Hari Vishnu Kamath Vs. Gopal Swarup
Pathak  INSC 342 (18 December 1969)
18/12/1969 SIKRI, S.M.
BHARGAVA, VISHISHTHA MITTER, G.K.
CITATION: 1970 AIR 819 1970 SCR (3) 334 1970
SCC (1) 143
Presidential and Vice-Presidential Elections
Rules, 1962 framed under s. 21 of Presidential and Vice-Presidential Elections
Act (31 of 1952)Rule 4(1) requiring nomination papers to be presented
personally by candidate or proposer or seconder-Nomination paper sent by post
whether properly presented-Whether "received" within the meaning of
r. 4(2)- Returning Officer whether can reject such nomination paper before date
of scrutiny-Rule 4(1) whether mandatory or directory.
At the election for the office of
Vice-President held in 1969 the nomination paper of one 'S' was sent by post.
The Returning Officer rejected it forthwith on the ground that it did not
comply with the requirements of r. 4(1) of the Presidential and
Vice-Presidential Rules, 1952 inasmuch as it had not been presented by the
candidate or his proposer or seconder. in person. The said nomination paper was
not put up for scrutiny under r. 6. The respondent won the election. The
petitioner who was one of the losing candidates filed an. election petition
under Art. 71 of the Constitution and s. 14 of the Presidential and Vice-
Presidential Elections Act. 1952 and prayed that the election of the respondent
be declared void under s. 18 of the Act. The questions that fell for
consideration were :
(i) whether the nomination of S had been
wrongly rejected on the ground given; (ii) whether the Returning Officer had
power to reject the nomination before the date of scrutiny;
(iii) whether r. 4(l) was directory or
HELD:(i) Rule 4(1) provides only one method
of presentation i.e. delivery either in person by the candidate or by his
proposer or seconder. Further it mentions the time within which the nomination
paper can be delivered i.e. between the hours of eleven in the forenoon and
three in the afternoon. Therefore, if the nomination paper is not presented in
person either by the candidate or by the proposer or seconder it cannot be
deemed to have been presented at all. There is good reason for making this rule
because otherwise not only the authenticity of the person sending the
nomination paper but also the time of delivery of the nomination paper would be
in doubt. Since the rule provides only one method of presentation that method
must be followed. The provisions of rr. 4(2), 5 and 6 support the above
The nomination paper of 'S' could be rejected
on the ground that it had not been presented in person and received before 3
O'clock in the afternoon on the last date appointed under cl. (a) of sub-Jr.
(1) of r. 4. Such a nomination paper could not be treated to have been
'received' within the meaning of sub-r. (2) or r. 4 and the Returning Officer
was entitled to reject it. [340 F-341 C, HI (ii)There was no force in the
submission that the Returning Officer should have waited till the date of the
As soon as the Returning Officer finds that a
nomination paper has not been duly presented and received he must reject it
outright at the time it is handed over to him.
[341 H-342 Al 335 (iii)Rule 4(l) is
mandatory. To hold otherwise would lead to utter confusion and delay in the
completion of the election. The Returning Officer would not know who and where
to inform about the date of scrutiny, he would not be certain whether it is
genuine, and would have to take evidence as to whether it is a genuine
nomination paper or a forged paper. [342 B]
ORIGINAL JURISDICTION : Election Petition No.
6 of 1969.
Petition under Art. 71 of the Constitution of
India and S.
14 of the Presidential and Vice-Presidential
Election Act (Act XXXI of 1952).
Sarjoo Prasad, P. Paramegwara Rao and K. C.
Dua, for the petitioner.
M.C. Setalvad, N. A. Palkhivala, M. C.
Chagla, J. B. Dadachanji, Ravinder Narain and 0. C. Mathur, for the respondent.
Jagdish Swarup, Solicitor-General, L. M.
Singhvi and S. P. Nayar, -for the Election Commission and Union of India.
