JUDGMENT - SUKUMARAN K., J.:—A nice and interesting question arises in this case out of the dust and fume of election process.

2. The election scene is of Ward No. 64 in the Municipal Council of Bhusawal. The last date for making the nomination was on 30-10-1991 and the scrutiny was to take place on 31-10-1991. Patil Bhila Nathu was one such candidate. On that date itself, the publication of the list of validly nominated candidates had to be made. The list included the names of the petitioner and Patil Bhila Nathu along with many others. Withdrawal time was permitted upto 11th November, 1991.

3. Patil Bhila Nathu unfortunately passed away on 29th October, 1991. The proposer of his name informed the respondent No. 2 Returning Officer about it on 2nd November, 1991. As the information of death was not instantaneously available the nomination of Nathu had been accepted and as noted earlier, he figured as one of the candidates.

4. The Returning Officer thereafter passed the impugned order, Exhibit B, on 8th November, 1991, countermanding the elections.

5. Counsel for the petitioner submits that such countermanding was not justified under Rule 23 of the Maharashtra Municipalities Election Rules of 1966, as, there was no death of a contesting candidate. According to Counsel, Nathu had died even before the scrutiny of his nomination. A contest points the entry of the contestant into the arena. Long before the threshold the person who desired a contest, collapsed and ceased to exist. Someone so clearly outside the arena cannot be called a contesting candidate—so ran the arguments. We shall presently consider them carefully, despite their attractiveness at first blush.

6. The Rule reads:

“23. Death of a candidate before poll.—If a contesting candidate dies and a report of his death is received by the Returning Officer before the commencement of the poll, the Returning Officer shall, upon being satisfied of the fact of the death of the candidate, countermand the poll in respect of the ward to the election of which the deceased was a candidate and report the fact to the Collector and all proceedings with reference to the election of such ward shall be commenced a new in all respects, as if for a new election:

Provided that—

(i) no further nomination shall be necessary in the case of a person who was a validly nominated candidate at the time of countermanding of the poll; and

(ii) no person who has given a notice of withdrawal of his candidature under Rule 17 before the countermanding of the poll, shall be ineligible for being nominated as a candidate for the election after such countermanding.”

7. The very heading of the Rule is “Death of a candidate before poll”. This Rule corresponds to section 52 of the Representation of Peoples Act, 1951. Death is, in this mundane world, a certainty. One may, with a tinge of philosophy, equate it with just an abandonment of apparel or change of clothes. The fact remains that it is a point of no return. When a candidate dies, he withdraws once and for all from this world of contest and contentious. However, the mere fact that he is dead, is not sufficient for attracting the applicability of the Rule.

8. The Rule does not mandate countermanding of a poll, the moment a candidate dies. It is not the fact of death that results in an automatic countermand of the election. Note the wording: 'if a candidate dies and a report of the death is received by the Returning Officer'. If no report reaches the Returning Officer, the poll can certainly go on. The election held in ignorance of the tragic event would not have any infirmity on that count in such a situation. If the report is received, but received later and after the election is already over, then also there would not be any countermand.

9. A look at the succeeding segment of the sentence warrants, yet another conditional factor to be satisfied before countermanding is resorted to. Even when a candidate dies, and the report of his death is received by the Returning

Click Here to Read the rest of this document