Bombay High Court
Indur Kartar Chhugani vs Priya Sunil Dutt on 23 December, 2011
Bench: S.C. Dharmadhikari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO.1 OF 2009
Indur Kartar Chhugani
Age 61, years, Occupation Social Work
R/o. 501-502, Pinky Panorama CHS Ltd.
6th Road, Khar (West) Mumbai 400 052 .. Petitioner
Versus
Priya Sunil Dutt
A-1002, 44, Imperial Heights, Zigzag Road,
Vandre (West), Mumbai 400 050. .. Respondent
Mr.I.K.Chhugani, Petitioner in person.
Mr.P.K.Dhakephalkar, Senior Advocate a/w Mr.L.M.Acharya and Mr.Satyam Acharya,
for the Respondent.
CORAM : S.C.DHARMADHIKARI, J.
Reserved on : 9th December 2011
Pronounced on : 23rd December 2011.
ORAL JUDGEMENT:-
1] The petitioner Indur Kartar Chhugani by this petition has challenged the election
of respondent Priya Sunil Dutt to the Lok Sabha from Mumbai North Central
Parliamentary Constituency. It is common ground that the general elections to the Lok
Sabha came to be announced and as per the election programme, the nominations were
to be filled in by 09.04.2009.
2] It is the case of the petitioner that he filed his nomination papers for Mumbai
North Central Parliamentary Constituency on 9th April 2009. The Returning Officer
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Mr.Mahendra Warbhuwan was to act as such only for this constituency. It is petitioner's
case that after he entered the cabin of the Returning Officer, the Assistant Returning
Officer took nomination papers from him and went through every page. He checked
from the papers if the petitioner was a voter from Mumbai North Central Constituency.
After satisfying himself about that fact and by confirming from the voters' list, the
petitioner states that the Assistant Returning Officer invited his attention to Part III-A in
which the petitioner had marked an answer as "NO" to the question "Whether the
petitioner was ever convicted for any offence? It is the case of the petitioner that the
Assistant Returning Officer directed him to draw two lines across pages 8 and 10 and
mention as "Not Applicable". After he did as told, the Assistant Returning Officer
instructed the petitioner to hand over the papers to the Returning Officer along with two
affidavits.
3] The petitioner alleges that the Returning Officer had no doubt about the
petitioner being a candidate from Mumbai North Central Constituency when the
nomination paper was presented. It is the case of the petitioner that the Returning
Officer confirmed that the petitioner was a elector from the same constituency by
comparing the entries in the nomination paper with the entries in the electoral roll
relating to serial number and petitioner's name. The petitioner was not issued any
Memo as required in para 15.2 of the Instructions to the Returning Officers. If
petitioner was contesting from any other constituency a memo was required to be issued
to the petitioner, according to the petitioner, under para No.15.2.
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4] It is the case of the petitioner that in the nomination paper at page 4 are names
and signatures of 10 proposers, all of whom are from the Assembly constituency 177
Vandre (West). It is the case of the petitioner that this assembly constituency is within
Mumbai North Central and these proposers are entitled to propose him as a candidate
for Mumbai North Central Parliamentary Constituency. That is how the name of the
petitioner has been proposed. It is the case of the petitioner that the first affidavit which
is annexure I starts with the word in bold print "AFFIDAVIT BY CANDIDATE
ALONG WITH NOMINATION PAPER BEFORE THE RETURNING OFFICER FOR
ELECTION TO PARLIAMENT
ig FROM MUMBAI NORTH CENTRAL
CONSTITUENCY." The second affidavit is Annexure IX-C which also starts with the
words in bold print ""AFFIDAVIT BY CANDIDATE ALONG WITH NOMINATION
PAPER BEFORE THE RETURNING OFFICER FOR ELECTION TO PARLIAMENT
FROM MUMBAI NORTH CENTRAL CONSTITUENCY."
5] It is the case of the petitioner that he then handed over the nomination form plus
the two affidavits to the Returning Officer. The Returning Officer filled in the part IV
which is "Receipt for nomination paper and notice of scrutiny" and handed to the
petitioner by clearly filling in his handwriting in the columns which are reading as
under:-
"A. Serial No.25. The nomination paper of Indur Kartar Chhugani a
candidate for election from the 29 Mumbai North Central
Parliamentary Constituency was delivered to me at my office at 1.52
p.m on 09.04.2009 by the candidate. All nomination papers will be taken
up for scrutiny at 11 a.m on 11.4.2009 at office of R.O.29 Mumbai North
Central P.C Sd by the Returning Officer 9.4.2009... (All dark printing is
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in the hand writing of the Returning Officer). ...."
6] Thereafter, it is the case of the petitioner that the Returning Officer handed over
"Applicant's request form" to the petitioner for the purpose of filling in and handing
over to the Returning Officer. The first column of this form is "No. and Name of
Parliamentary Constituency". Against this column, the words were already printed "29
-Mumbai North Central Constituency". This form was duly filled in and handed over to
the Returning Officer by the petitioner. The petitioner was then administered oath by
the Returning Officer of the Constituency. The petitioner was then asked to hand over
Rs.10,000 as deposit and a receipt was given to him signed by the Returning Officer.
This receipt is from the receipt book used only for candidates of Mumbai North Central
Constituency. Thus, according to the petitioner after he paid the deposit, he would
deemed to be duly nominated for election from Mumbai North Central Constituency.
The petitioner in para 11 of the petition states that "check list of documents in
connection with filing of nomination" was prepared by the Returning Officer, duplicate
of which was handed to the petitioner and in that also the first column is the name of the
Constituency where the name of very constituency was filled in. The petitioner also
refers to the letter addressed to the Returning Officer of the subject constituency which
he acknowledged and, thereafter, he also refers to another letter dated 9 th April 2009
with regard to provision of photographs for issue of Identity cards. He states that this
letter confirms that he is nominated candidate from Mumbai North Central
Constituency. He then refers to the communication/ letters with regard to distribution of
election symbols to the nominated candidates and a receipt which was taken from him
of having exchanged 16 documents on 9th April 2009 in connection with filing of
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nomination form for this constituency. The petitioner states that he has obtained, under
Right to Information Act, 2005, a compact disc (CD) containing the video recording of
the Nomination process of 9th April 2009. This is done by the Election Commission of
India. The petitioner relies upon a CD of the scrutiny held on 11th April 2009 and he
submits that these could be viewed by this Court. It is the case of the petitioner that on
9th April 2009, the Returning Officer sent a list of candidates from whom nomination
papers are received for this constituency to the Election Commissioner and in this list
the petitioner's name is appearing at serial No.16.
7]
The petitioner states that all candidates were called for scrutiny on 11th April
2009. The petitioner was present at 10.30 a.m on this date. He was seated in the first
row, according to him. When the petitioner's papers came up for scrutiny, the petitioner,
heard the Assistant Returning Officer telling the Returning Officer that this candidate
has left first column blank, where it should have been entered "Mumbai North Central
Constituency". It is petitioner's case that he immediately requested that he be allowed
to enter three words in the first line of the nomination paper. No objection was raised
by any candidates or their agents who were present when this request was made.
However, the Returning Officer declined to allow that request and stated that he will
have to reject the nomination form.
8] The petitioner pleaded with him and showed him the affidavits and part IV in the
same which is filled in by the Returning Officer in his own hand writing. He also
showed him the request form and the certificates signed by the Returning Officer
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administering oath but he refused to take any note of them. He also refused time to the
petitioner but informed him that he can make a representation after all forms are
scrutinised. Accordingly, at around 12 noon the petitioner approached the Returning
Officer and Assistant Returning Officer with all papers which he was carrying with him
but they expressed their inability to do anything by stating that the Returning Officer
has already passed an order and the petitioner will have to file an Election Petition to
get the order amended or set aside.
9] These are the pleadings in paras 18 to 21 of the petition.
10] Subsequently, he obtained a certified copy of the order rejecting his nomination
paper and by that time the final list of candidates for the election was already released.
11] It is in such circumstances that the petitioner states that the rejection of his
nomination paper is illegal and the same is on minor technical ground. He relies upon
the guidelines provided by election commission of India to the Returning officer
cautioning them not to reject the nomination on flimsy grounds because there is
presumption of validity of a nomination paper. He also relied upon Chapter VI of the
hand book for Returning Officers (para 10.1) which gives exhaustive list of grounds on
which nomination paper can be rejected. According to the petitioner, leaving
inadvertently a line blank about name of constituency is not mentioned as a ground for
rejection. In these circumstances, he states that by clearly ignoring these important
instructions and guidelines that the Returning Officer has erred in rejecting his
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nomination paper. The petitioner thus states that the election of the Returned candidate
Priya Dutt be declared void on the ground that the nomination of the petitioner has been
improperly rejected.
12] This election petition has been filed in this Court on 5th June 2009 by the
petitioner and it was assigned to a learned Judge A.S.Oka, J. On 25th September 2009,
this Court passed an order that copy of the election petition be handed over by the
Registry to the Advocate for third respondent. Thereafter, this Court gave directions to
file written statement. At this stage, it is pertinent to note that the petitioner impleaded
the Returning Officer as respondent No.1 and Chief Election Commissioner of India as
respondent No.2. The Returned Candidate was impleaded as respondent No.3.
13] From the records it is clear that an application was made by respondent Nos. 1
and 2 being Application No.16 of 2010 seeking deletion of these respondents as they are
not necessary parties. The said application was placed before the learned Single Judge
of this Court and after hearing both sides, by his order dated 16th September 2010, he
allowed the request and directed deletion of the names of respondent Nos. 1 and 2. In
pursuance thereof, the amendments were carried out.
14] Since directions were issued to respondents to file their written statement, the
Returned Candidate filed her written statement on 1st December 2009. In the written
statement, she pointed out that she contested the election held for the Lok Sabha from
29 - Mumbai North Central Constituency as a candidate of Indian National Congress
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party. Results of the elections were declared after polling was completed on 16 th May
2009. The respondent No.3 secured 3,19,252 votes and by a margin of 1,74,555 votes
she was declared elected. This election petition is nothing but an attempt to harass her.
It has no merit and deserves to be rejected. She states that the rejection of the
nomination paper by the Returning Officer is on the ground that the nomination paper
of the petitioner contains a defect which is of substantial character. The nomination
paper prescribed for the said Election contains blank spaces where the name of the
constituency from where the candidate wants to contest has to be indicated while
submitting the nomination paper to the Returning Officer. This space was left blank by
the petitioner in his nomination form/paper submitted to the Returning Officer on 9th
April 2009. Thus, the nomination paper submitted by the petitioner to the Returning
Officer was not complete. The Returning Officer has rightly rejected the nomination
paper of the petitioner. Leaving the column blank, as aforesaid, in the nomination
paper is a defect of a substantial character. It is in such circumstances that the petition
deserves to be dismissed. As far as the contents of the election petition regarding the
guidelines and the handbook for Returning Officers are concerned, the Returned
Candidate does not admit them but in any case it is submitted that the interpretation
placed by the petitioner thereon is incorrect. It is then contended that once the
nomination paper fails to comply with the mandate of section 33 of Representation of
Peoples Act, 1951 (RP Act for short), then, there is no alternative but to reject it. No
amount of guidelines or instructions can over-ride the provisions of RP Act. A scrutiny
of the nomination paper is contemplated by section 36 and section 36(2)(b) enables the
Returning Officer to reject a nomination paper on the ground that there has been failure
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to comply with any provisions of section 33 and 34 of the RP Act. Section 33 mandates
that a candidate must deliver her nomination paper complete in the prescribed form to
the Returning Officer. The petitioner admits that leaving a column blank in the
nomination paper means that it is incomplete and, therefore, not in compliance with
section 33 of the RP Act. Such an incomplete nomination paper can be rejected. For all
these reasons and when section 36(5) of the RP Act is inapplicable that it is prayed that
this election petition be dismissed.
15] The written statement deals with the petition parawise and denies each and every
statement and allegation therein. None of the documents annexed to the petition have
been admitted including the compact discs containing the video recording of the events
at the time of filing and scrutiny of nominations.
16] Upon these pleadings, the learned Single Judge framed Issues which read as
under:-
"(i) Whether the petitioner proves that his nomination paper was improperly
and illegally rejected by the Returning Officer?
(ii) Whether the petitioner proves that the Returning Officer ought to have
allowed the petitioner to fill up the blank space left in the first column in
Part II of the nomination paper of the petitioner at the time of conducting
the scrutiny of the nomination paper?
(iii) Whether the petitioner proves that the election of the third respondent is
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liable to be set aside under section 100(1)(c) of the Representation of
Peoples Act, 1951?
(iv) What Order?"
17] The petitioner entered the witness box and filed an affidavit in lieu of
examination in chief. That is a reiteration of the averments in the petition. This
affidavit was filed by him on 5th March 2010 and he identified his signature and
confirmed the contents of the said affidavit. It was taken on record and marked
Exh.P-1. He tendered a compilation of 18 documents and after hearing both sides, the
learned Single Judge passed the following order dated 12th April 2010 marking the
documents:-
"1. I am shown my affidavit dated 5th March, 2010. The affidavit
bears my signature which I identify. The contents of the Affidavit are
true and correct (the affidavit is marked as Exhibit P-1).
2. (The Petitioner appearing in person has tendered a
compilation of 18 documents. He states that true photocopies of the
documents have been annexed to the affidavit in lieu of Examination-
in-Chief. Compilation is taken on record and marked as Exhibit. Z
for identification.)
3. (I have heard the Petitioner-in-person and the learned
Counsel appearing for the Respondent No.1 as well as the Respondent
no. 3 on the issue of marking the documents. The document annexed
as P-4 to the affidavit is the receipt of the nomination paper and
notice of scrutiny issued to the Petitioner by the 1st Respondent.
The learned Counsel appearing for the 1st Respondent on instructions
states that the document has been issued by the 1st Respondent.
Hence, the said document is marked as Exhibit P-2. The document
annexed as P-12 is an office copy of a letter addressed by the
Petitioner to the 1st Respondent. The learned Counsel appearing for the
3rd Respondent submits that in the affidavit, there is no proof of
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handwriting and signature on the said document. The learned
Counsel 1st appearing for the respondent on instruction states
the original of the said letter was received by the 1st Respondent. In
paragraph 23 of the affidavit in lieu of Examination-in- Chief, in
substance, it is stated that the letter is in the handwriting of the
Petitioner. Hence, the said document has been duly proved and the
same is marked as Exhibit P-3. The document P-13 purports to be a
photo copy of the letter sent by the Petitioner to the 1st Respondent.
This is not the original office copy. Therefore, the said document
P-13 cannot be admitted in the evidence. Document P-14 in the
compilation is a certified copy issued by the 1st Respondent of
nomination paper containing part-I, part-II, part-IV and part-V. It
being certified copy, the same is admitted in evidence and marked as
Exhibit P-4. The document P-17 purports to be an office copy of a
letter addressed by the petitioner to the Chief Election Commissioner
of India the copies whereof have been allegedly forwarded to the
Secretary and Chief Electoral Officer, Maharashtra, General
Administration Department, as well as to the Central Observers. It
bears the rubber stamp of the General Administration Department
of the government of Maharashtra. The said document as the office
copy of the letter which was received by General Administration
Department of the State of Maharashtra will have to be admitted in
evidence. The said document is marked as Exhibit P-5. The
document P-16 is a certified copy of the order dated 11th April 2009
passed by Returning Officer of 27, Mumbai North west
Parliamentary Constituency. It being a certified copy, the same is
marked as Exhibit P-6.
4] The documents P-1, P-2, P-3, P-5, P-6, P-7, P-8, P-9, P-10
and P-11 are stated by the Petitioner to be true photocopies made
available to the Petitioner under The Right to Information Act, 2005.
The document at page 217 of the compilation and document P-15
are also stated to be true copies supplied to the Petitioner under the
said Act of 2005. The Learned Counsel appearing for the 1st
Respondent on instructions confirmed that the said copies are true
photocopies furnished to the Petitioner under the said Act of 2005 and
the same are the true copies of the originals. The learned Counsel 3rd
Respondent submits that there is no formal proof of signatures and
contents of the said documents incorporated in the affidavit. He
submits that copies of applications made by the Petitioner for
obtaining the said documents are not placed on record. He submits
that as there is no proof of contents and execution of the said
documents , the same cannot be admitted in the evidence. He
submitted that there is no proof of authenticity and genuineness of the
said documents. However, the learned Counsel appearing for the 1st
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Respondent on instruction has confirmed that the said documents are
true photocopies of the originals supplied to the Petitioner
on the basis of his applications under the said Act of 2005. Therefore,
the said documents will have to be marked as exhibits by keeping the
issue of proof of execution and contents thereof open. The documents
are accordingly marked as Exhibit P-7, Exhibit.P-8, Exhibit.P-9,
Exhibit.P-10, Exhibit.P-11, Exhibit.P-12, Exhibit.P-13, Exhibit.P-14,
Exhibit.P-15, and Exhibit.P-16 respectively. For the same reasons
and subject to same clarification, the document at Page 217 (letter
dated 9th April, 2009) is marked as Exhibit.P-17. The document P-15
is marked as Exhibit.P-18.)"
18] Prior to the deletion of first respondent, the Government Pleader, High Court,
(O.S) Appearing on his behalf cross examined the petitioner. The petitioner stated that
he was aware that nomination form duly filled in has to be submitted. However, while
admitting that he has to mention in the nomination form full name of the Constituency
from which he intends to contest the election, he says that this is subject to human error.
He further admits that in the present case his nomination form was blank insofar as the
name of the parliamentary constituency. He states that inadvertently it was kept blank.
He states in answer to the question that the relevant details in the nomination form has
to be supplied before the scrutiny of the nomination paper. In an answer to another
question, he states that the details of the constituency are reflected from Part II of the
nomination form. He volunteers to state that these details are reflected in the request
form (Exh.P-10). He states that failure to give description of the Parliamentary
Constituency in the first line of part II of form 2-A of the nomination paper is not a
substantial defect because it is not necessary to fill in the details in the first line.
19] He states in an answer to a question posed to him in cross examination by the
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Advocate for the respondent - returned candidate, that the details of the registration as a
voter have been entered in part II of the nomination form and it is not necessary to
submit electoral roll along with nomination form. He states that it is not correct to say
that he was not registered as voter in any area forming part of Mumbai North Central
Constituency.
20] In his further cross examination by the learned Counsel for Returned Candidate,
he states thus:-
"It is not true to say that the information filled in Part - II in
Exhibit P-4 is not correct. It is true to say that on Part - II in Exh.P4 I
have referred to Mumbai North Central Parliamentary Constituency only
at one place. It is true to say that in the last line of Part - II I have referred
to Mumbai North Central Parliamentary Constituency for the purpose of
stating that I am a registered voter in the said constituency. I say that if I
was to contest from some other constituency than Mumbai North Central,
I would have been required to file an affidavit.
Q. I put it to you that as you have not set out in first line of Part II the
details of the constituency from which you intended to contest, a person
who reads the nomination paper will not be in position to understand from
which constituency you want to contest the election.
Ans. I have presented the nomination from to the Returning Officer for
Mumbai North Central Parliamentary Constituency. Therefore, the
Returning Officer knew that I was desirous of contesting the election from
the said Constituency.
Q. Is it correct to say that a Returning Officer appointed for one
constituency can be a Returning Officer for other constituencies as well?
Ans. I cannot say anything. I entered the cabin of the Returning Officer
who was appointed for Mumbai North Central Parliamentary Constituency
for the purpose of filing nomination paper. As per the law, a Returning
Officer can be appointed as a Returning Officer for several constituencies.
10 It is true that the object of first part of Part II is to indicate as to
from which constituency the candidate desires to contest the election.
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(The attention of the witness to the document marked as Exh.P-2). I
received this document on 9th April 2009. I state that I received the said
document few minutes after I filed my nomination paper. I do not
remember whether the document at Exh.P-2 was attached to the blank
nomination paper. It is true that at the time of scrutiny on 11th April 2009,
the document before the Returning Officer was my nomination paper.
There was no other document before Returning Officer. The witness
volunteers "the Returning Officer had with him my two affidavits, request
form and copies of the receipt.
It is not correct to say that the details filled in the nomination paper
submitted by me are incorrect. I say that in the voters' list it has been
stated that I am residing on the 2nd floor but in the nomination paper, I
have stated that I am residing on 5th floor. .... "
This Court after conclusion of evidence of the petitioner passed an order on 14 th
October 2010 by which the petitioner was granted permission to put relevant questions
to the Returning Officer Dr.Ashwini Joshi. Pursuant to that Dr.Ashwinin Joshi
appeared and what the petitioner did was to cross examine her although her name was
mentioned in the petitioner's list of witness. In answer to some of the questions, the
witness stated thus:-
"Q. If some information is not provided in the nomination form, can it
be extracted from the affidavits?
"Ans. It is a subjective question which I cannot answer.
"Q. Have you taken any information from the affidavits while passing
order dated 11th April 2009 which is on page 85 of the election petition?
"Ans. I have taken into consideration the totality of the information
disclosed in the form.
"Q. Do you agree that it is the duly of the returning officer to read the
affidavits at the time of scrutiny of nomination form?
"Ans. The duties of the returning officer have been incorporated in the
handbook for the Returning Officer.
"9. It is true that before passing the order dated 11th April 2009 I have
gone through the affidavits of the candidates."
"Q. Whether you were empowered to accept nomination form of
candidates who were desirous of contesting elections from a constituency
other tthan Mumbai North West Constituency?
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"Ans. I was empowered to accept nomination form of each and every
candidate even from the other constituencies."
21] Thereafter the petitioner examined Mr.Mahendra Warbhuwan, who was also one
of the officers and part of election machinery. These questions are also in the nature of
his cross examination. For example the following question and answer thereto would
demonstrate this aspect:-
"Q. Did my name appear in 177 Vandre West Assembly Constituency?
"Ans. I was not supposed to verify this aspect at the time of accepting the
nomination form."ig
22] That, why the petitioner was cross examining these officers, will be clear
because of an order dated 4th February 2011 in Application No.25 of 2010. This
application was made by the petitioner seeking a relief calling for the video recording
and receipts of the documents connected with filing nomination form and subsequent
scrutiny by respondent Nos. 1 and 2, to expedite trial. Prior to the order dated 4th
February 2011 at the request of the petitioner on 14th January 2011, this Court directed
issuance of witness summons to the petitioners' witness No.3 Mr.Warbhavan and in the
further order dated 4th February 2011, the said Warbhavan who was former Reporting
Officer of this constituency was directed to produce the record and original documents
more particularly described in the list of documents annexed to the petition. The Court
clarified that the issue regarding production of documents and video recording is kept in
abeyance. It is in pursuance thereof this Returning Officer came to be examined. His
deposition has been reproduced by me above. This witness was also questioned with
regard to the process of scrutiny and whether he is aware of the instructions and
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guidelines issued by the Election Commission of India. To a question posed by the
learned Counsel appearing for Returning candidate, the witness stated that "It is true
that through out the proceedings of the scrutiny the election observers were present and
that many forms were rejected in the scrutiny."
23] Thereafter, on behalf of the petitioner Mrs.Rekha Chhugani, petitioner's wife
was also examined as witness and in her cross examination, she denied the suggestion
that the petitioner has deliberately filed an incomplete form or that filing of nomination
form and the election petition is publicity stunt by the petitioner.
24] The petitioner also examined his son Sushil and in his cross examination as well,
suggestions identical to that of the earlier witness were put and he denied them.
However, he admitted that Election Observers were present when the scrutiny of
nomination papers were undertaken. However, he says that while scrutiny of 30 to 35
forms was undertaken, he does not remember as to how many nomination forms, apart
from the petitioner came to be rejected. To a certain suggestion as to why statements
made by him in examination in chief are not made in the petition or in the deposition of
his father, he states that he cannot give any answer with regard thereto. Thus, this is the
oral and documentary evidence on behalf of the petitioner.
25] The Returned Candidate did not step into the witness box. She chose to cross
examine the petitioner and some of the witnesses examined by him. The petitioner
made oral submissions as also tendered written arguments from time to time. He has
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contended that his nomination paper/ form has been improperly rejected. He submits
that the election petition deserves to be allowed. The petitioner submits that the
election of the returned candidate deserves to be set aside as there is overwhelming
material on record to show that petitioner's nomination has been improperly rejected.
He submits that no other requirement is provided in law and once there is ample proof
that the nomination has been improperly rejected, the election of the respondent No.3
should be declared as void. There is no choice available to the Court once it is proved
that any nomination has been improperly rejected. The election must be set aside and
that is the mandate flowing from law. The petitioner submits that he had handed over
two affidavits along with nomination form which are integral part thereof. These
affidavits clearly mention that they are filed as part of the nomination form for election
to parliament (Lok Sabha) from Mumbai North Central Constituency. The petitioner
had clearly mentioned that he was registered as a voter from "Mumbai North Central
Parliamentary Constituency". Since petitioner was contesting from the same
constituency, the Returning Officer while accepting nomination form had confirmed
petitioners entry in the nomination form with the entry in the electoral roll, relating to
the serial no and his name in the same constituency. As Returning Officer was aware in
view of the two affidavits given with nomination form, that the petitioner was
contesting from the same constituency in which he was registered as voter, the
Returning Officer did not ask him to comply with the requirement to produce evidence
of being a registered elector where a candidate is contesting election from a different
constituency. All the ten proposers were from "Mumbai North Central Constituency",
and could propose a candidate ONLY for this constituency. There was a form called
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"Request Form" which the Returning Officer gave the petitioner to fill at the time of
filing nomination form, which again clearly mentioned "Number and Name of
Parliamentary Constituency-29 Mumbai North Central Parliamentary Constituency."
The Returning Officer had given various receipts, which clearly mentioned that he had
received nomination form from the petitioner for contesting elections to Parliament
from "Mumbai North Central Parliamentary Constituency". In report to higher
authorities on 9.4.2009, the Returning Officer listed the name of the petitioner at no 16,
in list of candidates who had submitted nomination form for elections to Mumbai North
Parliamentary Constituency (Exhibit P-27). The Returning Officer has stated "I was
aware on the date of scrutiny that no action can be taken against the Returning Officer
for any wrong committed by him". The Returning Officer ignored all guidelines from
"Handbook for Returning Officers". Chapter VI of the Instructions entitled
"SCRUTINY" and clause 9.4 and clause 9.6 therein are reproduced below for ready
reference along with petitioner's remarks: -
"9.4: "In the past, there were instances where nomination
papers were rejected on flimsy grounds, e.g. For mistakes made in the
nomination paper regarding; (a) the year of election, or (b) the exact
name of the House of the Legislature or the Constituency, (c) the
description of an electoral roll number, or (d) the choice of symbols, or
(e) some discrepancy between the age, name, or other particulars of the
candidate or his proposer as given in the nomination paper and in the
electoral roll and so on. Such unjustifiable and improper orders of
rejection on technical grounds had led to a large number of election
petitions and the eventual setting aside of several elections with
consequent avoidable waste of time, money and labour for all concerned.
Similar instances of improper rejections should not occur again and it is
upto you to interpret the provisions of the law intelligently and with
commonsense. Do not, therefore, reject any nomination paper for such
technical or clerical errors or discrepancies. Most of them can and
should be directed by you to be set right at the time of the presentation of
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the nomination paper (section 33(4) proviso). It would, therefore, be
very undesirable if you fail at the proper stage to help a candidate by
exercising your powers and discretion under the proviso to section 33(4)
and later at the time of scrutiny you reject his nomination paper on the
ground of those very defects which could have been set right under that
section."
("Petitioner's Remarks: After petitioner on 9/4/2009
submitted Nomination form to Assistant Returning Officer, he went
through every page of the Nomination form and directed the petitioner to
draw two lines across blank portion of Part III A and write "Not
Applicable", but kept silent about the omission in Part II. Thereafter, the
Returning Officer went through each page of the Nomination form, he
also kept silent about the omission in part II of the Nomination form.
Surely both could not have missed the omission.")
"9.6 Though, it depends on various factors but some of the
defects of substantial nature and which cannot be allowed to be corrected
at the stage of preliminary scrutiny by the RO are (a) failure to declare
age in the nomination paper; (b) failure to sign the nomination paper by
the candidate or any of his proposers in the manner prescribed (c) failure
to comply with requirement to produce evidence of being a registered
elector where a candidate is contesting election from a different
constituency; (d) failure to submit written authorisation form from the
political party, within prescribed time and in prescribed, where as
candidate claims to have been set up by a national or state party. Other
cases are (a) failure to mention name of constituency, particularly in a
General election; (b) Failure to give full address in nomination paper; (c)
Failure to file affidavit in Form 26 and/or affidavit provided by ECI for
disclosing criminal antecedent, assets, liabilities and educational
qualification. These are just illustrative examples. You should
thoroughly check facts of each case with your understanding of legal
provisions and judicial decisions on the matter and decide accordingly."
Petitioner's Remarks:- Returning Officer misinterpreted the
heading and also ignored the important last three lines."
26] The petitioner has invited my attention to clauses and paragraphs of the
guidelines and instructions issued to returning officers and submits that clauses 9.4 and
9.6 have been completely ignored by the Returning Officer. The Returning Officer has,
therefore, erred in law in rejecting the nomination of the petitioner. Once the petitioner
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has filed a nomination and may be inadvertently, he has not filled in the details with
regard to the parliamentary constituency from which he is contesting the election, but,
there are other documents which have been filed with the nomination and which
indicate the details of the constituency, then, the Returning Officer, could not have
rejected the nomination of the petitioner at the time of scrutiny. At the time of scrutiny
the Returning Officer was obliged to take into account not only the contents of the
nomination but of the documents filed together with it viz., the request form, two
affidavits which were filed in compliance with section 33A of the RP Act. Similarly,
there were receipts which have been given and issued by the very election machinery in
which it is stated that the nomination of the petitioner for Mumbai North Central
Parliamentary constituency is received. If these documents together with the report
made on 9th April 2009 by the Returning Officer enclosing therewith the list of persons
who have submitted their nomination form for election to this constituency were
perused by the Returning Officer, then, apart from the other documents the columns of
the nomination form which have been filled in by the petitioner would indicate that the
petitioner's nomination was for the subject constituency and not for any other. The
Returning Officer thus carried out the scrutiny ignoring this material. His order is based
only on perusal of the Nomination Form and by not taking into consideration the other
documents. This coupled with the fact that the petitioner was registered as a voter/
elector from the Vandre (West) Constituency which is an undisputed fact. The
petitioner has heavily relied upon the deposition of the Returning Officer and certain
statements therein, which according to him, amount to an admission that the affidavits
filed along with nomination form are an integral part thereof and, therefore, while
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scrutinising the nomination form, the Returning Officer can look at them.
27] In the written arguments handed over on 9th October 2011, the petitioner has
highlighted that though the respondent, returned candidate, has not objected to his
nomination form at the scrutiny, yet the same has been rejected. On the other hand,
many candidates including the petitioner had objected to the acceptance of the
nomination form of the respondent. The respondent was given an opportunity to meet
each of these objections and an Advocate was present for her, whereas the petitioner
was handicapped inasmuch as he had to meet the objections which have been raised suo
moto by the Assistant Returning Officer, to his nomination. It is his further argument
that the Returning Officer was not discharging his duties and scrutinising the
nomination but it was the Assistant Returning Officer who undertook that task and
completed it. Thus, the Returning Officer having not rejected the nomination, the order
made in that behalf is erroneous and illegal and should be set aside.
28] As far as issue No.2 is concerned, the petitioner relies upon clause 9.4 of the
Guidelines/handbook for Returning Officers and urges that the Returning Officer should
have allowed or even suggested to the petitioner at the time of filing of nomination form
to fill in the blank space. The only jurisdiction the Returning Officer has at the scrutiny
stage is to see, whether the nominations are in order and to hear and decide the
objections. While it is true that at that stage he cannot remedy any defects or permit
them to be remedied but he cannot reject any nomination paper on the ground of
technical or clerical defect which is not of a substantial character. Relying upon the
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testimony of the Returning Officer, it is urged by the petitioner that if the video
recording of the scrutiny of nomination is taken into account that would squarely prove
his case. He, therefore, faulted an order of this Court made in Application No.6 of 2011
not permitting him to rely upon this compact disc/ video recording. He strenuously
submits that technicalities and procedural aspects of law were given prominance and
importance. Therefore, there is failure of justice. He submits that if the video recording
had been allowed to be exhibited that would clearly demonstrate that it was the
Assistant Returning Officer who took all the decisions and the Returning Officer
without applying his mind accepted those decisions of the Assistant Returning Officer.
He further submits that when the nomination form came up for scrutiny the Returning
Officer refused to even hear a word from the petitioner and his nomination form was
rejected instantly without anybody present raising any objection thereto. According to
the petitioner, he was denied equal protection of law as also he was not treated equally
before law. There is violation of mandate of Article 14 of the Constitution of India.
29] In the final set of written arguments which were tendered in response to the
returned candidates rejoinder argument, these very contentions have been reiterated. In
support of his submissions, the petitioner has relied upon the following decisions:-
(1) 2000 (6) SCC 224 (Lily Thomas Etc. Etc. Vs. Union of India);
(2) A.I.R. 2002 S.C. 177 (Rupa Ashok Hurra Vs. Ashok Hurra & Anr)
(3) A.I.R. 1988 S.C. 1531 (A.R.Antulay Vs. R.S.Nayak & Anr.)
(4) 2011(7) SCC 721 (Andiesha Reddy Vs. Kavitha Mahesh)
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(5) A.I.R. 1960 SC 1049 (Brijendralal Gupta & Anr. Vs. Jwalaprasad & Ors.)
(6) A.I.R. 1972 S.C. 580 (Ram Awadesh Singh Vs. Smt.Sumitra Devi & Ors.)
(7) Unreported judgement of Punjab and Haryana High Court in the case of
(Sukhbir Singh Vs. Gurcharan Singh & Ors.) F.A.O.No.5125 OF 2005 decided
on 17.10.2006
30] Mr.Dhakephalkar, learned Senior Counsel appearing for respondent has
contended that there is no merit in any of these contentions. The petitioner is not
disputing that he had not filled in the column pertaining to the name of the constituency
and left it blank. Once he has left it blank, then, this is a defect of a substantial
character and there is no question of condoning it. The contentions of Mr.Dhakephalkar
can be summarised thus:-
(A) That the petitioner was required to fill in Part II (since he was not a
candidate set up by any political party) and if required to fill in Part III. In the present
case, the petitioner was required to fill in and complete the details such as (i)
Nomination as a candidate for election to the House of People from which he is
contesting the election (ii) Candidate's full name, his postal address etc.; (iii) Entries
pertaining to name, address and electoral roll number of the candidate etc., for the
particular assembly constituency comprising in the particular Parliamentary
constituency. Other details to be filled in by the candidates and at the end of that part,
the candidate (petitioner) was required to sign. The petitioner, therefore, was required
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to fill in all the details in the above part without which the nomination paper would
remain incomplete. If any of the columns are left blank and/or not filled in by the
candidate, the said defect cannot be cured later and such a defect would be a defect of
substantial nature. Resultantly, the nomination paper is liable to be rejected. As is an
admitted position, which is also evident from Exh.P-22 (Nomination paper of
petitioner), the petitioner has failed to mention the name of the constituency from which
he was to contest the election. From the perusal of Part II, III and III-A, which is filled
in by the petitioner, it cannot at all be understood from which constituency the petitioner
was intending to contest the election. The mention of "Mumbai North Central" in the
latter part of Part II only indicates that the petitioner is a voter of 177, Vandre (West),
which assembly constituency falls within Mumbai North Central Parliamentary
Constituency. This would not take the petitioner's case any further because it would
only indicate that the petitioner's name is shown in the electoral roll of some
constituency. It does not indicate that he would contest from the very same
Parliamentary constituency. It is permisible and possible for the petitioner to contest
from any other constituency by mentioning the name of the constituency from which he
wants to contest. However, if he fills in the name of other constituency in the first
column in Part II, then, he will be required to produce a certificate in proof of his name
being there in the electoral roll of 177, Vandre (East) Assembly constituency (falling in
Mumbai North Central Parliamentary Constituency.). Mr.Dhakephalkar, therefore,
submits that since the name of the constituency has not been filled in by the petitioner,
the Returning Officer has rightly rejected his nomination paper as the defect is of a
substantial nature.
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(B) Mr. Dhakephalkar, then submits that the question, therefore, obviously
arises is whether such a defect is of a substantial nature and the rejection by the
Returning Officer was legal and proper. In this behalf, Mr.Dhakephalkar submits that
section 33 of the RP Act is pertinent as it deals with the same. As per this provision, a
nomination paper is required to be completed in the prescribed form and signed by the
candidate and by an elector of the Constituency as proposer. The candidate has to file a
copy of electoral roll of the constituency, at the time of filing of nomination paper, in
support of his claim that he is an elector of a different constituency and if not filed at
that time he should file at the time of scrutiny. On presentation of Nomination paper,
the Returning officer is required to satisfy himself about names and electoral roll,
number of candidate and his proposer as entered in the nomination paper and ascertain
whether they are the same as entered in the electoral roll. Further, there should be no
misnomer or inaccurate description or clerical, technical or printing error in regard to
the name of candidate or his proposer or any other person, place mentioned in the
electoral roll or the nomination paper and electoral roll numbers of any such person in
the electoral roll or the nomination paper, in which case the Returning Officer shall
permit the candidate to rectify the same. In the submission of Mr.Dhakephalkar, the
petitioner has not completed the nomination paper in the prescribed form. Further, the
defect left in the nomination paper does not fall in any one of the aforementioned
categories and, therefore, there was no question of the Returning Officer either pointing
out the same to the petitioner and/or permitting the petitioner to rectify the same. This
being the position, the nomination of the petitioner based on the defective nomination
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paper, was not valid nomination as contemplated under section 33 of the RP Act.
