Ranjit Singh Vs. Pritam Singh &
Ors [1966] INSC 39 (8 February 1966)
08/02/1966 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
CITATION: 1966 AIR 1626 1966 SCR (3) 543
CITATOR INFO:
R 1970 SC2097 (229) F 1988 SC1796 (8)
ACT:
Representation of the People Act (43 of
1950), s. 33(5)Requirements of section-Copy of electoral roll whether to be
filed by candidate with each nomination paper-Copy of electoral roll of
assembly constituency whether can be filed in election for Parliament-'Part',
of electoral roll to be filed-Filing of incomplete copy of 'part' whether
defect of substantial character for the purpose of s. 36(4).
HEADNOTE:
The appellant's election to Parliament was
challenged by the first respondent on the ground that the nomination papers of
the third candidate, W, had been wrongly rejected by the returning officer and
this had materially affected the result of the election. We had filed three
nomination papers with one only of which he had filed a copy of the electoral
roll of the assembly constituency in purported compliance with s. 33(5) of the
Representation of the People Act, 1950. The nomination paper with which W had
filed the said copy was rejected on account of technical defects; the other two
were rejected because no such copy was filed with them. The Election Tribunal
dismissed the first respondent's petition holding that the returning officer
had rightly rejected the nomination papers of W. The High Court took the
opposite view and set aside the election. The appellant came to this Court by
certificate and contended that W had not complied with s. 33(5) because (i)
under that section a copy of the electoral roll must be produced with every
nomination paper, (ii) W had filed a copy of the electoral roll of the assembly
constituency and not of the Parliamentary constituency, (iii) the copy produced
was not a complete copy of the relevant 'part' of the electoral roll.
HELD : (i) The returning officer was wrong in
not looking at the copy of the electoral roll filed with one of the nomination
papers filed by W when dealing with the other nomination papers filed by him.
Section 33(5) does not require that a copy must be filed with each nomination
paper or that any copy should be filed at all, for the candidate is given the
alternative to produce before the returning officer such copy at the time of
scrutiny. The purpose of filing the copy is to ensure that the returning
officer is able to check whether the candidate concerned is qualified or not
and that purpose would be effectively served even if only one copy is filed
with one nomination paper and no copies are filed with the other nomination
papers by the said candidate. [547 F-548 D] (ii) The electoral roll for a
parliamentary constituency is made up by stitching together the electoral rolls
of the assembly constituencies comprised therein. Therefore if a candidate
files a copy of the electoral roll of an assembly constituency that copy is
sufficient to show that he is an elector in the parliamentary constituency in
which that assembly constituency is included. W had filed copy of the assembly
constituency in which he was recorded as an elector and the High Court was
right in rejecting the contention based on the fact that the copy of the roll of
the parliamentary constituency was not filed. [548 G, H] 544 (iii) Under r. 5
of the Registration of Electors Rules, 1960 it is provided that "the roll
shall be divided into convenient parts which shall be numbered
consecutively".
When a. 33(5) refers to a copy of the
relevant parts of the electoral roll it means a part as defined in r. 5. In
producing not the full part but only a portion of the electoral roll in which
he was recorded as an elector W did fail to comply with the requirements of s.
33(5). A complete copy would carry the various amendments made in the roll and
enable the returning officer to see whether the name of the candidate continued
in the roll for the whole of the relevant period. The High Court was not right
in its view that the production of an incomplete copy was not a defect of
substantial character which would make the nomination paper liable to be
rejected. The nomination papers of W were rightly rejected by the returning
officer though for different reasons. [549 D; 551 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 459 of 1965.
Appeal by special leave from the judgment and
order dated July 14, 1964 of the Punjab High Court in First Appeal from Order
No.1 E of 1964.
Bishan Narain, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for the appellants.
S. S. Shukla, for respondent No. 1.
The Judgment of the Court was delivered by
Wanchoo,J. This is an appeal by special leave from the judgment of the Punjab
High Court. In the general election held in 1962 for Parliament (House of the
People), the appellant was elected from the Sangrur parliamentary.
constituency. Pritam Singh respondent was
also one of the contesting candidates but lost in the election. Thereupon he
filed an election petition against the appellant challenging his election on a
number of grounds. In the present appeal we are only concerned with one ground,
and that was that the nomination papers of one of the candidates for the
,election, namely, Wazir Singh, had been rejected improperly by the returning officer.
