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Dev Kanta Barooah Vs. Kusha Ram Nath and anr. - Court Judgment

LegalCrystal Citation
Subject;Election
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. 56 of 1957 (Election)
Judge
ActsRepresentation of the People Act, 1951 - Sections 30, 33(1), 36(2), 36(4) and 100(1)
AppellantDev Kanta Barooah
RespondentKusha Ram Nath and anr.
Appellant AdvocateS.M. Lahiri, Adv.-General and R.C. Chaudhury, Adv.
Respondent AdvocateS.K. Ghose, N.M. Lahiri, B.M. Goswami, J.P. Bhattachrjee and M.C. Pathak, Advs.
Excerpt:
- - labhaya, whereby the election of the appellant for the general seat in the assam legislative assembly from the nowgong double member constituency was set aside, and the other is a petition in connection with this appeal by one beliram das who was one of the candidates for the reserved seat in the same constituency, alleging that the judgment of the election tribunal was bad so far as it refused to set aside the election of the scheduled caste candidate mahendra nath hazarika, who was returned for the reserved seat in the same constituency. no error or omission was detected by the returning officer or officers on the date of presentation of these nomination papers and they were duly endorsed after verification, as provided under section 33(4) of the representation of the people act...... h. deka, j.1. these are two connected matters. one is an appeal by dev kanta barooah against the decision of the election tribunal presided over by mr. r. labhaya, whereby the election of the appellant for the general seat in the assam legislative assembly from the nowgong double member constituency was set aside, and the other is a petition in connection with this appeal by one beliram das who was one of the candidates for the reserved seat in the same constituency, alleging that the judgment of the election tribunal was bad so far as it refused to set aside the election of the scheduled caste candidate mahendra nath hazarika, who was returned for the reserved seat in the same constituency.2. the facts shortly put are as follows: kusharam nath who was one of the candidates for the.....
Judgment:

H. Deka, J.

1. These are two connected matters. One is an appeal by Dev Kanta Barooah against the decision of the Election Tribunal presided over by Mr. R. Labhaya, whereby the election of the appellant for the general seat in the Assam Legislative Assembly from the Nowgong double member Constituency was set aside, and the other is a petition in connection with this appeal by one Beliram Das who was one of the candidates for the reserved seat in the same constituency, alleging that the judgment of the Election Tribunal was bad so far as it refused to set aside the election of the Scheduled Caste candidate Mahendra Nath Hazarika, who was returned for the reserved seat in the same constituency.

2. The facts shortly put are as follows: Kusharam Nath who was one of the candidates for the general seat in the Nowgong Constituency of the Assam Legislative Assembly called in question the election of Dev Kanta Barooah by a petition under Section 81 of the Representation of the People Act alleging that his nomination paper or papers were illegally rejected by the Returning Officer on scrutiny on 1-2-57. The petitioner filed five nomination papers for election to the general seat of the Nowgong Constituency of the Assam Legislative Assembly,--three of them being filed on the 23rd January and the other two on 28-1-1957, which was declared to be the last date for receiving nomination papers.

No error or omission was detected by the Returning Officer or Officers on the date of presentation of these nomination papers and they were duly endorsed after verification, as provided under Section 33(4) of the Representation of the People Act. The first three papers were received by the Deputy Commissioner of Nowgong who was the Returning Officer for Nowgong Constituency and the other two were received by the Additional Deputy Commissioner who was then the Assistant Returning Officer for the said constituency. The papers came up for scrutiny on 1-2-1957 before the Returning Officer Mr. Rahman who on an objection raised on behalf of Dev Kanta Barooah rejected the nomination papers of the petitioner by his order or orders dated 1-2-57 purported to be under Section 36(2)(b) of the Representation of the People Act (which for the purpose of shortness we shall hereafter call 'the Act').

As a result of this order, the petitioner was deprived of his right to stand as a candidate and Dev Kanta Barooah was returned from the general seat by beating his two other rivals. Mahendra Nath Hazarika--respondent No. 5 in this appeal--was declared elected for the seat reserved for the members of the Scheduled Caste in that constituency. The election of Dev Kanta Barooah alone was questioned on the ground that the nomination paper or papers of Kusharam Nath for the general seat was illegally rejected by the Returning Officer.

