Durga Shankar Mehta vs Thakur Raghuraj Singh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 150 of 1953

Decision Date: 19 May 1954

Coram: B.K. Mukherjea, Mehar Chand Mahajan, Vivian Bose

In the matter titled Durga Shankar Mehta versus Thakur Raghuraj Singh and Others, the judgment was rendered on the nineteenth day of May in the year 1954 by the Supreme Court of India. The case was reported in the law reports under the citation 1954 AIR 520 and also appears in the Supreme Court Reporter as 1955 SCR 287. The judgment was authored by Justice B. K. Mukherjea, and the bench comprised Justice B. K. Mukherjea together with Justice Mehar Chand Mahajan and Justice Vivian Bose. The petitioner in the proceedings was identified as Durga Shankar Mehta, while the respondents were Thakur Raghuraj Singh and several other individuals. The record also notes an alternative citation of the decision in various law reports, including R 1955 SC 233 (8), F 1955 SC 425 (12), R 1959 SC 422 (11, 16), E & D 1960 SC 368 (4, 8, 9, 17), E & D 1960 SC 1049 (17), RF 1963 SC 677 (18), R 1963 SC 874 (9), R 1965 SC 1595 (9, 19, 40), D 1971 SC 1348 (8, 10), R 1973 SC 2362 (4, 6), R 1975 SC 1843 (35), RF 1975 SC 2299 (273), R 1976 SC 1207 (565), RF 1977 SC 2155 (23), E & R 1978 SC 851 (24, 30, 83, 124), R 1979 SC 1284 (5), E 1980 SC 856 (21), E 1981 SC 547 (17, 20, 25), R 1986 SC 103 (5), D 1987 SC 1629 (13), RF 1991 SC 2176 (16), R 1992 SC 248 (34), RF 1992 SC 2219 (53, 135), R 1996 SC 111 (15), and several others as listed in the judgment. The statutes expressly referred to in the decision were Article 136, Article 173, and Article 329 of the Constitution of India, as well as provisions of the Representation of the People Act, 1951, particularly sections 36, 100(1)(c), 100(2)(c), and 105. The core issue addressed by the Court involved the scope of the Supreme Court’s power under Article 136 to grant special leave to appeal in the context of election disputes, the effect of Article 329’s non-obstante clause, and the applicability of section 105 of the Representation of the People Act which declares the decision of an Election Tribunal to be final and conclusive.

The Court observed that Article 136 of the Constitution employs the broadest possible language, conferring upon the Supreme Court a plenary jurisdiction to entertain and hear appeals by granting special leave against any judgment or order issued by any court or tribunal in any cause or matter. The Court emphasized that this jurisdiction operates as a special or residuary power, to be exercised beyond the ordinary limits of law whenever the demands of justice require the Supreme Court’s intervention. It further held that the non-obstante clause contained in Article 329, which bars the Supreme Court and all other courts in India from entertaining suits challenging the validity of elections to Parliament or State Legislatures, and section 105 of the Representation of the People Act, which seeks to confer finality on the determinations of Election Tribunals, do not diminish the overriding authority granted by Article 136. The Court clarified that the power under Article 136 supersedes the prerogative right of the Judicial Committee of the Privy Council and cannot be curtailed by any parliamentary enactment. Consequently, even where the Representation of the People Act states that an Election Tribunal’s decision is final, the Supreme Court retains the inherent ability under Article 136 to grant special leave to appeal if a substantial question of law or a serious miscarriage of justice is evident.

The Court observed that the prerogative right of the Crown may be withdrawn or limited by an express statutory enactment, but the constitutional power conferred by article 136 of the Constitution cannot be diminished or removed by any legislation of Parliament. This constitutional provision therefore overrides ordinary statutes, and no presumption may be drawn from language stating that a tribunal’s adjudication is final and conclusive to suggest an intention to exclude the exercise of the special power vested in the Supreme Court under article 136.

