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Pritam Singh Son of Kishan Singh Vs. S. Ranjith Singh Son of R.B. NaraIn Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 1-E of 1964
Judge
Reported inAIR1965P& H39
ActsRepresentation of the People Act, 1951- Sections 33(5), 34, 36(2) and 39(4); Representation of the People (Amendment) Act, 1952 - Sections 33; ;Representation of the People Act 1950; Election Rules, 1961 - Rule 4
AppellantPritam Singh Son of Kishan Singh
RespondentS. Ranjith Singh Son of R.B. NaraIn Singh and ors.
Cases ReferredBansi Ram Naru Ram v. Jit Ram Gehru Ram
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order(1) was the nomination of shri wazir singh jaijee (respondent no. 5 in this court)improperly rejected by the returning officer, is the only question which has been argued in this court in this appeal and which falls for determination.(2) the controversy in the present appeal arises out of the general elections held in 1962.shri singh (respondent no. 1 in this court) was successful in the election to the house of the people from sangrur parliamentary constituency. shri pritam singh appellant, who was also one of the contesting candidates to the said sent, feeling aggrieved challenged shri ranjit singh's election by means of an election petition under the representation of the people act, 1951: he also claimed a declaration of himself having been duty elected. the last prayer does not.....
Judgment:
ORDER

(1) Was the nomination of Shri Wazir Singh Jaijee (respondent No. 5 in this Court)improperly rejected by the Returning Officer, is the only question which has been argued in this Court in this appeal and which falls for determination.

(2) The controversy in the present appeal arises out of the general elections held in 1962.Shri Singh (respondent No. 1 in this Court) was successful in the election to the House of the People from Sangrur Parliamentary Constituency. Shri Pritam Singh appellant, who was also one of the contesting candidates to the said sent, feeling aggrieved challenged Shri Ranjit Singh's election by means of an election petition under the Representation of the People Act, 1951: he also claimed a declaration of himself having been duty elected. The last prayer does not concern us because it was dropped even during the proceeding before the Election Tribunal. Shri Wazir Singh Jaijee was also one of the candidates who had filed three nomination papers all of which were rejected by the Returning Officer. The Election Tribunal did not consider the rejection to be improper. Hence the present appeal.

(3) Coming straight to the question at issue it may be pointed out that on 27th of January 1962 three nomination papers were presented by the said Shri Wazir Singh Jaijee as a candidate for election to the Parliament from the sangrur Parliamentary Constituency their serial numbers before the Returning Officer being 11,14 and 15. In the first two the proposer was one Shri Naranjan Singh and in the third Shri Shib Darshan Singh. The relevant portions of the three nomination papers to which reference has been made at the bar for their respective arguments on the two side are reproduced:-

'No. 11FORM 2-ANomination Paper(See rule 4)Election to the House of the People(To be filled by the proposer)I hereby nominate Wazir Singh as a candidate for election from the 22 Sangrur Parliamentary Constituency.1. Full name of proposer, Naranjan Singh,2. Electoral roll number of proposer: 1446-Chural Khurd, part No.17 (Patwar Halqa) Chon Halqa Lahra district Sangrur,3.Name of candidate's father: Harchand Singh4. Full postal address of candidate : Wazir Singh, Ward No.4, 3 Bridges Simla5.Electoral roll number of candidate: 1853Date 27-1-62 Sd/Naranjan Singh(Signature of proposer)No.14FORM 2Nomination Paper(See rule 4)Election to the House of the People(To be filled by the proposer)I hereby nominate Wazir Singh as a candidate for election from the No.22 Sangrur Paliamentary Constituency.1. Full name of proposer: Naranjan Singh.2. Electoral roll number of proposer: Sangrur Paliamentary, part No.17, Voter No.1446. Village Chural Khurd.3. Name of candidate's father: Harchand Singh4. Full postal address of candidate :Wazir Singh, son of S.Harchand Singh, Ward No. 4, 3 Bridges, Simla.5. Electoral roll number of candidate: Ambala (S.C.) Parliamentary Constituency, Simla Assembly Constituency, Part No. 4, Voter No. 1853, Ward No. 4, SimlaDate 27-1-62 Sd/- Naranjan Singh(Signature of proposer)No.15FORM 2ANomination Paper(See rule 4)Election to the House of the PeopleI hereby nominate Wazir Singh as a candidate for election from the No.22 Sangrur Parliamentary Constituency.1. Full name of proposer: Shib Darshan Singh2. Electoral roll number of proposer: sangrur Paliamentary Constituency Sunam State LegislativeAssembly Constituency, Part No. 20 Village Chatha Nakta Voter No. 273. Name of candidate father : Harchand Singh.4. Full postal address of candidate : Wazir Singh, son of Harchand Singh Ward No. 4, 3 Bridges, Simla.5. Electoral roll number of candidate : Ambala (S. C.) Parliamentary Constituency. Simla, Assembly Constituency Part No.4, Voter No. 1853, Ward No.4 Simla.Date 27-1-62 Sd/- Shib Dharshan Singh(Signature of prosposer).'

(4) Nomination paper No.11 which is exhibited as P. W. 2/3 has a note in the margin showing. The name of the proposer in this document is stated to the Naranjan Singh and his electoral roll No.1446-Chural Singh and his electoral roll No.1446-Chural Khurd-part No. 17 (Patwar Halqa) Chon Halqa Lehra, District Sangrur. The electoral number of the candidate is shown to be 1853. This nomination paper as the endorsement at its back shows was delivered to the Returning Officer at his office at 12 noon on 27-1-1962 and apparently the officer concerned does not seem to have taken any step on that date. On the day of scrutiny which was fixed for 19-1-1962 and apparently the officer the officer concerned does not seem to have taken any step on that date 1962, this nomination paper was rejected and the order of rejection in the handwriting of the Returning Officer after the printed matter stating that the order of rejection in the handwriting of the Returning Officer after the printed matter stating that he had examined this nomination paper accordance with S. 36 of the Representation of the People is as follows:

'Rejected because the name of Parliamentary Constituency and the name of the village and the Assembly Constituency and the part number of electoral roll of the candidate is not mentioned. Also the name of his Parliamentary Constituency of the proposer is not given.'

It is noteworthy that this paper was not rejection the ground that a copy of the electoral roll of the Constituency and the name of the village and the electoral roll of the Constituency of which the candidate is an elector or relevant entries of such roll had not been either filed along with the nomination or produced before the Returning Officer at the time of the scrutiny as is required by S. 33(5) of the Representation of the People Act, 1951 (herein after called the 1951 Act).

Nomination paper No.14 which is exhibited as P. W. 3/b was also proposed by Naranjan Singh and it has at the margin a note stating that the treasury receipt and voter list had been attached with the other form. In this paper the electoral roll number of the proposer is state to be sangrur Paliamentary Constituency Lear Assembly Constituency part No. 1853, Ward No. 4 Simla. This shows was presented to the Returning Officer on 12.50 P. M. on 27-1-1962 and the operative portion of the order is as follows:

'The following objections have been taken against this nomination paper (No.14).

(I) That it has not been properly presented inasmuch as the form does not show whether it ahs been

presented by the candidate or the proposer.

(ii) That it does not contain a copy of the electoral roll of the Constituency concerned of if the relevant part thereof or a certified copy of the relevant entries maintained above and

(iii) That the amount of Rs. 500/- deposited in the treasury purports to have been deposited on behalf of Shri Wazir Singh son of Shri Harchand Singh of Patella whereas the address of the candidate as given in this nomination paper is entirely different.

I have heard the candidate as well as his learned counsel and the learned counsel for the objector. My observation are as follows:

'(i) It is correct that the Assistant Returning Officer who actually received this nomination paper did not strike off candidate /proposer properly to show who had actually presented it, but the Assistant Returning Officer is present at the moment and he certifies that this nomination paper was presented by the candidate himself. Objection No. (i) is therefore overruled.

(ii) A perusal of the nomination paper reveals that the certifies copy of the electoral roll of the constituency or of the relevant part thereof or a certified copy of these entries is not enclosed along with this nomination paper. It is correct that this nomination paper. It is correct that this nomination paper. The question however arises whether each nomination paper has to be self-contained or whether when there are certain documents which if filed with one nomination paper can be considered as having been filed with other also. My opinion is that the intention of law is quite clear. This is borne out by S. 34 of the Representation of the People Act, 1951, where in it is mentioned that where a candidate has been nominated by more than one nomination paper for election in the same constituency not more than one deposit shall be required of him.

If the intention of the law or the rules was that like the deposit itself all other relevant papers such as the entries mentioned above with objection were to be filed only with one nomination paper and were to be taken as having been filed with the rest there was no point in making special clarification about the deposit alone. I feel that this has been an omission on the part of the candidate.

Having said so I will now take up the request of the candidate that the scrutiny of this nomination paper may be adjourned and he may be allowed an opportunity to produce the relevant documents. In this connection the learned counsel for the candidate has pointed out S. 69(5) of the Representation of the Act, 1951 wherein it is laid down that if an objection is raised the Returning Officer or is made by any other person the candidate concerned may be allowed tome to rebut it not later than the next day but one followed scrutiny. I have given this request my careful consideration and feel that the omission sought to be rectified by the candidate is not a rebuttal strictly speaking and that giving him an opportunity to furnish the relevant documents mentioned above which he omitted to file with the nomination paper would not be covered by this. I requested the candidate to produce these documents before me now if he had them but he wanted an adjournment. in this connection I have referred the candidate to para 5 page 14 of the Hand book for candidates issued by the Election Commission of India whereby the candidates have clearly been asked to keep ready in their possession in order to meet any possible objection a copy of the current electoral roll or a certified copy of the entry in the current roll bearing the candidate's name and that of his proposer.' Clause 95) of S. 33 of the Representation of the People Act, 1952 also mentions that 'where the candidate is an elector of a different constituency (as in the case of present candidate) 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 nomination paper be produced before the returning officer at the time of scrutiny.'

From all this I am quite clear in my mind that no adjournment can be given to the candidate to produced these documents and that he should have been ready with all of them while coming up for this scrutiny.

(iii) A perusal to the treasury receipt shows that Rs.500/- have been deposited in the treasury on behalf of Shri Wazir Singh son of Shri Harchand Singh of Patiala whereas the candidate is mentioned as Shri Wazir Singh son of Shri Harchand Singh Ward No. 4, 3 Bridges Simla. The signature of the candidate on the nomination paper styles him as Wazir Singh Jaijee. The objections taken by the learned counsel for the Shri Nirbhai Singh is that there may be scores of persons of this name as well as parentage in Patiala and that from a scrutiny of the nomination paper Shri Wazir Singh Jaijee. The objections taken by the counsel for Shri Nirbhai Singh is that there may be scores of persons of this name as well as parentage in Patiala and that from a scrutiny of the nomination paper Shri Wazir Singh son of Shri Harchand Singh of Patiala does not by any manner or means identify him as Shri Wazir Singh Jamie or Shri Wazir Singh son of Shri Harchand Singh of Ward No. 4 3, Bridges Simla. I have however examined the treasury receipt which also bears the signature of the candidate as Shri Wazir Singh Jaijee. It would therefore appear that this only a clerical mistake and that the money has been deposited on behalf of the candidate who has actually signed the nomination paper. This objection is overruled.

My conclusions therefore are that while overrule objections Nos. (i) and (iii) I uphold objection No

(ii) for which reason the nomination paper is rejected.'

Nomination paper No.15 which is exhibited at P. W. 2/2 has been proposed by Shiv Darshan Singh whose electoral roll number is stated to be Sangrur Parliamentary Constituency. Sunam State Legislative Assembly Constituency part No 20 village Chatha Nakta voter No.27 and the electrol roll number of the candidate has been given the Ambala (S. C.) Parliamentary Constitutency, part No. 4, entry No. 1853. This was presented at 12.55 on 27-1-1962 and the order dated 29-1-1962 is as follows:

'The following objections have been taken against this nomination paper (No. 15)

(i) That it has not been properly presented in as much as the form does not show whether it has been presented by the candidate or the proposes.

