SULEMAN FAKRUDDIN ANSARI Vs. S B KULKARNI

JUDGEMENT

(1.) The facts giving rise to this petition are briefly these. The general elections for electing councillors of the Poona Municipal Corporation are to be held on 23rd September 1962. The last date for filing nomination papers was 3ist August 1962, 5th September 1962 was fixed as the date for scrutiny of nomination papers. The petitioner and opponent No. 2 had filed nomination papers from Ward No. 4. Opponent No. 2 submitted three nomination papers Nos. 32, 33 and 34. These nomination papers did not bear his signature. An objection was, therefore, raised that as opponent No. 2 had not signed the nomination papers, as required by Clause (c) in Sub-rule (2) of Rule 9 of the Election Rules contained in the Schedule Jo the Bombay Provincial Municipal Corporations Act, the nomination papers were invalid. The Municipal Commissioner, who is the Returning Officer, heard all the parties and thereafter overruled the objection. In his opinion two points arose for consideration: (1) Whether willingness of the candidate to accept the nomination must be signified by his signature only and in no other manner. (2) If signature is not obligatory and a candidate may express his willingness in some other manner, whether Shri Mithapalli has clearly expressed his willingness to accept the nomination. On the first point the Municipal Commissioner took the view that the signature of the candidate is required for the purpose of knowing whether he is willing to accept the nomination, that although it is advisable that the candidate's willingness should be signified by signature, it would be adequate if the purpose is fulfilled in some other manner and that consequently the mere absence of the signature of the candidate would not by itself invalidate the nomination, if the candidate has signified his willingness unambiguously in some other manner. On the second point the Municipal Commissioner took into consideration the facts that opponent No. 2 had himself obtained three blank nomination papers from the Municipal Commissioner and had personally signed on the counterfoils for having received the blank forms, that he himself had paid the deposit of Rs. 100 on 31st August 1962 as required by Election Rule No. 10, that the receipt for this amount had been issued in his name and that opponent No. 2 had personally handed over three nomination papers to the Municipal Commissioner. In his opinion these facts clearly indicated that he was not only willing, but even anxious to accept the nomination and to stand for the election. The Municipal Commissioner, therefore, held the nomination of opponent No. 2 to be valid. The order passed by him is being challenged before us in this petition.

(2.) In order to consider the various arguments which have been advanced before us, it is necessary to refer to the relevant provisions of the Bombay Provincial Municipal Corporations Act and the Rules. Section 14 of the Act states that elections of councillors shall be held in accordance with the rules. Sub-section (1) of Section 16, in so fat as it is material, provides that if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination ......... any person enrolled in the municipal election roll may, at any time within, ten days after the result of the election has been declared, submit an application to the Judge for the determination of the question. One of the grounds on which the election may, therefore, be questioned is that the Commissioner had improperly rejected a nomination paperor nomination papers. Section 403 lays down the procedure, which is to be followed in an election inquiry Sub-section (3), in so far as it is material, states , that if, after making such inquiry as he deems necessary, the Judge finds that ......... the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election ............ he shall declare the election of the returned candidate to be void and if he does not so find he shall confirm the election of the returned candidate. An election may therefore be set aside, if the Judge hearing the election petition finds that the result of the election has been materially affected by the improper acceptance or rejection of any nomination. Sub-section (6) of this section states that the Judge's order under this section shall be conclusive. Sub-section (7) provides that every election not called in question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election. Section 453 provides that the rules in the Schedule as amended from time to time shall be deemed to be part of this Act. The election rules, under which the election of the councillors is to be held, are contained in Chapter 1 of the Schedule to the Act. The material rule is Rule 9, Sub-rule (1) of this rule provides that candidates for election at award election must be duly nominated in writing in accordance with the provisions thereinafter contained. Sub-rule (2) states that with respect to such nominations, Subject to Sub-rule (3), the following provisions shall have effect, viz:

(3.) Mr. Kotwal, who appears on behalf of opponent No. 2, has first urged that we should not Interfere at this stage. The election is still to be held. It will be open to the petitioner to challenge the election on the ground that the nomination papers of opponent No. 2 had been wrongly accepted. The petitioner is therefore not without an alternative remedy. Mr. Kotwal has therefore contended that as the petitioner can urge the same grounds, on which he has questioned the action of the returning officer in accepting the nomination papers of opponent No. 2, in an election petition, we should not at this stage exercise our powers under Articles 226 and 227 of the Constitution. He has relied on the decision of this Court in Shankar Nanasaheb v. Returning Officer, Kolaba, 54 Bom LR 137: (AIR 1952, Bom 277). That was, however, a case of an election to the Bombay Legislative Assembly. In view of Article 329(b) of the Constitution it was held that the only way any matter relating to or in connection with such an election can be called in question is by an election petition and that consequently this Court could not issue a writ under Article 226 of the Constitution, in order to correct the decision of the returning officer before the election was held. In this case, therefore, the jurisdiction of this Court was held to have been taken away by Article 329 of the Constitution. That is not the position in the case before us. Mr. Kotwal has also relied on the decision of the Supreme Court in N. P. Pounuswami v. Returning Officer, Namakkal Constituency, 3952 SCR 218: (AIR 1952 SC 64). One of the conclusions arrived at by Fazl Ali J. has been summed up in the judgment in the following words at p. 234: