S,UPREME COURT REPQRT~ v. T. Nagappa

respondent No .. 1, Raghuraj Singh,' filed an election peti tion against the appellant and respondents, u.nder section 81 of the Act, praying that the said elec tion to the. Lakhnadon Legi'slative Assembly Constitu ency be declared wholly void or in the alternative the dection of Vasarit Rao and/or, that of the appellant, Durga Shankar Mehta, be declared .void. There was s, string of allegations made· in the. petition accusing the appellant of various corrupt practices in the matter of securing, votes. but none of these are material for our present purpose, as the Tribunal, by a !J?.ajority, held these allegations to be unfounded and not supported by proper evidence. The substantial ground upon the petitioner sought to assail the validity of the the respondent No. 2, Vasant Rao, election was, reserved seat in who was declared duly elected to the said constituency was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a the Constitution. This alle State under article 173 of to be gation was true by the majbrity of the judgment dated the 30t~ of April, Ttiburial and by its the act 1953, the nomination in accepting of the Returning Officer of Vasant Rao, who was disqualified to be elected a member of the State Legislature under the Constitution, amounted to an improper acceptance of nomination 'within the meaning of section 100(1) (c) of the Act and the · result of the election was materially affected ·as thereby, the whok election must be pronounced to be void. It is the propriety of this decision that has been challenged before us in this appeal. the Tribun.al came to the conclusion that Mr. Hazarnavis, appearing for the respondent No. 1 took a preliminary point challenging before us, competency of the appeal. is contended by It that article 329(b) of the Constitution learned counsel, ousts . the .jurisdiction of all ordinary Courts in. election that no election disputes and . provides expressly either House of Parliament or to either House of the I,egislat, ure 0f a State. shall be called. in question, ex .cept by. an, election, petition presented to such autho rity and in, such manner as may be provided. for· by or .. ./ ' 'J ' 1954 .Darga Shon!tar :Mehta v. ·T-ilakttr Rag/illraj SiREh illld ·Others. Mwihe; jea ]. S;C.R. SUPREME COURT REP@l(TS 271 :by the appropriate Legislature. under any Jaw 'rn:ade [t is urged that there can be" no ' challenge to the valid ity of an election except by way of an election · petition, and the authority lo which, :and the manner in which, is to be presented~ . have been embodied such petition in the Representation of the People Act which :ha:s been enacted by the Parliament under article 327 of Constitution. Section 80 of the Act, which is worded almost in the same manner as article 329(b ), provides that "no election shall be called in question. e:Xcept by an election petition presented in aci::ordance with ·ahd section 105 says provisions of "every order of the Tribunal made under this Act ·shall be final and conclusive." ed counsel that the is created in the Election Tribunal is a special jurisdiction which can· be invoked by an aggrieved party only by means of an election petition and the de.cision of the Tribunal is final and conclusive. jurisdiction that this Part" ·; It is contended by the ·learn- · 'examination to be untenable. is a creature of the Constitution and when These arguments, though apparently attractive, ap ·We pear to us on 'closer that the right of seeking agree with the learned counsel in Parliament or in a State Legisla election and sitting Constitution' provides · a special remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available to a person in regard· to elec tion disputes. The ·jurisdiction with which the Election Tribunal is endowed is undoubtedly a special· jurisdic it is a iudicial Tribunal tion ; but once it is held that to deal judicially with disputes empowered ·and obliged the over arising out of or in connection with election, riding p'ower of this Court to grant special leave; proper power cannot be excluded by any Parliatnenta'ry 'legis lation. The non obstante clause with which attit'le 329 the ConslitutiOn begins and upon which 'the pondent's counsel lays so tnuch stress ·debars us, a's it debars any other Court in' the land,· to enterfaih 'a suit ·or a proceeding calling in, question any . election to the Parliament or the State Legislature. · It is · the Election Tribunal alone that can decide such ·disputes, and. the initiated by an election petition proceeding has ·would certainly be attracted and to be cases, 195<1, · Dwga Slwaklw M1lrltt •• T llaiw< Rag,.,,,aj Singh and Othns. · Mukl1'ij1a ]. 272 SUPREME COURT REPORTS [1955] .and in such manner as may be provided by a statute. .BiJt once that Tribunal has made any determination or .adjudication on the matter, the powers of this Court to .interfere by way of special leave can always be exerci It is now well settled by the majority decision of sed. in the case of Bharat Bank Ltd. v. Em this Court ployees of the Bharat Bank Ltd.