JUDGMENT 1. The facts in this case are briefly as follows: The petitioners are electors (voters) of No. 34 one-member Burdwan Parliamentary Constituency, West Bengal. In the last General Election, the Election Commission, by notification issued in the Official Gazette, called upon the said Constituency to elect a member for the House of the People (Lok-Sabha) of Parliament for the said Constituency. On or about the 13th January, 1962, public notice was given under section 31 of the Representation of the People Act, 1951 (hereinafter referred to as the "said Act") by the Returning Officer of the said Constituency, of the intended election, inviting nomination of candidates for such election, qualified to be chosen to fill that seat under the provisions of the Constitution and under the said Act. Pursuant to the said public notice nominations were filed and scrutinised and accepted by the said Returning Officer. The candidates whose nominations were accepted were- (a) Shri Gurugobinda Basu and (b) Shri Subiman Ghose. Thereafter, polling took place and upon the counting of votes, the said Shri Gurugobinda Basu was declared elected, having got a majority of votes in his favour. Thereafter, two electors of the said constituency viz., Shri Sankari Prasad Ghosal and Shri Narayan Chandra Ghosh presented an election petition challenging the election of Shri Gurugobinda Basu as void. The ground made out was, inter alia, that the said Shri Gurugobinda Basu held offices of profit under the Government and as such was disqualified under the Constitution for being elected as a member of the Lok-Sabha. On the August, 1962, the Election Tribunal (Shri S. Chakravartty) held that the said candidate Sri Gurugobinda Basu was holding offices of profit under the Government and was, therefore, disqualified for being chosen as a member of the House of the People under the provisions of Art. 102 (1) (a) of the Constitution. Against the said judgment of the Election Tribunal, the said Shri Gurugobinda Basu preferred an appeal to this High Court, numbered as Election Appeal (F. A.) No. 425 of 1968. A Division Bench of this court presided over by P. N. Mookerjee,, J. dismissed the said appeal. The said Shri Gurugobinda Basu appealed there from to the Supreme Court of India and the appeal was numbered as civil Appeal No. 486 of 1963. A Division Bench of this court presided over by P. N. Mookerjee,, J. dismissed the said appeal. The said Shri Gurugobinda Basu appealed there from to the Supreme Court of India and the appeal was numbered as civil Appeal No. 486 of 1963. The appeal was heard by the Constitution Bench of the Supreme Court which held that the said Shri Gurugobinda Basu did hold offices of profit under the Government and on the 14th August, 1963, the appeal was dismissed. On the 23rd August, 1963, two electors, Sri Kedareswar Chakravorty and Shri Shyamal Sen Gupta applied before the Returning Officer, praying that the said Shri Subiman Ghosh should be forthwith declared as elected without contest. On the 11th September, 1963, the petitioners made a similar application before the Returning Officer. On the 16th September, 1963. the Returning Officer rejected both the applications. On the 26th September, 1963, the said Kedareswar Chakravorty made an application under art. 227 of the Constitution in this court numbered as C. O. No. 4577 of 1963. On the 12th November, 1963, the said application was summarily rejected by this court by a Division Bench presided over by Banerjee, J. On the 16th November, 1963, the Election Commission issued a notification in the Calcutta Gazette as follows: - "whereas a vacancy has occurred in the House of the People consequent on the election of Shri Gurugobinda Basu, a member elected to that House from the Burdwan Parliamentary Constituency in the State of West Bengal, having been declared void by the Election Tribunal, Bankura Now, therefore, in pursuance of the provisions of sub-section (1) of section 149 of the Representation of the People Act, 1951, the Election Commission hereby calls upon the said Constituency to elect before the 27th December, 1963, in accordance with the provisions of the said Act and of the Rules and Orders made there under, a person to fill the vacancy so caused. " 2. According to the said notification, the Bye-Election is to be completed by the 27th December, 1963. " 2. According to the said notification, the Bye-Election is to be completed by the 27th December, 1963. Now this application has been made under Art. 226 of the Constitution for the issue of a writ or order in the nature of mandamus commanding the respondent, the Returning Officer of the said Constituency, to recall and cancel the notice dated 16th November, 1963, a similar writ commanding the said respondent to make a declaration forthwith under sub-section (2) of section 53 of the said Act that Shri Subiman Ghosh be elected uncontested as a member of the House of the People from the said constituency in the last General Election (1962), and for incidental reliefs. In the body of the petition it has been stated that the last General Election still remains incomplete and that an order should be made under sub-section (2) of section 53 of the said Act by declaring Shri Subiman Ghosh as elected without contest. Mr. Mukherjee, appearing on behalf of the petitioner, has argued the case as follows: The qualification for membership of Parliament is laid down in Art. 84 of the Constitution. A person shall not be qualified to be chosen to fill a seat in Parliament unless he is a citizen of India and in the case of a seat in the House of the People, be not less than 25 years of age and possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Such qualifications are prescribed in the said Act. Article 