1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act), by one Sunder Lal Chechani whose petition challenging the validity of the election of Sampat Lal respondent to the Mavli constituency of the Rajasthan Legislative Assembly at the general election of 1962 was dismissed by the election Tribunal, Udaipur, on August 7, 1962.
2. The petition, as originally filed on April 11, 1962, was based, on two grounds contained in paragraphs 4 and 5 of the petition which run as follows,--
'4. That the order of the Returning Officer rejecting the nomination paper of Shri Kesar Singh is illegal on the ground that the said Kesar Singh was never dismissed for corruption or disloyalty to the State and that no disqualification under Section 7(f) of the Representation of the People Act, 1951 could be attached to him; that the said Shri Kesar Singh was qualified to stand as a candidate in the election and his nomination had been improperly and illegally rejected.
5. That the second ground of rejection of nomination paper of Shri Kesar Singh as given by the Returning Officer was that his number of the electoral roll was not correctly given in the nomination paper. This is illegal and improper as the identity of the candidate was never in doubt and that in the nomination paper his name was shown at No. 11 part 108 of the electoral roll of the Constituency which is correct. The name of Shri Kesar Singh does occur at No. 11 of Part 108 of the electoral roll of the Mavli Assembly constituency.'
The respondent filed his written statement on July, 2, 1962, in which, in reply to paragraph 4, it was inter alia, pleaded that the Tribunal had no jurisdiction to go into the question as to whether the dismissal of Kesar Singh was or was not ordered on the ground of corruption, or disloyalty to the State, in view of the provisions of Section 33(3). In reply to paragraph 5, it was stated that it was wrong to say that nomination paper of Kesar Singb was rejected by the Returning Officer because his electoral roll number was not correctly given in it but that the nomination paper was rejected because the name of the constituency in which he was enrolled as an elector was not mentioned in the 'form'. The following issues were framed by the Tribunal on the date on which the written statement was filed, namely, on July 2, 1962, and July 17, 1962 was fixed for recording the evidence of the petitioner,--
'1. Whether Shri Keshar Singh was not dismissed on account of corruption or disloyalty?
2. Whether it was not necessary to mention in the nomination paper the name of the Constituency to which the candidate belonged?
3. (a) Even if Shri Kesar Singh was not dismissed on account of corruption or disloyalty, still was it necessary for Keshar Singh to have filed along with nomination paper a certificate to the effect that he had not been dismissed for corruption of disloyalty to the State?
(b) If it was so necessary, what is the effect?
4. Whether it was necessary for the proposer to have mentioned in the nomination paper the name of the Constituency to which he belonged?
5. Whether the defect mentioned in issue No. 4 can be ultilised to uphold the order of the Returning Officer rejecting the nomination paper, although the Returning Officer has not based his order on the said defect?
6. What is the relief?.'
On July 17, the petitioner moved an application for the amendment of the petition. The application was based on two grounds, firstly, that the amendments sought were only amplifications of the grounds already taken and, secondly, that they were by way of a correction of techincal mistakes which has crept in the petition on account of a wrong reading of the order of the Returning Officer rejecting the nomination paper of Kesar Singh. The following amendments were sought,--
'1. In Para 4 of the election petition after 'is illegal on the ground that the said Kesar Singh' and before 'was never dismissed' insert the following :--
'was not dismissed but was only removed and as such Section 33(3) of the Representation of People Act, 1951 does not apply and further if it be held that he
2. In Para 5 of the election petition the following clause should be removed :
'his number of the electoral roll was not correctly'
and instead the following should be substituted-
'the name of the constituency of which the electoral roll number and part formed part was not.'
