Gopikishan Agarwal vs District Judge, Bhandara and others

Wagle, J.—This is a petition under Article 227 of the Constitution in respect of an election held on May 30, 1962. The petition is made by the candidate who was elected at the election as a councilor from the Risama constituency of Amgaon block for the Zilla Parishad, Bhandara. After the results were declared on June 1, 1962, respondent No. 2 Chandrakumar filed an election petition u/s 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1986, before the District Judge, Bhandara. The grounds on which the election was sought to be set aside as against the petitioner were (i) that the petitioner had committed a corrupt practice during the election and (ii) that the petitioner was disqualified from standing as a candidate in view of the fact that he had an interest in the contract with the Janapada Sabha and had thus incurred a disqualification within the meaning of section 16(1)(i) of the Zilla Parishads Act.

The Election Tribunal (i.e. the District Judge, Bhandara) held that there was no evidence regarding the commission of corrupt practice by the petitioner, but the Tribunal held that the petitioner had an interest in the contracts which were executed by one Lakhanlal and another Hansraj with the Janapada Sabha, Gondia, and that these contracts subsisted on the date of the submission of the nomination paper by the petitioner. On the ground of this disqualification, the election of the petitioner was set aside.

In this petition the elected candidate whose election was set aside submitted that the Tribunal having held that the petitioner had not committed any corrupt practice as detailed in the Zilla Parishads Act, the election petition had necessarily to be dismissed and that an error was committed by the Tribunal by not noticing the fact that u/s 27 (5) of the Zilla Parishads Act, the only ground upon which the Tribunal could set aside the election was upon proof of commission of a corrupt practice by the elected councilor. Otherwise than this ground, there was no power in the Tribunal to set aside the election.

u/s 14 (2) of the Zilla Parishads Act, the State Government has been given the power to make rules for providing fur an appeal against the. decision of the Returning Officer accepting or rejecting the nomination paper and also further to provide for the decision in appeal being final and not capable of being challenged subsequently. In pursuance of this power to make the rules, the State Government has framed rules, the Maharashtra Zilla Parishads Election Rules, 1962. Sub-rule (1) of rule 20 of those rules provides for an appeal. Sub-rule (8) provides that the decision of the District Judge on appeal under this rule and, subject only to such decision the decision of the Returning Officer accepting or rejecting the nomination of a candidate shall be final and conclusive and shall not be called in question in any Court or before a Judge referred to in sub-section (2) of section 27. In view of these statutory provisions of the sections and the rules made thereunder, the Tribunal had acted without jurisdiction in proceeding to inquire into the alleged disqualification of the petitioner and thereafter in setting aside the election on that ground. The petitioner also challenged on merits the decision of the Tribunal but we are not concerned with those details for the disposal of this special civil application. The petitioner therefore prayed that since the Tribunal had no jurisdiction to set aside his election on the ground on which it has been set aside, we should issue a writ quashing the order passed by the Tribunal.

By his return, respondent No. 2, the voter who had filed the election petition, contended that no error was committed by the Election Tribunal in holding that the election should be set aside. It was further contended that such a point was not raised before the Tribunal and that it was not open to the petitioner to raise the same for the first time in this petition. In regard to the relevant rule, namely rule 20 (8), it was contended that since no right of appeal was given to the respondent who was merely a voter, the finality or the conclusiveness as laid down in the said rule would not operate against the respondent. A further contention was also raised that this rule was violative of Article 14 of the Constitution for it provides no remedy whatsoever to a voter although a remedy is provided for a candidate.

In paragraph 6 it was contended by respondent No. 2 that the petitioner was fully aware of the nature of the inquiry before the Tribunal regarding the disqualification u/s 16(1) (i) of the Act. He also led evidence and permitted evidence to go on record. No objection to the trial on any ground whatsoever was pleaded. The submission made therefore was that the petitioner had no locus standi to ask for any relief in this petition. It was lastly contended that the petition being devoid of substance should be dismissed and that the petitioner should not be permitted to re-agitate the questions of fact, nor should he be permitted to raise new questions not raised in the trial.

Mr. Masodkar for the respondent No. 2, the voter, who made the election petition, raised a preliminary objection that the point that the Tribunal had no jurisdiction to consider or set aside the election on the ground that the elected candidate was disqualified for being chosen a councilor within the meaning of section 16 not having been raised before the Tribunal, should not be permitted to be raised in this petition under Article 227 of the Constitution. Reliance was placed for this principle of law upon the decision of a Division Bench of this Court in G.M.T. Society v. Bombay State, AIR 1954 Born. 202 It was also pointed out that this decision that if the point of jurisdiction of the Tribunal or the lower forum is not raised before the lower Court, then it should not be allowed to be raised before this Court was also followed in three other cases decided after Gandhinagar Motor Transport Society Vs. State of Bombay, The first one was Appa Shivling v. Vithal Baba; 1959 N. L. J. 497 the second was Special Civil Applications Nos. 337 to 339 of 1959 decided on 26-2-1960; and the third was Special Civil Applications Nos. 77 to 81 of 1959 decided on 4-10-1960. Mr. Masodkar''s contention was that this principle which was enunciated as early as in 1954 by a Division Bench of this Court was followed up to 1900 and that therefore we should, relying upon the ratio of this case, hold that this particular point of jurisdiction not having been raised before the Tribunal, should not now be allowed to be taken so as to have the decision of the Tribunal quashed.

Mr. Phadke, who appeared for the petitioner, contended that the principle that if a question of jurisdiction is not taken before the lower forum then it should not be permitted to be taken before this Court acting under the Constitutional powers under Article 227 of the Constitution, was not of universal application. In this respect Mr. Phadke referred to several cases of this Court and other High Courts in India and also referred to certain English cases and text books. The argument of Mr. Phadke was that the question of jurisdiction when raised has to be considered in each case separately. The question of jurisdiction could be raised in several ways. The question would be that the Court had no jurisdiction at all and such a fact would be apparent on the face of the record. The question of jurisdiction when raised may require proof of certain other facts upon whose proof alone the decision could be arrived at that the Court had no jurisdiction. Mr. Phadke pointed out that a distinction was made by the decided cases in respect of these two types of objections to jurisdiction being taken before the Court. He further contended that if the question of jurisdiction was apparent on the face of the record, then there was a unanimity of decisions that the High Courts exercising their Constitutional powers should not only consider that point but must consider the point and set aside the decision of the Tribunal which had no jurisdiction to decide the dispute. Mr. Phadke also pointed out that he would presently refer us to cases of this Court where a view different from the one enunciated in G. M. T. Society v. Bombay State AIR 1954 Born. 202 was taken.

The lack of jurisdiction of a forum or a Tribunal was considered in several aspects by the various High Courts, but one thing was certain, namely, that whenever the Courts came to the conclusion that there was an initial lack of jurisdiction or that there was an inherent lack of jurisdiction or the lack of jurisdiction was patent or the lack of jurisdiction was total, no Court had hesitated to interfere and set aside the orders of the lower forums which were passed without jurisdiction. In Madhava Rao v. Surya Rao AIR 1954 Mad. 103 which was a Full Bench decision, a preliminary objection such as the one now raised before us was overruled on the ground that there was a total lack of jurisdiction in the forum which had decided the matter. In paragraph 6 of the judgment, the learned Judges held that it was not open to a person to confer jurisdiction by consent and no amount of acquiescence would confer jurisdiction upon a tribunal or a Court where such jurisdiction did not exist. In Badridass Kanhaiyalal and Another Vs. Appellate Tribunal of State Transport Authority, Rajasthan and Others, a similar view was taken by a Division Bench of the Rajasthan High Court that waiver or consent of a party cannot confer jurisdiction upon the authority in such a case, and in that view of the matter the learned Judges rejected the preliminary objection in that case. That was also a case wherein the learned Judges came to the conclusion that the question of jurisdiction went to the root of the matter and that the order passed was a nullity. A Full Bench of the Andhra Pradesh High Court in Sheik Hussain and Sons Vs. State of Andhra Pradesh and Others, took a similar view that when a tribunal has not been properly constituted according to law, the question of jurisdiction goes to the root of the matter and it is not a mere irregularity in the conduct of the proceedings. Want of jurisdiction in those cases arises from the absence of an essential preliminary with regard to the composition of the tribunal and the tribunal being without jurisdiction the proceedings were rendered void. A Full Bench of the Punjab High Court in Davinder Singh v Deputy Secretary cam Settlement Commissioner AIR 1964 P&H. 291 also took a similar view that the failure of the petitioner to raise such an objection before the lower forum did not estop him from raising the same contention in a writ petition in the High Court. In this case, a review was taken by the learned Judges of the decisions of the various High Courts and the opinion expressed by the Full Bench was as stated above. If there was inherent lack of jurisdiction in a tribunal, then the decision was a nullity and the point that the tribunal had no jurisdiction could be taken before the High Court although the same was not taken before the lower forum.