(ii) That it does not contain a copy of the electoral roll of the Constituency concerned or of the relevant part thereof or as certified copy of the relevant entries mentioned above and

(iii) That the amount of Rs. 500/- deposited on the treasury purports to have been deposited on behalf of Shri Wazir sigh son of Shri Harchand Singh of Patiala whereas the address of the candidate as given in this nomination paper is entirely different'.

I have heard the candidate as well as he learned counsel and the learned counsel for the objector, My observations are as follows:

(i) It is correct that the Assistant Returning Officer who actually received this nomination paper did not strike off candidate /proposer properly to show who had actually presented it but he Assistant Returning Officer is presented by the candidate himself. Objection No. (I) is therefore overruled.

(ii) A perusal of the nomination paper reveals that the certified copy of the electoral roll of the constituency or of the relevant part thereof or a certified copy of these entries is not enclosed along with his nomination paper. It has been argued that the above mentioned documents have been attached with this nomination paper also. The question however arises whether each nomination paper has to be self-contained or whether there are certain documents which is filed with one been filed with others also. My opinion is that the intention of law is quite clear. This is borne out by section 34 of the Representations of the People Act 1951 wherein it is mentianed that where a candidate has been nominated by more than one nomination paper for election in the same constituency not more than one deposit shall be required of him.........' If the intention of the law or the rules was that like the deposit itself all other relevant papers and were to be taken as having been field with the rest there was deposit itself all other relevant papers where to be filed only with one nomination paper and were to be taken has having been filed with the rest there was no point in making special clarification about the deposit alone. I feel that this has been an omission on the part of the candidate.

Having said so I will now take up the request of the candidate that the scrutiny of the nomination paper may be adjourned and he may be allowed an opportunity to produce the relevant document s. In this connection the learned counsel for the candidate ha splinted out S. 36(5) of the Representation of the People Act 1951 wherein it is laid down that if 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 open followed by scrutiny. I have given this request my careful consideration and feel that the omission sought to be rectified by the candidate is not a rebuttal strictly speaking and that giving him an opportunity to furnish the relevant documents the nomination paper would not be covered by this. I requested the candidate to produce these documents before me now if he has them but he wanted an adjournment. In this connection I have referred the candidate to para 5 page 14 of the Hand Book for candidates issued by the Election Commission of India whereby the candidates have clearly been asked to keep ready in their possession in order to meet any possible objection a copy of the current electoral roll or a certified copy of the entry in the current roll bearing the candidate's name and that of his proposer. Clause (5) of S. 33 of the Representation of the People Act 9151 mentions that 'where the candidate is an elector of a different constituency (as in the case of present candidate) a copy of the electoral roll of than Constitutency 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.:'

From all this I am, quite clear in my mind that no adjournment can be given to the candidate to produce these documents and that he should have been ready with all of them while coming up for this scrutiny.

(iii) A perusal of the treasury receipt shows that Rs 500/- have been deposited in the treasury on behalf of Shri Wazir Singh son of Shirr Hacahnd Singh of Patiala whereas the candidate is mentioned a Shri Wazir Singh son of Shri Harchand Singh, Ward 4,3 Bridges Shimla. The signature of the candidate on the nomination paper styles him as Wazir Singh Jaijee. the objection taken by the learned counsel for Shri Nirbhai Singh is that there may be scores of persons of this name as well as parentage in Patiala and that from a scrutiny of nomination paper Shri Wazir Singh son of Shri Harchand Singh of Patiala does not by nay manner or means identify him as Shri Harchand Singh of Ward No. 4, 3 Bridges, Shimla. I have however examined the treasury receipt which also bears the signature of the candidate as Shri Wazir Singh Jaijee. It would therefore appear that this is only a clerical mistake and that the money has been deposited on behalf of the candidate who has actually signed the nomination paper. This objection is overruled.

My objections therefore are that while I overrule objections Nos. (I) and (iii). I uphold objection No.(ii) for which reason the nomination paper is rejected.'

(5) When the matter was raised in the election petition the returned candidate Shri Ranjit Singh

raised a further objection that the voters' list attached with the nomination paper No.11 was not a complete copy of the electoral roll of the constituency concerned nor was it a complete relevant par thereof nor a certified copy of the relevant entry in such roll and that therefore paper No.11 also did not comply with the provisions of S. 33(5) of the 1951 Act. IT was in addition pleaded that the candidate's name as given in paper No.11 was Wazir Singh and that it was not possible to find that this Wazir Singh was really Wazir Singh Jaijee the candidate. The proposer Naranjan Singh was also pleaded not b an elector in village Chural Khurd. The further objection in regard to paper No.11 that the electoral roll produced therewith was not a complete copy was also repeated in regard to these two nomination papers. It was further averred that the rejection of Wazir Singh jaijee's nomination papers did not materially affect the result of the election.

(6) As already observed, all these three nomination papers were held by the learned Election tribunal to the Invalid and therefore to have been properly rejected by the Returning Officer. In so far as nomination paper No. 11 is concerned, I amy merely notice the arguments addressed by the learned counsel for the appellant without commenting on them in detail because we are satisfied that this nomination paper did not comply with the requirements of S. 33 of 1951 Act. In regard to the nomination papers Nos. 14 and 15, the learned Tribunal observe that the defects found in respect of nomination paper No.11 did not exist in these two nomination papers ' inasmuch as all necessary particulars regarding the candidate and the proposer have been mentioned in these two papers.'. These papers were therefore in the opinion of the learned Tribunal not liable to the objected to on any of the grounds on which nomination paper No.11 was rejected; these two papers were however rejected on the ground that no copy of the electoral roll had been produced with them or before the Returning Officer to the time of the scrutiny. the contention that the copy of the electoral roll attached with the nomination paper No.11 could have been looked at by the Returning Officer was repelled by the learned Tribunal in the following words:

'As regards the copy of the roll that stood repended to nomination paper No.11 I am of the view that neither could it be legally taken into consideration for purposes of nomination papers Nos. 14 and 15 nor was that a copy warranted under above referred S. 33(5). according to the prescribed procedure each nomination paper is to be taken up for scrutiny separately and learned counsel for the petitioner is not correct in his contention to the contrary. Accordingly nomination paper No.11 was taken up first and as already noted it was rejected and rejected rightly. Thereafter nomination papers Nos. 12 and 13 were taken up and after those were scrutinized papers at Nos. 14 and 15 to look back to the nomination paper No.11 in order to verify the particulars from the copy of the electoral roll lying appended to it.'

It was added that even otherwise the electoral roll appended to paper No.11 was neither copy of apart No. 1V nor a certified copy of the relevant entries therein. In this connection it was noticed that the copy filed ended at serial No.1524 whereas in fact the total voters recorded in part No.1V in the original roll is 1848 The roll appended to paper No. 11 was in the circumstances construed by the learned Tribunal to mean merely copies of relevant entries in the roll and not the electoral roll or relevant part thereof; the entries not being certified did not fall within the contemplation of S. 33(5). This defect was observed to be common to all the three nomination papers. In regard to nomination papers Nos. 11 and 14, the Tribunal further found them to be defective inasmuch as the name of the village of the proposer was given to be Chural Khurd and the serial number of his vote as 1446. Village Churl Khurd according to the Tribunal had only 847 voters and it was village Choral Khurd and Churl Kaolin were undoubtedly stated to be close to each other but the misdescription in the village was also held to be wrong resulting in non-compliance with the legal provision and therefore rendering the papers to be liable to rejection on that score as well.

(7) Now it is not disputed that Wazir Singh Jaijee had made a request to the Returning Officer to grant him time for producing the voters list for the purposes of the nomination papers Nos. 14 and 154 but the same had been rejected. That time should have been granted was urged before the learned election Tribunal who agreed with the views of the Returning Officer observing that under S. 33(5) it was necessary

for Shri Wazir Singh to produced at the time of scrutiny a copy of the electoral roll or of the relevant part thereof or a certified copy of the relevant entries.

(8) On appeal in this court the appellant's learned counsel has assailed the view both of the Returning Officer and of the Election Tribunal in regard to the three nomination papers. I may first deal with the question whether non-production of the electoral roll or a part of thereof along with each of the nomination papers Nos. 14 and 15 was substantial defect when a copy of part of the electoral roll had actually been produced along with nomination paper No.11 which also contained a receipt for the deposit of Rs. 500/-. the respondents' learned counsel has very strenuously urged that each nomination paper is a separate entity and has for all purposes to be considered as a self-contained document. It must comply with all the provisions of S. 33 of the 1951 Act. in support of this contention reference has been made to Baru Ram v. Prasanni, AIR 1959 SC 93. The following passage at p.99 has been particularly relied upon:

'Mr. Jai Bhagwan who presented his nomination paper to the Returning Officer on January 29 1959 was admittedly no an elector in the constituency of Rajaund in the district of Karnal. It is alleged that he was a voter in another constituency. When his nomination paper was presented he did not produce a copy of the relevant entries in the said roll; nor did he produce any these documents on the first of February which was fixed for scrutiny of the nomination papers. When the Returning Officer noticed that the candidate had not produced the relevant documents within the time allowed and thereupon the Returning Officer rejected his nomination paper under S. 36(2)(b) of the Act. It is true that the candidate subsequently purported to produce before the officer his affidavit that this name was entered as a voter in the list of voters (No. 0174, constituency No. 6 Karnal; Banquet No. 21 Vol. 10), but the Returning Officer rejected his nomination paper under S. 36(2)(b). thus the rejection of the nomination paper was the result of the candidate failure to produce any of the prescribed documents before the Returning Officer.'

On these facts the rejection was upheld. A little lower down the Court also observed that the requirement of S. 33(5) was mandatory inasmuch as the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. The contention that non-production of the requisite copy was not a defect of a substantial character did not impress the Court and it was observed:

'There is no doubt that the essential object of the scrutiny of nomination papers is that Returning Officer should be satisfied that the candidate who is not an elector of a different constituency. The satisfaction of Returning Officer is thus the matter of substance in these proceedings and if the statue provides the mode in which the Returning officer has to be satisfied by the candidate it is that mode which the candidate must adopt.'

(9) The appellant has on the other hand begin with referred to a decision of the Madras High court in N. P. Velusami Thevar v. Raja Nainar 21 Ele LR 338:(AIR 19670 Mad 201) according to which the object of S. 33(5) of the Act of 1951 is that there should be evidence that the candidate in question is an elector of a different constituency and if that fact is reasonably clear and what purports to be a certified copy of the relevant entry relation got him had been filed any defect in the copy even if it is a defect which consisted in an interpolation or a scoring off any part of the copy could not amount of a defect of an substantial character within the meaning of S. 36(4), and the nomination cannot be rejected of non-compliance with section 33(5).

The next decision relied on is form the Andorra Prudish High Court in Yaohan Reddy v. Neelagiri Muralidhar, 14 Ele LR 167: (AIR 1958 Andh Pra 485). In that case the nomination a candidate who was an elector in a different constituency was accompanied by a copy of the relevant entry of the electoral roll in which the candidate's name was registered. The copy was obtained from the office of the Deputy Collector and was certified to be a true copy of the Record Keeper an issued by the peshkar of the Deputy Collector Office. There was also evidence to show than application for the copy was made to the Deputy Collector and he had issued an order directing the peshkar issue of certified copy. The nomination was however rejected by the Retaining Officer on the ground that the copy was not a 'certified copy' within the meaning of S 36(4) of the 1951 Act. The decision of the Supreme court in Rattan Animal Singh as Tama Ram, 10 Ele LR 41: (AIR 1954 SC 510) was distinguished.

