RAMNARAYAN MALURAM Vs. VISHNU KRISHNARAO

JUDGEMENT

(1.) IN these two petitions under Articles 226 and 227 of the Constitution of India, the applicants apply for an order of certiorari to bring up and quash a decision of the District Judge, Indore, setting aside the election of the opponents Ramnarayan maluram and Babulal Keshoram to the Cantonment Board from Ward No. 4, Mhow, and directing a fresh election.

(2.) THE election to the Cantonment Board was held in 1954. The petitioners ramnarayan and Babulal and the opponents Vishnu Krishnarao Kelkar and ramchandra Narayan were candidates for election to the Board from Ward No. 4. Two persons were to be elected from this ward, one for filing the general seat and the other for a seat reserved for the scheduled caste. The nomination papers of vishnu Krishnarao Kelkar and Ramchandra Narayan were rejected by the returning Officer at the time of scrutiny. The opponent Triyoginarayan also filed a nominationpaper, which was rejected. Ramnarayan Maluram and Babulal keshoram being the only candidates left in the field for filling the two seats were declared as elected to the Board from Ward No. 4. Thereafter Vishnu Krishnarao Kelkar and Ramchandra Narayan presented two election petitions before the District Judge of Indore under Rule 43 of the cantonments Electoral Rules, 1945, made under the Cantonments Act, 1924, contending that their nomination papers had been improperly rejected by the returning Officer. The successful candidates opposed the petitions saying that, the nomination papers of Vishnu Kelkar and Ramchandra Narayan were rightly rejected; that as their nomination papers had been rejected, they were not candidates at the election; and that, therefore, under Rule 43 they were not entitled to present election petitions calling in question the validity of the election. The objection as to the competency of Vishnu Kelkar and Ramchandra Narayan to file election petitions was overruled by the learned District Judge. He found that their nomination papers had been improperly rejected by the Returning officer and accordingly set aside the election of the present petitioners.

(3.) MR. Dubey, learned counsel for the petitioners, first submitted that under Rule 43 an election petition could be presented either by a person who was a candidate at the election or by not less than five persons entitled to vote at the said election; that the election petitions before the District Judge were not presented either by a candidate at the election or by five voters; that a candidate at the election was one whose nomination paper had been accepted after scrutiny and who had not withdrawn thereafter and who was a contestant at the election; that the nomination papers of Vishnu Kelkar and Ramchandra Narayan having been rejected at the time of scrutiny they could not be called candidates at the election; that, therefore, they were not entitled to present election petitions challenging the election. Learned counsel referred to some of the rules f the. Cantonments electoral Rules to emphasise the distinction between "a candidate at the election" and "a candidate for the election" and said that in the rules a candidate seeking election has been, upto the stage of withdrawal following the scrutiny of nomination papers and the publication of a list of valid nominations, referred to as a ''candidate for the election" and that it is only after this stage that he has been described in the rules as a "candidate at the election". Reliance was placed on the decisions in Sitaram Hirachand v. Yograjsingh, AIR 1953 Bom 293 (A) and Sheokumar v. V. G. Oak, AIR 1953 All 633 (B), in support of the contention that the words "at the election" have reference to the actual time when the voting takes place and that a candidate who has withdrawn or whose nomination paper hale been rejected cannot be regarded as "a candidate at the election". It was further contended that the Cantonments Electoral Rules were amended in 1954 when the view taken, by the Bombay and the Allahabad High courts as to the proper meaning and significance of the expression "at the election'' was before the framers of the Rules and that if they had thought that the words "at the election" included persons whose nomination papers had been wrongly rejected, an express provision to that effect would have been made in the rules. Learned counsel sought to illustrate the point by referring to the provisions of U. P. Panchayat Act, where there is an express provision enabling a person whose nomination paper has been rejected to file an election petition.