Accordingly, where a tribunal’s finding reveals a breach of, or failure to comply with, article 173 of the Constitution because a candidate suffers a constitutional disability arising from being under-age, the case falls within sub-section (2)(c) of section 100 of the Representation of the People Act rather than under sub-section (1)(c) of the same Act. The election must therefore be declared void on the ground of the candidate’s constitutional disqualification, not on the ground that his nomination was improperly accepted by the Returning Officer. Consequently, only the election of that particular candidate should be set aside, leaving the remainder of the election intact. The expression “non-compliance with the provisions of the Constitution” in clause (c) of sub-section (2) of section 100 is sufficiently broad to encompass situations where the issue is not a procedural error by the Returning Officer but a fundamental disability of the candidate to stand for election. The Court referred to the authorities Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. ([1950] S.C.R. 459), Theberge v. Laudry ([1876] 2 A.C. 102), Stowe v. Jolliffe (9 C.P. 734) and Ponnuswami v. Returning Officer, Namakkal Constituency and Others ([1952] S.C.R. 218) in support of this interpretation.

The judgment concerned Civil Appeal No. 150 of 1953, filed by special leave against the order dated 30 April 1953 of the Election Tribunal at Jabalpur, Nagpur, which had declared the election held on 29 December 1951 for the double-member Lakhnadon Legislative Assembly Constituency wholly void under section 100(1)(c) of the Representation of the People Act. The appeal was presented on 19 May 1954. Counsel for the appellant included B. Sen, T. P. Naik and I. N. Shroff, while counsel for respondent No. 1 comprised R. M. Hajarnavis, J. B. Dadachanji and Rajinder Narain. The Court noted that Lakhnadon is a double-member constituency in Madhya Pradesh, with one seat reserved for Scheduled Tribes, and that the appellant and respondents No. 1 and No. 3 were among the candidates nominated for the general seat. The factual background and procedural history were outlined to enable appreciation of the parties’ submissions before the Court proceeded to its analysis.

Five and seven were duly nominated as candidates for the general seat in the Lakhnadon Legislative Assembly Constituency, while respondents numbered two, four and six were nominated for the seat reserved for Scheduled Tribes. The Returning Officer recorded no objection to the nomination of either the appellant, Durga Shankar Mehta, or respondent number two, Vasant Rao. From the eight original nominees, respondents five, six and seven withdrew their candidatures within the time limit prescribed by section thirty-seven of the Representation of the People Act. Consequently, the contest that actually proceeded at the polling day involved only five candidates: the appellant and respondents one, two, three and four.

The poll count showed that the appellant, standing for the general seat, secured eighteen thousand six hundred twenty-seven votes; respondent one, also contesting a general seat, obtained seven thousand eight hundred eleven votes; respondent two, contesting the reserved seat, received fourteen thousand four hundred forty-two votes; respondent three, another reserved-seat candidate, garnered seven thousand eight hundred seventy-seven votes; and respondent four, a general-seat candidate, collected six thousand six hundred four votes. On the basis of these figures, the appellant and respondent two were declared elected to the general and reserved seats respectively, in accordance with section sixty-six of the Act. The declaration of results was published in the Madhya Pradesh Gazette on the eighth of February, nineteen fifty-two.

On the fourteenth of May, nineteen fifty-two, respondent one, Raghuraj Singh, filed an election petition against the appellant and the other respondents under section eighty-one of the Act. The petition sought a declaration that the entire election to the Lakhnadon Legislative Assembly Constituency be void, or alternatively, that the elections of Vasant Rao and/or Durga Shankar Mehta be set aside. The petition contained numerous allegations that the appellant had engaged in corrupt practices to obtain votes; however, these allegations were deemed irrelevant for the present discussion because the Tribunal, by a majority, found them unsupported by proper evidence and therefore unfounded.