The case was resisted by Dev Kanta Barooah and Mahendra Nath Hazarika who filed a joint written statement alleging inter alia that the nomination papers were correctly rejected inasmuch as the name of the constituency was not properly stated therein against relevant entries in the forms. Section 100(1)(c) of the Act provides that subject to the provisions of Sub-section (2), if the Tribunal is of opinion that any nomination has been improperly rejected, the Tribunal shall declare the election of the returned candidate to be void. Therefore the material issue was whether the nomination of Kusharam Nath was improperly rejected by the Returning Officer by his order of 1-2-57. The two relevant issues framed by the Tribunal run as follows:

Issue No. 3: Whether the nomination papers filed by the petitioner were valid and were improperly rejected.

Issue No. 4: Whether the Section of Respondent No. 1 is illegal and void.

3. Before entering into the merits of the case we might refer to the relevant provisions of the Act and rules framed thereunder which would be of importance in connection with the subject-matter under appeal. The relevant portion of Section 33 of the Act runs as follows:

'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.

* * * *

(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 the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.

From Sub-section (1) of Section 33 reproduced above, it will appear that the nomination paper has to be completed in the prescribed form and signed by the candidate and by an elector of the Constituency as proposer. The 'prescribed' form in this case coming under Rule 4, is form 2B given in the schedule and the relevant part thereof for the purpose of this case is as follows:

I hereby nominate ........... as a candidate for election from the....... Assembly Constituency.

1. Full name of proposer ......................

2. Electoral roll number of proposer ......

3. Name of candidate's father/husband .......

4. Full postal address of candidate ...........

5. Electoral roll number of candidate ........

Date. ....... .... .... .. Signature of proposer.'

It will indicate that what is required to be filled in by the proposer is the name of the candidate, the name of the Assembly Constituency, the full name of the proposer, the electoral roll number of the proposer, the name of the candidate's father, full postal address of the candidate and the electoral roll number of the candidate. Items 2 and 5 as indicated in the form, are the only entries to be considered in this case because there was no objection as to filling in of the other entries.

4. The expression 'electoral roll number' occurring in these two entries has been defined in Rule 2(b) of the Representation of the People (Conduct of Elections 'arid Election Petitions) Rules, 1956, which runs as follows:

'2. (1) In these rules, unless the context otherwise requires, --

(b) 'electoral roll number' of a person means--

(i) the serial number of the entry in the electoral roll in respect of that person;

(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;........................'

There is a foot-note at form 2B in reference to the asterisks put against items 2 and 5 and it practically sets down the substance of rule 2(b) as I have indicated above.

5. It is clear from Section 33(4) of the Act which I have already quoted, that on presentation of a nomination paper the Returning Officer has a duty to 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 and in this case unrebutted evidence is to the effect that there was such satisfaction on the part of the Returning Officer on the occasion of the presentation of each of his nomination papers.

6. The next relevant section is Section 36 of the Act which deals with scrutiny of nominations. The relevant portion of this section provides as follows:

'36. Scrutiny of nominations. (1) ..........

(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, reject any nomination on any of the following grounds:..........................

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34;..........................

(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.'

7. Let us now come to the merits of the case. The learned Member of the Tribunal has discussed the point at issue at considerable length and has come to the finding that there was substantial compliance with Section 33(1) of the Act in completing the form and in delivering the same and the omission or defect if any, was not of a substantial character and that the rejection order would be hit by Section 36(4) of the Act which provided that the Returning Officer should not reject any nomination paper on the ground of any defect which is not of a substantial character. I am quoting below the entries in connection with items 2 and 5 of the nomination papers (in Form 2B)--filed by Kusharam Nath, from the judgment of the Tribunal:

'The entries in columns 2 and 5 of the nomination papers are as follows:

Ext. P. 1 (2) Electoral Roll Number of the proposer--'Part 10, 275 of Electoral Roll of village Phulaniati, Mouza Hatichung, Nowgong, Assam.'

(2) Electoral Roll Number of the candidate --'Part 10, 275 of Electoral Roll of village Phulaniati, Mouza Hatichung, Nowgong, Assam.

Ext. P. 2 (2) Electoral Roll Number of proposer--'59 of Electoral Roll of village Phulaniati, Mouza Hatichung, P. S. Sadar, Nowgong Assam.'

(5) Electoral Roll Number of the candidate--275 of Electoral Roll of village Phulaniati, Mouza Hatichung, P. S. Sadar, Nowgong Assam. In both the above papers the proposer is Lahiram Nath.

Ext. P3 (2) Electoral Roll Number of the proposer--297 of Electoral Roll of village Kalibari, Mouza Charaibahi, P. S. Roha, Nowgong.

(5) Electoral Roll Number of the candidate--275 of village Phulaniati, Mouza Hatichung, Nowgong.

Kandarpa Nath is the proposer in this paper.

Ext. P. 4 (2) Electoral Roll Number of the proposer--Assam Legislative Assembly Constituency, Part 10, of the Electoral Roll of village Phulaniati, Mouza Hatichung, P. S. Sadar, Nowgong, the Serial No. of entry is 59, 1956.

(5) Electoral Roll Number of candidate--Assam Legislative Assembly Constituency, Part 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung. Police Station Sadar, Serial No. of entry 275, 1956.

Ext. 5(2) Electoral Roll Number of proposer--Assam Legislative Assembly Constituency Part 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, P. S. Sadar, Nowgong, Roll No. 59, 1956.

(5) Electoral Roll Number of the candidate Assam Legislative Assembly Constituency--Part No. 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, P. S. Sadar, Nowgong, Roll No. 275, 1956.'

The only contention on behalf of the returned candidate as to the validity of the nomination papers was that the entries in reference to items 2 and 5 were not filled in as required by law, and that the mention of the name of the constituency at the top of the form was not by itself sufficient compliance with the requirements of the law, unless the name of the constituency was repeated at full length against entries Nos. 2 and 5 which alone would satisfy the definition of the expression 'the electoral roll' as given in Rule 2. The finding arrived at by the learned Election Tribunal after consideration of the nomination papers marked as Exts. P. 1 to P. 4 and the evidence adduced by the petitioner (there being no evidence from the opponents) is as follows:

'In Ex. P. 1 and in Ex. P. 4, the name of the constituency appears in one column but not in both. Where the name of the constituency is not expressly mentioned the part of the constituency is very significantly described. Even these two papers therefore could present no practical difficulty to the Returning Officers when satisfying themselves under Section 33(4) as to whether the names and numbers in the papers agreed with the names and numbers in the roll. There is the evidence of Mr. Bora, Deputy Commissioner, Nowgong that he felt satisfied that the names and the numbers in the paper were those of the persons referred to in the corresponding entries in the rolls. The omission of the word 'Nowgong' in each paper could not in the circumstances be regarded as a defect of a substantial character. Each of these papers read as a whole left no room for controversy about the identity of the proposer and the candidate.

In the other three papers the name of the constituency 'Nowgong' appears in both columns. The part of the roll is amply described. This has not been disputed. The word 'Nowgong' occurs in the description of the constituency but is not qualified by the word constituency. Even so it would not be correct to say that the name of the constituency is not mentioned. Nowgong is the name of a town in the District. It is also the name of the District. A Legislative Assembly Constituency also derives its name from it.

The word 'Nowgong' may not by itself indicate that Nowgong constituency is meant but when 'Nowgong' appears in columns Nos. 2 and 5 where all requirements of electoral numbers are to be given and when the electoral roll number was being described in detail, the word Nowgong obviously referred to the constituency of that name. This would also be the presumption. In this view there would be no omission of the third requirement of the definition in these papers. In any case the omission would be of the qualifying word 'constituency' and not of 'Nowgong' the name of the constituency, which is mentioned.

The returning Officer was of Nowgong constituency, Village Phulaniati, Mauza Hatichung in Sadar P.S. was part of the Nowgong Constituency. All parts of the electoral roll must be before him for comparison. The checking could not reveal any discrepancy between the names and numbers as given in the papers and the rolls.

Even according to the finding of the Returning Officer it is not a case of a total omission of the name of the constituency. All that he found was that the name of the constituency (third requirement of Rule 2(b)) was not given in full. He could not overlook the, name of the constituency in both columns at least in three papers. He did not indicate how and in what manner, the description of the name of the constituency resulted in any practical difficulty in comparison and led to any doubt as to the identity of the persons concerned. Since the name and numbers were correctly given, there could be no manner of doubt about the constituency which was meant.'