Mr. Phadke then referred to the decisions of this Court where a different view was taken than the one in Gandhinagar Motor Transport Society Vs. State of Bombay, . The first case referred to was Arvind N. Mafatlal Vs. Income Tax Officer, North Satara, . That was a writ petition in respect of an income tax matter. The facts relevant for this point are to be found in paragraph 12 of the judgment, as follows :

The first proviso to S. 35, sub-s. (1) of the income tax Act provides that no rectification shall be made having the effect of enhancing an assessment, unless the income tax Officer has given notice to the assessee of his intention to do so and has allowed the assessee a reasonable opportunity of being hoard. In the present case the notice not being in relation to the error committed, but in respect of what was not an error at all, the income tax Officer had no jurisdiction to rectify the order of assessment.

Mr. Joshi, who appeared for the income tax Officer, had contended that the ground which was pleaded that the officer had no jurisdiction was never set up before the income tax Officer and that the same was not even clearly mentioned in the petition to the Court. Shah J., as he then was, said:

...If in fact there was no error committed which the Income-tux Officer sought to rectify, we will not be justified in refusing to quash the order merely on the plea that the income tax Officer was not asked to stay his hands on the ground mentioned before us.

This case definitely held that even if the point of jurisdiction which went to the root of the matter was not taken before the lower forum, not only could the same be entertained by this Court but that it was entertained and relief was given.

In R.S. Rekhchand v. Mohammad Kasam AIR 1957 N. L. J. 488 a similar question under Article 226 of the Constitution in regard to the Payment of Wages Act had arisen before a Division Bench of this Court. A similar preliminary objection regarding jurisdiction was taken and it was held that a writ of prohibition may be applied for as soon as the absolute absence of jurisdiction is apparent on the face of the proceedings of the inferior Court without the question of jurisdiction being raised by plea or otherwise in that Court. The learned Judges further held that a writ of prohibition could be applied for even before the Court whose jurisdiction is challenged has had an opportunity to decide the question of jurisdiction. This Division Bench therefore also held that even if the question of jurisdiction was not raised before the lower forum the same could be taken before this Court and the necessary relief granted to the petitioner who came to this Court.

Mr. Phadke then referred to another decision of this Court reported in S. C. Prashar v. Vasantsen Dwarkadas AIR 1950 Bom. 530 Mr. Phadke laid emphasis on this case because Chagla C.J. who delivered the judgment in this case had also delivered the judgment in Gandhinagar Motor Transport Society Vs. State of Bombay, The facts of this case were that a notice u/s 34 of the income tax Act was given when the period during which such a notice could be given had elapsed, before the coming into operation of the amended legislation in this respect. The question was whether the proceedings which were started on a notice which was barred by time could be quashed although the point was not taken before the Officer. It was observed that a patent want of jurisdiction entitles the petitioner to obtain immediate relief from the High Court even though he could raise the plea of want of jurisdiction in a higher tribunal and even though he may have acquiesced in the want of jurisdiction, but the want of jurisdiction must be a patent one. While considering this point, the learned Judges observed in relation to another phase of this argument as follows:

Before we go further with this case it may be pointed out that there is a line of cases where it has been held that if a party does not object to jurisdiction at the earliest stage and sits on the fence and takes his chance which way the tribunal will decide, it is not open to him then to come to the Court and challenge the jurisdiction by asking for a writ under Article 226 because he lost before that tribunal.

