SHIV DAYAL J.

(1.) This is a petition under Article 226 of the Constitution.

(2.) The Tahsildar, Kurwai, (respondent No. 1), was appointed Supervising Officer for the conduct of elections to the Kurwai Municipality. The last date for filing nomination papers was the 1st July 1969; the date of scrutiny was the 7th July and the date for polling was fixed as 7th August 1969.

(3.) Petitioners Nos. 1 to 6 were candidates from wards Nos. 1 to 6 respectively. On the date of scrutiny, their nomination papers were rejected by the Supervising Officer, and their appeal to the Sub-Divisional Officer was also dismissed, on the ground that the name of the municipality was not entered at the top of the printed nomination forms which they had filed. It is not disputed before us that that was the only defect.

(4.) As a result of the rejection of the nomination papers of petitioners Nos. 1, 3, 4, 5 and 6 the (respondents Nos. 4, 6, 7, 8 and 9 were declared elected unopposed from wards Nos. 1, 3, 4, 5 and 6 respectively on July 7, 1969. This is not in dispute. It is also not in dispute that as a result of the rejection of the nomination paper of petitioner No. 2 and the withdrawal of respondent No. 10, who was described by the petitioners as a dummy candidate from ward No. 2, respondent No. 5 was also declared elected unopposed on July 16, 1969. In short, the respondents Nos. 4 to 9 being declared elected as unopposed, the polling of August 7, 1969, became unnecessary.

(5.) The petitioners contention is that the rejection of their nomination papers is in utter violation of the law and that the Supervising Officer was in league with respondents Nos. 4 to 10. It is contended that now a meeting of the councillors so elected will be called for the purpose of selecting councillors as required by section 19 of the M. P. Municipalities Act, 1961 (hereinafter called the Act). The elected councillors and the selected councillors will then elect the President and Vice-Presidents under section 43 of the Act. The petitioners would be deprived of their valuable right to participate in the selection of candidates under section 19 (b) and the right to contest the Presidentship and Vice-Presidentship under section 43 of the Act.

(6.) The Supervising Officer and the Chief Municipal Officer of the Kurwai Municipality were served. They acknowledged receipt of notice of this petition but did not enter appearance before us to oppose the petition. A return was filed on behalf of respondents Nos. 4 to 9. Shri B. C. Verma appeared for them and argued the case before us. Shri Munshi, learned Government Advocate also addressed us.

(7.) The petitioners produced before us an authorised publication. It is entitled as "The Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962, as published under Notification No. 100-U /XVIII, dated the 25th July 1962, and incorporating all amendments issued from time to time," On the title page is also printed "Bhopal, Government Central Press, 1968". On the first page, where the rules begin, at the top is again repeated the same title (as we have reproduced above from the title page) including the words "and incorporating all amendments issued from time to time". At page 25 of this booklet, there is "form IV [clause (i) of sub-rule (1) of rule 13] Nomination Paper." This form of nomination paper does not contain any column for entering the name of the municipality for the election to which the nomination paper is meant. The columns are:-

"1. Name of the Ward for which the candidate is nominated. 2. Name of candidate. 3. Fathers /Husbands name. 4. Age. 5. Address. 6. Occupation. 7.Actual caste in case of candidate belonging to Scheduled Castes or Scheduled Tribes. 8.Number of the candidate in the electoral roll of the ward in which he is registered as an elector. 9.Name of the proposer. 10.Number of the proposer in the electoral roll of the ward. 11.Signature of the proposer. 12.Name of the seconder. 13. Number of the seconder in the electoral roll of the ward. 14. Signature of the seconder."

This is followed by a declaration of the candidate. Then certain entries are to be made by the Supervising Officer, namely, serial No. of the nomination; certificate of delivery, showing the date, time and place of the delivery of the nomination paper to him, and the certificate of scrutiny regarding the eligibility of the candidate, the proposer and the seconder. At the foot, there is a note that the nomination paper will not be valid, unless it is delivered to the Supervising Officer at his office before 3 p. m. on----(date to be filled). This is the entire form of nomination paper.

(8.) It is not in dispute that the above nomination form was duly filled in. It is also not in dispute that the Supervising Officer certified, after scrutiny, that the candidate, the proposer and the seconder were respectively qualified to stand for election and to propose and to second the nomination.

(9.) The nomination papers of the petitioners were rejected on the sole ground that they did not bear the name of the municipality. Section 29 of the Act confers rule-making powers on the State Government. In exercise of those powers, the above rules were made and published. Rule 13 of the these rules provide for presentation of nomination paper, deposit and scrutiny of nominations. Clause (i) of sub-rule (1) is in these words:-

"On or before the date fixed for filing nomination paper of candidates each candidate shall, either in person or by his proposer or seconder, between the hours of 11 O clock in the forenoon and 3 O clock in the afternoon, deliver to the supervising officer a nomination paper completed in Form IV and subscribed by the candidate himself as assenting to the nomination and by two duly qualified voters of the ward as proposer and seconder. A duly qualified voter may subscribe as proposer or seconder as many nomination papers at there are vacancies to be filled, but no more."