Wazir Singh had filed three nomination papers; with one of them he had attached
a copy of a part of the electoral roll. He attached no such copy with the other
two nomination papers. When the nomination papers were being scrutinised, an
objection was taken to the validity of the nomination papers. The returning
officer first took up the nomination paper with which a copy of part of the
roll had been filed and rejected it on the ground that the name of the
parliamentary constituency and the name of the village and the assembly
constituency and the part number of the electoral roll of the candidate was not
mentioned also because the name of the parliamentary constituency (House of the
People) of proposer was not given. After rejecting this nomination paper, the
returning offices took up the other two nomination papers and rejected them on
the ground that a copy of the electoral roll of the constituency concerned or
of the relevant part thereof or a certified 545 copy of the relevant entries
had not been filed along with these nomination papers. It may be added that the
returning officer refused to look into the copy of the part of the roll which
Wazir Singh had filed along with his nomination paper which the returning
officer had already rejected before-he took up the other nomination papers.
The main contention of respondent Pritam
Singh in the election petition was that the returning officer was wrong in not
looking into the copy of the part of the roll which had been filed with the
first nomination paper of Wazir Singh and that merely because that nomination
paper had been rejected, the returning officer was not precluded from looking
into the copy of the part of the roll which had been produced with that
nomination paper for the purpose of scrutiny of the other two nomination
papers. The appellant on the other hand contended that the nomination papers
had been rightly rejected, and this contention was based on three points raised
on his behalf, namely-(i) that a copy of the electoral roll of that constituency
or a relevant part thereof or a certified copy of the relevant entries of such
roll should have been produced with each nomination paper separately; (ii) in
any case the copy produced should have been of the parliamentary constituency
and not of the assembly constituency; and (iii) that the copy produced of the
part of the roll was not a complete copy of the part and therefore was not a
compliance with the requirements of s.
33 (5) of the Representation of the People
Act, No. 43 of 1950, (hereinafter referred to as the Act).
The Election Tribunal seems to have taken the
view that the copy filed along with the first nomination paper could not be
looked into when the returning officer came to scrutinise the other nomination
papers, even if it might be assumed to be a copy of the parliamentary electoral
roll. It further held that even if the copy could be looked into, it was not a
complete copy and therefore there was no compliance with s. 33 (5) of the Act
and in consequence the Tribunal held that the returning officer was justified
in rejecting the nomination papers notwithstanding the provisions of s. 36 (4)
of the Act.
Pritam Singh then went in appeal to the High
Court. The High Court held that the returning officer was wrong in not looking
into the copy which had been produced along with the first nomination paper,
and that the copy produced, though it was apparently of an assembly
constituency, could also be taken to be a copy of the parliamentary roll.
Lastly on the question whether the copy produced was a complete copy or not,
the High Court held that the copy actually produced, though it admittedly did
not contain certain pages, was sufficient for the purposes of s. 33 (5) of the
Act. In this view, the High Court held that one of the nomination papers of 546
Wazir Singh was improperly rejected and in consequence of that the result of
the election was materially affected. It therefore set aside the election. The
High Court having refused to grant a certificate, the appellant applied to this
Court for special leave which was granted; and that is how the matter has come
before us.
The same three points which were urged before
the Tribunal on behalf of the appellant have been raised before us. In the
first place it is urged that the necessary copy required under s. 33 (5) of the
Act must be produced with every nomination paper, and that it is not enough
where more nomination papers than one are filed that a copy should have been
filed with only one of them. Secondly it is urged that the copy produced was of
the assembly constituency while it should have been of the parliamentary (House
of the People) constituency. Lastly the argument is that in any case the copy
produced was not complete and therefore there was no compliance with S. 33 (5)
of the Act. The returning officer therefore was justified in rejecting the
nomination paper under S. 36 (2) (b) of the Act and that s. 36 (4) did not
apply in the circumstances of the case. We shall deal with these points
seriatim.
Section 32 at the relevant time provided that
"any person may be nominated as a candidate for election to fill a seat if
he is qualified to be chosen to fill that seat under the provisions of the
Constitution and this Act."-Section 4 (d) of the Act requires that in the
case of any other seat for the House of the People besides those mentioned in
cls. (a), (b) and (c) of that section, a person has to be an elector for any
parliamentary constituency (House of the People) to be entitled to stand for
election to the House of the People. It is with this qualification alone that
we are concerned in the present appeal. "Elector" is defined in s.
