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Gangaram Vs. Taruram and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 355 of 1983
Judge
Reported inAIR1984Raj183; 1983()WLN476
ActsRajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 - Rules 15(1), 16, 16(2), 18, 18(3), 18(4), 79 and 79(1); Representation of the People Act, 1951 - Sections 33(4) and 36(4)
AppellantGangaram
RespondentTaruram and ors.
Appellant Advocate H.M. Parekh, Adv.
Respondent Advocate M.M. Singhvi, Adv.
DispositionAppeal dismissed
Cases ReferredNet Ram v. Laxman Prasad
Excerpt:
rajasthan panchayat & nyaya panchayat election rules, 1960 - rule 15--scrutiny of nomination paper--duties of returning officer--it is obligatory on returning officer to find out identity of candidate contesting election--administrative instructions issued by state government are supplementary.;for the purpose of conducting effectively elections, it is the obligatory duty of the returning officer to find out the identify of the person who is contesting the election from the electoral rolls. the administrative instructions issued by the state government are supplementary in nature and they advise the returning officers that their duties are more than that which has been stated in rule 15 of the rules.;(b) rajasthan panchayat & nyaya panchayat election rules, 1960 - rule.....agrawal, j.1. this special appeal filed under section 18 of the rajasthan high court ordinance is directed against the judgment of the learned single judge (d. l. mehta j.) dt. september 9. 1983 in s. b. civil misc. writ petn. no. 1973 of 1983 filed by the appellant whereby the learned single judge dismissed the said writ petition and affirmed the judgment dt. july 27. 1983 passed by the civil judge bikaner (hereinafter referred to as 'the election tribunal' allowing the election petition filed by taru ram respondent no. 1 and birma ram respondent no. 2 and setting aside the election of the appellant as sarpanch of gram panchayat malasar.2. the election of the sarpanch gram panchayat malasar was held in the month of december 1983 under the notification issued by the district magistrate......
Judgment:

Agrawal, J.

1. This special appeal filed under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment of the learned single Judge (D. L. Mehta J.) dt. September 9. 1983 in S. B. Civil Misc. Writ Petn. No. 1973 of 1983 filed by the appellant whereby the learned single Judge dismissed the said writ petition and affirmed the judgment dt. July 27. 1983 passed by the Civil Judge Bikaner (hereinafter referred to as 'the Election Tribunal' allowing the election petition filed by Taru Ram Respondent No. 1 and Birma Ram Respondent No. 2 and setting aside the election of the appellant as Sarpanch of Gram Panchayat Malasar.

2. The election of the Sarpanch Gram Panchayat Malasar was held in the month of December 1983 under the notification issued by the District Magistrate. Bikaner. The nomination papers were required to be submitted on Dec. 30 1981 from 8 A. M. to 11 A. M., the scrutiny of the nomination papers was fixed on the same date at 11.30 A. M. and the date of poll was fixed as Dec. 14 1981. Eight persons, including the appellant. Respondent No. 1 Taru Ram and one Pema Ram had filed their nomination papers. At the time of scrutiny the nomination paper of Pema Ram was rejected by the Returning Officer on the ground that name in the electoral roll did not tally with the serial number and ward number. Out of the candidates whose nomination papers were accepted, all the candidates except the appellant and respondent No. 1 withdrew their candidature. The polling was held on December 14 1981. The appellant secured 1551 valid votes and respondent No. 1 secured 1467 valid votes. The appellant was declared to have been elected by a majority of 84 votes. Thereupon respondent No. 1. the defeated candidate, and respondent No. 2, in his capacity as an elector, filed a joint election petition challenging the validity of the election of the appellant. The election was challenged on various grounds. The ground which is relevant for the purpose of present appeal is that the nomination of Pemaram had been improperly rejected. The said election petition was contested by the appellant. The Election Tribunal, by its judgment dt. July 27, 1983 allowed the said election petition filed by respondents NOS. 1 and 2 and set aside the election of the appellant on the ground that the nomination of Pema Ram had been improperly rejected. The Election Tribunal was of theview that the name of Pema Ram was entered in the electoral roll for Gram Panchayat Malasar at serial No. 58 of ward No. 5 and that in the nomination paper the said candidate had mentioned that his name was entered in the electoral roll of Gram Panchayat/Malasar at serial No. 58 of Ward No 1. According to the Election Tribunal the aforesaid error in the nomination, paper with regard to number of the ward of the electoral roll was only a technical error and it could not be regarded as a material defect. The Election Tribunal further held that Pema Ram was present at the time of scrutiny of the nomination papers and that the Returning Officer, if he had any doubt about the identity of Pema Ram. he could have made an inquiry and satisfied himself about the same and that he did not do so and therefore, the nomination of Pema Ram must be held to have been improperly rejected. Feeling aggrieved by the aforesaid decision of the Election Tribunal the appellant filed a writ petition before this Court wherein he prayed that a writ of certiorari may be issued to quash the order of the Election Tribunal. The said writ petition of the appellant was dismissed by the learned single Judge by his order dt. Sept. 9. 1983. The learned single Judge was of the opinion that the nomination of Pema Ram had been wrongly rejected and that the Election Tribunal was right in accepting the election petition and in setting aside the election of the appellant.

3. Before we deal with the contentions urged by Shri H.M. Parekh, the learned counsel for the appellant, in support of this appeal, it would be necessary to refer the relevant provisions of the Rajasthan Panchayat Act. 1953 (hereinafter referred to as 'the Act') and Rajasthan Panchayat and Nvaya Panchayat Election Rules 1960 (hereinafter referred to as 'the Rules') Section 5 of the Act empowers the Collector or such subordinate Gazetted officer of the State Government as the Collector may authorised in that behalf, to divide each Panchayat circle into such number of wards as may be convenient for the purpose of election and fix the number of Panchas to be elected from such wards. Section 10 of the Act requires that the list of voters should he prepared for each of the wards into which the Panchayat circle is divided under Section 5. Section 6 of the Actlays down that the election of Panchas shall be held and conducted in the prescribed manner. Sub-section (1) of Section 13 lays down that every Panchayat shall have a Sarpanch who must be a person qualified to be elected as a Panch and able to read and write Hindi and shall be elected by the electors of the whole Panchayat circle in the prescribed manner. The mode of election of Panchas and Sarpanchas is prescribed in the Rules which have been framed by the State Government in exercise of the powers conferred by Section 89 of the Act. Provisions with regard to election of Panchas are contained in Part 3 of Chap. II (Rules 14 to 461. Rule 48 makes provision for simultaneous election of Sarpanch and Panchas and Sub-rule (2) of Rule 48 provides that the provisions of Rules 14 to 45 shall, so far as may be apply mutatis mutandis to such election. Rule 14 of the Rules makes provision for issuance of a notification by the Collector calling upon all the Wards in the Panchayat circle to elect in the case of single member ward one Panch each and in the case of multi member ward as many Panchas as have been fixed therefor under Section 5. within the time specified in the notification. Rule 14 further provides that the Collector, by the aforesaid notification, may appoint a day on or before which and the hour thereof by which nomination papers are to be presented, a day not later than the day next succeeding the date fixed for the presentation of the nomination paper and the hour thereof on or at which the scrutiny of such nomination papers shall be made, a day not later than the day next succeeding the day fixed for scrutiny of the nomination papers on or before which and the hour thereof by which nominations may be withdrawn a day on which a poll shall, if necessary be taken and the hour within which such poll be taken. Rule 15 prescribes the duties and powers of the Returning Officer and Sub-rule (1) of Rule 15 lays down that in addition to the duties imposed and powers conferred on Returning Officer by or under the Rules it shall be his general duty to do all such acts and things as may be necessary for conducting effectively an election under the Rules. In Sub-rule (2) of Rule 15 are specified certain specific duties and powers of the Returning Officer. Rule 16 relates to the presentation of nomination paper. Rule 17 prescribesthe procedure upon delivery of nomination caper and Rule 18 makes provision for scrutiny of nomination paper. Since in the present case we are concerned, primarily, with questions relating to rejection of the nomination involving interpretation of the provisions contained in Rules 16 and 18 of the Rules, the said provisions are set out as under : --

'16. Presentation of nomination peppers.-(1) On or before the day appointed under Sub-clause (a) of Clause (ii) of Sub-rule (1) of Rule 14 for the presentation of nomination papers, any person qualified under Section 11 for election as a Panch and desiring to seek such election, hereafter in this chapter referred to as a candidate, shall deliver, (in person) to the Re-turning Officer his nomination paper in Form 1 duly filled in and signed by the candidate.