The appellant's counsel has also drawn the attention of this Court to Pratap Singh v Krishna Gupta (s) SIR 1956 SC 140 in which the tendency of the Courts towards technicality has been deprecated and it is emphasised that it is the substance that counts and must take precedence over mere form. Some rules according to this decision are vital and go to the root of the matter with the result that they cannot be broken others are only directory and their breaches can be overlooked provided there is substantial compliance with the rule's read a s whole and provided no prejudice ensues; when the legislature does no t itself state which is which. Judges must determine the matter and exercising a nice discrimination sort out one class from the other along broad based common sense lines. Reliance has next been placed by the appellant on a decision of the Election Tribunal, Bikaner in Ugam Singh v. Hari Singh 6 Ele LR 170. The head-one of this decision reads thus:

'A candidate filed two nomination papers just for Jalore. A constituency and the other for Jalore B constituency in which his name appeared with the nomination paper for Jalore A, and requested the Returning Officer to treat it as evidence for both the constituencies. The Returning Officer who held the scrutiny of the nominations on the same day accepted the nomination for Jalore A and rejected that for Jalore B on the ground that a certified copy of the electoral roll or entry therein was not reduced with it. Held,

(i) that as the Returning Officer was in possession of the certified copy of the electoral roll at the time of the scrutiny though it was attached to the nomination for Jalore A, it was his duty to look into it and he acted improperly in rejecting the nomination for Jalore B;

(ii) if the Returning Officer has evidence other than a copy of the electoral roll to decide the question of the identity and eligibility he can proceed on that evidence. He is not bound to rest his evidence on the electoral roll alone and reject a nomination if a copy of the roll alone and reject a nomination if a copy of the roll is not produced.

Omission to mention in the nomination paper the part and sub-division of ht electoral roll in which the candidate's name if entered is only a technical defect not of a substantial character where the identity of the candidate can be ascertained without them.'

The respondents' learned counsel it may be observed has pointed out that this decision was under the old Act when the Returning Officer was required to call upon the candidate to produce the roll and there was no obligation imposed on the candidate to produce it himself. The next decision cited on behalf of the appellant is of the Madras High Court in S. K. Sambandam v. election Tribunal Madras 5 LR 341 (AIR 1954 Mad231). The head-note of this case read under :

'Where a candidate produce along with his nomination paper a printed copy of the Block of the electoral roll for the constituency, wherein his name was entered as a voter, but the Returning Officer passed an order calling upon him to produce a certified extract from the electoral roll and rejected his nomination for non-compliance with this order.

Held,

(i) that by producing the printed copy of the Block of the electoral roll in which his name appeared, the candidate had substantially complied with the requirements of S 39(4) of the Representation of the

People Act, 1951;

(ii) even assuming that the provisions of S 39(4) were not complied with the Returning Officer had no power under S. 36(2)(d), or any other provision of law to reject the nomination for non-compliance with the proviso to S. 39(4).'

It was further observed in this case that purpose of the proviso to S. 39(4) was not to prescribe ordeals for the intending candidates to undergo, but to provide for guides to the Returning Officer in deciding about the identity of the candidate and of the proposer and seconder. Needless to say that this decision according to the respondents was also under the unamended Act.

(10) On behalf of the respondents reference has also been made to a decision of the Supreme Court in Brijendralal Gupta v. Jwalaprasad AIR 1960 SC 1049 according to which the omission to specify the age of a candidate for election in the nomination paper amounts to a defect of a substantial character within the meaning of S. 36(4) of 1951 Act and is a ground for rejection of the nominating under S. 36(2)(b) and in such case the returning officer is not bound to make an enquiry under S. 36(2) as to his age and find out whether he is qualified to stand as a candidate under Art 173 of the Constitution. The fact that in the electoral roll the age of the candidate was specified and the Returning Officer could have satisfied himself as to his age easily by looking at the roll was considered not material in construing S. 36(4). Support for this contention has been sought by the counsel from the following observations:--

'An enquiry which is necessary under S. 36(2)(a) may and can be held of instance in cases where the nomination paper shows the age of the candidate as above 25, but an objections has been raised to stand for election under Art. 173 of the Constitution ; in other words the impugned nomination has complied with the provisions of S. 33 and as such does not fall under S. 36(2)(b) at all nevertheless the validity of the nomination can be challenged on the ground that in fact Article 173 is not complied with. Cases falling under this class must be distinguished from cases falling under S. 36(2)(b). In the latter class of cases the failure to comply with the provisions of s. 33 being established there is no scope for any enquiry under S. 33 being established there is no scope for any enquiry under S. 36(2)(a). Once the alleged non-compliance is proved the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character. Therefore it is not right to hold that even after the Returning Officer was satisfied that the omission to specify his age showed that the nomination paper of responded 5 had not complied with the provisions of S. 33 itself would justify the rejection of the nomination paper provided of course that the defect arising format he non-compliance in question is of a substantial character.'

The Supreme Court it is needless to point out considered the age to be as important as identity and the statement of age to substantially amount to declaration in that behalf failure to specify which amounted to a defect of substantial character. This decision has been followed be a Bench of this Court on 8-4-1963 in Gurdip Singh v. Gurnej Singh F. A. O. No. 3-E of 1963. In this case the declaration as contemplated by S. 33 of the 1951 Act was not incorporated in the nomination paper and this was held to be fatal under the ration of the Supreme Court decision.

Vinaya Kumar Diwan v. Raghunation Singh Kiledar, 22 Ele LR 425 is decision of the Election Tribunal Hoshangabad which has next been cited on behalf of the respondents. In this case a candidate who was an elector of a different constituency instead of either filing along with his nomination or producing before scrutiny a copy of the electoral roll of the constituency or of a relevant part thereof or a certified copy of the relevant part thereof or a certified copy of the relevant entry in such roll as required by S. 33(5) produced along with the nomination a certificate copy of the relevant entry in such roll as required by S. 33(5) produced along with the nomination a certificate purporting to be signed by the election officer to the effect that the candidate was a voter in a particular ward the voter list of that ward against a particle ward of that constituency and that his name appeared in the voters list of that ward against a particular number and this was held not to be sufficient thus necessitation rejection of the nomination. The production of a mere certificate of that nature amounted to non-compliance with the provision of S. 33(5) and the Returning Officer could not rely on any evidence other than that mentioned in the said provision of law.

