19 May 1954
Supreme Court


Case number: Appeal (civil) 150 of 1953






DATE OF JUDGMENT: 19/05/1954


CITATION:  1954 AIR  520            1955 SCR  287  CITATOR INFO :  R          1955 SC 233  (8)  F          1955 SC 425  (12)  R          1959 SC 422  (11,16)  E&D        1960 SC 368  (4,8,9,17)  E&D        1960 SC1049  (17)  RF         1963 SC 677  (18)  R          1963 SC 874  (9)  R          1965 SC1595  (9,19,40)  D          1971 SC1348  (8,10)  R          1973 SC2362  (4,6)  R          1975 SC1843  (35)  RF         1975 SC2299  (273)  R          1976 SC1207  (565)  RF         1977 SC2155  (23)  E&R        1978 SC 851  (24,30,83,124)  R          1979 SC1284  (5)  E          1980 SC 856  (21)  E          1981 SC 547  (17,20,25)  R          1986 SC 103  (5)  D          1987 SC1629  (13)  RF         1991 SC2176  (16)  R          1992 SC 248  (34)  RF         1992 SC2219  (53,135)

ACT: Constitution of India, articles 136, 173, 329-Supreme  Court -Power  to  grant  special  leave  to  appeal-Decisioin   of Election  Tribunal-Represeiztation of the People Act  (XLIII of;  1951),  ss.  36,  100(1)  (c)  and  (2)  (c),  105-Non- compliance with the provisions of article 173-Constitutional disability-Election void - Whether under s. 100(1) (c) or s. 100 (2) (c) of the Act-Non-compliance with the provisions of Constitution in s. 100(2) (c)-scope of.

HEADNOTE: Article  136  of the Constitution is worded  in  the  widest terms  possible.   It vests in the Supreme Court  a  plenary jurisdiction  in  the  matter of  entertaining  and  hearing appeals  by  granting  special leave  against  any  kind  of



judgment or order made by a Court or’ Tribunal in any  cause or  matter and the powers can be exercised in spite  of  the specific  provisions  for appeal contained  in  the  Consti- tution’or other laws.  The powers given by the article  are, however, in the nature of special or residuary powers  which are  exercisable  outside the purview of  ordinary  law,  in cases where the needs of justice demand interference by  the Supreme Court. The  non obstante clause in article 329 of the  Constitution which debars the Supreme Court as well as any other Court in India  from entertaining a suit or a proceeding  calling  in question any election to Parliament or the State Legislature and  section  105 of the Representation of  the  People  Act which  gives  finality  to  the  decision  of  the  Election Tribunal so far as that Act is 268 concerned  and does not provide for any further  appeal,  do not  cut  down  or affect the overriding  powers  which  the Supreme,Court can exercise in the matter of granting special leave under article 136 of the Constitution. The  overriding  power  vested in the  Supreme  Court  under article   136  of  the  Constitution  is  wider   than   the prerogative right of entertaining an appeal exercised by the Judicial  Committee of the Privy Council in England  because the  prerogative  right of the Grown can be  taken  away  or curtailed  by  express legislation  but  the  Constitutional provision in article 136 cannot be limited or taken away  by any   Parliamentary  legislation  and  this   Constitutional provision  overrides  ordinary laws and no  presumption  can arise  from words and expressions declaring an  adjudication of  a  particular Tribunal to be final and  conclusive  that there  was  an  intention to exclude  the  exercise  of  the special power. Where on the finding of the Tribunal there has been a viola- tion of or non-compliance with the provision of article  173 of  the  Constitution because the candidate suffers  from  a Constitutional  disability  by reason of his  under-age  the case  falls under sub-section (2) (c) of section 100 of  the Representation  of the People Act and not under  sub-section (1)  (c)  of section 100 of the Act and election  should  be held  to  be  void  on  the  ground  of  the  Constitutional disqualification of the candidate and not on the ground that his  nomination  was improperly accepted  by  the  Returning Officer  and therefore the ’election of that candidate  only should be declared void and not the whole election. The  expression " non-compliance with the provisions of  the Constitution  " in clause (c) of sub-section (2) of  section 100  of  the Act is sufficiently wide to  cover  such  cases where  the  question is not one of  improper  acceptance  or rejection  of  the nomination by the Returning  Officer  but there is a fundamental disability in the candidate to  stand for election at all. Bharat  Bank  Ltd.,  v. Employees of the  Bharat  Bank  Ltd. ([1950]  S.C.R. 459), Theberge v. Laudry ( [1876-771 2  A.C. 102),  Stowe  v.  Jolliffe (9 C.P. 734)  and  Ponnuswami  v. Returning Officer, Namakkal Constituency and Others ( [1952] S.C.R. 218) referred to.

