S.C.R.

SUPREME COURT REPORTS 1133

The only order which we need pass in this appeal before us under the circumstances i"' that the appeal ft; allowed, the decree of the trial court is restored, and each party do bear and pay. its own costs of this appeal.

Appeal allowed.

Agent for the appellants: C. P. Lal.

Agent for the respondent : S. S. Shukla.

MOHD. AMIN AND OTHERS

VAKIL AHMED AND OTHERS.

[MEHER CHAND MAHAJAN, CHANDRASEKHARA

A1YAR and BHAGWATI JJ.]

Mahomedan Law-Guardianshi[>-De facto guardian-Powers of alienation-Benefit to minor, whether material-Whether transaction can be upheld as family arrangement-marriage--Co-habitation -Presumption of valid marriage.

Under Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, i.e., a de facto guardian, has no power to convey to another any right or interest in immoveable property which the transferee can enforce against the minor.

The question whether the transaction has resulted in a benefit to the minor is immaterial in such cases.

Where disputes arose, relating to succession to the estate of a deceased Mahomedan between his 3 sons, one of whom was a minor, and other relations, and a deed of settlement embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and between the parties the eldest son acting as guardian for and on behalf of the minor son : l-I eld, that the deed was not binding on the minor son as his brother was not his legal guardian; as the deed was void it cannot be held as valid merely because it embodied a family arrangement ; and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.

lmambandi v. Mutsaddi [1918] 45 I.A. 73 relied on. Mahomed Keramatullah Miah v. Keramatulla

(A.LR. 1919 Cal. 218) and Ameer Hasan v. Md. Ejay Hussain (A.I.R. 1929 Oudh 134) commented upon.

Shrimati Hil'a Devi and Others

District Board, Shahjahanpur •.

Bhagwati /.

Oct. 22.

iMohd. Amin and Others

v. :Vakil Ahmed and Others.

.Bhagwati /.

Under Mahomedan law if thexe was no insurmountable obstacle to a marriage and the man and woman had cohabited with each other continuously and for a prolonged period the presumption of lawful marriage would arise and it would be sufficient to establish a lawful marriage between them.

Khaja Hidayut Ool/ah v. Rai fan Khanam (1844, 3 Moo I.A.

295) referred to.

Crv1L

APPELLATE JuR1so1cTION : Civil Appeal No. 51 of 1951.

Appeal from the Judgment and Decree dated the 11th September, 1945, of the High Court of Judicature at Allahabad (Brand and Waliullah JJ.) in First Appeal No. 212 of 1942 arising out of the Judgment and Decree dated the 28th February, 1942, of the Court of the Civil Judge of Azamgarh in Original Suit No. 4 of 1941.

S. P. Sinha (Shaukat Hussain, with him) for the appellants.

C. K. Daphtary (Nuruddin Ahmed, with him) for the respondents.

1952. Oct. 22. The judgment of the Court was delivered by

BHAGWATI J.-This is an appeal from the judgment and decree of the High Court of Judicature at Allahabad which set aside a decree passed by the Civil Judge of Azamgarh decreeing the plaintiff's claim.

One Haji Abdur Rahman, hereinafter referred to as "Haji" a Sunni Mohammedan, died on the 26th January, 1940, leaving behind him a large estate.

He left him surviving the plaintiffs 1 to 3, his sons, plaintiff 4 his daughter and plaintiff 5 his wife, defendant 6 his sister, defendant 7 bis daughter, by a predeceased wife Batu! Bibi and defentlants 1 to 4 his

nephws and defendant 5 his grand-nephew.

Plaintiffs case is that immediately after His death the defendant 1 who was the Chairman, Town Area qasba Mubarakpur and a member of the District Boa.rd, Azamgarh and defendant 5 who was an old associate of his started propaganda against them, that they set afloat a rumour to the effect that the plaintifl's 1 to 4

' _f

were not the legitimate children of Haji and that the plaintiff 5 was not his lawfully wedded wife, that the defendants 1 to 4 set up an oral gift of one-third of the estate in their favour and defendant 5 set up an oral will bequeathing one-third share of the estate to him and sought to interfere with the possession of the plaintiffs over the estate and nearly stopped all sources of income.

It was alleged that under these circumstances a so-called deed of fam'ily settlement was executed by and between the parties on the 5th April,

1940, embodying an agreement in regard to the distribution of the properties belonging to the estate, that plaintiff 3 was a minor of the age of about 9 years and he was represented by the plaintiff 1 who acted as his guardian and exec; uted the deed of settlement for and on his behalf. On these allegations the pla.lntiff filed on the 25th November, 1940, in the Court of Civil Judge of Azamgarh the suit out of which the present appeal arises against the defendants 1 to 5 and defendants 6 and 7 for a declaration that the deed of settlement dated 5th April, 1940, be held to be invalid and to establish their claim to ith.eir 1legiit'im.ate hares in the estate of Haji under Mohammedan law. The defendant 8 a daughter of the plaintiff 5 whose paternity was in dispute was added as a party defendant to the suit, the plaintiffs claiming that she was the daughter of the plaintiff 5 by Haji and the defendants 1 to 5 alleging that she was a daughter of the plaintiff 5 by her former husband Alimullah.

The only defendaats who contested the claim of the plaintiffs were the defendants 1 to 5.

They denied that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate children of Haji.

They also contended that the deed of settlement embodied the terms of a family settlement which had been bona fide arrived at between the parties in regard to the disputed claims tio the estate of Haji and was binding on the plaintiffs.

It is significanlt to observe that the defendants 6 and 7 who were the admitted heirs of Haji did not contest the plaintiff's claim at all.

Mohd. Aminand Others

Vakil Ahme~

and Others.

Bhagwati f ..

Nohd. Amin

and Others

Vakil Ahmed

and Others.

Bhagwati f.

The two issues which were mafoly contested before the trial Court were, (1) Whether the plaintiffs 1 to 4 are the legitimate issue of and the plaintiff 5 is the wedded wife of Abdul Rahman deceased ; .

(2) Whether the agreement dated 5th April, 1940, was executed by the plaintiffs after understanding its contents fully or was obtained from them by fraud or undue influence ? Was the said deed insuffi- . ciently stamped?

Was it beneficial to the rrunor plaintiffs?

As regards the first issue there was no document evidencing the marriage between the plaintiff 5 and Haji. The plaintiff 5 and Haji had however lived together as man and wife for 23 to 24 years and the plaintiffs l to 4 were born of that union. There was thus a strong presumption of the marriage of Ha ii with plaintiff 5 huing taken place and of the legitimacy of plaintiffs 1 to 4.

The trial Court did not attach any importance to the question of onus or presumption, examined the evidence which was led by both the pames with a view to come to finding in regard to this issue, and found as follows :

"So far as Musammat Rahima's , marriage with Alimullah or anotl1er Abdul Raliman is concerned the evidence of both the parties stands on the same level and ,, is not worthy of much credit. I have however, not the least hesitation to observe that so far as the oral evidence and the circumstances of the case are concerned, they all favour the plaintiffs.