But as this judgment points out, those would be cases where the want of jurisdiction would not be apparent, where it may be that some fact would have to be proved by the party or some action to be taken by the party, and the Court would take into consideration the acquiescence of the party in submitting to the jurisdiction of the tribunal.

Having considered this particular phase of the preliminary objection, the learned Judges in paragraph 16 observed as follows:

Therefore, these authorities clearly establish that a patent want of jurisdiction entitles the petitioner to obtain immediate relief from the High Court, even though he could raise the plea of want of jurisdiction in a higher tribunal and even though, as the English cases point out, he may have acquiesced in the want of jurisdiction.

Referring to the other case upon which reliance was placed by Mr. Masodkar, Mr. Phadke pointed out that in the three cases Appa Shivling v. Vithal Baba,1959 N. L. J. 497 Special Civil Applications Nos. 337 to 339 of 1959 and Special Civil Applications Nos. 77 to 81 of 1959,.. .the learned Judges had merely followed the decision in Gandhinagar Motor Transport Society Vs. State of Bombay, and had not independently considered the various aspects of jurisdiction and how far a party could be prevented in those various aspects. Mr. Phadke therefore contended that the entire argument of Mr. Masodkar was based upon the decision in Gandhinagar Motor Transport Society Vs. State of Bombay, . He urged that the very point which was before the learned Chief Justice and Dixit J. in that case again came up for debate before Chagla C. J. and Tendolkar J. in S.C. Prashar and Another Vs. Vasantsen Dwarkadas and Others, . In the later decision a review was taken of the law regarding such preliminary objections by taking into consideration not merely the Indian decisions but also the English decisions and Chagla C. J. came to the conclusion which we have already pointed out, that a patent want of jurisdiction entitles a party to obtain immediate relief from the High Court, even though ho could raise the plea of want of jurisdiction in a higher tribunal and even though he may have acquiesced in the want of jurisdiction.

Mr. Phadke also referred to two decisions of the Supreme Court reported in A.S.T. Arunachalam Pillai Vs. Southern Roadways (Private) Ltd., and Pioneer Traders and Others Vs. Chief Controller of Imports and Exports Pondicherry, In A.S.T. Arunachalam Pillai Vs. Southern Roadways (Private) Ltd., the facts were that after the petition under the Motor Vehicles Act challenging certain orders passed under the Motor Vehicles Act was filed in the High Court, a decision was given by the High Court that the lower forum had no jurisdiction to decide that point. An application was made to amend the petition so as to enable the petitioner to take this point which affected the jurisdiction of the forum entitling the petitioner to an order in his favour. The Division Bench of the High Court allowed this amendment. The party aggrieved went before the Supreme Court. In paragraph 5 of their judgment, their Lordships of the Supreme Court observed as follows:

In our opinion, although the respondent had submitted the jurisdiction of the Regional Transport Officer and had not in his petition under Art 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of permit. It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the law was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Art. 226 the point had not been taken... Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under S. 64A of the Act.

In the second case Pioneer Traders and Others Vs. Chief Controller of Imports and Exports Pondicherry, the question in debate was whether the Customs Officer who was governed by different provisions before the coming into operation of the Sea Customs Act had jurisdiction to order confiscation. The order of the Customs Authority imposing confiscation and penalties u/s 167 (8) of the Sea Customs Act was challenged before the Supreme Court, on the ground that the said officer had no authority to pass that order when the said order was passed. After having considered the various provisions of the Sea Customs Act and other laws on the subject, their Lordships came to the conclusion that the officer had no jurisdiction to pass the said order. The observations of their Lordships about the point not having been taken and the consequence thereof are to be found in paragraph 31 of the judgment as follows:

Where an authority whether judicial or qwasi-judicial has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction.

The two decisions of the Supreme Court and the decisions of this Court in S.C. Prashar and Another Vs. Vasantsen Dwarkadas and Others, Arvind N. Mafatlal Vs. Income Tax Officer, North Satara, and R.S. Rekhchand v. Mohammad 1957 N.L.J. 488 clearly lay down that a party cannot be prevented from taking the question of jurisdiction for the first time in this Court although the party could have taken that point before the lower Court, if the point goes to the root of the jurisdiction and satisfies the Court that the authority which had passed the order had no jurisdiction at all to pass the same. Similar are the points of view expressed by the High Courts of Madras, Rajasthan, Andhra Pradesh and Punjab to whose decisions we have already referred.