(C) Similarly, there is no question of the Returning Officer pointing out any
defect in the nomination paper and/or permitting curing of any defect in the Nomination
paper unless the same falls within the categories mentioned in Section 33(4) of the RP
Act. Clauses 15.2 to 15.4 are not relevant for the purpose of this petition. More over, it
is not the case of the petitioner that the defect in question was discovered during
preliminary examination at the time of filing of nomination forms. In any case, it is not
part of their duty and/or it is too much to expect from the Returning Officer and/or
Assistant Returning Officer to scrutinise the nomination paper and point out any defect
therein at the stage of filing of nomination paper. Precisely, therefore, the Election
Commission has to sound out that preliminary examination of nomination paper does
not mean holding any formal scrutiny of nomination paper.
(D) Section 36 of the said Act deals with scrutiny of nominations. Sub-
section (2) of Section 36 stipulates that the Returning Officer shall examine the
nomination paper and shall decide all objections which may be taken to any nomination
and reject any nomination on the grounds such as (i) on the date of scrutiny candidate is
not qualified or disqualified; (ii) that there has been a failure to comply with any of the
provisions of section 33 or section 34; or (iii) that the signature of the candidate or the
proposer on the nomination paper is not genuine.
(E) Chapter VI of the handbook for Returning Officers deal with scrutiny of
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nominations. Clause 6 thereof enjoins a duty on the Returning Officer to the effect that
even if no objection is raised, he is required to satisfy that the nomination paper is valid
in law. Only when such an objection is raised to any nomination paper, the Returning
Officer is required to hold a summary inquiry to decide the same. Most importantly,
clause 9.6 of Chapter VI, the handbook prescribes instances of defects to be treated as
that of a substantial nature, i.e., (i) failure to declare age in the nomination paper; (ii)
failure to sign by candidate or his proposer in the manner prescribed; (iii) failure to
produce evidence of being a registered elector where a candidate is contesting election
from different constituency; (iv) failure to submit written authorisation form from
political party within prescribed manner (v) failure to mention name of constituency,
particularly in a general election; (vi) failure to give full address in nomination paper;
(vii) failure to file affidavit in form 26 and/or affidavit provided by Election
Commission of India for disclosing criminal antecedents, assets etc. It is therefore,
pertinent to note that these defects are not permissible to be rectified even at the
preliminary examination of the nomination paper leave alone at the time of actual
scrutiny under section 36 of the RP Act.
(F) It is further submitted by Mr.Dhakephalkar that the defect of failure to
mention the name of the constituency in the nomination paper by the petitioner is a
defect of a substantial character and was liable to be and rightly rejected by the
Returning Officer. No fault can, therefore, be found with the order of Returning Officer
invalidating the petitioner's nomination.
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(G) Mr.Dhakephalkar further submits that there is no doubt that in the present
case, there has been a failure to comply with the provisions of section 33 inasmuch as
the name of the Constituency was not stated in the nomination paper, which, therefore,
could not be treated as having been completed in the prescribed form as required by
Section 33(1) of the RP Act. This defect was essentially of a substantial character and
did not fall within those provisions where the Returning Officer is enjoined either to get
the defect rectified or ignore it. It was not the duty of the Returning Officer at the stage
of scrutiny to draw the attention of the petitioner to the aforesaid substantial defect for
the purpose of getting the same cured and the Returning Officer was fully justified in
rejecting the nomination paper.
(G) Insofar as the grounds for challenging the rejection, that the Nomination
form in the form of affidavits, showed the name of Constituency from which the
petitioner was contesting the election and that the Returning Officer ignored the same
and that the Returning Officer did not hold a summary inquiry before rejection of
nomination and that letters, receipts and other documents issued by the Returning
Officer clearly showed that the petitioner was intending to contest the election from
Mumbai North Central Parliamentary Constituency, it is submitted by Mr.Dhakephalkar
that all these grounds are wholly misconceived, misplaced and untenable, both in law
and on facts. Firstly, the submission is that what is under scrutiny under section 36 is a
nomination form as contemplated under Rule 4 of the Rules. Affidavits prescribed by
Election Commission are sought for under section 33-A of the Act read with rule 4A of
the Rules. Perusal of the said provisions would make it clear that these affidavits are
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considered to be accompaniments to a nomination form and does not form integral part
of nomination form. The contents of these accompaniments are not subjected to
scrutiny under section 36. It may be that these accompaniments are mandatory and
ought to be annexed along with nomination form and may, in a given case, call for
rejection of nomination form. But it is pertinent to note here that the contents of such
affidavits are not subject to scrutiny. For example, a statement made in the affidavit
about criminal antecedents, assets, liabilities etc. cannot be a subject matter of inquiry
before the Returning Officer at the stage of Scrutiny under section 36. The purpose of
seeking these affidavits is only for the purpose mentioned in section 33A i.e. Right to
information and nothing else. By relying upon a decision of Supreme Court reported
in A.I.R. 1960 SC 1049 (Brijendralal Gupta Vs. Jwalaprasad) Mr.Dhakephalkar submits
that the Supreme Court has held that there was no question of holding any inquiry in
such matters and the only thing which a Returning Officer has to decide is as to whether
the defect in the nomination paper is of a substantial character or not.
31] Mr.Dhakephalkar in support of his submissions relied upon following
decisions:-
1. Prahladdas Khandelwal Vs. Narendra Kumar Salve (A.I.R. 1973 S.C. 178)
2. Brijendralal Gupta and Anr. Vs. Jwalaprasad and Ors. (A.I.R. 1960 S.C. 1049)
3. Rattan Anmol Singh and Anr. Vs. Ch.Atma Ram & Ors (A.I.R. 1954 SC 510)
4. Udhav Singh Vs. Madhav Rao Scindia (A.I.R. 1976 S.C. 744)
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32] For properly appreciating these contentions a reference will have to be made to
RP Act 1951. It is an Act to provide for the conduct of elections to the House of People
and the House of Legislature of each States, the Qualifications and disqualifications for
membership on these houses the corrupt practices and other offences at or in connection
with such elections and the decisions of doubts and disputes arising out of or in
connection with such elections. The Act has been amended after it was enacted in 1951.
The various amendments need not be referred to in great details, save and except
wherever necessary. Suffice it to state that RP Act is a complete and self-contained
code. In the case of Harcharan Singh Vs. S. Mohinder Singh reported in A.I.R. 1968
S.C.1500, the Supreme Court held that the primary purpose of the diverse provisions of
the election law which may appear to be technical is to safeguard the purity of the
election process and the Courts will not ordinarily minimise their operation. The
definitions under this Act are summarised in section 2 which is entitled "interpretation".
This section appears in Part I entitled "Preliminary". The word "Elector" is defined in
section 2(e). The word "Political Party" is defined in section 2(f) so also the Part II
entitled "Qualifications and disqualifications" would demonstrate that Part II is divided
in several chapters. Chapter I provides for qualifications for membership of Parliament
and Chapter II thereunder provides for qualifications for membership of State
Legislatures and Chapter III is providing for disqualifications for membership of
Parliament and State Legislature and Chapter IV in this part is dealing with
disqualifications for voting. Part III is entitled "Notification of General Elections" and
Part IV is entitled "Administrative Machinery for the conduct of elections". What has
been stated in this part and Part V is that unless the context otherwise requires, the
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"constituency" means a parliamentary constituency or a assembly constituency or a
Council constituency. (See section 19). Section 19-A enables delegation of functions of
election commission. Section 20 provides for "general duties of Chief Electoral
Officers and they shall supervise the conduct of all elections in the State under this Act.
Section 20-A and 20-B deal with General duties of District Election Officers and also
provides for Observers. Section 21 is dealing with Returning Officers. This person
shall be designated or nominated for every election and he shall be Officer of
Government or of a local authority. I am not concerned with the proviso therewith.
Then comes section 22 on which some reliance is placed and that deals with Assistant
Returning Officer. He is to assist Returning Officers in the performance of his function
and he shall also be an officer of Government or a local authority. However, sub-
section 2 of section 22 is relied upon in support of the argument that every Assistant
Returning Officer shall subject to the control of the Returning Officer be competent to
perform all or any of the functions of the Returning Officer but no Assistant Returning
Officer shall perform any of the functions of the Returning Officer, which relate to the
scrutiny of nominations, unless the Returning Officer is unavoidably prevented from
performing such function. Therefore, the word "Returning Officer" will also include
"Assistant Returning Officer" performing the functions of Returning Officer, if so
authorised and that is dealt with by section 23. Section 24 deals with General Duty of
the Returning Officer and he has to do all such acts and things as will be necessary for
effectively conducting the election in the manner provided by this Act and rules
provided thereunder. The provisions for polling station for constituencies is a matter
dealt with by section 25 and section 26 onwards deal with Presiding Officers, Polling
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Officers and special provisions in certain cases.
Part IV-A deals with Registration of Political Parties and then comes Part V
which is entitled "Conduct of Elections" Thereunder Chapter I deals with nomination
of Candidates. Therein, sections 30, 31 and 32 deal with a situation when a notification
calling upon the Constituency to elect a member or members is issued by Election
Commission in the Official Gazette. Thereafter, the last date for making nominations,
date for scrutiny for nominations, last date for withdrawal of candidature and date or
dates on which a poll shall, if necessary, be taken and finally the date before which the
elections shall be completed all to be notified in this notification to be issued by the
Election Commission. Once this notification is issued section 31 contemplates giving
of public notice of the intended elections by the Returning Officer and therein, he must
invite nominations of candidates for such election and specify the place at which
nomination papers are to be delivered. Section 32 states that any person may be
nominated as a candidate for election to fill a seat if he is qualified to be chosen to file
the seal under the provisions of the Constitution and the RP Act. Then comes section 33
which reads thus:-
"33 Presentation of nomination paper and requirements for a valid
nomination.-(1) On or before the date appointed under clause (a) of section
30 each candidate shall, either in person or by his proposer, between the
hours of eleven O'clock in the forenoon and three O'clock in the afternoon
deliver to the returning officer at the place specified in this behalf in the
notice issued under section 31 a nomination paper completed in the
prescribed form and signed by the candidate and by an elector of the
Constituency as proposer;
"Provided that a candidate not set up by a recognised political
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party, shall not be deemed to be duly nominated for election from a
constituency unless the nomination paper is subscribed by ten proposers
being electors of the constituency:"
"Provided further that no nomination paper shall be delivered to the
returning officer on a day which is a public holiday"
"Provided also that in the case a local authorities' constituency,
graduates' constituency or teachers' constituency, the reference to "an
elector of the constituency as proposer" shall be construed as a reference
to ten per cent of the electors of the constituency or ten such electors,
whichever is less, as proposers"
"1-A: Notwithstanding anything contained in sub-section (1), for
election to the Legislative Assembly of Sikkim (deemed to be the
Legislative Assembly of the State duly constituted under the Constitution)
the nomination paper to be delivered to the returning officer shall be in
such form and manner as may be prescribed;
"Provided that the said nomination paper shall be subscribed by the
candidate as assenting to the nomination, and -
(a) in the case of a seat reserved for Sikkimese of Bhitia
Lepcha origin also by at least twenty electors of the constituency as
proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at
least twenty electors of the constituency as proposers and at least twenty
electors of the constituency as seconders;;
(c) in the case of a seat reserved for Sikkimese of
Nepali origin, by an elector of the Constituency as proposer;
(2) In a constituency where any seat is reserved, a candidate
shall not be deemed to be qualified to be chosen to fill that seat unless his
nomination paper contains a declaration by him specifying the particular
caste or tribe of which is a member and the area in relation to which that
caste or tribe is a scheduled caste or, as the case may be, a scheduled tribe
of the State;
(3) Where the candidate is a person who, having held any office
referred to in section 9 has been dismissed and a period of five years has
not elapsed since the dismissal, such person shall not be deemed to be duly
nominated as a candidate unless his nomination paper is accompanied by a
certificate issued in the prescribed manner by the Election Commission to
the effect that he has not been dismissed for corruption or disloyalty to the
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State;
(4) On the presentation of a nomination paper, the returning
officer shall satisfy himself that the names and electoral roll numbers of
the candidate and his proposer as entered in the nomination paper are the
same as those entered in the electoral rolls;
"Provided that no misnomer or inaccurate description or clerical,
technical or printing error in regard to the name of the candidate or his
proposer or any other person, or in regard to any place, mentioned in the
electoral roll or the nomination paper and no clerical, technical or printing
error in regard to the electoral roll numbers of any such person in the
electoral roll or the nomination paper, shall affect the full operation of the
electoral roll or the nomination paper with respect to such person or place
in any case where the description in regard to the name of the person or
place is such as to be commonly understood; and the returning officer shall
permit any such misnomer or inaccurate description or clerical, technical
or printing error to be corrected and where necessary, direct that any such
misnomer, inaccurate description, clerical, technical or printing error in the
electoral roll or in the nomination paper shall be overlooked."
