B S MOORTHY Vs. ELI VADAPALLI

JUDGEMENT

(1.) This is a petition for the issue of a writ of certiorari praying that the order of the District Magistrate of East Godavari dated 23 December 1936 declaring the petitioner's primary election void and the order of the Revenue Divisional Officer of Cocanada dated 31st December 1936 should be quashed. The determination of this matter turns very largely on the construction of the rules framed by the Governor of Madras in Council and it raises a point of some importance relating to the powers of the High Court. Para. 20, Schedule 5, Government of India Act, 1935, reads as follows: In so far as provision with respect to any matter is not made by this Act or by His Majesty in Council, the Governor, exercising his individual judgment, may make rules for carrying into effect the foregoing provisions of this schedule and the provisions of Schedule 6 and securing the due constitution of the Provincial Legislature and in particular, but without prejudice to the generality of the foregoing words, with respect to: (1) the notification of vacancies, including casual vacancies, and the proceedings to be taken for filling vacancies; (2) the nomination of candidates; (3) the conduct of elections ...; (4) the expenses of candidates at elections; (5) corrupt practices and other offences at or in connection with elections; (6) the decision of doubts and disputes arising out of or in connection with elections; and (7) the manner in which the rules are to be carried into effect.

(2.) His Majesty in Council has passed an Order entitled "The Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936." Rule 2, Part 3 of that order is as follows: No election shall be called in question except by an election petition presented in accordance with the provisions of this part of this Order.

(3.) And by Rule 3(1), an election petition against any returned candidate may be presented to the Governor (a) by any candidate or elector on any ground; and by Rule 4(1) unless the Governor, exercising his individual judgment, dismisses a petition for non-compliance with the prescribed requirements, he shall, exercising his individual judgment, appoint as Commissioners for the trial of the petition three persons who are, or have been, or are eligible to be appointed, Judges of a High Court, and shall appoint one of them to be the President. Under Rule 7 the election of a returned candidate shall be void if in the opinion the Commissioners (c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination.... Rule 3(2), Part 1, Introductory of the above Order, is important. It states: The provisions of Parts. 2 and 8 of this Order shall, in relation to constituencies in which seats are reserved for candidates of any particular class, or in which the final voting is by members of an electoral college previously constituted for that purpose, have effect with such exceptions and subject to such adaptations and modifications as may be prescribed, but subject as aforesaid, any primary election for the purpose of electing candidates for reserved seats, or of constituting any such electoral college, shall be deemed to be part of the election of persons to fill the seats to be filled in the constituency.