S. Malik, J.
1. This election petition has been filed under Section 81 of the Representation of the People Act, 1951, (hereinafter referred to as the Act) by the candidate set up by Congress (Organisation) Party during the last General Elections held in February, 1974 and the only ground taken is that the election of the Bhartiya Kranti Dal candidate, respondent Vikaram Singh to the Uttar Pradesh Legislative Assembly from 383 Agota Assembly Constituency in district Bulandshahr be set aside because the nomination paper of the petitioner was improperly rejected within the meaning of Section 100(1)(c) of the Act.
2. The relevant facts are that the petitioner was one of the eight candidates for 383 Agota Assembly Constituency. The notification for holding the General Elections was issued on the 17th of January, 1974. The dates fixed for filing of nomination papers were from 19th of January to 24th of January, 1974, and the date for scrutiny of nomination papers was the 25th of January, 1974, 26th of February, 1974 was the polling date and votes polled were counted on 28-2-1974 fixed for the purpose. The result was also declared on the same day. The petitioner filed two nomination papers on the proper form on 23-1-1974 (vide Ex. P-14 and certified copy Ex. R-1). Both these nomination papers were filed by the petitioner as Madood Ali, son of Tariqat Ali, Post office Guthsoli, village Lohgara, district Bulandshahr. In both it was also mentioned that his name was printed at Serial No.76 in part 140 in the electoral roll of the Constituency. Subsequently, on 24-1-1974 he filed the third nomination paper (Ex. P-15) and in this his name was given as Masood alias Madood Ali and the rest of the details were the same. It is not in dispute that the necessary security money was duly deposited in the name of Madood Ali.
3. On the 25th of January, 1974 i.e., on the date of scrutiny the objection application (Ex. P-17) was filed by one of the candidates, namely, Jagbir Singh Sirohi, set up by Congress (R). A perusal of the objection application filed before the Returning Officer will show that the objection raised was that the actual name of the petitioner is 'Madood' end not 'Masood', and that the petitioner filed the third nomination paper in the name of Masood alias Madood Ali because his actual name viz., Madood has not been printed in the electoral roll and as his actual name is not to be found in the electoral roll, he is not duly qualified to stand as a candidate. It was also mentioned in that objection-application that Madood actually is the elder brother of the petitioner. Against this objection-application the petitioner filed his replies which is Ex. P-19 on the record and it was supported by a counter-affidavit (Ex. P-6). In his reply it has been alleged that the name of the petitioner is to be found at Serial No. 76 of the electoral roll and that the sum of Rs. 250/- deposited on 23-1-1974 was also deposited by him. It was further averred that the third nomination paper filed in the name of Masood alias Madood Ali was also filed nominating him as a candidate. The petitioner took the plea that he has two names -- one Masood and the other Madood. The order by which the Returning Officer rejected the petitioner's nomination papers is Ex. P-7 and a perusal of the same will show that even before him during arguments it was contended that the name of the petitioner is Madood and that due to a printing error his name was printed as Masood at Serial No. 76. Besides these facts, it was also given out that from a comparison of the electoral roll of 1971 which was also filed before the Returning Officer before scrutiny was done, with the electoral roll of 1973, it will appear that all the names of the family members of the petitioner were correctly printed in the electoral roll of 1971 from Serial No. 72, to Serial No. 81, that in the electoral roll of 1973 at the identical serial numbers the same persons were shown and but for some mistakes in printing the names, all the other details are the same and that at Serial No. 76 instead of Madood, Masood was wrongly printed. It was also pleaded in the alternative that in any case, as Madood also is known as Masood, at least his thirdnomination paper should be accepted. The Returning Officer, as is apparent from Ex. P-7, did not consider whether the proviso to Section 33(4) of the Act was applicable to the facts of this case. The only question he considered was whether the name of the petitioner actually finds place in the electoral roll of 1973. He came to the conclusion that at Serial No. 76 instead of the name of the petitioner, the name of his brother Masood was printed and his name not being in the electoral roll of 1973 he was not duly qualified to be a candidate and on that ground rejected his nomination papers.
4. Keeping in view the pleadings of the parties the following issues were framed:--
1 (a) Whether the petitioner is enrolled as a voter in the electoral roll of the constituency at Serial No. 76, part 140 and his name by misnomer and/or owing to printing mistake has been written as 'Masood'' and not 'Madood' ?
1 (b) Whether the petitioner is sometimes called as 'Masood' and not 'Madood' ?
2. Whether the nomination paper of the petitioner was improperly rejected If so, what is its effect ?
3. Whether the security money has not been deposited in accordance with the Rules of Court If so, what is its effect ?
4. Whether the election petition is liable to be rejected for non-compliance with the provisions of Section 81 of the Representation of the People Act, 1951 ?
5. Whether in the array of respondents the name of respondent is wrongly written as Vikaram Singh instead of 'Vikram Singh' If so, its effect ?
6. To what relief, if any, is the petitioner entitled
5. Neither Issue No. 5 nor Issue No. 4 was pressed. Moreover, nothing was brought to the notice of the Court due to which it could be said that the petition was not filed in accordance with the provisions of Section 81 of the Act.
6. A perusal of the rest of the issues will show that the only question involved in the case is whether the person enrolled at Serial No. 76 of Part 140 of the electoral roll is the same person as Madood, the petitioner and in view of the proviso to Section 33(4) of the Act it was a misnomer and, therefore, the Returning Officer should have accepted at least the nomination papers filed in the name of Madood on 23-1-1974. Of course, the question as to whether the petitioner also is known as Masood or has a name of Masood, was agitated by both the parties and evidence was adduced regarding the same. Under the circumstances, all these issues may be taken up together.
7. The question as to whether the petitioner is also known as Masood may be taken up first. As P. W. 1 the petitioner examined his father Tariqat Ali. He stated that he has two sons, Masood Ali and Madood Ali alias Masood Ali and that Masood Ali is two years older than the petitioner whose name is Madood Ali alias Masood Ali. He proved other facts and a perusal of his cross-examination will show that it has not been controverted that the petitioner's family, of which his father is the head reside in village Lohgara in house No. 145 and that all the persons recorded from Serial Nos. 72 to 81, in both the electoral rolls i.e., of 1971 and 1973 are members of his family. It has also been proved and as a matter of fact, it was not challenged by the respondent that there was no other person named Masood or Madood besides the petitioner and his elder brother whose father's name is Tariqat and which at places has been wrongly printed as Karikat in the electoral roll of 1973 and that the difference in age between the two brothers is of two years. It has also come in evidence that in 1971 Masood Ali was 28 years old and Madood Ali was 26 years old. As a matter of fact, one of the respondent's witnesses, R. W. 2 Biniyad Ali also admitted these facts. It is thus apparent that at serial No. 76, but for the name Masood all the other details fit in with the description of the petitioner or in other words, Madood and this fact is not in dispute. In this connection, reference may be made to the High School Certificate and the other certificate of the petitioner got proved by the respondent. Tariqat. no doubt, stated that as there is considerable resemblance between his two sons, the petitioner often by mistake is also referred to as Masood by outsiders. But it is difficult to believe that two brothers could have been given the same name. Moreover, the statement of the father that the petitioner due to mistaken identity at times is called Masood, clearly proves that Masood is not a name of the petitioner and that his real name is Madood though he may at times be called Masood by mistake. The statements made by the witnesses of the respondent on this point also prove the same. Though the respondent's witnesses did not admit that the petitioner at times is called Masood by mistake, Buniyad Ali, a relation of the petitioner admitted in his cross-examination that the two brothers Madood and Masood resemble one another.
8. It is apparent that the third nomination paper was filed by the petitioner when he discovered that his name'Madood' had been wrongly printed as 'Masood' in the electoral roll at Serial No. 76 of 1973 so that his nomination papers may not be rejected because the name 'Madood' did not appear in the electoral roll of 1973. But it could not be argued, even if it appears that the petitioner wrongly alleged that he was also known as Masood, that the proviso to Sub-section (4) of Section 33 of the Act would not apply and because the Returning Officer was satisfied that the petitioner's name was not Masood, he was justified in rejecting all the nomination papers.
9. The proviso to Sub-section (4) of Section 33 of the Act may be quoted:
'Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate ............ mentioned in the electoral roll ......... shall affect the full operation of the electoral roll ............ with respect to such person ............ in any case where the description in regard to the name of the person......is such as to be commonly understood; and the Returning Officer shall permit any such misnomer or inaccurate description ............ or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description ............ or printing error in the electoral roll ............ shall be overlooked.'
It is not in dispute that the proviso quoted is mandatory and, therefore, it has to be considered whether in view of these provisions the Returning Officer could be said to have rightly rejected the petitioner's nomination papers filed on 23-1-1974.
10. The meaning of the word 'Misnomer' as given in the Oxford Dictionary and also in the New Standard Dictionary, 1952 Edition of the English Language is:--
'the giving of a wrong name to a person in a legal document; a name wrongly or mistakenly applied; a misnaming.'
Similarly, in Aiyar's Law Lexicon Dictionary 'Misnomer' has been described as:
'the using one name for another; a misnaming; mistake in a name; the giving an incorrect name to a person in a pleading, deed, will or other document.'
11. Therefore, from what has been quoted, it is apparent that 'misnomer' really means giving an incorrect or wrong name to a person even in a legal document. It may be considered whether the name 'Masood' mentioned at Serial No. 76 in Ex. P-13 really is a wrong name describing the petitioner whose name, it is not in dispute, is Madood. It may be repeated that it is nobody's case and even the Returning Officer did not think itprobable that in fact, there was another person in village Lohgara whose description might fit in with the description given at Serial No. 76. The finding of the Returning Officer, on the other hand, was that the name of the elder brother of the petitioner was repeated and he was recorded as a voter both at Serial No. 75 and at Serial No. 76. To quote the actual words of the Returning Officer.
'At S. No. 75 Masood has been shown as son of Karikat and at S. No. 76 Masood has been shown as the son of Tarikat. Even if persons registered at S. Nos. 75 and 76 are taken to be the sons of the same father i.e., Tarikat, it would only mean the duplicity in the registration of Masood as voter. It cannot from any stretch of imagination make Madood Ali out of Masood'.
A comparison of the two electoral rolls which were before the Returning Officer and were actually considered by him together with other material brought to his notice will show that any ordinary man of average intelligence could have easily concluded from all the details appearing from Serial No. 72 to Serial No. 81 that the person described at Serial No. 76 was Madood and that only his name was wrongly printed as Masood in Ex P-13 the electoral roll of 1973.
12. Under the circumstances, the proviso to Sub-section (4) of Section 33 of the Act, in my view, applies with all force to the facts of this case and the Returing Officer should have had no difficulty in coming to the conclusion that the person recorded at serial No. 76 in Ex. P-13 was actually Madood Ali, the petitioner. It may be repeated that the deposit also had been made in the name of Madopd and that admittedly, there was no mistake in the nomination papers filed on 23-1-1974.
13. It was argued on behalf of the respondent that the filing of the third nomination paper by the petitioner proves that the petitioner had come to know about the mistake in printing his name in the electoral roll of 1973, In view of the provisions of the proviso to Section 33(4) of the Act it was his duty to have brought this mistake to the notice of the Returning Officer and through him get the mistake corrected. And as the petitioner did not get it done, the Returning Officer rightly rejected his nomination papers. The contention has no force. Of course, the petitioner could have taken such a course but omission on his part to take steps to get the electoral roll rectified did not absolve the Returning Officer of his duty to apply the proviso to Sub-section (4) of Section 33 of the Act and to admit the first two nomination papers because of reasons discussed.
14. Under the circumstances after considering the entire evidence on the record and in view of what has been discussed, I find that within the meaning of Section 100(1)(c) of the Act the election of the respondent, Shri Vikaram Singh has to be set aside and the same is hereby declared to be void. The petition is allowed. The petitioner shall get Rs. 400/-as costs from the respondent. Let the Election Commission and the Speaker, U. P. Legislative Assembly be informed about the result of this election petition in accordance with Section 103 of the Act and a copy of this judgment be also sent to the Election Commission as soon as possible.