8. We are in complete agreement with this finding arrived at by the tribunal. The only argument addressed by Mr. Lahiri, Advocate General, appearing on behalf of the appellant Dev Kanta Barooah against the finding, is that putting in of the word 'Nowgong' by itself was not enough whereas it ought to nave been described as 'Nowgong Assembly Constituency'. According to him 'Nowgong' would mean anything but the Nowgong Constituency or it would only supplement the postal address (covered by item No. 4). We find it difficult to accept this contention,--as a matter of fact we find no substance.

We might in this connection refer to a document marked as Annexure 'C' which is a notification under Section 30(d) of the Representation of the People Act (printed at pages 25-26 of the Paper-Book) whereby the dates were specified for the purpose of holding the election, and the serial numbers and the names of the Assembly constituencies were indicated therein in the table annexed to the notification. The relevant Assembly constituency was shown as 'No, 69--Nowgong.' The same description was given at the top of each of the nomination papers submitted by Kusharam and in the relevant entries in columns 2 and 5 if the word 'Nowgong' occurs, we cannot but say that this indicated the name of the Assembly constituency unless there be anything else to signify any contrary meaning.

It is nobody's case that the constituency was not correctly described in the above notification. Mr. Lahiri asks us to put some other construction on the word 'Nowgong' either as 'the District of Nowgong' or 'the town of Nowgong,'--but if we cannot bring in the word 'constituency' which is more relevant in the context,--we cannot add any other words on mere assumption. In the circumstances of the case, we agree with the learned Member of the Election Tribunal that the word 'Nowgong' signified the 'Nowgong Assembly Constituency. What more, the members and the part of the electoral roll were correctly given in each of these cases. Therefore it was more or less on a superficial view that the Returning Officer rejected the nomination papers without looking into the substance of the thing.

This would get a support even from the orders he passed rejecting the nomination papers. In the nomination paper marked Ext. P. 1 where he gives fuller reasons, the relevant passage runs as follows:

'The nomination paper has not furnished requirements in full and that this is a material omission and amounts to non-compliance of Section 33(4) of R. P. Act. The nomination paper is liable to rejection under Section 36(2)(b) of the R. P. Act. It is accordingly rejected.'

The learned Tribunal has commented on this remark which would show clearly that reference to non-compliance of Section 33(4) was obviously an error because provision of this section was sufficiently complied with which cast a duty on the Returning Officer on the presentation of the nomination papers. All that he sought to mean was that there was non-compliance with the provision of Section 33(1) which required the filling up of the form in the prescribed manner.

In the other papers the Returning Officer has referred to the identical reason of Section 33(4) not being complied with. This would only indicate that the Returning Officer did not apply his mind coolly to the provisions applicable and he seemed to be in a rush to reject the nomination paper on objections being raised on behalf of the appellant as to the defect in filling up the same. We therefore endorse the finding that the Returning Officer had rejected these nomination papers of Kusharam on insufficient, if not erroneous grounds.

9. There was a further fact that Section 33(1) required that the proposer should be an elector of the Constituency in each of the nomination papers,--more particularly in Ext. P. 4 in item No. 2 the Electoral roll number of the proposer is given in these words:

'Assam Legislative Assembly Constituency, Part No. 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, P. S. Sadar, Nowgong the Serial No. of entry 59, 1956.'

If the word 'Nowgong' is connected with the opening lines, it is clear that the electoral roll is correctly given and this description would exactly fit in with the particulars of the electoral roll number of the candidate in entry 5, even though the word Nowgong is not there. Ext. P. 2 is even more accurate as to the description of the proposer and the candidate so far as the electoral roll number is concerned. The fifth nomination paper--which bore no order of the Returning Officer--was almost perfect in the matter of description of the electoral roll as defined in Rule 2.

10. I now propose to discuss the case law relied on by the parties. Mr. Lahiri relied on the case of 'P.N. Balasubrahmanyan v. Election Tribunal of North Arcot at Vellore'--reported in AIR 1954 Mad 730. Mr. Lahiri drew our attention to the observations of the learned Judges in that appeal to the effect that--

'the failure to fill up the particulars as to the name of the constituency in the electoral roll of which the petitioner's name was included and his serial number in that electoral roll is not a technical defect. It is a substantial defect which the Returning Officer had no jurisdiction to overlook.'

But in that case it appears that the name of the candidate was not included in the voters' list at all at the time the nomination paper was submitted. Their Lordships further observed that 'without these particulars 'ex facie' there was nothing to show that the petitioner was in fact a qualified elector in respect of the constituency.'