I, however, find it difficult to 'ignore the testimony of the defendants' witnesses Shah Allaul Haq and Molvi Iqbal Ahmad ................ Owing 'to the voluminous oral evidence adduced by the plaintiffs and the circum- . Stances that , apparently favour them, I gave my best attention to this case, but upon a careful consideration of the whole evidence on the record, I am not prepared to hold that the plaintiffs 1 to 4 are the legitimate issues of the plaintiff No. 5, the lawfully wedded

wife of the deceased, Haji Abdul Rahman. I frankly :admit that the matter is not free from difficulty and

~ r I

~ ~

I I,

<loubt but to my mind the scale leans away from the plaintiffs and I am not satisfied that their version is

correct."

On the second issue the learned trial Judge came to the conclusion that the disputed compromise amounted to a family settlement; that is was beneficial to the interests of the minor plaintiff and that it was made by the parie5; :WiUlingly and without any fraud or undue influence. On these findings the suit was dismissed with costs .

The plaintiffs filed an appeal to the High Court of Judicature at Allahabad.

After considering the several authorities on the binding nature of family settlements cited before It, it came to the conclusion that it did not bind the plaintiffs. As regards defendants 1 to 5 'it was held that there was no consideration whatsoever which could in any way support the arrangement.

Plaintiffs 4 and 5 being Purdanashin ladies, it was found that they had no chance at any stage of the transaction of gettilng ilndependent advice in regard to the contents or the affect qf the document which they were executing and that even if the deed were valid otherwise it would not be binding on them.

It was further held that the plaintiff 3 who would be about 9 years of age at the time of the execution of the deed was re:presentied in the transaction by his brother who could not be tl1e. legal guardian of his property and that the deed in so far as it adversely -affected the interest of plaintiff 3 would not be binding on him. On the question of marriage and legitimacy the High Court came to the conclusion that if the trial Court had considered the question of onus in its proper light and given the plaintiffs the benefit of the initial presumptipn in favour of legitimacy and lawful wedlock under the Mahomedan Law, he would have recorded a finding in their favour.

The defendants 1 to 5 had alleged that at the time of the commencement of sexual relations between the plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimu!lah who was alive and that therefore the connection between the

Mohd. Amin

atttl Others

Vak_il Ahmed

anti Others.

Bhagwati T.

Mohd. Amin

antl Others

Vakil Ahmed

and Others.

Bhagtuati J.

plaintiff 5 and Haji was "in it:S i>rigin illicit and continued as such, with the result that the presumption in favour of a marriage between the plaintiff 5 and Haji and in favour of the legitimacy of plaintiffs 1 to 4 would_ not arise. The learned trial Judge disbelieved the evidence led by the defendants 1 to 5 in regard ti> this marriage between the plaintiff 5 and Alimullah.

The High Court upheld the finding and said :-

"All these circumstances, to my mind, strongly militate against the theory of a first marriage of Musammat Rahima Bibi with the man called Alimullah. In this st:a; te of evidence one cannot but hold that this story of the marnage with Alimullah was purely an after-thought on the part of the defendants I to 5 and it was invented only to get rid of the strong presumption under the Mahomedan law in favour of the paternity of plaintiffs I to 4 and the lawful wedlock of the plaintiff 5."

Having thus discredited the theory of the first marriage of the plaintiff 5 with Alimullah the High Court came to the conclusion that it was fully established that Musarnmat Rahima Bibi was the lawfully wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji. The defendants I to 5 obtained leave to appeal to His Majesty in Council and the appeal was admitted on the 10th January, 1947.

Shri S. P. Sinha who appeared for the defendants 1 to 5 before us has urged the self-same two questions, namely, ( 1) Whether the deed of settlement is binding on the plaintiffs and (2) Whether the plaintiff 5 was the lawfully wedded wife and the plaintiffs I to 4 are the legitimate children of Haji . . In regard to the first question, it is unnecessary to discuss the evidence in regard to fraud, undue influence, wam of independent advice etc~ as the question in our opinion is capable of being disposed of on a hort point. It is admitted that the plaintiff 3 Ishtiaq Husan was a minor of the age of about 9 years at the date of the deed, and . he was not represented as

.. ,_

l' \

already stated by any legal guardian in this arrangement.

The minor's brother had no power to transfer any right or interest in the immovable property of the minor and such a transfer if made was void. (See Mulla's Mahomedan Law, 13th Edition, page 303, section 364).

Reference may be made to the decision of their Lordships of the Privy Council in Imambandi v. Mutsaddi (1). In that case the mother who was neither the legal guardian of her minor children nor had been appointed their guardian under the Guardian and Wards Act had purported to transfer the shares of her minor children in the property mherited by them from their deceased father. Mr. Ameer Ali who delivered the judgment of the Board observed at page 82 as follows:-

"The question how far, or under what circumstances according to Mahomedan law, a mother's dealings with her minor child's property are binding on the infant has been frequently before the courts in India.

The decisions, however, are by no means uniform, and betray two varying tendenci/es : one set of decisions purports to give such dealings a qualified force; the other declares them wholly VQid and ineffective.

In the former class of cases the main test for determining the validity of the particular transaction has been the benefit resulting from it to the minor; in the latter, the admitted absence of authority or power on the part of the mother to ahenate or incumber the minor's property."

The test of benefit resulting from the transaction to the minor was negatived by the Privy Council and it was laid down that under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a "de-facto guardian," has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant.

(1) (1918) 45 I.A. 73. 18-10 S. c. India/71

Mohd. Amin and Others v.

Vakil Ahmed

and Others.

Bhagwati /.

Mohd. Amin

aqt/ Others

v. l(.a{il Ah.med

and Others.

Bhagw_ati ],

Shri S. P. Sinha relied upon a decision of the Calcutta High Court reported in Mahomed Keramutullah Miah v. Keramutulta(') wh, ere it was held that there was nothing in the doctrine of family arrangements opposed to the general principle that when it was sought to bind a minor by an agreement entered into .on his behalf, it .must be shCJ'(>'n that the agreement was for the benefit of the niinor; that if improper advantae had been taken of the minor's position, a family arrangement.._ could be set as1de on the ground of undue

ipfluer:c~ or _inequality o~ position or one or other. of the grounds which would v1t1ate such arrangement in the

cae of adults; but where there \vas no defect of this nattire, the settlement of a •doubtful claim was of as much advantage to a minor as to an adult, and--Wrfere l' genuiri.e dispute had been fairly settled the dispute could not be re-opened solely on the ground that one of the parties to •the 'family arrangement was a"minor.

This dedsion was reached .'on the 19th July, 1918, I.e., almost 5 moi=i.ths 1 after the decision of their Lordships of the Privy Col!flcil, but it does .not appear that the ruling ws brought to the notice of the learned Judges qf the. Calcutta High Court.

The test of the benefit, resulting from the transacti/on to the minor whiFh was n_egatived, by their Lordships of the Privy , Q>, Wlcil }Vas applied, i; y th~ learned Judges of the

Ga1cutt~ f{igh Ci>1.!_rf in prder to determine whther the f.amily_, aqangeµient }Vhic~ was the subject-matter of the suit before them wa~ binding on the mii).or.

