Harden Singh vs State

Nevaskar, J.—These are eight petitions under Art. 226 of the Constitution for the issue of a writ of certiorari for quashing the orders of acceptance of nomination papers of the opponents mentioned in each case and for a direction to the Election Officer Dewas to reject their nomination forms.

The petition is admitted by Dixit, J. who passed an interim order restraining the opponents from proceeding with the Municipal election in different Wards as mentioned in the order on each of the petitions. A notice was taken of this interim order and the matter has been placed before me for consideration of the question as to whether the interim order of temporary injunction ought to be confirmed or set aside.

Mr. Khan for the petitioner relied upon the decision of the Madhya Bharat High Court in Purshottamdas vs. Collector Gird, 1955 M.B.L. J. 848 , in support of the contention that there is a good prima facie case in favour of the petitioner. It is contended by Mr. Khan in that case that the High Court of Madhya Bharat had to deal with the question of construction to be placed upon the very Rule No- 26 of the Madhya Bharat Municipal Election Rules, 1954. He further contended that unless this Court intervenes and orders the stay of election proceedings which are being held contrary to the mandatory provisions contained in the aforesaid Rule No. 26, undue harassment will ensue to the petitioners in each of these cases. He further relied upon the decision in Provat Chandra Sircar Vs. R.C. Sen, Administrator of the Budge Budge Municipality and Others, in support of the contention that where the public officers concerned seek to hold an election contrary to law, the High Court ought to issue a writ in order to stop the same. He also referred to Jalayya vs. Venkateswara Rao AIR 1955 And 17, in support of his contention that where an application for the issue of a writ of certiorari is admitted by the High Court against the order of an Election Officer the proper order to pass is to preserve status quo ante.

On the other hand Mr. Chitale for the other side contended that the order of injunction ought not to be confirmed. He referred to the decision in Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, , The State of Orissa Vs. Madan Gopal Rungta, and Bahadurlal vs, Collector Morena 1955 M. B. L. J. 1622 and Prahlad Pandey is Collector Bhind 1955 M. B. L. J. 1567.

The exact controversy which arises in this case is whether the acceptance of the nomination forms of the opponent candidates which were not signed by the respective opponents in compliance with Rule No. 26 at the time of their presentation is contrary to law and vitiates such acceptance.

On behalf of the petitioner it is said that the nomination forms were not so signed at the time of presentation and therefore their acceptance was illegal. On behalf of the opponents it is asserted that although the signatures were not made on the nomination forms themselves they were so made on a different piece of paper by the persons presenting the nomination forms. The failure to put the signature on the nomination forms was due to a direction being given by the officer concerned not to do so. Affidavits are filed both on behalf of the petitioner and the opponents relating to this controversy.

This controvertial matter will of course be examined at the time of final arguments. In Madhya Bharat Law Journal 1955 HCR 848, Dixit who deliverd the judgment of the Division Bench observed as follows: -

If the nomination paper is not signed by the person delivering it in the presence of the Election Officer and at the time of the presentation, then there can be no valid presentation of the nomination paper. The signing of the nomination paper in the manner indicated above being one of the acts of presentation, it cannot be maintained that the neglect of the requirement is a mere technical defect which can be cured afterwards.

From these observations it appears prime-facie that the signing of the nomination paper at the time of presentation of that paper to the Election Officer is a requirement which under the circumstances ought to be considered to be mandatory. To what extent these observations are to be applied to the circumstances of the present case will be considered at the time of final arguments, but there is no doubt that there is a prima-facie case in favour of the petitioners.

Mr. Chitale however contended that even assuming that there is some prima facie ground for holding that an acceptance of nomination paper involves an illegality yet there is no ground for staying the election proceedings. He contended that the candidates and those who stand for them have prepared themselves for the election and the election tempo has attained a certain pitch. It would be improper at the last moment to stop the election proceedings resulting in frustration both to the candidates as well as to the electorates. According to him the petitioners are not any way to lose in case the injunction is not granted. All that will happen is that the election will go on. The petitioners have already prepared themselves for contesting the election and if they are required to contest the election it cannot be said that there is undue harassment.

Mr. Khan on the other hand submits that once there is ground to hold that the proposed election involves an illegality, it is the duty of the Court to maintain status quo and not involve the electorate and the candidates in unnecessary harassment. All that may result in confirming the order of injunction already granted is that the election will have to take place a few days later.

In my opinion since the petition for writ has been admitted by this Court and it appears from the observations in Madhya Bharat Law Journal 1955 HCR 848 , that there are grounds to hold that the acceptance of the nomination papers prima facie involves illegality particularly when the learned Judges of the Madhya Bharat High Court had to deal with the very same Rule which is under consideration, the interim order ought to be confirmed. The observations of the Calcutta High Court in Provat Chandra Sircar Vs. R.C. Sen, Administrator of the Budge Budge Municipality and Others, and those of the Andhra High Court in A. I. R. 1955 And 17 justifies such a course. Mr. Chitale''s contention that a temporary stay may result in frustration has some force but in matters of this kind the question which ought to be considered is as to whether the election proceedings which prima facie appear to be not in order ought to be allowed to go on. The reason seems to indicate that it is more in the fitness of things that they should be held up temporarily than allowed to proceed.

The interim order of injunction issued by Dixit, J. dated 18-4-1957 in each of these cases is therefore confirmed.

Let the case be fixed for final hearing on Thursday the 25th April 1957 as agreed to by the counsel on both sides.