We have already given the substance of the Form IV.

(10.) Our attention was drawn to an amendment which was made by notification No. 304-U-XVIII, dated the 18th December 1965, published in the Madhya Pradesh Gazette, dated January 21, 1966, at page 70. It is in these words:-

"...in Form IV:- (a) under the heading Nomination paper, the following shall be inserted, namely:- Election to the Municipal Council of... .Municipality."

These words, which were directed to be added in the nomination paper, were not found in the nomination papers filed by the petitioners and on that ground alone their nomination papers were rejected. Having heard the parties, we have come to the conclusion that the rejection of the nomination forms was wrong and in contravention of the rules.

(11.) Firstly, the nomination forms were supplied by the Chief Municipal Officer on payment of rupee one per form in pursuance of his public notice which was made by beat of drum. Secondly, even the authorised Government publication, to which we have referred above and which bears 1965 as the year of publication, does not contain the words: "Election to the Municipal Council of...Municipality", which were inserted by the amendment on December 18,1965, published in the M. P. Gazette dated January 21, 1966. Thirdly, it is not in dispute that these nomination papers were delivered to the Supervising Officer of this Municipality on the prescribed date and place and within the prescribed time. It was, therefore known to everybody that these nomination papers were made for the election to the Municipal Council, Kurwai, and to no other municipality. What is more, the supervising officer also gave a certificate of scrutiny, stating that, having scrutinised the eligibility of the candidate, the proposer and the seconder, he found that they were respectively qualified for the election and to propose and to second the nomination. This necessarily means that ho checked up the names and descriptions of the candidates, the proposers and the seconders from the electoral roll of the Kurwai municipality. Thus, there cannot be a shred of doubt by any stretch of imagination that these nomination papers were meant for the election to no other municipality than the Kurwai municipality. The omission was, therefore, by no means one of substance. It was of mere form and technical in character. Clause (vi) of sub-rule (1) of rule 13 of the said rules enacts thus:- "The Supervising officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." The purpose of a nomination paper is to ascertain the identity and eligibility of the candidate, the proposer and the seconder. We have already pointed out that the defect in the nomination form was not at all of a substantial character. It was of too technical a character to be the basis for their rejection. The proviso to clause (iv) (a) of sub-rule (1) of rule 13 gives a mandatory direction to the supervising officer to permit correction of any clerical or technical error in the nomination paper in regard to the names or numbers of candidate or his proposer or seconder in order to bring it into conformity with the corresponding entries in the Roll and, where necessary, to direct that any clerical or printing error in the said entry shall be overlooked. It is quite clear from the sub-rule that a nomination form cannot be rejected because of an error in regard to the name and number of the candidate, his proposer or seconder. The omission to fill in the name of the municipality is a defect of far-less substance.

(12.) Now the question is whether this Court can issue a writ at this stage. Section 20 of the Act provides for an election petition and under section 22 improper rejection of a nomination paper is a ground for declaring an election or selection to be void. It is true that this Court does not ordinarily exercise its powers under Article 226 of the Constitution in a matter where there is an alternative remedy, except when a fundamental right of the petitioner is infringed. And particularly in matters relating to election, when remedy by way of an election petition is provided, this Court does not interfere by issuing a writ. But this is not the same thing as to say that this Court has no jurisdiction to issue a suitable writ when there are compelling reasons, and there is no equally efficacious remedy available to the aggrieved party. The learned Government Advocate and Shri B. C. Verma laid a great deal of stress on subsection (1) of section 20, which is in these words:-

"No election or selection under this Act shall be called into question, except by a petition presented in accordance with the provisions of this section."

They also relied on the Supreme Court decision in N. P. Punnuswami v. Returning Officer Nanakkal Constituency, AIR 1952 SC 64 [LQ/SC/1952/2] =1952 SCR 218. [LQ/SC/1952/2] That was a case arising out of an election under the Representation of the People Act, 1951. It was held in that case that the word "election" embraces the whole procedure of the election and it includes the rejection or acceptance of a nomination paper so that by virtue of Article 329 (b) of the Constitution an election can be challenged on the ground of improper rejection of a nomination paper only in the manner prescribed by the Representation of the People Act. The provisions of Article 329 (b) of the Constitution are restricted in their application to an election to either House of Parliament or to either House of the Legislature of a State. If Article 329 (b) of the Constitution had been in general terms and created a bar to challenging any election, except by an election petition presented to such authority and in such manner as may be prescribed for or under any law made by the appropriate Legislature, we could not have interfered even in a case of an election under the M. P. Municipalities Act, 1961. The reason is that Article 329 (b) being a provision of the Constitution takes away the jurisdiction of this Court under Article 226 of the Constitution. The opening words of Article 329 (b) are "notwithstanding anything contained in this Constitution". Therefore, that clause excludes the jurisdiction of the Courts, including the jurisdiction under Article 226 of the Constitution.

