Tundilal v. Returning Officer And Others

1. By this application under Article 226 of the Constitution the petitioner seeks a writ of certiorari for quashing an order dated 22nd November 1964 of the Returning Officer, Block Lalbarra, rejecting his nomination paper for election as a Panch to the Gram Panchayat from ward No. 4 of village Atri. The petitioner also seeks a direction commanding the Returning Officer to declare him as having been duly elected from the ward unopposed.

2. The material facts are that for the election of only one person as a Panch from the ward the petitioner and the respondent No. 3 Makhan filed their nomination papers. The applicant's nomination paper was filed before the Returning Officer on 19th November 1964 and the non-applicant No. 3 Makhan filed his nomination paper on 20th November 1964. The petitioner's name was proposed by one Nanho. But that same person also subscribed as proposer the nomination paper relating to the non-applicant No. 3. At the time of the scrutiny of the nomination papers the applicant, relying on Rule 24(2) of the Madhya Pradesh Gram Panchayats Election and Co. option Rules, 1963 (hereinafter referred to as the Rules), raised the objection that the respondent No. 3's nomination paper was invalid inasmuch as Nanho. who had subscribed as proposer his own earlier nomination paper, had also subscribed as proposer the nomination paper of Makhan. The Returning Officer accepted this objection and hold that the nomination of Makhan was invalid The Returning Officer also rejected the petitioner's nomination paper on the ground that Nanho had subscribed two nomination papers in violation of Rule 24(2)

3. The question that arises for determination in this case is whether any person who is qualified to vote as a voter under the Madhya Pradesh Panchayats Act, 1962, and whose name is entered in the voters list can subscribe as proposer more nomination papers than one when there is only one seal to be filled; and whether, if this is not permissible, all the nomination papers subscribed by the person are invalid, The matter turns on Sub-rule (21 of Rule 24 which is as follows:--

"Any person who is not subject to any disqualification as a voter under the Act and whose name is entered in the voters list for the ward for which the candidate is nominated may subscribe us proposer. He shall not subscribe as proposer for more than one nomination paper."

It is clear from this Rule that it prohibits a person from subscribing as proposer for more than one nomination paper, It is not necessary to consider in this case whether this Rule permits a person to subscribe as proposer as many nomination papers as there are vacancies to be filled, or permits him to subscribe as proposer more than one nomination paper in favour of the same candidate. But this much is very clear that where a person has subscribed us proposer the nomination paper of one candidate when there is one seat to be filled he cannot as proposer subscribe any other person's nomination paper. If he does so, both the nomination papers are not invalid. The earlier nomination paper subscribed by him as proposer is valid and the one subscribed by him later as proposer becomes invalid. This is on the reasoning that if a person has the choice of selecting any one person as a candidate for election, then the moment he subscribes as proposer the nomination paper of one person his right to exercise the choice is completely exhausted and he has no further right to sign his name as proposer on any subsequent nomination paper. In the present case, it was not disputed by the learned Government Advocate who appeared for the Returning Officer that the nomination paper of the petitioner was first received on 19th November 1964 and the solitary nomination paper of the opponent Makhan with Nanho as the proposer was received on 20th November 1964. The Returning Officer was therefore, right in rejecting Makhan's nomination paper; but he erred in rejecting the petitioner's nomination paper. The petitioner's nomination paper was valid; and after the rejection of Makhan's nomination paper, the applicant being the sole candidate seeking election should have been declared duly elected as unopposed.

4. The principle that if a statutory provision prohibits a voter from subscribing as proposer of seconder more than one nomination paper or a larger number of nomination papers than there are vacancies to be filled and if contrary to such a provision a voter, after having subscribed a nomination paper of one candidate or of as many candidates as there are vacancies to be filled, subscribes the nomination paper of oilier candidate or candidates, then the earlier nomination papers received up to the number of vacancies to be filled are valid and the rest are invalid for the reason that after exercising his permissible choice his right to subscribe another nomination as proposer or seconder is completely exhausted and he has no further right to sign his name on any subsequent nomination paper, runs through the decisions in Burgovne v. Collins, (1882) 8 QBD 450, and Bapuruo v. Supervising Officer, Gram Panchayat Chinlal Pimri, M. P. No. 29 of 1956, D/- 20-7-1956: 1956 Nag LJ Notes 253. In Burgovne's case. M. P. No. 29 of 1956 D/- 20-7-1956: 1956 Nag LJ Notes 253 (supra), a voter subscribed four nomination papers of a municipal election, where there were four vacancies to be filled. Subsequently he also subscribed a fifth nomination paper. It was held that the first four nomination papers were valid and the fifth was invalid. In Rapurao's Case. M. P. No 29 of 1956 D/- 20-7-1950: 1956 Nag LJ Notes 253, (supra) it was held that under Rule 3 of Clause V, Part I of the Central Provinces and Berar Panchayats Rules, 1948, a duly qualified elector could subscribe one nomination paper, whether as proposer or seconder, and having subscribed one as proposer or seconder he became incompetent to subscribe another either as proposer or seconder; and that if the elector subscribed two nomination papers contrary to the rule, the one received first would alone be valid and the second would be invalid.

