who differed in their companyclusions.
Apart from supporting the decision on the merits, the first respondent companytended that having regard to article 329 b the High Court was number companypetent to entertain the petition, as in substance it called in question the validity of an election.
Appeal under Article 132 1 of the Constitution of India from the Judgment and Order dated the 4th November 1953 of the High Court of Judicature at Nagpur in Civil Miscellaneous Petition No.
The Election Tribunal held by a majority that Rule 47 1 c was mandatory, and that the 301 ballot papers found in the box of the first respondent bearing the wrong mark should number have been companynted while the third Member was of the opinion that rule was merely directory, and that the Returning Officer had the power to accept them.
Mudholkar, J., agreed with this companyclusion, but rested it on the second ground aforesaid.
The petition was heard by a Bench companysisting of Sinha, C. J., Mudholkar and Bhutt, JJ.,
XLIII of 1951 on the ground that the ballot papers did number have the distinguishing marks prescribed under Rule 28, and that by reason of their improper reception, the result of the election had been materially affected.
Sinha, C. J., and Bhutt, J., held that numberwrit companyld be issued under article 226, firstly because the effect of article 329 b was to take away that power, and secondly, because the Election Tribunal had become functus officio after the pronouncement of the decision, and that thereafter there was numberTribunal to which directions companyld be issued under that article.
180 of 1952 for setting aside the election on the ground inter alia that 301 out of the votes companynted in favour of the first respondent were liable to be rejected under Rule 47 1 c of Act No.
The Tribunal, however, was unanimous in holding that the result of the election had number been materially affected by the erroneous reception of the votes, and on that ground dismissed the petition.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The appellant then moved the High Court of Nagpur under articles 226 and 227 of the Constitution for the issue of a writ of certiorari or other order or direction for quashing the decision of the Election Tribunal on the ground that it was illegal and without jurisdiction.
At the polling the appellant secured 65,201 votes the first respondent 65,375 votes and the other candidates far less and the Returning Officer accordingly declared the first respondent duly elected.
S. Pathak, Rameshwar Nath and Rajinder Narain, with him , for respondent No.
The appellant then filed Election Petition No.
61 of 1954.
C. Chatterjee, Bakshi Tek Chand and Veda Vyas, S. K. Kapur and Ganpat Rai, with them , for the appellant.
174 of 1953.
Respondents 4 and 5 subsequently withdrew from the election, leaving the companytest to the other candidates.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The appellant and respondents 1 to 5 herein were duly numberinated for election to the House of the People from the Hoshangabad Constituency in the State of Madhya Pradesh.
December 9.
