Case: N. T. Veluswami Thevar, Vs. G. Raja Nainar And Others

be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised.15. Mr. Ganapathy Iyer, learned counsel for the appellant, invited our attention to the decisions of the Election Tribunals on the question whether grounds, other than those raised before the returning officer could be put forward in an enquiry in an election petition. They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj v. Bhimandas, 1952-2 E L R 301 at p. 310 as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer. If the Legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret S. 100 (1) (c) as not intended to alter the law as laid down in those decisions.16. It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehtas case, 1955-1 SCRR 267 : (A I R 1954 S C 520), the election was to a double-member constituency. The appellant who obtained the largest number of votes was declared elected to the general seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to stand. The Election Tribunal upheld that objection, and set aside the entire election, The decision was taken in appeal to this Court, and the point for determination was whether the election of the appellant was liable to be set aside on account of the disqualification of Vasantarao. It was held that the matter fell within S. 100 (2) (c) as it then stood and not under S. 100 (1) (c), and that the election of the appellant could not be declared void. This is not a direct pronouncement on the point now in controversy, and that is conceded. In Vashist Narain Sharma v. Dev Chandra, 1955-1 S C R 509 : (A I R 1954 S C 513), a question was raised as to what would be "improper acceptance" within the meaning of S. 100; but in the view taken by this Court, no opinion was expressed thereon.17. The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204 ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutory orders.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]This in our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returningthe argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.12. In support of his contention that it is only the ground that is urged before the returning officer that can be raised before the Tribunal, Mr.Sinha, learned counsel for the respondent, relies on the provision in S.36 (6) that when a nomination paper is rejected, the returning officer should record his reasons therefor. The object of this provision, it is argued, is to enable the Tribunal to decide whether the order of the returning officer is right or not, and by implication it confines the scope of the enquiry before the Tribunal to the ground put forward before the returning officer.This contention is, in our opinion, unsound. Now, when a nomination paper is accepted, S. 36(6) does not require that any reason should be recorded, therefor. If the contention of the respondent is right, it would follow that acceptance of a nomination paper can never be questioned. But that would be against S. 100 (1)(d)(i), and it must therefore be held that an acceptance can be questioned on all the grounds available under S. 36(2). Section 100(1)(d)(i) deals with improper acceptance of a nomination paper, and if the word "improper" in that provision has reference to the matters mentioned in S. 36(2), it must have the same connotation in S. 100(1)(c) as well.The word "improper" which occurs in both S.100(1)(c) and S.100(1)(d)(i) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown.13. There is another difficulty in the way of accepting this argument of the respondent. A candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing that the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that, under S. 36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on those objections? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under S.100 (1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own terms.It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other, not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in S. 36(2).The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204  ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutoryin our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returninge argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.