A breach of Section 37 of the Representation of the People Act, 1951, by the candidate, whose notice of withdrawal was irregularly filed, or by the Returning Officer who accepted such an irregular notice, does not necessarily result in a declaration of the election as a whole void.

( 1 ) THIS appeal has been filed by Her Highness the Maharani Vijaya Raje Scindia against an order passed by the Election Tribunal, in Election Petition No. 310 of 1957 decided on 30th November 1957, by which her election to the Guna constituency in the recent parliamentary election has been declared void. The respondent in the appeal was the proposer of one Shri Brij Narain who was also a candidate at the election.

( 2 ) THE facts of the case are as follows: As many as ten candidates had filed their nomination papers for the said election. Seven of them filed the notices of withdrawal of their candidature before the appointed date, and no controversy in respect of their withdrawal exists for determination. Of the remaining candidates one other candidate, by name Shri Brij Narain, sent a notice of withdrawal under section 37 of the Representation of the People Act (hereinafter the Act) through one Ram Swarup Verma on 3rd February 1957. The notice of withdrawal was accepted by the Returning Officer who caused a list of candidates who had withdrawn from the contest to be exhibited and also sent notices to the candidates concerned. At the time of the election, therefore, there remained only two contesting candidates, the appellant and Shri V. G. Deshpande. The appellant received 1,18,454 votes as against 58, 550 votes of Shri V. G. Deshpande, 123 votes being declared forfeited.

( 3 ) THE election petition out of which the present appeal arises was filed by one motilal son of Jugal Kishore, a voter and the proposer in one of the nomination forms of Shri Brij, Narain. His contention was that Shri Brij Narain had in fact not withdrawn from the contest and that the notice of withdrawal was wrongly accepted by the Returning. Officer inasmuch as it was not presented in accordance with the provisions of Section 37 of the Act. In the case which was tried by the tribunal, practically no evidence was led. The only witness examined was the returning Officer, Shri K. . M. Ranade. The Tribunal on these facts came to the conclusion, that the notice of withdrawal filed by Shri Brij Narain through Shri Ram swarup Verma was ineffective in law, and applying the analogy of Section 100 (1) (c) of the Act declared the election void. In the present appeal the only point for determination is whether the decision of the Tribunal declaring the election to be void for this reason is correct.

( 4 ) IT may be pointed out at the very outset that, though there were allegations that Shri. Brij Narain had in fact not withdrawn from the contest no effort was made to establish this. It was pleaded in the petition by Motilal that the letter was meant for Shri V. G. Deshpande, who as Secretary of the Hindu Maha Sabha was to determine whether Shri Brij Narain should stand for the Shivpuri or the Guna constituency, and that the letter instead of being delivered to Shri V. G. Deshpande was wrongly delivered to the Returning Officer. It was also contended that Shri Brij Narain. would have preferred to stand for the guna constituency but for this unauthorised notice of withdrawal filed on his behalf. It may also be pointed out that Shri Brij Narain was elected from the shivpuri constituency, and that Shri V. G. Deshpande withdrew his candidature from the Shivpuri constituency, where he had also filed a nomination paper to contest the election.

( 5 ) IT is contended by Shri Chitale that the challenge to the election of the present appellant is based upon a technical plea that the notice of withdrawal was not filed in accordance with the strict terms of Section 37 of the Act. He contends that the 'election agent' mentioned in Section 37 is not the 'election agent' described in section 40 who is appointed 'at the election'. He refers to the distinction made in the Act between the phrases 'for election', and 'at an election' used in its various parts. He draws our attention to three rulings in which the matter has been discussed He relies upon the dic