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Kadethotada Gulappa Basappa Vs. Election Officer, Naregal Town Panchayat and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 280 of 1961
Judge
Reported inAIR1965Kant62; AIR1965Mys62; ILR1964KAR165; (1964)1MysLJ355
ActsMysore Village Panchayats and Local Boards Act, 1959; Representation of the People Act, 1951 - Sections 33(4); Mysore Village Panchayats and Local Boards Rules - Rule 8; Code of Civil Procedure (CPC), 1908 - Sections 35-A
AppellantKadethotada Gulappa Basappa
RespondentElection Officer, Naregal Town Panchayat and ors.
Excerpt:
.....12 of the rules the election officer has to reject the nomination paper of a candidate if there is a failure to comply with any of the provisions of either rule 8 or rule 9 of the rules of the act. it is undisputed that as the nomination stands, there is a failure to comply, with the provisions of rule 8. the petitioner's counsel also contends that even though there is a mistake in the entry of the roll number, the returning officer ought to have in spite of this mistake verified the fact that the proposer's name is found in the electoral roll. in air1954mad730 ,their lordships observe that the failure to fill up the particulars as to the name of the constituency in the electoral roll in which the petitioner's name was included as also the serial number in the electoral roll is not only..........of a nomination paper the election officer should satisfy himself that the names and the electoral roll numbers of the candidate and its proposer as entered in the nomination paper are the same as entered on the list of voters or in the relevant part of the electoral roll of the legislative assembly. there is also a proviso under rule 8(4) empowering the election officer to 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 list of voters or the electoral roll of the legislative assembly, as may be necessary.(3) in the nomination paper submitted by the petitioner the number of the proposer was mentioned as 1659. it is alleged in the petition that.....
Judgment:

Gopivallabha Iyengar, J.

(1) The petitioner was a candidate for the election of members to constitute the Panchayat of the village of Naregal situated in Ron Taluks, Dharwar District. Respondents 2 to 11 also were candidates for the aforesaid election. At the scrutiny of the nomination papers the nomination paper of the petitioner was rejected. The elections were held on 1-11-1960 and the result was declared on 2-11-1960. The petitioner filed Miscellaneous Case No. 16/1960 before the Civil Judge and Judicial Magistrate, First Class, Ron, challenging the result of the elections aforesaid.

(2) Under Rule 8 of the Rules framed under the Mysore Village Panchayats and Local Boards Act, 1959 (hereinafter referred to as the Act), it is provided that on or before the date appointed under clause (d) of rule 7, each candidate shall, either in person or by his proposer or by a person authorised in writing in this behalf by the candidate, between the hours of eleven O' clock in the forenoon and three o' clock in the afternoon, deliver to the Election Officer at the place specified in this behalf in the notice issued under rule 7, a nomination paper completed in such one of the forms 2A or 2B as may be appropriate and signed by the candidate and by an elector of the constituency, as proposer. Under the provisions of form 2A and sub-rule (4) of rule 8 of the rules referred to above, the nomination paper should contain the number of the proposer in the list of voters and on the presentation of a nomination paper the Election Officer should satisfy himself that the names and the electoral roll numbers of the candidate and its proposer as entered in the nomination paper are the same as entered on the list of voters or in the relevant part of the electoral roll of the Legislative Assembly. There is also a proviso under rule 8(4) empowering the Election Officer to 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 list of voters or the electoral roll of the Legislative Assembly, as may be necessary.

(3) In the nomination paper submitted by the petitioner the number of the proposer was mentioned as 1659. It is alleged in the petition that the proposer's number in the electoral roll is 1658. As the number mentioned in the nomination paper did not tally with the number in the proposer on the electoral roll, the Returning Officer rejected the nomination paper at the scrutiny.

(4) In the petitioner's election petition it is alleged that the proposer had put the correct number, viz., 1658 but the Returning Officer with ulterior motives altered the number to 1659 and therefore the rejection of the nomination paper is invalid. The petitioner further contended that even though the number mentioned in the nomination paper did not tally with that of the proposer on the electoral roll, it was incumbent on the Electoral Officer to satisfy himself about the identity of the proposer and should have permitted the petitioner to amend the nomination and to put in the correct number of the proposer in the electoral roll.

