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Amar Nath Gupta Vs. Sub-divisional Officer (Civil), Faridkot - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 135 of 1965
Judge
Reported inAIR1965P& H505
ActsConstitution of India - Article 226; Punjab Agricultural Produce Markets Act, 1961 - Sections 10 and 12; Punjab Agricultural Produce Markets (Election to Market Committee) Rules, 1961 - Rule 7(2)
AppellantAmar Nath Gupta
RespondentSub-divisional Officer (Civil), Faridkot
Cases ReferredPratap Singh v. Krishna Gupta
Excerpt:
.....a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - so the sole question for decision is whether his failure to attach the deposit receipt along with the nomination paper would necessarily result in its rejection. this decision was, however, reversed by the high court on revisions and it was held that the failure to comply with any of the provisions set out in the various rules was fatal and that in such cases the nomination paper must be rejected......nominated under the provisions of r. 7, shall, at or before the time of delivery of his nomination paper, deposit or cause to be deposited a sum of twenty rupees, with the returning officer or in the office of the committee of the notified market area and produce a receipt from the returning officer or the committee, as the case may be, along with the nomination paper. no candidate shall be deemed to be duly nominated unless such deposit has been made'.a plain reading of this rule would show that every candidate at or before the time of the delivery of his nomination paper is required to deposits a sum of rs. 20 either with the returning officer or in the office of the committee of the notified market area. a further duty is case upon him to produce receipt for the said deposit along.....
Judgment:
ORDER

(1) This is a petition under Art. 226 of the Constitution filed by Amar Nath Gupta, challenging the order, dated 14th of August 1964, passed by the Sub-Divisional Officer (Civil), Faridkot, respondent, who was acting as the Returning Officer for the election to the Market Committee, Kot Kapura, district Bhatinda, rejecting his nomination paper.

(2) The petitioner is a partner of firm Des Raj Mohan Lal, situate at Kot Kapura. This firm is a licensee under S. 10 of the Punjab Agricultural Produce Markets Act, 1961 (Punjab Act No. 23 of 1961). Since the term of the members of the Market Committee, Kot Kapura, and expired, fresh elections to the said Committee had to be held. According to S. 12 of the Act, four members from persons licensed under S. 10 for the notified market area concerned had to be elected by persons licensed under that section. Accordingly, the petitioner filed his nomination paper, duly completed in all respects. on Form 'E' under R. 7(2) of the Punjab Agricultural Produce Markets (Election to Market Committee) Rules, 1961, on 11th of August 1964, before the prescribed date 12th of August 1964) Before filing the nomination paper, he also deposited in the office of the notified market are committee the election security, as required by R. 8, on that very day. The receipt for the same was not, however, attached by him along with the nomination paper. According to the petitioner, at the time of the filing of the nomination paper, he produced the said receipt before the respondent, who however, asked him to keep the same with him and told him not to attach it with the nomination papers. The Returning Officer, however, in his return has stated that he had no knowledge whether the election security was deposited by the petitioner before the filing of the nomination paper and he never asked the petitioner to keep the security deposit receipt with him. At the time of the scrutiny of the nomination papers on 14th of August 1964 at Faridkot, the respondent rejected the nomination paper of the petitioner on the ground that there was no receipt indicating the deposit of the security. According to the petitioner, he reminded the Returning Officer of his having produced the original receipt on 11th of August 1964, when the latter had told him that it was not necessary to attach it with the nomination paper. The petitioner further asked for time to bring the said receipt from Kot Kapura, as he had not brought the same with him. The respondent, however, refused to allow any time for that purpose. According to the petitioner, he produced an affidavit before him giving the details of the deposit of the security, but the respondent refused to accept the same. These allegations of the petitioner are, however, denied by the respondent. According to him, it was the duty of the petitioner to produce the receipt, as without the same, he would have no basis to come to the conclusion that the deposit had actually been made.

(3) It is common ground that the petitioner had as a matter of fact deposited the security of Rs. 20 on 11th of August 1964, as alleged by him. So the sole question for decision is whether his failure to attach the deposit receipt along with the nomination paper would necessarily result in its rejection. This will depend on the interpretation of R. 8, the relevant part of which runs thus--

'Each candidate nominated under the provisions of R. 7, shall, at or before the time of delivery of his nomination paper, deposit or cause to be deposited a sum of twenty rupees, with the Returning Officer or in the office of the Committee of the notified market area and produce a receipt from the Returning Officer or the Committee, as the case may be, along with the nomination paper. No candidate shall be deemed to be duly nominated unless such deposit has been made'.

A plain reading of this rule would show that every candidate at or before the time of the delivery of his nomination paper is required to deposits a sum of Rs. 20 either with the Returning Officer or in the office of the Committee of the notified market area. A further duty is case upon him to produce receipt for the said deposit along with the nomination paper. The rule also states that no candidate shall be deemed to be duly nominated unless such deposit has been made. In other words, the actual deposit of the security and not the attaching of the receipt therefor is the condition precedent for the proper nomination of a candidate. As I read the rule, the essential condition for a valid nomination is the actual deposit of the security before the filing of the nomination paper. The production of the receipt therefore is only to prove that such deposit has been made. By its mere non-production, therefore, a nomination paper cannot be rejected. There is a substantial compliance with this rule if the said deposit has actually been made, though the receipt therefor has not been attached along with the nomination paper. In this respect the rule is merely directory and not mandatory. If there was any doubt in his mind, the Returning Officer should have given the petitioner reasonable time to produce the said receipt. An enquiry into this matter could have been made by him, as envisaged in R. 9, which inter alia states that.

'The Returning Officer shall examine the nomination papers at the time appointed in this behalf, hear objections, if any, presented by the objectors in person, to the eligibility of any candidate and take decision on these objections after such enquiry as he may consider necessary'.

(4) The view that I have taken above finds support from a decision of the Supreme Court in Pratap Singh v. Krishna Gupta, AIR 1956 SC 140. Their Lordships were dealing with certain provisions of the C. P. and Berar Municipalities Act and the rules made thereunder, according to which candidates for the office of President of the Municipal Committee were required to give their caste. This rule was however, changed and instead of 'caste' their 'occupation' had to be entered. An objection was raised by one of the candidates that the nomination papers of those candidates who had not entered their 'occupation' but had given their 'caste' should be rejected. The trial Judge held that the defect was not substantial and was curable. This decision was, however, reversed by the High Court on revisions and it was held that the failure to comply with any of the provisions set out in the various rules was fatal and that in such cases the nomination paper must be rejected. While accepting the appeal against this decision, their Lordships of the Supreme Court held thus--

'Tendency of the Courts towards technicalities is to be deprecated; it is the substance that accounts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not 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, commonsense lines.

Reading Rule 9(1)(iii)(c) in the light of S. 28, an omission to set out a candidate's occupation cannot be said to affect the merits of the case'. This apart of the form to be filled in by the candidate is only directory and is part of the description of the candidate; it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt'.

(5) In view of what I have said above, this petition succeeds and the impugned order is quashed. There will, however, be no order as to costs.

(6) Petition allowed.


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