Rangilal Choudhury v. Dahu Sao, AIR 1962 SC 1248 has been relied upon by both sides. The head-note discloses the legal position as laid down in this decision in the following terms:

Generally speaking if the nomination paper does not disclose at all the name of the constituency for which the nomination has been made the defect would be a substantial character for there would be of a substantial character, for there would then be no way of knowing the constituency for which a candidate is being nominated. But there may be cases where the nomination form shows the constituency for which the nomination is being made though there may be some defect in filling up the form. In such a case if the nomination form discloses the constituency for which the nomination is being made even though the form

may be some defect in filling up the form. In a such case if the nomination form discloses the Constitutency for which the nomination is being made even though respect the defect in filling the form would not be of a substantial character.'

In the particular form in the reported case the name of the candidate was rightly filled in but the proposer instead of putting down the name of the constituency namely Dhanbad constituency put down the name 'Bihar' there. So the proposal areas as if the candidate was being nominated for the Bihar Assembly constituency. This was considered by the Supreme Court not to be a mistake of substantial character and the rejection of the nomination paper on this ground was considered to be improper. The respondents counsel has emphasised that this conclusion of the Supreme Court was influenced by the fact that the election there was a influenced by the fact that the election there was a influenced by the fact that the election there was a by-election and not a general election and that the mistake has occurred in the printed form whereas on behalf has occurred in the printed form whereas on behalf on the appellant stress is laid on the fact that a defect in the description of the constituency was not considered to be substantial.

(11) At this stage I amy dispose of a small point which was sought half-heartedly to the raised on behalf of the appellant. According to him the only point on which the Returning Officer had rejected the nomination could be considered by the Election Tribunal and the respondent was not entitled to urge any additional ground of challenge to the nomination of Wazir Singh Jaijee. In this connection some stress has also been laid on fact that the returned candidate never cared to object to Wazir Singh Jaijee's nomination even before the Returning Officer. The point raised in my opinion is unsustainable because of the Supreme Co decision in N. T. Velusami Thevar's case (AIR 1959 SC 422) which was followed by this Court in Bansi Ram Naru Ram v. Jit Ram Gehru Ram, AIR 1964 Punj 231. In Ranilal choudhary is case AIR 1962 SC 1248 also additional defects were urged before the Tribuanla and the Supreme Court dealt with those defects on the merits.

(12) I may first deal with nomination paper No.15 because as conceded by the learned counsel for the respondents, the only defect from which this paper is stated to suffer is that no copy of the electoral roll or a part thereof was separately attached with it. In order to understand the object scope and effect of sections 33 and 34 of the 1951 Act, the provisions of sub-sections (4) of S. 33, must first be considered. On the presentation of a nomination paper, the Returning Officer is according himself that the names and electrol roll numbers of the candidate and his proposer as entered in the electoral rolls and the Returning Officer is also enjoined to permit any clerical or technical error or numbers to be corrected in order to bring them into conformity wth the corresponding entries in the electoral rolls ; and the Returning Officer is also enjoined to permit any clerical or technical error or numbers t be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; in case of necessity he is empowered even to direct that 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 ; in case of necessity he is empowered even to direct that any clerical or printing error in the said entries should be overlooked.

Under sub-section (5) where the candidate is an elector of a different Constitutency a copy of the electoral roll of the at Constitutency or of the relevant part thereof or a certified copy of the relevant entries inset roll should be filed along with the nomination paper but if not so filed along are to produced before the Returning Officer at the time of scrutiny. It is obvious that the Returning Officer has at least to apply his mind to the fact whether or not such electoral roll or the relevant part thereof or a certificate copy of the relevant entry is filed along with the roll because he is expected to go through the nomination paper in order to perform his duty enjoined on him by sub-section(4). Under sub-section (6) of this section a candidate can seek to be nominated by not more than four nomination papers and under S. 34(1) more than one nomination paper for election in the same constituency only one deposit is required by whom under that sub-section.

This deposit can either be made in cash with the Returning Officer or the candidate may enclose with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf

in the Reserve Bank of India or in a Government treasury: section 34(2). These provisions clearly suggest that all the nominations papers of a candidate must be treated as a part of his constituency. The object of filing the relevant electoral roll or a part thereof with the nomination paper and of its production at the time of scrutiny in case it has not already been filed is obviously to enable the Returning Officer to scrutinize it and satisfy himself that the candidate is an elector of the constituency of which he claims to be one. The production of such roll or a part thereof has to be substantially complied with and to hold that even though when one of the nomination papers of the candidates said roll or a part thereof has been filed it is nevertheless necessary to produce another copy thereof with the other nomination paper would in my opinion be to take a too narrow and technical view of this provision and to defeat it real purpose and object. It is somewhat difficult to appreciate the contention that since nomination paper No.11 had already been dealt with the roll or a part thereof filed along with it could not be considered to be before the Returning Officer on the date and at the time of the scrutiny of nomination paper No.15 and that its presence with paper No.11 could not be considered to be candidate before the Returning Officer at the time be substantial compliance with S. 33(5) when the relevant part of the electoral roll had been filed with nomination paper. No.11.

(13) Stress has been laid by Shri Sibyl that Rule 4 of the conduct of Election rules 1961 provides that every nomination paper presented under S. 33(1) must be completed in such one of the Forms 2A or 2E as may be appropriate. It is stressed that the nomination paper must be completed. In my opinion this rule and the printed form 2A. In my opinion this rule and the printed form do and (6) and they do not throw any light on the point as to whether the non-production of a separate the date of scrutiny is or is not a substantial defect. Needless to say that mere enactment of proviso to S. 34(1) clarifying the requirement of only one deposit scarcely suffices to sustain the impugned construction of S. 33(5) adopted by the Returning Officer and the tribunal

(14) This brings me to the contention that the copy of the part filed with nomination paper No.11 is not a copy within the contemplation of section 33(5). It has been argued that the relevant part of the electoral roll of the constituency in which copy within the contemplation of section of the electoral roll of the constituency in which the candidate was nominated is part IV and a copy of the whole of this part was not produced. According to the respondents only pages Nos. 1 to and not pages 19 and 22 and 25. It is not disputed Singh Jaijee was included in the part which was before the Tribunal a complete roll of the Constitutency which has been exhibit as R. W. 4/4. We are however not concerned with the entire roll. In support of this contention the respondents learned counsel has drawn our attention to certain rules of the rules of the Registration of Electors Rules 1960. Both these rules occur in part II of these rules in which 'constituency ' means an assembly constituency Rule 5 dealing the preparation of roll in parts lays down so far as relevant for our purpose that the roll shall be decided into convenient parts which shall be numbered consecutively and hat the number of the names included in any part of roll shall not ordinarily. Exceed two thousand.