The Judgment of the Court was delivered by
Sikri, J. This is a petition under Art. 71 of the Constitution and S. 14 of the
Presidential , & Vice- Presidential Elections Act (XXXI of 1952)-hereinafter
referred to as the Act-praying for a declaration that the election of Shri
Gopal Swarup Pathak, respondent, to the office of the Vice-President of India
The main ground on which this declaration is
sought is that the nomination paper of Dr. Ram Sharan Dass Sakhuja was.
wrongly rejected by the Returning Officer on
August 6, 1969.
The respondent apart from meeting thus ground
has raised a, number of other issues including the issue whether the nomination
paper of Dr. Ram Sharan Dass Sakhuja was genuine, and if not, whether the
petition is maintainable. The learned counsel for the respondent strongly
pressed on us that we should first try this issue suggested by him but as we
have come to the conclusion that the petition must fail on the ground that the
nomination paper of Dr. Ram Sharan Dass Sakliuja was rightly rejected on August
6, 1969, it is not necessary to consider the other issues that arise out of the
pleadings of the parties.
The two issues suggested by the petitioner
which we propose- to discuss are
1. Whether the nomination of Dr. Ram Sharan
Dass, Sakchuja has been wrongly rejected on the ground that the nomination
paper was not delivered in person;
2. Whether the Returning Officer had power to
reject the nomination even before the date of scrutiny.
The relevant facts for determining these
issues may now be set out. On 19th or 20th July, 1969, the office of the Vice
President of India fell vacant on the resignation of the then incumbent, Shri
V. V. Giri. The Election Commission appointed Shri B. N. Banerjee, Secretary,
Rajya Sabha, as Returning Officer for the election of the Vice- President of
India. The Election Commission issued a notification under s. 4 appointing
August 9, 1969, as the last date for filing nomination for election to the
,office of the Vice-President Of India and August 11, 1969, for scrutiny of
nomination papers. A number of candidates filed nomination papers and on August
11, 1969, the Returning Officer made a record of proceedings. The relevant part
of the pro-ceedings reads as follows "I held the scrutiny of nomination
papers for the Vice- Presidential Election today, the 11th August, 1969, at I I
A.M. in my office (Room No. 29) in Parliament House, New Delhi, 24 nomination
papers were delivered to me within the time and in the manner laid down in rule
4 of the Presidential and Vice-Presidential Election Rules, 1952.
These nomination papers related to :-
1. Shri S. Nagappa (One nomination paper)
2. Shri G. S. Pathak (Seventeen nomination
3. Shri Sivashanniugam (Two nomination
papers) (Jagannathan Pillai)
4. Smt. Manohara Nirmala (One nomination
5. Shri B. P. Mahaseth (One nomination paper)
6. Shri Hari Vishnu Kamath (.Two nomination
papers) 3.I gave the candidates and the others present all -facilities for
examining the nomination papers -of all the candidates delivered to me. The
nomination paper were examined by them. No objection was raised to any
nomination papers by any candidate or his representative. I scrutinised all the
nomination papers and I found that they satisfied the requirements of a valid
nomination paper. I accordingly accepted all the nomination papers as valid and
made endorsements on all the 24 nomination papers accepting them.
4. I also brought to the notice of those
present that I had received some nomination papers, and some other papers-
purporting to be nomination papers, by post, and that I could not treat them as
valid nomination papers as they were not delivered to me in accordance with
sub-rule (1) of rule 4 of the Presidential and Vice-Presidential Election
Rules, 1952, and that they also did not comply with, the provisions of law in
other respects. I further mentioned to those present that there werein addition
three other papers which, though presented to me in person, did not comply with
the requirements of the law as they were not accompanied by the certified
extracts from the electoral roll and suffered from other defects. I had not
given any serial number to any of these papers and had rejected all of
them." One of the nominations referred to in para 4 of the proceed- ings
was that of Dr. Ram Sharan Dass Shakuja. It appears that. the nomination papers
of Dr. Shakuja, alleged to be complete in every respect, were not delivered in
person either by Dr. Shakuja. or by the proposer or seconder in person to the
Returning Officer but were received by him by post on August 6, 1969. On that
very day the Returning Officer did not treat the papers as valid as they were
not delivered to him in accordance with sub-r. (1) of r. 4 of the Presidential
and Vice-Presidential Elections Rules, 1952.