(') that the expression '"Tribunal" as used in article 136 does not mean the ·same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distin guished from purely administrative or executive func tions. The only Courts or Tribunals, which are express ly exempted from the purview of article 136, are those which are established by or under any law relating to the Armed Forces as laid down in clause (2) of the It is well known that an appeal is a creature of article. inherent right of appeal ·statute and there can be no from any judgment or determination up.less an appeal is expressly provided for by the law itself. The powers given by article 136 of the Constitution however are the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by itself is the Supreme Court of the land. The article It vests worded in Supreme Court a plenary the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a Court or Tribunal powers could be exercised in spite of the specific provi for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not the powers exercisable choose to fetter or circumscribe the Re presentation of the People Act certainly gives finality to the decision of the Election Tribunal so far as Act ,is concerned and does not provide for any further appeal but that cannot in any .way cut down or affect the overriding powers which this Court can exercise in the matter of granting special kave under article 136 of the Constitution . . (i) [1950]'~.C.R. 459. in any cause or matter and in any way. Section 105 of jurisdiction in terms possible. the widest this article 1954 Durga Shank"' Mehta v. T ha/cur Raghuraj Singh and Others. Mukhujta]. S.C.R. SUPREME COURT REPORTS 273 to it, taking away the decision of the Privy Council This overriding power, which has been vested in the Supreme Court under article 136 of the Constitution, in a sense wider than the prerogative right of entertain Judicial Committee of ing an appeal exercised by the the Privy Council in England. The prerogative of Crown can be taken away or curtailed by express legis there are no clear words in a lation and even when the Crown's particular statute expressly scheme prerogative of entertaining an appeal but the and purpose of the Act show unmistakably that was never any intention of creating a Tribunal with the ordinary incident of an appeal to the Crown anne the Privy Council would not admit an appeal from the decision of such Tribunal. This is illustrated in Theberge v. Laudry(1) upon which Mr. Hazarnavis places consider In that case the petitioner having been able reliance. the elec declared duly elected a member to represent toral district of Montmanier, in the Legislative Assem bly of the Province of Quebec, his election was after wards on petition, declared null and void, by judgment the Quebec Controverted of the superior Court under Elections Act, 1875, and he himself was declared guilty of corrupt practices. He applied for . special in Council. The application appeal to His Majesty was refused and Lord Cairns in delivering the judgment that although the prerogative of the of the Board held, taken away or limited except by Crown could not be the Quebec express words and the relevant section of Controverted Elections Act of 1875 providing "such judgment shall not be susceptible of appeal" did not mention either the Crown or its prerogative, yet the fair construction of the above Act as also of the previous Act of 1872 was that it was the intention of to create a Tribunal for the purpose .. of the Legislature trying election petitions in a manner which would make its decision final for all purposes and should not annex to it the incident of its judgment being reviewed by the Crown under its prerogative. I -·-· } . \ This decision Mr. Hazarnavis. in our · opinion does not assist is a In the first place article 136 (1) (1876.77) 2 App. Cas. 102. '954: '/Jurga shmlkar Me/µa "· Thakur 'Rathuraj · Si"ngh awl Othefs. ·Muk, htrjea J. SOl'REME COURT REPORTS [t955j In like all other cdtisfitui.-lonal provisioh Whkh no Patliam'en.taty :legisla- tion t:tn liniit 'or 'take away. the second place the provision being one, ·which overrides 'ordinary laws, no presumption can arise from words and expressions dec- laring an adjudication of a particular Tribunal to be fora\ and mnclusive; there was an intention ·to the exercise of the special powers. As has exclude been said already, the ·non obstante clause in article 329 prohibits challenge to an election either to Parliament in the manner laid ·or any State Legislature, except down in clause there is no pro (2) bf the article. But hibition of the exercise' of its powers by the Supreme Court in proper c'ases under article 136 of the 'Constitu- tion against the decision or determination of an Elec- judicial Tribunals tion · Tribunal which comes 'within· the purview of the article. It is certain- ly desirable that the decisions on matters of disputed final and election should, as soon as possible, become conclusive so that the i:onititution of the Legislature may be distinctly and speedily known. But the powers under artide 136 are exercisable· only uhder exceptional circumstances. The ·article does not create any general right of appeal froin decisions of all Tribunals. As re- gards the decision of this Court in Ponn'uswami 'v. Re- turning Officer, Namakka! Constit1Jency, and Others('), to which reference has been made by the learned coun- sel, we would only desire to point out that all that this case decided was that ·the High Court· had no jurisdic- tion, under article 226 of the Constitution, to interfere the order of a Returning by a writ of ·certiorari, with rejected the Officer who was alleged 'to have wrongly it ·was noD;iin'ation paper of . a particular candidate. held that the word "election" in article 329(b) of the . Constitution had been ·used in the wide sense to ·connote in a cahdidat_e's ·being declared efected and that the scheme of Part XV of the Constitution · was ·. that all · inattets which had