The principal ground on which the petitioner challenged the validity of the election was the claim that respondent two, Vasant Rao, who had been declared elected to the reserved seat, was under twenty-five years of age at the relevant time. Because article one-seventy-three of the Constitution required a person to be at least twenty-five years old to be chosen as a member of a State Legislative Assembly, the petitioner argued that Vasant Rao was ineligible. The majority of the Tribunal accepted this allegation as true. In its judgment dated the thirtieth of April, nineteen fifty-three, the Tribunal concluded that the Returning Officer’s acceptance of Vasant Rao’s nomination—despite his disqualification under the Constitution—constituted an improper acceptance of a nomination within the meaning of section one hundred (one)(c) of the Act. The Tribunal held that this error materially affected the election and therefore the entire election must be declared void. The propriety of that conclusion was the issue raised before this Court on appeal. The counsel for respondent one, appearing before the Court, raised a preliminary objection concerning the competence of the appeal, contending that the appeal was not maintainable.

In this matter, the learned counsel for the respondent argued that article 329(b) of the Constitution removes the jurisdiction of all ordinary courts in disputes concerning elections and expressly provides that no election to either House of Parliament or to either House of the State Legislature may be called into question except by an election petition presented to the authority and in the manner prescribed by law made by the appropriate legislature. The counsel further submitted that the only permissible challenge to the validity of an election is through such an election petition, and that the authority and procedure for presenting the petition are set out in the Representation of the People Act, which Parliament enacted pursuant to article 327 of the Constitution. Section 80 of that Act, which mirrors the language of article 329(b), states that no election shall be called into question except by an election petition presented in accordance with the provisions of that Part, and section 105 declares that every order of the Tribunal made under the Act shall be final and conclusive. According to the counsel, the jurisdiction created in the Election Tribunal is a special jurisdiction that can be invoked by an aggrieved party only by means of an election petition, and the Tribunal’s decision is therefore final and conclusive. While these arguments appear attractive at first glance, the Court found them, on closer examination, to be untenable. The Court agreed that the right to seek election and to sit in Parliament or a State Legislature is a creature of the Constitution, and that when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a court of law is available for election disputes. The jurisdiction of the Election Tribunal is indeed a special jurisdiction; however, once it is held that the Tribunal is a judicial body empowered and obliged to adjudicate disputes arising out of or in connection with elections, the Court’s overriding power to grant special leave, in appropriate cases, is inevitably attracted and cannot be excluded by any Parliamentary legislation. The non obstante clause at the beginning of article 329, which the respondent’s counsel emphasised, bars any other court in the country from entertaining a suit or proceeding calling into question an election to Parliament or a State Legislature. Consequently, the Election Tribunal alone may decide such disputes, and the proceeding must be initiated by an election petition in the manner provided by statute. Nevertheless, after the Tribunal has rendered any determination or adjudication on the matter, the Court retains the power to interfere by way of special leave, and this power can always be exercised. The Court noted that this position is now well settled.

The Court noted that the majority decision in Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. (1) clarified that the term “Tribunal” used in article 136 does not carry the same meaning as “Court.” Instead, it embraces every adjudicating body that is created by the State and vested with judicial functions, as opposed to purely administrative or executive roles. The Court further explained that the only Courts or Tribunals expressly excluded from the reach of article 136 are those established by or under any law relating to the Armed Forces, as specified in clause (2) of that article. It was also observed that an appeal is a creature of statute; consequently, there is no inherent right of appeal from any judgment or determination unless the law expressly provides for such an appeal. The powers conferred by article 136, however, are of a special or residuary nature and may be exercised outside the ordinary legal framework whenever the demands of justice require the Supreme Court’s intervention. The article is drafted in the broadest possible terms, granting the Supreme Court a plenary jurisdiction to entertain and hear appeals, by way of special leave, against any judgment or order issued by a Court or Tribunal in any cause or matter. These powers may be exercised even in the presence of specific appeal provisions contained in the Constitution or other statutes, because the Constitution deliberately chose not to restrict or circumscribe the authority that article 136 confers.