Shri S. P. Sinha next relied upon a decision of the Chief Court of Oudh, Ameer Hasan

v. Md. Ejaz HufCiin(2). ' Iri tht ' ease an agreement to reer to arbittaiion was l!ntered into .by the 'mother for her hlinor' children arid ah' awatd was made by

tlie '.arbitrators.

The schc!'me of dt'.ribution of :pr~ pfrties. promulgated. in the award was followed without agy qbjeiioq whateyer fo, t a long period extending over 14' yeas :md. proc, eedin¥s . were take~. at the instance f the minors for recovery of p9sessmn by actual partli' tion of their shares in the properties. The Court held ~

(1) A.I.R. 1919 Cal. 218.

(2) A.I.R., 1929 Oudh p4. •

that the reference to arbitration could not be held bind' ing on the mmors and the award coulsJ not be' held to be an operative document, but if the scheme of distribution promulgated in the ward was In no way. perverse or unfair on i, nf!uenced by any corruption or misconduct of the arbitrators and had been followed without any objection whatever for a long period extending over 14 years; it w0iiJd as well be recognised as a family settlement and the court would be extremely reluctant to disturb the arrangement arriv5!d at so many years ago.

This line of, reasoning was deprecated by their Lordships of the Priry Council in Indian Law 'Reports 19 Lahore 313 at page 317 where their Lordships observed "it is, however, argued that the transactioo should be upheld, because it was a family settlement.

Their Lordships cannot assent to the proposition that a party can, by describing a .con, tract as a family settlement, claim for it an exemption from the law governing \he capacity. of a person to make a valid contract." We are therefore unable to accept this case as an authority for the proposition that a deed of settlement which is. void by reason of the minor not having been propei; ly represented in tl; i.e transaction can be rehabilitated by the adoption of any such line , of reasoning.

If the deed of settlement was thus .void it could not be vo'd only qua the minor Plaintiff 3 but would be void .al.together qua all the parties including those who were sui juris.

This position could not be and was , not as a matter of fact contested before us.

The contention of the defendants 1 to 5 in regard to the lawful weolock between plainfiff . 5 and Haji and the legitimacy of the plai11tiffs 1 to 4 is equally untenable. The plaintiffs had no Cloubt to prove that the plaintiff 5 was the lawfully wedded wife and the plaintiffs l to 4 were the legitimate children of Haji.

Both the COurts found that the factun1 of the marriage was not proved and the plaintiffs .Ii.ad therefore of necc:Ssity to fall back upon the presnmption of marriage arising in Mahoniedan law. If that presumption of mqrri; ig\: arose, there would be no difficulty -in

J9j2

Mohd. -Amin

and Othcts

Vakjl Ahmed

and 'Others.

Bhagwati /.

Mohd. Amin and Others v.

Vakil Ahmed

a; id Others.

Bhagwatl /.

establishing the status of the Plaintiffs l to 4 as the legitimate children of Haji because they were admittedly born by the plaintiff 5 to Haji. The presumption of marriage arises in Mahomedan law in the absence of direct proof from a prolonged and oontinual cohabitation as husband and wife.

It will be apposite in this connection to refer to a passage from the judgment of their Lordships of the Privy Council in Khajah Hidayut Oollah v. Rai fan Khanum (' ). Their Lordships there quoted a passage from Macnaghten's Principles of Mahomedan Law:-

"The Mahomedan Lawyers carry this disinclination (that is against bastardizing) much further; they consider it legitimate of reasoning no infer the existence of marriage from the proof of cohabitation.· ...... .

None but children who are in the strictest sense of the word spurious. are considered incapable of inheriliing the estate of their putative father.

The evidence of persons, who would, in other cases, be considered incompetent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, the law w'1ll rather do so than bastardize the issue, and whether a marriage be simply voidable or void ab initio the offspring of it will be deemed legitimate ...................... This I apprehend, with all due deference, is carrying the doctrine to an extent unwarranted by law; for where children are not born of women proved to be married to their father, or of female slaves to their fathers, some kind of evidence (however slight) is requisite to form a presumption of matrimony .................................. The mere fact of casual concubinage is not sufficient to establish legitimacy; and if there be proved to have existed any in insurmountable obstacle to the marriage of their putative father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes."

Their Lordships deduced from this Passage the principle that where a child had been born to a father, of a mother where there had been not a mere casual (I) (1844) 3 Moore's Indian Appeals 295 at P. 317.

' ;• A

concubinage, but a more permanent connection, and where there was no insurmountable obstacle to such a marriage, then according to the Mahomedan Law, the presumption was in favour of such marriage having taken place.

The presumption m favour of a lawful marriage would thus arise where there was prolonged and continued cohabitation as husband and wife and where there was no insurmountable obstacle to such a marriage, e.g., prohibited relationship between the parties, the woman being an undivorced wife of a husband who was alive and the like. Further illustrations are to be found in the decisions of their Lordships of the Privy Council in 21 Indian Appeals 56 and 37 Indian Appeals 105 where it was laid down that the presumption does not apply Vf the conduct of the parties was incompatible with the existence of the relation of husband and wife nor did it apply if the woman was admittedly a prostitute before she was brought to the man's house (see Mulla's Mahomedan Law, p. 238, section 268).

If therefore there was no insurmountable obsQacle to such a marriage and the man and woman had cohabited with each other continuously and for a prolonged period the presumption of lawful marriage would arise and it would be sufficient to establish that there was a lawful marriage between them.

The plaintiff 5 and Haji had been living as man and wife for 23 to 24 yearn openly and to the knowledge of all their relations and friends. The plaintiffs I to 4 were the children born to them. The plaintiff 5, Haji, and the children were all staying in the family house and all the relations including the defendant 1 himself treated the plaintiff 5 as a wife of Haji and the plaintiffs 1 to 4 as his children.

There was thus sufficient evidence of habit and repute. Haji moreover purchased a house and got the sale deed executed in the names of the plaintiffs I and 2 who were described therein as his sons.

The evidence which was led by the defendants 1 to 5 to the contrary was dis.- carded by the High Court as of a negative character 19-10 s. a. India/71

Mohd. Ami1'

and Others v.

Vakil Ahmed and Others.

Bhagwati /.

Mohd. Amin and Others

Vakil Ahmed and Others.

Bhagwati /.

and of no value. Even when the deed of settlement was executed between the parties the plaintiff 5 was described as the widow and plaintiffs 1 to 4 were described as the children of Haji. All these circumstances raised the presumption that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate children of Haji.

The result therefore is that both the contentions urged by rhe defendants l to 5 against the plaintiffs' claim in suit fail and the decree passed in favour of the plaintiffs by the High Court must be affirmed.

It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint.

The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression "awarding passession and occupation of the property aforesaid together . with all the rights appertaining thereto." We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree. We dismiss the appeal of the defendants l to 5 and affirm the decree passed by the High Coutt in favour of the plaintiffs, deleting therefrom the' provision in regard to mesne profits.

The plaintiffs will of course be entitled to their costs throughout from the defendants l to 5.

Appeal dismissed.

Agent for the appellants: V.P.K. Nambiyar.

Agent for the respondents: B. P. Maheshwari.

END OF VoL. III.

C. P. Lal

S. S. Shukla

MOHD. AMIN AND OTHERS

VAKIL AHMED AND OTHERS

MEHER CHAND MAHAJAN

BHAGWATI JJ.