3. At the end of this para the following be inserted :-- 'The electoral roll of Mavli Constituency was with the Returning Officer and he should have checked the number and part with the least trouble and delay and got corrected the nomination paper, Shri Kesar Singh was never pointed out the omission of the name of the constituency in the nomination paper at the time of the presentation. At scrutiny this point was not raised either by the candidate or by the Returning Officer and the attention of Kesar Singh was not drawn to this otherwise he could have requested the Returning Officer to check it with the electoral roll of the Mavli constituency which was with him.' The application was opposed on behalf of the respondent. The Tribunal recorded the evidence of the petitioner on the same day without passing an order on the amendment application. The respondent did not lead any evidence in rebuttal. After hearing the arguments, the Tribunal delivered its judgment rejecting the election petition. By the same judgment, the amendment application was also rejected with the following observations,--'Before finally parting with the case I should like to mention that during the course of the trial. an application for amendment was moved by the petitioner. The purpose behind the said application was to plead specifically that Shri Kesar Singh was not dismissed from service but was merely removed from service. Another point which the petitioner desired to bring in his petition was that the non-mentioning of the constituency in columns 2 and 5 of the nomination paper was not a defect of a substantial character. Since I have discussed both these points and found against the petitioner, I do not think, the amendment if allowed, is going to benefit the case of the petitioner in any way. I, therefore, reject the application for amendment.'
The attention of the Tribunal was not drawn to the decision of their Lordships of the Supreme Court in Harish Chandra v. Triloki Singh, (S) AIR 1957 SC 444 (Paras 21 and 23). It was held in that case that in view of Section 90(2) of the Act, the provisions of Order 6, Rule 17, Civil Procedure Code, are only applicable subject to the provisions of the Act and the Rules and there being no power conferred on the Tribunal to extend the period of limitation prescribed, an order of amendment permitting a new ground to be raised beyond the time limited for filing an election petition must contravene those provisions and is in consequence beyond the ambit of the authority of Section 90(2) of the Act.
The Tribunal is, however, not precluded from allowing the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition for which specific provision has been made under Section 90 Sub-clause (5). The present petition was not based on the commission of any corrupt practice. No amendment of it was permissible beyond the period of limitation prescribed under Section 81(1) of the Act so as to incorporate a new ground even to 'rectify a position taken in the petition' on account of the so called misreading of the order of the Returning Officer. We accordingly hold that no amendment of the petition was permissible in pursuance of the petitioner's application dated July 17, 1962, permitting a new ground to be raised. We shall, accordingly, confine ourselves to the grounds taken in the petition as originally filed.
3. Kesar Singh was dismissed from service by an order of the Superintendent of Police, Udaipur dated May 29, 1961 (Ex. 3) and five years had not elapsed since then. The disqualification prescribed under Section 7(f) therefore continued to subsist. In paragraph 4 of the petition it was alleged that the dismissal of Kesar Singh was not based on the finding of corruption, or disloyalty to the State and therefore Section 7(f) was not applicable. Further, it was contended on his behalf before us that the provision contained in Section 33(3) is only applicable to corruption, or disloyalty to the State. We are unable to accept this contention. In our opinion such a contention is completely ruled out by Section 33(3) which runs as follows,--
'33. (3) Where the candidate is a person who, having held any office referred to in Clause (f) of Section 7, has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.'
Under the above provision, an exclusive jurisdiction has been conferred on the Election Commission to determine whether the dismissal was for corruption, or disloyalty to State. So in every case where a government servant, who has been dismissed from service, wishes to contest an election to the Parliament or the Assembly, it is incumbent on him to obtain a certificate from the Election Commission to the effect that he has not been dismissed for corruption, or disloyalty to the State. Under Section 9(3) the finding of the Election Commission on the point is conclusive and cannot be challenged by an election petition. In this connection we may only refer to the decision of their Lordships of the Supreme Court in S. M. Banerji v. Sri Krishna Agarwal, 22 Ele LR 64 at p. 71 : (AIR 1960 SC 368 at p. 371).
4. Next, it was argued that the words contained in paragraph 4 of the petition to the effect that 'Shri Kesar Singh was never dismissed for corruption or disloyalty to the State and that no disqualification under Section 7(f) of the Representation of the People Act, 1951 could be attached to him', should be interpreted as meaning that Shri Kesar Singh was never dismissed from service and that even if he was not dismissed he was not dismissed for corruption or disloyalty to the State. We are unable to think that any such interpretation can be put on this paragraph of the petition that the order terminating the services of Shri Kesar Singh amounted to removal from service and not to dismissal. It is clear from the words used by the petitioner, who is an advocate and not a layman, that the fact that Kesar Singh was dismissed from service was not challenged in the petition. When the petitioner realised that he had not taken the plea that Kesar Singh was removed from service and not dismissed, he moved an application for amendment of the petition on July, 17, 1962 to which we have made a reference earlier.
5. It may be mentioned here that under charges Nos. (4) and (5) framed against him in the departmental enquiry, Kesar Singh was, inter alia, charged with creating hatred and disaffection against the Government of Rajasthan and these charges were found proved by the Superintendent of Police. The Tribunal, however, went into the question whether the dismissal was for disloyalty to the State and held that this was not so. This it could not do as the Election Commission alone had jurisdiction to go into the question for reasons which have been given above.
6. But even if we were to construe paragraph 4 of the election petition to mean that the fact of dismissal was also challenged by the petitioner, we find no substance in the argument that the order of the Superintendent of Police dated May 29, 1961 could be construed as an order of removal and not of dismissal. The order is in Hindi and under it the punishment of 'rajya seva se mukt karna' was imposed. The question which arises is whether the punishment was of dismissal or removal.
7. Removal, dismissal and discharge from service, as well as termination of service, mean one and the same thing in plain English. It was only under the Civil Services (Classification, Control and Appeal) Rules framed by the then Government of India under Section 96B of the Government of India Act, 1919, that two forms of termination from service were prescribed by way of penalty namely,--
'Removal from Civil Service which does not disqualify from future employment,' and
'Dismissal from Civil Service which ordinarily disqualifies from future employment.'
These two punishments came to be designated as 'removal' and 'dismissal' respectively and the two terms acquired special and distinct connotations for this reason in those parts of the country where the Civil Services (Classification, Control and Appeal) Rules were in force.
8. As the use of Hindi for administrative purposes is comparatively recent, there are no Hindi words as yet which have by long user acquired the same connotation as the words 'removal' and 'dismissal'. Different Hindi words are used by different officers for 'removal' and 'dismissal.' In order to find out whether the Superintendent of Police passed an order of dismissal or one of removal only on May 29, 1961, we have, therefore, to refer to his earlier orders in the departmental inquiry. It may be mentioned here that the departmental inquiry against Shri Kesar Singh was initiated by Shri Udai Singh, Superintendent of Police. Udaipur, and it was the same officer who passed subsequent orders in it including the last order dated May 29, 1961. The entire file of the departmental Inquiry was referred to by the Tribunal, with the consent of the parties, without formal proof.
Shri Udai Singh recorded his tentative findings in Ex. A1 dated February 11, 1961. In that order he proposed the punishment of 'barkhastgi' and directed that a copy of the tentative findings be served on Shri Kesar Singh and he be asked to show cause why the punishment of 'dismissal' should not be imposed on him. The word 'dismiss' was expressly used in that Hindi order. A show cause notice was then served by Shri Udaisingh in English on the same day. In that notice also, it was expressly mentioned by Shri Udai Singh that he had provisionally decided to impose the punishment of dismissal on Shri Kesar Singh. In his final order Ex. 3 dated May 29, 1961 imposing the punishment, Shri Udai Singh mentioned that notice had been served on Shri Kesar Singh asking him to show cause why 'Use kyon na Police Force se Alehada Kiya Jave'. It is thus clear from the context that Shri Udai Singh used the expression 'alehada karna' as meaning 'dismissal'.
9. All the charges framed against Shri Kesar Singh were found proved by the Superintendent of Police in his final order as well. A perusal of that order goes to show that he saw no reason not to impose the punishment which he had proposed in his show cause notice. The penultimate paragraph of his order may be translated as follows,--
'In his reply the charged officer has laid stress on irrelevant matters which have no bearing on the charge and which do not help him in any way in absolving him.'
The expression used by Shri Udai Singh in the operative part of his order is 'seva se mukt kar diya jave'. We have no doubt that the Superintendent of Police used this expression for awarding the punishment of dismissal and that he did not award the punishment of removal. Several English-Hindi dictionaries were produced before us by the learned counsel for the parties. The expression 'seva se mukt karna' has not been shown in any of them as having the same meaning as the English expression 'removal from service.' On the other hand, in the 'Dictionary of Administrative and Legal Terras' by Shri Sukhbir Singh Gehlot. Officer on Special Duty in the Translation Section of the law Department of the Government of Rajasthan, which we understand, is in common use in the administrative office of the State Government, the expression 'seva mukt karna' is shown as one of the equivalents of the English word 'dismiss'. But we prefer to base our decision on an interpretation of the final order of the Superintendent of Police in the light of his previous order in the same departmental equivalents of 'dismissal' and 'removal' in different dictionaries and, as we have already said above, no particular Hindi expression has as yet acquired the same connotation as either the word dismissal or the word removal.
10. We now come to the ground contained in paragraph 5 of the petition which we have already reproduced above. In it the petitioner pleaded that the nomination paper of Shri Kesar Singh was wrongly rejected by the Returning Officer on the ground that the name of the constituency in which the candidate was enrolled as an elector was not mentioned in the nomination paper even though the defect was pointed out by him at the time of its presentation. The petitioner applied for an amendment of paragraph 5 to bring out clearly the ground on which the nomination paper was rejected by the Returning Officer by substituting the words 'the name of the constituency of which the electoral roll number and part formed part was not given' for the words 'his number of electroal roll was not correctly' given. This amendment was, however, unnecessary as in view of the definition of the expression 'electoral roll number given in Rule 2 (1) (f) of the Conduct of Election Rules, 1961, the electoral roll number of a person mean not only the serial number of the entry in the electoral roll in respect of that person but also the serial number of the part of the electoral roll in which such entry occurs and the name of the constituency to which the electoral roll relates.
11. The following is the relevant extract from the nomination paper,--
Election to the Legislative Assembly of Rajasthan. I hereby nominate Shri Kesar Singh Dodiya Agriculturist as a candidate for election from the Mavli (No. 105) Assembly constituency.
1. Full name of proposer---Jaisingh son of Daulat Singh Rajpur resident of Rathana.
2. Electoral roll number of proposer--(28) (Part 108).
3. Name of candidate's father -- Shri Roop. Singhji Dodiya.
4. Full postal address of candidate-Post Palana Khurd via Mavli Junction.
5. Electoral roll number of candidate (11) (Part 108).
Sd/- Jai Singh Signature of proposer.
It would thus appear that the name of the constituency, in which Shri Kesar Singh was enrolled as an elector was not given in the nomination paper. Nor is there any thing in the nomination paper from which the name of that constituency could have been inferred. Shri Kesar Singh appeared as a withess and stated that he was a resident of village Rathna and was an elector of the Mavli constituency It is noteworthy that the full postal address of the candidate was also not given in the nomination paper inasmuch as the village in which he was residing was not mentioned. All that was mentioned was the name of the post-office and the railway station through which the mail was to be carried. The railway stations next to Mavli junction do not, however, all lie in the Mavli constituency. For example, the next railway station from Mavli junction on the Mavli-Bari Sadri line is Vallabhnagar, which is in the Bhopal Sagar Assembly constituency. The fact that the route by which the mail was to be carried was shown as via Mavli Junction, could not therefore lead to the inference that the candidate was enrolled as an elector in the Mavli constituency.
The name of the post-office could also not help the Returning Officer in locating the name of the candidate in any electoral roll. It is mentioned in the Returning Officer's order of rejection of the nomination paper dated January 22, 1962 that the defect about the omission of the name of the constituency in which the candidate was enrolled as an elector, was pointed out by him at the time of the presentation of the nomination paper, but it was not rectified. But there is nothing on the record to show that the entry relating to the name of the candidate in the electoral roll was pointed out to the Returning Officer either at the time of the presentation or at the time of the scrutiny of the nomination paper.
12. We may here refer to the statements of petitioner Sunder Lal P. W. 1 and candidate Kesar Singh P. W. 2 both of whom alleged that no objection was taken on behalf of any of the candidates that Kesar Singh's nomination paper was defective. This statement is patently false as the order of the Returning Officer shows that Shri Mohan Lal Shimal, authorised agent of Shri Janardan Rai Congress candidate, raised objections against the validity of the nomination paper at the time of the scrutiny.
13. We now proceed to consider whether the omission of the name of the constituency in which the candidate was enrolled as an elector, is a defect of a substantial character within the meaning of Section 36(4) of the Act. We may here refer to the relevant provisions of Sections 33 and 36 of the Act which run as follows,--
'33. (4) 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:
Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
36. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds :--
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950.'
The result of these provisions is that the proposer and the candidate are expected to file the nomination paper complete in all respects, in accordance with the prescribed form, but even if there is some defect in regard to the names or the electoral roll numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and, if necessary, to allow them to be corrected, in order to bring them in conformity with the corresponding entries in the electoral roll, ignoring any clerical or printing error. Thereafter, on scrutiny, the returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of Section 33 subject, however, to the requirement that no nomination paper shall be rejected on the ground of any defect which is not of a substantial character.
14. It is an essential qualification of a candidate for election to a State Legislature that he should be enrolled as an elector in some Assembly constituency in that State. Further, it is essential that the proposer of the candidate should be enrolled as an elector in the constituency for election for which he proposes the name of the candidate. The main purpose of the above provisions for the filing of nomination papers is that the returning officer should be able to check readily that the proposer and the candidate fulfil the prescribed requirements.
15. 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 that they may be able to ascertain whether he fulfills the qualifications laid down by the law and does not suffer from any disqualification. It is for this purpose that Section 35 requires that a notice of the nomination shall be affixed by the returning officer in some conspicuous place in his office. The particulars to be given in this notice are contained in form A prescribed under Rule 7 of the Conduct of Election Rules, 1961. A perusal of that form shows that all the particulars required to be given in the nomination form about the candidate and his proposer are required to be given in the notice as well.
16. If both the objects mentioned above are fulfilled, the nomination paper cannot be said to suffer from a defect of a substantial character.
17. Applying this test to the nomination paper of Shri Kesar Singh we find that neither the returning officer was or could be satisfied from the particulars given in it that the candidate was enrolled as an elector in some Assembly constituency in the State, nor were the particulars sufficient to enable the other candidates to identify Kesar Singh and make enquiries as to whether he possessed the required qualifications or suffered from 'any disqualification. As has already been mentioned above, in column No. 5 of the nomination paper, the full postal address of the candidate was not given. Only the name of the post office serving his village was specified, but the name of the village was not given. The candidate could not therefore be identified even by the address given in column No. 5. The nomination paper thus suffered from a defect of a substantial character.
18. On behalf of the appellant it was pointed out that if Shri Kesar Singh had been an elector of a different constituency, a copy of the electoral roll of that constituency, or a certified copy of the relevant entries in that roll, would have been filed with the nomination paper, or produced before the returning officer at the time of the scrutiny, as required by Section 33(5), and that as this was not done, it should have been inferred that the candidate was an elector of the Mavli constituency. We are unable to accept this argument.
There can be no presumption that a candidate whose name is proposed for election, is an elector. Nor can it be presumed that he is an elector in an Assembly constituency of the concerned State. The very object of scrutiny of nomination papers is that the returning officer should satisfy himself whether the candidate possesses the qualifications prescribed under the Constitution and the Act. This object would be frustrated if the returing officer were to presume that the candidate possesses the necessary qualifications. It is thus clear that the returning officer would not draw any presumption in the present case that Kesar Singh was an elector of the Mavli constituency.
19. We now proceed to refer to the decisions which were cited before us by the Learned counsel for, the parties. In Rattan Anmel Singh v. Ch. Atma Ram, AIR 1954 SC 510 : 10 Ele LR 41 the proposer and the seconder had put their thumb marks on the nomination paper proposing the candidature of Atma Ram, instead of signatures, but the thumb marks were not attested as required by law. The returning officer rejected the nomination paper on this ground. Atma Ram then riled an election petition challenging the elections of Rattan Anmol Singh and Ram Prakash who were the successful candidates. The Election Tribunal set aside the elections. On an appeal by the successful candidates, their Lordships of the Supreme Court held that want of due attestation was a defect of a substantial character and was not merely a technical defect and that the returning officer rightly rejected the nomination paper. They observed,--
'The substance of the matter here is the satisfaction of the returning officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the returning officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality.''
20. In Karnail Singh v. Election Tribunal Hissar, 10 Ele LR 189 (SC) the full facts of which are reported in Ajayab Singh v. Karnail Singh, 6 Ele LR 368 (Ele Tri. Hissar) the constituency for which the name of one Sher Singh was proposed was composed of two towns Sirsa and Dabwali which were sub-divided into wards. The electoral roll was not divided into parts. In the nomination paper, the name of the constituency, 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 was not given, At the time of the scrutiny, the candidate himself pointed out to the returning officer the entry of his name in the, electoral roll. The returning officer, nevertheless, rejected the nomination paper. On an election petition, it was held by the Tribunal that the nomination paper of Sher Singh was wrongly rejected. It was pointed out by the Tribunal that in ward No. 1 of Dabwali the number of voters did not go beyond 800 and that it was only in Sirsa town that serial number 1400 appeared and that consequently there could not be any difficulty whatsoever in tracing out the entry in the electoral roll against serial number 1400 of ward No. 1 in the constituency.
Moreover, Sher Singh himself having pointed out the entry of his name in the electoral roll, the returning officer was satisfied that he was enrolled as a voter in the electoral roll of the constituency. In these circumstances, the Tribunal held that the defect in the nomination paper was not of a substantial character. This decision was upheld by the Supreme Court in a brief judgment the material portion of which runs as follows,--
'The Tribunal in this case held that the nomination paper of Sher Singh was wrongly rejected on the ground that column No. 8 in the nomination form was not duly filled up. The only defect pointed out was that the name of the sub-division was not stated therein, but on the evidence it was quite clear 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. The defect, in these circumstances, was a technical one and the Tribunal was perfectly right in holding that the defect was not of a substantial character and that the nomination paper should not have been rejected.'
21. In Brijendralal v. Jwalaprasad, AIR 1960 SC 1049 : 22 Ele LR 366 the omission to specify the age of a candidate in the nomination paper was held to be a defect of a substantial character. It was observed that in such a case the returning officer was not bound to hold an inquiry under Section 36(2)(a) into the age of the candidate and that such an inquiry could appropriately be held in a case where the nomination paper showed the age of the candidate as above 25 but an objection had been raised that in fact he was below 25 years and as such incompetent to stand for election under Article 173 of Constitution, in other words, the impugned nomination had complied with the provisions of Section 33 and as such did not fall under Section 36(2)(b) at all, but, nevertheless, the validity of the nomination could be challenged on the ground that in fact Article 173 was not complied with. The age of the candidate was shown as 48 years in the electoral roll and it was contended before their Lordships that the returning officer should have looked at the electoral roll and satisfied himself that the candidate was over 25 years of age. Their Lordships rejected the contention with the following observations,--
'As we have already observed, in cases of non-compliance with Section 33 which attract the provisions of Section 36(2)(b) there would be no occasion to hold an enquiry under Section 36(2)(a). The only point to consider in such cases would be whether the defects in question are substantial or not and so the argument that the Returning Officer could have easily verified the age of respondent 5 is not really material in construing Section 36(4)
22. In Rangilal v. Dahu Sao, AIR 1962 SC 1248 the full facts of which are given in the High Court judgment in Dahu Sao v. Ranglal Chaudhary, AIR 1960 Pat 371 : 22 Ele LR 299 neither the name of the constituency in the electoral roll oi which the names of the proposers and candidate were to be found, nor the number of its part, was mentioned. But in column No. 2, besides the serial number, the house number of the proposer was shown and the words 'Naya Bazar, Dhanbad' were mentioned after the house number, In Column No. 5, however, only the serial number and the house number of the candidate were given but the location of the house was not shown as was done in the case of the proposer. The full postal address of the candidate was given in column No. 4 as 'Naya Bazar, Dhanbad'.
The electoral roll of the Dhanbad constituency where the names of the proposer and the candidate were entered, was not given any part number. It was divided municipal ward-wise and ward numbers were given. Strictly speaking, therefore, non-mention of the part number was not a defect in the nomination papers for in the absence of the part number in the electoral roll a proposer was left to his discretion either not to give any distinct marks of the portion of the electoral roll where the names of the proposer and the candidate were to be found entered or to give such distinctive marks as he might think fit and proper. The proposer had given the address of his house in column No. 2 and had given the address of the candidate in column No. 4. From the entries in these two columns, it was clear that the names of the proposer and the candidate were to be found at the serial numbers mentioned in columns Nos. 2 and 5 in the electoral roll of the Dhanbad constituency relating to the Naya Bazar area. The returning officer, apparently, had no difficulty in locating their names in the electoral roll of the Dhanbad constituency. In these circumstances, their Lordships held that the above defect in the nomination paper was not of a substantial character.
23. In Ramayan Shukla v. Rajendra Prasad Singh, 16 Ele LR 491 : (AIR 1959 Pat 419), the serial numbers of the proposer and the candidate in the roll were given but neither the name of the constituency nor any further particulars were given which could enable the returning officer to identify the entries and to ascertain the constituency to which the proposer and the candidate belonged. The electoral roll was not divided into parts. The relevant entries relating to the proposer and the candidate in the electoral roll were not pointed out even at the time of the scrutiny. In these circumstances, it was held that the defect in the nomination paper was of a substantial character within the meaning of Section 36(4). It was observed that where the non-compliance of the rules is patent on the face of the nonination paper, the returning officer is not bound to make an inquiry under Section 36(2) in the absence of any prayer on behalf of the candidate or his representative for an opportunity to prove any thing in their favour.
24. In Rup Lal v. Jugraj Singh, AIR 1959 Punj 130: 15 Ele LR 484 two nomination papers proposing the candidature of Rup Lal by Dawal Chand and of Sukh Devsingh by Kabul Chand S/o Khazanchand were rejected. The electoral roll number, of Rawal Chand was given as serial number 7852 in ward No. 8 of Moga town. The electoral roll number of Kabul Chand was given as serial number 7853 in part 4 of Moga Assembly constituency. The name of Rawal Chand entered at serial number 7852 in the electoral roll was, however, scored out. At number 7853 the name of one Kawal Chand was shown originally but that too was scored out. The fact however was that the name of Rawal Chand was entered at serial number 1866 as Rawal Ram son of Khazan, labourer, and the name of Kabul Chand was entered at serial number 16,970 as Kabul son of Khazan. The Tribunal, as well as the learned Judges of the High Court, were satisfied that it was not shown to the returning officer during the entire period fixed for scrutiny that the two proposers were shown under other serial numbers in the electoral roll. In these circumstances, it wa3 held that the defect in the nomination papers was of a substantial character and the returning officer rightly rejected them. Their Lordships made following observations,--
'The proviso to Sub-section (4) of Section 33 makes it clear that the correspondence between the names and electoral roll numbers as entered in the nomination paper with those entered in the electoral rolls need not meticulously be exact and any clerical or technical error would be permitted to be corrected and any clerical or printing error shall be overlooked.
All the same there should not be so much divergence between the entries in the nomination paper and the relevant entries in the electoral rolls that the Returning Officer is left in doubt as to whether they relate to is left in doubt as to whether they relate to the same person. If there is any such doubt and is not resolved at the scrutiny stage, the Returning officer has no alternative but to reject the nomination. This appears to be the true cumulative effect of all the relevant provisions of the Act, and also finds support in authority.'
25. In Netram v. Lakshman Prasad, AIR 1960 Madh Pra 368 the only defect in the nomination papers was that the serial number of the part of the electoral roll in which the name of the candidate appeared in one case, and the names of the proposer and candidate in the other case, were not given. It was held that the defect was of a substantial character. It was observed that unless the serial number of the part of an electoral roll is known, it would not be possible for a returning officer to identify the proposer or the candidate concerned unless he examined all the part of the electoral and that such a scrutiny would necessarily take a long time which is not expected of him in view of the fact that under Section 36(5) of the Act he is bound to hold the scrutiny on the date appointed in that behalf and is precluded from adjourning the proceedings except when compelled by riot or open violence or by causes beyond his control.
26. It would thus be seen that the view which we have taken in the present case is consistent with the view taken in the above decisions.
27. For reasons which have been given above, we confirm the decision of the Tribunal and dismiss the appeal with costs against the contesting petitioner-respondent. We assess counsel's fee at Rs. 250/- Miscellaneous Appeal No. 109 of 1962.
28. Further, we direct that the substance of the decision shall be communicated to the Election Commission and the Speaker of the Rajasthan Legislative Assembly forthwith, and an authenticated copy of this judgment shall be sent to the Election Commission as required by Section 116A(6).