1. In this petition the petitioner prays for the issue of a writ of certiorari quashing the order of the Election Tribunal of North Arcot at, Vellorc made in Election Petition No. 56 of 1952 on 5-11-1952. By that order the Election Tribunal dismissed the election petition which had been filed by the petitioner to set aside the election of the second respondent to the House of the People from the Krishnagiri Parliamentary Constituency.
2. The necessary facts are not in dispute. The petitioner was a candidate for election to the House of the People from the Krishnagiri Parliamentary Constituency. He filed his nomination paper on 21-11-1951 in the prescribed form. As against column 7 in the form, namely, 'constituency in the electoral roll of which the name of the candidate is included', he made the following entry:
' 'Graduates' Constituency (Salem District Dharmpuri Taluk Laligani Panchayat)'.
3. Column 8 is for the serial number of the candidate in the Electoral Roll of the constituency in which his name is included. The petitioner did not give any serial number. On the date on which the petitioner filed his nomination paper his name was not included in the roll of any Parliamentary constituency. As a result of an application made by him to the Election Commission on 22-11-1951 his name was eventually included in the Parliamentary Roll of the Salem Constituency on 27-11-1951. On 28-11-1951 the date fixed for the scrutiny of the nomination papers, an objection was taken by the second respondent that the nomination of the petitioner was not valid. The Returning Officer upheld the objection and rejected it on the ground that the nomination paper was incomplete for want of the particulars to be furnished against columns 7 and 8 and the omission of these particulars was a serious defect of a substantial character because the petitioner could not have filled up those particulars on the date of the nomination. He purported to reject the nomination under Section 36(2)(d), Representation of the People Act, 1951.
The election was duly held on 8-1-1952 without the petitioner; and the second respondent was declared duly returned. The return was published on 20-1-1952. Thereupon the petitioner filed an election petition praying that the election of the second respondent may be set aside and declared void on the ground that the petitioner's nomination had been improperly and illegally rejected and such rejection had materially affected the result of the election. The Election Tribunal after enquiry, held that the rejection of the petitioner's nomination was in accordance with law and therefore the election was not liable to be set aside. The tribunal found that the petitioner was not qualified to be nominated on the date of the nomination as he was not an elector as defined in the Act on that date. The Tribunal further held that the omission on the part of the petitioner to complete the nomination paper as required by the Act was a good ground for the rejection of the nomination paper by the Returning Officer. The Election petition was therefore dismissed.
4. Before dealing with the contentions laised before us it would be useful to set out the relevant provisions oC the Representation of the People Act, 1951, which were referred to as having a material bearing on the question to be decided, namely, whether the nomination of the petitioner was properly rejected.
'2(1)(e). ''elector' in relation to a Constituency, means a person whose name is for the time being entered in the electrol roll of that Constituency.
4. A person shall not be qualified to be chosento fill a seat in the House of the People, otherthan' a seat allotted to the State of Jammu andKashmir or to the Andaman and Nicobar Islands,unless--
(d) in the case of any other seat, he is an elector for any Parliamentary Constituency.
32. Nomination of candidates for election --Any person may be nominated as a candidate for election to fill a seat in any Constituency if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act.
33(1). On or before the date appointed under Clause (a) of Section 30 each candidate shall either in person or by his proposer or seconder, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in Sub-section (2) as proposer and seconder.
(5) 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 and seconder as entered in the nomination paper are the same as those entered in the electoral rolls; Provided that the Returning Officer may -
(a) permit any clerical 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 ellectoral rolls; and
(b) where necessary, direct that any clerical or printing error in the said entries shall be overlooked.
(6) If at the time of the presentation of the nomination paper the Returning Officer finds that the name of the candidate is not registered in the electoral roll of the Constituency for which he is the Returning Officer, he shall for the purposes of Sub-section (5) require the person presenting the nomination paper to produce either a copy of the electoral roll in which the name of the candidate is included or a certified copy of the relevant entries in such roll.
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 enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds: (a) that the candidate is not qualified to be chosen to fill the seat under the Constitution or this Act; or
(d) that there has been any failure to comply with any of the provisions of Section 33 or 34. (4) The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character.
(7) For the purpose of this section--(a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe a nomination paper, as the case may be, unless it is proved that the candidate is disqualified under the Constitution or this Act, or that the proposer or seconder, as the case may be, is disqualified under Sub-section (2) Of Section 33.'
5. The first contention of learned counsel for the petitioner was that as the petitioner's name has been entered in the electoral roll of a Parliamentary constituency by the date of the scrutiny of the nomination paper, he was duly qualified to stand for election and his nomination should not have been rejected on the ground that he was not qualified. This argument proceeded on the assumption that the petitioner's name was not on the electoral roll of any constituency on the date of the filing of the nomination. Support for this contention was sought from the expression 'whose name is for the time being entered' which occurs in the definition of 'elector' in Section 2 and from the words 'he is an elector' in Section 4(d) of the Act, Reliance was also placed on the language of Clause (a) of Sub-section (2) of Section 36, namely, 'that the candidate is not qualified to be chosen'. There is no substance in this contention. What we are now concerned with is the validity of the nomination of the petitioner. Section 32 is the material provision, and that lays down that the person who may be nominated as a candidate for election to fill a place in any constituency must be qualified to be chosen to fill that seat.
Obviously, to find out if any person can be validly nominated it is necessary to find out if he is qualified to be nominated, qualified obviously on the date of the nomination and not subsequently or at some time prior. The tense of the verb 'is qualified' must needs refer to the time of the nomination. The logical result of accepting the petitioner's contention would lead us to this position, namely, that a person who is not qualified or is disqualified to be chosen on the date of the nomination can be validly nominated because of the possibility that he may become qualified or he may get rid of the disqualification subsequently before the date of the poll. A similar contention was negatived in England in -- 'Harford v. Lynsteey', 1899 1 Q. B. 852 (A). In that case one of the candidates for election to the office of councillor for a ward in a borough was at the time of his nomination interested in a contract with the Corporation of the Borough. An objection was raised to his nomination on the ground that he was by reason of his interest in the contract, disqualified for election. It was held that he was disqualified for nomination nonetheless because he might, by assigning his interest in the contract, have got rid of his disqualification before the date of the poll.
The following observations of Wright J., are apposite:
'In the absence of any guide, we think it safest to hold that in cases of election under the Municipal Corporations Acts a person, who at the time of nomination is disqualified for election in the manner in which this petitioner was disqualified, is disqualified also for nomination. The nomination is for this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of Section 36. A different construction might produce much confusion. On the nomination day no one could know whether the persons nominated will at the poll be effective candidates or not. It is true that in the case put the disqualification may be removed before the election is completed; but what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll? Will votes given before removal of the disqualification be valid? If not, how is the number of them to be ascertained? It seems to us unreasonable to hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons we think that this petitioner was disqualified for nomination or election.'
Mr. Ramachandran, learned counsel for the petitioner relied on the further observation, which follows, namely,
'It is not necessary to say whether the same conclusion would follow if the disqualification was such as must necessarily cease at a time between nomination and poll as, for instance, if a person were nominated on the last day of his minority for a poll to take place on a future day.'
We do not think that this observation helps him in any way. For one thing, the learned Judge did not purport to decide the question which did not arise before him. Moreover, the disqualification in the present case cannot be said to be one which 'must necessarily cease' at a time between nomination and poll.
6. The decision reported in -- 'Maharaja Sir Mahindra Chandra Nandy v. Pravash Chandar Mitter, Hammond's Election Cases India and Burma', 1920-35 page 545, related to an election to the Bengal Legislative Council. The date fixed for the presentation of the nomination papers was 8-10-1923. On that day the Maharajah who was the petitioner in the election petition was a member in the Council of State and as such was under a disqualification to stand for election to the Bengal Council. The Maharajah purported to resign his seat on the. Council of State by a telegram and a letter addressed to the Viceroy. On 10th October his. resignation was formally accepted by the Viceroy. 11th October was the date fixed for the scrutiny of the nomination papers by the Returning Officer. An objection was raised on behalf of the contesting candidate that the Maharajah was not eligible for election on the date of filing the nomination papers, i.e. 8-10-1923, as his resignation, had not been accepted by the Governor-General. The Maharajah's nomination was rejected though on the date of the scrutiny the Maharaja was not disqualified. The other candidate was declared elected and the Maharajah filed an election, petition. The main point for determination was whether the question of the eligibility of the Maharajah was to be decided with reference to the date of presentation of his nomination paper or to the date of scrutiny by the Returning Officer. The relevant rule was as follows:
'Any person may be nominated as a candidate for election in any constituency for which he is eligible for election under these rules.'
It was held by the Election Tribunal that the rejection of the nomination was proper. The following passage in their judgment, in our opinion, correctly sums up the law:
'We are of opinion that under the provisions of R. 11 the date with reference to which the question of the eligibility of a candidate for election is to be determined is the date fixed by Government for the nomination, and if on that date a candidate is not eligible, his nomination paper must be refused. The object of the scrutiny by the Returning Officer is to see whether the nomination was valid on the date on which it was made. The nomination is an integral part of the election and it cannot be supposed that a person who is ineligible on the date of the nomination, can in the interval between the nomination and the scrutiny, acquire new rights or that the acquisition of such rights would be sufficient to do away with his pre-existing disqualification.'
We therefore hold that as the petitioner was not on the electoral roll of any Parliamentary Constituency on the date of presentation of the nomination paper, he was not qualified to stand for election to the House of People.
7. The next contention of Mr. Ramachandran was that even assuming that the qualification must exist on the date of the nomination, In this case the inclusion of the petitioner's name in the roll on 27-11-1951 must be deemed to relate back to a date earlier than the date of presentation of the nomination paper. According to him, the petitioner's name must be presumed to have been always there in the electoral roll. This contention rested entirely on Section 25, Representation of the People Act, 1950 read with Rule 20 (2) & (3), Representation of the People (Preparation of Electoral Rolls) Rules, 1950, Section 25 runs thus:
'Notwithstanding anything contained in Ss. 23 and 24:
(a) the Election Commission may, at any time, for reasons to be recorded in writing, direct the revision in the prescribed manner of the electoral roll of any constituency or part of a constituency, and when a list containing any additions to, omissions from or alteration in the electoral roll as a result of such revision has been finally published in the prescribed manner, the electoral roll shall be deemed to have been revised accordingly;
(b) the Electoral Registration Officer for a constituency on application made to him for the correction of an existing entry in the electoral roll of the constituncy for the tune being in force, shall if he is satisefied after such enquiry as he thinks fit that the entry relates to the applicant and is erroneous or defective in any particular, amend, or cause the roll to be amended, accordingly.'
8. Rule 20 apparently made in exercise of the power conferred by Section 28 Sub-section 2(h) of the Act, is in the following terms;...
20(2) Any person whose name is not included in the electoral roll of a constituency for the time being in force and who is entitled to be registered therein may, at any time after the roll is finally published and before the constituency is called upon to elect, apply to the Election Commission for an amendment of the roll by the inclusion of his name therein, and if the Election Commission is satisfied after such notice and such enquiry as it thinks fit, that the applicant is entitled to be registered therein, the Election Commission may direct the amendment of the electoral roll by inclusion therein of an entry relating to the applicant; Provided that an application under this sub-rule shall not be entertained if it is not accompanied by a fee of rupees fifty, which shall in no case be refunded.
(3) When any list is republishcd under Sub-rule (1) or a direction is issued under Sub-rule (2), the electoral roll to which such list or direction relates shall be deemed to have been revised accordingly.'
The argument of the petitioner's learned counsel was that the amendment or revision of the roll by the addition or inclusion of his name took effect retrospectively from the date of the final publication of the roll, which certainly was before the date of the nomination. We see nothing in the language of either Section 25 or Rule 20 to support this argument. No retrospective operation expressly or by necessary intendment is even indicated. All that the section provides is that when there are amendments by way of additions to, or ommissions from or alterations in the electoral roll and there is a list published containing them, it is not necessary that the electoral roll should be reprinted and republished with the additions, omissions and alterations. The reason is obvious. It would be very expensive to do so after each amendment.
The section therefore provides that the electoral roll shall be deemed to have been published as revised when a list of the additions, omissions or alterations has been finally published. Apart from the language of the section and the rule the great inconvenience and uncertainty that would result would prevent us from holding that the provision is retrospective.
If petitioner's learned counsel's argument is right, then it would follow that even if a person's name is inserted in the roll of a constituency one day before the date of the poll, he would be eligible to stand and his nomination must be deemed to have been wrongly rejected, though on the date of the scrutiny his name was not on the roll. The position was so anomalous that Mr. Ramachandran had to impose a limitation on his argument and to concede that if the amendment was after the date fixed for scrutiny the fiction under Section 25 would not be applicable. There is no warrant for importing this idea of a partial retrospective operation. It is clear to us that neither Section 25 nor Rule 20 supports the petitioner's contention.
9. Mr. Ramachandran, learned counsel for the petitioner, sought to found an argument on the fact that the returning officer had rejected the nomination not on the ground that the candidate was not qualified to be chosen but because there had been a failure to comply with the provisions of Section 33. His contention was that the failure to fill up the particulars as to the name of the constituency in the electoral roll of which the petitioner's name was included and his serial number in that electoral roll was only a technical defect which was not of a substantial character and therefore the Returning Officer, under Section 36(4) of the Act (of 1051) was not entitled to reject the nomination paper on that ground. We do not agree with Mr. Ramachandran that the omission to give these particulars was only a technical detect. In our opinion it was a substantial defect which the Returning Officer had no jurisdiction to overlook. Without these particulars the Returning Officer could not decide whether a candidate is or is not qualified without these particulars 'ex 'facie there was nothing to show that the petitioner was in fact a qualified elector in respect of the constituency.
It is sufficient to refer to the decision in --Baldwin v. Ellis', 1929 1 KB 273 (B), in this connection. That case related to an election to a rural district council. Rule 4, Rural District Councilors Election Order, 1898 required that each candidate for election shall be nominated in writing and that the nomination paper shall state the surname and other name or names in full of the candidate and his place of abode and description, and whether he is qualified as a parochial elector of some parish within the poor law union in which the rural district or the part of the rural district containing the parish or other area is comprised. The nomination papers of four persons who stood for election as rural district councillors did not state the name of the parish for which they were qualified as local Government electors. Against the heading 'How qualified' the entry was that they were local Government electors. The nomination papers were rejected as invalid because the name of the parish was not stated, it was held that the omission to state the name of the parish was a non-compliance with the requirements of Rule 4 abovementioned and the rejection was proper.
Swift J. said:
'In the course of his argument Mr. Pratt referred to this omission to state the parish, of which the person nominated is a local Government elector as being a mere technicality. I do not agree. A statement of these particulars is required by the Local Government Board's order, and I cannot think that the omission to state those particulars on a nomination paper is a mere technicality, because unless the parish, for which the person nominated is qualified as a local Government elector, is named no one could test whether or not he is qualified. I agree that the deputy Returning Officer was right in rejecting these nomination papers.'
10. We agree with the Election Tribunal that the omission to give the particulars as to the electoral roll and the serial number therein was a good ground for the rejection of the nomination paper by the Returning Officer under Section 36(2)(d) of the Act. In one sense, this non-compliance is intimately bound up with the other defect, namely, that the petitioner was not on the roll of any parliamentary constituency on the date of the nomination.
11. In this view it is not necessary for us to deal with the contentions raised by Mr. Ramaswami Aiyar for the successful candidate, the second respondent, that Rule 20(2) and (3) made under the Representation of the People Act, 1950 was 'ultra vires' and invalid and that even otherwise Section 25 is not applicable because it is inconsistent with the later Act of 1951. Having listened to the argument we can only say that we see no substance in either contention.
12. In the result the application is dismissed with costs of the second respondent. Advocate's fee Rs. 150.
13. C. R. P. No. 2207 of 1952: Following our decision in w. P. No. 862 of 1952 this revision petition is dismissed. No costs.