Mahomedan

Shrimati Hil'a Devi

iMohd. Amin

Vakil Ahmed

Brand

Waliullah

S. P. Sinha

Shaukat Hussain

C. K. Daphtary

Nuruddin Ahmed

High Court of Judicature at Allahabad

Haji Abdur Rahman

Batu! Bibi

s 1 to 4

Haji

5th April,

25th November, 1940

Civil Judge of Azamgarh

5th April, 1940

Alimullah

Mohd. Aminand

Vakil Ahme~

Aminand Others

Vakil Ahme~

and Others.

Nohd. Amin

Abdul Rahman

Haji

Ha

Musammat Rahima

Abdul Raliman

Shah Allaul Haq

Molvi Iqbal Ahmad

Haji Abdul Rahman

Mohd. Amin

Vak_il Ahmed

Bhagwati

Bhagtuati

Alimullah

Musammat Rahima Bibi

Musarnmat Rahima Bibi

10th January, 1947

S. P. Sinha

Ishtiaq Husan

Mulla

section 364

Ameer Ali

India

Mohd. Amin

l(.a{il Ah.med

Calcutta High Court

19th July, 1918

Mohd. -Amin

Vakjl Ahmed

Macnaghten

section 268

Mohd. Ami1

V.P.K. Nambiyar

B. P. Maheshwari


Jan. 21.

SUPREME COURT REPORTS

N. P. PONNUS\V AMI

ti.

RETURNING OFFICER, NAMAKKAL

CONSTITUENCY and OTHERS

[1952J

UNION OF INDIA and STATE OF MADHYA

BHARA T-INTERVENERS.

[PATANJALI SAsTRr C.J., FAZL Au, MEHR CHAND

MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ.J

Constitution of India Arts. 226, 324 to 329-Representation of the People Act, 1951, ss. 36, 80--Election to Legislatures-Rejection of nomination paper-Applicati-on to High Court for writ of certiorari -Maintainability-..furisdiction of High Court-Meaning of "election" and "questioning election"-Poli"cy of Legislature with regard to elections-Special remedies.

Article 329 (b) of the Constitution of India provides that "no election to either House of Parliament or to the House or either House of the Legislature of a State 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 Representation of the People Act, 1951, which made detailed provisions for election to the various Legislatures of the country also contains a provi~ sion (sec. 80) that no election shall be called in question except by an election petition presented in accordance with the provi~ sions of the Act.

The appellant\ who was a candidate for election to the Legislative Assembly of the State of Madras_ and whose nomination paper was rejected by the Returning Officer, applied to the High Court of Madras under article. 226 of the Constitution for a writ of certiorari' to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published: Held by the Full Court (PATANJALI SASTRI, C. J., FAZL Au,

MAHAJAN, MuKHERJEA,

DAS and

CHANDRASEKHAR.A AiYAR JJ.) that in view of the provisions of articles 329 (b) of the Constitution and sec. 80 of the Representation of the People Act, 1951, the High Court had no jurisdiction to interfere with the order of the Returning Officer.

The word uelection" has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the

narrow sense it is used to mean the final selection of a candidate 1952 which may embrace the. result of the poll when there is polling or a particular candidate being returned unopposed when there is N. P. Ponnuno poll. In the wide sense, the word is used to connote the entire f.Wam1 process culminating in a candidate being declared elected and it" .v. is in this wide sense that the word is used in Part XV of the Returmng Officer, Constitution in which article 329 (b) occurs.

Namak, k, al Constituency a1ld The scheme of Part XV of the Constitution and the Repre- Others. sentation of the People Act, 1951,' 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.

Undl:r the election law, the only significance which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question. _Article 329 (b) was apparently enacted to preS<:ribe the manner in which and the stage at which this ground, anel other grounds which inay be raised under. the \aw to call the election in question., could be urged.

It follows by necessary implication from the language of this provision that those grounds cannot be urged in any . other manner, at any other stage and before any other court. If tl1e grounds oh .which. an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article 329 (b) and in setting up a special tribunal.

Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution col, lld not have contemplated, one of them being that canflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal whicli is to be an independent body, at the stage when the matter is brought up before it.

Therefore, questioning the rejection of a nomination paper is "questioning. the election" within the meaning of article 329 (b) of the Constitu- \ tion and sec. 80 of the Representation of the People Act, 1951.

Having regard to the important functions which tlie legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance tliat elections should be concluded as early as possible according to time S<:hedule and all controversial matters and all disputes arising out of elections should be postponed till after tlie elections are over, . so tliat the election proceedings may not be unduly retarded or protracted. In conformity with this principle, the sclieme of the election law in this country as well as in England is that no significance should be attaclied to anything which does not affect the "election"; and if any irregularities are committed while, it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the persons . affected rn

8:.....3 S. C. India/71

1952 call it in qustion, they should be brought up before a special tribunal by means of an election petition and not be made the N. P: Ponnu subject of a dispute before any court while the election is in swami progress.

Returning Of/k.r, Th . h J d"d f 1 · e rig t to vote or stan as a can i ate or e ection ts not a N, v.kkal civil right but is a creature of statute or specjal law and n1ust be Co ::a c an J subject to the limitations imposed by it.

Strictly speaking, it ns ~,:; Y ' is the sole rightof the Legislature to examine and determine all

'S. matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.

Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that

statute only must be availed of.

Wolverhampton New Water 'Works Co. v. Hawkesford [6 C. B. -(N. S.) 336], Neville v. London Express Newspaper Limited ([1919] A. C. 368), Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. ([1935] A. C. 532), Secretary of State v. Mask & Co. ( 44 C. W. N. 709), Hurdutrai v. Official Assignee of Calcutta (52

C. W. N. 343), Theberge v. Laudry (1876, 2 App. Cas. 102) referred to.

Judgment of the l-Iigh Court of Madras affirmed.

CIVIL

APPELLATE JuRISDICTioN : Case No. 351 of 1951.

Appeal under article 132 of the Constitution from the Judgment and Order of the High Court of Judicature at Madras (Subba Rao and Venkatarama Ayyar JJ.) dated 11th December, 1951, in Writ Petition No. 746 of 1951. The facts of the case and arguments of the counsel are set out in detail in the judgment.

N. Rajagopal Iyengar, for the appellant.

R. Ganapathi Iyer, for the 1st respondent.

M. C. Setalvad, Attorney-General for India ( G. N.

Joshi, with him) for the Union of India.

K. A. Chiklle, Advocate-General of Madhya Bharat. -(G. N. foshi; with him) for the State of Madhya Bharat.

1952. January 21.

Faz! Ali J. delivered as follows.

Patanjali Sastri C. J."Mahajan, Das and Chandrasekhara Aiyar JJ. agreed. .Ali J.

Judgment Mukherjea, with Faz!

FAZL Au J.-This is an appeal from an order of the Madras High Court dismissing the petition of the .appellant praying for a writ of certiorari.

The appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly fro111 the Namal<lkal Constituency in Salem district.' On the 28th November, . 1951, .the Returning

Officer for that constituency took up for scrutiQy the nomination papers filed by the various candidates and on the same day he rejected the appellant's nomination paper on certain grouns wich 1 need' not be set out as they are .not material to the point raised in this

aweal. . The appellant thereupon moved the High Court under article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to dim:t the Returning Officer to include his name in the list of valid nominations to be published.

The High Court dismissed the appellant's application on the. ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of article 329(b) of the Constitution.

The :appellant's contention in this appeal is that the view .expressed by the High Court is not correct, that the jurisdiction of the High Court is not affected by article 329 (b) of the Constitution and that he was entitled to a writ o£ certiorari in the circumstances of the case.

Broadly speaking, the arguments on whih the judgment of the High Court is assailed are two-fold :-

(1) that the conclsion 'arrived at by the High Court does not follow from the language of article 329

(b) of the Constitution, whether that article is . read by itself or along with the other articles in Part XV of the Constitution : anrl

(2) that the anomalies which will arise if the construction put by the High Court on article 329 (b) is accepted, are so startling that the courts should lean in favour of the construction put forward on behalf of the appellant. 29

N. P. Ponnu

swami

v. -Returning Officer,

Namakkfd Constituency and

. Others.

Fazl Ali f.

1952 The first argument which turns on the contruction of article 329(b) requires serious consideration, but I N. P. Ponnuthink the secon.d argument can be disposed of briefly Jtuami

T. at the outset.

It should be stated that what the appel- Returning Officer, !ant chooses to call anomaly can be more appropriately Namakkal described as hardship or prejudice and what their Constituency and nature will be has been stated in forceful language by Otlii:rs.

Faz/ Ali /. Wallace J. in Sarvothama Rao v. Chairman, Municipal

Council, Saidapet(') in these words :- '

"I am quite clear that any post-election remedy is wholly inadequate to afford the relief which the petitioner seeks, namely, that. this election, now published be stayed, until it can be held with himself as candidate.

It is no consolation to tell him that he can stand for some other election.

It is no remedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered.

The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely necessary, unless the relief asked for was to be denie<l him altogether in limine. In most cases of this kind no doubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is committed ; but when he has succeeded in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually consummated while it is engaged in trying the suit."

These observations however represent only one side of the picture and the same learned Judge presented the other side of the picture in a subsequent case [Desi Chettiar v. Chinttasami Chett1ar(2 )] in the following passage:-

"The petitioner is not without his remedy.

His remedy lies in an election. petition which we understand he has already put in. It is argued for him

(1) (1924) IL.R. 47 Mad. 585. at 600.

(2) (1928) A.I.R. Mad. 1271 at 1272.

...

that that remedy which 'merely allows him to have set .aside an election once held is not as efficacious as the one which .would enable him to stop the. election altogether'; and certain observations at p. 600 of Sar-- voihama Rao v. Chairman, Municipal Council, Saidapet(1) are quoted.

In the first place, we do not see how the mere fact that thi: petitioner cannot get the election stopped and has his remedy only after it is -0ver by an election petition, will in itself confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration Qf the propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally it may be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safeguarded was not so common. It is clear that there is another side of the question to be considered, namely, the i inconvenience to the public administration of having elections and the business of "Local Boards held up while individuals prosecute their individual grievances.

We understan~ the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and .the Board is functioning, if indeed it is functioning, . with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal griev- ;; mce is' satisfied."

These obser¥ations which were made in regard to e1ections to Local Boards will apply with greater force to elections to legislat\Jres, because it does not require much argument to show that in a country with a Aemocratic constitution in which the legislatures have to play a very important role, 1t will lead to serious consequences if the elections are unduly protracted or obstructed .. To this. aspect of the matter I shall have to

.advrt later, but , it .is sufficient for the present purpose

(1) ( 1924) I.L.R. 47 Mad. 585 at 600.

N. P. Ponnuswami v.

Returning Officer,

 Namakkal .

Constituency and

Others.

Fazl Ali /.

N. P. Ponnuswami

Returnint Of!icet,

Namakkal Constituency and

Others.

Faz/ Ali/.

to state firstly that in England the hardship and inconvenience which rnay be suffered by an individual candidate has not been regarded as of sufficient weight to induce Parliament to make provision for immediate relief and the aggrieved candidate has tc> wait_ until after the election to challenge the validity of the rejection of his nomination paper, and secondly, that the question of hardship or inconvenience is after all . only a secondary question, because if the construction put by the High Court on article 329 (b) of the Constitution is found to be correct, the fact that such construction will lead to hardship and inconvenience becomes irrelevant.

Article 329 is the last article in Constitution the heading of which it runs as follows :-

Part XV of the is "Elections", and

"Notwithstanding anything in this Constitution-- ( a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 327 or article 328, shall not be called in question in any court ;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State 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."

In construing this article, reference was made by both parties in the course of their arguments to the other articles in the same Part, namely, articles 324, 325, 326, 327 and 328.

Article 324 provides for the constitution and appointment of an Elecetion Commissioner to superintend, direct and control elections to the legislatures ; article 325 prohibits discrimination against electors on the ground of religion, race, ca<te or sex ; article 326 provides for adult suffrage ; article 327 empowers Parliament to pass laws making provision with respect to all matters relating to, or in connection with, elections to the legislatures, subject

to the provisions of the Constitution ; and article 328 is a complementary article giving power to the State Legislature to make provisions with respect to all matters relating to, or in connection with, elections to the State Legislature.

A notable difference in the language used in articles 327 and 328 -on the one hand, and article 329 on the other, is that while the first two articles begin with the words "subject to the pro. visions of this Constitution", the last article begins with -the words "nothwithstanding anything in this Constitution." It was conceded at the bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislatures' under article 328, cannot exclude _ the jurisdiction of the High Court under article 226 of the Constitution, that jurisdiction is excluded in regard to matters provi<}ed Jor in article 329.

Now, the main controversy in this appeal centres round the meaning of the words "no election shall be called in question except by an election petition'~ in article 329(b ), and the point to be decided is wheter questioning the action of the Returning Officer in rejecting a nomination paper can be said to be comprehended within the words, "no election shall be called in question." The appellant's case is that questioning something which has happened before a candidate is dedared elected is not the same thing as questioning an election, and the arguments advanced on his bebalf in support of this construction were these :-

(1) That the word "election" as used in article 329(b) means what it normally and etymologically means, namely, the result of polling or he final selection of a candidate ; • (2) That the fact that an election petition can be filed only after polling is over or after a candidate is declared elected, and what is normally called in question by such petition is the final result, bears out the contention that the word "election" can have no other meaning in article 329

(b) than the result of polling or the final selection of a candidate ; -

N. P. Ponnuswami

Returning Otficn-,

Namakkal Constituency and

Others.

Fnl Ali/.

(3) That the words "arising out of or in connection with" which are used in article 324(1) and the words N. P. Ponnu- "with respect to all matters relating to, or in connecswam1 tion with" which are used in articles 327 and 328, v.