102 lays down the disqualification for membership. Under it, a person is disqualified for being chosen as, and for being, a member of either House of Parliament, if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. He then refers to the provisions of the said Act. Section 100 gives power to the Tribunal constituted under the said Act, that is to say, the Election Tribunal, to declare void the election of a returned candidate if on the date of his election he was disqualified to be chosen to fill the seat under the Constitution or the said Act. Section 100 gives power to the Tribunal constituted under the said Act, that is to say, the Election Tribunal, to declare void the election of a returned candidate if on the date of his election he was disqualified to be chosen to fill the seat under the Constitution or the said Act. In fact, under sub-section (1) (a) of section 100, if the Tribunal is of the opinion that a returned candidate is so disqualified, the Tribunal "shall" declare the election of the returned candidate to be void. Section 101 is important and is set out below: - "101. Grounds for which candidate other than the returned candidate may be declared to have been elected.-If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion- (a) that in fact the petitioner or such other candidate received a majority of the valid votes ; or (b) that, but for the votes obtained by the returned Candidated by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be, to have been duly elected. " Mr. Mukherjee argues that the said Shri Gurugobinda Basu when he filed his nomination, knew that he was disqualified and when his election has been declared void, it must be taken as if no election at all took place so far as he was concerned. He went so far as to argue that in the eye of law, the candidate did not exist as a candidate in the last General Election. He then argues that the election of Shri Gurugobinda Basu having been declared void, the remaining candidate Shri Subiman Ghosh ought to have been declared as returned uncontested under section 53 (2) of the said Act, and until that was done the election must be taken to have been incomplete. Section 53 deals with the procedure in contested and uncontested elections. Section 53 deals with the procedure in contested and uncontested elections. Sub-section (2) runs as follows:- " (2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats. " 3. Mr. Mukherjee argues that since Shri Gurugobinda Basu never existed as a candidate, there was one seat and only one candidate for that seat, and consequently section 53 (2) was attracted. Mr. Mukherji did not contest the position which has now been firmly established-see N. P. Ponnuswami v. Returning Officer, Namakkal, 4 A. I. R. (1952) S. C. 64, that the process of election is a creature of statute and, therefore, its incidence must be regulated by the law which creates it and or governs it. The only provision in the law which provides for a candidate other than a returned candidate, to be declared as having been elected is section 101 of the said Act. In cases where such claims have been put forward, the claimants have attempted to come within the provisions of that section. Mr. Mukherjee has, however, admitted that his client does not come under section 101 of the said Act. He says, however, that the said Act is not a complete code and on general principles, where the returned candidate has been found to be disqualified, he must be considered as nonest and, therefore, his client should come within the scope of section 53 (2) of the said Act and be declared as elected. The only other provision of the said Act to be considered is section 149. Part IX of the said Act deals with bye-elections. The relevant part thereof runs as follows: - "149. The only other provision of the said Act to be considered is section 149. Part IX of the said Act deals with bye-elections. The relevant part thereof runs as follows: - "149. Casual vacancies in the House of the People- (1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Gazette of India, call upon the Parliamentary Constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy. " 4. It will be observed that in this section a specific provision has been made for the situation that arises when an election to the House of the People is declared void. Under such circumstances, the Election Commission is compelled under this section to proceed to fill the casual vacancy by a bye-election. In spite of this, Mr. Mukherji argues that on general principles this ought not be done. In support of his argument, Mr. Mukherji has relied on a Supreme Court decision, Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., (1955) 1 S. C. R. 267. The facts in that case were as follows: The Lakhnadon Legislative Assembly Constituency in Madhya Pradesh is a double member constituency, one of the seats in which is reserved for Scheduled Tribes. The appellant and respondents Nos. 1, 3, 5 and 7 were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat. No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent no. 2, Vasant Rao. The appellant received 18,627 votes and the respondent No. 2 received 14,442 votes. These were the highest for the respective seats and accordingly the appellant and the respondent No. 2 were declared elected to the general and reserved seat respectively under section 66 of the said Act, and the results were gazetted in the Official Gazette. 