(5) These allegations were denied by the respondents. The first respondent who is the Election Officer of the Nargal Town Panchayat and who is also the Tahsildar of the Taluka denied that there was any tampering of the nomination paper on his part as alleged by the petitioner. He further pleaded that the aforesaid plea was frivolous and vexatious and therefore he was entitled to compensatory costs in the proceedings. The other respondents also denied the allegations of the petitioner.

(6) The questions that arose for determination by the Civil Judge were: (a) whether the rejection of the nomination paper of the applicant is improper; (b) whether the applicant proves that respondent No. 1 altered the number 1658 in the nomination paper to 1659 a alleged in the application and (c) whether the first respondent is entitled to compensatory costs, from the petitioner under section 35-A of the Code of Civil Procedure.

(7) The Civil Judge held that the Election Officer rightly rejected the nomination paper of the petitioner. He also found that the allegation that the first respondent altered the number in the nomination paper is baseless and that the said allegation was false, vexatious and mischievous to the knowledge of the petitioner. Consequently, the petition was dismissed and compensatory costs of Rs. 300/- was awarded to the first respondent. Against this order of the Civil Judge the above writ petition is filed.

(8) The first contention of the petitioner is that the rejection of the nomination paper is not valid in law. The petitioner relies strongly on the proviso to rule 8(4) of the Rules. The finding by the Civil Judge is that the allegation that the first respondent had tampered with the number in the nomination paper, is false. It may be mentioned here that the petitioner has given up the allegation of tampering of the nomination paper by the first respondent. So, the only question that remains is whether the rejection of the nomination paper is valid in law.

Rule 8, sub-rule (4) proviso provides that the Election Officer shall permit any clerical or technical error in the nomination paper to be corrected. This could be done only if at the time of scrutiny the candidate sought for such permission. It is nowhere alleged by the petitioner that he asked for permission to correct the numbers in the nomination papers. On the other hand his contention was that the number mentioned in the nomination paper had been tampered with. Therefore, it appears to us that the Election Officer was justified in proceeding to scrutinise the nomination paper as it stood. Under rule 12 of the Rules the Election Officer has to reject the nomination paper of a candidate if there is a failure to comply with any of the provisions of either rule 8 or rule 9 of the rules of the Act. It is undisputed that as the nomination stands, there is a failure to comply, with the provisions of rule 8.

The petitioner's counsel also contends that even though there is a mistake in the entry of the roll number, the Returning Officer ought to have in spite of this mistake verified the fact that the proposer's name is found in the electoral roll. Further he contends that under rule 12(3) the Election Officer should not have rejected the nomination paper as the defect, if any, is not of a substantial character. In support of these contentions reliance was placed by the respondent on the decisions reported in Smt. Om Prabha Jain v. Gian Chand Puranchand and AIR 1923 Mad 475, Sarvothama Rao v. Chairman, Muncipal Council, Saidapet.

The facts of the former case are distinguishable. The electoral roll concerned in that case did not contain the name of the candidate. In fact the name of the candidate was entered subsequently in the electoral roll. A certified copy of the electoral roll was also submitted at the scrutiny. It was, therefore, impossible, at the time when the nomination paper was filed, to give the number of the petitioner, as in the electoral roll. In the latter decision no reasoning is given as to why the rejection of the nomination paper is unsustainable. On the other hand, the finding of the Civil Judge upholding the rejection of the nomination paper by the Returning Officer in similar circumstances, is supported by the decisions reported in : AIR1954Mad730 Balasubrahmanyan v. Election Tribunal North Arcot at Vellor, AIR 1959 Punj 120, Rup Lal v. Jugraj Singh and : [1955]1SCR481 , Rattan Anmol Singh v. Ch. Atma Ram. In : [1955]1SCR481 their Lordships observe as follows :-

'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.........'

