Hira Singh Pal Vs. Madan Lal  INSC
8 (15 January 1968)
15/01/1968 HEGDE, K.S.
CITATION: 1968 AIR 1179 1968 SCR (2) 778
Representation of the People Act, 1951, ss.
36 and 100Clerical mistake in nomination papers-Duty of Returning
Officer-Nomination papers must not be lightly rejected even in the case of
dummy candidate -Election to he set aside if papers of such a candidate wrongly
The respondent filed two nomination papers
for election to the Legislative Assembly from a constituency in Himachal
Pradesh in the 1967 general election. Both his nomination papers were rejected
at the scrutiny. The first nomination paper was rejected on the ground that the
proposer'& name was wrongly mentioned as being at serial No. 380 of Part 13
of the Electoral Roll of the constituency whereas it was actually at serial No.
380 of Part 23 of the Roll. The second nomination paper was rejected on the
ground that the respondent was shown as the elector at Serial No. 504 of Part 2
of 9-Arki Assembly constituency but really his name was found at serial No. 504
of Part 12 of that constituency.
At the election subsequently held the
appellant was the winning candidate. The respondent filed an election petition
challenging the appellant's election on the ground that his (the respondent's)
nomination papers had been wrongly rejected. The High Court allowed the
petition whereupon, by special leave, the appellant came to this Court. It was
urged on behalf of the appellant, inter alia, that the respondent was only a
dummy candidate who was not even present at the time of the scrutiny and had
filed the petition only because the candidate representing his party had been
HELD : The respondent's nomination papers
were wrongly rejected in a manner impermissible under s. 36 of the
Representation of the People Act and the election must be set aside under s.
100 of the Act. [785 A] it may be that while scrutinising the first nomination
paper the Returning Officer had no material before him to find out whether the
proposer of the candidate was really an elector in the constituency or not but
in the second nomination paper the proposer's name as well as place in the
electoral roll was correctly mentioned. It was improper on the part of the
Returning Officer to have rejected the second nomination paper merely on the
ground that the part of the electoral roll in which the respondent'& name
was recorded was wrongly mentioned because the correct number of the electoral
roll was mentioned in the first nomination paper.
All the required information 'was before the
Returning Officer and the mistake was only clerical. Obviously he rejected the
nomination paper for the reason that the respondent was a dummy candidate but
that was not a matter for him to decide. (784 D-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1112 of 1967.
Appeal under s. 116-A of the Representation
of People Act 1951 from the judgment and order dated July 14, 1967 of the Delhi
High Court, Himachal Bench at Simla in C.O.P.
(Election) Petition No. 3 of 1967.
779 H. R. Gokhale, S. K. Khanna, S. K. Mehta
and K. L. Mehta, for the appellant.
R. K. Garg, Naunit Lal and B. P. Singh, for
The Judgment of the Court was delivered by
Hegde, J. This appeal is directed against the order of the High Court of Delhi
and Himachal Pradesh in Election Petition No. 3 of 1967. That petition related
to the election to the Himachal Pradesh Legislative Assembly during the last
General Election, from 9-Arki Assembly Constituency.
The only ground taken in the petition was
whether the nomination of the respondent was improperly rejected. The
respondent had filed his nomination for the election in question on January 20,
1967. He had filed two nomination papers. The scrutiny took place on January
21, 1967. At the time of the scrutiny, the respondent was not present;
his nomination papers were rejected by the
Returning Officer. The election took place in February, 1967. The two
contesting candidates were the appellant and Hari Das the Congress nominee. The
appellant succeeded by a margin of about 8000 votes. After the results of the
election were announced, the respondent filed an election petition with which
we are now concerned.
The only ground taken in the election petition
as mentioned earlier was that his nomination papers were improperly rejected.
in rejecting the nomination papers of the respondent, the Returning Officer
observed as follows :
"Shri Madan Lal, resident of Village
Parchech, P.O. Ghanahatti District Mahasu filed two nomination papers before me
on 20th January, 1967 which bear serial Nos. 5 and 6. According to the entry in
the nomination paper serial No. 5 Shri Anant Ram proposer has been shown to be
entered at serial No. 383 of 13 of the electoral rolls for 9-Arki Assembly
Constituency. From the comparison with the final copy of electoral rolls for
this constituency, at serial No. 383 of part 13 the name of Shrimati Phullu
wife of Shri Nirjal Singh has been entered. As such this entry in this nomination
paper is wrong.