(2) (e) of the Act as meaning "in
relation to a constituency a person whose name is entered in the electoral roll
of that constituency for the time being in force and who is not subject to any
of the disqualifications mentioned in section 16 of the Representation of the
People Act, 1950." Therefore if a person is an elector in a parliamentary
(House of the People) constituency and is not subject to any disqualification
he can stand for election to the House of the People from any constituency.
Then we come to s. 33 (5). The object of this
provision obviously is to enable the returning officer to check whether the
person standing for election is qualified for the purpose. The electoral roll
of the constituency for which the returning officer is making scrutiny would be
with him, and it is not necessary for a candidate to produce the copy of the
roll of that constituency. But where the candidate belongs to another
constituency the returning officer would not have the roll of that other
constituency with him and therefore the provision contained in S. 33 (5) has
been made by the legislature to enable the returning officer to check that the
candidate is qualified 547 for standing for election. For that purpose the
candidate is given the choice either to produce a copy of the electoral roll of
that other constituency, or of the relevant part thereof or of a certified copy
of the relevant entries in such roll before the returning officer at the time
of the scrutiny, if he has not already filed such copy with the nomination
paper. Naturally where the candidate is standing for a parliamentary
constituency (House of the People) he will have to file a copy of the roll of some
parliamentary constituency. The argument on behalf of the appellant is that
under the proviso to s. 33(6) a candidate is entitled to file upto four
nomination papers and therefore when s. 33(5) says that a copy would be filed
with the nomination paper it requires that one copy should be filed with each
nomination paper and if that has not been done there is no compliance with s.
33(5). Section 33(5) does not require that a copy must be filed with each
nomination paper for, the candidates is given the alternative to produce before
the returning officer such copy at the time of the scrutiny. So the candidate
need not file any copy with the nomination paper and it is enough if he has a
copy in his possession which he produces before the returning officer at the
time of the scrutiny. Further there is nothing in s. 33(5) which requires that
if a candidate has (say) filed four nomination papers he should have four
copies with him to produce before the returning officer at the time of the
scrutiny. It would in our opinion be enough if he has one copy with him at the
time of the scrutiny and shows it again and again as each nomination paper is
taken up for scrutiny by the returning officer. We see no sense in holding
that. in such a situation the candidate should arm himself with four copies for
the purpose of showing the copy to the returning officer at the time of
scrutiny. The same copy in our opinion can be produced again and again before
the returning officer as he takes up the scrutiny of each of the nomination
papers filed on behalf of a candidate. If that is so we see no difficulty in
holding that where a number of nomination papers have been filed and a copy has
been filed with one of them, that is enough. Again we see nothing in s. 33(5)
which prevents a returning officer from looking at the copy filed with one
nomination paper, even after that nomination paper has been rejected or with a
nomination paper which is vending before him for scrutiny, when he comes to
deal with other nomination papers. As we have said before, the purpose of
filing the copy is to ensure that the returning officer is able to check
whether the candidate concerned is qualified or not and that purpose would be
effectively served even if only one copy is filled with one nomination paper
and no copies are filed with the other nomination papers. It may be that for
certain purposes each nomination paper stands by itself, but so far as filing
of a copy with a nomination paper under S. 33(5) is concerned, we must look at
the object behind the provision, and if that object is served by filing a copy
with one nomination paper, we see no sense in requiring that where a number of
nomination papers are filed there should be a copy with each, nomination paper.
There is nothing in s. 33(5) which prevents them returning officer from looking
at a copy filed with a nomination paper which has been rejected, or which is
still to be scrutinised for the purpose of satisfying himself when he takes up
the other. nomination papers that the candidate is qualified to stand. Nor has
any rule been shown to us which in terms prevents the returning officers from
looking into a copy which has been filed with a nomination paper (which might
have already been rejected) for the purpose of scrutinising other nomination
papers of the same candidate. If the purpose of s. 33(5) can be served by the
production of one copy at the time of scrutiny when it has not been filed with
the nomination paper, we do not see why that purpose could not be served by
filing a copy with one nomination paper where more nomination papers than one
have been filed by the same candidate. We therefore agree with the High Court
that the returning officer was wrong in not looking at the copy filed with one
nomination paper when he was dealing with other nomination papers of Wazir
Singh.
This brings us to the second point raised
before us, namely, that the copy filed was not of the parliamentary (House of
the People) constituency but of the assembly constituency.
This contention also has no force. If we look
at the Representation of the People Act, 1950 we find that Part III thereof
provides for the preparation of electoral rolls for assembly constituencies. So
far as parliamentary constituencies (House of the People) are concerned, s. 13D
provides inter alia that the electoral roll for every parliamentary
constituency shall consist of the electoral rolls of so much of the assembly
constituencies as are comprised within that parliamentary constituency; and it
shall not be necessary to prepare or revise separately the electoral roll for
any such parliamentary constituency. It is clear therefore that the electoral
roll for a parliamentary constituency is no other than the electoral roll for
the assembly constituencies comprised within that parliamentary constituency.
It is not in dispute that the electoral roll for a parliamentary constituency
is made up by stitching together the electoral rolls of the assembly
constituencies comprised therein. Therefore if a candidate files a copy of the
electoral roll of an assembly constituency, that copy is sufficient to show
that he is an elector in the parliamentary constituency, in which that assembly
constituency is included. The argument that the copy filed in the present case
did not comply with s. 33(5) as it was not a copy of the parliamentary
constituency must therefore fail. The copy was of an assembly constituency in
this case; and if the candidate was an elector in the assembly constituency he
would be an elector in the parliamentary (House of the People) constituency
which includes 549 that assembly constituency. The High Court therefore was
right in rejecting the contention that the copy of the roll of the
parliamentary (House of the People) constituency was not filed.
This brings us to the last point raised on
behalf of the appellant, namely, that the copy filed was not a complete copy
and therefore there was no compliance with s. 33(5) of the Act. It is not in
dispute that the copy filed was not a complete copy. The appellant produced a
complete copy of that part of the roll and that showed that pages 19 to 22 and
page 25 of that part of the roll were not filed by Wazir Singh. Now s. 33 (5)
gives three options to a candidate in the matter of filing a copy. He may file
either a copy of the electoral roll which means a copy of the entire electoral
roll of the parliamentary (House of the People) constituency, or a copy of the
relevant parts thereof, which means the whole of the parts concerned. Under the
Registration of Electors Rules, 1960 (hereinafter referred to as the Rules), it
is provided by r. 5 that "the roll shall be divided into convenient parts
which shall be numbered consecutively". Therefore when s. 33(5) refers to
a copy of the relevant parts thereof, it means a part as defined in r. 5 above.
Besides these two alternatives, a candidate has a third alternative, namely,
the production of certified copies of the entries of his name and the name of
the proposer from any roll. In the present case, the candidate Wazir Singh
chose the second alternative, namely, he produced a copy of the relevant part
thereof. The part in question produced in this case was part IV of the Simla
legislative assembly electoral roll. Section 33(5) therefore required the
candidate (namely, Wazir Singh) to produce the whole of this part. It is not in
despute that he did not produce the whole of this part and the question is
whether his failure to do so would result in the rejection of his nomination
paper.
To decide this question it is necessary to
refer to the Rules. Rule 10 requires that "as soon as the Roll for a
constituency is ready, the registration officer shall publish it in draft by
making a copy thereof available for inspection and displaying a notice in form
5." Under r. II, the registration officer is required to give further
publicity to the roll and to the notice in form 5. Thereafter r. 12 provides
for claims for the inclusion of a name in the roll and objections to an entry
therein. After such claims and objections have been made, the registration
officer has to consider them under r. 18. Under r. 19, he gives a hearing if
necessary and thereafter he orders the inclusion of names in the roll or
exclusion of' names from the roll under r. 20. Then under r. 22, the
registration officer has to prepare a list of amendments to carry out his
decisions under ff. 18, 20 and 21 and he may correct any clerical or printing
errors or other inaccuracies subsequently discovered in the roll. He then
publishes the roll together with the list of 550 amendments by making a complete
copy thereof available for inspection, and displaying a notice in form 16. On
such publication the roll together with the list of amendments shall be the
electoral roll of the constituency.
The scheme of these Rules therefore, is that
a draft is first prepared. Thereafter claims and objections are disposed of. If
any claim is admitted, the name is included in the roll, if any objection is
allowed the name already in the draft roll (or may be in an earlier amendment)
is deleted. This inclusion or deletion is made by publishing amendments to the
roll and thereafter the draft roll along with one or more amendments becomes
the electoral roll of the constituency. It will be seen from this that where a
name is excluded on an objection being allowed, the name is not scored out.
What the rule provides is that deletion of a name from a draft or even from an
earlier amendment made by inclusion by the registration officer, is included in
the list of amendments published Under r. 23, an appeal is allowed from any decision
of the registration officer including a name or excluding a name, so that where
the registration officer includes a name after hearing a claim that is subject
to an appeal and the appellate officer may reject the claim whereupon the
amendment made by the registration officer by including a name may fall
through.
Under sub r. (5) of r. 23 of the Rules, the
registration officer is given power to cause such amendments to be made in the
roll as may be necessary to give effect to the decisions of the appellate
officer. This shows that when S.
33 (5) requires that a copy of the relevant
part of the roll may be filed or produced the copy is to be a complete copy
along with all amendments, for it may be that even though a name may be
included in the first amendment by the registration officer it may be excluded
in the second amendment if the appellate officer has rejected the claim.
We have already said that the object of
producing the copy under s. 33(5) is to enable the returning officer to check
whether the candidate and the proposer are qualified or not, one for the
purpose of standing and the other for the purpose of proposing. In order to
check this, the returning officer must have a complete copy of the relevant
part. If the copy is not a complete copy it is possible that a name which may
have been included in the draft or in the first amendment may have been
excluded in the second amendment made on the basis of an order of the appellate
officer.
Therefore to enable the returning officer to
decide whether, a candidate is qualified to stand or whether a proposer is
qualified to propose he must have a complete copy of the relevant part of the.
roll. If he has not a complete copy he will not be able to decide whether the
candidate or the proposer has the necessary qualification. In the present case
it is not in dispute that Wazir Singh did not produce a complete copy of Part
IV of the roll. Part IV consisted 551 of 25 pages; of these Wazir Singh did not
produce pages 19 to 22 and page 25. Page 25 as appears from the complete copy
of the roll filed by the appellant contained a second list of amendments. It is
true that Wazir Singh's name did appear in the first amendment at No. 1853; but
that as we have already shown was not conclusive for the second amendment which
was not produced might have deleted that name. Therefore the copy produced by
Wazir Singh not being complete was not sufficient to enable the returning
officer to decide whether he was qualified to stand or not for his name might
have been deleted in the second list of amendments in which case he would not
have been qualified.
It is true that in actual fact it appears
from the copy which was produced by the appellant before the Tribunal that
Wazir Singh's name was not deleted in the second list of amendments; but that
appears from the copy produced by the appellant before the Tribunal and not
from the copy produced by Wazir Singh before the returning officer. Section
33(5) requires that it is the copy produced by the candidate which should show
whether he is qualified or not and for that purpose a copy produced by the
candidate should be complete whether it is of the roll or of the relevant part
thereof.
To such a case S. 36(4) has no application.
That provision is to the effect that the returning officer shall not reject any
nomination paper on the ground of any defect which is not of a substantial
character. But the non-production of a complete copy of the relevant part in
our opinion is a defect of a substantial character for it makes it impossible
for the returning officer to decide whether the candidate s qualified or not.
Qualification for standing for election is a matter of substantial character.
We are therefore of opinion that the High Court was not right in the view it
took that the production of an incomplete copy of the relevant part was not a
defect of a substantial character which would make the nomination paper liable
to be rejected.
The fact that the returning officer rejected
the nomination paper on some other ground is of no consequence. If there was in
truth a defect of a substantial character in the matter of compliance with s.
33 of the Act, the nomination paper was liable to be rejected, and if it was so
rejected, rejection would be proper whatever may have been the reason given by
the returning officer. In the present case we are of the opinion that the
production of a copy of the electoral roll which is incomplete is a defect of a
substantial character. This defect will invalidate all the nomination papers. The
nomination papers of Wazir Singh were rightly rejected by the returning
officer, though he gave different reasons for doing so.
The appeal therefore succeeds and is hereby
allowed with costs. The election petition is dismissed. Pritam Singh,
respondent, will pay the costs.
Appeal allowed.
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