JUDGMENT: CIVIL APPFLLATE, JURISDICTION: Civil Appeal No. 150 of 1953. Appeal  by Special Leave from the Judgment and  Order  dated the 30th April, 1953, of the Election Tribunal, Jabalpur, at Nagpur in Election Petition No. I of 1952.



B. Sen, T. P. Naik and I. N. Shroff for the appellant. R.  M. Hajarnavis, J. B. Dadachanji and Rajinder Narain  for respondent No. 1. 269 1954.  May 19.  The Judgment of the Court was delivered by MUKERJEA J.-This appeal, which has come before us on special leave,  is  directed against the judgment and order  of  the Election Tribunal, Jabalpur, at Nagpur dated the 30th April, 1953, whereby the Tribunal declared the election held on the 29th  December,  1951,  for  the  double  member   Lakhnadon Legislative  Assembly Constituency, to be wholly void  under section  100(1)(c) of the Representation of the  People  Act (hereinafter called "the Act"). To  appreciate the contentions that have been raised by  the parties  to  this  appeal, it would be  necessary  to  state briefly   the  material  facts.   The  Lakhnadon   Legistive Assembly  Constituency in Madhya Pradesh is a double  member constituency,  one  of the seats in which  is  reserved  for Scheduled Tribes.  The appellant and respondents Nos. 1,  3, 5 and 7 were duly nominated candidates for the general  seat in the said constituency, while respondents Nos. 2, 4 and  6 were  nominated  for the reserved seat.   No  objection  was taken  before  the  Returning  Officer  in  respect  of  the nomination  of  either the appellant or  respondent  No.  2, Vasant Rao.  Out of these eight candidates, respondents Nos. 5, 6 and 7 withdrew their candidature within the  prescribed period under section 37 of the Act and the actual contest at the  election  was between the  remaining  five  candidates, namely,  the  appellant and respondents Nos.  I  to  4.  The votes  secured by these five candidates at the polling  were found to be as follows :-      (1) The Appellant (General)...18,627      (2) Respondent No. I (General)7,811      (3) Respondent No. 2 (Reserved)14,442      (4) Respondent No. 3 (Reserved)7,877      (5) Respondent No. 4 (General)6,604      Accordingly the appellant and respondentNo. - 2 were  declared  elected  to the general  and  reserved  seat respectively,  under section 66 of the Act, and the  results were duly published in the Madhya Pradesh Gazette on 8th  of February, 1952.  On the 14th of May, 1952, the 270 respondent No. 1, Raghuraj Singh, filed an election petition against  the  appellant  and the  other  respondents,  under section 81 of the Act, praying that the said election to the Lakhnadon  Legislative  Assembly  Constituency  be  declared wholly void or in the alternative the election of Vasant Rao and/or  that  of  the appellant,  Durga  Shankar  Mehta,  be declared  void.  There was a string of allegations  made  in the  petition  accusing  the appellant  of  various  corrupt practices in the matter of securing votes but none of  these are material for our present purpose, as the Tribunal, by  a majority,  held  these allegations to be unfounded  and  not supported  by proper evidence.  The substantial ground  upon which  the petitioner sought to assail the validity  of  the election was, that the respondent No. 2, Vasant Rao, who was declared  duly  elected  to the reserved seat  in  the  said constituency  was, at all material times, under 25 years  of age and was consequently not qualified to be chosen to  fill a seat in the Legislative Assembly of a State under  article 173  of the Constitution.  This allegation was found  to  be true  by  the majority of the Tribunal and by  its  judgment dated  the  30th of April, 1953, the Tribunal  came  to  the conclusion  that  the  act  of  the  Returning  Officer   in accepting the nomination of Vasant Rao, who was disqualified