In the instant case the name of the candidate or the proposer was there. His name, number and the serial number of the part of the electoral roll were correctly stated and verified and in some of the papers even the name of the constituency did occur. Therefore this decision had no material bearing on the facts of this case. What might be a major defect in certain set of facts may be a minor defect applied to other set of facts. Therefore we see no reason to find that the observation in the case of P.N. Balasubrahmanyan, AIR 1954 Mad 730 applies to the case under consideration. Mr. Lahiri had further drawn our attention to the observations of their Lordships occurring in paragraph 35 in the case of 'Hari Vishnu Kamath v. Ahmad Ishaque,' reported in (S) AIR 1955 SC 233, but those observations also have no bearing on the facts of the present case.

He had further relied on the case of Rattan Anmol Singh v. Ch. Atma Ram, reported in AIR 1954 SC 510. There what their Lordships had to decide was as to whether a nomination paper was sufficiently subscribed or signed by an illiterate proposer and their Lordships found that in the absence of attestation as provided, there was no compliance with the rules. On the other hand, the observations made by their Lordships in paragraph 14 of that decision as to whether a mistake or an omission is substantial has a bearing in this case.

In the present case there was obvious satisfaction on the part of the returning officer as to the identity of the persons and the correctness of the entries in the electoral roll both as to the description of the proposer and the candidate in the electoral roll, whose names were pointed out in the pertinent electoral rolls. Therefore the defect if any as to the words 'Assembly Constituency' not being mentioned after the word 'Nowgong' would lose much of its significance and it must be held to be of an unsubstantial character as it did not go to the root of the thing itself,--there being sufficient description to identify the names of both the proposer and the candidate in the electoral rolls.

This would go more to support the case of the petitioner than that of the appellant. Mr. Lahiri next drew our attention to a certain unreported decision of the Indore Election Tribunal in the case of Shankarrao v. Dr. K.N. Katju. There not only the name of the constituency was not given in the nomination paper of Shankarrao but there was also non-compliance of the provision of Section 33(5) which needed that 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 certified copy of the relevant entries in such roll should also be filed or be produced before the Returning Officer at the time of the scrutiny Therefore the Tribunal correctly held that the nomination paper of Shankarrao was properly rejected.

11. The learned Tribunal in our opinion has correctly relied on the decision of the Supreme Court in the case of 'Pratap Singh v. Sri Krishna Gupta reported in (S) AIR 1956 SC 140 wherein their Lordships observed as follows:

'We do not think it right and we deprecate the tendency towards technicality. It is substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter. They cannot be broken, others are only directory and breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues;...'

In that case there was an omission to mention candidate's occupation which was regarded as a defect of an unsubstantial character as there was enough material in the paper to enable the candidate to be identified beyond doubt.

12. The learned Election Tribunal has further relied on the case of Karnail Singh v. Election Tribunal, Hisar, reported in 10 El LR 189--a decision of the Supreme Court--wherein it was held that--

'where the name of the part of the electoral roll in which the name of the candidate appeared was not filled up against column No. 8 of the nomination paper, but there was no difficulty in identifying the candidate, and the entry of his name in the roll was pointed out to the Returning Officer, but the nomination was rejected by him on the ground that the nomination form had not been fully filled up,--the defect was only a technical defect not of a substantial character and the nomination was improperly rejected.'

In this particular case also there is no defect in the matter of identifying either the proposer or the candidate or their numbers in the electoral rolls in each case, nor had this been the contention of the opposer. We need not refer to other cases cited at the bar since they are not of any material assistance, nor do they touch the point at issue. In the above set of facts we fully endorse the view held by the Election Tribunal to the effect that the nomination of Kusharam Nath was improperly rejected and in cur opinion the election of the returned candidate, namely Dev Kanta Barooah was validly set aside.

13. In regard to the application by Baliram Das in connection with the appeal we find no substance and his application in our opinion would not lie. Under Section 116-A of the Act an appeal would lie from the order of the Tribunal refusing to set aside the election of Mahendra Nath Hazarika, which as a matter of fact was neither prayed for nor pressed, and if the particular candidate Beliram Das was interested in having the election of Mahendra Nath Hazarika set aside, he ought to have preferred an appeal as provided under the Act even though he made no application under Section 81 of the Act.