(2) Any nomination paper not delivered a? provided in Sub-rule (1) shall be rejected.'

'18. Scrutiny of nomination papers.-(1) On the day and by the hour appointed under Sub-clause (b) of Clause (ii) of Sub-rule (1) of Rule 14 for the scrutiny of nomination papers, the Returning Officer shall examine the same

(2) At the time of such examination the candidates themselves and no other person may attend and the Returning Officer shall afford each of them -

(i) all reasonable facilities for examining the nomination papers delivered by others, and

(ii) a reasonable opportunity of making objections to any of them.

(3) The Returning Officer shall decide all such objections and may, either on the basis of such objection or on his own motion, reject any nomination paper on any of the following grounds namely :--

(a) that the candidate is not qualified or is disqualified for election.

(b) that he is not identical with the person whose number or name on the voters' list is stated in the nomination paper to be the number or name of the candidate :

(c) that the signature is not genuine or has been obtained by fraud coercion or undue influence:

(d) that there has been a failure in copying with the provisions of Rule 16.

(4) The Returning Officer shall endorse on each nomination paper hisdecision accepting or rejecting the same and, in case of rejection, a brief statement of his reasons for such rejection.

(5) The scrutiny shall be completed on the same day and no adjournment of the proceeding shall be allowed.'

A perusal of the aforesaid Rules shows that in some respects Rule 16 can be compared with Section 33 of the Representation of the People Act. 1951 (hereinafter referred to as 'the 1951 Act') and Rule 18 can be compared with Section 36 of the 1951 Act. The provisions of the aforesaid Rules, however, differ in many respects from the corresponding provisions contended in the Sections 33 and 36 of the 1951 Act.

4. In Rule 16 there is no provision similar to the one contained in Sub-section (4) of Section 33 of the 1951 Act which requires that on the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer, as entered in the nomination paper, are the same as those entered in the electoral rolls and further provides that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical. technical or printing error in regard to the electoral roll numbers of any such person in the electoral poll or the nomination paper shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood and that the Returning Officer shall permit any such misnomer or inaccurate description or clericals technical or printing error to he corrected and where necessary direct that any such misnomer, inaccurate description, clerical technical or printing error in the electoral Roll or in the nomination paper shall be overlooked. In the context of Rule 16 it may also be pointed out that while in the form of the nomination paper that are prescribed under the Conduct of Election Rules 1961 for the purpose of election to the House of the People and the Legislative Assemblies of the States it is necessary to mention the serial number as well as part number of the electoral roll, in Form I, which has been prescribed for nomination paper under the Rules, only the number in the list of voters is required to be mentioned and there is no specific requirement fur mentioning the ward number of the list of voters.

5. When we compare the provisions of Rule 18 with Rule 36 we find that Sub-rules (1) and (2) of Rule 18 are comparable to Sub-section (1) of Section 36. Sub-rule (3) is comparable to Sub-section (2) of Section 36, Sub-rule (4) of Rule 18 is comparable to Sub-section (6) of Section 36 and Sub-rule (5) of Rule 18 is comparable to Sub-section (5) of Section 36. It may, however, be observed that while in Sub-section (2) of Section 36 it has been expressly provided that while scrutinising the nomination paper and considering the objection. Returning Officer may hold such summary inquiry, if any, as he thinks necessary before rejecting the nomination paper, no such express provision for holding a summary inquiry before rejecting a nomination manner is contained in Sub-rule (3) of Rule 18. The grounds set out in Clauses (a) to (d) of Sub-rule (3) of Rule 18 for rejection of a nomination paper also differ in certain aspects from the grounds set out in Clauses (a) to (c) of Sub-section (2) of Section 36. In Sub-section (2) Section 36 of the 1951 Act there is no around similar to that contained in ground (b) of Sub-rule (3) of Rule 18 which provides for rejection of a nomination paper on the ground that he (the candidate) is not identical with the person whose number or name on the voters list is stated in the nomination paper to be the number or name of the candidate. On the other hand we find that in Rule 18 there is no provision similar to that contained in Sub-section (4) of Section 36 of the 1951 Act which has down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

6. Before the conduct of the elections for the Panchayats, which were held in the State of Rajasthan in Dec. 1981, the State Government had issued a book entitled 'Chaturth Panchayat Chunav 1981 ki Nirdesh Pustika' (hereinafter referred to as 'the Nirdesh Pustika') containing certain administrative instructions for the guidance of the Returning Officers and other officials. In Items No. 34 note (ka) of the Nirdesh Pustika a direction was given that the Returning Officershould see at the time of the presentation of the nomination paper as to whether the electoral roll numbers of the candidates have been rightly mentioned or not and if they are incorrect, they should ask the candidate to correct the same. The aforesaid direction appears to be similar in nature to the direction that is contained in the proviso to Sub-section (4) of Section 33 of the 1951 Act. While comparing the provisions of Rule 16 with Section 33 of the 1951 Act we have already noticed that in Rule 16 there is no provision comparable to Sub-section (4) of Section 33 of the 1951 Act.

7. In the present case it is not disputed that in the nomination paper that was submitted by Pema Ram against the column relating to the number in the list of voters he had mentioned serial number 58 Ward No. 1 and that the name of Pema Ram is not shown at serial number 58 in the voters' list for Ward No. 1 of village Malasar but is shown at serial No. 58 in the voters' list for ward No. 5 of village Malasar. The Election Tribunal has held that the Returning Officer did not make any effort to find out whether the name of Pema Ram was shown in the voters list for any other ward and that if the Returning Officer had made such an effort he would have found that the name of Pema Ram was shown in the voters' list for ward No. 5 at serial No. 58. The Election Tribunal has also found, on the basis of the evidence on record, that Pema Ram was present at the time of scrutiny. According to the Election Tribunal the mentioning of ward No. 1 instead of ward No. 5 in the nomination paper was only a technical error and that it could not be regarded as a material defect and further that it is not the requirement of law that the number of the ward should be mentioned in the nomination paper and since there was no dispute with regard to the identity of Pema Ram and Pema Ram was also present, at the time of the scrutiny and if the Returning Officer had any doubt he could have satisfied himself then and there by making inquiry from him, which he did not do, the nomination of Pema Ram was improperly rejected.

8. Before the learned single Judge the validity of the administrative instructions contained at item No. 34 note that of the Nirdesh Pustika was challenged and it was submitted on behalf of the appellant that failure on the part of the ReturningOfficer to follow the aforesaid administrative instructions would not mean that the nomination paper was improperly rejected. On behalf of the appellant it was also submitted before the learned singly Judge that an error in mentioning the number in the list of voters in the nomination paper would justify the rejection of the nomination paper under Rule 18 (3) (b) and in the absence of any provision similar to Sub-section (4) of Section 36 of the 1951 Act, in Rule 18 the rejection of the nomination of Poma Ram could not be held to he improper on the ground that the said error was only a technical error and was not a material defect. The learned single Judge, while rejecting the aforesaid contention urged on behalf of the appellant has upheld the validity of the administrative instructions contained in item No. 34 note (ka) of the Nirdesh Pustika and has held that the State Government had rightly issued the said instructions to achieve the object laid down in the Act. The learned single Judge was further of the view that even leaving aside the aforesaid administrative instructions issued by the State Government, it was the obligatory duty imposed upon the Returning Officer under Sub-rule (1) of Rule 15 of the Rules to see that the elections are conducted effectively and that rejection of nomination paper on a technical ground that there exists a clerical error in it will tantamount to not conducting effectively the elections and that for the purpose of conducting the election effectively it was the obligatory duty of the Returning Officer to find out the identity of the person who is contesting the election from the electoral rolls. The learned single Judge was also of the view that entry of the ward number in the nomination paper was redundant and since in the present case the serial number was rightly mentioned and only the ward number was wrongly stated and the Election Tribunal has recorded a finding that at the time of scrutiny it was pointed out to the Returning Officer that the name of Pema Ram finds place in ward No. 5 it was obligatory for the Returning Officer to accent the nomination paper of Pema Ram and the rejection of the nomination paper of Pema Ram was not justified.