to  be elected a member of the State Legislature  under  the Constitution,   amounted  to  an  improper   acceptance   of nomination  within the meaning of section 100(1)(c)  of  the Act  and  as  the  result of  the  election  was  materially affected  thereby, the whole election must be pronounced  to be void.  It is the propriety of this decision that has been challenged before us in this appeal. Mr.  Hazarnavis, appearing for the respondent No.  I  before us,  took a preliminary point challenging the competency  of the  appeal.  It is contended by the learned  counsel,  that article 329(b) of the Constitution ousts the jurisdiction of all  ordinary  Courts  in  election  disputes  and  provides expressly that no election to either House of Parliament  or to  either  House  of the Legislature of a  State  shall  be called  in  question,  except by and  an  election  petition presented  to  such  authority a in such manner  as  may  be provided for by or 271 under  any law made by the appropriate Legislature.   It  is urged  that there can be no challenge to the validity of  an election  except  by way of an election  petition,  and  the authority  to which, and the manner in which, such  petition is to be presented, have been embodied in the Representation of  the People Act which has been enacted by the  Parliament under  article 327 of the Constitution.  Section 80  of  the Act,  which is worded almost in the same manner  as  article 329(b),  provides  that  "no election  shall  be  called  in question  except  by  an  election  petition  presented   in accordance  with the provisions of this Part";  and  section 105  says that "every order of the Tribunal made under  this Act  shall be final and conclusive." It is contended by  the learned counsel that the jurisdiction that is created in the Election  Tribunal  is a special jurisdiction which  can  be invoked  by an aggrieved party only by means of an  election petition  and  the  decision of the Tribunal  is  final  and conclusive. These arguments, though apparently attractive, appear to  us on  closer examination to be untenable.  We agree  with  the learned  counsel  that  the right of  seeking  election  and sitting  in  Parliament  or  in a  State  Legislature  is  a creature  of  the  Constitution and  when  the  Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available  to a  person in regard to election disputes.  The  jurisdiction with which the Election Tribunal is endowed is undoubtedly a special  jurisdiction  ; but once it is held that  it  is  a judicial  Tribunal empowered and obliged to deal  judicially with disputes arising out of or in connection with election, the  overriding power of this Court to grant special  leave, in proper cases, would certainly be attracted and this power cannot  be excluded by any Parliamentary  legislation.   The non   obstante  clause  with  which  article  329   of   the Constitution begins and upon which the respondent’s  counsel lays so much stress debars us, as it debars any other  Court in the land, to entertain a suit or a’ proceeding calling in question  any  election  to  the  Parliament  or  the  State Legislature.   It  is the Election Tribunal alone  that  can decide such disputes, and the proceeding has to be initiated by an election petition 272 and  in  such manner as may be provided by a  statute.   But once   that   Tribunal  has  made   any   determination   or adjudication  on  the matter, the powers of  this  Court  to interfere  by way of special leave can always be  exercised. It  is  now well settled by the majority  decision  of  this



Court  in the case of Bharat Bank Ltd. v. Employees  of  the Bharat Bank Ltd. (1) that the expression "Tribunal" as  used in  article 136 does not mean the same thing as "Court"  but includes,   within  its  ambit,  all  adjudicating   bodies, provided they are constituted by the State and are  invested with judicial as distinguished from purely administrative or executive  functions.  The only Courts or  Tribunals,  which are expressly exempted from the purview of article 136,  are those which are established by or under any law relating  to the Armed Forces as laid down in clause (2) of the  article. It is well known that an appeal is a creature of statute and there  can be no inherent right of appeal from any  judgment or determination unless an appeal is expressly provided  for by  the law itself.  The powers given by article 136 of  the Constitution  however  are  in  the  nature  of  special  or residuary  powers which are exercisable outside the  purview of ordinary law, in cases where the needs of justice  demand interference by the Supreme Court of the land.  The  article itself is worded in the widest terms possible.  It vests  in the  Supreme Court a plenary jurisdiction in the  matter  of entertaining  and  hearing appeals, by granting  of  special leave, against any kind of judgment or order made by a Court or  Tribunal in any cause or matter and the powers could  be exercised  in  spite of the specific provisions  for  appeal contained   in   the  Constitution  or  other   laws.    The Constitution  for  the  best of reasons did  not  choose  to fetter  or  circumscribe the powers exercisable  under  this article  in any way.  Section 105 of the  Representation  of the  People Act certainly gives finality to the decision  of the  Election Tribunal so far as that Act is  concerned  and does  not provide for any further appeal but that cannot  in any way cut down or affect the overriding powers which  this Court  can exercise in the matter of granting special  leave under article of the Constitution. (i)  [195o] S.C.R. 459, 273 This overriding power, which has been vested in the  Supreme Court  under article 136 of the Constitution, is in a  sense wider  than the prerogative right of entertaining an  appeal exercised by the Judicial Committee of the Privy Council  in England.  The prerogative of the Crown can be taken away  or curtailed by express legislation and even when there are  no clear  words in a particular statute expressly  taking  away the  Crown’s prerogative of entertaining an appeal  but  the scheme  and purpose of the Act show unmistakably that  there was  never  any’ intention of creating a Tribunal  with  the ordinary  incident of an appeal to the Crown annexed to  it, the  Privy  Council  would  not admit  an  appeal  from  the decision  of  such  Tribunal.  This is  illustrated  by  the decision of the Privy Council in The berge v. Laudry(1) upon which Mr. Hozarnavis places considerable reliance.  In  that case  the  petitioner having been declared  duly  elected  a member to represent the electoral district of Montmanier, in the  Legislative  Assembly of the Province  of  Quebec,  his election  was  afterwards, on petition,  declared  null  and void,  by  judgment of the superior Court under  the  Quebec Controverted  Elections  Act,  1875,  and  he  himself   was declared  guilty  of  corrupt  practices.   He  applied  for special  leave  to appeal to His Majesty  in  Council.   The application  was refused and Lord Cairns in  delivering  the judgment of the Board held, that although the prerogative of the  Crown  could not be take in away or limited  except  by express  words  and  the  relevant  section  of  the  Quebec Controverted  Elections  Act of 1875  providing  that  "such judgment shall not be susceptible of appeal" did not mention