'Roll it may be pointed out under Rule 2(1)(c) means the electoral roll for a constituency. Rule 22 provides for final publications of roll which enjoins the registration officer to prepare a list of amendments to carry out his decisions under Rules 18,20, and 21 and to correct clerical and printing errors or other inaccuracies and then to publish the roll together with the list of amendments becomes the electoral roll of the constituency. It is contended that if some pages are missing from Part IV then it cannot be considered to be a copy of the relevant part of the electoral roll within the contemplation of S. 33(5). It ahs been contended that the name of Wazir Singh Jaijee might possibly have been scored out at page 25 which according to the counsel as the last page of Part IV ; the fact that it was in reality not scored out is according to the roll is to enable the Returning Officer to verify check up and satisfy himself that the candidate is an elector in the constituency concerned and if the entire relevant part is not filed with the paper or produced at the time of scrutiny then there is a failure to comply with S. 33(5) and the defect is of a substantial character, taking the case out of S. 36(4)

(15) The appellant has on the other had contended that the relevant part of the roll in which Shri Wazir Singh Jaijee is entered as an elector was filed with the nomination paper No.11 and that merely because about four pages out of 25 were missing does not mean non-compliance with S. 33(5) the missing pages it is emphasised are wholly irrelevant because the candidate's electoral number is at page 23 which is a new entry in 1961 and there is no question of there being any further correction before the election of 1962. At the bottom of page 23, which is a new entry in 1961 an there is no question of there being any further correction before the election of 1962. At the bottom of page 23 the word 'Samapat'(end) being printed at the bottom of page 23, the respondents printed after electoral Nos. 1848 which relates to a woman elector Gandhi living in the quitters of Mansfield. Again after electoral No. 1855 there is the word 'Samapat' (end); this particular part of sub-part as the respondents describe it begins with the electoral No. 1849 and it may be rumbaed that it is this reversed supplementary list in which that it is this revised supplementary list in which Wazir Singh Jaijee's electoral Nos. 1856 to 1848 on pages Nos. 19 to 22, according to the respondents are not found in the copy of the part filed by Wazir Singh Jaijee nor are electoral Nos. 1856 to 1892 there. It may be pointed out that it is not the respondents case that these missing pages have e otherwise no relevance except for the purpose of showing non-compliance with S. 33(5).

(16) We have devoted serious thought to the elaborate arguments addressed at the bar and are of the view that nomination paper No.15 of Wazir Singh Jaijee was improperly rejected. In view of this conclusion it is unnecessary to express any considered opinion on the propriety of rejection of nomination papers Nos. 11 and 14

(17) On 27-1-1962 nomination paper No.15 was presented to the Returning Officer at 12.55 hours on the same day nomination paper No.14 had been presented five minutes earlier at 12.50 hours and hours No.11 at 12 noon. since the receipt of Rs.500/- on account of deposit was attached with paper No.11 it is clear that the Returning Officer must have enticed-it not also formally noted-that these three papers were covered by on receipt which was attached with paper No.11. It may also be remembered that under S. 33(4), it is the statuary duty of the Returning Officer to satisfy himself that the names and the electoral roll numbers of the candidates and his proposer as entered in the electoral roll, this duty is expected to be performed with due sense of responsibility and not casually for under the proviso to S. 33(4) the Returning Officer is enjoined to permit any clerical or printing error in the entries in the roll to be overlooked.

The importance and solemnity of this duty cannot be too much exaggerated for an improper rejection may result in serious consequences to inasmuch as it would nullify the election itself. The Returning Officer has in my opinion an obligations to check up if under S. 33(5) the requisite roll a part thereof or the requisite certified copy of a entry is filed with paper for that alone can enable him to effectively discharge his duty under S. 33(4). In the case in hand it is not shown that the Returning Officer was not satisfied about the entries in the nomination paper No.15 being the same as those entered in the electoral roll; nor is the Returning Officer shown to have found the electoral roll filed with paper No. 111 to be defective. On the record of the proceedings before the Returning Officer it may be presumed that the returning Officer did satisfy himself that the entries in the three nomination papers presented by Wazir Singh Jaijee were the same as those entered in the relevant part of the electoral roll.

Had there been any defect in the way of the Returning Officer satisfying himself and performing his statutory duty under s. 33(4) one would have excepted some kind of a note made by him because it should have only been fair to point out to the candidate this technical defect so that at the time so scrutiny he may be able to produce two more copies of the relekvant part of the roll or at least to produce the missing pages from part IV. the position perhaps appears to be that the Returning Officer did not consider the part of the electoral roll filed with nomination paper No.11 to be defective or not in compliance with S 33(5). When the matter came up before the Returning Officer for scrutiny it was Nirbhai Singh R. W. I a close relation of Ranjit Singh and his covering candidate for the election in dispute from Sangrur Constitutency who raised the objection to the nomination paper of Shri Wazir Singh Jaijee.

As Shri Ranjit Singh R. W. 5 tells us scrutiny of Wazir Singh Jaijees nomination papers tool about an hour of 11/4 hours. Although Nirbhai Singh would have us believe that the nomination papers were taken up in their serial order and not candidate-wise, I am inclined to take the view that in all probability when the Returning Officer was scrutinising nomination paper No. 15 he had virtually before him nomination paper No.11 as well with which was attached the receipt for deposit and the part of the electoral roll. Exhibit P. W. 2/4, Nirbhai Singh is clearly deeply interested in supporting the returned candidate a is clear from the testimony of both Nirbhai Singh and Shri Ranjit Singh, R. W. 5. both of them are not only closely related but were the nominees virtually of the ex-chief minister of the Punjab Shri Pratap Singh Kairon, for, shri Ranjit Singh has in Shri Pratap Singh Kairon went to him and requested him to contest this election and to fill in the application form to get the ticket. Shri Kairon had also asked him on the same occasion to telephone to Shri Nirbhai Singh to stand for Sangrur Assembly constituency and to submit his application for the ticket.