9. Shri H.M. Parekh, the learned counsel for the appellant, has challenged the correctness of the aforesaid findings recorded by the learned single Judge. With regard to the administrative instructions contained in item No. 34 note (ka) in the Nirdesh Pustika Shri Parekh has submitted that the said instructions cannot be equated with the provisions of the Rules and rejection of the nomination of Pema Ram by the Returning Officer without following the aforesaid administrative instructions would not render the said rejection of the nomination of Pema Ram as improper. According to Shri Parekh it was not permissible on the part of the State Government to have issued such administrative instructions inasmuch as the said administrative instructions run contrary to the mandate of law as contained in Rule 18 of the Rules and the said administrative instructions were therefore, invalid. Shri Parekh has further submitted that even if it be held that it was open to the State Government to issue such administrative instructions the said instructions, being administrative in nature only, could not take the place of the Rules and a disregard of the said administrative instructions by the Returning Officer would not render the rejection of the nomination paper as improper. In our opinion, it is not necessary to go into the validity of the administrative instructions contained in item No. 34 note (ka) of the Nirdesh Pustika because in our view the said instructions being of administrative character only cannot be equated with the provisions of the Rules and the fact that the Returning Officer, while scrutinising the nomination papers did not follow the said instructions and reheated the nomination paper of a particular candidate without asking that candidate to correct the error in the electoral roll number as mentioned in the nomination paper would not render the said rejection of the nomination paper as improper. The said instructions can only be regarded as instructions meant for the guidance of the Returning Officers in the discharge of their duties while conducting the scrutiny of the nomination papers and the failure! on the part of the Returning Officer to follow the said instructions does not have any legal consequence so as to render, the decision of the Returning Officer rejecting the nomination caper as improper if the said rejection is otherwise found to be in accordance with the pro-visions of Rule 18 (3) of the Rules. In our opinion, therefore, the administrative instructions contained in item 34 note(ka) of the Nirdesh Pustika could not be invoked to assail the rejection of the nomination paper of Pema Ram.

10. Shri Parekh has next submitted that the learned single Judge has committed an error in invoking the provisions contained in Sub-rule (1) of Rule 15 of the Rules for the purpose of holding that the nomination paper of Pema Ram had been improperly rejected. The Submission of Shri Parekh was that Sub-rule (1) of Rule 15. which empowers the Returning Officer to do all such acts and things as may be necessary for conducting effectively an election under the Rules, cannot be interpreted to cast an obligatory duty on the Returning Officer to find out the identity of the Person who is contesting the election from the electoral rolls and that the aforesaid provisions contained in Sub-rule (1) of Rule 15 have no bearing on the validity of the order for rejection of the nomination passed by the Returning Officer in exercise of the powers conferred upon him under Sub-rule (3) of Rule 18. In our opinion, the aforesaid contention of Shri Parekh must be accepted. Sub-rule (1) of Rule 15 which casts on the Returning Officer a general duty to do all such acts and things as may be necessary for conducting the election effectively under the Rules, postulates that while conducting the election the Returning Officer must ensure that the rules are fully observed and that the election is conducted in a manner that an elector is not wrongfully deprived of his right to contest to the election and the voters are able to exercise their voting right. With regard to matters in respect of which specific provision has been made in the Rules, the said specific provision would govern the exercise of the powers of the Returning officer and the general provisions contained in Sub-rule (1) of Rule 15 cannot be invoked. In so far as scrutiny of nomination capers is concerned specific provision has been made in Rule 18 prescribing the Dowers and duties of the Returning Officer in that regard and the duty of the returning Officer is to act in accordance with the provisions of Rule 18.

11. If a duty to find out the identity of the person who is contesting the election from the electoral roll cannot be spelt out from the Provisions contained in Rule 18 of the Rules, such a duty cannot in our view be inferred from the general duty that has been cast on theReturning Officer to do all such acts and things as may be necessary for conducting effectively an election under the Rules under Sub-rule (1) of Rule 15.

12. Having found that neither the administrative instructions contained in item No. 34 note (ka) of the Nirdesh Pustika nor the general duty cast on the Returning Officer under Sub-rule (1) of Rule 15 can be invoked for the purpose of assailing the validity of the order of the Returning Officer rejecting the nomina-paper of Pema Ram we are left with the question as to whether the rejection of the nomination paper of Pema Ram can be held to be justified under the provisions of Rule 18 of the Rules. The submission of Shri Parekh was that on a proper construction of the provision of Sub-rule (3) of Rule 18 it must be held that the Returning Officer has no option but to reject the nomination paper if he finds that the name of the candidate or his number in the voters' list as mentioned in the nomination paper does not tally with the number or name in the voters' list and that since, in the present case, the name of Pema Ram was not found at serial No. 58 of the Voters' list for ward No. 1. which number was mentioned in the nomination paper of Pema Ram. the Returning Officer had no option but to reject the nomination paper of Pema Ram under Rule 18 (3) (b). Shri Parekh has submitted that the word 'may' in Sub-rule (3) of Rule 18 must be read as 'shall' and that in all cases where the Returning Officer finds that any of the grounds mentioned in Clause (a), (b). (c) or (d) of Sub-rule (3) of Rule 18. exists he is obliged to reject the nomination paper. We are unable to accent the aforesaid contention of Shri Parekh. In Sub-rule (3) the rule-making authority has provided that 'the Returning Officer shall decide all such objections and may either on the basis of such objection or on his own motion reject any nomination paper ......' It isthus apparent in Sub-rule (3) of Rule 18 the rule making authority has used the word 'shall' as well as the word 'may'. The word 'shall' has been used for the purpose of requiring the Returning Officer to decide all the objections that are raised and the word 'may' has been used in the context of the acceptance or rejection of the nomination papers on the basis of these objections. This would show that the intention of the rule-making authority in Sub-rule (3) of Rule 18 was to impose a mandatory obligation on the Returning Officer to decide all the objections that are raised with regard to any nomination paper but in the matter of rejection of a nomination paper on the grounds enumerated in Clauses (a), (b), (c) and (d) of the said Sub-rule the rule-making authority did not intend to cast a mandatory obligation on the Returning Officer to reject a nomination paper if any of the grounds mentioned in Clauses (a), (b), (c) and (d) was made out but left it to the discretion of the Returning Officer to reject or not to reject the nomination paper. A further indication about the intention of rule-making authority in this regard can be found in Sub-rule (2) of Rule 16 which has down that any nomination paper not delivered as provided in Sub-rule (1) shall be rejected. The aforesaid provision shows that whenever the rule-making authority wanted to cast a mandatory obligation on the returning officer to reject a nomination paper it has expressed its intention by using mandatory language like the word 'shall'- If the word 'may' in Sub-rule (3) is construed as 'shall' as contended by Shri Parekh, so as to cast a mandatory obligation on the Returning Officer to reject every nomination paper, the provisions of Sub-rule (2) of Rule 16 would be rendered otiose and redundant because the ground of rejection set out in Sub-rule (25 of Rule 16 would be fully covered by Clause (d) of Sub-rule (3) of Rule 18 which provides for rejection of nomination paper on the wound that there has been a failure in complying with the provisions of Rule 16. It is settled rule of statutory construction that redundancy is not normally attributed to the law-making authority. Such a possibility would be avoided if the word 'may' in Sub-rule (3) is given its natural meaning and is not construed as 'shall'.