2, Vasant Rao. The appellant received 18,627 votes and the respondent No. 2 received 14,442 votes. These were the highest for the respective seats and accordingly the appellant and the respondent No. 2 were declared elected to the general and reserved seat respectively under section 66 of the said Act, and the results were gazetted in the Official Gazette. The respondent No. 1, Raghuraj Singh who was one of the defeated candidates for the general seat, filed an election-petition praying that the entire election be declared void or in the alternative the election of Vasant Rao and/or that of the appellant be declared void. Various allegations were made, but only one was substantiated against the said Vasant Rao, who was found to be under 25 years of age and consequently not qualified under the Constitution to be chosen to fill a seat in the Legislative Assembly. The Election Commission came to this conclusion and held that it amounted to an improper acceptance of nomination within the meaning of section 100 (1) (c) of the said Act as it stood at the relevant time, and as the result of the election was materially affected, the whole election was declared to be void. Against this, an appeal was taken to the Supreme Court. In the said Act as it stood at the relevant time section 100 was somewhat differently worded. Under section 100 (1) if the Tribunal was of the opinion that the result of the election had been materially affected by the improper acceptance or rejection of any nomination, the Tribunal had to declare the election to be wholly void. On the other hand, under section 100 (2) (c), if the result of the election had been materially affected, inter alia, by non-compliance with the provisions of the Constitution, then the Tribunal had to declare the election of the returned candidate as void. It was held by Mukherjee, J. that in the facts and circumstances of the case, the Election Tribunal was in error in applying the provisions of section 100 (1) (c) to the facts of the case, since what was applicable was section 100 (2) (c) and, therefore, only the election of Vasant Rao should have been set aside. It was held by Mukherjee, J. that in the facts and circumstances of the case, the Election Tribunal was in error in applying the provisions of section 100 (1) (c) to the facts of the case, since what was applicable was section 100 (2) (c) and, therefore, only the election of Vasant Rao should have been set aside. The learned Judge pointed out that in the electoral roll the said Vasant Rao was not shown as below 25 years of age and the nomination paper did not disclose that fact. Therefore, the acceptance of the nomination by the Returning Officer can not be said to have been an improper acceptance of the nomination as contemplated under section 100 (1) (c) of the said Act, as it stood at the relevant time. It would have been an improper acceptance if the want of qualification was apparent on the face of the record and was overlooked by the Returning Officer, or if the objection having been pointed out was mistakenly decided. The appeal was, therefore, allowed and only the election of the said Vasant Rao was declared to be void but the election of the appellant was declared to be valid. I do not understand how this authority helps the petitioner. On the other hand, it seems to be against him. It establishes the fact that unless the disqualification appears on the face of the record, which is nobody's case here, it cannot be said that there was any improper acceptance of nomination and the whole election was not invalid. The result of it being subsequently discovered that one of the returned candidates was disqualified, only his election is to be declared as void. The question is as to whether in the facts and circumstances of the case, section 149 is attracted. If so, the Election Commission is bound to hold a bye-election. Mr. Mukherjee however argued that in the present case, since there was only one seat and the person returned to that seat was found to be disqualified, therefore his election was void, but the election of the other candidate should stand. I am unable to follow this argument and I do not think that the judgment of Mukherjee, C. J. can be extended in that fashion. I am unable to follow this argument and I do not think that the judgment of Mukherjee, C. J. can be extended in that fashion. In that case, there were two seats and the person returned to one seat having been found disqualified, the election of the person to the other seat was held to be valid. That is a different matter altogether, and throws no light on the facts that have arisen in this case, where there is only one seat to be filled and the person who was returned to that seat was found to be disqualified and his election declared as void. Under such circumstances, the election of the other candidate cannot be taken to be a completed election unless he conies within the four corners of section 101 of the said Act. Mr. Das appearing on behalf of the respondents has taken a preliminary point, namely that this court has no jurisdiction to entertain this application and that regard being had to the provisions of Art. 329 (b) of the Constitution, the application does not lie and is misconceived. Article 329 (b) of the Constitution lays down that no election to either House of Parliament shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by or under any law made by the appropriate legislature. The said Act is such a law and by section 80 of the said Act, no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the said Act. What does the term "election" in the Constitution as well as the said Act mean? This has been explained in a Division Bench of the Bombay High Court presided over by Chagla, C. J.