The version that the Returning Officer took up the nomination papers according to the serial numbers and not candidatewise appears to me to be improbable. Not that it very much matters because even fit the scrutiny was according to the serial numbers papers No.11 must have been on the table before the Returning Officer and an hour or 11/4 hours taken by him in scrutinising Wazir included reference to paper No.11, and this would in my opinion virtually and substantially amount to the Returning officer at the time of scrutiny. It is noteworthy that the Returning Officer at the time of scrutiny also did not consider the part of the electoral roll filed with paper No.11 to be defective or not in compliance with S. 33(4). the rejection of the nomination paper by the Returning Officer for the reasons given by him is clearly untenable and wrong in law.

(18) As observed earlier with the exception of about four pages which are missing, part IV is otherwise produced in full. The object of producing the relevant part of the electoral roll is the enable the Returning Officer to readily check that the candidate is a veteran the electoral roll. This clearly could be satisfactorily and without difficulty checked and indeed there is nothing to suggest on there cord and the respondents counsel has not argued that the Returning Officer was not able to look at the part of the roll filed with nomination paper No.11. Had this fact of missing pages been pointed out by the Returning Officer or the Assistant Returning Officer at the time of presentation of the nomination papers or had an objection to this effect raised at the time of scrutiny, Shri Wazir Singh Jaijee might well have either produced the missing papers at the time of scrutiny or asked for some time to do so; a request for time on this premise might well have been granted even by the Returning Officer.

At any rate the defect appears to me to un 1965 Punj. D. F. /4 substantial because Jaijees's name is admittedly entered in the roll at page 23, having been added by way of rectification in 1961. Shri Jaijee has in and this is not controvert-that his name appears in the list P. W. 2/4. unequivocally state-and this not controvert-that his name appears in list P. W. 2/4 in part IV supplementary list of new names because he had stared his residence at Simla in1960 and it was thereafter the year 1961. It may be recalled that it is not the any time before the impugned election of 1962 cancelled by further rectification. The final publication of the supplementary rolling including page 28 may be presumed to have been done after considering objections if any to the new entries in accordance with the registration of Electors Rules and indeed it is not respondents case that any objections was ever raised to the entry relating to Shri Wazir Singh Jaijee.

I am therefore inclined to take to take the view that both the Returning Officer and the learned Tribunal were wrong in holding that Shri Wazir Singh Jaijee's for the reasons foregoing the rejection must be to have been improperly rejected then the election accordingly. Recognizing the supreme importance of the right of the returned candidate void: S 100(1)(c), franchise deserve in the larger public interest to be borne in mind by all officers. Tribunals and that Shri Wazir Singh Jaijee has not filed any Ranjit Singh Jaijee has not filed any Ranjit Singh did not himself object to the formers covering candidate for Ranjith Singh who had raised can in any manner affect the decision of the issue; a nomination improperly rejected ipso facto invalidates the election of the returned candidate the source from which the objection emanates being immaterial.

(19) The respondents learned counsel has also in the end attempted to raise an absolutely fresh point in this Court on appeal. He has tried to show that the electoral roll mentioned S. 33(5) must be construed to mean electoral roll for Paliamentary constituency and not the electoral roll for Parliamentary constituency and not the electoral roll for Assembly constituency, as was his case throughout the trail. We have disallowed this point being a point neither raised in the pleadings nor tried in the Tribunal ; indeed this argument really introduces a completely new case to meet which the appellant had absolutely no prior notice before its presentation at the bar in reply by the respondents. Section 2(1)(f) of the Representation of the People Act 1950, define ' parliamentary constituency.' to mean a constituency provided by law for the purpose of elections to the House of the People.

Section 13D of this Act lays down that the electoral roll for every parliamentary Constitutency other than a parliamentary constituency other than a parliamentary constituency in a union territory shall consist of the electoral rolls of so much of the assembly constituencies as are comprised within that parliamentary constituency; and it shall bot be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency. Under S. 18 no person in entitled to be registered in the electoral roll for any constituency more than once. In the Registration of Electors Rules 1960 there is no separate rule for preparing electoral rolls for a parliamentary constituency which is not a Union territory. In view of these provision we have felt constrained not to permit this new point to be raised because it would necessarily involve adjournment of the case to permit the appellant to be prepared on it and a further research, which on the facts and circumstances of this case we do not consider to be justified.

(20) Before concluding it may appropriately be observed that the Returning Officers and the Assistant Returning Officers must discharge their functions while dealing with the nominations papers with a conscientious sense of responsibility and they must be fully posted with the correct legal position touching their functions. While scrutinising the nomination papers from the very nature of his duty a Returning Officer performs functions of his duty a Returning Officer performs functions which are judicial or at least quasi-judicial in character. He must therefore be fully aware of the basic and elementary principles of law applicable and he must apply his mind to the principles of law applicable and he must apply his mind to the problems judicially with the sense of detachment and impartially of an officer performing functions of judicially with the sense of detachment and impartiality of an officer performing functions of judicial character completely unmindful of and un-influenced by, political personal or other extraneous consideration sand influences keeping himself discreetly insulated from the effect of power-self discreetly insulated from the effect of powerless discreetly insulated from the effect of power-politics political controversies and their subversive influences. While appointing authority would do well in the larger public interest to keep these vital considerations in mind.

(21) For the foregoing reasons this appeal succeeds and allowing the same we reverse the order of the Elections Tribunal and hold that the order rejecting shri Wazir Singh Jaijee's nomination was improper. The impugned election of Shri Ranjit Singh the returned candidate must be and is hereby declared to be void, Parties in the circumstances are directed to bear their own costs throughout.

JH/VS. B./D.C.

22. Appeal allowed.


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