13. In support of his submission that Sub-rule (3) casts a mandatory duty on the Returning Officer to reject a nomination paper if the grounds set out in Clauses (a), (b), (c) and (d) of the said Sub-rule or disclosed. Shri Parekh has pointed out that the Returning Officer would not be justified in accepting a nomination paper if any of the aforesaid grounds is disclosed and that if he finds that any of the aforesaid grounds exists he should reject the nomination paper. In this regard Shri Parekh has urged that if during the course of scrutiny, the Returning Officer finds that the candidate is not qualified or he is disqualified for election, he has no option but to reject his nomination and that similarly, if he finds that the signature of the candidate on the nomination paper is not genuine or has been obtained by fraud, coercion or undue influence the Returning Officer must reject the nomination paper. Shri Parekh has contended that if the grounds set out in Clauses (a) and (c) postulate that the Returning Officer is obliged to reject the nomination paper if the said grounds exist there is no reason why such a mandatory obligation should not be inferred in the event of the existence of grounds set out in Clauses (b) and (d) In this regard Shri Parekh has further submitted that the ground contained in Clause (d) of Sub-rule (3) of Rule 18 is co-extensive with Sub-rule (2) of Rule 16 and that every non-compliance with the provisions of Rule 16 would entail the rejection of the nomination paper. We are unable to accept the aforesaid contention of Shri Parekh. It is true that if the Returning Officer finds that the candidate is not qualified or is disqualified for election he must reject the nomination paper and similarly if he finds that the signature of the candidate on the nomination paper is not genuine or has been obtained by fraud, coercion or undue influence he must reject the nomination paper. But this would not mean that in every case in which the grounds enumerated in Clauses (a), (b), (c) and (d) of Sub-rule (3) of Rule 18 are found to exist the Returning Officer has no option but to reject the nomination paper. What may be true with regard to the grounds set out in Clauses (a) and (c) need not be so with regard to grounds set out in Clauses (b) and (d). We may in this regard take up ground contained in Clause (d) of Sub-rule (3) which provides for rejection of a nomination paper if there has been a failure in complying with the provisions of Rule 16. A perusal of Rule 16 shows that it provides for the presentation of the nomination paper and prescribes that the nomination paper shall be delivered in person to the Returning Officer and that the nomination paper should be in Form I and that it should be duly filled in and signed by the candidate. As regards the delivery of the nomination paper a specific provision has been made in Sub-rule (2) of Rule 16 which lays down that a nom-nation paper not delivered as provided in Sub-rule (1) shall be rejected. But apart from the requirements relating to the delivery of the nomination paper, Sub-rule (1) contains other requirementswhich must be fulfilled by the candidate at the time of presentation of the nomination paper., and if there is non-compliance with those requirements the question as to whether the nomination paper should be accepted or rejected has to be considered under Clause (d) of Sub-rule (3) of Rule 18. One of the requirements of Rule 16 is that the nomination paper in Form I should be duly filled in. A perural of Form I. which is prescribed for the nomination paper in the Rules, shows that it is necessary to mention the date on which and the place where the signature of the candidates were obtained, on the nomination paper. A nomination paper in which the columns relating to the date and place of signing of the nomination paper are not filled in cannot be said to be a form duly filled in. If the contention of Shri Parekh is accepted the Returning Officer would have no option but to reject the nomination paper under Clause (d) of Sub-rule (3) of Rule 18 if the columns relating to the date and place of signing of the nomination paper are not filled in, even though the said omissions may have no bearing at all on the election. A construction which leads to such a result cannot in our opinion be accepted. If the word 'may' in Sub-rule (31 of Rule 18 is not construed as 'shall' but is given its natural meaning as to confer on the returning officer a discretion to accept or reject a nomination paper it will be open to the Returning Officer to consider the failure in com-plying with the provisions of Rule 16 in every particular case and if he finds that the failure relates to some thing which has no bearing on the election he may ignore the said failure and may accept the nomination paper.

14. In this context Shri Parekh has also contended that if the word 'may' in Sub-rule (3) of Rule 18 is so construed as to confer a discretion on the Returning Officer to accept or not to accent a nomination paper it will amount to conferring an arbitrary and unguided power on the Returning Officer to accent or reject a nomination paper at his sweet will and in that event the provisions of Sub-rule (3) of Rule 18 would be rendered unconstitutional. Shri Parekh has submitted that it is settled principle of law that if two constructions can be placed on a particular statutory provision, a construction which would render the pro-vision valid has to be preferred over aconstruction which would render it invalid. According to Shri Parekh the vice of unconstitutionality would disappear from Sub-rule (3) of Rule 18 if the word 'may' is construed as 'shall' because in that event the Returning Officer will not be left with any discretion in the matter of acceptance or rejection of a nomination paper. We find no force in the aforesaid contention of Shri Parekh. In our opinion, if the word 'may' in Sub-rule (3) of Rule 18 is given its natural meaning so as to confer a discretion on the Returning Officer to accept or reject a nomination paper the said discretion cannot be said to be arbitrary or unguided because under Sub-rule (3) of Rule 18 a nomination paper can be rejected only on the grounds set out in Clauses (a), (b), (c) and (d) of the said Sub-rule and further under Sub-rule (41 of Rule 18 the Returning Officer is required to record his reasons for rejecting the nomination paper-The aforesaid provisions in our view provide sufficient safeguard against any arbitrary or capricious exercise of discretion by the Returning Officer in the matter of acceptance or rejection of nomination paper.

15. Another contention that was urged by Shri Parekh was that while considering the objections under Sub-rule (3) of Rule 18 the Returning Officer is not obliged to hold any inquiry and all that is contemplated by the said Sub-rule is that the Returning Officer must examine the nomination paper and if he finds that any of the grounds mentioned in Clauses (a), (b), (c) and (d) of Sub-rule (3) is made out on the face of the nomination paper he must reject the nomination paper. In support of his aforesaid submission Shri Parekh has pointed out that Sub-section (2) of Section 36 of 1951 Act expressly provides for such an emphasis by using the words 'after such summary inquiry, if any, as he thinks necessary' and that the said words are not found in Sub-rule (3) of Rule 18. The submission of Shri Parekh is that the provisions contained in Sub-rule (3) are in part materia with those contained in Sub-section (2) of Section 36 of the 1951 Act and that the Rule making authority, while making the Rules, has made a deliberate departure in omitting the said expression in Sub-rule (3) of Rule 18 which indicates that the rule making authority did not postulate the holding of any inquiry by the Returning Officer at the stage of scrutiny of thenomination papers. In our opinion, there is no merit in this contention of Shri Parekh, It is true that in certain matters there is similarity between the provisions contained in Sub-rule (3) of Rule 18 and Sub-sec (2) of Section 36 of the 1951 Act. But on many matters both these provisions differ from each other. It cannot, therefore, be said that both the provisions, namely, Sub-rule (3) of Rule 18 and Sub-section (2) of Section 36 of the 1951 Act are in part materia. In this regard it may be observed that the grounds for rejection as set out in Clauses (a), (b), (c) and (d) of Sub-rule (3) of Rule 18 are not identical with those set out in Clauses (a), (b) and (c) of Sub-section (2) of Section 36 inasmuch as in Sub-sec.(2) of Section 36 there is no ground similar to that contained in Clause (b) of Sub-rule (3) of Rule 18 and furthermore ground contained in Clause (c) of Sub-rule (3) of Rule 18 is wider in ambit than the ground contained in Clause (c) of Sub-section (2) of Section 36 of the 1951 Act because apart from genuineness of the signatures Clause (c) of Sub-rule (3) of Rule 18 provides for rejection of the nomination paper also on the ground that the signatures of the candidate were obtained by fraud, coercion or undue influence. In our opinion, therefore, only because the rule making authority has omitted to use the words 'after such summary inquiry, if any as he thinks necessary', in Sub-rule (3) of Rule 18 it is not possible to hold that the intention of the rule making authority was that such an inquiry was impermissible at the stage of the scrutiny of the nomination papers. On the other hand, we find that in Sub-rule (4) Of Rule 18 it has been provided that the returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and in case of rejection a brief statement of his reasons nor such rejection. The word 'decided' means 'to arrive at a determination' and it includes 'the power and right to deliberate, to weigh the reasons for and against to see which preponderate and to be governed by that preponderance.' (See Black's Law Dictionary 5th Edition page 366). Similarly, the word 'decision' has been defined to mean 'a determination arrived at after consideration of facts and, in legal context, law' (See Black's Law Dictionary 5th Edition page 366). In P. L. Lakhanpal v. Union of India, AIR 1967 SC 908 the Supreme Court, while construing the word 'decide' found in Sub-rule (9) of Rule 30A of the Defence of India Rules, 1962, which made provision for review of an order of detention by the Central Government or the State Government at intervals of not more than six months and to decide whether that order should be continued or cancelled and observed as under : --

'According to its dictionary meaning 'to decide' means 'settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against), bring, come to a reason' and 'decision' means 'settlement, (of question etc.), conclusion, formal judgment, making up one's mind, resolve, resoluteness, decided character.'

16. In that case the Supreme Court laid emphasis on the use of the word 'decide' in Sub-rule (9) of Rule 30A to hold that at the stage of review of an order of detention under that Rule, the Government was required to scrutinise the case fully and ascertain whether facts and circumstances exist demanding continuation of the detention. In that case the Supreme Court left open the question whether the function entrusted by Rule 30A (9) to the Government and its decision thereunder are judicial or quasi judicial. The said question was decided by the Supreme Court in P. L. Lakhanpal v. Union of India, AIR 1967 SC 1507 wherein it was held that the function entrusted to the authority under Rule 30A(9) was quasi-judicial and the decision which it had to arrive at could not be anything other than a quasi-judicial decision and that the rules of natural justice had to be complied with and the decision had to be arrived at on the assessment of evidence placed before it in the light of facts which existed at the date of the original order of detention and the facts and circumstances which, had occurred or developed since then. The aforesaid decisions of the Supreme Court show that the word 'decide' implies consideration of the relevant material by applying objective standards after giving to parties/party concerned an opportunity of representing their/its case.

17. In this context reference may also be made to the decision of the Supreme Court in Virindar Kumar v. State of Punjab AIR 1956 SC 153. In that case the question which came up for consideration before the Supreme Court was whether thereturning officer, while conducting scrutiny of the nomination papers under Section 36(2) of the 1951 Act functions as a Court for the purpose of Section 193 I.P.C. and Section 195(1)(b) Cr. P. C. The Supreme Court held that the power conferred on the returning officer under . 36 (2) of the 1951 Act to examine the nomination papers and decide all objections which may be made thereto was undoubtedly judicial in character but the returning officer was not a Court for the purpose of Section 195(1) (b) Cr. P. C. It is true that Section 36(2) of the 1951 Act contains the expression 'after such summary enquiry, if any, as he thinks necessary.' But the Supreme Court did not rely upon the said expression for the purpose of holding that the functions of the returning officer was judicial in character. The Supreme Court arrived at the aforesaid inference on the basis of the power conferred on the returning officer to examine the nomination papers and decide objections which may be made thereto. The expression 'after such summary, enquiry, if any, as he thinks necessary' was relied upon by the Supreme Court to hold that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case and that the enquiry is such as is usually conducted by an 'ad hoc' tribunal entrusted with a quasi judicial power.

18. In view of the aforesaid decisions of the Supreme Court the provisions of Sub-rule (4) of Rule 18 which require the Returning Officer to arrive at a decision accepting or rejecting a nomination paper and to endorse a brief statement of his reasons for such rejection in case of rejection of the nomination paper, require that the Returning Officer while considering the objections that are raised by any of the candidates or by him on his own motion has to act judicially and before he arrives at a decision to accept or reject the nomination paper he may hold a summary enquiry if he thinks necessary. A perusal of the grounds mentioned in Clauses (a), (b), (c) and (d) of Sub-rule (3) of Rule 18 reinforces this conclusion. By way of illustration we may refer to a case where an objection is raised by one of the candidates that a particular candidate is not qualified or is disqualified for election. In such an event it would be open to the candidate who is raising the objection tosatisfy the returning officer by producing material in support of such objection and so also the candidate against whose nomination the objection is raised may satisfy the returning officer about his eligibility for election by submitting material in rebuttal of the said objection. It could not be the intention of the Rule making authority to shut out such material at the stage of scrutiny. AH that the rule making authority has indicated in Sub-rule (5) of Rule 18 is that the scrutiny shall be completed on the same day and no adjournment of the proceedings shall be allowed, meaning thereby that whatever material is sought to be produced in support of the objections, or in rebuttal of the same, must be kept ready and it must be produced at the stage of the scrutiny itself and not at a later stage. In our opinion, therefore, it must be held that the provisions of Sub-rule (3) of Rule 18 do not shut out a summary inquiry by the returning officer, at the stage of scrutiny, into the objection that is raised against the nomination paper of a particular candidate and it is open to the person raising the objection to produce any material in support of the objection and it is also open to the candidate against whose nomination paper the objection is raised or any other candidate to produce material in rebuttal of the said objection. It is, therefore, not possible to accept the contention of Shri Parekh that Sub-rule (3) of Rule 18 does not contemplate the holding of an enquiry by the returning officer into the objections raised against the nomination paper at the stage of scrutiny of the nomination paper.

19. Shri Parekh contended that even if it be held that it is permissible for the returning officer to hold a summary inquiry into the objection raised against a nomination paper at the stage of scrutiny of the nomination papers, such an inquiry is not contemplated in cases where the objection relates to the ground mentioned in Clause (b) of Sub-rule (3) of Rule 18. According to Shri Parekh for the purpose of deciding an objection relating to the aforesaid ground the returning officer is only required to look into the name and particulars of the candidate as mentioned in the nomination paper and the name in the voters' list at the number of the voters' list as mentioned in the nomination paper and if the returning officer finds that the names do not tally he must reject the nomination paper and there is nothing further for him to inquire into. We are unable to accept the said contention. The ground contained in Clause (b) of Sub-rule (3) of Rule 18 requires the rejection of the nomination paper of a candidate if he is not identical with the person whose number or name on the voters' list is stated in the nomination paper to be the number or name of the candidate. In other words in order to decide an objection relating to the aforesaid ground, the returning officer has to arrive at a decision with regard to the identity of the person who has filed the nomination paper and the person whose name is shown in the voters' list at the number as mentioned in the nomination paper and if he finds that both the persons are identical he must accept the nomination papers and if they are not identical he must reject the nomination paper. In this context reference may be made to the decision of the Supreme Court in Ram Awdesh Singh v. Sumitra Devi AIR 1972 SC 580 wherein the Supreme Court, while examining the provisions of the 1951 Act requiring the candidate to furnish the name and electoral roll and other particulars about the candidate and the proposer in the nomination paper, has observed,

'What is of importance in an election is that the candidate should possess of the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act and that the other information required to be given in the nomination paper is only to satisfy the returning officer that the candidate possesses the prescribed qualification and he is not otherwise disqualified.'

To the same effect is the law laid down by this Court. In Sunder Lal Chachani v. Sampat Lal 1963 Raj LW 582 : (AIR 1963 Raj 226) wherein a Division Bench of this Court has laid down that the main purpose of the provisions contained in Ss. 33 and 36 of the 1951 Act for the filing of the nomination papers is that the returning officer should be able to check readily that the proposer and the candidate should fulfil the prescribed requirements and that another object of these provisions is that sufficient particulars of the candidate may be available to the other candidates to find out the identity of the candidate so thatthey may be able to ascertain whether he fulfils the qualifications laid down by the law and does not suffer from any disqualification. In the context of Panchayat Elections a Division Bench of this Court in Ganpat Singh v. J. N. Mathur 1959 Raj LW 329, while dealing with similar provisions requiring the name and electoral roll number of the candidate and his proposer and seconder being furnished in the nomination paper, has observed that the real intention of the said provisions was to ensure that only the eligible persons might be accepted as candidates or as proposer or seconder and that no unauthorised person should come in and that when identity can be easily proved even in the absence of the serial number the mere omission to give a serial number should not be fatal to the nomination paper. In our opinion, therefore, while construing the provisions of Clause (b) of Sub-rule (3) of Rule 18 it has to be borne in mind that the object of the requirement to mention in the nomination paper the name and the number of the candidate in the voters' list is to enable the returning officer to check readily that the candidate fulfils the prescribed requirements in regard to the qualification for election as a Panch or Sarpanch and further to enable the other candidates to find out the identity of the candidate so that they may be able to ascertain whether he fulfils the qualifications laid down by the law and does not suffer from any disqualification. If in spite of an error in description of the name of the candidate or the voters list number of the candidate in the nomination paper or there being some difference between the name and parentage of the candidate as mentioned in the nomination paper and the name and parentage as given in the voters list at the number as mentioned in the nomination paper the identity of the candidate with the entry in the voters list is established before the returning officer during the course of scrutiny on the basis of material placed before him, the returning officer would not be justified in rejecting the nomination paper under Clause (b) of Sub-rule (3) of Rule 18 only because the name and parentage of the candidate as given in the nomination paper do not tally with the name and parentage mentioned in the voters list at the number specified in the nomination paper.

20. Shri Parekh contests this position and has submitted that Rule 18 (3) of the Rules cannot be construed in the light of decisions given with reference to the provisions contained in Sections 33 and 36 of the 1951 Act because in the Rules there are no provisions similar to those contained in Sub-section (4) of Section 33 and Sub-Section (4) of Section 36 of the 1951 Act. As mentioned earlier Sub-section (4) of Section 33 of 1951 Act requires that at the time of presentation of the nomination paper, the returning officer shall satisfy himself about the correctness of the names and electoral roll number of the candidate and his proposer as entered in the nomination paper and provides for correction of any misnomer or inaccurate description or clerical, technical or printing error in the nomination paper and further provides that the said defect in the nomination paper shall be overlooked by the returning officer. Sub-section (4) of Section 36 of the 1951 Act prescribes that the returning officer shall not reject a nomination paper on the ground of a defect which is not of a substantial character. It is true that the Rules do not contain provisions similar to those contained in Sub-section (4) of Section 33 and Sub-section (4) of Section 36 of the Act. The absence of such provisions cannot however be construed to mean that while conducting scrutiny of nomination papers under Rule 18 of the Rules the returning officer is obliged to reject a nomination paper even though the defect found in the nomination paper is of a technical nature only and is not material and has no bearing on the election. While considering the provisions of Rule 18 of the Rules we cannot lose sight of the fact that the Rules relate to election of Panchas and Sarpanchas of Gram Panchayats and that the level of education and legal assistance that is generally available in rural areas cannot be equated with the level of education and legal assistance that is available in urban areas. With regard to elections for the Loksabha and the Legislative Assemblies of the States under the 1951 Act the law is well settled that clerical and technical defects in the nomination paper relating to the particulars of the candidate and the proposer are not such defects which may justify the rejection of the nomination paper. It is difficult to conceive that in framing Rule 18, the rule making authority intended to lay down higher standards ofaccuracy in the matter of description of name and voters list number of the candidates in the nomination paper in respect of candidates who contest election for the office of Panchas and Sarpanchas of Gram Panchayats than those required for candidates who contest election for the Lok Sabha and the legislative assemblies of the States. The rejection of the nomination paper of a candidate results in denial of the statutory right of the elector to be elected to a public office. It could not be the intention of the rule making authority that such a right to be elected as Panch and Sarpanch of a Gram Panchayat should be defeated even if there is minor error in the nomination paper with regard to the name or the voters' list number of the candidate. We are, therefore, of the considered opinion that ground contained in Clause (b) of Sub-rule (3) of Rule 18 does not require that the nomination paper of the candidate should be repeated if there is a discrepancy between the name and particulars of the candidate as mentioned in the nomination paper and the names and particulars of the voter as mentioned in the voters' list at the number specified in the nomination paper. In our opinion, in cases where, in spite of the aforesaid discrepancy, if the identity of the candidate who fills the nomination paper is established from the voters' list the returning officer would not be justified in rejecting the nomination paper merely because there is some difference between the name and parentage of the candidate as mentioned in the nomination paper and the name and parentage of the voter in the voters' list at the number specified in the nomination paper or that the name of the candidate is not found in the voters' list at the number specified in the nomination paper, but is found at a different place. This would imply that if at the time of the scrutiny of the nomination paper, the returning officer finds that the name of the candidate is not found in the voters' list at the number as mentioned in the nomination paper he may invite the attention of the candidate concerned and other persons present at the time of scrutiny, to the aforesaid error and he may ask the candidate to satisfy him that his name is entered in the voters' list and that if the returning officer is satisfied with regard to the identity of the candidate and the voter mentioned in the voters' list hewould not be justified in rejecting the nomination paper.

21. The next question which arises for consideration is as to whether it is necessary to mention the number of the ward in the nomination paper and what is the consequence of the failure on the part of the candidate to mention the ward number or in giving an incorrect ward number in the nomination paper. Form I that is prescribed for nomination paper under the Rules only contains a column for filling the number in the list of voters. There is no separate column relating to ward number similar to that contained in the forms of nomination paper prescribed in the Conduct of the Election Rules 1961 for the Lok Sabha and the State legislative assemblies. In Mohana Ram v. Rajendra Singh 1962 Raj LW 577 a learned single Judge of this Court (Jagat Narayan J. as he then was) after considering Form I prescribed under the Rules has held that the said form does not require the candidate to give the ward number along with the number in the list of voters and that the nomination paper cannot be rejected by the returning officer merely on the ground that the candidate has not given the number of the ward along with the number in the list of voters. In the present case also, the learned single Judge (D.L. Mehta J.) has also taken the same view and has held that it was not necessary to mention the ward number in the nomination paper and the mentioning of the ward number by Pema Ram should be treated as redundant. Mr. Parekh has assailed the aforesaid view and has submitted that where the voters' list is prepared ward-wise and the same serial number would occur in the list of each ward and that in such a case the candidate, in addition to giving the serial number in the voters' list must also specify the number of the ward to which that list relates so that it may be possible for the returning officer to locate the name of the candidate in the voters' list at the time of the scrutiny of the nomination paper. The submission of Shri Parekh was that in the absence of the number of the ward being given in the nomination paper the returning officer would be required to wade through the voters' list relating to various wards and that it would be a very cumbersome process consuming a lot of time at the time of scrutiny of thenomination papers. In support of his aforesaid submission Shri Parekh has placed reliance on the decision of a Division Bench of this Court in Balji v. Murarka Radhey Shyam Ramkumar 1965 Raj LW 67 : (AIR 1965 Raj 23) wherein a Division Bench of this Court while dealing with the provisions of the 1951 Act has held that it was necessary to mention the part number of the electoral roll in the nomination paper and that the omission to mention the number of the part of the electoral roll was a defect of a substantial nature which would justify the rejection of the nomination paper. In that case their Lordships have observed that where the electoral roll is divided into a number of parts and each part consists of hundreds of persons and where each part begins with the serial number of voters therein contained as No. 1, it cannot but be held that the number of the part is a matter of substance because if the number of the part is not given the returning officer would be put to the almost impossible task, of wading through all the parts to hunt out where the name of the proposer or a candidate, as the case may be, happens to be enrolled. Shri Singhvi, on the other hand, has submitted that the aforesaid observations were made by this Court in the context of an election for the Lok Sabha where the electoral roll consists of a large number pf voters and that the said observations can have no application to Panchayat elections where the number of voters is quite small and the voters are well known to the persons concerned and, therefore, in the case of Panchayat elections, it is not incumbent for the candidate to specify the ward number of the voters' list in the nomination paper. It is no doubt true that the electors in elections for the Panchayat are much less than the electors for election to the State Legislative Assembly and the Lok Sabha, but it often happens that in Panchayat elections also the voters' list for a Panchayat circle is divided into various wards and consisting of different villages or different parts of the same village and the voters' list for each ward commences with the serial No. 1. If it is held that it is not necessary to specify in the nomination paper the number of the ward of the voters' list along with the serial number in the voters' list the returning officer, at the time of scrutiny, would be required toexamine the voters' list of each ward of the Panchayat circle for the purpose of finding out the name of the candidate in the voters' list. This will surely take time. If the requirement of Form I about the number in the list of voters is construed to include both the serial number in the list of voters as well as ward number of the list this labour of finding out the name of the candidate in the voters' list from the various lists for different wards would be avoided and valuable time would be saved and it would facilitate the process of scrutiny of the nomination papers. The requirement in Form I of the Rules about furnishing the number in the list of voters must, therefore, be construed to mean the serial number in the list of voters as well as the number of the ward to which the list relates because in cases where the voters' list consists of separate lists for each ward the same serial number may occur in the list for each ward. In other words the expression 'number in the list of voters' at column No. 4 of Form I must mean serial number in the voters' list as well as the number of the ward to which that voters' list relates. It must, therefore, be held that the candidate while disclosing the number in the voters' list must also specify in the nomination paper the number of the ward to which the voters list in which his name is found at serial number mentioned in the nomination paper relates.

22. What is the consequence of the failure on the part of a candidate to mention the number of the ward or mentioning a wrong number of the ward in the nomination paper? In Mohana Ram v. Rajendra Singh (1962 Raj LW 577) it has been held that in the event of failure on the part of candidate to mention the ward number in the nomination paper the returning officer should inquire from the candidate the ward number and if the name cannot be found in the list of voters for the ward in which he says he is residing at the number given in the nomination paper then alone the nomination paper can be rejected. Shri Parekh has submitted that a distinction has to be drawn between the failure by the candidate to mention the ward number along with the serial number in the voters' list in the nomination paper and his giving an incorrect ward number. According to Shri Parekh even if it be held that it is the duty of the returning officer to inquire from the candidate the wardnumber to which the voters' list relates at the time of the scrutiny of the nomination paper there is no such obligation in a case where the candidate mentions the ward number of the voters' list in the nomination paper and that ward number is found to be incorrect and that in such an event the returning officer is not required to make any further inquiry and he should reject the nomination paper under Rule 18 (3) (b). We are unable to agree. In our opinion, there is not much distinction between failure on the part of the candidate to mention in the nomination paper the ward number of the voters' list, and his mentioning a wrong ward number in the nomination paper. In case where the candidate fails to mention the ward number the returning officer may ask the candidate concerned about the particulars of the ward number and if on the basis of the said particulars he is able to locate the name of the candidate in the voters' list he should not reject the nomination paper. Similarly, in a case where a candidate mentions a wrong ward number in the nomination paper the returning officer, at the time of scrutiny, on noticing the error may invite the attention of the candidate to this error in the nomination paper and if the candidate is able to satisfy him that his name exists in the voters' list at the same serial number in another ward and he is able to satisfy the returning officer about his identity with the name shown in the voters' list, the returning officer would not be justified in rejecting the nomination paper.

23. In this context reference may be made to the decision of the Supreme Court in Karnail Singh v. Election Tribunal Hissar (1954) 10 ELR 189). In that case the constituency for which the nomination paper was filed was composed of two towns viz. Sirsa and Dabwali, which were Sub-divided into wards and the electoral roll instead of being divided into parts was divided into wards. In the nomination paper while the number of the ward and the serial number at which the name of the candidate was enrolled were specified but the name of the town to which the electoral roll related was not given. At the time of scrutiny of the nomination paper the candidate himself pointed out to the returning officer the entry of his name in the electoral roll of the constituency, butthe returning officer rejected the nomination paper. The election tribunal held that the nomination paper had been improperly rejected since that the candidate had pointed out the entry in the electoral roll to satisfy the returning officer that he was enrolled as a voter in the electoral roll of the constituency. The Supreme Court affirmed the said order of the election tribunal on the view that there was no difficulty in identifying 'the candidate and the candidate himself pointed out to the returning officer the entry of his name in the electoral roll.

24. In Ram Awdesh Singh's case (AIR 1972 SC 580) the name of the appellant was entered in the electoral rolls for Arrah assembly constituency as well as the Sandesh assembly constituency. While filling the' nomination paper for Arrah assembly constituency he filled in the electoral roll number of Arrah constituency. Subsequently he found that his name had been deleted from the electoral roll of Arrah constituency by a separate supplementary list. At the time of scrutiny he produced before the returning officer the certified copy of the electoral roll of the Sandesh constituency and the returning officer accepted his nomination paper. The High Court held that the nomination paper of the appellant had been improperly accepted and on that view set aside the election of the appellant. The Supreme Court reversed the decision of the High Court and held that the nomination paper of the appellant had been properly accepted because the candidate at the time of scrutiny, had with him a certified copy of the electoral roll of the Sandesh constituency and he had shown the same to the returning officer. In that case the Supreme Court have also observed that from a combined reading of Ss. 33 and 36 of the 1951 Act it was clear that a mis-description as to the electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.

25. In Heera Singh Pal v. Madan Lal (AIR 1968 SC 1179) the candidate whose nomination was rejected had filed two nomination papers. In one nomination paper he gave the correct particulars of the serial number as well as part number of the electoral roll relating to his name butgave the wrong particulars of the electoral roll number and part number of his proposer. In the second nomination paper the part number of the electoral roll in which the name of the candidate was mentioned was incorrect but the serial number and the part number of the electoral roll of the proposer was correct. The Supreme Court held that the nomination of the candidate was improperly rejected, for the reason that even though the candidate had mentioned the wrong part number of the electoral roll with regard to his name in the second nomination paper the returning officer could have easily found out the correct part number of the electoral roll from the first nomination paper and that all the required information was before him.

26. Shri Parekh has placed reliance on the decision of this Court in Balji's case (AIR 1965 Raj 23) and the decision of the Madhya Pradesh High Court in Net Ram v. Laxman Prasad (AIR 1960 Madh Pra 368) wherein it has been held that failure to mention the part number in the nomination paper is a defect of a substantial character within the meaning of Section 36(4) of the 1951 Act which would justify the rejection of the nomination paper. We have carefully considered the aforesaid decision. There is nothing in the aforesaid decision to show that at the time of scrutiny, the candidate concerned had pointed out the part number of the elctoral roll to the returning officer or that there was other material before the returning officer on the basis of which he could satisfy that the name of the candidate was entered in the electoral roll. In view of the decision of the Supreme Court in Kernail Singh's case (1954-10 ELR 189), Ram Awadesh Singh's case (AIR 1972 SC 580) and Heera Singh's case (AIR 1968 SC 1179), we are of the opinion that omission to mention the ward number of the voters' list or giving a wrong ward number of the voters' list in the nomination paper would not justify the rejection of the nomination paper if the candidate produces before the returning officer the relevant electoral roll or there is other material before the returning officer to satisfy him that the name of the candidate is entered in the electoral roll and the returning officer is satisfied about the identity of the candidate with the voter whose name is entered in the voters' list. Shri Parekh hassubmitted that the decisions of the Supreme Court referred to above have been given in the light of the provisions contained in Ss, 33 and 36 of the 1951 Act and since the provisions of Rules 16 and 18 of the Rules differ from those contained in Ss. 33 and 36 of the 1951 Act the said decisions of the Supreme Court case have no application to elections for the Panchayats under the Rules. We have already dealt with this aspect of the matter and we have found that in spite of the difference in the language used in Ss. 33 and 36 of the 1951 Act and Rules 16 and 18 of the Rules, the returning officer, at the time of scrutiny of the nomination paper under Rule 18 (3) can hold an enquiry of a summary nature into the objections to the nomination paper and that in a case where, at the time of scrutiny, it is found that there is error, omission or misdescription in the nomination paper about the name or number in the list of voters' list of the candidate, the returning officer should bring this error or discrepancy to the notice of the candidate concerned and if the said candidate produces material before the returning officer to show that his name is entered in the list of voters and to satisfy him about his identity with the voter whose name is mentioned in the voters' list, the returning officer would not be justified in rejecting the nomination paper on the ground mentioned in Clause (b) of Sub-rule (3) of Rule 18. In our opinion, therefore, in cases where the candidate fails to mention the ward number of the voters' list or mentions a wrong ward number of the voters' list in the nomination paper but at the time of scrutiny he satisfies the returning officer that his name is entered in the voters' list and also satisfies him about his identity with the voter whose name is entered in the voters' list, the returning officer would not be justified in rejecting his nomination paper under Rule 18 (3) (b).

27. We may now come to the facts of the present case. The election tribunal has found that the name of Pema Ram is entered at serial No. 58 in the voters' list for ward No. 5 of village Malasar. In the nomination paper filed by Pema Ram in the column relating to number in the voters' list he has mentioned 'serial No. 58, Ward No. 1'. The Ward number 1 that was mentioned in the nomination paper was obviously not correct. The caseof the Respondents Nos. 1 and 2 in the election petition was that at the time of the scrutiny Pemaram was present and that Taruram Respondent No. 1 had pointed out to the returning officer that the name of Pema Ram was entered in the voters' list for ward No. 5 at serial No. 58 but the returning officer did not take into consideration the said entry of the name of Pema Ram in the voters' list and rejected the nomination paper. In support of the aforesaid case Taru Ram examined himself and deposed before the election tribunal that he was present at the time of the scrutiny of the nomination papers and that with regard to nomination paper of Pema Ram the returning officer had stated that his nomination was being rejected because ward No. 1 has been mentioned instead of Ward No. 5. Taruram has also stated that he told the returning officer that name of Pemaram is entered in the list for ward No. 5 and that correction may be made but the returning officer told him that he would not make the correction and he rejected the nomination paper. During the course of cross-examination he stated that the returning officer had mentioned, about rejection of nomination paper of Pema Ram to every body including Pema Ram but Pema Ram did not say anything and that he had raised no objection. As against this the case of the appellant, as stated by him in his deposition before the election tribunal, was that at the time of scrutiny Pema Ram was not present and in spite of being called that his nomination paper was being scrutinised he did not come. The appellant has also stated that the returning officer did not say anything to anybody with regard to the nomination paper of Pema Ram and that Pema Ram had come after the nomination paper had been rejected and when he came the returning officer told him that his nomination paper had been rejected. During the course of cross-examination the appellant stated that at the time of scrutiny of the nomination paper of Pema Ram, Taruram did not tell the returning officer that the name of Pema Ram was entered in the list for Ward No. 5. After considering the evidence of respondent Taruram and the appellant the election tribunal believed the testimony of Taruram and has recorded a finding that Pema Ram was present at the time of the scrutiny' of the nomination paper. Shri Singhvi has submitted that the order of theelection tribunal also shows that he has recorded a finding that at the time of scrutiny of the nomination paper of Pemaram, Taruram had informed the returning officer that the name of Pemaram was entered in the list for Ward No. 5. On a careful perusal of the order of the election tribunal we find that the election tribunal has not recorded a categorical finding to this effect but from the observations made by the election tribunal in his order it does appear that he has not accepted the version given by the appellant as to what had happened at the time of the scrutiny of the nomination paper and he has accepted the version given by respondent Taruram. It can, therefore, be said that at the time of the scrutiny of nomination paper Taruram had pointed out to the returning officer that the name of Pema Ram was entered at serial No. 58 in the voters' list for ward No. 5 and that in spite of this fact being brought to his notice the returning officer rejected the nomination paper of Pema Ram.

28. In the light of the aforesaid facts it can be said that at the time of the scrutiny of the nomination papers the returning officer noticed the error in the nomination paper of Pemaram with regard to the number in the voters' list as mentioned therein inasmuch as the name of Pemaram was not found entered at serial No. 58 of the voters' list for ward No. 1, but at the same time it was pointed out to the returning officer that the name of Pemaram was entered at serial No. 58 in the voters' list for ward No. 5. It may be mentioned that there is no dispute that the said entry at serial No. 58 of ward No. 5 related to Pemaram son of Imarata Ram, the candidate who had submitted the nomination paper, because in village Molasar there is only one person bearing the name Pemaram son of Imarata Ram. In the circumstances it must be held that the identity of the candidate Pemaram who had submitted the nomination paper with Pemaram son of Imarataram whose name was entered at serial No. 58 of voters' list for ward No. 5 had been established before the returning officer and in these circumstances the returning officer was not justified in rejecting the nomination paper of Pemaram.

29. We are further of the view that even if it be held that the election tribunal has not recorded a finding in favour of respondents Nos. 1 and 2 about Taruram having invited the attention of the returning officer to entry at serial No. 58 in the voters' list for ward No. 5 at the time of scrutiny of the nomination paper of Pemaram in order to show that the name of Pemaram was entered at serial No. 58 of the voters' list for ward No. 5, the appeal must fail because the election tribunal has recorded a categorical finding that Pemaram was present at the time of scrutiny of his nomination paper and there is nothing in the evidence produced before the election tribunal to show that at the time of the scrutiny of the nomination paper the returning officer had asked Pemaram to explain the error with regard to the number in the voters' list as mentioned by him in the nomination paper. In the absence of the returning officer having asked Pemaram to explain this discrepancy, neither Pemaram nor any other candidate could satisfy the returning officer that the name of Pemaram was entered at some other place in the voters' list. The returning officer thus committed an error in rejecting the nomination paper of Pemaram without informing him about the defect in the nomination paper and without affording him an opportunity to show that his name was entered in the voters' list. In our opinion, therefore, the election tribunal, as well as the learned single Judge were right in holding that the nomination paper of Pema Ram was improperly rejected and in setting aside the election of the appellant on that account.

30. Before we conclude we may notice the contention that has been urged by Shri Parekh with regard to the maintainability of the election petition which was filed jointly by respondents Nos. 1 and 2. The submission of Shri Parekh was that under Rule 79 of the Rules it is permissible for an elector or a candidate to present an election petition and that it is not permissible for an elector and a candidate to join together and jointly file an election petition. Shri Parekh, however, concedes that two electors can jointly file a petition and two candidates can also jointly file a petition. His objection is that an elector and a candidate cannot combine together to file a joint petition. We are unable to agree. Sub-rule (1) of Rule 79 confers a right to present an election petition on an elector as well as on a candidate. It is not disputed that two electors can join together and file a joint petition. If two electors are entitled to file a joint petition it is difficult to appreciate why the two electors should be disentitled form filing a joint petition merely because one of the electors happened to be a candidate at the election. In our opinion, the word 'or' used in Sub-rule (1) of Rule 79 means that an elector as well as a candidate have a right to present an election petition but the said word 'or' does not mean that an elector and a candidate cannot join together to present an election petition. Moreover the aforesaid objection raised by Shri Parekh really relates to misjoinder of parties. It has no material bearing in this case because such an objection was not raised by the appellant before the election tribunal. If such an objection had been raised by the appellant before the election tribunal it would have been open to the respondents Nos. 1 and 2 to have the name of one of the petitioners to the election petition deleted and the election petition could have proceeded on behalf of the other petitioner. The order passed by the election tribunal setting aside the election of the appellant and the order of the learned single Judge cannot, therefore, be permitted to be challenged on this ground.

31. No other contention was urged by Shri Parekh. In the result, we find no merit in this special appeal and it is, therefore, dismissed. Taking into consideration the facts and circumstances of the case the parties are left to bear their own costs.


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