In order to discuss the issues mentioned
above it is necessary to set out the relevant statutory provisions.
Under s. 4 of- the Act the Election
Commission by notification appoints for every election (a) the last date for
making nominations, (b) the date for scrutiny of nominations, (c) the last date
for the withdrawal of candidatures, and (d) the date on which poll -shall, if
necessary, be taken. Under s. 5 any person may be nominated as a candidate for
election to the office of Vice-President if he is qualified to be elected to
that office under the Constitution. Subsection (2 ) of s. 5 prescribes that
each candidate shall be nominated by a nomination paper completed in the
prescribed forms and subscribed by the candidate himself as assenting to the
nomination and by two electors as proposer and seconder.
We may assume for the purpose of this case
that the condi- tions laid down in s. 5(2) were complied with.
Section 6 deals with the withdrawal of
candidature and pro- vides that any candidate may withdraw his candidature by a
notice in writing in the prescribed form subscribed by him and delivered before
three o'clock in the afternoon on the date fixed 338 under clause (c) of
subsection (1) of section 4, to the Returning Officer either by such candidate
in person or by his proposer ,or seconder who has been authorised in this
behalf in writing by such candidate.
The learned counsel for the petitioner
rightly conceded that if .a candidate wants to withdraw Ms candidature the
notice in writing must be delivered to the Returning Officer in person by such
candidate or by his proposer or seconder who has been authorised. In other
words no candidate can withdraw by sending a notice in writing by post.
Section 18 gives the grounds for declaring
the election of a .returned candidate to be void. One of the grounds is
"If the Supreme Court is of opinion that the nomination of any candidate
has been wrongly rejected or the nomination of the successful candidate or of
any other candidate who has not withdrawn his candidature has been wrongly
accepted, the Supreme Court shall declare the election of the returned
candidate to be void."- Section 21 gives powers to the Central Government
to make rules and the two matters, among others, on which rules can be made
"(d) the form and manner in which
nominations may be made and the procedure to, be followed in respect of the
presentation of nomination papers;
(e)the scrutiny of nominations and, in
particular, the manner in which such scrutiny shall be, conducted and the
conditions and circumstances under which any person may be present or may enter
objections there at." In pursuance of these, powers rules were framed.
Rule 4 deals with the presentation of nomination papers and is in the following
terms "4. (1) On or before the date appointed under clause (,a) of
sub-section (1) of section 4, each candidate shall, either in person or by his
proposer or seconder, between the hours of eleven in the forenoon and three in
the afternoon, deliver to the Returning Officer at the place specified in this
behalf in the public notice a nomination paper completed in Form 2 in the case
of a Presidential election, and in Form 3 in the case ,of a Vice-Presidential
election, together with a certified copy of the entry relating to the candidate
in the electoral roll for the Parliamentary constituency in which he is
339 (2)Any nomination paper which is not
received before three o'clock in the afternoon on the last date appointed under
clause (a) of sub-section (1) of section 4 or to which the certified copy
referred to in sub rule (I) of this rule is not attached shall be
rejected." Rule 5 prescribes the procedure on receipt of nomination papers
as follows :
"5. On the presentation of a. nomination
paper, the Returning Officer shall- (a) sign thereon a certificate stating the
date and time of presentation of the nomination paper and enter thereon its
(b) inform the person or persons presenting
the nomination paper of the date, time, and place fixed for the scrutiny of
nominations; and (c) cause to be affixed in some conspicuous place in his
office a copy of the nomination paper as certified and numbered under clause
(a) of this rule." Rule 6 provides for the scrutiny of nominations and is
in the following terms :
"6. (1) The candidates, one proposer and
one seconder of each candidate, and one other person duly authorised in writing
by such. candidate, shall be entitled to be present at the time of scrutiny of
nominations; and the Returning Officer shall give them all reasonable
facilities for examining the nomination papers, of all candidates which have
been delievered within the time and in the manner laid down in rule 4.