(5) Where the candidate is an elector of a different
constituency, a copy of the electoral roll of that constituency or of the
relevant part thereof or a certified copy of the relevant entries in such roll
shall, unless it has been filed along with the nomination paper, be
produced before the returning officer at the time of scrutiny.
(6) Nothing in this section shall prevent any candidate from
being nominated by more than one nomination paper;
Provided that not more than four nomination papers shall be
presented by or on behalf of any candidate or accepted by the returning
officer for election in the same constituency;
(7) Notwithstanding anything contained in sub-section (6) or in
any other provisions of this Act, a person shall not be nominated as a
candidate for election -
(a) in the case of a general election to the House of the
People (whether or not held simultaneously from all Parliamentary
constituencies), from more than two Parliamentary constituencies;
(b) in the case of a general election to the Legislative
Assembly of a State (whether or not held simultaneously from all
Assembly constituencies), from more than two Assembly constituencies in
that State;
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(c) in the case of a biennial election to the Legislative
Council of a State having such Council, from more than two Council
constituencies in the State;
(d) in the case of a biennial election to the Council of
States for filling two or more seats allotted to a State, for filling more than
two such seats;
(e) in the case of bye-elections to the House of the
People from two or more parliamentary constituencies which are held
simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative
Assembly of a State from two or more Assembly constituencies which are
held simultaneously from more than two such Assembly constituencies;
(g)
ig in the case of bye-elections to the Council of States
for filling two or more seats allotted to a State, which are held
simultaneously, for filling more than two such seats;
(h) in the case of bye-elections to the Legislative
Council of a State having such Council from two or more Council
constituencies which are held simultaneously, from more than two such
Council constituencies.
(Explanation:- For the purposes of this sub-section, two or
more bye-elections shall be deemed to be held simultaneoulsy where the
notification calling such bye-elections are issued by the Election
Commission under sections 147, 149, 150 or as the case may be, 151 on
the same date.)"
33] A perusal of the same would reveal that sub-section 1 provides for delivering of
the nomination paper but it should be complete in the prescribed form and signed by the
candidate and by an elector of the constituency as proposed. If the proviso to sub-
section 1 of section 33 is perused, it would be at once clear that a nomination can be of
an candidate set up by recognised political party or any candidate who is not so set up.
In the case of such candidate, he must have been subscribed by 10 proposers who shall
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be electors of the Constituency.
34] I am not concerned with sub-section 1-A of section 33 as it deals with election to
the Legislative Assembly of Sikkim. Sub-section 2 of section 33 provides for a
situation where a candidate fills in a nomination for a reserved seat and there the
obligation and duty is to specify the particular caste or tribe of which he is a member
and the area in relation to which that caste or tribe is a scheduled caste or as the case
may be a scheduled tribe of the State. Sub-section 3 of section 33 deals with a case
where a person who having held any office referred to in section 9 has been dismissed
and a period of five years has not elapsed since the dismissal, such a person shall not be
deemed to be duly nominated as a candidate.
35] Since heavy reliance is placed on sub-section 4 of section 33, one must read it
very carefully. Its perusal would indicate that on the presentation of a nomination
paper, the Returning Officer shall satisfy himself that the names and electoral roll
numbers of the candidate and his proposer as entered in the nomination paper are the
same as those entered in the electoral rolls. The proviso thereto clarifies that no
misnomer or inaccurate description or clerical, technical or printing error in regard to
the name of the candidate or his proposer or any other person or in regard to any place
mentioned in the electoral roll or nomination paper can be said to be fatal. Therefore,
any inaccurate description or clerical, technical or printing error in relation to the
electoral roll number shall affect the full operation of the electoral roll or the
nomination paper and where there is no occasion for any correction, then, the
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nomination of the candidate cannot be affected. The Returning Officer is duty bound to
permit such misnomer or inaccurate, technical, clerical or printing error to be corrected
and equally he can direct that any such misnomer, inaccurate description, clerical,
technical or printing error in the electoral roll or nomination paper shall be overlooked
wherever necessary. The other requirements are specified in sub-section 5 and what it
permits is production of a copy or relevant part of the electoral roll or a certified copy of
relevant entries in such rolls before the Returning Officer at the time of scrutiny if the
same is not filed along with the nomination paper. Sub-section 6 states that nothing in
this section shall prevent any candidate from being nominated by more than one
nomination paper and the proviso gives an outer limit in that behalf. Sub-section 7
spells out the requirement for person to be nominated as a candidate for election and he
shall not be nominated if any of the aspects covered by clauses (a) to (h) are attracted.
Section 33-A and 33-B have been inserted by Act 72 of 2002 and they read thus:-
"33-A: Right to information - (1) A candidate shall, apart from any
information which he is required to furnish, under this Act or the rules
made thereunder, in his nomination paper delivered under sub-section (1)
of section 33 also furnish the information as to whether --
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending case in which a charge
has been framed by the Court of competent jurisdiction;
(ii) he has been convicted of an offence other than any
offence referred to in sub-section (1) or sub-section (2) or covered in sub-
section (3) of section 8 and sentenced to imprisonment for one year or
more.
(2) The candidate or his proposer, as the case may be, shall, at
the time of delivering to the returning officer the nomination paper under
sub-section (1) of section 33, also deliver to him an affidavit sworn by the
andidate in a prescribed form verifying the information specified in sub-
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section (1).
(3) The returning Officer shall, as soon as may be after the
furnishing of information to him under sub-section (1), display the
aforesaid information by affixing a copy of the affidavit, delivered under
sub-section (2), at a conspicuous place at his office for the information of
the electors relating to a constituency for which the nomination paper is
delivered."
"33-B: Candidate to furnish information only under the Act and the
Rules --- Notwithstanding anything contained in any judgement, decree or
order of any court or any direction, order or any other instruction issued
by the Election Commission, no candidate shall be liable to disclose or
furnish any such information, in respect of his election, which is not
required to be disclosed or furnished under this Act or the Rules made
thereunder."
36] The Statement of Objects and Reasons of Amendment Act 72 of 2002 read thus:-
"Amendment Act 72 of 2002 - Statement of Objects and Reasons
- In compliance with the directions of the Supreme Court in Civil Appeal
No.7178 of 2001 (Union of India Vs. Association for Democratic Reforms
and another), the Election Commission of India exercising powers under
Article 324 of the Constitution, issued an order on the 28th June 2002
prescribing a form of afffidait to be sworn by the candidates along with
their nomination pepers for elections to Parliament and State Legislatures.
It was provided in the order that failure to provide information required to
be furnished on affidavit may result in rejection of the nomination paper.
The information required to be furnished in the affidavit, inter alia, related
to criminal cases pending against the candidates, their assets and liabilities
as well as their educational qualifications. The Government held a
meeting of the political parties on the 8th July 2002 with a view to evolving
consensus regarding amendments required into Representation of the
People Act, 1951 as well as nomination forms so as to take care of some of
the concerns expressed in the directions of the Supreme Court on the
subject of criminalisation of politics. The representatives of the various
political parties unanimously expressed the view that there was need to
curb criminalisation of politics and suggested that a draft bill be circulated
for consideration of the political parties. A draft bill was accordingly
prepared and discussed in the meeting of the political parties held on
2/8/2002, which was listed for introduction in the Lok Sabha on
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12/8/2002, but due to prorogation of the monsoon session could not be
introduced. The Representation of the People (Amendment) Ordinance
2002 was therefore, promulgated on 24/8/2002 and amendment were also
carried out in the nomination forms appended to the Conduct of Elections
Rules, 1961 on 3/9/2002, in pursuance of the said Ordinance. The present
bill which replaces the said Ordinance contains the following salient
features:-
(i) A Candidate contesting an election for Parliament or State
Legislature would be required to disclose as to whether he is accused of
any offence punishable with imprisonment for two years or more in a
pending case in which charges have been framed and as to whether he has
been convicted of an offence in which the punishment has been awarded
for one year or more, for the information of the voters. However, a
candidate would be required to furnish information only under a law made
by the Parliament or the Rules made thereunder, and not otherwise.
(ii)
An elected candidate has to declare his assets and liabilities
before the Presiding Officer of the House concerned.
(iii) A candidate contesting an election would be liable for penal
consequences for filing a false affidavit or concealing the required
information. He would also be liable for similar consequences for giving
false information or concealing required information in his nomination
papers to be filed before the Returning Officer."
37] A perusal of these provisions and the Statement of Objects and reasons reveal
that to comply with the order of the Supreme Court and the directions therein (Civil
Appeal No.178 of 2001) Union of India Vs. Association for Democratic Rights and
Anr), the election commission of India issued an order on 28th June 2002 prescribing a
form of affidavit to be sworn by the candidate along with their nomination papers for
election to parliament and State Legislatures and it was provided in the order that
failure to provide information on affidavit may result in rejection of the nomination
paper. Now, a perusal of section 33-A and 33-B would reveal that a candidate shall
apart from any information which is required to be furnished under this Act or the Rules
made thereunder, in his nomination paper delivered under sub-section (1) of section 33
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also furnish the information as to whether he is accused of any offence or has been
convicted of an offence and more particularly of the nature set out therein. Sub-section
2 of section 33-A states that a candidate or his proposer shall at the time of delivery of
the nomination paper to the Returning Officer under sub-section 1 of section 33-A also
deliver to him an affidavit sworn by the candidate in a prescribed form verifying the
information specified in sub-section (1) of section 33-A and sub-section 3 mandates that
the Returning Officer shall display the information provided to the Returning Officer by
affixing a copy of the affidavit on a conspicuous place at his office, relating to a
constituency for which nomination is delivered. Then comes sections 34 and 35 which
deal with deposits and notice of nomination and time and place of their scrutiny and
then comes section 36 which reads thus:-
"36. Scrutiny of nominations.--(1) On the date fixed for the scrutiny
of nominations under section 30, the
candidates, their election agents, one proposer of each candidate, and one
other person duly authorized in writing by
each candidate, but no other person, may attend at such time and place as
the returning officer may appoint; and the
returning officer shall give them all reasonable facilities for examining
the nomination papers of all candidates which have
been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers
and shall decide all objections which may be
made to any nomination and may, either on such objection or on his own
motion, after such summary inquiry, if any, as he
thinks necessary, 4[reject] any nomination on any of the following
grounds:--
[(a)[that on the date fixed for the scrutiny of nominations
the candidate] either is not qualified or is
disqualified for being chosen to fill the seat under any of the following
provisions that may be applicable, namely:
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Articles 84, 102, 173 and 191,
[Part II of this Act, and sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of
1963)]; or
(b) that there has been a failure to comply with any of the
provisions of section 33 or section 34 ; or
(c) that the signature of the candidate or the proposer on the
nomination paper is not genuine].
(3) Nothing contained in [clause (b) or clause (c)] of sub-section
(2) shall be deemed to authorize the [rejection]
of the nomination of any candidate on the ground of any irregularity in
respect of a nomination paper, if the candidate has
been duly nominated by means of another nomination paper in respect of
which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the
ground of any defect which is not of a
substantial character.
(5) The returning officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of section
30 and shall not allow any adjournment of the proceedings except when
such proceedings are interrupted or
obstructed by riot or open violence or by causes beyond his control:
Provided that in case 2[an objection is raised by the returning
officer or is made by any other person] the candidate
concerned may be allowed time to rebut it not later than the next day but
one following the date fixed for scrutiny, and the
returning officer shall record his decision on the date to which the
proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his
decision accepting or rejecting the same and, if
the nomination paper is rejected, shall record in writing a brief statement
of his reasons for such rejection.
[(7) For the purposes of this section, a certified copy of an entry in
the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that constituency,
unless it is proved that he is subject to a disqualification mentioned in
section 16 of the Representation of the People Act,
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1950 (43 of 1950).
(8) Immediately after all the nomination papers have been
scrutinized and decisions accepting or ejecting the same
have been recorded, the returning officer shall prepare a list of validly
nominated candidates, that is to say, candidates
whose nominations have been found valid, and affix it to his notice
board.]
"
38] The other provisions of the Act and this part need not be reproduced or referred
to in great details because argument of the petitioner in this case is that his nomination
could not have been rejected at the scrutiny by the Returning Officer because there is no
failure on his part to comply with any of the provisions, namely, section 33 or 34. His
plea and his emphasis is that his nomination paper was complete and in the prescribed
form and signed by him and even by an elector of the constituency as a proposer/s.
Therefore, it could not have been rejected. Whereas the argument on the other side is
that the nomination paper submitted by the petitioner was not complete in the
prescribed form.