-Sharikar Nanasaheb Karpe v. Returning Officer, Kolaba District and Anr., A. I. R. (1952) Bom. 277. The learned Chief Justice saidley as follows:- "the real and substantial question that arises for our determination is, what is the interpretation that we must place upon the expression "election" used in Art. 329 (b). Does "election" mean the result of the election as a result of counting of votes, or has "election" a wider connotation? In our opinion, reading the expression "election" in its context, both in Art. 329 and in juxtaposition with Arts. Does "election" mean the result of the election as a result of counting of votes, or has "election" a wider connotation? In our opinion, reading the expression "election" in its context, both in Art. 329 and in juxtaposition with Arts. 327 and 328 and in its setting in Part XV, "election" must bear a wider meaning than the very limited restricted meaning of the result of an election or the counting of votes. "election" has the same meaning as the expression used in Arts. 327 and 328 viz. matters relating to or in connection with election. "election" is not merely the ultimate decision or the ultimate result. "election" is every stage from the time the notification is issued till the result is declared, and even perhaps if there is an election petition, till the decision of the Election Tribunal. It is one whole continuous integrated proceeding and every aspect of it and every stage of it and every step taken in it is a part of the election, and what is prohibited by Art. 329 (b) is the calling in question any one aspect or stage of the election. " This has been followed in a subsequent Division Bench decision of the said High Court-Yeshvantarao Balwnntrao Chavan v. K. T. Mangalmurti and Anr. A. I. R. (1958) Bom. 397. Dixit, J., said as follows:- "now, in the case of an election there are certain steps to be taken un till the poll is taken. In the first place, there is an announcement about the holding of an election. This is followed by nomination of candidates. After the nominations are made, a scrutiny of the nomination is held. After the nominations are scrutinized, a list of validly nominated candidates is prepared. After the list of validly nominated candidates is prepared, there is a stage of withdrawal enabling a candidate to withdraw his candidature. After the withdrawal, if any, a candidate may retire from contest and finally, there is the poll. Indeed, an election is one continuous process involving these Esteps. " 5. The learned Judge held that this interpretation of the word "election" is also applicable to the said Act. After the withdrawal, if any, a candidate may retire from contest and finally, there is the poll. Indeed, an election is one continuous process involving these Esteps. " 5. The learned Judge held that this interpretation of the word "election" is also applicable to the said Act. In N. P. Ponnuswami v. The Returning Officer, Namakhal, A. I. R. (1952) S. C. 64, Fazl Ali, J. held that the word "election" in the Constitution of the said Act was appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. The learned Judge proceeds to state as follows: - "the question now arises whether the ]aw of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the constitution and the Representation of the People Act, which. . . . . seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage, in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any court. " 6. It is clear, therefore, that at this stage, the further election under section 149, which is proposed to be held in accordance with its provisions, cannot be restrained. The difficulty in doing so is at once apparent. There is also an insuperable barrier in its way. This application cannot succeed unless the notification issued by the Election Commission under section 149 of the said Act dated 16th November, 1963, is set aside and/or put out of the way. The Election Commission has issued a notification, under section 149 of the said Act and as long as that remains in force, the election proceedings must continue in terms thereof and in accordance with the provisions of the said Act. The Election Commission has issued a notification, under section 149 of the said Act and as long as that remains in force, the election proceedings must continue in terms thereof and in accordance with the provisions of the said Act. In this application, the petitioners have not challenged that notification and there is no prayer for the issue of a writ, for setting aside or quashing the said notification. Besides, if any such prayer was made, it could not be made in the absence of the Election Commission which has issued the notification and the Election Commission has not been made a party to this application. In my opinion, this is also a fatal objection and must succeed. These two preliminary points are sufficient to dispose of this application. Regard being, however, to the point raised, which is of public importance, I shall also deal with it on merits. I have already pointed out that an election is a creature of statute and, therefore, there must be a specific provision in law in support of any action done under it. In reality, the petitioners want the relief which is provided for in section 101 of the said Act. That relief can only be got on certain grounds specified therein and in an application made in accordance thereof. In the present case, those grounds do not exist and the application is not in conformity with it. In fact, section 101 does not apply to the facts of this case at all. Perhaps, after realising this, Mr. Mukherjee has tried to come within the scope of section 53 (2) of the said Act. That provision, however, does not apply to the facts of the present case. When it speaks about the "number" of candidates it means the number of candidates who have contested the election. If originally there was one seat and one candidate, the provisions of section 53 (2) would have applied. In fact, however, there was one seat and two candidates. What has happened is that subsequent to the completion of the election, an