(1.) THE petitioner, desiring to contest the election of Municipal Corporation, gwalior, from Ward No. 2 filed his nomination paper on 13th January, 1958, through one Jagan Ku-mar Gupta, his seconder, A scrutiny was held on the 16th january, 1958, and, the Nirwachan Nirikshak (Returning Officer) rejected the nomination-paper on the ground that according to Section 23 (1) of the Rules, made under the Madhya Bharat Nagar Palika Nigam Parshad Nirwachan Niyam (hereafter referred to as the 'niyam') the seconder had not put down the capacity in which he had signed the nomination-paper before the Nirwachan Nirikshak. According to Section 31 of the Niyam, an application was filed before the nirwachan Padadhikari (Collector), challenging the decision of the Returning officer. This application was rejected and now the petitioner has come up to the high Court under Article 226 and Article 227 of the Constitution of India.
(2.) A preliminary objection raised in this case is that because under Section 441 of the Madhya Bharat Municipal Corporation Act, the rejection of a nomination paper can be challenged by an election petition, the remedy by way of a writ is not open to the petitioner.
(3.) A similar objection was raised in Basantilal v. Nirwachan Padadhikari, Civil Misc. Case No. 45 of 1957, reported in 1958 MPC 44 : (AIR 1958 M P 181) (A ). I had considered the point and had held the scheme of Madhyabharat enactment was different from the Representation of the People Act, in that it provided an interim remedy against the rejection of the nomination-paper. Clause (3) of Section 31 of the Niyam says that an order passed by Nirwachan Padadhikari would be final. In this view of the matter, I adhere to the opinion already expressed in Basantilal v. Nirwachan Padadhikari (A) referred to above.