39] Thus, the arguments proceed on the admitted foundation and basis, namely, that
a printed nomination paper in the prescribed form was provided to the parties, the
contents of which are required to be filled in by the candidates and that the said
nomination conforms with and was in consonance with the conduct of Election Rules,
1961.
40] The Conduct of Election Rules 1961 are framed by the Central Government
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after consulting Election Commission of India for carrying out the purpose of this Act
and what it provides for are the matters enumerated in sub-section 2 of section 169.
41] The Rules framed insofar as the nomination papers are concerned are rules 2, 3
and 4 which read as under:-
"2. Interpretation.--(1) In these rules, unless the context otherwise
requires,--
(a) "Act" means the Representation of the People Act, 1951 (43 of
1951);
(b) "ballot box" includes any box, bag or other receptacle used for the
insertion of ballot paper by
voters;
[(ba) "counterfoil" means the counterfoil attached to a ballot paper
printed under the
provisions of these rules;]
(c) "election by assembly members" means an election to the Council
of States by the elected members of
the Legislative Assembly of a State by the members of the electoral
college of a Union territory, or an election
to the Legislative Council of a State by the members of the Legislative
Assembly of that State;
(d) "elector", in relation to an election by assembly members, means
any person entitled to vote at that
election;
(e) "electoral roll", in relation to an election by assembly members,
means the list
maintained under section 152 by the returning officer for that election;
(f) "electoral roll number" of a person means--
(i) the serial number of the entry in the electoral roll in respect of
that person;
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(ii) the serial number of the part of the electoral roll in which such
entry occurs; and
(iii) the name of the constituency to which the electoral roll relates;
["Form" means a Form appended to these rules and in respect of
any election in a State,
includes a translation thereof in any of the languages used for official
purposes of the State;
[(gg) "marked copy of the electoral roll" means the copy of the
electoral roll set apart for the purpose
of marking the names of electors to whom ballot papers are issued at an
election;]
(h) "polling station", in relation to an election by assembly members,
means the place fixed under
section 29 for taking the poll at that election;
(i) "presiding officer" includes--
(i) any polling officer performing any of the functions of a
presiding officer under sub-section (2)
or sub-section (3) of section 26; and
(ii) any returning officer while presiding over an election
under sub-section (2) of section 29;
(j) "returning officer" includes any assistant returning officer
performing any function he is authorised to
perform under sub-section (2) of section 22;
(k) "section" means a section of the Act.
(2) For the purposes of the Act or these rules, a person who is unable
to write his name shall, unless otherwise
expressly provided in these rules, be deemed to have signed an
instrument or other paper if--
(a) he has placed a mark on such instrument or other paper in the
presence of the returning officer or
the presiding officer or such other officer as may be specified in this
behalf by the Election Commission,
and
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(b) such officer on being satisfied as to his identity has attested the
mark as being the mark of that person.
(3) Any requirement under these rules that a notification, order,
declaration, notice or list issued or made by
any authority shall be published in the Official Gazette shall, unless
otherwise expressly provided in these rules, be
construed as a requirement that it shall be published in the Gazette of
India if it relates to an election to, or
membership of, either House of Parliament or an electoral college, and in
the Official Gazette of the State, if it relates to
an election to, or membership of, the House or either House of the State
Legislature.
(4) The General Clauses Act, 1897 (10 of 1897) shall apply for the
interpretation of these rules as it applies
for the interpretation of an Act of Parliament.
3. Public notice of intended election.--The public notice of an
intended election referred to in section 31 shall be in Form 1 and shall,
subject to any directions of the Election Commission, be published in
such manner as
the returning officer thinks fit.
4. Nomination paper.--Every nomination paper presented under
sub-section (1) of section 33 shall be
completed in such one of the Forms 2A to 2E as may be appropriate:
Provided that a failure to complete or defect in completing, the
declaration as to symbols in a nomination
paper in Form 2A or Form 2B shall not be deemed to be a defect of a
substantial character within the meaning of sub-
section (4) of section 36.
"
42] On 9th August 1996 a Notification has been issued by the Ministry of Law and
Justice (Legislative Department), New Delhi, by which the Central Government made
further Rules to amend the conduct of Election Rules, 1961. These Rules are called
Conduct of Election (Second Amendment) Rules 1996.
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43] Form I below the Rules stands substituted by what has been prescribed in this
notification. I am concerned with Form 2-A to 2-C and 3 which also stand substituted
by this very notification. That substituted form reads as under:-
PART - I
(To be used by candidate set up by recognised political party)
I nominate as a candidate for election to the House of the People
from the ............... Parliamentary Constituency.
Candidate's name ................... Father's/Mother's/husband's
name ............ His postal address ........... His name is entered at
S.No. ........... in Part No. .......... of the electoral roll for ...............
*(Assembly constituency comprised within) .......... Parliamentary
constituency.
My name is ................ and it is entered at S.No. ........... in Part
No. .......... of the electoral roll for ............. * (Assembly constituency
comprised within) ......... Parliamentary constituency.
Parliamentary Constituency.
Date .............. (Signature of Proposer)
PART - II
(To be used by candidate NOT set up by recognised political party)
We hereby nominate as a candidate for election to the House of
the People from the ............ Parliamentary Constituency.
Candidate's name ............. Father's/mother's/husband's
name ......... His Postal Address .............. His name is entered at
S.No. ........... in Part No. ......... of the Electoral roll for the * (Assembly
constituency comprised within) ........... Parliamentary constituency.
We hereby declare that we are electors of the above parliamentary
constituency and our names are entered in the electoral roll for that
Parliamentary Constituency as indicated below and we append our
signatures below in token of subscribing to this nomination:-
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Particulars of proposers and their signatures:
(TABLE)
N.B. There should be ten electors of the constituency as proposers.
PART - III
I, the candidate mentioned in Part I/ Part II (Strike out which is
not applicablee) assent to this nomination and hereby declare:-
(a) that I have completed ......... years of age;
(b)(i) that I am set up at this election by the ........... party
which is recognised National Party/ State Party in this State and that the
symbol reserved for the above party be allotted to me.
ig OR
(b)(ii) that I am set up at this election by the ....... party,
which is a registered - unregistered political party/ that I am contesting
this election as an independent candidate. (Strike out which is not
applicable) and that the symbols I have chosen, in order of preference,
are;-
(i) ....... (ii) ......... (iii).............
(c) that my name and my father's/mother's/husband's
name have been correctly spelt out above in ......... (name of the
language);
(d) that to the best of my knowledge and belief, I am
qualified and not also disqualified for being chosen to fill the seat in the
House of the People.
* I further declare that I am a member of the ..........
** Caste/ tribe which is a scheduled
*** Caste/ Tribe of the State of ......... in relation to ..........
(area) in that State.
I also declare that I have not been, and shall not be.
**** nominated as a candidate at the present general
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election/the bye-elections being held simultaneously, to the House of the
People from more than two Parliamentary Constituencies.
Date ........... (Signature of Candidate)
* Score out the words "assembly constituency comprised within" in
the case of Jammu and Kashmir, Andaman and Nicobar Islands,
Chandigarh, Dadra and Nagar Haveli, Daman and Diu and Lakshadweep
** Score out this paragraph, if not applicable;
** Score out the words not applicable.
@ Not applicable in the case of Jammu and Kashmir, Andaman and
Nicobar Islands, Chandigarh, Dadra and Nagar Haveli, Daman and Diu
and Lakshadweep.
N.B. A "Recognised Political Party" means a political party recognised by
the Election Commission under the Election Symbols (Reservation and
Allotment) Order, 1968 in the State concerned.
PART III-A
(To be filled by the Candidate)
Whether the Candidate -
(i) has been convicted -
(a) of any offence(s) under sub-section (1); or
(b) for contravention of any law specified in sub-
section (2) of section 8 of the Representation of People Act, 1951 (43 of
1951); or
(ii) has been convicted for any other offence(s) for which he
has been sentenced to imprisonment for two years or more.
(State Yes/ No)
If the answer is "Yes", the candidate shall furnish the following
information:
(i) Case/First Informattion Report No./Nos. ...........
(ii) Police Station(s) ........ District(s) ......... State(s) ..........
(iii) Section(s) of the concerned Act(s) and brief description of
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the offence(s) for which he has been convicted .........
(iv) Date(s) of conviction(s) ..........
(v) Court(s) which convicted the candidate .......
(vi) Punishment(s) imposed [Indicate period of
imprisonment(s) and/or quantum of fine(s)] ..............
(vii) Date(s) of release from prison ..........
(viii) Was/were any appeal(s)/revision(s) filed against above
conviction(s) ........ (yes/ no)
(ix) Date and particulars of appeal(s)/ application(s) for
revision filed .......
(x)
Name of the court(s)
appeal(s)/application(s) for revision filed .............
before which the
(xi) Whether the said appeal(s)/application(s) for revision
has/have been disposed of or is/are pending ..............
(xii) If the said appeal(s)/application(s) for revision has/have
been disposed of
(a) Date(s) of disposal ............
(b) Nature of order(s) passed ......
Place :
Date : (Signature of candidate).
44] The Nomination Paper was in this prescribed form and the portion in Part III-A
was scored off in this case as inapplicable to the Petitioner. Pertinently, in this part there
is no column about the constituency. Therefore, it is not possible to construe the
requirements that are provided by section 33(1) of a nomination paper completed in the
prescribed form being delivered by the Candidate de hors the Rules and the form. The
form in which the nomination paper has to be made is clear inasmuch as part I of the
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Form is to be filled in by a Candidate set up by a political party and Part II by the
candidate not set up by any recognised political party thereby for a valid and complete
nomination for the election to the house of people from any parliamentary constituency,
the name of the constituency must be filled in. In the instant case, the admitted position
is that this column/ portion in the form has been kept blank by the petitioner. His
argument that this column may have been left blank but the constituency to which the
election is held is known to all including the Returning Officer and Assistant Returning
Officer. Therefore, by leaving this column blank, it cannot be said that the Returning
Officer could have rejected his nomination paper for this defect as it is not of a
substantial character. It is not possible to accept this contention for more than one
reason. That this is a defect of substantial character is now conclusively held by the
Hon'ble Supreme Court in the case of Prahladdas Khandelwal vs. Narendra Kumar
Salve reported in AIR 1973 Supreme Court 178. Dealing with an identical controversy,
this is what the Supreme Court has held:-
"3 The appellant filed his nomination paper on February 2, 1971.
An acknowledgement of the receipt of the nomination paper was
given by the Assistant Returning Officer. The Assistant Returning
Officer gave a certificate under Art. 84 of the Constitution that the
appellant had been administered the oath as required under that
Article. In this certificate there was a mention of 26th Betul
Parliamentary Constituency. According to the evidence of the
Assistant Returning Officer Shri S. K. Sharma R.W. 2, in the
nomination paper which the appellant filed there was no mention of
the Parliamentary Constituency from which he was contesting the
election. This defect was pointed out to him by the Assistant Returning
Officer but it appears that the appellant did not cure that defect. On
February 4, 1971 which was the date fixed for scrutiny the nomination
paper of the appellant was rejected by the Returning Officer Shri
Komal Singh Thakur, Collector of Betul on the objection of one
Goverdhandas. The ground given for rejection was that the name of
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the Constituency for which the appellant had filed the nomination
paper was not mentioned therein. The Returning Officer held that
owing to this defect which was of a substantial character the
nomination paper was invalid.
4 The sole ground in the election petition filed by the
appellant was that his nomination paper had been erroneously and
wrongly rejected by the Returning Officer. In paragraph 6 it was
stated that a blank nomination form had been purchased by him
from the Election Office, Betul. All the details mentioned in the form
were properly filled in. There was no separate space left in the form to
mention the name of the Constituency. It was asserted that there was
difference between the nomination form in Hindi and in English
and even if the name of the Constituency was necessary to be
mentioned the Assistant Returning Officer should have got it filled up
under proviso to s. 3 3 (4) of the Representation of People Act 1951. In
other paragraphs, of the petition it was pleaded that the certificate
relating to the oath clearly contained a mention of the 26th Betul
Parliamentary Constituency and, therefore, the Returning Officer
was in a position to know from which Constituency the appellant was
contesting the election. It was claimed that the alleged defect was not
of a substantial character and the nomination paper could not have
been rejected by the Returning Officer.
5 The respondent resisted the, election petition on the ground,
inter alia, that there was no defect in the nomination form supplied
to the appellant. The omission to mention the name of the
Constituency was a defect of substantial character. It was denied
that it was the duty of the Assistant Returning Officer to get the
substantial defect in the nomination form rectified. The sole issue
which arose for decision was whether the nomination paper of the
appellant had been wrongly rejected. The High Court gave the
following findings:
(1) The nomination paper in Hindi (Ext. P-2) is the
authoritative text of the form prescribed under the Act and the rules
made thereunder;
(2) Neither the name nor the number of the Constituency was
mentioned in the nomination paper, (Ext. P-2).
