, 1953. The communications were received by the election authority on the 16th. Before this date one of them, Manicka Mudali revoked his withdrawal by letter dated 15th April, 1953, which reached the election authority on the 17th April, 1953. The Election Officer treated Manicka Mudali as continuing to be a candidate, but treated the other two, Angappa Mudali and Perianna Gounder, as having validly withdrawn from the contest. The result was that at the polling booth boxes were set up for the appellant, the first respondent and for Manicka Mudali. There were no boxes for Angappa Mudali and Perianna Gounder. As already mentioned, at the election held on the 28th April, 1953, the appellant secured the largest number of votes, namely, 3373. The first respondent obtained 2515 and Manicka Mudali 263 votes. The appellant was declared duly elected. Thereupon the first respondent filed O.P. No. 19 of 1953 before the Election Commissioner, the District Munsiff of Gobichettipalayam, to set aside the election of the appellant. He alleged several grounds of which it suffices to mention only one, namely, that the withdrawals of Angaapa Mudali and Perianna Gounder were invalid and therefore they should have been treated as candidates who validly stood for election and boxes should have been placed for them also, to enable voters to record votes for them if they chose. The Election Commissioner held that the withdrawals were not properly made and five boxes should have been placed in the polling booths for all the five candidates including Angappa Mudali and Perianna Gounder. He further held that on account of this irregularity the result of the election had been materially affected. On this ground he set aside the election of the appellant. The appellant filed W.P. No. 22 of 1954 in this Court to have the order of the Election Commissioner setting aside his election quashed. The petition was heard and disposed of by Rajagopala Ayyangar, J. The learned Judge held that the withdrawals were improper and that boxes should have been placed for Angappa Mudali and Perianna Gounder also and he also agreed with the finding of the Election Commissioner that the irregularity had materially affected the election of the appellant. On this finding he dismissed the petition.

(2.) MR . T.R. Srinivasan, learned Counsel for the appellant, conceded that the withdrawals were not validly made and it was wrong on the part of the Election Officer to have omitted to place boxes in the polling booths for Angappa Mudali and Perianna Gounder. But he contended that this action on the part of the Returning Officer was only a non -compliance with the rules and, before the election could be set aside, it must be found on positive evidence that the result of the election has been materially affected by such non -compliance with the rules, and there was no such positive evidence in this case. He relied in support of his contention on the recent ruling of the Supreme Court in Vashist Narain Sharma v. Devchandra, (1954) 2 M.L.J. 379 :, (1954) S.C.J. 717. Before we refer in detail to the Supreme Court decision we shall briefly refer to the evidence on which the learned Judge, Rajagopala Ayyangar, J., was prepared to uphold the finding of the Election Commissioner that the result of the election had been materially affected. The only material evidence on this point was a statement of the first respondent himself as P.W. 10, namely:

(3.) IN the case before the Supreme Court what happened was this. Eight candidates filed nominations to the U.P. State Legislative Assembly from a certain constituency, of whom three withdraw and the contest was confined to the remaining five. The votes secured by these five candidates were as follows: