2465 GI/2014
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REGD. NO. D. L. (N) 04/0007/2003—05
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PUBLISHED BY AUTHORITY
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No. 13]
NEW DELHI, JUNE 22—JUNE 28, 2014, SATURDAY/ASADHA 1—ASADHA 7, 1936
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Separate Paging is given to this Part in order that it may be filed as a separate compilation.
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PART II—Section 3—Sub-section (iii)
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Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)
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ELECTION COMMISSION OF INDIA
New Delhi, the 24th June, 2014
O.N. 18.—In pursuance of section 106 of the
Representation of the People Act, 1951 (43 of 1951), the
Election Commission of India hereby publishes the Judge-
ment dated 20th December, 2013 of the High Court of
Judicature at Allahabad in Election Petition No. 1 of 2009.
IN THE HIGH COURT OF JUDICATURE AT
ALLAHABAD
ELECTION PETITION No. 1 OF 2009
(Under Section 80, 80-A/81 of the Representation of
People Act, 1951)
DISTRICT : ALLAHABAD
CHANDRA NARAYAN TRIPATHI @ CHANDU
TRIPATHI
S/o Late Surya Narayan Tripathi,
Presently residing at H.No. 64/48, South Road,
Nawab Yusuf Road, Civil Lines, Allahabad.
... ELECTION PETITIONER
VERSUS
KAPIL MUNI KARWARIYA
S/o Late Vashistha Narayan Karwariya,
R/o House No. 1203, Ahiyapur, Malviya Nagar,
Allahabad ... RESPONDENT
68
THE GAZETTE OF INDIA : JUNE 28, 2014/ASADHA 7, 1936
[PART II—SEC. 3(iii)]
Reserved on 09.10.2013
Delivered on 20.12.2013
Court No.-34
Case :- ELECTION PETITION No. - 1 of 2009
Petitioner :- Chandra Narain Tripathi
Respondent :- Kapil Muni Karwariya
Counsel for Petitioner :- In Person, Narendra Kumar
Pandey, Smt. Sudha Pandey
Counsel for Respondent :- B.N. Singh, K.N.Tripathi, K.R.
Singh, Ravi Shankar Prasad, S.C. Dwivedi
Hon’ble Sudhir Agarwal, J.
1. This election petition under Sections 80, 80-A and 81 of
the Representation of People Act, 1951 (hereinafter referred
to as the “Act, 1951”) has come up at the instance of one
of the candidates, Chandra Narayan Tripathi, who is
aggrieved by order dated 06.04.2009, whereby the
Returning Officer (hereinafter referred to as the “RO”)
has rejected his nomination, as a result whereof Sri Chandra
Narayan Tripathi, the election-petitioner (hereinafter
referred to as the “petitioner”) could not contest election
of 51- Phulpur Parliamentary Constituency of District
Allahabad (hereinafter referred to as the “51-PPC”) wherein
the respondent- Kapil Muni Karwariya, ultimately returned
elected. The petitioner, therefore, has assailed declaration
of respondent as elected member of Parliament from
51-PPC and has sought above election to be declared null
and void.
2. The case set up by petitioner in the election petition, in
brief, is as under.
3. The Election Commission of India (hereinafter referred
to as the “ECI”) vide notification dated 02.03.2009, issued
under Section, 14 of Act, 1951, called upon the
Parliamentary Constituencies of India to elect their members
so as to constitute 15th Lok Sabha. The election was to be
held in five phases, as under:
First phase
-
16.04.2009
Second phase
-
23.04.2009
Third phase
-
30.04.2009
Fourth phase
-
07.05.2009
Fifth phase
-
13.05.2009
Date of counting votes
-
16.05.2009
4. The District Allahabad had two Parliamentary
Constituencies, i.e., 51-PPC and another one is
52-Parliamentary Constituency, Allahabad.
5. 51-PPC consisted of five Legislative Assembly
Constituencies, i.e., 254-Phaphamau; 255-Soraon;
256-Phulpur; 261-Allahabad West; and, 262-Allahabad
North. The then District Magistrate, Sri Rajeev Agrawal
was appointed RO for 51-PPC and Sri Triloki Singh,
Sub-Divisional Magistrate, Soraon was appointed Assistant
Returning Officer (hereinafter referred to as the “ARO”).
The RO notified, vide notification dated 28.03.2009, election
programme for 51-PPC, as under:
Date of Nomination
-
28.03.2009 to 04.04.2009
(11.00 am to 03.00 pm)
Date of Scrutiny
-
06.04.2009
(11.00 am to 03.00 pm)
Date of Withdrawal of
-
08.04.2009
Nomination paper
(11.00 am to 03.00 pm)
Date of Polling
-
16.04.2009
(07.00 am to 05.00 pm)
Date of counting and
-
16.05.2009
declaration of result
6. The petitioner filed his nomination papers on 04.04.2009.
The respondent filed two sets of nomination papers on
31.03.2009 and another two sets of nomination papers on
04.04.2009.
7. Besides above two, 33 other candidates submitted their
nominations and they are, (1) Shailendra Kumar, (2)
Virendra Pal Singh, (3) Shyama Charan Gupt, (4) Karan
Singh Patel, (5) Milam Mukherji, (6) Pradeep Kumar
Srivastava, (7) Samar Bahadur Sharma, (8) Sanjeev Kumar,
(9) Munishwar Singh, (10) Radhika Pal, (11) Qumar Sayeed,
(12) Dr. Neeraj, (13) Satish Kumar, (14) Vijay Kumar, (15)
Ram Janam, (16) Lallan Singh, (17) Chandrajeet, (18) Ram
Shanker, (19) Bharat Lal, (20) Israr Ulla, (21) Gyanendra,
(22) Ashok, (23) Janardan, (24) Sone Lal Patel, (25) Krishna
Patel, (26) Niyaz Ahmad, (27) Dharmraj Singh Patel, (28)
Ramesh Chandra Sahu, (29) Uday Singh, (30) Radhey
Shyam, (31) Krishna Kumar, (32) Uma Shanker and (33)
Devendra Pratap Singh.
8. The petitioner claims to be a candidate set up by
Krantikari Jai Hind Sena Party while respondent was an
authorised candidate of Bahujan Samaj Party. The RO
rejected nominations of nine candidates including that of
petitioner on 06.04.2009. Two other candidates, Sri Qumar
Saeed son of Mohammad Safi and Smt. Krishna Patel
wife of Sone Lal Patel withdrew their nomination. The RO
issued list of contesting candidates in Form No. 7A and
allotted symbols on 08.04.2009 to remaining 24 candidates
including respondent. After the polling held on 16.04.2009,
result was declared on 16.05.2009 wherein respondent
returned elected.
9. The petitioner has assailed election of respondent on
the ground that nomination of petitioner was cancelled/
rejected illegally. Detailing the grounds in furtherance of
above, it is saidthat, petitioner is resident of Mohalla
Garulpar, District Deoria which forms part of 337-Deoria
Legislative Assembly Constituency in District Deoria. He
¹Hkkx II—[k.M 3(iii)º
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69
is enrolled as an elector from 337-Deoria Legislative
Assembly Constituency. The name of petitioner is recorded
at serial No. 709, Part-208, Electoral Roll of 337-Deoria
Legislative Assembly Constituency. Petitioner, after his
initial primary education at Deoria came to Allahabad to
join law course and in 1983-84 was elected as General
Secretary of Allahabad University Students Union. Since
2006, State of U.P. is functioning under the Chief
Ministership of Miss Mayawati, a leader of Bahujan
Samaj Party. A few days back, i.e., before notification of
General Election-2009, the then Chief Minister, on
02.03.2009 changed top district administration by posting
new District Magistrate, Senior Superintendent of Police
and Superintendent of Police, of her own choice. It is in
furtherance thereof, Sri Rajeev Agrawal came to be posted
as District Magistrate, Allahabad and one Sri B.P. Tripathi
as Senior Superintendent of Police/D.I.G. Allahabad.
10. The District Magistrate, Allahabad who was also
appointed as RO, worked as an agent of ruling political
party. In a preplanned way, he rejected nine nomination
papers, illegally, to ensure victory of the candidate of
ruling party. Petitioner’s nomination was rejected due to
non-application of mind, misreading and misinterpretation
of Sections 33(4) and 36 of Act, 1951. Petitioner’s
nomination was rejected so as to exclude a strong candidate
from Brahmin community so that the things may become
easier for respondent, the sole valid candidate of Brahmin
community remained in fray.
11. The petitioner filed nomination on 04.04.2009, duly
filled in all respect. Since the party to which petitioner
belongs was an unrecognised unregistered party, hence
by virtue of first proviso of Section 33(1) by Act, 1951, the
nomination of petitioner needed to be subscribed by 10
proposers, who are electors of 51-PPC. The petitioner’s
nomination was complete in all respect, singed by candidate
and his proposers. It was presented at about 1.57 pm on
04.04.2009. The competent authority administered oath
to petitioner at about 2.00 pm, on the same day, after
presenting nomination paper. Thereafter the ARO issued
receipt to petitioner in token of receiving nomination
paper. He also informed petitioner that the scrutiny of
nomination will be held on 06.04.2009 at 11.00 pm in the
court of District Collector/District Magistrate, Allahabad.
The ten proposers who signed petitioner’s nomination were:
Sl. No. Name and address
Position in electoral roll
1. Ram Narayan s/o Surya Deen
Sl. No. 381, Part No. 105,
Dwivedi, r/o Village Deoria, Post
Electoral Roll 256-
Hanumanganj, District Allahabad
Phulpur Legislative
Assembly Constituency
2. Pramod Kumar s/o Shri Hira Lal, Sl. No. 3, Part No. 170,
r/o House No. 1, Kala Danda,
Electoral Roll 261-
Allahabad
Allahabad West
Legislative Assembly
Constituency
3. Himansu s/o Sri Ramanand,
Sl. No. 602, Part No. 194,
r/o House No. 16, Clive Road,
Electoral Roll 262-
Allahabad
Allahabad North
Legislative Assembly
Constituency
4. Bhuvneshwar Dwivedi, s/o
Sl. No. 144, Part No. 37,
Sri Ram Sajeevan, r/o House
Electoral Roll 262-
No. 3- G/2, Shivkuti, Allahabad
Allahabad North
Legislative Assembly
Constituency
5. Onkar Nath Tripathi, s/o Sri
Sl. No. 702, Part No.
Brij Nath Tripathi, r/o House
276, Electoral Roll 262-
No. 803/28-B/A, Allahpur
Allahabad North
Mohile Nagar, Allahabad
Legislative Assembly
Constituency
6. Rajesh Kumar, s/o Sri Onkar
Sl. No. 706, Part No.
Nath Tripathi, r/o House No.
276, Electoral Roll 262-
803/28-B/1, Allahpur Mohile
Allahabad North
Nagar, Allahabad
Legislative Assembly
Constituency
7. Rakesh Kumar, s/o Sri
Sl. No. 873, Part No.
Paras Nath, r/o House No. 8/3,
209, Electoral Roll 262-
Muir Road, Allahabad
Allahabad North
Legislative Assembly
Constituency
8. Tarun, s/o Sri Shashikant, r/o
Sl. No. 563, Part No.
House No. 767/28-B/1, Allahpur
276, Electoral Roll 262-
Mohile Nagar, Allahabad
Allahabad North
Legislative Assembly
Constituency
9. Ashok Kumar, s/o Sri Ram
Sl. No. 533, Part No. 276,
Kumar, r/o House No. 763/28-B/1, Electoral Roll 262-
Allahpur Mohile Nagar, Allahabad Allahabad North
Legislative Assembly
Constituency
10. Akhilesh Kumar Dubey, s/o
Sl. No. 133, Part No. 276,
Sri Rang Nath Dubey, r/o House
Electoral Roll 262-
No. 28-B/118-A, Allahpur Mohile
Allahabad North
Nagar, Allahabad
Legislative Assembly
Constituency
12. When the nomination was submitted, petitioner was
administered oath and receipt was issued, till that time,
neither the RO nor ARO pointed out any defect in the
contents and details given in nomination paper with
respect to proposers or their position in respective electoral
roll. On 06.04.2009 the petitioner appeared before RO at
11.00 am. The nominations were scrutinized. The petitioner's
nomination was at serial No. 46 and it was taken up by
ARO at 1.00 pm on 06.04.2009. He handed over it to RO for
scrutiny. The RO told petitioner that part number of
electoral roll of proposers no. 5, 6, 8, 9 and 10 is
wrongly mentioned since none of them was found in the
electoral roll of part No. 275. He also directed petitioner to
come after one hour so that in the meantime he and
ARO may check the names of proposers in electoral
Sl. No. Name and address
Position in electoral roll
70
THE GAZETTE OF INDIA : JUNE 28, 2014/ASADHA 7, 1936
[PART II—SEC. 3(iii)]
roll. Though RO and ARO had enough material to find
out correct position in electoral roll but they wilfully and
deliberately failed to undergo such exercise. At about 2.00
pm the nomination paper of petitioner was again taken up
by RO. The petitioner orally pointed out that due to
mistake, part number of electoral roll 275 is mentioned and
in fact it ought to be part No. 276. He also stated that he
was supplied, by officials of District Election Officer, first
page of part No. 275 of electoral roll 262-Allahabad North
Assembly Constituency while the subsequent pages were
the extract of electoral roll of part No. 276 in respect of
proposers No. 5, 6, 8, 9 and 10 and, hence, by mistake part
number was wrongly mentioned as 275. He also gave a
written representation in his own handwriting, at about
2.00 pm on 06.04.2009, to RO, stating that the entries in
nomination papers were made, founded on the
information given by officials of District Election Office.
In place of part No. 276 it was wrongly mentioned as 275,
which is a mere clerical or technical error. Since all the
aforesaid five proposers were residents of same area, i.e.,
Mohile Nagar, Allahpur, Allahbad, were attached to the
same and one polling center. The petitioner also requested
RO to verify/search out the name/number of polling
center/stations since the list of polling centers/stations of
262-Allahabad North Assembly Constituency is available
and placed with them. Thereupon there was a verbal hot
exchange of words between petitioner and RO. Along with
certain written representation, the petitioner also annexed
the first page of extract of electoral roll part 275 along
with relevant extract of part 276 in respect of proposers
No. 5, 6, 8, 9 and 10 and requested RO, either to remove the
aforesaid defect or correct the same. The RO though
received written representation but refused to provide
receipt thereof, alleging that he is busy in scrutiny of
nominations of other candidates. Thereafter he passed
order rejecting petitioner's nomination on 06.04.2009. The
RO rejected nomination on technical and flimsy grounds
and in violation of proviso to Section 33(4) of Act, 1951,
read with para 9.4 of the handbook of Retuning Officer
2009 which contains certain instructions for RO. The
aforesaid rejection was in violation of principle of natural
justice, i.e., without giving any opportunity to petitioner
to rectify the mistake. Thereafter the petitioner sent a
representation to Chief Election Commissioner through
fax at about 10.20 pm on 06.04.2009 and approached
Election Observer, handed over a representation to him.
He met Election Observer at about 10.30 pm on 06.04.2009.
The mistake, if any, was not of substantial nature and,
therefore, nomination paper of petitioner could not have
been rejected.
13. Contesting the petition, respondent has filed
written statement stating that petitioner's nomination was
not valid and hence rightly rejected by RO. The
petitioner has no right to challenge respondent's
election. Neither it is void nor otherwise illegal. The
petitioner was not a serious candidate to contest above
election. Proposers No. 5, 6, 8, 9 and 10 were neither
electors nor had any right to vote. They were not valid
proposers in the eyes of law. If a candidate has not given
correct particulars of proposers, it is not the responsibility
of RO and ARO to go on a detailed investigation to find
out, whether proposers are electors or not. Petitioner
having not given correct particulars, his nomination was
not valid in law and has rightly been rejected. The
nomination was not filed in accordance with law. At
the time of filing of nomination, the RO, while accepting
the same, is only supposed to check, whether nomination
is filled in all the columns and appended with all
requisite documents. He is not under any duty, statutorily
or otherwise, to look into correctness of entries/details
given in the nomination paper or other documents. That
is to be seen on the date of scrutiny and if the details and
particulars are found incorrect, the nomination has to be
rejected. Thus it has rightly been rejected by RO. The
petitioner was not present before RO at the time of scrutiny
of his nomination paper. The story of verbal exchange of
words etc., set up by petitioner, is false. The petitioner
deliberately and designedly filled up wrong part number
of electoral roll relating to his proposers No. 5, 6, 8, 9 and
10, to ensure rejection of his nomination and in furtherance
thereof he absented himself at the time of scrutiny of
nomination. The defect in nomination paper was of
substantial character and there is no question of its being
permitted to be corrected.
14. By way of amendment, paragraphs No. 80-A to 80-I
were added in the written statement. The same basically
relate to one proposer, Pramod Kumar son of Heera Lal. As
per pleadings in the election petition, name of Pramod
Kumar was at Serial No. 3, Part 170 of Electoral Roll-261,
Allahabad West Assembly Constituency. The petitioner
had himself appended relevant extract of electoral roll of
Part No. 170 for 270-Allahabad West Assembly
Constituency, published in January, 2009 showing that
entry relating to Sri Pramod Kumar contains an
endorsement as "Vilopit" (Removed). It is thus pleaded
that as per own case, set up by petitioner, one of the
proposers, Pramod Kumar, was not an elector with the
particulars as given by petitioner. In view thereof, there
was no 10 valid proposers, hence nomination of petitioner,
even otherwise, was defective in law, and stood rightly
rejected. In other words, it cannot be said that his
nomination was improperly rejected.
15. A replication has been filed by petitioner in reply
to amended paragraphs of written statement. It is said that
name of proposer No. 2, Pramod Kumar was not deleted
up to the commencement of election and continued on
record. The RO did not reject nomination on the ground
of any defect with respect to proposer No. 2. The officials
of Electoral Registration Officer, Allahabad and Assistant
Electoral Registration Officer, Allahabad, including booth
¹Hkkx II—[k.M 3(iii)º
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71
level officer and the concerned Lekhpal of the area, at
the instance and pressure of respondent, and in his
collusion, subsequently, i.e., after the end of election,
on the pretext of revision of electoral roll, in contravention
of orders and direction of ECI, illegally, deleted name of
proposer No. 2 from electoral roll of part No. 170,
261-Allahabad West Assembly and instead shifted it at
serial No. 16, part No. 165 of electoral roll 261- Allahabad
West Assembly Constituency.
16. From the respective pleadings of parties, following
issues were framed vide Court's order dated 29.08.2011:
"1. Whether the nomination paper filed by the
petitioner has been rejected improperly by the
Returning Officer, as alleged in the election petition.
If so its effect ?
2. Whether the alleged defects in the nomination
paper filed by the petitioner were not of substantial
character within the meaning of section 36 (4) of the
Representation of the People Act 1951. If so its
effect ?
3. Whether the alleged defects in the nomination
paper filed by the petitioner were liable to be
over-looked by the Returning Officer under the
proviso to sub-section (4) of section 33 of the
Representation of the People Act 1951 as alleged
in the Election Petition ?
4. Whether the petitioner was entitled to an
opportunity to rebut under the proviso to sub
section (5) of section 36 of the Representation of
the People Act 1951, the objections raised against
his nomination as alleged in the Election Petition ?
5. Whether Mr. Pramod Kumar was not competent to
act as a proposer for the petitioner on the grounds
pleaded in the written statement. If so its effect ?
6. To what relief, if any, is the petitioner entitled ?"
17. Though several documents were brought on
record by parties but the documents proved and marked
exhibits are P1 to P19, in support of election petition, and
R1 to R19, in support of defence. The details of documentary
evidence, I shall discuss, as and when it is relevant.
18. The oral evidence which has come on record,
constitutes statements of four petitioner's witnesses and
three respondent's witnesses. The petitioner's witnesses
are:
(1) Sunil Kumar Srivastava son of late Sri Anjani
Prasad Srivastava, Senior Clerk, District Election
Office, Allahabad- PW 1.
(2) Rama Shanker Singh son of Sri K.P. Singh-
PW 2.
(3) Atiq Ahmad Siddiqui son of late Sri Abdul
Sharif, Officer on Special Duty in the Office of Chief
Election Officer, U.P.-PW 3.
(4) The Election Petitioner himself, i.e., Chandra
Narain Tripathi-PW 4.
19. On behalf of respondents, the following three
witnesses examined are:
(1) Raj Karan Pandey, Assistant District Election
Officer, Allahabad-DW 1.
(2) Krishna Kumar Yadav son of Sri Budhai Prasad
Yadav- DW 2.
(3) Ch. Sayd Ahmad son of late Sri Shabbir
Ahmad-DW 3."
20. After registration of this election petition, the Hon'ble
Chief Justice initially nominated Hon. Shri Kant Tripathi,
J. to try it. After His Lordship's retirement on 14.12.2011 it
was nominated to Hon. Kalimullah Khan, J., then to Hon.
V.P. Pathak, J., Hon. Sunil Hali, J., Hon. Mohd. Tahir, J. and
then to this Court on 25.04.2013 and that is how I am
seized with this matter.
21. I have head Sri N.K. Pandey, Advocate for the
petitioner and Sri K.N. Tripathi, Senior Advocate and Sri
K.R. Singh, Advocate for respondent, at length.
22. From the pleadings and arguments advanced, the
central issue, hovering around all the issues framed above,
is, regarding alleged improper rejection of nomination of
petitioner. If findings on this aspect go in his favour, it
may cause serious prejudice to respondent, else there
would be no other option but to dismiss this petition.
23. The two provisions which have been repeatedly
referred, read and attempted to be explained, in the
light of various precedents, are, Section 33(4) and 36(4)
of Act, 1951. However, before discussing the above, it
would be prudent to have a quick glance over the statutory
scheme with regard to procedure of filing nomination,
scrutiny and finalization.
24. The procedure for nomination of candidate is
contained in Part V of Act 1951. Section 33 talks of the
procedure, in respect of presentation of nomination form,
and requirement for a valid nomination. Relevant extract,
i.e., sub-section (1), (4), (5) and (6) reads as under:
"33. Presentation of nomination paper and
requirements for a valid nomination. (1) On or before
the date appointed under clause (a) of section 30
each candidate shall, either in person or by his
proposer, 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 signed by the candidate and by an elector of the
72
THE GAZETTE OF INDIA : JUNE 28, 2014/ASADHA 7, 1936
[PART II—SEC. 3(iii)]
constituency as proposer:
Provided that a candidate not set up by a
recognised political party, shall not be deemed to be
duly nominated for election from a constituency
unless the nomination paper is subscribed by ten
proposers being electors of the constituency:
Provided further that no nomination paper shall
be delivered to the returning officer on a day which
is a public holiday:
Provided also that in the case of a local authorities'
constituency, graduates' constituency or teachers'
constituency, the reference to "an elector of the
constituency as proposer" shall be construed as a
reference to "ten per cent of the electors of the
constituency or ten such electors, whichever is less,
as proposers".
(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 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 roll 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 the returning officer
shall permit any such misnomer or inaccurate
description or clerical, technical or printing error to
be 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.
(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.
(6) Nothing in this section shall prevent any
candidate from being nominated by more than one
nomination paper:
Provided that not more than four nomination
papers shall be presented by or on behalf of any
candidate or accepted by the returning officer for
election in the same constituency." (emphasis
added)
25. Section 33-A requires a candidate to furnish certain
further information, like his criminal antecedents etc.
Section 33-B provides that an informations not required
by the Act or Rules framed thereunder, no candidate
shall be liable to disclose or furnish such information.
Section 34 deals with deposit to be made by the
candidate concerned before submitting his nomination.
The above provision being not relevant for the
purpose of this case, are being skipped hereat.
26. Section 35 talks of notice of nomination and time and
place for scrutiny which has to be given by R.O. on
receiving nomination paper. Section 36 talks of scrutiny
of nomination. Both the provisions, (Sections 35 and 36),
since have material bearing on the issue in question, are
reproduced as under:
"35. Notice of nominations and the time and place
for their scrutiny.- The returning officer shall, on
receiving the nomination paper under sub-section
(1) or, as the case may, be, sub-section (1-A) of section
33, inform the person or persons delivering the same
of the date, time and place fixed for the scrutiny of
nominations and shall enter on the nomination paper
its serial number and shall sign thereon a certificate
stating the date on which and the hour at which the
nomination paper has been delivered to him, and
shall, as soon as may be thereafter, cause to be
affixed in some conspicuous place in his office a
notice of the nomination containing descriptions
similar to those contained in the nomination paper,
both of the candidate and of the proposer."
(emphasis added)
"36. Scrutiny of nominations. (1) On the date fixed
for the scrutiny of nominations under section 30,
the candidates, their election agents, one proposer
of each candidate, and one other person duly
authorized in writing by each candidate, but no other
person, may attend at such time and place as the
returning officer may appoint; and the returning
officer shall give them all reasonable facilities for
examining the nomination papers of all candidates
which have been delivered within the time and in
the manner laid down in section 33.
(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:-
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(a) that on the date fixed for the scrutiny
of nominations the candidate either is not qualified
or is disqualified for being chosen to fill the seat
under any of the following provisions that may
be applicable, namely:—
Articles 84, 102, 173 and 191,
Parts II of this Act, and Sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of
1963 ); or
(b) that there has been a failure to comply with any
of the provisions of Section 33 or Section 34; or
(c) that the signature of the candidate or the
proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (C) of
sub-section (2) shall be deemed to authorize the
rejection of the nomination of any candidate on the
ground of any irregularity in respect of a
nomination paper, if the candidate has been duly
nominated by means of another nomination paper in
respect of which no irregularity has been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect which
is not of a substantial character.
(5) The returning officer shall hold the scrutiny on
the date appointed in this behalf under clause (b) of
Section 30 and shall not allow any adjournment of
the proceedings except when such proceedings are
interrupted or obstructed by riot or open violence
or by causes beyond his control:
Provided that in case an objection is raised by
the returning officer or is made by any other
person the candidate concerned may be allowed
time to rebut it not later than the next day but one
following the date fixed for scrutiny, and the returning
officer shall record his decision on the date to which
the proceedings have been adjourned.
(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 (43 of 1950).
(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."
(emphasis added)
27. For conduct of election, Rules have also been framed
i.e., "Conduct of Election Rules, 1961" (hereinafter referred
to as "Rules, 1961").
28. Rule 2(1)(e) of Rules, 1961, defines "electoral roll",
and 2(1)(f ), defines "electoral roll number", and, read as
under:
"(e) "electoral roll", in relation to an election by
an assembly members, means the list maintained
under Section 152 by the R.O. for that election;"
"(f ) "electoral roll number" of a person means-
(i) the serial number of the entry in the electoral roll
in respect of that person;
(ii) the serial number of the part of the electoral roll
in which such entry occurs; and
(iii) the name of the constituency to which the
electoral roll relates;"
29. Rule 2(1) (g) defines "Form" which reads as under:
" (g) "Form" means a Form appended to these rules
and in respect of any election in a State, includes
a translation thereof in any of the languages used
for official purposes of the State;"
30. Rule 4 provides that every nomination paper
presented under sub-section (1) of Section 33 shall be
completed in such one of the Forms 2-A to 2-E, as may be
appropriate. It also contains a proviso which reads as under:
"Provided that a failure to complete or defect in
completing, the declaration as to symbols in a
nomination paper in Form 2-A or Form 2-B shall not
be deemed to be a defect of a substantial character
within the meaning of sub-section (4) of Section 36."
31. The proposers signing a nomination form are
supposed to give particulars like, name of the component
assembly constituency, electoral roll number, Part No. of
electoral roll, serial number in that part, full name, signature
and date. For a Parliamentary Constituency, election
nomination paper of an independent is required to be
subscribed by ten proposers, who are electors of the
constituency concerned, vide proviso to Section 33 (1) of
Act, 1951.
32. In the present case, from a perusal of record, it is
evident that in Part 2 the particulars of ten proposers in
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[PART II—SEC. 3(iii)]
column 1 to 5 were filled in as under :
Sl. No. Number of electoral roll of proposers Full Name
Name of
Electoral
Serial No.
component
Roll Part
in the part
constituency
No.
of electoral
roll
1 2
3
4
5
1. 256-Phulpur
105
381
Ram Narayan
2. 261-Allahabad
West
170
3
Pramod Kumar
3. 262-Allahabad
North
194
602
Himansu
4. 262-Allahabad
North
37
144
Bhuvneshwar
Dwivedi
5. 262-Allahabad
North
275
702
Onkar Nath
Tripathi
6. 262-Allahabad
North
275
706
Rajesh Kumar
7. 262-Allahabad
North
209
873
Rakesh Kumar
8. 262-Allahabad 275
563
Tarun
North
9. 262-Allahabad
North
275
533
Ashok Kumar
10. 262-Allahabad
North
275
133
Akhilesh
Kumar Deubey
33. Learned counsel for petitioner submitted that mere
wrong mention or non-mention of some information in
one or other column(s), meant for proposers, cannot be
said to be a defect of substantial nature. The R.O. could
have verified the above details, if some labour would
have been put in by him going through electoral roll of
the constituency concerned. For this reason alone,
rejection of nomination form of petitioner is patently illegal
and unjust. He submitted that neither certified copy of
electoral roll was made available to him nor R.O. himself
made such enquiry, himself, though he could have done,
since copies of all electoral rolls were available with him,
but having failed to perform his duty effectively, he was
not justified in penalising petitioner by rejecting nomination
form, that too, for technical error which was identifiable
and rectifiable. Hence rejection of nomination of petitioner,
being wholly illegal and contrary to procedure
prescribed in the statute, is vitiated and is liable to be set
aside.
34. Per contra, Sri K.N. Tripathi, learned Senior
counsel appearing for respondent submitted that duty
to correctly complete nomination form and submit with
requisite information lies upon the candidate concerned.
The R.O. is not supposed to engage in a meticulous
enquiry if candidate himself has not cared to furnish
complete information or has given incorrect information,
and has not attempted to rectify, even till the date of
scrutiny. In the circumstances, the R.O. had no option but
to reject such nomination form and therefore, he has not
committed any error or illegality or otherwise in
rejecting nomination of petitioner, finding the same as
not fulfilling the requirement of first proviso to Section
33(4) of Act, 1951. Election petition is misconceived,
having been filed to unnecessarily harass the elected
candidate and therefore, liable to be dismissed with
exemplary costs. It is contended that flaws and
illegality committed in the nomination form were well
within the knowledge of petitioner. He had chosen to
drag the elected candidate into unnecessary litigation
for which this Court should pass an order imposing
exemplary costs, so also to give a message, that any
person, like the petitioner, should not dare, to institute
such frivolous and baseless litigation to harass an
innocent person.
35. Having heard counsel for the parties and perusing
the record, I, now proceed to adjudicate the issues
formulated hereinabove. The issues No. 1 to 4 shall be
taken collectively so as to find out whether nomination
form of petitioner has been rejected illegally and, if so,
whether it would render the result of election declaring the
respondent elected, vitiated.
36. The statute lays down a very detailed procedure for
filing of nomination papers for prospective candidates,
aspiring to contest an election, and, quite minute details
have been taken care of, by legislature. Simultaneously,
this is also evident that the legislature has intended that
there should not be any casual attempt to reject a
nomination paper for tit bits or minor irregularity. The R.O.
must look into the matter with sincere endeavour to
ensure that a valid nomination is filed and taken on
record giving genuine opportunity to candidate
concerned to contest election.
37. Part-III deals with the notification of General Elections
for State and Central both. As soon as notification is
issued, calling upon a constituency to elect a member or
members, the role of ECI commences. Immediately
thereafter, the ECI is required to issue a notification in
Official Gazette appointing various dates, namely, date for
making nomination, date for scrutiny of nomination, date
for withdrawal of candidature, date or dates on which poll
shall, if necessary, be taken and date before which election
shall be completed, as per requirement of Section 30 of
Act 1951. Thereafter comes the role of R.O. concerned
who is supposed to give public notice of intended election
in the form and manner as prescribed, inviting nomination
of candidates for such election and specify the place at
which nomination papers are to be delivered. This is what
required by Section 30(1). Section 32 talks of the candidate,
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75
eligible to seek nomination, for election. Any person
qualified to be chosen to fill the seat for which
notification of election has been issued, may be nominated
as a candidate for election to such a seat. Then comes the
procedural part. I may summarize various steps as
discerned from a cumulative reading of Sections 33, 33-A,
34, 35, 36 and the Rules, 1961.
38. Nomination papers shall be delivered to R.O. at the
place specified in the notice issued under Section 31, either
by the candidate himself or by his proposer(s). Various
steps and requirements are:
(i) Nomination paper has to be submitted on or
before the date appointed under clause (a) of Section
30 i.e. last date for making nomination;
(ii) time within which nomination paper can be
delivered to the R.O. is 11 A.M. to 3 P.M. of each
date;
(iii) nomination paper must be in the prescribed
form, complete in respect of all the entries, and
signed by candidate as also proposer(s);
(iv) as soon as nomination paper is presented
before R.O. he shall satisfy himself about correctness
of names and electoral roll number of candidate and
his proposer(s) as entered in nomination paper
vis-a-vis electoral roll;
(v) R.O. if finds any clerical or printing error,
inaccurate description or misnomer in regard to
name of candidate or his proposer(s) or in regard to
any place mentioned in electoral roll or nomination
paper, he shall permit such misnomer, inaccurate
description etc., to be corrected by the person
presenting/delivering nomination paper to him;
(vi) R.O. on receiving nomination paper, shall
inform the person or persons, delivering the same,
the date, time and place, fixed for scrutiny of
nomination;
(vii) Simultaneously, R.O. shall enter on nomination
paper its serial number and, shall also sign, on the
same date, and almost simultaneously, a certificate,
stating the date on which nomination paper has
been delivered to him;
(viii) R.O. shall also cause to be affixed in some
conspicuous place, in his office, a notice of
nomination, containing description, similar to those
contained in nomination paper, both of the candidate
and of proposer(s).
Procedure to be observed on the date of scrutiny
39. The candidates, their election agents, one proposer of
each candidate and any other person duly authorised in
writing by each candidate may attend the place, fixed by
R.O. for scrutiny of nomination, at the place and time
fixed by him. The R.O. shall give aforesaid persons, all
reasonable facilities for examining nomination papers of
all candidates, which, he was delivered within time and
manner laid down in Section 33. R.O. shall himself examine
nomination papers and decide all objections, made to any
nomination. He can reject any nomination, if; (a) candidate
is not qualified or is disqualified for being chosen to fill the
seat for which nomination has been submitted; (b), if
there is failure to comply Section 33 or Section 34; and (c)
if signature of candidate or proposer(s) on nomination
paper is not genuine.
40. If the candidate concerned has submitted more than
one nomination papers and in one of such papers his
nomination is found in order, his candidature shall not be
rejected on any of the grounds of non-compliance of
Sections 33, 34 or in respect of signatures. The R.O. shall
not reject nomination paper for a defect which is not of a
substantial character. Proceedings of scrutiny shall not
be adjourned except with interrupted or obstructed by
riot, or open violence or by causes beyond his control.
R.O shall endorse his decision of acceptance or rejection
of nomination.
41. If a nomination paper is rejected, the R.O. shall also
record brief statement of reasons in writing for such
rejection. After nomination papers are scrutinized and
decision accepting or rejecting the same is complete in
respect of all the nomination papers, immediately thereafter
R.O. shall prepare a list of validly nominated candidates
and affix the same to his notice board.
42. From the above, it is evident that the legislature on
the one hand has stressed upon observance and
compliance of requirements of Sections 33 and 34 of Act,
1951, simultaneously, has not authorised the R.O. to reject
nomination if the defect is not substantial one; and/or if
there are some discrepancies like, misnomer, inaccurate
description or clerical, technical or printing error in regard
to name of candidate or his proposer or any other person
or in regard to any place. These errors may be either in
electoral roll, or in the nomination paper but they shall
not authorise the R.O. to reject the nomination paper as
such, and, he is required to allow the candidate to rectify/
correct the errors and/or such error etc. shall be overlooked.
43. The contention of learned counsel for the petitioner in
fact sharply harps upon the action of R.O. at the stage
when nomination was filed and received by him. Referring
to Section 33(4), Sri Pandey contended that once
nomination paper is filed and the R.O. and A.R.O. had
satisfied himself about the entries made in nomination
form and the documents and thereafter administered
oath and issued receipt in acknowledgement to the
nomination form, it means that he has verified the
correctness of all the entries made in nomination form and
wrong mention of part number in respect of certain
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[PART II—SEC. 3(iii)]
proposers with regard to concerned electoral roll, therefore,
would not construe a ground for rejection of his
nomination.
44. To my mind, the argument has misread the requirement
of Section 33(4). The stage of receiving nomination form
is a kind of summary inquiry, i.e., whether all the details
etc. had been filled in and the documents required are
appended. With respect to name of electoral roll of
candidates and their proposers entered in the nomination
paper vis a vis electoral roll, the proviso says that if there
is any misnomer or inaccuracy in description or clerical,
technical or printing error, the same may be allowed
to be corrected and wherever necessary, he may direct
that such misnomer, inaccurate description, clerical,
technical or printing error in the electoral roll or in the
nomination paper shall be overruled. This provision does
not provide a situation where there is an incorrect mention
of a fact with respect to electoral roll and there is no order
for its overlooking. Whether at that very stage the RO can
reject application or refuse to accept the nomination or he
must make an endorsement in the nomination or elsewhere
about such defect and what has transpired before him at
the time of receiving nomination paper is not provided in
Section 33(4).
45. Be that as it may, this Court has to consider this
aspect in the light of judicial precedents holding field and
binding on this Court. I will also have to make a distinction
between a substantial defect and a clerical, technical or
printing error or inaccurate description. In one way, it can
be said that defect, if not substantial one, it would be a
technical or clerical defect, therefore, if it can be ascertained
as to what a substantial defect is, it would be easier to
determine rest of the aspects. What is, therefore,
necessary is to decide first meaning of phrase "defect not
substantial one".
46. Both the sides have placed a catena of authorities
and I would, however, discuss only those which would be
helpful for this Court for adjudication of aforesaid aspect.
47. A Constitution Bench in Karnail Singh Vs. Election
Tribunal, Hissar, and others 1954 ELR (Vol-X) 189=AIR
1954 SC 207 considered, whether omission to state Part
of electoral roll in which candidate's name appeared, was
a fatal defect or not. The Court said, if there was no
difficulty in identifying the candidate and the candidate
himself pointed out to the R.O. the entry of his name in
the electoral roll, defect in such a case must not be taken
to be fatal but it was a technical one and rejection of
nomination paper for this very reason was improper.
48. The purpose of mentioning of sub-division in electoral
roll in which serial number occurs is for assistance of
R.O. and to facilitate identification of proposer etc. so
that no time is wasted in ascertaining whether the proposer
is a person qualified to act as such, and there is no doubt
about identity of proposer or his capacity to act as proposer.
A mere omission of a small detail in his description in
nomination paper ought not affect the matter.
49. In Ram Awadhesh Singh Vs. Smt. Sumitra Devi and
others AIR 1972 SC 580, Two-Judge's Bench of Supreme
Court considered whether misdescription as to electoral
roll and electoral roll number would constitute a material
defect, justifying rejection of nomination paper. The Court
observed that so far as the candidate is concerned, he was
admittedly qualified to be nominated for election. The only
thing said against, is that nomination paper was not
properly filled in. Referring to Section 33(4) of Act 1951
the Court said:
".... a duty is imposed on the Returning Officer by
sub-s.(4) of S. 33 to look into the nomination paper
when it is presented and to satisfy himself that the
names and the electoral roll numbers of the
candidate and that of the proposer as entered in the
nomination paper are the same as those entered in
the electoral roll."
50. The Court also observed, if the Returning Officer
would have looked into nomination paper, he could not
have asked the candidate either to correct the mistake
or to file a fresh nomination. Commenting upon the
implication of Section 33(4) the Court said:
"But the implication of Section 33(4) is that a
wrong entry in a nomination paper as regards the
name of the candidate or the proposer or their
electoral roll numbers is not a matter of substantial
importance. That is why the legislature requires the
Returning Officer to look into them and if there are
any mistakes to get them corrected. What is of
importance in an election is that the candidate
should possess all the prescribed qualifications and
that he should not have incurred any of the
disqualifications mentioned either in the Constitution
or in the Act. 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 that he is not
otherwise disqualified. In other words those
informations relate to the proof of the required
qualifications."
51. It went further by observing that legislature itself has
made distinction between acceptance of nomination and
rejection. Whenever a nomination has to be rejected, RO
is under statutory duty to give reasons in writing,
though there is no such requirement for accepting a
nomination. In para 15 of judgment the Court said:
"From a combined reading of Ss. 33 and 36, it is clear
that a mis-description as to 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."
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52. In Rangilal Choudhury Vs. Dahu Sao AIR 1962 SC
1248, a candidate mentioned the name of constituency as
Bihar instead of Dhanbad. The Court held that it is not
a mistake justifying rejection of nomination and after
referring to Section 33(4) and 36(2)(b) and (4) the Court
said.
"The result of these provisions is that the proposer
and the candidate are expected to file the nomination
papers complete in all respects in accordance with
the prescribed form; but even if there is some defect
in the nomination paper in regard to either 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 into conformity with the
corresponding entries in the electoral roll. 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 S.33
subject however to this that no nomination paper
shall be rejected on the ground of any defect which
is not of substantial character.”
53. In Ram Awadhesh Singh Vs. Smt. Sumitra (supra) the
Court also observed in para 19 of the judgment that the
very fact that law requires the RO to look into nomination
paper, when filed and get any mistake regarding the
name or electoral number of the candidate or his proposer
corrected, shows that the mistake regarding them is not a
material defect.
54. In Brijendralal Gupta Vs. Jwalaprasad AIR 1960 SC
1049 the Court said that the word 'defect' in Section 36(4),
included an omission to satisfy the details prescribed in
the nomination.
55. A three Judge Bench of Apex Court in Rakesh
Kumar Vs. Sunil Kumar AIR 1999 SC 935=(1999) 2 SCC 489
again considered the scope of Section 36(5) read with
Section 33 of Act 1951 and held that the RO has been
vested with discretion to fix time to enable a candidate to
rebut an objection to the validity of a nomination paper.
Such a discretion has to be fairly and judicially exercised.
It was imperative upon him to give opportunity to the
candidate to meet the said objection. If there is a failure to
exercise his jurisdiction to postpone the decision as to
validity of the nomination paper of the candidate
concerned, despite he had sought time to meet the
objection, it would amount to invalid rejection of
nomination. The Court said in para 21 as under:
"The Returning Officer is not expected to reject a
nomination paper, without giving an opportunity to
the candidate or his representative present at the
time of scrutiny to meet an objection, capable of
being met, particularly where such an opportunity is
sought for by the candidate or his representative
and no one present on behalf of the other
candidates had opposed the claim made by the
respondent."
56. In Ram Bhual Vs. Ambika Singh 2005 (12) SCC 121 in
para 6, the kind of irregularity in the nomination paper has
been noticed by the Court which reads as under:
"It is clear that the rejection of the nomination of
PW 2 by the Returning Officer was only on the
ground that out of the ten proposers, the ninth
proposer Sant Lal, was described as the voter at
Serial No. 392 in Part 91 of the voters' List. It is also
clear and it is not disputed, that the name of Sant
Lal is actually included in the voters' list, but at
Serial No. 352 in Part 91 of the voters' list. It is also
clear that both Serial Serial No. 352 and Serial No.
392 of Part 91, are printed on the same page of the
voters' list. Therefore, it required no detailed search
by the Returning Officer to find out or to satisfy
himself that Sant Lal, the proposer, was a voter in
that constituency."
57. In para 8 of the judgment the Court said:
"It is clear from Section 36(4) of the Act that the
Returning Officer shall not reject any nomination
paper on the ground of any defect which is not
of a substantial character, Section 33(4) of the Act
provides that on the presentation of a nomination
paper, the Returning Officer has to satisfy himself
that the names and the electoral roll numbers of
the candidate and his proposer as entered in the
nomination paper are the same as those entered
in the electoral roll. The proviso thereto clearly
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 roll or the nomination paper, shall affect
the full operation of the electoral roll or the
nomination paper with respect to such person or
place and in a case where there was an error in the
nomination paper in regard to the description, he
shall direct that the same be corrected and he could
even overlook such errors. It is in the context of the
proviso to Section 33(4), that the case set up by
the appellant of Sita Ram drawing the attention of
the Returning Officer to the defect being only an
error in the serial number and that Sant Lal, the
ninth proposer, was actually at Serial No. 352 on the
same page of the voters' list assumes great
significance. It is a minor defect which obviously
should have been got corrected by the Returning
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[PART II—SEC. 3(iii)]
Officer even while accepting the nomination and
certainly he could not have rejected the nomination
on that ground in the light of Section 36 (4) of the
Act.
58. The cases which may give rise to a ground for
challenge an election under Section 100(1)(c) and
100(1)(d)(i), were considered by the Apex Court in N.T.
Veluswami Thevar v. G. Raja Nainar and Ors.AIR 1959 SC
422 and the Court said:
"...Under Section 32 of the Act, any person may be
nominated as a candidate for election if he is duly
qualified under the provisions of the Constitution
and the Act. Section 36(2) authorises the Returning
Officer to reject any nomination paper on the
ground that he is either not qualified, that is, under
Sections 3 to 7 of the Act, or is disqualified under
the provisions referred to therein. If there are no
grounds for rejecting a nomination paper under
Section 36(2), then it has to be accepted, and the
name of the candidate is to be included in a list. Vide
Section 36(8). Then, we come to Section 100(1)(c)
and Section 100(1)(d)(i), which provide a remedy to
persons who are aggrieved by an order improperly
rejecting or improperly accepting any nomination.
In the context, it appears to us that the improper
rejection or acceptance must have reference to
Section 36(2), and that the rejection of a nomination
paper of a candidate who is qualified to be chosen
for election and who does not suffer from any of
the disqualifications mentioned in Section 36(2)
would be improper within Section 100(1)(c), and
that, likewise, acceptance of a nomination paper of a
candidate who is not qualified or who is disqualified
will equally be improper under Section 100(1)(d)(i)."
59. The Apex Court noticed the instructions
contained in Handbook of ECI in respect of what is
required to be done by RO while nomination paper is to be
scrutinized and in para 29 of the judgment in Uttamrao
Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite-Patil AIR
2009 SC 2975 the Court said in para 29 as under:
"29. While exercising his quasi-judicial power, in
terms of the provisions of the Act, it was incumbent
upon the Returning Officer to follow the instructions
contained in the Handbook. It provides for:
(i) opportunity to be given to candidate to rebut the
objections by placing sufficient materials on record;
(ii) A presumption of validity of such nomination
paper."
60. It cannot be disputed that the instructions contained
in the Handbook of ECI are binding being statutory in
nature as held in Rakesh Kumar Vs. Sunil Kumar (Supra)
reiterated in Uttamrao Shivdas Jankar (Supra) (vide para
30 of the judgment). The Court also observed that with
respect to correctness of nomination paper there is
presumption of correctness and that too, being statutory
in nature. In paragraph 35 of the judgment in Uttamrao
Shivdas Jankar (supra) the Court said:
"35. The presumption of correctness of the
nomination paper being statutory in nature, as
intention of the Parliament as also the Election
Commission was that even if somebody had filed an
improper nomination, but for which he can be given
benefit of doubt being a possible subject matter of
an election petition...."
61. There are some authorities of the Apex Court which
have been relied by respondents and it would be
appropriate to discuss the same also so as to examine the
facts of the present case in the light of exposition of law in
all the authorities of Supreme Court to find out whether
rejection of nomination of petitioner is valid, just, legal or
not.
62. In Rattan Anmol Singh and Another Vs. Atma Ram
and others AIR 1954 SC 510 the question up for
consideration before the Apex Court was what is the
meaning of word 'subscribed' in Section 33(1) and what
is its effect on nomination paper. The Court observed
that 'subscribe' means 'signing'. In para 12 of the judgment
the Court said:
"It is true the word "subscribe" is not defined but it
is equally clear, when the Act is read as a whole
along with the form in the second schedule, that
"subscribe" can only be used in the sense of
making a signature and as the Act tells us quite
clearly how the different types of "signature" are to
be made, we are bound to give effect to it. In the case
of a person who is unable to write his name his
"signature" must be authenticated in "such manner
as may be prescribed." The prescribed manner is to
be found in rule 2(2) of the Representation of the
People (Conduct of Elections and Election
Petitions) Rules, 1951."
63. Then in para 13, the Court said that nomination
papers having not been "signed" by the proposers and
seconders in the usual way by writing their names, and
as their marks were not attested it would lead to an
inference that there are no valid signatures either of
proposer or seconder in any nomination paper and,
therefore, RO would be bound to reject it under Section
36(2) (d) unless he could and should have taken resort to
Section 36(4) of Act 1951. This Court considered whether
the aforesaid error is a mere technical or substantial and
held:
"In our opinion, this provision is as necessary
and as substantial as attestation in the cases of a
will or a mortgage and is on the same footing as the
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79
"subscribing" required in the case of the candidate
himself. If there is no signature and no mark the
form would have to be rejected and their absence
could not be dismissed as technical and
unsubstantial. The "satisfaction" of the Returning
Officer which the rules require is not, in our opinion,
any the less important and imperative."
64. Then in para 15 of the judgment it was held that
attestation and satisfaction etc. is all an exercise to be
taken before scrutiny and the RO cannot permit any
rectification at the stage of scrutiny. In para 15 of the
judgment the Court said:
"....attestation and the satisfaction must exist at
the presentation stage and a total omission of such
an essential feature cannot be subsequently
validated any more than the omission of a candidate
to sign at all could have been. Section 36 is mandatory
and enjoins the Returning Officer to refuse any
nomination when there has been
"any failure to comply with any of the provisions of
section 33........"
The only jurisdiction the Returning Officer has at
the scrutiny stage is to see whether the nominations
are in order and to hear and decide objections. He
cannot at that stage remedy essential defects or
permit them to be remedied. It is true he is not to
reject any nomination paper on the ground of any
technical defect which is not of a substantial
character but he cannot remedy the defect. He must
leave it as it is. If it is technical and unsubstantial
it will not matter. If it is not, it cannot be set right."
65. In Bhogendra Jha Vs. Manoj Kumar Jha AIR 1996 SC
2099, a three Judge Bench of the Apex Court considered
as to what is a defect of substantial character. The Court
referred to its decision in Rafiq Khan Vs. Laxmi Narayan
Sharma (C.A. No. 6478 of 1995 decided on 14.3.1996) and
observed as under:
" Unless the defect is one which can be per se
noticed and corrected at the stage of Section 33(4)
or later at the stage of Section 36(4) without the
need to refer to various other documents the same
cannot be said to be of a non-substantial character.
In the instant case also the defect as to the number
could have been said to be not of a substantial
character if the appellant had shown that the name
of the proposer appeared on the very same sheet at
serial number 138 instead of 136 i.e. only two steps
away. In that case one can say that the
Returning Officer could have verified the same if
he had exercised due diligence. In such a
situation even if the appellant had his proposer
absent the court could have taken the view that
the defect was not of a substantial nature. But the
defect cannot be noticed unless the Returning
Officer is required to sift through various other
documents or the voters list or is required to
undertake an enquiry as to whether the proposer's
name appears anywhere else in the voters list. The
defect may not be one capable of being cured without
the assistance of the candidate or his proposer
and in such a situation he would be justified in
rejecting the nomination paper."
66. The exercise which could have been undertaken by
RO under Section 36(4) has further been elaborated in
paragraphs 7 and 8 of the judgment observing:
"Under Section 36(4) of the Act, the Returning Officer
shall not reject any nomination paper on the ground
of any defect which is not of a substantial character.
Under Section 36(1), the Returning Officer has the
power to conduct an enquiry. It is settled law that
it is a summary enquiry. When the Returning
Officer scrutinises the nomination paper, the
parties or the nominees are required to be present
and if they seek liberty to place the necessary
material, the Returning Officer is enjoined to adjourn
the case to the next day. In case they are able to
place the necessary material and satisfy the
Returning Officer of the correctness of the enrolment
as a candidate or the address of the nominee, the
Returning Officer would consider the same. But he
is not expected to sift the evidence and find the
placement in the electoral roll, the name and
particular of the nominee." (para-7)
" In this case, PWs 4 and 6 who were the candidates
and had filed their nominations, though admittedly
were present, did not ask for an opportunity nor
attempted to satisfy the Returning Officer as to
the correctness of the particulars furnished by
them in the nomination papers of their proposers.
Therefore, the Returning Officer was not expected
to make a roving enquiry to find out whether the
names of the proposers found place in the electoral
roll. It is the duty of the candidate/proposer to satisfy
the Returning Officer."
67. In an earlier decision similar observations were made
i.e. Brij Mohan Vs. Sat Pal AIR 1985 SC 847. In para 20
of the judgment the Court said:
"........The candidate and the proposer are always
expected to go fully prepared to meet any objection
that may be raised by any candidate or even by the
Returning Officer himself suo motu at the time of
the scrutiny and they cannot be expected to go any
the less prepared merely because the Returning
Officer had received the nomination paper without
raising any objection. It is at the time of scrutiny
which is done in the presence of all concerned that
the nomination papers come up for more detailed
consideration at the hands of the Returning
Officer against whom there is no estoppel in regard
to the statutory duty of scrutiny"
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68. In para 22 of the judgment the Court also said that RO
is not expected to make a roving inquiry and has also to
find out himself correct part number of the electoral roll.
69. In Hira Singh Pal Vs Madan Lal AIR 1968 SC 1179 the
Court observed:
" As mentioned earlier, the errors found in the
nomination papers are purely clerical errors. The
Returning Officer had the duty to scrutinise the
nomination papers when they were presented for
finding out whether there were any clerical mistakes
in the same. Under that provision he was required
to find out whether the names of the candidates as
well as their proposers and seconders were correctly
mentioned in the nomination papers. He was also
required to see whether their place in the electoral
roll was correctly mentioned in the nomination
papers. Evidently the Returning Officer failed in his
duty. Further, when he scrutinised the nomination
papers on January 21, 1967, he had before him all the
required information. It may be that while scrutinising
the first nomination paper (marked as No. 5) he
had no material before him to find out whether the
proposer of the candidate was really an elector in
the constituency or not; but when he came to the
second nomination paper where the proposer's
name as well as his place in the electoral roll is
correctly mentioned, it was improper on his part to
have rejected that nomination paper. It is true that
in that nomination paper, it had been mentioned
that the candidate's name is found at serial No. 504
of part 2 of 9-Arki Assembly Constituency,
though in fact it is found at serial No. 504 in part 12
of that constituency; but from the first nomination
paper, the Returning Officer could have easily found
out the correct part of the electoral roll. All the
required information was before him. Obviously he
rejected the nomination papers for the reason that
the respondent was only a dummy candidate but
that was not a matter for him to decide. If he was a
dummy candidate there was occasion for him to
withdraw his candidature after the scrutiny of the
nomination papers. Therefore, it is quite clear that
the respondent's nomination papers were improperly
rejected. Such a rejection was impermissible under
S. 36 and the same is a ground for setting aside
the election under S. 100 of the Representation of
the People Act.”
70.
In Lila Krishan Vs. Mani Ram Godara and Ors AIR
1985 SC 1073(1) the Apex Court in para 13 of the judgment
said:
"13. Indisputably the insistence on disclosure of the
serial number in the prescribed column against the
proposer is for the purpose of identifying the
proposer and ascertaining that he is competent to
propose. The scope of scrutiny is obviously to verify
the contents of the nomination paper with a view to
ascertaining whether the form is in order and
what is required to be complied with by the election
law has been duly complied with. This Court has
repeatedly held that election proceedings are strict
in nature and what is required to be performed in a
particular manner has to be done as required and
substantial compliance has ordinarily no place while
dealing with the Act or the Rules made thereunder.
That is why an exception has been made by inserting
Sub-section (4) of Section 36 of the Act."
71.
Further in para 14 of the judgment the Court said:
"To cast the obligation on the Returning Officer to
look through the entire electoral roll of a particular
part with a view to finding out the identity of the
proposer is not the requirement of the law. To read
that as an obligation is likely to lead to a unworkable
position. The prescribed form of nomination (form
2-B) does not require to specify the name of the father
of the proposer. That actually does not become
necessary because once the name and the serial
number in the voters' list are given, the
cross-verification become easy and the father's name
is available in the electoral roll. In one part of the
electoral roll on the average names of about a
thousand voters appear. Out of one thousand name
it is quite possible that there would be more than one
voter by the same names. Identification of any
particular voter out of such list even when there are
more voters with the same name is possible only
with further reference to the father's name. To cast
the obligation of verifying the entire electoral roll
of a particular part is actually requiring the Returning
Officer to do almost an impossible feat. It may not be
so if there be a few candidates and it be a case of a
by-election but when general election takes place
and every Returning Officer is supposed to handle
about seven or eight Assembly Constituencies
and there may be instances of even 300
candidate contesting from one seat as it happened
in the 1985 elections in the Belgaum Constituency
of Karnataka State, the Returning Officer would
find it physically impossible to grapple with such
a situation. The election schedule is a very tight
one. Under the law the day following the last day
fixed for receipt of nomination papers is the date of
scrutiny and soon thereafter follows the date fixed
for withdrawal. If nomination papers are not
scrutinised with due haste and promptness the
election schedule may not be operative in the strict
manner and dislocation are bound to follow.”
72.
Ultimately, in para 16 the Court said:
" But if the Returning Officer is not in a position to
correlate and identify the proposer, the mistake
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would indeed be not one which can be covered by
Sub-section (4) of Section 36 of the Act. That view
has been taken recently by this Court in Brij Mohan
v. Sat Pal Civil Appeal No. 2650/84 disposed of on
13.3.85, to which two of us are parties. We endorse
the ratio of the decision and applying the same, we
agree with Mr. Sibal that the nomination papers were
validly rejected in this case."
73. In the light of above statutory provisions as also
the exposition of law discussed above, this Court has to
examine after assessing evidence on record (documentary
and oral) as also the pleadings of parties, whether
nomination paper of petitioner has been rejected wrongfully
so as to vitiate the election of returned candidate or that
petitioner himself was negligent in filing his nomination
paper by giving wrong details which justify its
rejection by RO.
74. In fact issues no. 1, 2, 3 and 4 are all integrally
connected and can be looked into collectively, and so, I
proceed.
75. Learned counsel for petitioner has sought to place
his case on a plain pedestal, arguing very humbly that
here is case where a candidate intending to participate in
Parliamentary election, committed a bona fide mistake of
wrong mentioning of part number of electoral rolls relating
to Proposers no. 5, 6, 8, 9 and 10 which could have been
cured by RO by verifying part numbers from list of
electors available with him, but, instead, RO adopted a
short cut method of rejection of candidature so as to
oust petitioner from the field of contest and this has
vitiated the entire election. It is vehemently argued that
error on the part of petitioner was not of substantial
nature and RO, giving opportunity to petitioner, could
have rectified the same or himself could have done so but
instead of observing a way which could have enabled
petitioner to contest election, RO, arbitrarily, has curtailed
election journey of petitioner by rejecting candidature in
the form of rejection of nomination paper.
76. Per contra, respondents' case is that petitioner
failed to submit a nomination form, duly filled in, as
required, and also did not avail opportunity to correct
what was flawed by him. This is fortified from the fact
that before this Court, at different stages, he has taken
different stands. It, thus, cannot be said that error was
unintentional clerical and if an opportunity would have
been given, could have been cured by petitioner. Here is
a flaw which the petitioner negligently or deliberately
committed and took no step to rectify. It is also contended
that nomination form was not filled as per the prescribed
norms and in law such a nomination form has to be rejected
and that is what has been done by RO.
77. In the light of the pleadings, evidence, contentions
advanced and exposition of law discussed above, the
issues in question have to be examined.
78. Case set up by petitioner in the election petition is
that due to new delimitation of Assembly Constituencies,
part number of electoral rolls got changed. New part
numbers were given by Revising Authority of Electoral
Roll. The revised Electoral Roll was published in respect of
Assembly Constituencies of 51-PPC on 10th January, 2009
and electoral roll of every Assembly Constituency was
made available on the website of ECI. Petitioner completed
all the formalities as required under Section 33 of a valid
nomination . It was duly signed by him and his
Proposers. One set of nomination paper was presented
on 4.4.2009 at about 1.57 P.M. before RO. Oath was
administered at 2.00 PM and receipt was given by ARO
on 4.4.2009 itself accepting petitioner's nomination papers
informing that scrutiny shall be held on 6.4.2009 at
11.00 AM. The election-petitioner submitted all the
documents, as required for a valid nomination, by annexing
affidavits etc. He has annexed extracts of certified copies
of electoral roll of part number 208 of 337 Deoria Legislative
Assembly Constituency of 66- Deoria Parliamentary
Constituency, since petitioner was enrolled as an elector
therein. In para 58 of election petition, it is said that RO and
ARO, having satisfied with the entries made in the
nomination paper, issued receipt of nomination paper
mentioning date, place and time of scrutiny of nomination
form. Then in para 59 it is said that RO, since did not find
out any defect in the nomination paper, petitioner believed
that his nomination paper is complete in all respect. On
6.4.2009, petitioner appeared before RO at 11.00 AM where
scrutiny of nomination paper took place from 11.00 AM to
3.00 PM. Petitioner's nomination paper was at Sl. No. 46
and it was taken up by ARO, Sri Triloki Singh, S.D.M.
Soraon at about 1.00 PM on 6.4.2009 and handed over to
RO for scrutiny. RO told petitioner that part number of
electoral roll of Proposers number 5, 6, 8, 9 and 10 was
mentioned wrongly and those Proposers did not find
mention in the electoral roll of part number 275. He required
the petitioner to come after an hour and in the meantime
they were to check names of Proposers in electoral roll.
After one hour, at about 2.00 PM petitioner's nomination
paper was again taken up and he was orally pointed out
that 275 was a wrong part number and the correct one is
276 and that error was committed since election- petitioner
was supplied, by officials of District Election Office, first
page of part number 275, electoral roll 262, while
subsequent pages were the extract of electoral roll of
part number 276 in respect of Proposers 5, 6, 8, 9, and
10 and by mistake it was wrongly mentioned in the
nomination paper as part number 275 instead of 276. In
para 67 petitioner further has stated that he submitted a
representation to RO at about 2.00 PM on 6.4.2009, stating
that entries in nomination paper were made on the basis of
information supplied by officials of District Election
Office. In place of part no. 276, it was wrongly mentioned
as 275 which was a clerical or technical mistake. Since other
things were correctly mentioned, part number was only a
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[PART II—SEC. 3(iii)]
mistake of clerical nature. In para 68 petitioner said that he
also told RO, orally, on 6.4.2009, that Proposers no. 5, 6, 8,
9 and 10 are residents of Mohalla Allapur, Mohile Nagar
and were attached with the Polling Centre/Station Sardar
Patel Junior High School, Allahabad, Allahabad, hence their
identity as electors can be easily searched out through
name/ number of polling centre as the list of polling
centre/stations of 262-Allahabad (North) Assembly
Constituency was available with RO. It is said that a verbal
hot exchange between petitioner and RO took place and
RO said that he knew that petitioner is a practising
Advocate and may get an order from High Court. In his
representation dated 6.4.2009, which he allegedly submitted
at about 2.00 PM, to RO, he requested that he may be
permitted to remove defect or correct part numbers but
RO neither gave this opportunity to cure the defect nor
overlooked the same though it was not of substantial
nature. RO though received representation on 6.4.2009 but
declined to give any acknowledgement.
79. Though petitioner's assertion that he submitted a
letter to RO on 6.4.2009 at about 2.00 PM has been
seriously disputed by the respondents, but a copy thereof
has been filed by petitioner which has been marked as Ex.
P-7 and this has to be examined whether from the
material on record, it can be determined as to what the
petitioner is saying is correct, or not.
80. On 6.4.2009, petitioner claims to have submitted three
letters to different authorities, one to RO at about 2.00 PM
and rest two to Election Observer at 10.30 PM and Chief
Election Commissioner, sent by post.
81. The first one is Ex. P-7 stated to have been given to
RO. A perusal thereof shows that admitting his error in
respect of part number of electoral roll of Proposers no.
5, 6, 8, 9 and 10, petitioner has said that it ought to be 276
instead of 275 and it is a clerical mistake. Therefore, to
verify validity of Proposers, whether they are electors of
concerned Parliamentary Constituency, RO may look into
electoral roll of part number 276 and allow the error to be
corrected or ignore the same. If this letter was actually
submitted, to some extent it can be said that it has
fortified the stand taken by petitioner in the election
petition, but then there come two other letters, one of
which he submitted, as per his own admission, after about
eight and half hours, i.e., at 10.30 PM, to Election Observer
and this document is Ex. P-8. Almost an identical copy
of the aforesaid letter is the letter sent to Chief Election
Officer on the same date by post which is Ex. P-9.
82. Here I find that petitioner has not said anything
about his alleged representation given to RO or the incident
of alleged hot exchange of words with RO etc. On the
contrary, at 10.30 PM, on 6.4.2009, when Ex. P-8 was
handed over by petitioner to Election Observer, this Court
finds that at that time also, the petitioner had believed that
the information that part number he has filled in
nomination paper is correct and Proposers no. 5, 6, 8, 9
and 10 must have found place in part number 275. It
is nowhere mentioned in this entire letter that part number
of Proposers 5, 6, 8, 9 and 10 was 276 and it was wrongly
mentioned as 275 which he allegedly requested to be
corrected before RO, in the earlier part of day. When in the
night on 6.4.2009, petitioner was not aware as to what
was correct part number of Electoral Roll regarding
Proposers no. 5, 6, 8, 9 and 10, to believe that he gave
correct information to RO through his representation
dated 6.4.2009 at 2.00 PM is improbable and unbelievable.
83. Petitioner, very categorically, reiterated in his letter
dated 6.4.2009 which is claimed to have been submitted
to Election Observer at 10.30 PM that part number 275 of
Electoral Roll of the aforesaid Proposers was correct and
their names must find place therein. It would be appropriate
to reproduce what he has said in the aforesaid letter:
^^izLFkkidksa ds uke Hkkx la[;k&275 esa ns[k ysaA ogha ij
gksxkA¸
English Translation by the Court:
"See names of Proposers in Part Number 275. Ought
to be at that very place."
84. In the entire letter (Ex. P-8), there is not even a
whisper that the aforesaid part number has been
wrongly mentioned and correct part number is 276 to
which, by way of Ex. P-7, petitioner attempted to show that
he pointed out this fact to RO. I have no hesitation to
record my finding that copy of letter dated 6.4.2009, Ex.
P-7, which petitioner has placed before this Court, either
does not represent the same copy which he allegedly
submitted to RO, or he did not submit any such letter to
RO, and, is making a wrong statement, or the document
which he has submitted before this Court is subsequently
improved and modified one. Ex. P-8 contains a
endorsement dated 6.4.2009 at 10.30 PM and another letter
in identical terms is addressed to Chief Election
Commissioner, New Delhi, sent by post, which is Ex. P-9.
85. Therefore the documents P-8 and P-9 are more
reliable and when I compare these two documents with Ex.
P-7, I have no hesitation in holding that what has been
stated in Ex. P-7 shows a subsequent manipulation or an
afterthought, on the part of petitioner, who is the
author thereof, to fortify his case and this is not the
correct document. As a matter of fact, it cannot be believed
that petitioner reiterated at 10.30 PM on 6.4.2009 that part
number 275 of aforesaid Proposers was correct while he
was already aware that this part number is incorrect and
according to his own version, he had informed RO about
correct part number as 276 at 2.00 PM, i.e., in the earlier
part of the day. The two stands are mutually destructive,
inconsistent and contrary, therefore it has to go against
petitioner. Ex. P-1 to P-6 have been marked after the same
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83
were proved by Sri Sunil Kumar Srivastava, PW-1 who
was working as Senior Clerk in the District Election Office,
Allahabad. He verified the aforesaid documents on the
basis of official record. Ex. P-7, P-8 and P-9 were proved
by election-petitioner, himself, during his own oral
deposition as PW-4 and he himself has verified these three
documents. Therefore, the veracity of aforesaid documents
has to be examined by comparing and in the light of these
very documents which show a diagonal opposite stand
taken by petitioner himself, making his highly relied on
document, i.e., Ex. P-7, untrustworthy.
86. Now, I come to further evidence which has come on
record in the form of oral evidence. The basic oral
evidence comes from oral deposition of PW-4, i.e., election
petitioner himself. Here, in cross examination, he has said
that he noted part number and serial number from the
electoral roll of Proposers in the morning of 4.4.2009 itself
on a piece of paper which he has not made part of evidence
in these proceedings. He also admits that neither he
submitted any application for certified copy of the electoral
roll of the Allahabad nor deposited any fee therefor. He
found out details of Proposers in the electoral roll himself
on 4.4.2009 itself. He obtained certified copy of electoral
roll in November' 2009, i.e. after filing this election
petition. It is also admitted that in the letter dated 6.4.2009,
which he has submitted to Election Observer, there was no
mention about the representation which he allegedly
submitted to RO in earlier part of the day. Regarding
correct copy of electoral roll, in cross examination, he has
made two contrary statements. On the one hand, he said
that neither he submitted any application form nor
deposited fee for obtaining copy of electoral roll but
then, claims, that the same was made available to him by
Election Office and he possessed it at the time of
submission of nomination paper. He also admitted that
contents of letters which he submitted to Election
Observer and Chief Election Commissioner were same.
He has also contradicted the fact that he did not state
that RO/ARO should look into part no. 276. This fact is ex
facie incorrect. It is very evident from his own document
Ex. P-8 and P-9. No evidence has been produced by
election-petitioner to prove that there was any hot
exchange of words between him and the RO except of his
own statement.
87. On the part of defence, DW-2, Krishna Kumar, has
stated that he was present on the date of scrutiny
throughout in the room of RO. Neither petitioner came in
that Office nor anybody else when his (Election Petitioner's)
nomination paper was taken for scrutiny and was rejected
in presence of DW-2. In the cross examination, an attempt
was made to discredit this witness by proving that he is an
interested person but I do not find much substance
which has come out in the cross examination so as to
discredit the aforesaid witness. His categorical statement
given in the examination-in- chief by way of affidavit,
however, appears to be doubtful for the reason that the
manner in which scrutiny took place on 6.4.2009, he was
not able to say much on the ground that he did not
remember and if that is so, it appears doubtful, how he had
sworn categorically, that the nomination of election
petitioner, when taken for scrutiny, neither he (petitioner)
nor anyone on his behalf appeared before RO/ARO and
the said nomination was rejected in his (DW-2) presence.
88. DW-3, Choudhary Sayeed Ahmad, is another
witness who has stated in examination-in chief by way of
affidavit that after scrutiny, nine nominations were rejected
and in respect of all such matters, where nominations were
rejected, none had appeared before the authority
concerned. Regarding petitioner, it is categorically said
that at the time when his nomination was taken up for
scrutiny, and, his name was called, none appeared before
RO and nomination was rejected in presence of DW-3. In
cross examination, however, he has admitted that he was
Authorized Representative of the candidate Sri Kapil Muni
Karwariya and was present in the room of RO. This witness
was an Authorized Representative of returned candidate,
whose election is under challenge and it makes him an
interested witness. However, the reason of his presence as
Authorized Representative has also been doubted by
petitioner and during cross examination, it is admitted that
the concerned witness has not placed any material on
record to show that he was the Authorized Representative
justifying his presence at the time of scrutiny in the Room
of RO. About time of scrutiny when the nomination of the
petitioner was taken up, he admits of having no such
knowledge.
89. Be that as it may, the fact remains that petitioner has
utterly failed to show that till the time of scrutiny, he
himself was well aware about correct details of his
Proposers with regard to their place in the electoral roll.
According to his own stand, as is evident from record, and
discussed above, the Proposers' name must have found
mention in electoral roll of Part 275 and there was no error,
which he reiterated before Election Observer also.
90. Enough time was given for filing nomination
papers. Petitioner filed his nomination paper on the last
date and, that too, at the fag end when time of filing
nomination paper was going to expire. No advance
preparation was made by petitioner to contest election
inasmuch position of Proposers in various electoral rolls
was also not verified by him, earlier till the last date of
nomination, i.e., 4.4.2009, when he submitted nomination.
He admitted of having made no attempt to obtain certified
copy of electoral roll, to avoid any scope of error with
regard to details of Proposers which was to be mentioned
in nomination paper.
91. In the entirety of the above facts, I find it very difficult
to treat it a deliberate human error. In my view it was a
deliberate negligence and non serious attempt on the part
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THE GAZETTE OF INDIA : JUNE 28, 2014/ASADHA 7, 1936
[PART II—SEC. 3(iii)]
of petitioner in the contest of above election. Not only
very casually he has filled in nomination form, but also
stressed, what he has mentioned therein is correct. He
made no attempt till his nomination was rejected by RO to
show or to find out as to what was correct position of
Proposers in electoral roll. Subsequently, petitioner has
tried to make an improvement but I find this attempt to be
of no benefit for the reason that it stood contradicted by
the documents, which he admitted to have submitted to
Election Observer and Chief Election Commissioner. When
a candidate has failed to assist RO and ARO to find out
correct position or place of his Proposers in the electoral
roll, particularly when electoral roll consists of hundred
and thousand names, as already said, RO is not supposed
to make a roving and fishing enquiry to find out such
information which is to be furnished by the candidate
himself. This is the prime responsibility of the candidate.
An unintentional human error contemplates that correct
information is possessed by the person concerned but he
committed unintentional, undesired error while making
entry in the document. In such case there must be no
doubt about the fact that he possess correct information.
Where, however, the incumbent does not possesses
correct information at all and has made no attempt to find
out correct information, the wrong information he supplied
cannot be said to be a result of indeliberate,
unintentional error. Here is a case, which in my view, does
satisfy requirement of a substantial defect in nomination
form and, therefore, it cannot be said that it has been
wrongly rejected by RO.
92. There is one legal submission, which is very seriously
argued and need be discussed at this stage.
93. Much reliance has been placed by Sri N.K. Pandey,
learned counsel appearing for election petitioner on the
fact that after filing of nomination, RO administered oath
and after having satisfied with the entries made in
nomination paper, acknowledgement/receipt was also
issued. Relying on sub-section (4) of Section 33 of Act,
1951, it is contended that it was the statutory duty of RO
to satisfy himself about the correctness of entries made in
nomination paper when it is presented to him and once
acknowledgement/receipt was issued to petitioner by RO,
having satisfied himself with the requirement of Section
33(4) of Act, 1951, there was no occasion for him to
reject nomination paper at the time of scrutiny on the
ground that any or more entry(s) in nomination paper is/
are incorrect.
94. The submission, in my view, is nothing but
a misconstruction of Section 33(4). In fact, it intends
to add something which is not there. A careful and indepth
reading of Section 33 in its entirety and sub-section (4) in
particular, makes it clear that on presentation of nomination
paper, RO shall satisfy only about the names and electoral
roll of candidate and his proposers entered in the
nomination paper that the same are such as entered in the
electoral roll. The proviso to sub-section (4) clarifies by
stating that an inaccurate description or misnomer or
clerical, technical or printing error in regard to name of
candidate or his proposers etc. shall be overlooked and
RO shall also permit such misnomer etc. to be corrected.
The requirement of Section 33(4) is only, that, if, in the
description of person(s) in nomination paper, there is some
kind of error which otherwise does not go to the root of
the matter, like spelling mistake or printing error etc., the
same would be allowed to be corrected or be ignored. It
does not contemplate that the details, if wrongly filled in
and the same do not tally with the electoral roll,
nomination form shall not be admitted or shall be returned
or shall be rejected. Broadly, RO would have to see on
the date of nomination that nomination paper is filled in all
the columns, required to be duly filled under the rules and
there is no discrepancy with respect to description or title
of the candidate or his proposer(s). However, if correct
details of position of a proposer is not provided in the
nomination form and the proposer is not found in electoral
roll with reference to details mentioned in the nomination
paper, the RO has no power under sub-section (4) of
Section 33 to ask the candidate to provide correct
information and not to accept nomination till correct
information is not supplied or to take any such other steps/
action. All these things can be done by RO only on the
date of scrutiny. Therefore, if RO is not satisfied about
correctness of entries made in nomination form, the action
he could/would have taken, is only at the time of scrutiny
and not earlier thereto. All these stages would have come
only at the time of scrutiny and what is required to be
seen at the time of scrutiny cannot be read in Section
33(4). Both have to be separated from each other. The
mere fact that proviso talks of misnomer, inaccurate
description, clerical, technical or printing error makes it
very clear that it is not the verification of all the details
provided in nomination form which has to be seen at the
time of presentation of nomination paper. What is required
to be done by RO at the time when Section 36(4) would
have its application, this Court cannot read the same so
as ought to have been done at the stage of Section 33(4).
95. This argument can be tested from another angle.
96. There may be a case where nomination form
contains incorrect details/address with regard to electoral
roll information of proposers and if one checks the details
from electoral roll, it is quite possible that one may not
find those proposers in the electoral roll at the place
where it is mentioned as per the information given in
nomination form. The RO or ARO while entertaining
nomination, when it is presented, may fail to notice this
defect either due to failure of their duty as contemplated
in Section 33(4) of Act, 1951 or otherwise. In other words,
the RO may commit a mistake and accept a nomination
form which contains wrong details about the position of
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85
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
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proposers in electoral roll. The candidate may also fail to
provide correct information at any stage. Will that failure
on the part of RO will make it obligatory upon him to take
that nomination correct and not to reject the same on the
date of scrutiny when he failed to find the proposer in
electoral roll as per the information given in nomination,
merely for the reason that on the date when nomination
was presented, he did not raise this objection or he is
bound to go for a cumbersome scrutiny of entire electoral
roll to check, whether proposers' names actually find
therein or not. Can the principle of waiver or estopple
would apply in such a case against RO.
97. In my view, the answer would have to be in
negative. The verification of entries and consequences
are provided under Section 36, which have to be seen at
the time of scrutiny. If at the time of scrutiny, RO finds
that particulars have been wrongly mentioned in
nomination and candidate takes no interest in helping
RO to find out correct position, he would be justified in
rejection of such nomination.
98. In the present case, the election-petitioner has also
failed to prove that he was actually present before RO at
the time when his application was taken up for scrutiny
so as to avail any opportunity of rectification at that
stage. I have already recorded a finding that till the date of
scrutiny and up to late in the night, i.e., about 10.30 pm,
the petitioner was sure that the names of proposers
must be in part No. 275 of electoral roll, and as per his
knowledge, there was no error in the nomination. That
being so, the subsequent version and improvement in the
state of affairs as stood on the date of scrutiny, as tried to
assert and prove before this Court, which has been
disbelieved, as discussed above, cannot help the petitioner
and it cannot be said that RO failed in his duty to give
opportunity to petitioner to rectify the error when
petitioner himself failed to remain present before RO at the
time of scrutiny.
99. In other words, in the present case, petitioner gave
a wrong information about part number of electoral roll of
five proposers in the nomination paper. He being himself
unaware of correct position, could not give correct
information even till the time of scrutiny or when his
application was rejected. Except his oral submission that
he was present at the time of scrutiny, I do not find any
credible evidence on record to show that he was actually
present and the incidents which he alleged to have taken
place before RO at 2.00 pm on 06.04.2009, did actually
occur. His own document which he submitted in the night
to Election Observer, in fact, shows otherwise. It is in
these facts and circumstances, it cannot be said that
mere fact that RO received nomination and issued
acknowledgement, that amounts to condonation of serious
defect in the nomination, about wrong mention of part
number with regard to five proposers. In absence of
those proposers' names in the electoral roll, the RO had
no option but to reject nomination.
100. From whatever way this Court look into this matter,
in my view, this election petition deserve to fail.
101. The above discussion leads to inevitable conclusion
that there is no error in the order passed by RO rejecting
nomination of election-petitioner. The resultant inference
would be that there is no legal or otherwise infirmity in
the election in question. The election of
respondent-candidate cannot be said to be illegal or
otherwise faulty, in any manner.
102. The election petition, therefore, has no merit.
Dismissed accordingly with cost which I quantify to Rs.
5,000/- (Rupees five thousand).
Sd./-
Sudhir Agarwal, J.
Dt. 20.12.2013
AK/PS
[ No. 82/UP-HP/1/2009 (Alld.)]
By Order,
R. K. SRIVASTAVA, Principal Secy.