Further, there is no substance in his contention I inasmuch as under Section 98 of the Act the Election Tribunal has the option to pass any of the orders as provided thereunder and the relevant order comes under Clause (b) thereof, which provides that at the conclusion of the trial of an election petition the Tribunal may make an order declaring the election of all or any of the returned candidates to be void. Section 100(1) which I have already referred to, strictly provides that in case of a nomination paper being improperly rejected, the Tribunal should declare the election of the returned candidate to be void, which is an amendment of the old section which provided that the whole election should have been declared void.

The purpose of the amendment is to indicate that the election only of the returned candidate whose election is impeached, should normally be set aside and not of other candidates, unless required by the circumstances. In this case in the Court of the Election Tribunal nobody prayed for setting aside the election of Mahendra Nath Hazarika and the petitioner Beliram Das cannot succeed in his attempt so to do by an application in connection with the pending appeal. His application must therefore fail and we reject it without cost.

14. In case of the appeal preferred by Dev Kanta Barooah the appeal is dismissed with costs and we assess the hearing fee at Rs. 200/- payable to the contesting respondent Kusharam Nath.

G. Mehrotra, J.

15. I had the advantage of reading the judgment of my brother, and the facts are fully set out in his order. I would, however, like to add my own reasons. By a notification, dated 19-1-1957, nominations of candidates for the Nowgong Constituency were invited. Nowgong Constituency is a double member Constituency. Kusha Ram Nath, the petitioner before the Tribunal, hereinafter called the petitioner, filed five nominations for the General Seat. Three nominations were filed on 23-1-1957 and two on 28-1-1957. Deva Kanta Barooah, hereinafter called the appellant, and Biren Cupta, respondent No. 3, also filed nominations for the General Seat.

Mahendra Nath Hazarika, respondent No. 5, filed a number of nomination papers for the reserved seat for the Schedule caste; Respondent No. 2, Phani Bora, had also filed his nominations for the General seat, and Baliram Das, respondent No. 4, had filed his nominations for the Reserved seat. Scrutiny of the nomination papers took place on 1-2-1957, and the Returning Officer, on an objection by the appellant, rejected the nomination papers of the petitioner. After the polling, the appellant was duly declared elected to the General seat and respondent No. 5 to the reserved seat for the Schedule caste.

Thereafter a petition challenging the election of the appellant was filed on the ground that the petitioner's nomination papers were improperly rejected. The contention of the petitioner found favour with the Tribunal, and the present appeal has been filed against the order of the Tribunal. The question to be considered lies in a very narrow compass, and in order to appreciate the respective contentions of the parties, it is necessary to refer to some of the provisions of the Representation of the People Act, 1951 (Act XLIII of 1951), hereinafter called the Act.

Section 30 of the Act provides for the appointment of dates for nominations by the Election Commission. Section 33 provides for the presentation of nomination paper and requirements for a valid nomination. Clause (1) of the said section reads as follows :

'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.'

Clause (4) of Section 33, which is relevant to the point at issue, reads as follows :

'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 the Returning Officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.'

Clause 33 (5) provides for the filing of the copy of electoral roll in certain circumstances. After the nomination papers have been filed, Section 36 provides for the scrutiny. Clauses (2) and (4) of Section 36, which are material for the controversy, are as follows :

'36 (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, reject any nomination on any of the following grounds :

(a) that 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 : Articles 84, 102, 173 and 191, and Part II of this Act, 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.'

'36 (4).--The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.'

Under Clause (1) of Section 33, the nomination paper is to be filed completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Rule 4 of the Election and Election Petition Rules, 1956,--hereinafter called the Rules, provides that every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the forms 2A to 2F as may be appropriate. The appropriate form in this case is Form 2B, and the relevant columns are 2 and 5 of the said paper, i.e. 'Electoral roll number of proposer' and 'Electoral roll number of candidate.' Rule 2 (1) (b) of the Rules defines electoral roll number of a person as follows :

'Electoral roll number' of a person means--

(i) the serial number of the entry in the electoral roll in respect of that person;

(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.'

The Election Commission issued a notification under Section 30(d) specifying the dates on which the poll for

Assam Legislative Assembly was to take place in respect of each constituency; and in column I of the

table in the said notification, this constituency is described as Nowgong Constituency. Under the provisions of the Preparation of Electoral Rolls Rules, 1956,

each Assembly Constituency is to be divided into

parts, and the Electoral Roll will contain part number

also.

It should be pointed out that the proposer of a candidate has to be an elector of the same constituency; but there is no such bar' for a candidate. Analysing the position of the nomination papers filed by the petitioner, it is clear that in the description of the constituency in the heading of the nomination paper, the constituency has been correctly described as ''Nowgong Assembly Constituency'. Lahiram is the proposer in four of the nomination papers. His name appears at No. 59 of Part 10 of village Phulaniati, mouza Hatichung, P. S. Sadar, Nowgong.

The name of the candidate appears at No. 275 of the same part. The name of the second proposer to Nomination Paper marked Ex. P3, appears at No. 297 of Electoral Roll of village Kalibari, mauza Charaibahi, P. S. Roha, Nowgong. The candidate in the present case admittedly is of the same constituency. Briefly, therefore, in Ex. P1, one of the nomination papers, in column 2, the name of the constituency is not stated, but in column 5, the name does occur. In Exhibits P2 and P3, the name of the constituency appears both in columns Nos. 2 and 5. In Ex. P4, the name of the constituency appears in column 2, but not in column 5.

It is not disputed that the requirements I and II of the rule 2(b) which defines electoral roll number, have been complied with. The only description wanting in these nomination papers is the name of the constituency to which the electoral roll relates. It has also been found, and in our opinion correctly, by the Tribunal that the Returning Officer who received the nomination papers, was satisfied that the papers were in order, as required under Section 33(4) of the Act. The nomination papers have been rejected by the Returning Officer on the date of the scrutiny on the ground that they did not comply with the requirement of Section 33(1), though in the order it is given as Section 33(4).

What the Returning Officer meant by the non-compliance with Section 33(4) was that the nomination papers were not in order as the requirement of the third ingredient of an electoral roll number, as defined in the Rules, has not been complied with. The finding of the Tribunal is that there has been compliance with the provisions of Section 33(1) in this case; and the omission of the third requirement of the definition of 'Electoral Roll Number' is only a defect of non-substantial character, and the nomination paper should, therefore, not have been rejected in view of the provisions of Section 36(4).

Mr. Lahiri who appears for the appellant, has canvassed two points before us. Firstly, he contends that the omission in the present case cannot be regarded as a defect, but it is a non-compliance with the provisions of Section 33(1) and consequently falls in the category of cases under Section 36(2)(b), & not Section 36(4), and secondly, that even if it be considered to be a defect, it is one of substantial character, and is not covered by the provisions of Section 36(4). I see no substance in any of these two contentions. The two clauses of Section 36 of the Act are not mutually exclusive of each other.

Every non-compliance with the requirements of the form under Section 33(1) is in a way a defect in the form, and every defect is in substance a non-compliance with the requirement of Section 33(1). In each case, it will have to be considered whether the

particular defect can be regarded as a defect of non-

substantial character, or not. What is a defect of

non-substantial character, has not been enumerated

anywhere in the Act. No exhaustive definition can

be given of the defect of non-substantial character.

It will have to be determined from the nature of the

defect, the underlying purpose for which the compliance has been insisted upon in the Act, and the

fact of the Returning Officer's satisfaction at the

stage when the nomination papers had been present

ed.

In the case of Rattan Anmol Singh v. Atma Ram reported in 10 El LR 41: (AIR 1954 SC 510), it has been laid down by the Supreme Court that if there has been a non-compliance with the provisions of Section 33(1), such a non-compliance will entitle the Returning Officer to reject the nomination paper unless it is saved under Section 36(4). This case is a complete answer to the contention of the appellant that Sections 36(2)(b) and 36(4) are mutually exclusive and a non-compliance covered by Section 36(2)(b) does not come within the scope of Section 36(4).

In that case, the proposer and the seconder were illiterate; their thumb marks were not attested at the time when they were made, and it was held that it was not a defect of technical nature but was one of substantial character. It was, however, observed as follows at page 47 of the Report (El LR): (at page 513 of AIR):

'The question therefore is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the attestation because of some slip on his part, and it could be proved that he was satisfied at the proper tame, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case tike that, be regarded as an unsubstantial technicality. But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time, his satisfaction Can be dispensed with altogether'.