The Court further observed that Section 105 of the Representation of the People Act confers finality on the decisions of the Election Tribunal for the purposes of that Act and does not provide for any further appeal. Nevertheless, this statutory finality does not diminish or curtail the overriding powers that the Supreme Court may exercise when granting special leave under article 136 of the Constitution. This overriding power, vested in the Supreme Court by article 136, is broader than the prerogative right of entertaining an appeal that was once exercised by the Judicial Committee of the Privy Council in England. The Court explained that the Crown’s prerogative can be taken away or limited by explicit legislation, and even where a statute does not contain clear words withdrawing the Crown’s prerogative, the scheme and purpose of the Act may reveal that the legislature never intended to create a Tribunal whose decisions were ordinarily subject to appeal to the Crown. In such circumstances, the Privy Council would refuse to entertain an appeal from the Tribunal’s decision. The Court cited the Privy Council decision in The Berge v. Laudry (1) as an illustration, noting that counsel had placed considerable reliance on that case.

In the matter before the Court, the individual had been duly elected as the representative for the electoral district of Montmanier in the Legislative Assembly of the Province of Quebec. Subsequently, on a petition, the Superior Court, applying the Quebec Controverted Elections Act of 1875, declared his election null and void and pronounced him guilty of corrupt practices. Following that judgment, the elected individual applied for special leave to appeal to His Majesty in Council. That application was rejected, and Lord Cairns, delivering the judgment of the Board, observed that the Crown’s prerogative could be removed or limited only by express statutory language. He noted that the provision of the Quebec Controverted Elections Act of 1875 stating that “such judgment shall not be susceptible of appeal” made no reference to the Crown or its prerogative. Nevertheless, a fair construction of the 1875 Act, together with the earlier Act of 1872, revealed the Legislature’s intention to create a tribunal for election petitions whose decisions would be final for all purposes and would not be subject to review by the Crown under its prerogative.

The Court held that the decision of Lord Cairns did not assist Mr Hazamavis. First, article 136 of the Constitution was identified as a provision that cannot be limited or taken away by any Parliamentary legislation, as reflected in the citation (I) (1876-77) 2 App.Cas. 102. Second, because article 136 overrides ordinary statutes, no presumption may be drawn from language that declares a tribunal’s adjudication final and conclusive that the Legislature intended to exclude the exercise of the special powers granted by article 136. The Court reiterated that the non obstante clause in article 329 bars challenges to an election before Parliament or any State Legislature, save for the procedure specified in clause (2) of that article. However, there is no prohibition on the Supreme Court exercising its powers under article 136 in appropriate cases against the decision of an election tribunal, which, like all other judicial tribunals, falls within the scope of article 136.

The Court further noted that it is desirable for decisions on disputed elections to become final and conclusive as soon as possible, so that the composition of the Legislature may be known quickly and with certainty. Nonetheless, the powers conferred by article 136 are to be exercised only in exceptional circumstances and do not create a general right of appeal from the decisions of every tribunal. Regarding the precedent cited by counsel, Ponnuswami v. Returning Officer, Namakkal Constituency, and Others (1), the Court clarified that the earlier decision merely held that the High Court possessed no jurisdiction under article 226 of the Constitution to interfere by way of a writ of certiorari with an order of a Returning Officer alleged to have wrongly rejected a nomination paper.

In that earlier decision the Court observed that the term “election” in article 329(b) of the Constitution must be understood in a broad sense to include the entire electoral process up to the point where a candidate is officially declared elected. The Court further explained that the design of Part XV of the Constitution requires that all questions which could invalidate an election be raised only after the election has concluded and must be pursued through an election petition. The specific issue that arises in the present matter was not decided in the earlier case and was expressly left unresolved. Accordingly, the preliminary objection raised by the counsel identified as Mr Hazarnavis could not be sustained.

Turning to the matter of the appellant, the counsel who appeared for the appellant, identified as Mr Sen, limited his argument to a single point. He stated that he could not contest the Tribunal’s finding that the respondent, Vasant Rao, was less than twenty-five years old at all relevant times. He acknowledged that this determination was a factual finding based on the evidence before the Tribunal and, therefore, was not open to review by this Court in an appeal on special leave. His substantive contention was that there had been no improper acceptance of a nomination in the present case, as held by the Tribunal, and consequently section 100(1)(c) of the Act should not apply. On that basis, he argued, the entire election could not be declared void.

The counsel further conceded that, according to the Tribunal’s finding, there had been a breach of article 173 of the Constitution and that the respondent identified as No 2 suffered from a constitutional disability because of his minority age, rendering him ineligible to be chosen for a seat in the State Legislative Assembly. Accordingly, the Tribunal could rightly declare the election void under section 100(2)(c) of the Act. However, the counsel maintained that there was no justification for pronouncing the whole election, including the election of the appellant, void. Thus, the controversy hinged on whether, based on the admitted and proved facts, the case fell within the scope of sub-section (1)(c) of section 100, which deals with the improper acceptance or rejection of a nomination, or within sub-section (2)(c) of the same section, which concerns the improper reception or refusal of a vote or other non-compliance with constitutional or statutory provisions.

The relevant excerpt of section 100 of the Act, to the extent necessary for this discussion, reads as follows: “100. Grounds for declaring election to be void— (1) If the Tribunal is of opinion— (a)… (b)… (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void. (2) Subject to the provisions of subsection (3), if the Tribunal is of opinion— (a)… (b)… (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is …”.

The Court first referred to the provision that empowered a Tribunal to declare an election void when the result was materially affected by any non-compliance with the Constitution, this Act, any orders made under the Act, any other Act, or any rules relating to the election, or by any mistake in the use of a prescribed form. The Court then turned to the question of whether the Returning Officer had improperly accepted the nomination of Vasant Rao in a manner that materially altered the outcome of the election. The respondent did not allege any defect in the nomination paper filed by Vasant Rao. It was conceded that the names and electoral numbers of the candidate, his proposer and his seconder as recorded on the nomination paper matched exactly those appearing in the electoral rolls. Moreover, it was undisputed that the nomination paper had been received within the time limit prescribed in section 33(4) of the Act. Section 36 of the Act governs the scrutiny of nominations; under subsection (2) the Returning Officer must examine every nomination paper, consider any objections raised, and may, on his own motion or on the basis of an objection, after conducting any summary enquiry he deems necessary, reject a nomination on any of the grounds enumerated in the clause. Clause (a) of that subsection stipulates that a nomination may be rejected if the candidate is not qualified to fill the seat under the Constitution or the Act. The respondent, identified as respondent No 1, argued that the Returning Officer should have rejected Vasant Rao’s nomination on the ground of disqualification and that the failure to do so amounted to an improper acceptance of the nomination within the meaning of section 100(1)(c). The Court found this argument unconvincing. It held that where a lack of qualification does not appear on the face of the nomination paper or the electoral roll, and can be established only by evidence, an enquiry at the stage of scrutiny is required only if an objection to the nomination is made. In the absence of any objection, the Returning Officer was not obliged to investigate further and was required to accept the nomination.

The Court explained that when a candidate appears to be duly qualified on the face of both the electoral roll and the nomination paper, and no objection is raised, the Returning Officer has no alternative but to accept the nomination. This principle was supported by section 36(7) of the Act, which provides that the production of any certified copy of an entry in the electoral roll of a constituency shall constitute conclusive evidence of the elector’s right to stand for election or to subscribe to a nomination paper, unless it is proved that the candidate or the proposer or seconder is disqualified under the Constitution or the Act. Accordingly, the electoral roll entry for Vasant Rao indicated that he met the age requirement and, on its face, demonstrated full qualification to be chosen as a member of the State Legislative Assembly. Since no objection was made to his nomination at the time of scrutiny, the Returning Officer was bound to treat the electoral roll entry as conclusive proof of his qualification. Therefore, the Court concluded that the Returning Officer’s acceptance of Vasant Rao’s nomination could not be characterized as improper, and the contention that the election result was materially affected by such an alleged improper acceptance was rejected.