(3) The omission to mention the name of the Constituency
was a defect of a substantial character.
(4)The Returning Officer was not enjoined under the law to go
beyond the nomination paper and to find out for which Constituency
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a particular candidate had been nominated.
(5) The statutory requirements of the Election Law have to be
strictly applied. As the nomination paper of the appellant was
found to be defective the defect being of a substantial character the
Returning Officer was justified in rejecting it. Apart from that the
appellant did not get the defect rectified even though the same had
been pointed out to, him by the Assistant Returning Officer.
6 The first question that has to be determined is whether the
nomination form which was supplied was misleading or defective and
for that reason it was not possible to fill in the name of the
Parliamentary Constituency from which the appellant was contesting
the election. Selection 2(1)(g) of the Conduct of Elections Rules,
1961 gives the, meaning of the word "Form". It means a Form
appended to the rules and in respect of any election in a state includes a
translation thereof in any of the languages used for official purposes of
the State. Rule 4 provides that every nomination paper presented
under sub-s. (1) of s. 3 3 shall be completed in such one of the Forms
2A to 2E as may be appropriate. Form 2A relates to the nomination
paper to be filed for election to the House of the People. According to
s. 5 ( 1 ) of the Official Language Act 1963 a translation in Hindi
published under the authority of the President in the Official Gazette on
or after the appointed day, inter alia, of any order, rule regulation or
bye-law issued under the Constitution or under any Central Act
shall be deemed to be the authoritative text thereof in Hindi.
7 Form 2A as prescribed by the Conduct of Elections Rules 1961
in English is as follows :
" FORM 2A
I nominate as a candidate for election to the House of the People from
the................. Parliamentary Constituency.
Candidates' name...........................................
His postal address.........................................
His name is entered at S. No..........in Part No............ of the electoral
roll for............ (assembly Constituency comprised within)...
Parliamentary Constituency.
My name is..........................................and it is entered at S. No.in Part
No.....of the) electoral rolls for.....(Assembly constituency comprised
within) Parliamentary constituency..............
Date..... (Signature of Proposer)
I, the abovementioned....................."
The nomination form in Hindi used in the Mid-term Elections 1971
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begins with the word "Main" (1). Then there is a blank space which is
followed by the words in Hindi language hence omitted.
........... ..........
If the form were to be read in the same way as if it were in the English
language an impression is likely to be created that after the word ".I"
the proposer has to fill in his own name as was actually done in the
present case in Ext. P-2. But any one familiar with the Hindi
language would not read it that way and the blank space in the
context, it will be understood, is meant for filling in the name of
the Parliamentary Constituency. If that is not done the name of the
Constituency for which the candidate is-being nominated cannot find
any mention in the material part of the form. It could never be
contemplated that the official translators who are presumed to be
fully conversant with the Hindi language would have translated the
English form in such a way as to leave out the name of the
Parliamentary Constituency altogether for which the candidate is
being proposed. It may be mentioned that to an ordinary person a
wrong impression may be conveyed that after the word "I" he has to
give his own name but even if he gives his own name lie can indicate
the name of the Parliamentary Constituency thereafter which would
make the form complete in every respect. It appears that the Election
Commission of India addressed a letter, Ext. R-4, to the Secretary,
Official Language Legislative Commission saying that the Hindi
translation of Form 2A appeared to be defective in some respects
and it was suggested that in paragraph 1 of the Form as shown in
Ext.R-5 after the word "Main" (1) in Hindi the name of the
Parliamentary Constituency must be mentioned. Indeed it had been
pointed out in a judgment of the Allahabad High Court in Kashi
Prasad v. Harigen Ram and Another Ele.Petn.No.44 of 1967,
D/-19.1.1968 (All) that the Hindi Form might have caused some
confusion, is there also a similar defect appeared as in Ext. P-2 here
and the name of the Constituency had not been mentioned. The Court
held that since the name of the Constituency was not mentioned
the defect was of a substantial nature and the Returning Officer
should have rejected the nomination paper. But as stated before it was
pointedly mentioned that the Hindi form might have caused some
confusion and the proposer would have been well advised in
consulting some competent person before filling it in. Unfortunately it
appears and that is supported by the evidence of Shri Komal Singh
Returning Officer that the amendment proposed by the Election
Commission of India was not given elect to although certain other
amendments in the Form were made in accordance will the procedure
prescribed by tile Act and the Rules. The appellant has not been able to
show any error in tile conclusion of the High Court that the Form Ext.
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P-2 was not the prescribed Form under the Act and the Rules and the
same had been sent for the purpose of the election in question by the
Chief Electoral Officer, Madhya Pradesh, to the Returning Officer Shri
Kormal Singh.
8 In the Election Petition the sole grievance of the appellant was
that there was no separate space in the nomination form where the
name or the Constituency could be mentioned. It was not suggested
that the Proposer, whose name was Ajudha prasad or the appellant, had
been missed in any way by the language of the Hindi Form. The
appellant who gave evidence as P.W. 1 deposed that he had himself
filed up the nomination form Ext. P-2 and got it signed by his
proposer. There was no place for mentioning the name of the
Constituency and therefore it was not mentioned. The appellant is not
only a law graduate but has also worked as Civil Judge, for some years
and resumed practice in January 1968. Shri S. K. Sharma the
Assistant Returning Officer to whom the nomination paper was
handed over gave evidence, as P.W.2. He stated that lie had told the
appellant that the name of the Constituency should be mentioned but
tile latter replied that there was no such space for writing the name of
the Constituency in the nomination paper. Shri Sharma further
stated, "I again told him that after the word "Main" (I) in the
nomination paper the name of the Constituency should be mentioned
and you would realise the same if you would minutely read the form.
Thereupon the petitioner said "I know my own job". The learned trial
judge has believed this evidence and nothing has been shown why it
should not have been so believed. We concur with the High Court that
the form on which the nomination of the appellant was made (Ext.P-2)
was the one which had been statutorily prescribed and that there was
a complete omission to mention the name of the Parliamentary
Constituency for which the appellant was being nominated as a
candidate. Furthermore the Assistant Returning Officer had drawn the
attention of the appellant to this omission and yet the defect was not
cured. This was done notwithstanding the fact, as will be presently
seen, that where the defect is of a substantial character and is not of
the nature contemplated by the Act and the Rules it is not the duty of
the Returning Officer to get this defect rectified or omission completed.
9 The next question is whether the omission to mention the name
of the 26th Betul Parliamentary Constituency in Ext. P-2 was a defect
of a substantial character by reason of which the nomination paper
must be rejected by the Returning Officer. Section 33 deals with the
presentation of the nomination paper and requirements for a valid
nomination. It has to be presented after being completed in the
prescribed form and signed by the candidate and by an elector of
the Constituency as proposer. Sub-section 4 of that section is to the
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following effect :
"On the presentation of a nomination paper, the returning
Officer shall satisfy that the names and electoral roll numbers of the
candidate and his proposer as entered in the nomination paper are the
same as those entered in the electoral rolls".
Section 36 deals with scrutiny of nominations. Sub-s.(2) thereof
provides that the Returning Officer shall examine the nomination
papers and decide all objections which may be made to any nomination
and may, either on such objection or on his own motion after a
summary inquiry, reject the nomination paper on the ground given in
clauses (a), (b) and (c). Clause (b) is "that there has been a failure to
comply with any of the provisions of section 33 or section 34." Sub-
section (4) furnishes the key to the point under consideration.
According to it the Returning Officer shall not reject any nomination
paper on the ground of any defect which is not of a substantial
character. The proviso to rule 4 may also be noticed. It says that a
failure to complete or defect in completing the declaration as to
symbols in a nomination paper in Form 2A or Form 2B shall not be
deemed to be a defect of a substantial character within the meaning of
sub-s. (4) of s. 36. It is thus clear that in the statute and the rules those
defects have been indicated for which the nomination paper cannot be
rejected and the Returning Officer has to permit the correction of
those defects; [vide proviso to s. 33(4) of the Act and Rule 4 of the
Rules]. But s. 36(4) clearly contemplates that where the defect is of a
substantial character the Returning Officer is not enjoined to have it
rectified and he has to reject that nomination paper The matter is not
rev integra and is settled by a series of decisions of this Court. We
need refer only to two of such decisions, viz., Rattan Anmol Singh v.
Atma Ram, (1955) 1 SCR 481 = (AIR 1954 SC 510) and Ram Dayal
v. Brijram Singh (1970) 1 SCR 530 = (AIR 1970 SC 110). In the first
case it was laid down in categorical terms that s. 36 is
mandatory and enjoins the Returning- Officer to refuse any
nomination when there has been any failure to comply with any of
the provisions of s. 33. The only jurisdiction the Returning Officer
has at the scrutiny stage is to see whether the nominations are in order
and to hear and decide objections. He cannot at that stage remedy
essential defects or permit them to be remedied. It is not open to him
to reject a nomination paper on the ground of a technical defect
which is not of a substantial character. But he cannot remedy that
defect. He must leave it as it is. If it is technical and non substantial
it will not matter. In the second case the following observations at
page 533 are noteworthy:
"The requirement under s. 33(1) of the Act that the
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nomination shall be signed by the candidate and by the proposer is
mandatory. Signing, whenever signature is necessary, must be in strict
accordance with the requirements of the Act and where the signature
cannot be written it must be authorised in the manner prescribed by
the Rules. Attestation is not a mere technical or unsubstantial
requirement within the meaning of S. 36(4) of the Act and cannot be
dispensed with. The attestation and the satisfaction must exist at the
stage of presentation and omission of such an essential feature may
not be subsequently validated at the stage of scrutiny any more than
the omission of a candidate to sign at all could have been".
In this case the earlier decision in Rattan Anmol Singh's case was
followed.
10 There can be no manner of doubt that in the present case there
has been a failure to comply with the provisions of s.33 inasmuch as
the name of the Constituency was not stated in the nomination paper
which, therefore, could not be treated as having been completed in
the prescribed form as required by S. 33(1) of the Representation of
the People Act. This defect was essentially of a substantial character
and did not fall within those provisions where the Returning Officer is
enjoined either to get the defect rectified or ignore it. It was not the
duty of the Returning Officer at the stage of the scrutiny to draw the
attention of the, appellant to the aforesaid substantial defect for
the purpose of getting the same cured. The Returning Officer was
fully justified in rejecting the nomination paper."
45] The above decision has been followed subsequently in the case of Dharam
Singh Rathi v/s Hari Singh, MLA and others reported in AIR 1975 SC 1274. The
petitioner tried to distinguish this judgement by arguing that the Three Judge bench
decision of the Supreme Court was dealing with a question or controversy as to whether
the defect which was identical, namely, no mention of parliamentary constituency from
which the appellant before the Supreme Court contested the election, although pointed
out, the appellant did not cure that defect. That is how his nomination paper was
rejected and for that reason the Supreme Court upheld the judgement of the Madhya
Pradesh High Court.
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46] It is not possible to accept this contention for more than one reason. Firstly,
there was no obligation on the part of the Returning Officer to have permitted the
appellant before the Supreme Court to cure the defect pointed out at the stage of
scrutiny. Despite his best efforts, the petitioner was not in a position to point out to me
any provisions in the R.P. Act and particularly in the abovequoted sections which
enables the Returning Officer to allow curing of such a defect. All that section 36
mandates is that the nomination of any candidate cannot be rejected on the ground of
any irregularity in respect of the nomination paper, if the candidate has been duly
nominated by means of another nomination paper in respect of which no irregularity has
been committed and further by sub-section 4 the Returning Officer is mandated not to
reject any nomination paper on the ground of any defect which is not of a substantial
character. However, nothing has been pointed out to me in the R.P.Act or the Rules
which would enable the Returning officer, at the stage of scrutiny, to permit curing of
defect of a substantial character and particularly the omission to mention the name of
the constituency and leaving the column in that behalf blank. That apart, the judgement
of the Supreme Court cannot be brushed aside as it is binding on all (See Article 141 of
the Constitution of India). Further, it cannot be ignored on some specious plea that the
Supreme Court did not have the occasion to consider the argument now canvassed or
any aspect of the controversy. Further, no hair splitting is permissible.
47] Not only this judgement has been followed in the subsequent decisions but the
petitioner was unable to point out to me any decision of the Supreme Court which either
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over-rules or doubts the correctness of the view taken by the Supreme Court in this
decision. In fact the Supreme Court followed its earlier views as laid down in the
decision in the case of Rattan Anmol Singh Vs. Atma Ram (A.I.R. 1954 S.C. 510) and
Ram Dayal Vs. Brijraj Singh reported in A.I.R. 1970 S.C. 110. It is not necessary to
multiply the decisions because once the petitioner admits that he had left the column
blank and that such a defect is of a substantial character, then, going by the law laid
down by the Supreme Court in the aforesaid decision and its earlier decisions, all of
which are binding upon me, it will have to be held that the Returning Officer committed
no error in rejecting the nomination paper / form of the petitioner.