either   the  Crown  or  its  prerogative,  yet   the   fair construction  of the above Act as also of the  previous  Act of/1872 was that it was the intention of the Legislature  to create  a  Tribunal  for  the  purpose  of  trying  election petitions  in a manner which would make its  decision  final for all purposes and should not annex to it the incident  of its   judgment  being  reviewed  by  the  Grown  under   its prerogative. This decision in our opinion does not assist Mr.  Hazamavis. In the first place article 136 is a (I)  (1876-77) 2 App.Cas. 102. 274 constitutional provision which no Parliamentary  legislation can  limit or take away.  In the second place the  provision being one, which overrides ordinary laws, no presumption can arise  from words and expressions declaring an  adjudication of  a particular Tribunal to be final and  conclusive,  that there  was  an  intention to exclude  the  exercise  of  the special powers.  As has been said already, the non  obstante clause  in  article 329 prohibits challenge to  an  election either to Parliament or any State Legislature, except in the manner laid down in clause (2) of the article.  But there is no pro hibition of the exercise of its powers by the Supreme Court in proper cases under article 136 of the  Constitution against  the  decision  or  determination  of  an   Election Tribunal  which  like all other  judicial,  tribunals  comes within  the  purview  of  the  article.   It  is   certainly desirable that the decisions on matters of disputed election should, as soon as possible, become final and conclusive  so that  the constitution of the Legislature may be  distinctly and  speedily known.  But the powers under article  136  are exercisable  only  under  exceptional  circumstances.    The article  does  not create any general right of  appeal  from decisions of all Tribunals.  As regards the decision of this Court   in   Ponnuswami  v.  Returning   Officer,   Namakkal Consistituency, and Others (1), to which reference has  been made  by the learned counsel, we would only desire to  point out that all that this case decided was that the High  Court bad no jurisdiction, under article 226 of the  Constitution, to  interfere by a writ of certiorari, with the order  of  a Returning  Officer who was alleged to have wrongly  rejected the nomination paper of a particular candidate.  It was held that   the  word  "election"  in  article  329(b)   of   the Constitution had been used in the wide sense to connote  the entire process, culminating in a candidate’s being  declared elected  and that the scheme of Part XV of the  Constitution was  -that  all matters which had the  effect  of  vitiating election  should be brought up only after the  election  was over  and by. way of an election petition.   The  particular point,  which  arises  for considers.  tion  here,  was  not decided in that case and was expressly (I)  [1952] S.C.R. 218. 275 left  open.  In our opinion therefore the preliminary  point raised by Mr. Hazarnavis cannot succeed. Coming now to the appellant’s case, Mr. Sen who appeared  in support  of the appeal, has pressed only one point  for  our consideration.    He  plainly  stated  that  he  could   not challenge  the propriety of the finding, arrived at  by  the majority  of the Tribunal that respondent, Vasant  Rao,  was below  25  years  of age at all material  times.   This,  he concedes, is a finding of fact and being based on  evidence, is  not open to challenge before us in an appeal by  special leave.  His contention in substance is, that there has  been no improper acceptance of nomination in the present case, as



