SURAJ BHAN Vs. RANDHIR SINGH

JUDGEMENT

(1.) SHRI Suraj Bhan appellant was elected to the Punjab Legislative Assembly from sampla Constituency in the Rohtak District. His election has, however, been declared void by the Election Tribunal. Hence this appeal.

(2.) TO begin with, there were 11 candidates nominated for election to this particular seat. Seven of them, however, withdrew leaving four including the appellant in the field. Polling was fixed for and took place on 10-3-1957. On 28-2-1957 one of the four remaining candidates appeared before the Returning Officer and handed him a notice of retirement from the contest and this was duly published. The result of the election was declared on 13-3-1957 in favour of the appellant who had obtained the largest number of votes. His election was challenged by one of the contesting candidates, Shri Randnir Singh, and in the election petition a number of grounds were taken. Most of these were, however, not pressed and the election petition was fought out on a single issue and it was this that Shri Mange ram had been improperly allowed to retire from the election contest which by itself, had the effect of nullifying the appellant's election. The argument in support of this contention was that under Section 55a of the representation of the People Act, 1951, a contesting candidate can retire from the contest only if he gives notice not later than ten days prior to the date fixed for the poll, that this means that ton days' clear notice of retirement is necessary which, in turn, means that the notice of retirement should have been given on 272-1957, and since the actual notice was one day later the retirement was improper and such improper retirement must be deemed to be an improper refection of the nomination of Shri Mange Rarti -- which improper rejection would under Section 100 of the Act avoid the election. It was admitted that 27-2-1957 was a public holiday but it was argued that although by virtue of Section 10 of the General Clauses Act a person is enabled to do what he could have done on a holiday, on the next working day, this can be of no help in the present case as Section 10 of the General Clauses, Act has no application at all. This line of reasoning found favour with the Election Tribunal, and before us objection has been taken to each step in this chain of reasoning. Mr. Aggarwal for the appellant contends that under Section 55a of the representation of the People Act Shri Mange Ram could lawfully retire from the contest on 28-2-1957, and further that even if the last date for retirement be taken as 27-2-1957 he could still do so on the 28th as the 27th February was a public holiday. Further, learned counsel contends that assuming the retirement to have been irregular the election of the appellant cannot be declared void on such a ground, as Section 100 of the Act does not mention irregular or improper retirement of a contesting candidate as a ground for declaring an election invalid, unless it can be shown that the result of the election was materially affected by such irregularity which has not been shown. In respect of this last matter I might mention here that the Election Tribunal did go into the question whether the improper retirement of Shri Mange Ram in any manner affected the result of tie election, and came to the conclusion that it was not possible to say so, and this finding has not been challenged before us so that the question merely is whether, by itself, such irregular or improper retirement invalidates the election within the meaning of Section 100 of the Act.

(3.) TO take up the first question first we have to consider the meaning of Section 55a of the Representation of the People Act. Sub-section (2) of this section, which is relevant, runs thus: