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Tejaram Gahlot Vs. Pukhraj Kalani and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberElection Petn. No. 13 of 1972
Judge
Reported inAIR1973Raj138; 1972()WLN798
ActsRepresentation of the People Act, 1951 - Sections 36 and 36(8)
AppellantTejaram Gahlot
RespondentPukhraj Kalani and ors.
Appellant Advocate M.R. Calla and; G.S. Rathore, Advs.
Respondent Advocate M. Mridul,; R.L. Maheshwari, Advs. (for No. 1),; J.K. Si
DispositionPetition dismissed
Cases ReferredIn Aijaz Ahmad v. Nazirul Hasan
Excerpt:
.....candidates and he was justified in the circumstances of the case to accept the nomination paper of shri narain.;i regret, with great respect, i am unable to apply the doctrine of 'functus officio' to situations which call for rectification of inadvertent mistakes. - - 26 to 42 dated 11-1-1972, informs that the election commission had disqualified shri narain under section 10a of the representation of the people act because he had failed to lodge the account of election expenses, therefore, he is not qualified to contest the election and his nomination is not accepted. 14 it is mentioned that (shri) narain was disqualified for his failure to lodge accounts in accordance with law and in time but his disqualification according to column 6 automatically ended on 14-1-71. column 6 was not..........36 of the representation of the people act and i make the following decision. the candidate shri narain is absent his proposer shri mohanlal is absent. the deputy chief election officer, rajasthan, jaipur by his letter no. f.5(l)(l) first election /70/197 dated december 11. 1971, which was received on 14-1-1972 by endorsement at no. 17 & nos. 26 to 42 dated 11-1-1972, informs that the election commission had disqualified shri narain under section 10a of the representation of the people act because he had failed to lodge the account of election expenses, therefore, he is not qualified to contest the election and his nomination is not accepted. sd. ramesh chand returning officer, sojat copy received sd. narain. after i had written the above, candidate shri narain appeared with a.....
Judgment:
ORDER

B.P. Beri, J.

1. Shri Pukhraj Kalani, respondent No. 1. was elected from the Sojat Constituency in the general elections of 1972 to the Rajasthan State Assembly. His election had been challenged by the petitioner on certain grounds including the charge of a corrupt practice. But by his application dated 24-7-1972 the petitioner abandoned his attack on the ground of corrupt practice and confined his petition to the improper rejection of the nomination paper of the respondent Mr. Narain respondent No. 2, The circumstances attending the submission. rejection and acceptance of Mr. Narain's nomination paper briefly stated are these: He presented his nomination paper dated 8-2-1972 (Document No. 1). On 9-2-1972 the Returning Officer (respondent No. 4) scrutinised it and made the endorsements which may be translated verbatim in the interest of exactitude.

'I have scrutinised this nomination paper under Section 36 of the Representation of the People Act and I make the following decision.

The candidate Shri Narain is absent His proposer Shri Mohanlal is absent. The Deputy Chief Election Officer, Rajasthan, Jaipur by his letter No. F.5(l)(l) First Election /70/197 dated December 11. 1971, which was received on 14-1-1972 by endorsement at No. 17 & Nos. 26 to 42 dated 11-1-1972, informs that the Election Commission had disqualified Shri Narain under Section 10A of the Representation of the People Act because he had failed to lodge the account of Election Expenses, Therefore, he is not qualified to contest the election and his nomination is not accepted.

Sd. Ramesh Chand

Returning Officer, Sojat

Copy Received

Sd. Narain.

After I had written the above, candidate Shri Narain appeared with a copy of the above order at 12 noon and said that he was absent at the time of the scrutiny of his nomination paper and on obtaining a copy of his nomination paper he learnt that it had been rejected. He presented an application in writing say-ins that the Election Commission of India had disqualified him only for a period of 3 years which period had expired and so had his disqualification. The candidate requested for reconsideration of his nomination paper and the list sent by the Deputy Chief Election Commissioner and the same may be shown to him. Till this time the scrutiny of nomination papers is in progress. Therefore, on the written application of the candidate the letter No. 5 (11)(1) First Election 70:197 dated llth December, 1071 which was received in this office on 14-1-1972 was re-read. In the list attached with the said letter at serial No. 14 it is mentioned that (Shri) Narain was disqualified for his failure to lodge accounts in accordance with law and in time but his disqualification according to column 6 automatically ended on 14-1-71. Column 6 was not noticed by me before the arrival of the candidate and he was declared disqualified by me only on reading the letter. Because of my not noticing column No. 6 of the list attached with the letter of the Deputy Chief Election Commissioner and due to haste and oversight the nomination paper of the candidate was rejected which was due to 'purely over sight'. As the disqualification of the candidate had already come to an end as per the list attached with the letter of the Deputy Chief Election Commissioner in the face of this fact and for the ends of justice it is necessary to correct the error and the nomination paper of candidate (Shri) Narain is accepted and the order of rejection above-mentioned is vacated.

Sd. Ramesh Chand

9-2-1972'

2. The petitioner contends that the Returning Officer had no jurisdiction to review his earlier order rejecting the nomination paper of Shri Narain and because on the Returning Officer's own showing Shri Narain's nomination paper was improperly rejected the election of Shri Pukhraj Kalani should be set aside under Section 100(1)(c) of the Representation of the People Act. Respondent Pukhraj Kalani contests the position. He says that because the nomination paper of Shri Narain was eventually accepted the case is not attracted by Section 100(1)(c) of the Representation of the People Act. If the nomination paper was improperly accepted then unless it is averred and it has not been so averred that it materially affected the results of the election Section 100(1)(d)(i) is not attracted and the petition deserves to be dismissed on that ground. The time for scrutiny was between 11 a. m. and 3 p. m. and before the final list under Section 36(8) was published the nomination paper of Shri Narain was duly accepted. The case is not one of review but of correction of a mistake. One important fact, which is not in dispute, might also be mentioned i. e, Shri Narain eventually withdrew from the election contest.

3. The crux of the controversy is that after having imporperly rejected the nomination paper of Shri Narain had the Returning Officer any jurisdiction to correct the error. If he had none, then the subsequent order does not exist in law being a nullity and the rejection being improper it will have to be examined whether the case is covered by Section 100(1)(c) of the Representation of the People Act thereby making the elec-tion of Shri Pukhraj Kalani void.

4. It has been held in Virindar Kumar Satvawadi v. State of Punjab, AIR 1956 SC 153 that a Returning Officer while acting under Section 36 of the Representation of the People Act exercises a power which is judicial in character. The presumption of truth attaches to what the Returning Officer has said in his order which I have translated in extenso. Moreover, no evidence has been led to disturb the presumption. The general rule of law is that there is no power to review a judicial order unless one is conferred by law. Evidently there is no provision in the Representation of the People Act which confers such a power on a Returning Officer. On behalf of the petitioner it has been argued that in the absence of such a power the subsequent order of acceptance of Shri Narain's nomination paper was a nullity end earlier rejection was ex facie improper. Two cases apparently support the petitioner, namely Natwarlal v. Bhartendra Singh. (1953) 5 Ele LR 408 and Khanavar Khadskhan Hushenkhan v. Siddavanhalli Nijalingappa. AIR 1968 Mys 18. The opposite view is expressed in Ramakant Kesheorao v. Bhikulal Laxmichand. AIR 1959 Madh Pra 141.

5. Before I examine the direct cases on the question I would prefer to analyse what had happened in the case before me. Shri Narain was disqualified for 3 years under Section 10A of the Representation of the People Act by the Election Commission of India. The disqualification had expired on 14-1-1971. He submitted his nomination paper on 8-2-1972 on which date he had no disqualification. The Returning Officer due to inadvertence failed to notice the period in column 6 as to when the disqualification ended. Within a very short time, before the process of scrutiny of nomination papers of the Constituency was over, his attention was invited by means of an application towards the error and he hastened to correct it did he act without jurisdiction?

6. In every correction of en error there is some element of review. Are judicial bodies powerless to correct errors arising from their own inadvertence, omission, slip or mistake in the absence of specific powers of review conferred on them? This question will have to be examined from two points of view. The first is when the amendment by way of correction is made before the order is formally drawn up and the second is after the order has been formally drawn up. Was the correction in our case before or after the drawing up of the formal order?

7. An examination of Section 36 of the Representation of the People Actshows that on the date fixed for the scrutiny of nominations the candidates, their election agent one proposer and one other person duly authorised by the candidate may attend the scrutiny proceedings. They shall be given facilities to examine the nominations of 'all the candidates'. Then the Returning Officer shall examine 'the nomination papers' and shall decide all objections made to any nomination and may either on such objection or on his own motion after such summary enquiry, if any, reject any nomination paper on any of the grounds mentioned in Section 36(2). The Returning Officer shall not allow any adjournment of the proceedings excepting for reasons of riot, violence or for causes beyond his control. The Returning Officer shall endorse on each nomination, paper his decision of accepting or rejecting the nomination paper and Sub-section (8) of Section 36 reads:

'(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.'

The Division Bench of the Madhya Pradesh High Court in Ramakant's case, AIR 1959 Madh Pra 141 has made the following observations in this context:--

'We are, therefore, of the opinion that until the question of acceptance or rejection of a nomination is decided judicially in accordance with the procedure laid down in Section 36 of the Act the Returning Officer has the power to reject the nomination till such time as the list of validly nominated candidates has not been made and affixed to his notice board under Sub-section (8) thereof. The order of the Returning Officer rejecting the nomination of respondent No. 11, therefore, is not open to question.'

The drawing up of the final list under Section 36(8) according to this authority is the drawing up of the final order. Until that stage is reached the Returning Officer has inherent jurisdiction to correct the order. That is the complete picture of the contestants in a given constituency and which is of moment for the electorate to consider their options. In Halsbury's Vol. 22. Third Edition paragraph 1664 reads:

'1664. Amendment before judgment or order drawn up. Until a judgment or order has been entered or drawn up there is inherent in every Court the power to writhdraw alter or modify it, either on the application of one of the parties or on the initiative of the Judge himself. In the meantime it is provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires. It and the right of withdrawal would not be thereby prevented or prejudiced.'

I am inclined to agree with this view.

8. However, even if I were to examine the matter from the second point of view treating the decision on each nomination paper as formal and final decision thereon then too there is ample authority for the proposition that there is power in a Court to correct clerical or accidental mistakes in judgments and orders. In Halsubry's Laws of England, paragraph 1666 the position is thus summed up.

'1666. Amendment of clerical or accidental mistakes. After the judgment or order has been entered or drawn up there is power, both under the Rules of the Supreme Court and inherent in the Judge, or master, who gave or made the judgment or order, to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to his meaning and intention. The power applies to the case of mistakes or accidental slips made by officers of the Court, or by the parties, such as where judgment is entered in default or appearance for too large an amount of costs, or there has been a miscalculation of interest, or a mistake in a date, or accidental omissions from a bill of costs, or neglect to ask for certain costs, or omission to provide for the first charge of the Legal Aid Fund, or omission of words giving liberty to apply, or possibly in special cases where the order is founded upon a mistake of fact. .....................'

9. The Supreme Court has in Jang Singh v. Brijlal AIR 1966 SC 1631 has recognised the time honoured principle that an act of Court should do no harm to a litigant.

10. In Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1040 their Lordships have quoted with approval the well-known lines of Bowen. L. J. in Mellor v. Swire, (1885) 30 Ch D 239 which read:--

'Every Court has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to carry put its intention and express the meaning of the Court when the order was made.'

11. Courts' inherent power to correct accidental mistakes is thus recognised even though ordinarily there are provisions for appeals available for correction of errors.

12. In Aijaz Ahmad v. Nazirul Hasan, AIR 1935 All 868 it is observed that a Court has inherent jurisdiction to recall and cancel Invalid orders and to make such orders as are necessary for the ends of justice. 'On principle there is no difference between an order passed by Court and an order passed by an officer acting judicially.........'

13. In my opinion there is no reason to deny a Returning Officer the Power to correct accidental errors or slips or mistakes, before he finally publishes his list under Section 36(8) of the Representation of the People Act. To deny such inherent power to a Returning Officer may result in such a waste of time, energy and money for the participants in an election and may in some cases, where no election petition challenges the election, even work out to be a denial of a reliable representative and impair the working of democracy itself. Technicalities must be trimmed to proper limits.

14. The Returning Officer in the case before me has emphasised it in his order that he was correcting his inadvertent mistake in the interest of justice. In my opinion he had inherent jurisdiction to correct the error and recall his earlier order of rejection before the publication of final list of the candidates and he was justified in the circumstances of the case to accept the nomination paper of Shri Narain.

15. I roust notice the two cases cited on behalf of the respondent. Natwarlal's case, (1953) 5 Ele LR 408 was decided by the Election Tribunal, Kotah. There Shri Velji Bhil's nomination paper was first rejected and then accepted 'in the absence of parties, without notice and without hearing'. The learned members of the Tribunal held that it amounted to review and the Returning Officer had become 'functus officio.' This case is slightly distinguishable. In the case before me Shri Narain had made an application he was heard and an inadvertent error rectified. I regret, with great respect. I am unable to apply the doctrine of 'functus officio' to situations which call for rectification of inadvertent mistakes.

16. The second case Is AIR 1968 Mys 18. In this case the learned Judge appears, with great respect to be under a mistaken impression that Natwarlal's case (1953) 5 Ele LR 408 was decided by the Supreme Court, when he observes 'A reading of the said case in the light of the previous ruling of the Supreme Court (sic.) in (1953) 5 Ele LR 408' and he has as in duty bound accepted the authority. However, the Mysore case, AIR 1968 Mys 18 is distinguishable. This was a case of withdrawal. The list was published on 21st and Ex. P/3 was received by him on the 22nd.

17. As I have held that the Re-turning Officer had power to correct the accidental mistake and recall the order of rejection of nomination paper such an order did not exist and no case under Section 100(1)(c) is made put. Because the acceptance of the nomination paper was proper no case under Section 100(1)(d)(i) is made out both in law and by pleadings.

18. The result is that this election petition fails and is dismissed with costs which I assess at Rs. 400/- for Respondent No. 1. I make no order as to costs for other respondents. The office will comply with Rule 745 of the High Court Rules.


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