Having considered these decisions and also Gandhinagar Motor Transport Society Vs. State of Bombay, upon which reliance was placed by Mr. Masodkar, Mr. Phadke argued that the question of jurisdiction which could be raised before the Courts would be in two different forms. In one phase of it, the jurisdictional point or the lack of jurisdiction would be apparent on the face of it. This lack of jurisdiction may be total in regard to the subject-matter or the points, or it may even be partial. If this lack of jurisdiction was total or patent or inherent, then Mr. Phadke, relying upon the cases to which we have already referred, contended that a party could not be prevented from taking the point of lack of jurisdiction in this Court, although the same point was not raised before the lower forum There was a consistency of the opinion expressed by the several High Courts as well as the English decisions on this point. In this connection, Mr. Phadke also referred to the statement of the law in Halsbury''s Laws of England, third edition, volume 11, Simonds edition, at page 140, paragraph 265, and also at page 118, paragraph 220. The statement of the law in paragraph 220 at page 118 is as follows:

Where the objection to the jurisdiction of an inferior Court appears on the face of the proceedings, prohibition lies at any time, even after judgment or sentence in spite of the laches or acquiescence of the applicant;...

In paragraph 265 at page 140 the statement of the law is as follows:

...Although the order is not of course it will though discretionary nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, where it is shown that the court below has acted without jurisdiction or in excess of jurisdiction....

One of the points for consideration was whether consent, either express or implied, of a party could confer jurisdiction upon a Court or a forum. The decision of their Lordships of the Supreme Court in The United Commercial Bank Ltd. Vs. Their Workmen, is clear and precise on the point and the law laid down is that consent cannot confer jurisdiction upon a forum which has no jurisdiction to determine a point. Similar is the decision in J.K. Chaudhuri Vs. R.K. Datta Gupta and Others, In the latter decision, the point for debate before their Lordships of the Supreme Court was whether acting upon certain rules framed by the University in relation to the teachers action could be taken by the governing body against the principal of an institution. Having held that the word "teacher" would not include the principal of an institution, their Lordships held that the governing body had no jurisdiction to pass an order against the principal. It was also held that even if this question of jurisdiction was not raised earlier, it could still be raised at a later stage.

The decisions of the Supreme Court, those of the English Courts to be found in the expression of the law in Halsbury''s Laws of England, the other cases on which reliance was placed viz., the decisions of English Court and also the decisions of this Court as well as the High Courts of Madras, Rajasthan, Andhra Pradesh and Punjab are consistent on one point. If there is no jurisdiction in an authority, then a party could not be prevented from taking that point before this Court, even if the same party had an opportunity to take that point before the lower forum and had not done so.

The answer given by Mr. Phadke to the preliminary objection is that the provisions of law, sections 14 (2) and 27 of the Zilla Parishads Act and the rules made by the Government under the express provisions of section 14 (2), make it abundantly clear that the jurisdiction of the Election Tribunal u/s 27 docs not extend to deciding the question of election on disqualifications. The question of disqualification was by the rules made by the Government to be considered as finally decided by the Returning Officer, or if his decision was taken in appeal before the District Judge, by the decision of the District Judge. Section 27 of the Zilla Parishads Act, therefore, considered alongwith the provisions of section 14, and the rules made thereunder clearly laid down that the Election Tribunal did not have the jurisdiction to set aside an election on the ground that the candidate was under a disqualification mentioned in section 16 of the Act. Mr. Phadke''s contention was that this point that the Election Tribunal constituted u/s 27 of the Zilla Parishads Act had no jurisdiction to set aside the election upon the disqualification of an elected candidate was decided by a Division Bench of this Court in Venkatrao Vithalrao v. Vithal Sambhaji. 1963 Mh. L. J. 834 The observations of the learned Judges after having considered the various phases of the argument are as follows:

It is clear that the right to sot aside the election cannot be claimed apart from the provisions of the statute, and if the statute does not give it, it cannot be imported from the common law. The fact, therefore, that a voter other than those mentioned in sub-rule (2) of rule 19 has no right to challenge the validity of the nomination paper would be no ground for holding that he has a right to raise that challenge in an election petition. (p. 840).