the effect of vitiating election should be brought U:p only after the election was over and by way of 'an election peti- tion. Tile particular. point; which arises· for considera- . tion here, · was not decided in that case and Was expressly 'entire process, culminating (') [•952] S.C.R. 218. -# l- ,-• "'- '1954 'Durga Shankar Mehta 'V. Thakur Raghuraj ·Singh and Others. Mukherjea J. S.:C.R. SUPREME COURT REPORTS left open. In our opinion . therefore point raised by Mr. Hazarnavis cannot succeed. the preliminary Coming now the majority of the Tribunal to the appellant's case, Mr. Sen who support of the appeal, has pressed only appeared in for our consideration. He plainly stated one point that he could not challenge the propriety of the finding arrived at by that res pondent, Vasant Rao, was below 25 years of age at all is a findjng of fact material times. This, he concedes, and being based on evidence, is not open to challenge before us in an appeal by special leave. His contention that there has been no improper accept .in substance is, the present case, as has been ·ance of nomination held by the Tribunal and consequently the provision of section lOO(l)(c) of the Act would not be attracted to it and the entire election could not have been declared -void. It is that ·on the true, says the learned counsel, finding of the Tribunal there has been a violation of or ·non-compliance with the provision of article 173 of the ·Constitution and as from a constitutional disability by reason of his under-age and is not qualified to be chosen to fill a seat in the Legisla tive Assembly of a State, his election can undoubtedly be declared void under section 100(2) ( c) of the Act, but there was no justification for pronouncing the whole to be void. election, that of the appellant, The whole controversy thus centres round the point as the facts admitted and proved, the to whether, upon present case comes within the purview of sub-section ( 1) ( c) of section 100 ofthe Act or of sub-section (2) ( c) ·of the sa.me section. The relevant portions of section 100 of the Act so far as are material for our present purpose may be set out as follows :- respondent No. 2 suffers including "100. Grounds for declaring election to be void- (1) If the Tribunal is of opinion- ( a) ... '. ....... ; ............... . '(b) ............................ .. ( c) that the result of the election has been mate rially affected by the improper acceptance or rejection of. any nomination, ;the Triqunal shall declare the electic,m to be whollr void. .. , } . \ ~'' 1954 Durga S/wckar M1hta V• Thakur Raghuraj Singh and Others. Mu/J,,rje• J. Z76 SUPREME COURT ,REPORTS . . .. . . . . . . . . . ··'· ........................ . . ' . . . ' ' [1955} (2) Subject to the provisions of sub-section (3), if the Tribunal is of opinion- ( a) ........................... . (b) ........................... . the result of the election has been materi-· ( c) that ally affected by the improper reception or refusal of a· vote or by the reception of any vote which is void, or by any non-compliance with the provisions of the Cons titution or of this Act or of any rules or orders made under this Act or of any other Act or rules relating t<> the election, or by any mistake in the use of any pres cribed form, the Tribunal shall declare candidate to be void." the election of the returned The first point for our consideration is whether nomination of Vasant Rao was improperly accepted by the Returning Officer and that has materially affected the result of the election. It is not suggested on behalf that the nomination paper filed by of . the respondent Vasant Rao was in any manner defective. It is admit that the names and electoral numbers of the candi date and his proposer and seconder as entered there were the same as those entered in the electoral rolls. It is also not disputed that the nomination paper was. received within proper is laid down in section time as 33, sub-section ( 4) of the Act. Section 36 of the Act for scrutiny of nominations and under sub provides to examine section (2) the Returning Officer has got the nomination papers and decide all objections may be made to any nomination and he may either on such objection or on his own motion, after such if any, as he thinks necessary, refuse summary enquiry, any nomination on any of the grounds which are speci the different clauses of the sub-section. The ground mentioned in clause (a) of the sub-section is, is· not qualified · to be chosen to fill that the candidate. the seat under the Constitution or the Act. The con tention of the respondent No. 1 is that. the nomination _of Vasan\ Rao should have been rejected on this ground and as the Returning Officer did not do that, his act •• I l954 Durga Shanktw Mehta v. Thakur Raghura Singh and Others. Mukherjea J. S.C.R. SUPREME COURT REPORTS ;~ ·amounted to an is sound. improper acceptance of nomination within the meaning of section lOO(l)(c) of the Act. We If the do not think this contention want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the the Act only if is required under nomination papers to the nomination. The Return there is any objection ing Officer is then bound to make such enquiry as he thinks proper on the result of which he can either the nomination. But when the candi accept or reject the face of date appears to be properly qualified on the electoral roll and the nomination paper and no objection is raised to the Returning Officer has no other alternative but to accept the nomi- > nation. This