has been held by the Tribunal and consequently the provision of section 100(1)(c) of the Act would not be attracted to it and  the entire election could not have been declared  void. It  is, true, says the learned counsel, that on the  finding of  the  Tribunal  there has been a  violation  of  or  non- compliance  with  the  provision  of  article  173  of   the Constitution  and  as  respondent  No.  2  suffers  from   a constitutional disability by reason of his under-age and  is not qualified to be chosen to fill a seat in the Legislative Assembly  of  a  State,  his  election  can  undoubtedly  be declared void under section 100(2)(c) of the Act, but  there was  no  justification for pronouncing the  whole  election, including  that  of the appellant, to be  void.   The  whole controversy thus centres round the point as to whether, upon the facts admitted and proved, the present case comes within the -purview of sub-section (1)(c) of section 100 of the Act or of sub-section (2)(c) of the same section.  The  relevant portions  of section 100 of the Act so far as  are  material for our present purpose may be set out as follows:- "100.  Grounds for declaring election to be void- (1)  If the Tribunal is of opinion--- (a) ...................................................... (b)  ............................................ (c)  that  the  result of the election has  been  materially affected  by  the improper acceptance or  rejection  of  any nomination, the Tribunal shall declare the election to be wholly void. 276 (2)  Subject  to  the provisions of subsection (3),  if  the Tribunal is of opinion- (a).............................. (b).............................. (c)  that  the  result of the election has  been  materially affected  by the improper reception or refusal of a vote  or by  the reception of any vote which is void, or by any  non- compliance  with  the provisions of the Constitution  or  of this  Act or of any or orders made under this Act or of  any other  Act  or  rules relating to the election,  or  by  any mistake in the use of any prescribed form, the  Tribunal  shall declare the election  of  the  returned candidate to be void." The  first  point  for  our  consideration  is  whether  the nomination  of  Vasant Rao was improperly  accepted  by  the Returning  Officer  and  that has  materially  affected  the result  of the election.  It is not suggested on  behalf  of the respondent that the nomination paper filed by Vasant Rao was in any manner defective.  It is admitted that the  names and electoral numbers of the candidate and his proposer  and seconder as entered there were the- same as those entered in the  electoral  rolls.   It is also not  disputed  that  the nomination paper was received within proper time as is  laid down in section 33, sub-section (4) of the Act.  Section  36 of  the Act provides for scrutiny of nominations  and  under subsection (2) the Returning Officer has got to examine  the nomination papers and decide all objections that may be made to any nomination and he may either on such objection or  oh his  own, motion, after such summary enquiry, if any, as  he thinks  necessary,  refuse  any nomination  on  any  of  the grounds which are specified in the different clauses of  the sub-section.  The ground mentioned in clause (a) of the sub- section is, that the candidate is not qualified to be chosen to  fill  the seat under the Constitution or the  Act.   The contention of the respondent No. 1 is that the nomination of Vasant  Rao should have been rejected on this ground and  as the Returning Officer did not do that, his act



