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TMI Blog1955 (10) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner's nomination as valid. Thereafter. V. Narasimha Rao and K. Venkatramiah withdrew their nominations leaving the Petitioner and the 1st Respondent in the field. At the elections, the Petitioner got 868 votes and the 1st Respondent secured only 160 votes and the Petitioner was duly declared as the successful candy date by the Returning Officer the 1st respond dent filed O.P. No. 126 of 1952before the Election Commissioner. Guntur, seeking to set aside the election of the Petitioner' on various grounds. The following points raised before the commissioner reflect the contentions of the parties. (1) Whether the nomination of the Petitioner is invalid on account of arrears of taxes due to the Municipality by the firm, of the Petitioner and K. Sambasivrao? (2) Whether the Petitioner is an uncertified bankrupt; if so, is his nomination valid? (3) Whether the voters Nos. 406 and 995 were falsely personated and if so, is the Petitioner and his agents responsible for the same? (4) Whether the voter No. 410 was dead and whether the said vote was cast for the Petitioner? (5) Whether the election of the Petitioner is liable to be set aside? (6) Whether the 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the crucial question whether the voters cast their votes in favour of the Petitioner with knowledge of the disqualification, and therefore they threw out their votes. 5. The scope of the words errors of law apparent on the face of the record in the context of a writ of certiorari has been considered and restated by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, 1955 SCR 1104: (S) AIR 1955 SO 233 (A). Venkatarama Ayyar, J., summarised the position at p. 1123 as follows: It may therefore be taken as settled that a writ of certiorari could be issued to correct an ' error of law. But it is essential that it should be something more than a mere error; it must be it of one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement' of the principle its application to the facts, of a particular case. When does an error cease to be mere error and become an error apparent on the face of the record. Learned Counsel on, either were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one but is such that there could be two honest opinions on the matter. We cannot, therefore hold that the said error is manifest or, self-evident on the face of the record. But the last point; raised, namely, that the Commissioner declared the 1st Respondent as duly elected without considering the crucial question whether the votes cast in favour of the Petitioner were thrown away is an error apparent on the face of the record. 8. Though the main question raised in the case, not being an error apparent on the face or the record does not fall to be considered untie' we shall consider the argument in so far as it relates to profession tax more in respect to the argument. advanced than in an attempt to solve it.' At the outset it is necessaries to ascertain the legal characteristics of a firm. It Is settled law that a firm is not a legal entity but only consists of the individual partners for the time 'being. The essential characteristic of a firm is that each partner is a representative of the other partners. Each of the partners is an agent and a principal. He is an agent in so far as he can bind the other partners by his acts within the scope of the partnership bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every partner is an agent of the Ors. , service upon one of the partners can reasonably be construed as service upon all the partners. Further Section 94 substituted for the original Section 94 by Act X of 1930 prescribes the manner of levy of profession tax in the case of firms. Under that section the profession tax leviable from a firm association or joint Hindu family may be levied from any adult member of the firm, association or family. Therefore, if the levy is made on the firm in the manner prescribed by Section 94 or otherwise in law it should be held that the levy was properly made on all the partners. 10. Strong reliance is placed upon some of the sections in the Act and the rules in Schedule IV annexed to the Act in support of the contention that the Act differentiated a partner from a him. under Section 3(8) a company is defined to mean a company as defined in the Indian Companies Act, 1913, or formed in pursuance of an Act of Parliament of the United Kingdom or of Royal Charter or Letters Patent, or of an Act of the Legislature of a British possession and includes any firm or association carrying on business in the Presidency of Madras whether incorporated or not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive authority may recover it by distrait under his warrant and by sale of the movable property of the defaulter. The rules providing for the mode of collection of tax, though they do not specifically mention the word firm will certainly apply also for the collection of taxes due from a firm. 12. From the aforesaid sections and the rules, it is manifest that the Municipality for the purposes of assessment and collection of profession tax made a convenient division between a company and a person. The Act also provides for levy of assessment on an adult, member of the firm on behalf of the firm.. But the sections or the rules have not abrogated the well-recognised principle that a firm is not a separate entity but only a group of persons. The result therefore is that, however the assessment is made and whatever the procedure is followed for recovering it the liability is that of the group of the persons constituting the firm and the arrears are due from the said group of persons. If the assessment is made on the company a notice can legally be served on one partner of the firm or even under Section 94 the levy itself can be made on behalf of that firm on any adult membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner got 868 votes where the 1st Respondent -secured only- 160 votes. There is no evidence on record to show that the voters had any knowledge of the fact that the Petitioner was a partner in a firm which was in arrears in respect of profession tax. On the aforesaid facts the question is whether the Returning Officer had to exercise his discretion under Rule 12 of the Rules for the decision of election disputes, Rule 12 reads: (1) At the conclusion of the inquiry, the Election Commissioner shall declare whether the election of the returned candidate or candidates is void under Rule 11. (2) If he declares the election of the returned lipid date or candidates void, he shall further was an order either (a) declaring that any other ''party' to the petition who has under these rules Claimed the seat has been duly elected; or (b) ''party' to the petition who has under these rules Claimed the seat has been duly elected; or (b) ordering a fresh election. (3) The order- of the Election Commissioner under sub-rules 1 and 2 shall be final. The rule does not lay down any principles to guide the exercise of the discretion by the Commissioner. The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns if a person is a candidate who is manifestly disqualified then in such a case the votes given for him may be treated as having been thrown away, since they were perversely and willfully given to a candidate whom the electors knew to be disqualified. In regard to the nomination itself, as Wright, J., says in Harford v. Linskey 1899 1 QB 852 862 (E). 'If the nomination paper is, on the face of it, a mere abuse of, the right of nomination or an obvious unreality, as, for instance. If it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected, and no petition could be maintained in respect of its rejection. From the aforesaid' passage these principle emerge. A nomination if accepted by the Returning Officer as valid forms the basis of the election. Though it is liable to be held invalid in an election petition there is real election on the basis of the said nomination paper and the voters are entitled to vote for one or the other of the contesting. parties. If an election had been held, the defeated candidate cannot be declared as elected unless it held that the electors with the knowledge of the disqualification of one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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