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1958 Supreme(Raj) 105
Rajasthan High Court
Wanchoo C.J. & Bhandari, J.
Hoti Lal - Appellant
Versus
Shri Raj Bahadur - Respondents
Civil Miscellaneous First Appeal No. 5 of 1958
Decided On : April 03, 1958
R.C. Sharma, for Appellant; K.L. Mishra, Advocate General U.P; C.L. Agarwal, S.S. Shukla, V.P. Tyagi, A.S. Chaturvedi and B.L. Baid for Respondent
Headnote:(a) Representation of the People Act, Sec, 55-A—Ten days prior to the date.....fixed for the Poll.(b) Constitution of India. Art.102 (1)—Office of profit under Government—Oaths Commissioner is office of profit under Government.(c) Constitution of India, Art.102 (1)—Defect in appointment to office.(d) Representation of the People Act, Sec. 55-A—-Irregularity in retirement—Such irregularity inconsei—uencial unless affecting result of election.
Sub-sec. (2) does not mention ten clear days, nor does it say that the notice of retirement shall be given at least so many days before, or not less than so many days before. The provision is that the notice shall be given any day not later than 10 days prior to the first date of election. In order to arrive at ten days prior to the first date of election, all that one has to do is to subtract ten from the date of election. (Para 7)
The office of the oath commissioner brings a profit to the holder thereof and it must be, therefore, held to be an office of profit. The fact that there is no fixed pay for the office is immaterial. So long as profit arises by fees or by commission to the holder of an office, the office will be an office of profit. The words "Government of India or the Government of any State" must be interpreted in their widest import in Art. 102 and would thus include judicial office of office under the Judicial Department as office under the Government of India or the Government of a State. Even an office held under the legislature, as for example, the Secretary to a legislature or clerks working in the office of a legislature would also be holding office of profit under the Government of India or the Government of a State. (Paras 13 and 14)
The disqualification arises from the fact of holding an office of profit under the Government of India or the Government of a State even if there is some defect, Legal or otherwise, in the order making the appointment. (Para 16)
Where a candidates nomination paper is rejected, he is denied the opportunity of standing for election and is also denied the opportunity of canvassing for votes. But where a candidate retires of his own free will, though it may not be within time, he is not denied an opportunity of standing for election and canvassing for the votes by any action of the Returning Officer. He by giving notice of retirement, even though it be beyond time, denies the opportunity to himself. Such a case cannot be equated to the case of the wrong rejection of a nomination paper and in such a case it will have to be proved specifically that the result of the election was materially affected. (Para 17)
2. The appellant is an elector in the constituency. He did not stand for election, but he filed the election petition against the successful candidate on two main grounds:—
(1) That the nomination paper of a candidate Shri Mukat was wrongly rejected by the Returning Officer.
(2) The Returning Officer had committed an illegality in treating Shri Hansraj, who was one of the nominated candidates, as properly retired under sec. 55-A of the Act.
3. It was urged that on account of these two defects the result of the election had been materially affected and the election of Shri Raj Bahadur was void.
4. The application was opposed by Shri Raj Bahadur. His case was that the nomination paper of Shri Mukat was rightly rejected and that Shri Hansraj was property treated as retired candidate under sec. 55-A of the Act. It was also contended that the applicant had failed to prove that the result of the election had been materially affected by treating Shri Hansraj as a retired candidate. Besides these points, it was also urged on behalf of Shri Raj Bahadur that sec. 117 of the Act was not properly complied with so far as the deposit of security was concerned and the election petition should have been thrown out on that ground. Thus, these four points require decision in this appeal.
5. We shall first take the point regarding the deposit of security. This matter has been considered at length by the Tribunal. We do not think it necessary to repeat all that the learned Tribunal has said. It is enough to say that the deposit of security of Rs. 1000/- was actually made on the 1st of May, 1957 and the receipt granted by the Bank of Jaipur on behalf of the Treasury was filed along with the election petition. The receipt was in favour of the Secretary to the Election Commission, New Delhi. Thus sec. 117 was, in our opinion, (substantially complied with and we agree with the learned Tribunal that the arguments which were urged before it to show that this deposit was not in accordance with sec. 117 were mere technicalities which did not touch the substantial question. The election petition, therefore, could not be dismissed on the ground that sec. 117 had not been complied with.
6. The next question to which we address ourselves is with respect to Shri Hansraj. The facts in this connection are briefly there. Shri Hansraj stood for election and his nomination paper was accepted. The date of the election was 25th of February 1957. On the 15th of February 1957, Shri Hansraj gave a notice as required under sec. 55-A that he was retiring from the contest. Therefore the Returning Officer did not place any ballot box for him at the actual election on the 25th of February 1957. Now the contention of the appellant in this connection is that Shri Hansraj did not retire in time as required by sub-sec. (2) and, therefore, his ballot box should have been placed for the voters to cast their votes when the actual election took place on the 25th of February. Sub-sec. (2) of sec. 55A; with which we are concerned here, is as follows: —
"(2) A contesting Candidate may retire from the contest by a notice in the prescribed form which shall be delivered to the returning officer between the hours of eleven Oclock in the forenoon and three Oclock in the afternoon of any day not later than ten days prior to the date of the first of the dates fixed for the poll under clause (d) of sec. 30 either by such candidate in person or by an agent authorised in this behalf in writing by such candidate."
7. The language used in this sub-section is rather inelegant, for it lays down that the contesting candidate may retire from the contest between certain hours of any
