Radhakrishna v. R. R. Dubey — 1959 DIGILAW 281 (MP)

ORDER P.K. Tare, J 1. A petition under Section 20-A of the Central Provinces and Berar Municipalities Act, 1922 (Act No. II of 1922) hereinafter referred to as the Municipalities Act was filed by non-applicant No. 2 Dhanraj before the Additional District Judge. Betul, challenging the selection of applicants Radhakishan and Birdichand (applicants 1 and 2) and Bapurao (non-applicant No 3) under Section 10 (3) (b) and the selection of Sudkya (applicant No. 3) under Section 10 (4) of the Municipalities Act. The petition was allowed by the Tribunal and the impugned selections nave been set aside. Three of the selected members have, therefore, filed this petition for revision under Section 20-A (5) of the Municipalities Act. 2. The facts arising in the case are not disputed. A meeting was called on 6-7-1959 for selection of members under Section 10 (3) (b) of the Municipalities Act. Shri R. R. Dube, Collector (non-applicant No. 1) was appointed as the Chairman for the meeting to conduct the selection. Non-applicant No. 2 Dhanraj was a candidate for selection. He filed a nomination paper duly Proposed and Seconded, but was not present at the time of the meeting at the end of the nomination paper, he had subscribed that he agreed to the nomination. The Chairman of the meeting (non-applicant No. 1) recorded the following order on his nomination paper:- "The candidate is not present and his willingness, therefore, cannot be ascertained. Rejected under rule 19-A (3) of the M. P. Election Rules." Dhanraj's grievance before the Tribunal was that his nomination paper had been improperly rejected and that this rejection had materially affected the result of the selection. 3. The Tribunal held that the presence of the non-applicant No. 2 Dhanraj at the time of the meeting was not necessary and came to the conclusion that the rejection of the nomination paper was improper. On behalf of the selected candidates, an objection was sought to be raised before the Tribunal that, the willingness was not expressed in the form in which it should have been and, therefore, the rejection could be supported on this alternative ground The Tribunal, however, refused to consider this objection, as it was not raised before the Chairman of the meeting. 4. 4. In his arguments before me Shri Y. S. Dharmadhikari for the applicants concedes that the declaration which was made by Dhanraj (non-applicant No. 2) was signed by him and that his presence before the Chairman was not necessary. He also concedes that if it is held that the nomination paper was improperly rejected, the rejection materially affected the result of the selection and was sufficient ground for setting aside the selection. 5. The only points which arise for consideration before me are: - (1) Whether the Tribunal was right in refusing to consider the alternative ground to support the rejection raised by the applicants; (2) Whether the declaration made by Dhanraj (non-applicant No. 2) was sufficient within the meaning of rule 19 A (3) of the M. P. Election Rules; and (3) Whether the selection of Sudkya (applicant No. 3) could be legally set aside. 6. Point No (1)-Shri Y. S. Dharmadhikari for the applicants has relied on the decision in Veluswami vs. Raja Nainar AIR 1959 S.C. 422 , for the proposition that the Tribunal should have considered the alternative ground which was raised for supporting the rejection of the nomination paper, even though that ground was not raised before the Chairman. In paragraph 17 of "the decision in that case it has been 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 section 36 (2) of the Representation of the People Act, and that such a plea, if taken, must be enquired into by the Election Tribunal." The decision in Dhanraj Deshlehara vs. Vishwanath Y. Tamaskar 1958 15 ELR 260 that the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected the nomination paper was accepted as laying down the correct law, Shri A. R. Choubey for the non-applicants Nos. 2 and 4 has not contestel this position in his arguments. Accordingly, I agree that the Tribunal erred in refusing to consider the ground which was raised by the applicants in support of the rejection of the nomination apper. 7. 2 and 4 has not contestel this position in his arguments. Accordingly, I agree that the Tribunal erred in refusing to consider the ground which was raised by the applicants in support of the rejection of the nomination apper. 7. Point No. (2):-The next question is whether the declaration which was made in the nomination paper to the effect that the candidate agreed to the nomination was sufficient. The material part of Rule 19-A, sub-rule (3), of the M. P. Election Rules is as follows:- "No person's name shall be proposed for selection under Section 10 (3) (b) unless he has expressed his willingness, in writing, to serve as a member, and such writing has been given to the Chairman of the meeting." It is pertinent to observe that no particular form for expressing the necessary willingness has been prescribed. In my opinion, it would be sufficient compliance of the requirements if the writing given to the Chairman reasonably conveys the expression of willingness to serve as a member. 8. Although the Tribunal has observed that there is a world of difference between "agreeing to a nomination" and "agreeing to serve as a member." I hold a contrary view. The meaning of "agreeing to the nomination" cannot be anything but willingness to serve as a member, if the nomination is followed by a selection. It is difficult to see how a candidate, would agree to mere nomination without a desire to serve as a member if selected. Shri Dharmadhikari has drawn my attention to the form of nomination which is printed on page 137 of the M. P. Municipal Rules. In the form of nomination the declaration prescribed is, "I hereby declare that I agree to this nomination". It is this form which has been used by Dhanraj in the present case. The same form was admittedly used by all the other members and it was the form which was supplied by the Chairman himself to the candidates. The meaning which I have put upon the declaration appears to me to be the only correct interpretation thereof. This is what all the candidates, including the applicants, thought when they filled in their nomination papers with precisely the same declarations. The meaning which I have put upon the declaration appears to me to be the only correct interpretation thereof. This is what all the candidates, including the applicants, thought when they filled in their nomination papers with precisely the same declarations. This is what the Chairman of the meeting thought when he accepted the nomination of each one of those candidates, and this is what the applicants themselves thought when the nomination papers were scrutinised by the Chairman and they did not raise an objection on that score at that time. I do not think that the Chairman put an unreasonable interpretation in accepting the nomination papers containing the declaration of all the other candidates. Dhanraj's nomination paper was not rejected on that ground, but on the ground of his absence. It was conceded before the Tribunal, as it has been conceded before me, that the nomination paper could not be rejected on this ground. On the alternative ground also I think that the nomination paper could not be rejected. 