S SUBRAHMANYA RAJU Vs. ALLURU PEDDASWAMY CHETTY

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India, questioning the validity of the order passed by the Election Commissioner of Puttur on 2nd September, 1961 whereby the Election Commissioner declared the election of the petitioner before me as illegal and void. The facts relevant to this petition are as follows:- The Village Panchayat of Thumbur village consists of nine members. The election of the President of that Village Panchayat was scheduled to be held on 28th September, 1959. The election was accordingly held on that date and the petitioner was unanimously declared as the elected President. Six members were present at that meeting. The respondent being one of the members of the Village Panchayat filed an election petition under the Rules for Decision of Election Disputes before the Election Commissioner, Puttur, challenging the election of the petitioner on various grounds, the main ground being that no notice of the said meeting was served on the respondent and three other members.

(2.) The defence raised by the petitioner was that the notices were issued to the respondent and two others under a Certificate of Posting, and that they had the knowledge of the meeting. He also submitted that prior to the abovesaid meeting another meeting of the Village Panchayat was held to elect a woman member. At that meeting it was announced that election of the President will take place on 28th September, 1959 and because the respondent and two other members were not present at that meeting, notices were issued to them as above. As they had the knowledge of the meeting election cannot be set aside. It is unnecessary to go into the defence raised in regard to the other grounds raised in the petition.

(3.) The Election Commissioner, after proper enquiry, passed an order on 2nd September, 1961 declaring the election of the petitioner as illegal and void. He held that the respondent and two other members were not given notice of the meeting dated 28th September, 1959. He also repelled the argument advanced by the petitioner that inasmuch as six members out of nine were present and they unanimously elected him, the result of the election was not materially affected and that it could not be therefore set aisde. In this petition, it is this view of the Election Commissioner which is challenged before me. The principal contention of Sri K. Srinivasamurthy, the learned counsel for the petitioner, has been that according to rule 11(c) of the Rules for Decision of Election Disputes, the respondent has failed to prove that the result of the election has been materially affected. He also submitted that the Election Commissioner has not expressly found that the result of the election was materially affected. His decision therefore, says the learned Advocate, is without jurisdiction. In order to appreciate this contention, it is necessary to look into rule 11 (c) which is in the following terms: 11(c) If the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or void by any non-compliance with the provisions of the Act or the Rules made thereunder - the election of such returned candidate shall be void." I am not concerned with the proviso and the Explanation which find place thereafter. It is no true doubt that rule 11(c) as extracted above puts the following grounds for avoiding an election on an equal footing : (a) any irregularity in respect of nomination papers ; (b) the improper reception of a nomination paper ; (c) the improper refusal of a nomination paper ; (d) the improper reception or refusal of a vote ; (e) non-compliance with the provisions of the Act or the Rules made thereunder. It is also true that, in all such cases, the rule visualises that apart from the existence of any one of the abovementioned factors, it must also be satisfactorily proved that the result of the election has been materially affected in case an elecion of a returned candidate is to be declared void. But the rule nowhere lays down that, in all the above cases uniform standard of evidence shall be required to find out whether the result of the election has been materially affected. It is inherent in some of the cases that a different kind of standard will have to be applied, for instance, in cases of improper reception of nomination papers or votes, or where all the cotesting candidates go to the poll but some of the provisions of the Act or any rule made thereunder have not been complied with or there is any defect or irregularity in respect of nomination paper, although it was accepted, it is possible to apply the rule more rigidly as it can by permissible evidence be judged whether the result of the election is materially affected. In such a case the votes having been cast in favour of the candidates who had in fact participated in the election, their respective voting strength and the effect of any irregularity or wrong reception of a nomination paper or wrong refusal of vote being apparent, there can be no difficulty in finding out to what extent the election results are affected thereby. But, in case where on account of wrongful refusal of a nomination paper a candidate was kept out of the election contest, it is not possible unless one indulges in speculation, to correctly say whether the election result would have been otherwise if the candidate whose nomination paper was rejected had actually contested the election. The decisions of various Courts have been, therefore, uniform in stating that when there has been an improper rejection of the nomination of a candidate, the election can be set aside without any positive or affirmative proof that the rejection of the nomination paper has materially affected the result of the election. This conclusion, in such a case, becomes irresistible because the entire electorate is deprived of its right to vote for a candidate who was qualified to receive the votes apart from the fact that the candidate himself was unlawfully prevented from exercising his invaluable right to stand as a candidate for the election. A presumption in such a case has therefore to be made that wrongful rejection of a nomination paper necessarily affects the result of the election materially.