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TMI Blog1958 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... pandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government-aided school, and that he was therefore disqualified under s. 7, cls. (d) and (e) of the Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observed: " Sri S. Arunachalam is not present at the time of scrutiny of nominations nor any authorised agent of his could take notice of the objection and file a reply.' In view of the objection which has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under Sections 7(d) and (e) of Act 43 of 1951. Accordingly his nomination is rejected." The five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on March 10, 1957, the appellant who secured the largest number of votes was declared el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the enquiry before the Tribunal must be restricted to the objections which the returning officer had to consider and decide, but not necessarily to the material placed before the returning officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the returning officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the returning officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returned candidate." " A further objection was also taken before the learned judges that as the decision of the Election Tribunal was open to appeal under s. 116A of the Act, the court should, in exercise of its discretion under Art. 226, decline to entertain writ petitions against interlocutory orders. But the learned judge held that as the Tribunal had no jurisdiction to entertain grounds other than those which were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:- (a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may, be applicable, namely Articles 84, 102, 173 and 191, Part 11 of this Act, or (b) that there has been a failure to comply With any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the pro. poser on the nomination paper is not genuine. (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he is either not qualified, that is, under ss. 3 to 7 of the Act, or is disqualified under the provisions referred to therein. If there are no grounds for rejecting a nomination paper under s. 36(2), then it has to be accepted, and the name of the candidate is to be included in a list. Vide s. 36(8). Then, we come to s. 100(1)(c) and s. 100(1)(d)(1), which provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly accepting any nomination. In the context, it appears to us that the improper rejection or acceptance must have reference to s. 36(2), and that the rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer from any of the disqualifications mentioned in s. 36(2) would be improper within s. 100(1)(c), and that, likewise, acceptance of a nomination paper of a candidate who is not qualified or who is disqualified will equally be improper under s.100(1)(d)(1).Section 32 confers a substantive right on a candidate to be chosen to the legislature subject only to the limitations enacted in Arts. 84, 102, 173 and 191 of the Constitution and ss. 3 to 7 of the Act, and ss. 36 and 100 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper rejection of a nomination paper is in the nature of an appeal against the decision, of the returning officer, then logically speaking, the decision of the Tribunal must be based only on the materials placed before the returning officer given with respect to the ground which was urged before him, and no fresh evidence could be admitted before the Tribunal except in accordance with 0. 41, R. 27. The learned judges in the court below, however, observe that though the enquiry before the Tribunal is restricted to the particular ground put forward before the returning officer, it is not restricted to the material placed before him, and that all evidence bearing on that ground could be adduced before the Tribunal. 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)(1) 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)It remains to deal with one more contention advanced on behalf of the respondent, and that is based on the following observations in Hari Vishnu Kamath v. Syed Ahmad Ishaque and others ([1955] 1 S.C.R. 1104, 1132): "Under this provision R. 47(4), the Tribunal is constituted a court of appeal against the decision of the returning officer, and as such its jurisdiction must be co-extensive with that of the returning officer and cannot extend further." The argument is that if the jurisdiction of the Tribunal is co-extensive with that of the returning officer, then the enquiry before it must be confined to the grounds which were urged before the returning officer. Now, the observations quoted above were made statedly with reference to R. 47, and assuming that they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the point now in controversy, and that is conceded. In Vashist Narain Sharma v. Dev Chandra and others ([1955] 1 S.C.R. 509), 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. The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur ([1954] 9 E.L.R.193), 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, if taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar ([1958] 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 nomina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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