These observations go to show that the principle underlying the object for which a particular requirement has been imposed, is a relevant consideration to judge whether the failure to carry out such a requirement is or is not a substantial defect. In this case, the want of attestation was considered fatal as the Returning Officer was not satisfied with regard to the identity of the proposer from the materials before him.

Respondents' counsel cited two English cases Baldwin v. Ellis, (1929) J KB 273 and R. v. Tugwell, (1868) 3 QB 704, in support of his contention, besides the cases dealt with by the Tribunal. In the first case, in column 5 under the heading 'How qualified', it was only mentioned that the persons nominated were 'Local Government electors', and the nomination papers did not state the name of the parish for which they were qualified as Local Government elector. This omission was considered fatal and was not regarded as a mere inaccurate description of the person nominated.

Rule 33 which was pleaded in this case, was differently worded than 9. 36(4) of the Act. That was a case where the omission to mention the name of the parish was such as to give no idea to the Returning Officer if the person was qualified or not. In the second case also, it was a case of total omission, and not of inaccuracy in the description. Reliance was then placed on the case of AIR 1954 Mad 730. In this case no doubt the omission to mention the name of the constituency, in the electoral roll of which the petitioner's name was included, and his serial number in that electoral roll, was regarded as a non-compliance with Section 33(1), and not saved by Section 36(4); but there admittedly the petitioner's name at the date of the presentation of nomination was not on electoral roll of any constituency.

It was, therefore, in substance a want of qualification. Besides this, the column was totally blank, it mentioned nothing--neither the name of the constituency nor the serial number, because there was none. The following observation will give the ratio of this case :

'We agree with the Election Tribunal that the omission to give the particulars as to the electoral roll and the serial number therein was a good ground for the rejection of the nomination paper by the Returning Officer under Section 36(2)(d) of the Act. In one sense, this non-compliance is intimately bound up with the other defect, namely, that the petitioner was not on the roll of any parliamentary constituency on the date of the nomination.'

In the case of Karnail Singh v. Election Tribunal, Hissar, reported in 10 El. LR. 189, the omission to state the part of electoral roll in which the candidate's name appears, was not considered fatal by the Supreme Court. The main contention of the appellant's counsel is that the Tribunal was not right in holding that the criterion for determining the character of the defect was only if the identity of the proposer could or could not be known.

From looking into other materials, the identity of the proposer or candidate can always be determined, but if the requirement of any rule has not been complied with, it will be non-compliance with Section 33(1). The Tribunal, in my opinion, did not hold that in every case where the identity could be established with reference to other materials, no defect in the nomination form could ever be regarded as of substantial character. What the Tribunal has laid down is that the object underlying the requirement of giving the candidate's electoral roll number is to give sufficient material to the Returning Officer to satisfy himself about the identity of the proposer or the candidate, and if the entry in the required column was enough to satisfy the Returning Officer about the identity, the part which was left out could not be regarded as a defect of substantial nature.

The second line of criticism of the judgment of the Tribunal by the counsel for the appellant was that the Tribunal has drawn an artificial distinction between a partial and a total omission; to the extent there was an omission, it was a total omission, and thus a non-compliance with the provision of Section 33(1). I do not think the distinction made by the Tribunal is artificial. The requirement in the present case of Section 33(1) was to give the electoral roll number of a proposer or the candidate. The electoral roll number itself, by virtue of its definition in Rule 2(b), consists of three parts.

If none of the three parts of the definition had been mentioned in the column, it could be regarded as a total omission; but in the present case, where some of the ingredients of the definition of the electoral roll number have been given, it cannot be regarded as a total omission but only a partial omission. It cannot be said that the candidate failed to fill in the column. It will be doing no violence to language to say that the column has been filled in a defective manner. The complete failure to make any entry in the column will not give any material to the Returning Officer to be satisfied about the identity of the person, while the partial omission may be such as, in the circumstances of the case, may be no hindrance to the Returning Officer satisfying himself about the identity of the person.

16. I have carefully examined the defects pointed out in the nomination papers filed by the petitioner respondent and, in my opinion, none of the defects can be regarded as one of substantial character; and in the circumstances of the case, the

provisions of Section 36(4) were attracted. The nomination papers were improperly rejected, and the

election of the appellant was rightly set aside by

the Tribunal. I, therefore, concur with the order

proposed by my brother.

.


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