277 amounted to an improper acceptance of nomination within  the meaning  of section 100(1)(c) of the Act.  We do  not  think that   this   contention   is  sound.   If   the   want   of qualification.of a candidate does not appear on the face  of the  nomination  paper or of the electoral roll,  but  is  a matter  which  could  be established only  by  evidence,  an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination.   The  Returning Officer is then bound  to  make such enquiry as he thinks proper on the ’result of which  he can  either accept or reject the nomination.  But  when  the candidate  appears to be properly qualified on the  face  of the electoral roll and the nomination paper and no objection is  raised to the nomination, the Returning Officer  has  no other alternative but to accept the nomination.  This  would be apparent from section 36, subsection (7) of the Act which runs as follows: "(7) For the purposes of this section- (a)  the  production of any certified copy of an entry  made in   the  electoral  roll  of  any  constituency  shall   be conclusive  evidence  of the right of any elector  named  in that  entry  to  stand  for  election  or  to  subscribe   a nomination  paper, as the case may be. unless it  is  proved that  the candidate is disqualified, under the  Constitution or  this Act, or that the proposer or seconder, as the  case may  be,  is disqualified under sub-section (2)  of  section 33." In  other words, the electoral roll is conclusive as to  the qualification of the elector except where a disqualification is  expressly alleged or proved.  The electoral roll in  the case of Vasant Rao did describe him as having been of proper age  and on the face of it therefore he was fully  qualified to be chosen a member of the State Legislative Assembly.  As no  objection  was  taken  to  his  nomination  before   the Returning  Officer at the. time of scrutiny, the latter  was bound to take the entry in the electoral roll as  conclusive ;  and  if  in these circumstances he  did  not  reject  the nomination of Vasant Rao, it cannot be said that this was an improper acceptance -of nomination on his part which 278 section  100(1)(c) of the Act contemplates.  It  would  have been  an improper acceptance, if the want  of  qualification was apparent on the electoral roll itself or on the face  of the  nomination paper and the Returning  Officer  overlooked that defect or if any objection was raised and enquiry  made as to the absence of qualification in the candidate and  the Returning  Officer  came  to  a  wrong  conclusion  on   the materials  placed before him.  When neither of these  things happened, the acceptance of the nomination by the  Returning Officer  must  be deemed to be a proper acceptance.   It  is certainly  not  final  and the  Election  Tribunal  may,  on evidence  placed  before it, come to a  finding  that,*  the candidate was not qualified at all.  But the election should be  held  to  be void on the ground  of  the  constitutional disqualification of the candidate and not on the ground that his  nomination  was improperly accepted  by  the  Returning Officer.   In  our opinion Mr. Sen is right that a  case  of this  description comes under sub-section (2)(c) of  section 100  and not under sub-section (1)(c) of the section  as  it really amounts to holding an election without complying with the  provisions of the Constitution, and that is one of  the grounds  specified  in clause (c) of  subsection  (2).   The expression  "  non-cgmpliance  with the  provisions  of  the Constitution " is in our opinion sufficiently wide to  cover



such  cases  where  the  question is  not  one  of  improper acceptance  or rejection of the nomination by the  Returning Officer,  but  there  is a  fundamental  disability  in  the candidate  to stand for election at all.  The  English  law, after   the   passing  of  the  Ballot  Act  of   1872,   is substantially the same as has been explained in the case  of Stowe v. Jolliffe(1).  The register which corresponds to our electoral  roll is -regarded as conclusive except  in  cases where  persons are prohibited from voting by any statute  or by the common law of Parliament. It   is  argued  on  behalf  of  the  respondent  that   the expression"  non-compliance  as used  in  subsection  (2)(c) would  suggest the idea of not acting according to any  rule or command and that the expression is not quite  appropriate in describing a mere lack of (1)  9 C.P. 734. 279 qualification.   This,  we think, would be a narrow  way  of looking  at the thing.  When a person is incapable of  being chosen as a member of a State Assembly under the  provisions of  the  Constitution  itself but has  never.  theless  been returned  as  such at an election, it can  be  said  without impropriety  that  there  has been  noncompliance  with  the provisions  of  the Constitution  materially  affecting  the result  of  the election.  There is no  material  difference between  "  non-compliance  " and " non-observance  "  or  " breach"  and this item in clause (c) of sub-section (2)  may be taken as a residuary provision contemplating cases  where there   has  been  infraction  of  the  provisions  of   the Constitution  or  of  the  Act  but  which  have  not   been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can  be  no  doubt that the Election  Tribunal  has  got  to declare  his election to be void.  Under section 98  of  the Act this is one of the orders which the Election Tribunal is competent  to make.  If it is said that section 100  of  the Act enumerates exhaustively the grounds on which an election could  be held void either as a whole or with regard to  the returned candidate, we think that it would be a correct view to   take   that  in  the  case  of  a  candidate   who   is constitutionally  incapable  of being returned as  a  member there   is  non-compliance  with  the  provisions   of   the Constitution in the holding of the election and as such sub- section  (2)(c)  of  section 100 of the  Act  applies.   The result  therefore is that in our opinion the  contention  of the  appellant  succeeds.  We allow the appeal in  part  and modify  the  order of the Election Tribunal to  this  extent that  the  election of respondent No. 2 Vasant Rao  only  is declared  to be void; the election of the appellant  however will stand.  We make no order as to costs of this appeal. Order accordingly. 280