(13.) But the powers of this Court under Article 226 cannot be taken away or curtailed by any legislation, except by amendment of the Constitution. [Per S. R. Das C. J., in In re The Kerala Education Bill, AIR 1958 SC 966=1959 SCR 995(1072-73)]. Any law, which would seek to take away or restrict the jurisdiction of this Court under Article 226 would be void. This Court is entitled to exercise the powers under Article 226 free from all fetters, whether they are directly or indirectly imposed. It must, therefore, he said that by enacting sub-section (1) of section 20, the Legislature excluded every other remedy under any law, but the jurisdiction of this Court under Article 226 has not been, and cannot be, taken away, however emphatic the words may be.

(14.) The next question is whether we should at all interfere in such a matter under Article 226 of the Constitution, even if this Court has jurisdiction to do so. That question too, in our opinion, must be answered in the affirmative. The peculiarities of the present case are that after the rejection of the petitioners nomination papers, there was no polling as such. The contesting respondents were declared elected as unopposed. The rejection of the nomination papers was flagrantly wrong and arbitrary. No enquiry or evidence is required to reach that conclusion. There was no possibility of imagining that the nomination papers were meant for the election to any other municipality than the Kurwai Municipality. If interference is not made at this stage, as pointed out above, the elected respondents Nos. 4 to 9 will select councillors under clause (b) of subsection (1) of section 19, and will also participate in the election of the President and the Vice-Presidents under section 4 of the Act. If eventually, as a result of an election petition, when it will be held that the rejection of the nomination papers of the petitioners was improper, the election would be set aside, but there is no provision for setting back the clock and the selection of the councillors and the election of the President and the Vice-Presidents will not, ipso facto, become void. Secondly, the petitioners will be deprived of their right to select councillors and to participate in the election of the President and the Vice- President, or, for the matter of that, they themselves may contest the election for Presidentship or Vice-Presidentship, in case they are returned from their constituencies, after their election petition is allowed and the present election is declared void. Thus, the remedy by way of an election petition will not be equally efficacious and the mischief which would be done consequent upon the flagrantly wrong and arbitrary decision of the Supervising Officer, which is contrary to the mandatory provisions contained in the rules, may remain undisturbed. In Vinodkumar v. K. L. Jain, 1965 MPLJ 375 [LQ/MPHC/1964/199] , it was said:- "Where rejection of a nomination paper is flagrantly wrong and arbitrary, and no enquiry or evidence is required, the remedy by way of an election petition cannot be said to be equally efficacious. That is so, not merely because the petitioner will be deprived of contesting the election, but also because the Gram Sabha (to which election is sought) being an electoral College for other elections, the petitioner will be deprived of contesting the latter. This is, therefore, a fit case where appropriate relief must immediately be given to the petitioner." Following that view, we hold that in the present case interference must not be refused.

(15.) It must be mentioned that an election petition can be filed after the result of the election is notified in the Gazette. Section 45 of the Act enacts that every election or selection of a Councillor and every election or appointment of the President or Vice-President of a Council shall be notified in the Gazette by the prescribed authority and such persons shall enter upon their respective offices from the date of such notification. No notification has been made as yet, apparently because a consolidated notification will come after the selection of the councillors and the election of the President and Vice-Presidents. The proviso to section 45 then creates a legal fiction. For the purposes of selection of councillors under section 19 and the election of President and Vice-President under section 43, a Councillor would, even before the publication of such notification, be deemed to have entered upon his office from the date of his election. (16.) It is wholly unnecessary to enter into the question whether the supervising officers order was mala fide. We did not hear the parties on this point and we have kept it wholly out of consideration. We, however, desire to observe that when such an allegation is made against a respondent to a petition under Article 226 of the Constitution, it is only proper that he should acquaint this Court of the factual position by filing a return.

(16.) It is wholly unnecessary to enter into the question whether the supervising officers order was mala fide. We did not hear the parties on this point and we have kept it wholly out of consideration. We, however, desire to observe that when such an allegation is made against a respondent to a petition under Article 226 of the Constitution, it is only proper that he should acquaint this Court of the factual position by filing a return.

(17.) In the result, the petition is allowed. The orders of the Supervising Officer rejecting the nomination papers of the petitioners are quashed. So also the orders of the Sub-Divisional Officer dismissing the petitioners appeal are quashed. The declarations that respondents Nos. 4 to 9 have been elected are also quashed in consequence. We direct the Collector to proceed afresh under Part III of the Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962. Respondents Nos. 4 to 9 shall pay Rs. 100 as costs to the petitioners. The security amount shall be refunded to the petitioners. Petition allowed.