election petition was made against the successful candidate and the election has been declared void because the successful candidate was a person disqualified under the Constitution. Therefore, section 149 of the said Act applies in terms, and the authorities must proceed to hold a bye-election in accordance therewith. Therefore, section 149 of the said Act applies in terms, and the authorities must proceed to hold a bye-election in accordance therewith. A considerable light on the question is thrown by two cases which I shall now proceed to consider. The first case to be cited is an English case Hobbes v. Morey (1904) 1 KB. 74. In that case, the petitioner and the respondent were both nominated in proper form for election to the office of councilor for a ward in a Borough. The respondent obtained a majority of votes and was declared elected. Both at the time of the nomination and of the election, however, he was disqualified by reason of having an interest in a contract entered into with the Borough Council. The petitioner there made the very same claim as is being sought to be done before me now. He said that the nomination of the respondent, as also his election, were invalid because of the respondent's disqualification. Consequently, he should be declared as elected to the office. It was argued that the nomination of the respondent being invalid there was only one valid nomination that is to say, of the petitioner and therefore, he should be deemed to have been elected. In other wards, that although at the election he got a minority of votes he should be declared elected and the majority of votes given for the respondent were to be altogether disregarded. It was held that the disqualification was not apparent on the face of the nomination paper, and therefore, the nomination of the respondent was valid and as there was no allegation that the electorate had any notice of the disqualification of the respondent, the votes given for him could not be disregarded as being thrown away, enabling the person having the minority of votes to be elected to the office. Therefore, although the election of the respondent was declared void, the court refused to declare the petitioner as having been elected. This principle has been confirmed by the Supreme Court in Keshav Lakshman Borkar v. Dr. Deorao Lakshman Anande, A. I. R. (1960) S. C. 131. The facts in that case were as follows: There were two candidates, standing for election to the Bombay Legislative Assembly from the Electoral Constituency of Mazfgaon, held on March 11, 1957. The respondent secured 22,914 votes where as the appellant got 14,885 votes. Deorao Lakshman Anande, A. I. R. (1960) S. C. 131. The facts in that case were as follows: There were two candidates, standing for election to the Bombay Legislative Assembly from the Electoral Constituency of Mazfgaon, held on March 11, 1957. The respondent secured 22,914 votes where as the appellant got 14,885 votes. There salt was that the respondent was declared as elected. On an election petition by the appellant, the Election Tribunal declared the election of the respondent void on grounds of disqualification under Article 191 (1) (a) of the Constitution, inasmuch as he was holding an office of profit under the Government of Bombay and as such was disqualified for election to the Legislative Assembly. It also declared the appellant as duly elected under section 101 (a) of the said Act. It was held that the Election Tribunal was in error in declaring the appellant to have been duly elected. It is true that the acceptance of a nomination paper after scrutiny is not final or conclusive, and can be set aside by the Election Tribunal in appropriate proceedings. But the acceptance of the nomination paper under section 36 (8) makes the candidate whose nomination paper is accepted after scrutiny, a validly nominated candidate, at least for the purpose of receiving votes at the election. This position is further reinforced by the provisions of Rule 58, which provides that every ballot paper which is not rejected under Rule 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise unless it is shown that voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. It was for the appellant to claim and prove that he had received a majority of valid votes. He had failed to do so and therefore, could not claim to have been elected, even though the election of the respondent was declared void as a result of a constitutional disqualification. 7. Although Mr. Mukherjee has not tried to bring his client under the provisions of section 101 of the said Act, the above decisions throw a considerable light on the subject. 7. Although Mr. Mukherjee has not tried to bring his client under the provisions of section 101 of the said Act, the above decisions throw a considerable light on the subject. The unsuccessful candidate namely, Shri Subiman Ghosh could be declared elected if he came within the provisions of section 101. It will have to be proved that he got a majority of votes. In the facts and circumstances of this case, this can not be proved. In my opinion, therefore, the Election Commission rightly proceeded under section 149 of the said Act and issued the notification on the basis of which a fresh bye-election is proposed to be held to elect a candidate for the said constituency. For the reasons aforesaid, this application must fail and the Rule is discharged. Interim orders, if any, are vacated. There will be no order as to costs. 8. Mr. Mukherjee appearing for the petitioner asked for a certificate under Article 132 (1) of the Constitution. In my opinion the case does not involve any substantial question of law as to the interpretation of the Constitution. Therefore I am unable to grant the certificate.