48] The petitioner's further argument to distinguish the above cases is that after these
decisions, the R.P.Act has been amended and by virtue of sections 33-A and 33-B, it is
now mandatory for the candidate to give information as prescribed by sub-section 1 of
section 33-A. The petitioner submits that he had furnished such information as is
mandated by section 33-A(1) and the affidavit in which the details of the parliamentary
constituency from which he was desirous of contesting the elections were duly filled in
and set out. Once the information set out in the prescribed form and the affidavit being
an integral part of the nomination paper/ form, it cannot be said that the Returning
Officer was obliged to reject the nomination paper or form because the column
pertaining to the details of the parliamentary constituency was left unfilled or kept blank
by the petitioner. The Returning Officer could have gathered such details from the
information in Part III A and the affidavit which was also filed with the nomination
paper. That such an information and the affidavit is an integral part of the nomination
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paper is an admitted position by the Returning Officer and, therefore, the rejection of
the petitioner's nomination is invalid and illegal is his submission.
49] First of all, this submission to be accepted requires something to be read in the
provision which is absent therein. The Supreme Court in the above decisions has
already clarified that the Returning Officer is not obliged to look at other documents.
Once there is non compliance with section 33 which attracts section 36(2)(b), then,
there would be no occasion to hold an inquiry under section 36(2)(a) of the Act. The
Supreme Court has categorically ruled that the only jurisdiction the Returning Officer
has at the stage of scrutiny is to see whether the nominations are in order, to hear and
decide objections but he cannot at that stage remedy essential defects. It is true, he is
not to reject any nomination paper on the ground of any technical defect which is not of
a substantial character but he cannot remedy the defect. He must leave as it is if it is. If
it is technical and unsubstantial, it will not matter. If it is not it cannot be set right. (See
para 15 of the decision in Ratan Singh A.I.R. 1954 SC 510).
50] The Supreme Court has also ruled that the Returning Officer is not permitted to
take assistance of any documents as that would mean that he can look into something
more than the nomination paper. That the affidavit is not an integral part of the
nomination form is clear from section 33-A(2). It may be that the information
contemplated by section 33-A(1) of the R.P. Act is to be furnished in the nomination
paper and, therefore, is an integral part thereof. However, an affidavit verifying this
information is required to be delivered as provided in section 33-A(2). There is a form
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prescribed for the Affidavit, which is to be delivered in terms of the above provision.
The Affidavit is a distinct document and a separate format is prescribed for this
Affidavit. Rule 4A of the Conduct of Election Rules, 1961 prescribes that form and it
Number 26. All this is not part of the nomination form. Hence, it is clear that the
information under section 33-A(1) is to be furnished in the nomination form but the
affidavit verifying it is not part of the nomination form.
51] It is petitioner's submission that the information which the candidate is required
to furnish under the Act or the Rules in his nomination papers delivered under sub-
section 1 of section 33 is also one under section 33-A. The information is apart from
any information which is required to be furnished under this Act or the Rules thereunder
in the nomination paper delivered under sub-section 1 of section 33. The candidate is
also required to furnish information under sub-section 1 of section 33-A and which
information shall be furnished by the candidate or his proposer at the time of delivery of
his nomination paper, to the Returning Officer. This information has to be provided and
together with that an affidavit sworn by the candidate in the prescribed form verifying
the information specified in sub-section 1 is also required to be delivered. The
nomination paper is to be completed in the prescribed form as stated in section 33(1).
That section prescribes the form of a nomination paper and that is how Rule 4 of
Conduct of Election Rules, 1961 must be read. More information has to be given now
after the introduction of section 33-A in R.P.Act, 1951. The form of nomination has
been amended accordingly. The affidavit that has to be sworn by a candidate in the
prescribed form for verifying that information is in addition to delivering the
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nomination form. Once the nomination paper in the prescribed form is delivered under
sub-section 1 of section 33 and scrutiny of that is called for under section 36, it may
entail or contemplate a scrutiny also with regard to the information that is to be
provided under section 33-A assuming that the information is integral part of the
nomination form/paper. Thus, even if the information under section 33A(1) has to be
provided in the nomination form and the candidate is obliged to do so after insertion of
Part III-A in the form by Standing Order No.935(E) dated 3rd September 2002, yet, not
providing or providing false, incorrect or misleading information in the form does not
result in rejection of the nomination form under section 36(2)(b) of the R.P. Act, 1951.
That on the date fixed for scrutiny of nomination the candidate may not be qualified or
disqualified for being chosen to fill the seat under any of the provisions enumerated in
section 36(2)(a), and therefore his nomination may be rejected but that is a distinct
ground for rejection of nomination paper. In fact this distinction in the Act and
particularly in section 36(2) would support my conclusion that the information which is
to be provided under section 33-A(1) , though contemplated as part and parcel of the
form, the affidavit verifying the same is not such part and parcel. What the petitioner
argues is that the affidavit to be sworn by the candidate in the prescribed form verifying
the information is part and parcel of the nomination form or in any event an integral
part thereof. That such an affidavit is not the integral part but the information is, makes
the distinction clear so also the Legislative intent. The information in Part III-A in
relation to the candidate's conviction for an offence has to be verified by an affidavit
sworn by the candidate in the prescribed form. However, that affidavit not being an
integral part of the nomination paper or form, no assistance could be derived from its
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contents by the petitioner to support his argument that the Returning Officer could have
ascertained the details of the parliamentary constituency by perusing the said affidavit.
Once the affidavit is not held to be an integral part, then, the argument in that behalf is
required to be rejected.
52] Equally untenable is the argument of the petitioner that the Returning Officer
could have ascertained and gathered the details of the constituency by referring to not
just Annexure I viz., the affidavit but could have ascertained it from the receipt for
nomination paper and notice of scrutiny (part VI Exh.P-2) or from the request form
Exh.P-10 or from the check list of documents in connection with filing of nomination
Exh.14. None of these could be said to be forming part of the nomination paper. The
Returning Officer is not required to conduct an inquiry by looking into other documents
as has been laid down in the decisions of the Supreme Court. Once there is no such
obligation and duty to look into other documents apart from the nomination paper, for
verifying and ascertaining the details of the parliamentary constituency, then, the
argument of the petitioner based on these documents must also fail.
53] As a result of the above discussion, it must be concluded that the petitioner has
failed to prove that his nomination paper was improperly and illegally rejected by the
Returning Officer and that the Returning Officer ought to have allowed the petitioner to
fill up the blank space left in the first column at the time of scrutiny of nomination
paper.
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54] Reliance that is placed by the petitioner on some decisions of the Supreme Court
is completely misplaced. It is not necessary to refer to the decision in the case of Lily
Thomas Vs. Union of India (supra) and the reliance thereon is to emphasize that
procedural matters and technicalities cannot stand in the way of administration of
justice. That this principle is clear but its application is restricted to matters or rules of
procedure and technicalities. Once the parliament has stepped in and has removed the
word "technical" from sub-section 4 of section 36 and when the defect is of substantial
character, then, a conclusion is inevitable that omission to fill in the name of the
constituency is not technical or clerical defect. This decision cannot, therefore, be held
to be applicable to the facts of the present case. Equally misplaced is the reliance on the
decisions in the case of Rupa Hurra Vs. Ashok Hurra (supra) rendered by a five Judge
bench of Supreme Court and in the case of A.R.Antulay Vs. R.S.Nayak, A.I.R. 1988
S.C. 1531. Petitioner's reliance on the Supreme Court decision in the case of Andisha
Reddy Vs. Kavita Mahesh reported in (2011) 7 SCC 721 is also misplaced because
there the Supreme Court refused to interfere with the decision of the Karnataka High
Court rejecting an application seeking a summary dismissal of an election petition by
taking recourse to Order VII Rule 11 of the CPC. There, the requirement was of
subscribing the nomination paper by 10 electors. It is in that context that the Supreme
Court emphasised the principles in para 13 and 14 in relation thereto and held that
where there is any obligation on the Returning Officer to permit the rectification of such
defects and when the defects are not removed, then alone reject the nomination, it is a
matter which requires trial and the election petition cannot be summarily dismissed.
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55] Equally in the decision in the case of Rakesh Kumar Vs. Sunil Kumar (Civil
Appeal No.8695 of 1997 decided on 9th February 1999 - (1999) 2 SCC 489), the
controversy was in relation to two symbols and signing of Form A and B by the Elector
of Political Party. In that context and in the peculiar facts to that case that the Supreme
Court has held that the instructions issued to the Returning Officer would enable giving
opportunity to the concerned candidate to rebut the objection by giving him time. That
is how principles of natural justice were read into the provision empowering scrutiny of
nomination paper. While at the stage of scrutiny of nomination, the candidate in that
case sought intervention of the Returning Officer by making written application to him
on the very date permitting him to get official confirmation of submission of Form A
and Form B and that he is officially a Bhartiya Janata Party Candidate. That request
was rejected. The decision in Rakesh Kumar must be seen in the facts of that case and
the defect noticed by the Supreme Court. Equally, what would be improper rejection of
a nomination paper and the ambit and scope of section 100(1)(c) of the RP Act is what
is dealt with in the decision of N.J.Veluswamy Vs. G. Raja Nainar reported in AIR 1959
SC 422 by the Supreme Court. The interpretation by the Supreme Court and the settled
principles is binding on me and within four corners thereof that I have decided the
instant case. In fact I have gone by the principles in a later decision of the Hon'ble
Supreme Court in Uttamrao S. Jankar v/s Ranjit Singh V. Mohite Patil reported in AIR
2009 SC 2975, while scrutinizing the order of the Returning Officer in this case and I
find his conclusion unassailable.
56] The decision which was heavily relied upon was in the case of Rangilal
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Choudhury Vs. Dahu Sao and Ors., reported in A.I.R. 1962 S.C. 1248. There, the
election was to the Dhanbad Assembly Constituency and the candidate had written the
word "Bihar" before the word Assembly Constituency instead of "Dhanbad". It was not
a defect of substantial character because the form was not left blank as in this case by
the candidate. Further, the defect arose out of a mistake in the Hindi printed nomination
form which did not exactly conform with the forms prescribed by the Rules. Therefore,
once the nomination paper contained a mistake, then, the defect in filling up of an
erroneous form cannot be held to be a defect of a substantial character. In that case, the
mistake was of the proposer in putting the word Bihar instead of Dhanbad. It was not a
case of candidate having failed to fill in the details or completely or wholly leaving the
column in that behalf blank.
57] Equally misplaced is the reliance upon the other decisions of the Supreme Court
which pertain to mistaken entry as to the candidate's entry in electoral roll. That it is
not a mistake which can be said to be a defect of substantial character is apparent from
the reading of proviso of section 33(4) of the Act, which was substituted by Act 47 of
1966 with effect from 14th December 1966 in the RP Act itself. In these circumstances,
I am of the view that none of the decisions that have been cited before me by the
petitioner has any application. Once the admitted position is noticed, then, there is no
necessity to refer to the evidence of the Returning Officer and the Assistant Returning
Officer in this case. Their answers to some of the questions cannot be said to be the
position in law. That the position in law is what is enumerated after interpretation of the
relevant statutory provisions by the Supreme Court is amply clear. Once it is so
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apparent and clear so also binding, then, what the Returning Officer stated in his
evidence before this Court is hardly of any relevance. Equally, no prejudice is caused by
non exhibition of the CDs because the factual position is undisputed. Once the column
in the nomination form with regard to details of the Parliamentary Constituency is left
unfilled, then, the Returning Officer has rightly rejected the petitioner's nomination
form.
58] For the reasons enumerated above, the issues are answered thus:
Issue No.(i) : Whether the petitioner proves that his
nomination paper was improperly and illegally rejected by the Returning
Officer : IN THE NEGATIVE
Issue No.(ii) : Whether the petitioner proves that the
Returning Officer ought to have allowed the petitioner to fill up the blank
space left in the first column in Part II of the nomination paper of the
petitioner at the time of conducting the scrutiny of the nomination paper?
IN THE NEGATIVE
Issue No.(iii) : Whether the petitioner proves that the
election of the third respondent is liable to be set aside under section
100(1)(c) of the Representation of Peoples Act, 1951? IN THE
NEGATIVE.
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59] In the result, the election petition fails and is dismissed accordingly. However,
the Election Petitioner being an Independent Candidate and a Senior Citizen, I impose
no costs on him. Thus, no order as to costs.
(S.C.Dharmadhikari, J)