At page 841 in paragraph 5 the opinion of the learned Judges is stated as follows:

For the reasons stated above, in our opinion, the Tribunal was not justified in holding that it was open to respondent No, 1 to challenge the election on the ground that the nomination paper of the petitioner was improperly accepted, he being at the time disqualified for being chosen to fill the seat by or under the Act.

Mr. Phadke brought to our notice another decision of this Court in which this very point along with another point had come for consideration in Special Civil Application No. 449 of 1962 decided on 10th September 1964. To this decision, one of us, Desai J., was a party. In addition to the reconsideration of the earlier decision, one more point was taken before the Division Bench, namely, that rule 20 of the Maharashtra Zilla Parishads Election Rules was itself ultra vires of the Act. The learned Chief Justice, delivering the judgment repelled this contention that the rule was ultra vires and followed the decision in Venkatrao Vithalrao v. Vithal Sambhaji 1963 Mh. L. J. 834. The particular point, therefore, namely, whether an Election Tribunal constituted u/s 27 of the Zilla Parishads Act had jurisdiction to set aside the election upon the disqualification of an elected candidate, has been decided by two Division Benches of this Court and those decisions are consistent in the point of view that the question of disqualification is beyond the competence of the said Tribunal u/s 27 of the Act.

Mr. Phadke o therefore contended that this question of jurisdiction being apparent on the face of it and the said lack of jurisdiction being patent, this Court should not prevent his client from raising this question in this form seeking a Constitutional relief. It appears to us that the point of jurisdiction which is raised by Mr. Phadke does not depend upon a consideration of any other question to be raised by a party. It would therefore fall in line with the cases which have consistently held that if the lack of jurisdiction is patent, total or apparent, then the High Court should take that fact into consideration while considering an order passed by such authority which had no jurisdiction. In view of this opinion, we hold that there is no substance in the preliminary objection taken by Mr. Masodkar.

Mr. Masodkar''s further argument on the petition was that the decision in Venkatrao Vithalrao v. Vithal Sambhaji 1963 Mh. L. J. 834 was given on facts which are different from the facts which obtain in the present case. Referring to that case, Mr. Masodkar pointed out that the main point that was in dispute before the Court was whether the decision of the Tribunal that the acceptance of the nomination was not proper was without jurisdiction. In other words, the decision in Venkatrao Vithalrao''s case 1963 Mh. L. J. 834 was given on the point whether at the date of the nomination the elected candidate was disqualified. Mr. Masodkar then pointed out that in the present case, the point that he had raised was whether the elected candidate was disqualified at the date of the election i.e. at the time the poll was taken. The time-lag between these two dates in the instant case is about a month. The scrutiny of the nomination paper was held on May 1, 1962, while the election was held on May 30, 1960. Mr. Masodkar''s contention therefore was that the earlier decision having decided that the disqualification at the date on which the nomination paper was filed was not capable of being considered by the Election Tribunal does not debar him from contending that the Election Tribunal has jurisdiction to decide whether the elected candidate was disqualified at the date of election. Mr. Phadke pointed out that this contention is not available to Mr. Masodkar because the whole proceedings before the Election Tribunal were on the basis that the elected candidate was disqualified on May 1, 1962, and the question whether he was also disqualified on May 30, 1962 was not under debate before the Election Tribunal. The point therefore does not survive.

In any case, we do not see any distinction between the two cases mentioned by Mr. Masodkar unless a specific point is taken by the party that at the date of the nomination the person might have been not disqualified but that between the date of the nomination and the date of election, some disqualification might have been incurred by him. If and when such a point is taken, the point may be considered. However, since this point does not arise in this case, we do not propose to consider it.

In view of the two earlier decisions of this Court holding that under the provisions of section 27 of the Zilla Parishads Act, the Election Tribunal has no authority to set aside an election on the ground that the candidate was disqualified, we must allow this petition. The petition is allowed, the order passed by the Election Tribunal is set aside and the election of the petitioner is confirmed. The rule is made absolute. No order as to costs.