would be apparent from section 36, sub the nomination, >- section (7) of the Act which runs as follows : that entry to stand for election or "(7) For the purposes of this section- (a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any elector named to subscribe a nomination paper, as the case may be, unless it is prov that the candidate is disqualified under the Cons titution or this Act, or that the proposer or seconder, is disqualified under sub-section (2) of section 33." the case may be, In other words, the electoral roll is conclusive as to the qualification of the elector except where a disquali fication is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as hav therefore ing been of proper age and on the face of it fully qualified to be chosen a member of the he was State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at time of scrutiny, the latter was bound to take the entry the nomination of circumstances he did not reject Vasant Rao, it cannot be said that this was an per acceptance of nomination on his part which roll as conclusive; and the electoral ). ,, \ 1954 ·Durga fSharikar Mehta .v. Thahw dlaghurqj Sin·gh and Othets. Mukhn"ea ]. 7-78 SUPREME COURT REPOR'tS TJ~551 improperly »ccepted · '.by ;ection·iOO(l)(c) nf the Ax:t contemplates. It would·:have been an improper acceptance,-:if the want of •qualification was apparent ·on the electoral' roll itself or ·on' the face rof ·the nnmination paper and the Reruining · ·Officer overlooked 'that •defect or jf any ·objeetion was raised ·and enqillry made .as ro the absence of qualificlftion in the candidate and the Returning . Officer came to a wrong conclusion ·On the · materials placed before him. When neither of these things happened, the :acceptance of the nomination by the Returning Officer· must be to be a proper acceptance.· It is certainly not deemed final and the Election Tribunal ·may; on evidence placed before it, ·come to a finding that the candidate was not qualified at all. ·But the 'election should be held to be void on the 'ground of .the· con~titutional disqualification of the candidate and not on the ground that his nomi the · Returning nation was Officer. In our opinion Mr. Sen is· right that a case of this description .comes under sub-section (2)(c) of sec- tion 100 and not under sub-section (l)(c) of the section to holding an election without the provisions .of the 'Constitution, and complying with that is one of the grounds specified in Clause ( c) ii.£ siib section . (2)., The , e'.'pression "non-compliance with the provisions of the Constitution" is in out opinion suffi- ci~ntly wide· to cover such cases where the question is 'the not one of improper acceptdnce or rejection of nomination by 'the Retllrning Officer, but 'there 'is a to stand for fundamental disability dection at all. The English law, after the passing of the Ballot Act of .1872, is . substantially the same ·as has been explained i11 the ·case of .Stowe v. follifje('). The register whi0h corresponds' to . our regardecd as :conclusive except in cases, whe.re persons ate prohibited ·from •Voting by any , statute ·Or ·by the ·common· law of · Parliament. it really amounts the candidate .electoral' roll , . , · It . is. arg)led · on . 'behalf~ of '~he ,respo~dent that .the exp~ession "non-complia,11ce". in .• sub-.~ection (2) (c), woul\l suggest, the, idea of.not a.cting aFcording to any , rule . or co1'1rnand a9,d that.. th~ .expressi9n , i~ not o,f qJ:l~te appfopriate (1) 9 C.P. 734. ,a mere ... lack .in . descri~ing .as . u.sed ....,_ / ·( ( •• 1954 Durga Shankar Metha v. Thakur Raghuraj Singh and Others. Mukherjea J. ~.CR. SUPREME COURT REPO.RTS 2~9. > . other portions of the clause. When a person to be elected a member, between the result of the election. . There "non-compliance" qualification. This, we think, would be a narrow way of looking at the thing. When a person is incapable of being chosen as a member of a. State Assembly under itself but has never the provisions of the Constitution theless been returned as such at an election, it can be said without impropriety that there has been non-com the. provisions of the Constitution materi pliance with is no ally affecting material difference "non-observance" or "breach" and this item in clause ( c) of sub-section (2) may be taken as a residuary pro infrac vision contemplating cases where there has been tion of the provisions o~ the Constitution or of the Act but which have not been specifically enumerated in the is not qualified there can be no doubt to declare his elec that the Election Tribunal has got tion to be void.. Under section 98 of one of the orders which the Election Tribunal is com If it is said petent to make. that se.ction 100 of the the grounds on which Act enumerates exhaustively an election could be held void either as a whole or with regard to would be a correct view in the case of a candidate who is constitutionally incapable of being returned as a member is non-compliance with the provisions of the Constitution in the holding of the (2) ( c) of section 100 election and as such sub-section is that in our therefore of the Act applies. The result opinion the contention of the appellant succeeds. We the order of the in part and modify the election of Election Tribunal to this extent is declared to be respondent No. 2 Vasant Rao only void ; the election of the appellant however will stand. We make no order as to costs of this appeal. returned candidate, we think the appeal the Act to take -- -- ;_ ' • Order accordingly. "