Returning Officer, show that the framers of the Constitution knew that it Namakkal was necessary to use different languages when referring Constituency and respectively to matters which happen prior to and Others. after the result of polling, and if they had intended Fazl Ali /. to include the rejection of a nomination paper within the ambit of the prohibition contained in article 329

(b) they would have used similar language in that article ; and

( 4) That the action of the Returning Officer in rejecting a nomination paper can be questioned before the High Court under article 226 of . the Constitution for the following reason :-Scrutiny of nomination papers and their rejection .are provided for in section 36 of the Representation of the People Act, 1951. Parliament has made this provision in exercise of the powers c0nferred on it by article 327 of the Constitutio11 which is "subject to the provisions of the Constitution".

Therefore, the action of the Returning Officer is subject to the extraordinary jurisdiction of the High Court under article 226.

These arguments appear . a~ first sight to be quite impressive, but in my opm1on there are weightier and basically more important arguments in support of the view taken by the High Court.

As we have seen, the most important question for determination is the meaning to be given to the word "election" in article 329 (b).

That word has by long usage in <:onnection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning.

In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll.

In the wide sense, the word is used to connote the entire process culminating in a candidate being declared

I J

:S.C.R.

SUPREME COURT ~EPORTS 227

N. P. Ponnuswami v.

elected. In Srinivasalu v. 1;..uppuswami(1), the learned Judges of the Madras High Court after examining the question, expressed the opinion that : the term "election" may be taken to embrace the whole procedure where by an "elected member" is returned, whether or not it be found necessary to take a poll. With this

view, my brother, Mahajan J. expressed his agreement .in Sat Narain v. Hanuman Pramd(2) ; and I also find myself iJ1 agreement with it. It seems to me that the word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to con- .note the entire procedure to be gone through to return .a candidate to the legislature. The use of the expres-

Returning Officer,

Namakkal Constituency and

Othe1s.

.. sion "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also be read consistently into tile other provisions which •occur in Part XV including article 329 (b). That the word "election" bears this wide meaning whenever we :talk, of elections in a democratic country, is borne out by the fact that in most of the books on the subject :and in several cases dealing . with the matter, one of the questions mooted is, when the election begins.

The -subject is dealt with quite concisely in Ha1sbury's Laws of England in the following passage(3) under the .beading "Commencement of the Election" :-

"Although the first formal step in every election is the issue of the writ, the election is considered for some _purposes to begin at an earlier date. It is a question d fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the .contest is "reasonably imminent".

Neither the issue of :the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election. will usually begin at least earlier than the issue of the writ. 'The question when the election begins . must be care-

( 1) (1928) A.LR. Mad. 253 at 255.

(2) (1945) A.LR. Lah. 85.

(3) See page 237 of Halsbury's Laws of England, 2nd edition, Volume 12.

Faz/ Ali f.

N. P. Ponnu-

JWami

Returning Officer,

Namak._k._al ( onstituency and

Ot, hers.

Fazl Ali ].

fully distinguished from that as to when "th~ conduct and management of" an election may be said to begin.

Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case."

The discussion in this passage makes it clear that the word "election" can be and has been 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 next important question to be considered 1s what is meant by the words "no election shall be called in question".

A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The law with which we are concerned is not materially different, and we find that in section 100 of the Representation of the People

Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a nomination paper.

The question now arises whether the law 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 article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another

after they have been completed by means of an elec-· tion 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, as I shall point out lateq 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. It seems to me that under the elec-·

tion law, the only significance which the rejection of

\ -~ I

a nominatiorl: paper . has consists in the fact that it 1952 can be used as a ground to call the election m question.

Article 329(b) was apparently enacted to N. ~~::riu· prescribe the manner in which and the stage at which v. this ground, and other. grounds which may be raised Returning Office1',

under the law to call the electio11 in question, Nmakkal d could be urged. I think it follows by necessary im- Consigu; ncyan plication from the language of this provision

1 ers. that those grounds cannot be urged in any other Faz/ dli /,· manner, at any other stage and before any other court.- If the grounds on which an election can be called .irr question could be raised at an earlier stage and errors,, if any, are rectified, there will be no meaning in enact-' ing a provision like article 329(b) and in setting' up a special tribunal. Any other meaning ascribed to the words used' in the article would lead to anomalies, which the Constitution could not have contemplated,, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.

I think that a brief examination of the scheme of Part XV of the Constitution and the Representation. of the People Act, 1951, will show that the construction I have suggested is the correct one.

Broadly speaking, before an election machinery can be brought into operation, there are three requisites which , requii;-e

to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating . to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections.

Articles 327 and 328 deal with the first of these requisites, article 324 with the second ai1d article 329 with the third requisite.

The other two articles in Part . XV, viz., articles 325 and 326, deal with two matters of principle to which the Constiu tion-fotmers have attached much importance.

They 30

1952 are :-( 1) prohibition against discrimination in the preparation of, or eligibility for inclusion m, the N. P. Ponnuelectoral rolls, on grounds of religion, race, caste, sex swatnt v. or any of them ; and (2) adult suffrage. Part XV of Returning Officer, the Constitution is really a code in itself providing Namakkal the entire ground-work for enacting appropriate laws Constituency and and setting up suitable machinery for the conduct of Others.

Faz/ Ali f.

elections.

The Representation of the People Act, 1951, which was passed by Parliament under article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country.

That Act is divicjed into 11 parts, and it is interesting to see the wide variety of subjects they deal with.

Part II deals with "the qualifications and disqualifications for membership'', Part III deals with the notification of General Elections, Part IV provides for the administrative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers, requirements of a valid nomination, scrutiny of nominations, etc., and procedure for polling and counting of votes.

Part VI deals with disputes regarding elections and provide~ for the manner of presentation of election petitions, the constitution of election tribunals and the trial of ekction petitions. Part VII outlines the various corrupt and illegal practices which may affect the elections, and electqral offences.

Obviously, the Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules . made thereunder. The provisions of the Act which are material to the present discussion are sectioru 80, 100, 105 and 170, and the provisions of Chapter I.I of Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as article 329(b), provides that "no election shall be called m question except by an election

\..

S.C.R.

SUPR~ME COURT REPORTS 231

N. P. Ponnuswami

petition presented in accordance with the provisions of this Part". Section 100, as we have already seen, provides for the grounds on which an election may be , called in question, one of which is the imriroper rejection of a nomination paper.

Section 10) says that "every order 'of the Tribunal made under this Act shall be final and conclusive".

Section 170 provides that "no civil court shall have jurisdiction to question the legaiity of any action taken or of any decision given by the Returning Officer or by any other person appointed under this. Act in connection with an election." These are the roam provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be

Returning Officer~

N11mak, k, al Constituency and

Others.

 questioned at an intermediate stage.

It is now well-recognized that where a right of liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in WoltJerhampton -New Water Works Co. v. Hawkesford( 1 ) in the following passage :-

"There are three dasses of cases in which a liability may b~ established founded upon statute.

One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and , peculiar form of remedy different from the remedy which existed at common law; 'there, unless the statute contains words which expressly or by necessary implication exclude the co, nimon law remedy, the party suing has his election to pursue, either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy~ there,_ the party can only proceed by action . at common law.

But there is a third class, tJiz,, where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. . . . . . . . . . The remedy provided by the statute must be followed, and it is not

(l) 6 C.B. (N.S.) 336, 356.

Fazl Ali/.

