1966 Supreme(Raj) 203

Rajasthan High Court, Full Bench
Bhandari J., Chhangani & Beri, JJ.
Atma Singh - Appellant
Versus
State of Rajasthan - Respondents
D.B. Civil Writ No. 35 of 1964
Decided On : September 22, 1966

Headnote:(a) Municipalities Act, 1959, Sec. 22 — Order of Collector, Ganganagar, No. M/Elc. dated 26.10.1963— Order directing publication in Form A and placing of draft electoral rolls at certain places — Failure to place draft rolls at special places—Condition violative of order but whether election vitiated on account of such failure to depend on facts of each case.(b) Constitution of India, Art. 226 Jurisdiction to set aside election—Where disregard of provisions turns election to force High Court can set aside election though it will not interfere for every trivial disregard or where the Act provides for an election petition petition — Rajasthan Municipalities Act, 1959.

       It will neither be reasonable nor proper to hold that non-compliance of the provisions of the Act relating to pre-election matters can form the subject matter of investigation in an election petition. Such matters can hardly be an appropriate subject for investigation by an election tribunal. Thus, sec. 34 provides for questioning an election for errors and defects in the conduct of election committed by the returned candidate or by the Returning Officer. The election therefore cannot be set aside by an Election Tribunal for any mistake in the preparation of electoral roll. This statement of law is of course subject to the provisions of S. 31 (d)(iii) read with sec. 27 which provide that if the result of the election is materially affected by the improper reception, refusal or rejection of any vote or rejection of any vole which is void, the election may be set aside. Such matters may form the subject matter of investigation in an election petition.

       The process of election starts by issuing of a notification calling upon a constituency to elect a member or members. Before such a notification can be issued, a number of preliminary steps have to be taken under the law. The law has laid down the manner in which these things are to be done. There may arise cases in which the authorities have failed to perform their functions in accordance with law in doing these things. Sometimes the transgression of law may be inexcusable and of such a serious nature that a court may be persuaded to take the view that the bedrock to hold elections is missing. In such circumstances, a citizen may apply to this Court under Art. 226 of the Constitution for issuing of mandamus or any other appropriate Writ directing the State Government to perform these things in accordance with law and the High Court in an appropriate case may, in its discretion, issue such a writ or direction restraining the Government to hold election. Suppose nobody conies forward at that stage and the elections are held. Even then, a citizen may file a petition under Art. 226 of the Constitution not only for a declaration that the State Government has not acted in accordance with law in doing of the aforesaid things and that what has been done is null and void but also for a further declaration that the election that had taken place be also held null and void. The High Court may take into account the circumstance that the petitioner could have earlier before the elections for relief in this Court under Art. 226 of the Constitution and he has failed to do so but it may find that the infirmity in taking these proper steps is of such consequence that no elections could have taken place and it may in its discretion then quash the preliminary steps taken in these pre-election matters and may as a consequent also set aside the election. What the Court could do before the election, it can also do after the elections.

       Jurisdiction of the High Court in exercising the power under Art. 276 of the Constitution cannot be taken away by any provision made by the Legislature for ousting the jurisdiction of the civil court but when this Court is passing an order for setting aside an election for any infirmity in pre-election matters, it will no doubt keep in view that the Legislature has laid down certain conditions which must be satisfied before an election could be set aside, and those who come to this Court for seeking relief under Art. 226 of the Constitution should not be permitted to get such relief by evading that provision of law, except when on strictest scrutiny of the case, the Court finds that there has been such breaches of the provisions of law that the State or the authority concerned should not have proceeded at all to hold the election, or when the holding of an election was merely a farce. Except for such cases, generally speaking election of a person as a member of the Board should not be set aside for defects in pre-election matters. (Paras 3,5,13,15 & 19)