KAMARAJ NADAR Vs. A. KUNJU THEVAR AND ORS.

JUDGEMENT

(1.) THESE two sets of Writ Petitions arise out of proceedings for the setting aside of the election and other reliefs prayed for in two Election Petitions. These petitions before us are by the returned candidates and they have been heard together because some of the points raised in them are common.

(2.) W .P. Nos. 531 and 532 of 1957 are respectively for the issue of writs of certiorari and prohibition by the candidate who was declared elected at the election held for the single member Sattur Constituency of the Madras Legislative Assembly in January -March, 1957. W.P. No. 531 of 1957 seeks the quashing of the order of the Election Tribunal which held the Election Petition before it to be in order and directed an amendment the details of which we shall refer to later, while W.P. No. 532 of 1957 seeks the issue of a direction injuncting the Tribunal from further proceedings with the petition on the ground that the Election Petition not being in order the Tribunal ought to have dismissed it in limine because according to the petitioner, it was beyond its jurisdiction to retain it on its file and to proceed with it. Similarly W.P. Nos. 573 and 574 of 1957 are by the candidate who was returned as duly elected to the single member Salem I Constituency of the Madras Legislative Assembly. W.P. No. 573 of 1957 seeks the issue of a writ of certiorari to quash the order of the Tribunal which held the petition questioning his election, to be in order. W.P. No. 574 of 1957 seeks the issue of a writ of prohibition directing the Tribunal not to proceed further with the Election Petition.

(3.) W .P. Nos. 573 and 574 of 1957. - -There was a general election to the Madras Legislative Assembly from the single member Salem I Constituency in January -March, 1957. As many as 10 persons filed their nominations as candidates for this election. The date fixed for the scrutiny of the nomination papers was 1st February, 1957 and the Returning Officer after an examination of the several papers held all the 10 nominations to be in order. He accordingly prepared a list of validly nominated candidates as required by Section 36(8) of the Representation of the People Act, 1951, as amended in 1956(which we shall hereafter refer to as the Act) showing all these ten as candidates, whose nominations had been found valid, and affixed this list to his notice board. Under Section 37 of the Act any candidate might withdraw his candidature before three o'clock in the afternoon of the day fixed for such withdrawal (the date thus fixed in the case of the election in the present case being 4th February, 1957). Five of the candidates withdrew their nominations under this provision, with the result that five candidates still remained to contest the election. The poll had been fixed for being taken on 6th March, 1957. Under the procedure which prevailed before the amendments introduced by the Representation of the People (Second Amendment) Act (XXVII of 1956), all these five who had not withdrawn their nominations would have gone to the polls. A change was however introduced by Section 33 of the Amending Act XXVII of 1956 by which a new Section 55 -A was introduced into the main Act under which a provision was made for candidates withdrawing from the contest and not going to the polls by a formal notice of retirement given not later than 1 o days prior to the date fixed for the polls. We shall have to deal with the effect of this provision in considerable detail later, but shall proceed with the narrative of what transpired subsequently and which has led to these Writ Petitions, before referring to the scope and effect of the provision for withdrawal. Out of the five candidates who remained after the withdrawals two retired before 23rd February, 1957, with the result that only three of the candidates who had been duly nominated went to the polls. The polling took place as stated before on 6th March, 1957. As a result of the counting of the votes recorded at the polls, the Returning Officer declared Sri Mariappan the petitioner before us as duly elected, he being taken to have -received 24,920 votes as compared with Sri Nedunchezhiyan the first Respondent before us who secured 24,713 votes, the third candidate Sri Samuel getting only 5,487 votes.