N. P. Ponnustvami

competent to the party t~ pursue the course applicable to cases of the second class.

The form given by the statute must be adopted and adhered to."

/.?.<turning Officer,

Namakkal

l~'(Jnstztuency and

Other;.

The rule laid down in this passage was approved by the House of Lords in Neville v.

London Express Newspaper Limited(') and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v.

Gordon Grant & Co.(') and Secretary of State v. Mask & Co.(3 ) ; and it has also been held to be equally applicable to enforcement of rights : see Hurdutrai v.

Official Assignee of Calrntta(•).

That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

.Fa~I Ali f.

It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under article 226 of the -Constitution.

This argument however is completely shut out by reading the Act along with article 329(b).

It will be noticed that the language used in that article and in section 80 of the Act is almost identical, with 1:his difference only that the article is preceded by the words "notwithstanding anything in this Constitution". I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.

It may be stated that section 107(1) of the Representation of People Act, 1949 ( 12 & 13 Geo. 6, c. 68) in England is drafted almost in the same language as article 329(b). That section runs thus:

"No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of <tll undue election or undue return (hereinafter referred to as a parliamentary election petition) '.Presented in accordance with this Part of this Act." .

(1) [1919] A.C. 368.

(3) (1940) 44 C.W.N. 709.

{?) [1935] A.C. 532.

( 4) (1948) 52 C.W.N. 343, 349.

,..

t •

':S.C.R.-

SUPREME COURT REPORTS 233

1$52

N. P. Ponnu-·

swami

It appears that similar language was used in the earlier statutes, and it is noteworthy that it has never been held in England that the improper rejection of a nomination paper can be the subject of a writ of certiorari or mandamus. On the other hand, it was conceded at the bar that. the question of improper rejection of a.nomination paper has always been brought up in that country before the appropriate tribunal by means of an election petition after the conclusion of the election. It is true that there is no direct dedsfon

holding that the words used in the' relevant provisions exclude the jurisdiction of the High Court to issue ap- _propriate prerogative writs at an intermediate stage of the election, but the total absence of any such decision can be accounted for only on the view that the provi- ::1ions in question have been generally understood'to have that effect.

Our attention .was drawn to rule 13 ot the rules appended to the Ballot Act of 1872 and a similar rule in the Parliamentary Elections Rules of _ 1949, providing that the decision of the Returning Officer <lisallowing an objection to a nomination paper shall be final, but allowing the same shall be subject to reversal on a petition questioning the election or return.

These rules however do not affect the main argument.

I think it can be Iegitim_ately stated that 1f words similar to those used in article 329 (b) have .been consistently treated in England as words apt to

exclude the jurisdiction of the CQJtrts including the High Court, the same consequence must follow from the words used in article 329(b) of the Constitution. fhe words "notwithstanding anything in this Constitution" give to that article the same wide and binding effect as a statute passed by a sovereign legislature like the English Parliament.

Returning Officer,

Namakkal Constituency and

Others:

It may be pointed out that article 329(b) must be . read as complimentary to clause (a) of that ;µ-tide.

Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under articles_327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. . It was conceded before us that article 329(b) ousts the jurisdiction of the courts with regard to matters

Fflzl Ali /.

1952 ansmg between the commencement of the polling and the final selection. The question which has to be asked N. ~~::.?nuis what conceivable reason the legislature could have v. had to leave only m:itters connected with nominations Returning Officer, subject to the jurisdiction of the High Court under Namak/r..ol article 226 of the Constitution. If Part XV of the Constituency and Constitution is a code by itself, i.e., it creates rights.

Others. d "d f h . fo b . l an prov1 es or t e1r en rcement y a specia .

Fazl Ali /. tribunal to the exclusion of all courts includ:ng the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject-matter of contest before. the High Courts and thereby upset the time-schedule of the elections.

The more reasonable view .seems to be that article 329 covers all "electoral matters".

The conclusions which I have arrived at may be summed up briefly as follows : - ( 1) Having regard to the important functions. which the legislatures have to perform in democratic countries, it has always been recognized to be a: matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.

It will be useful at this stage to refer to the decision of the Privy Council in Theberge

v. Laudry('). The

. (1) (1876) 2 App. Cas. 102.

. .

...

petitioner in that case having been declared duly elected a member to represent an electoral district in the Legislative Assembly of the Province of Quebc:c, his election was afterwards, on petition, declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt practices, both personally and by his agents.

Thereupon, he applied for special leave to appeal to Her Majesty in Council, but it was refused on the ground that the fair construction of the Act of 1875 and the Act of 1872 which preceded it providing among other things that the judgment of the Superior Court "shalf not be susceptible of appeal" was that it was the intention of the legislature to create a tribunal for the purpose of trying election petitions in a manner which should 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.

In delivering the judgment of the Privy Council, Lord Cairns observed as' follows :-

"These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character.

They are not Acts constituting or providing for the decision of mere ordinary civil rights ; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court ..... for the purpose of taking out, with i~ own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly.

A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of rnch a jurisdiction must be that the jurisdiction, by whomsoever it is to he exercised, should be exercised in a way that should as soon as possible become conclusive; and enable the constitution of the Legislative Assembly to be distinctly and speedily known." 9-3 S. c. Iuctia/71

N. P. Ponnuswami

Retur.ning Officer,

Namakkal Constituency and

nthers.

Faz! Ali{.

N. P. Ponnuswami

After dealing with certain other matters, the Lord Chancellor proceeded to make the following further observations :-

R . v. 0 "Now, the subject-matter, as has been said, of the eturmng fficer, l . l . l 1.

I Namakkal gts at10n IS •. extreme y pecu iar. t concerns the Constituency and nghts and prmleges of the electors and of the Legisla-

Others. tive Assembly to which they elect members.

Those rights and privileges have always in every colony, Fazl Ali /. following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly.

Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so far as they properly exist.

And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the Legislative Assembly haq put in its place, but belonged to the Crown in Council, with the advice of the adviers 0£ the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place."

The points which emerge from this decision may be stated as follows :-

(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed, by it.

(2) Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdic- . tion, that special jurisdiction should be exercised in

accordance with the law which creates it. t

I !

It should be mentioned here that the question as to what the powers of the High Court under articles 226 and 227 and of this Court under article 136 of the Constitution may be, is one that will have to be decided on a proper occasion.

It is necessary to refer at thi~ stage to an argument advanced before us on behalf of the appellant which was based on the language of article 71 (1) of the Constitution. That provision runs thus :-

"All doubts and disputes ari$ng out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final."

The argument was as follows. There is a marked contrast between the language used in article 71 (1) and that of article 329 (b). The difference in the phraseology employed in the two provisions suggests that they could not have been intended to have the same meaning and scope as regards matters to be brought up before the tribunals they respectively deal with. If the framers of the Constitution, who apparently knew how to express themselves, intended to include within the ambit of article 329 (b) all possible disputes connected with elections to legislatures, including disputes as to nominations, they would have used similar words as are to be found in article 71 ( 1).

It is true that it is not necessary to use identical language in every provision, but one can conceive of various alternative ways of expression which would convey more clearly and properly what article 329 (b) is said to convey.

It seems to me that once it is admitted that the same idea can be expressed in different ways and the same phraseology need not be employed in every provision, the argument loses much of its force.