The same principle was applied in Ramkumar Govindram Sharma v. Phoolchand Balmukand, 1959 MPLJ 746, where the question considered was about the validity of nomination papers filed by a candidate seeking election to a municipal committee from two constituencies. Section 14(3) of the Central Provinces and Berar Municipalities Act, 1922, provided that

"A person shall be entitled to stand as a candidate for one constituency only, whether a ward or special constituency"

It was field by one of us (Pandey J.) that once a person has filed a nomination paper from one constituency, he ceases to be competent to file a second nomination paper from another constituency; and that if a second nomination paper from another constituency is filed that alone becomes invalid and the earlier nomination paper is not affected.

5. In our opinion, the order of the Returning Officer dated 22nd November 1964 rejecting the petitioner's nomination paper must be quashed; and the petitioner being the sole candidate validly nominated for the election is entitled to a declaration that he has been duly elected unopposed. It must be added that in the present case the remedy of an election petition under Section 357(1) of the M. P. Panchayats Act, 1962, is not open to the applicant. This becomes clear on reading Sections 20 and 157(1) of the Act and Rule 80 of the Rules together. Section 357(1) provides that no election or co-option notified under Sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed authority. Section 20 says that every election, appointment and co-option of a Panch, Sarpanch and Up-Sarpanch shall be notified by the Collector in the prescribed manner Rule 80 is as follows:

"80. Manner of notifying election, co-option and appointment, etc. Every election, co-option and appointment of a Panch of a Gram Panchayat or a Sarpanch and an UpSarpanch shall be notified by the Collector in the following manner:

(a) The names of all elected, co-opted and appointed Panches of a Gram Panchayat and of a Sarpanch and an Up-Sarpanch (together with their permanent addresses and in relation to the elected Panchas also the names of the wards from which they arc elected) shall be published in the 'Madhya Pradesh Gazette.'

(b) The Collector shall also publish the names of persons referred to in Clause (a) (together with their permanent addresses and in relation to the elected Panchas the names of the wards from which they are elected) by affixing a notice on the notice board in his office and in the office of the Gram Panchayat and the Janpada Panchayat concerned."

It will be seen that an election petition is competent only when an election or co-option has been notified under Section 20, which is the relevant section here. Section 20 and Rule 80 show that the notification of election of a Panch has to he with reference to the name of the particular person elected. Where, therefore, the nomination papers of all the candidates seeking election are rejected, as was done by the Returning Officer in the present case, there can be no occasion for notifying the election of any particular person under Section 20 and Rule 80; and if there can be no notification of the election, then the provision in Section 357(1) that 'no election ..... notified under Section 20 ......... shall be called into question except by a petition presented to the prescribed authority' cannot come into play It is for this reason that the present case is distinguishable from the cases of Harishankar v. State of M P., M. P. No. 617 of 1964, D/-22-12-1964, (Madh Pra), and Vishnu Prasad Choubey v. Collector, Jabalpur, M. P. No. 586 of 1964, D/- 3-12-1964 (Madh Pra), where after the rejection or acceptance of nomination papers of candidates seeking election to Gram Panchayats, there was a contest and the petitions under Article 226 seeking writs of certiorari for quashing the orders of the Returning Officers rejecting or accepting the nomination papers were dismissed on the view that the petitioners had under Section 357 of the Panchayats Act, 1961 the remedy of calling into question the election by an election petition founded on the ground of the alleged illegal rejection or acceptance of the nomination paper.

6. For these reasons, this petition is allowed. The order dated 22nd November 1964 of the Returning Officer. Block Lalbarra, rejecting the applicant's nomination paper for election as a Panch from ward No. 4 of village Atri is quashed. His nomination paper is held to be valid. As after the rejection of the nomination paper of Makhan, the applicant was the sole candidate validly nominated for the election, the Returning Officer is directed to declare him as duly elected unopposed, under Rule 38 of the Rules. In the circumstances of the case, we leave the parties to bear their own costs of this petition. The outstanding amount of the security deposit shall be refunded to the petitioner.