The judgment explained that under the Act a certified copy of an entry in the electoral roll is considered conclusive proof of an elector’s right to stand for election or to sign a nomination paper, unless it is shown that the candidate is disqualified by the Constitution or by the Act, or that the proposer or seconder is disqualified under subsection (2) of section 33. In other words, the electoral roll determines the qualification of an elector unless a specific disqualification is alleged or proved. In the present case, the electoral roll listed Vasant Rao as being of proper age, and on that basis he appeared fully qualified to be chosen as a member of the State Legislative Assembly. No objection to his nomination was raised before the Returning Officer at the time of scrutiny, and therefore the Returning Officer was required to accept the entry in the electoral roll as conclusive. Consequently, if the Returning Officer did not reject Vasant Rao’s nomination, that acceptance cannot be described as improper under section 100(1)(c) of the Act. An improper acceptance would occur only where the lack of qualification was evident on the electoral roll itself or on the nomination paper and the Returning Officer ignored the defect, or where an objection was made, an enquiry was conducted, and the Returning Officer reached an erroneous conclusion based on the material before him. Since neither of those situations arose, the acceptance of the nomination must be regarded as proper. Although the acceptance is not final and the Election Tribunal may, on the evidence before it, determine that the candidate was in fact unqualified, the election would be declared void on the ground of constitutional disqualification rather than on the ground of improper acceptance of the nomination by the Returning Officer. The court agreed with the submission that such a case falls under subsection (2)(c) of section 100, not under subsection (1)(c), because it amounts to holding an election without complying with constitutional provisions, which is a ground specified in clause (c) of subsection (2). The expression “non-compliance with the provisions of the Constitution” is interpreted broadly enough to include situations where the issue is not the Returning Officer’s acceptance or rejection of a nomination, but a fundamental incapacity of the candidate to stand for election. The court also noted that English law, after the Ballot Act of 1872, follows a similar principle as explained in the case of Stowe v. Jolliffe, where the register equivalent to the electoral roll is regarded as conclusive except when a person is prohibited from voting by statute or common law.

The respondent contended that the phrase “non-compliance” used in subsection (2)(c) of section 100 should be understood narrowly, as merely indicating a failure to follow any rule or command, and therefore was not suitable to describe a simple lack of qualification prescribed by the Constitution. The Court considered this view to be overly restricted. It observed that when a person is constitutionally disqualified from being chosen as a member of a State Assembly, yet nevertheless is returned by the electorate, it is proper to say that the election was held in breach of the constitutional provisions and that such breach materially affected the result. The Court further noted that there is no substantive difference between the terms “non-compliance”, “non-observance” and “breach”. Consequently, the clause (c) of sub-section (2) should be interpreted as a residuary provision intended to cover any infraction of the Constitution or the Act that is not specifically listed elsewhere in the clause.

The Court held that where a person lacks the qualification required to be elected, the Election Tribunal must declare the election void. Section 98 of the Act authorises the Tribunal to make such an order. Although section 100 enumerates the grounds on which an election may be declared void, the Court found that a candidate who is constitutionally ineligible to be returned creates a situation of non-compliance with the Constitution, bringing the case within the ambit of subsection (2)(c) of section 100. Accordingly, the Court concluded that the appellant’s contention succeeded. The appeal was allowed in part, and the order of the Election Tribunal was modified so that only the election of respondent No. 2, Vasant Rao, was declared void, while the appellant’s election was left intact. No order as to costs was made, and the Court issued the appropriate order.