But, however that may be, I think there is a good explanation as to why article 329 (b) was drafted as it stands.

A reference to the election rules made under the Government of India Acts of 1919 and 1935 will show that the provisions in them on the subject were almost in the same language as artVle 329 (b). The

N. P.· Ponnuswami

Returning Officer,

Namakkal Constituency and

Others.

Faz/ Ali j.

1952 corresponding rule made under the Government of India Act, 1919, was rule 31 of the electoral rules, and N. P. Ponnuit runs as follows :- swami

v. "No election shall be called in question, except by Returning Officer, an election petition presented in accordance with the

Nmakkal provisions of this Part." Constituency and . • Others.

It should be noted that this rule occurs m Part VII, the heading of which is "The final decision of doubts Faz/ Ali/. and disputes as to the validity of an election". These words throw .some light on the function which the election tribunal was to perform, and they are the very words which the learned counsel for the appellant argued, ought to have been used to make the meaning clear.

The same scheme was followed in the election rules framed under , the Government of India Act, 1935, which are contained in "The Government of India (Provincial Elections) (Corrupt Practices and Election 1.>etitions) Order, 1936", dated the 3rd July, 1936.

In that Order, the rule corresponding to rule 31 under the earlier Act, runs thus :- -

"No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of the Order."

This rule is to be found in Part III of the Order, the heading of which is "Decision of doubts and disputes as to validity of an election and disqualification for corrupt practices."

The rules to which I have referred were apparently framed on the pattern of the corresponding provisions of the British Acts of 1868 and 1872, and they must have been iutended to cover the same ground as the provisions in England have been understood to cover in that country for so many years.

If the language used in article 329 (b) is considered against this historical background, it should not be difficult to see why the framers of the Constitution framed that provision in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which had stood the test of time.

And now a word as to why negative language was used in article 329 (b). It seems to me that there is an important difference between article 71 ( 1) and article 329 (b). Article 71 (1) had to be in an affirmative form, because it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article. Article 329 (b), on the other hand, was primarily intended to exclude or ousl the jurisdiction of all courts in regard to electoral matters and to lay down the only mode in which an election could be challenged.

The negative form was therefore more appropriate, and, that being so, it is not surprising that it was decided to follow the preexisting pattern in which also the negative language had been adopted.

Before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words:-

"It was next contended that if nomination is part. of election, a dispute as to the validity of nomination is a dispute relating to election and that can be. called in question only in accordance with the provisions of article 329 (b) by the presentation of an election petition to the appropriate Tribunal and that the Returning Officer would have no jurisdiction to decide that matter, and it was further argued that section 36 of Act XL.III of. 1951 would be utlra vires inasmuch as it confers on the Returning Officer a jurisdiction which article 329 (b) confers on a Tribunal to be appointed in accordance with the article."

This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered.

Under section 36 of the Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize: the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which be made to any nomination.

It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of

N. P. Ponnu

swami

v. lteturning Officer,

Namakkal Constituency and

Others.

Faz/ Ali f.

confusion may ensue.

In . discharging the statutory duty imposed on him, the Returning Officer does not swami call in question any election. Scrutiny of nomination v. papers is only a stage, though an important stage, in

N. P. Ponnu-

Rettirning Of!i"r, the election process. It is one of the essential duties to Namakkal be performed before the election can be completed, and Constituency and anything done towards the completion of the election Othtrs.

Faz/ Ali/. proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent .to election. The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression-"no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951.

Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method.

We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under article 226 of the Omstitution to entertain petitions regarding improper rejection of nomination papers.

This view is in

!PY opinion wrrect and must be affirmed. The appeal must therefore fail and is dismissed.

In view of the nature and importance of the points raised m this appeal, there should be no order to costs. p ATANJ ALI SASTRI c. J ,_:I agree.

MEim CHAND MAHAJAN J.-1 agree.

MuKHERJEA f.-1 agree.

DAs J.-1 agree.

CHANDllASEKHARA AIYAR r.-I agree.

Appeal dismitsed.

Agent for the appellant : S. Subt<ahmanyam.

Agent for the 1st respondent : P. A. Mehta.

Agent for the Union of India and the State of Madhya Bharat : P. A. Mehta.

GIPN-Si-3S.C India/71-6-10·72-7DO

MAHAJAN

MuKHERJEA

DAs

Constitution of India

Arts. 226, 324 to 329

Representation of the People Act, 1951

ss. 36, 80

Article 329

Constitution of India

Parliament

Representation of the People Act, 1951

sec. 80

High Court of Madras

PATANJALI SASTRI

MAHAJAN

DAS

CHANDRASEKHAR.A AiYAR

articles 329

sec. 80

Representation of the People Act, 1951

N. P. Ponnuno

article 329

Namak

People Act, 1951

Article 329

article 329

article 329

sec. 80

Representation of the People Act, 1951

England

article 132

Subba Rao

Venkatarama Ayyar

N. Rajagopal Iyengar

R. Ganapathi Iyer

M. C. Setalvad

G. N.

Joshi

K. A. Chiklle

Faz! Ali

Patanjali Sastri C. J."Mahajan

Das

Chandrasekhara Aiyar

Mukherjea

Faz!

FAZL Au J.-This

article 226

article 329(b)

article 329

article 329

article 329

N. P. Ponnu

Fazl Ali

article 329(b)

N. P. Ponnuthink

Faz/ Ali

N. P. Ponnuswami

N. P. Ponnuswami

article 329

Article 329

article 327

article 328

articles 324, 325, 326, 327 and 328

Article 324

article 325

article 326

article 327

article 328

articles 327 and 328

article 329

article 327

article 328

article 226

article 329

article 329(b )

article 329(b)

article 329

N. P. Ponnuswami

article 324(1)

N. P. Ponnu-

articles 327 and 328

article 329

article 226

section 36

Representation of the People Act, 1951

article 327

article 226

article 329

Madras High Court

Mahajan

article 324

article 329

section 100

Act, 1951

article 226

Article 329(b)

article 329(b)

People Act, 1951

Articles 327 and 328

article 324

article 329

articles 325 and 326

Namakkal

Representation of the People Act, 1951

article 327

Section 80

article 329(b)

Section 100

Section 10

Section 170

Willes

N. P. Ponnustvami

Representation of the People Act

Representation of the People Act

article 226

article 329(b)

section 80

section 107(1)

Representation of People Act, 1949

article 329(b)

article 329

article 329(b)

English Parliament

article 329(b)

article 329(b)

article 226

article 329

Quebec Controverted Elections Act, 1875

Cairns

Namakkal

articles 226 and 227

article 136

article 71

Supreme Court

article 71

article 329

article 329

article 71

article 329

article 329

N. P.· Ponnuswami

Government of India Act, 1919

N. P. Ponnuit

swami

Government of India Act, 1935

3rd July, 1936

article 329

article 329

article 71

article 329

Article 71

Article 329

article 329

section 36

article 329

section 36

Representation of the People Act, 1951

article 226

ATANJ ALI SASTRI

MEim CHAND MAHAJAN

CHANDllASEKHARA AIYAR

S. Subt

P. A. Mehta