As regards nomination paper bearing serial
No. 6 the candidate has shown his name to be entered at serial No. 504 of part
2 of the Electoral rolls for 9-Arki Assembly Constituency. From the comparison
with the aforesaid entry in the final copy of the electoral rolls at the
aforesaid serial No. of the aforesaid part one Shrimati Darshnoo wife of Shri
Ghanaya Ram has been 7 80 entered. Hence this entry in the nomination paper
bearing serial No. 6 is incorrect.
At the time of scrutiny neither Shri Madan
Lal nor his proposer or election agent nor any one authorised on his behalf was
present so that he could be given an opportunity for correcting these entries.
This candidate while presenting his nomination papers claimed to be the
substitute candidate of the Indian National Congress who has put up Shri Hari
Dass as their only candidate.
In view of the aforesaid circumstances it
cannot be ascertained whether Shri Madan Lal is an elector in any Assembly
Constituency of Himachal Pradesh or that his proposer Shri Anant Ram is an
elector in the 9-Arki Assembly Constituency. Shri M. R. Gupta, Advocate the
person authorised on behalf of Shri Hari Dass was informed to convey to Shri
Madan Lal that he can approach me, any time upto 3.00 p.m.
today for correcting these entries. Shri
Madan Lal has not turned up as yet. It is now 15 minutes past 3.00 p.m.
In these circumstances there is no
alternative but to reject both these nomination papers as the candidate does
not seem to be interested in correcting these entries and filing proper and
valid nomination papers. These orders are passed ex-parte since Shri Madan Lal
has not cared to turn up.
Sd/R. C. Gupta, 21-1-1967.
Returning Officer, 9-Arki Assembly
Constituency." The two nominations filed by the respondent are marked as
annexures A and B. They read as follows ANNEXURE 'A' Form 2-B (See rule 4)
Election to the Legislative Assembly of Union
territory of Himachal Pradesh (State).
1. Nomination as candidate for election to
the Legislative Assembly from the 9-Arki assembly constituency.
781 Candidate's name Madan Lal His postal
address. Village Parhech P.O. Ghanahatti District, Mahasu.
His name is entered at serial No. 504 of the
Electoral Roll for the 9-Arkiin part No. 12.
Assembly Constituency My name is Anant Ramand
it is in Part No. 13 entered at serial No. 380 Electoral Rollof the Assembly
Constituency for the 9-Arki Date: 20-1-1967.
Sd./Anant Ram Signature of Proposer-.
"Decision of Returning Officer accepting
or rejecting the Nomination paper.
I have examined this nomination paper in
accordance with section 36 of the Representation of the People Act, 1951, and
decide as follows: Rejected.
Shri Anant Ram proposer is not entered at SI.
No. 380 of Part No. 13 of the Electoral Roll of 9-Arki Assembly constituency.
Despite opportunity this entry has not been corrected.
Sd./ R. C. Gupta 21-1-1967 Returning Officer
3-15 P.M., 9-Arki Assembly Constituency. Date 21-1-1967.
1. the above mentioned candidate assent to
this nomination and hereby declare-(a)that I have completed 49 years of age;
(b)that I am sponsored at this election by
the Indian National Congress Party;
(c)that the symbols I have chosen are, in
order of preference (i) Two Bullocks with yoke on (ii) .... and (iii).... x x *
Score out this paragraph, if not applicable.
** Score out the word not applicable.
(to be filled by the returning officer)
Serial No. of nomination paper 5. This nomination was delivered to me at my
office at 1.2 P.M. (hour) on 20/l/67 (date by the *candidate/ Sd. R.C. Gupta
20/l/67 Returning officer, Dated 20/l/67. 9Arki Assembly Constituency.
L3SSup.Cl/68-6 -782 ANNEXURE 'B' Form 2-B
(See rule 4) Nomination paper.
Election to the Legislative Assembly of
Himachal Pradesh (State) I nominate as a candidate for election to the
legislative Assembly from the 9-Arki assembly constituency Candidate's name
Madan Lal His postal addressVillage Pathech P.O. Ghanahati District Mahasu His
name is entered at Serial No. 504, in part No. 2 of the Electoral Roll for the,
9-Arki Assembly Constituency.
My name is Hari Nand and it is entered at
serial No. 799 in Part No. 13 of the Electoral roll for the 9-Arki Assembly
Date : 20-1-1967.
Sd./ Hari Nand Signature of proposer.
Decision of Returning Officer accepting or
rejecting the Nomination paper.
I have examined this nomination paper in
accordance with section 36 of the Representation of the People Act, 1951, and
decided as follows :-Rejected.
1. The above-mentioned candidate, assent to
this nomination and hereby declare :(a) that I have completed 49 years of age
(b) that I am sponsored at this election by the Indian National Congress party;
(c) that the symbols I have chosen are, in
order of preference.
(i) Two bullocks with yoke on (ii)....... and
(iii) *Score out this paragraph, if not applicable.
**Score out the word not applicable.
(to be filled by the Returning Officer)
Serial No. of nomination paper 6 This nomination was delivered to me at my
office at 1.20 P.M.(hour) on 20-1-67 (dated) by the* candidate/ Sd. R.C. Gupta,
Returning Officer, 9-Arki Assembly Constituency Date :20-1-67 7 8 3 The name of
the candidate is not entered at SI. No. 504 of Part No. 2 of Arki Assembly
Constituency Electoral roll; despite opportunity he; has not cared to correct
Sd. / R. C. Gupta Date : 21-1-1967. Returning
Officer, 21-1-67 3-15 P.M. 9-Arki Assembly Constituency.
In the first nomination paper, the proposer
was one Anant Ram. It was mentioned in the nomination paper that he is the
elector shown at serial No. 380 of Part 13 of the Electoral Roll of Arki
Assembly Constituency. This was clearly a mistake. His name is really found at
380 of Part 23. In the second nomination
paper the candidate is shown as the elector at serial No. 504 of Part 2 of
9-Arki Assembly Constituency; but really his name is found at serial No. 504 of
Part 1 2 of that Constituency.
Hence the question is whether the grounds on
which the Returning Officer rejected the nomination papers of the respondent
were substantial grounds as contemplated by s. 36 of the Representation of the
People Act, 1951. ' Before we deal with that question, it is necessary to set
out few more facts. According to the appellant the respondent was not a genuine
candidate; he was a dummy Congress candidate; he never intended to contest the
election. There is basis for this contention. The respondent was the General
Secretary of the Mahasu District Congress Committee. He never applied for any
Congress ticket; nor his name was considered either by the District Congress
Committee or by the Pradesh Congress Committee. He did not give the
contribution required to be given by the candidates to the party; nor did he
give the security prescribed by the party. The Congress had selected Mr. Hari
Dass, one of the then Ministers in the Himachal Pradesh Government for
contesting the constituency in question. His name had been recommended by the
District Congress Committee as well as by the Pradesh Congress Committee. It had
been accepted by the Parliamentary Board. He had paid the necessary
subscription. He had also deposited the prescribed security. It is found from
the evidence of the appellant that both Mr. Hari Dass as well as the respondent
went together to the Returning Officer for filing their nominations. In fact it
is clear from the order of the Returning Officer that the appellant had told
him that he was only a covering candidate for Mr. Hari Dass. It may also be
noted that the respondent had declared that he was a Congress nominee. He had
also asked for the Congress symbols namely a pair of bullocks. It may further
he noted that on the date of the scrutiny, the respondent was absent and there
was nobody to represent him. The Advocate 7 84 who represented the Congress
Organisation did not object to the rejection of the nomination of the
respondent presumably because no one was interested in his nomination as the
nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging
the election because his party's candidate has been defeated. At this juncture,
we may notice that the respondent did not even apply for a copy of the order of
the Returning Officer rejecting his nomination till the election results were
announced. He admitted during his cross-examination that he had acted as the
counting agent of Mr. Hari Dass. It is proved from the evidence of the
appellant that he actively canvassed for Mr. Hari Dass.
From the facts and circumstances established
in this case we have no doubt in our mind that the respondent was at no time a
genuine candidate. He is merely availing himself of the opportunity of the
rejection of his nomination paper for undoing the result of the election.
That, however, is not the end of the matter.
All that we have to consider in this appeal is whether the Returning Officer
was right in rejecting the nomination of the respondent. 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) lie 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 785 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.
For the reasons mentioned above, we dismiss
this appeal but in the circumstances of the case, we direct that the parties
shall bear their own costs throughout.
G.C. Appeal dismissed.