9. Shri Dharmadhikari contends that the omission to comply with the requirements of Rule 19-A (3) literally is a substantial defect. He relies upon Jagannath vs. Jaswant Singh AIR 1954 S.C. 210 where it ban been held that the statutory requirements of election law must be strictly observed, and also upon Baru Ram vs. Smt. Prasanni AIR 1959 S.C. 93 where the omission to file a copy of the electoral reli as required by Section 33 (5) of the Representation of the People Act was considered to be good ground for rejecting a nomination paper. He has also cited Ratan Anmol Singh vs. Ch. Atma Ram AIR 1954 S.C. 510 where it has been held that omission to attest a thumb mark in the manner in which it is required to be done under Rule 2 (2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, is a substantial defect and vitiates the nomination paper. Shri A. R. Choubey, on the other hand, relies upon the decision in Pratap Singh vs. Shri Krishna Gupta AIR 1956 S.C. 140 in which it was held that omission to set out a candidate's occupation as required by the prescribed form cannot be said to affect the merits of the case and such an omission is not sufficient ground for rejecting a nomination paper. 10. 10. The cases relied upon by Shri Dharmadhikari can be distinguished on the ground that in rule 19-A of the M. P. Municipal Rules no particular form is prescribed under which the willingness to serve as a member has to be expressed. All that is required is that a writing signed by the candidate to that effect should be given to the chairman before the meeting. Any writing which can reasonably be read to have that meaning should, in my opinion, be sufficient compliance of the rule. As I have said, the writing in the present case had that meaning and was generally accepted by the Chairman and the candidate to have that meaning, the rejection of the nomination paper cannot be supported by the applicants on that ground. Accordingly, I agree with the Tribunal that the nomination paper was unreasonably rejected. 11. In the course of his arguments, Shri A. R. Choubey has contended that the non-applicant No. 2 Dhanraj is entitled to support his petition before the Tribunal for setting aside the selections of the applicants on the ground that they had filed the nomination papers containing the very same defect. It is not necessary for me to go into this contention, as I hold that the nomination papers were not defective in any case including that of Dhanraj. 12. Point No. (3)-The next question is whether the improper rejection of Dhanraj's nomination paper, which affected the selection of Radhakrishna, Birdichand and Bapurao, should also affect the selection of Sudkya who was selected under Section 10 (4) of the Municipalities Act. That sub-section is as follows- "(4) In case the elected members do not include a Harijan, the total number of members to be selected under clause (b) of sub section (3) shall be increased by such number as may be necessary to include a Harijan and the elected members shall select a Harijan, immediately after the selection of the members under clause (b) of the said sub-section". It is obvious that the selection of a Harijan member under this sub-section follows the general selection to give adequate representation to Harijans. Shri Dharmadhikari interprets the sub-section to mean that the selection of a Harijan becomes necessary if the elected members do not include a Harijan, no matter whether the selected members include a Harijan or not. It is obvious that the selection of a Harijan member under this sub-section follows the general selection to give adequate representation to Harijans. Shri Dharmadhikari interprets the sub-section to mean that the selection of a Harijan becomes necessary if the elected members do not include a Harijan, no matter whether the selected members include a Harijan or not. On the other hand, Shri A. R. Choubey interprets the sub-section to mean that the selection of a Harijan is necessary only when the elected as well as the selected members do not include a Harijan. It is not necessary for me to decide in this case which of these interpretations is correct. 13. Suffice it to observe that on the setting aside of the selections by an Election Tribunal, a "casual vacancy" occurs as provided in rule 18 under Section 176 (2) (i) (vide page 296 of the M. P. Municipal Manual). The only power which the Tribunal has in cases like the present under that rule after declaring a selection void is to declare "that a casual vacancy has been created". Under Section 17 of the Municipalities Act which prescribes the procedure for filling casual vacancies, the new member has to be elected, selected or nominated according as the late member was elected, selected or nominated. In this view, the setting aside of the selection of the three selected candidates results in causing three casual vacancies which have to be filled by selection of three other candidates. The selection of the Harijan candidate under Section 10 (4) is not affected at all by the setting aside of the selections. It is an entirely independent act of the committee and was justified in law and circumstances as they existed after the selection which took place on 6-7-1959. The rejection of the nomination paper of Dhanraj had nothing to do with the selection of the Harijan member and, therefore, his selection cannot be attacked by Dhanraj. Dhanraj is interested in the seats which were available to the selected members and these seats will still be available to him after the setting aside of the selections of the three selected members. Accordingly, I hold that the Tribunal was not justified in setting aside the selection of Sudkya (applicant No. 3). 14. In the result, the petition for revision is, partly allowed. Accordingly, I hold that the Tribunal was not justified in setting aside the selection of Sudkya (applicant No. 3). 14. In the result, the petition for revision is, partly allowed. The order of the Tribunal setting aside the selection of Radhakrishna, Birdichand and Bapurao is upheld, but it is set aside so far as Sudkya (applicant No. 3) is concerned. Costs of this petition shall be borne as incurred. Petition allowed.