So, at the time of the scrutiny, if the Returning Officer found that the nomination paper did not conform to or comply with the provisions of rule 8, the nomination paper was liable to be rejected. The petitioner did not seek permission to correct the error. The Election Officer had no option but to reject the nomination paper. In , a Bench of the Punjab High Court observed as follows:

'One of the requirements for a valid nomination is that the candidature must be proposed by an elector of the constituency. The full name and the electoral roll number of the proposer are obviously required--to be mentioned in the nomination form in order to enable the Returning Officer to satisfy himself that the proposer is actually an elector of the constituency, and as a matter of fact sub-section (4) of section 33 (of Representation of the People Act, 1951) now lay upon the Returning Officer the duty of satisfying himself after comparison with the electoral rolls that such is actually the case.

The requirement of mentioning the name and the electoral roll number of the proposer in the nomination form must, therefore, be regarded as a matter of substance.'

It is observed that the provision of section 33(4) of the Representation of the People Act, is in pari materia with Rule 8 (4) of the Rules. In : AIR1954Mad730 , their Lordships observe that the failure to fill up the particulars as to the name of the constituency in the electoral roll in which the petitioner's name was included as also the serial number in the electoral roll is not only a technical defect but it is a substantial defect which the Returning Officer had no jurisdiction to overlook. They further observe--

Without these particulars the Returning Officer could not decide whether a candidate is or is not qualified. Without these particulars ex-facie there was nothing to say that the petitioner was in fact a qualified elector in respect of the constituency'.

It is conceivable that the Electoral roll number of the proposer cannot be identified at all by the Election Officer as there can be more than one entry in the Electoral Roll bearing the same name as that of the proposer. Therefore, the rejection of the petitioner's nomination paper, by the Civil Judge, cannot be said to be unwarranted or unjustified.

(9) Next, the petitioner's counsel takes exception to the award of compensatory costs. The finding of the Civil Judge that the allegation of the petitioner against the first respondent Election Officer attributing to him tampering of the nomination paper as unfounded, vexatious and mischievous, seems to be justified. In spite of it, it is difficult to sustain the order awarding compensatory costs. The Civil Judge purports to award compensatory costs under Section 35-A of the C.P.C. The contention on behalf of the petitioner is that when provision for the awarding costs has been made in Section 13(2) of the Act, the Civil Judge cannot resort to the provision of Section 35-A of the C.P.C. In this connection the provisions of Section 13(2) require to be examined. It states :

'The Munsiff shall, after such enquiry as he deems necessary, pass an order confirming or amending the declared result of the election, or setting aside the election. For the purpose of the said enquiry, the Munsiff may exercise any of the powers of a Civil Court. He may also award costs in such manner as he may deem fit and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908...............'

(10) It appears to us that the powers of the Civil Court referred to above do not include the power to award costs either under Section 35 or under Section 35-A of the Code of Civil Procedure. If the power under Section 35 or under Section 35-A had been included in the powers of a Civil Court, the further provision empowering the Munsiff to award costs would be redundant. In a decision reported in Shankar Tripathi v. Returning Officer, 2 Ele. LR 315 at p. 324 (Ele. Tri-All), which is brought to our notice by the petitioner's counsel, the Election Tribunal Allahabad doubts, whether it has power to award costs under Section 35-A of the code of Civil Procedure. Having regard to the fact that the specific provision has been made in Section 13(2) of the Act in regard to costs, we are of the view that the first respondent cannot be granted any relief by way of compensatory costs under Section 35-A of the C.P.C. Compensatory costs do not stand on the same footing as costs which are contemplated in Section 13(2) of the Act, cannot in our opinion include compensatory costs. Hence, we set aside that portion of the order of the Civil Judge awarding compensatory costs to the first respondent; subject to this, the writ petition shall stand dismissed.

(11) In this petition the petitioner will pay the costs of the respondents 5, 7, 9 and 10.

(12) Petition partly allowed.


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