(2) The Returning Officer shall then examine
the nomination papers and decide all objections which may be made to any of
(3)The Returning Officer may, either on such
objection or on his own motion, and after such summary inquiry, if any, as he
thinks necessary, reject a nomination paper on any of the, following grounds,
(a)that the candidate is not eligible for
election as President or Vice-President, as the case may be, under the
Constitution; or (b)that the proposer or seconder is not qualified to subscribe
a nomination paper under sub-section (2) of section 5; or 340 (c)that the
signature of the candidate, proposer or seconder is not genuine or has been
obtained by fraud; or (d)that the nomination paper has not been duly completed
and the defect or irregularity is of a substantial character; or (e)that the
proposer or seconder has subscribed, whether as proposer or seconder, another
nomination paper received earlier by the Returning Officer at the same
(4)The Returning Officer shall hold the
scrutiny on the date appointed in this behalf under clause (b) of sub-section
(1) of section 4 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 made, the
candidate concerned shall, if he so requires, 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 on which the
proceedings have been adjourned.
(5)The Returning Officer shall endorse on
each nomination paper his decision either accepting or rejecting it and if the
nomination paper is rejected, he shall record in writing a brief statement of
his reasons for rejecting it." The question whether a candidate is
entitled to send his nomination papers by post to the Returning Officer may now
be considered. It will be noticed that r. 4 provides only one manner of
presentation, i.e., delivery either in -person by the candidate or by his
proposer or seconder. Further it mentions the time within which it can be
delivered, i.e., between the hours of eleven in the forenoon and three in the
afternoon. It seems to us that if the nomination paper is not presented in
person either by the candidate or by the proposer or the seconder. it cannot be
deemed to have been presented at all. There seems to be good reason for making
this rule because otherwise not only the authenticity of the person sending the
nomination paper will be in doubt but also the time of the delivery of the
nomination paper would be in doubt.
Be that as it may, if the rule provides one
method of presentation that method of presentation must be followed.
That this 341 is the only method of
presentation of nomination papers is home out by subsequent provisions.
Sub-rule (2) of r. 4 provides that any nomination paper which is not received
before 3 o'clock in the afternoon on the last date appointed under cl. (a) of
sub-s. (1) of s. 4 shall be rejected.
This shows that even if a nomination paper is
presented personally but after 3 o'clock in the afternoon it has to be
rejected. The rule proceeds on the basis that the presentation must have been
either 'in person or by the pro- poser or the seconder. If a nomination paper
is received by post it would be difficult to say that it has been presented and
received before 3 o'clock on the last date appointed under cl. (a) of sub-s. (
1 ) of s. 4.
Rule-5 also proceeds on the basis that the
presentation of a nomination paper must be in person because it requires the
Returning Officer to sign thereon a certificate stating the date and time of
presentation of the nomination paper and inform the person or persons
presenting the nomination paper of the date, time and place fixed for the
scrutiny of nominations. It is clear that r. 5 contemplates only one method of
presentation. This is again evident from r. 6 which directs the Returning
Officer inter alia to give the candidates and other authorised persons present
reasonable facilities for examining the nomination papers of all candidate s
which have been delivered within the time and in the manner laid down in r. 4.
In other words, the nomination papers which have not been delivered within time
and in the, manner laid down in r. 4 have not to be shown for purposes of
The learned counsel for the petitioner
contends that sub-r.
(2) of r. 4 gives two grounds of rejection,
one that the nomination paper is not received before 3 o'clock in the afternoon
of the last date appointed under cl. (a) of sub-s.
(1) of s. 4, and the second that the
certified copy referred to (in sub-r. (1) of r. 4 is not attached. He further
says that r. 6 gives five more grounds of rejection. He says that the ground on
which the nomination paper of Dr. Ram Sharan Dass Shakuja has been rejected is
not covered by either sub.-r. (2) of r. 4 or r. 6 and accordingly the
nomination paper of Dr. Ram Sharan Dass Shakuja could not have been validly
It seems to us that this nomination paper
could be rejected on the ground that it has not been presented in person and
received before 3 o'clock in the afternoon on the last date, appointed under
cl. (a) of sub-r. ( 1 ) of r. 4. Such a nomination paper could not be treated to
have been received within the meaning of sub-r. (2) of r. 4 and the Returning
Officer was entitled to reject it.
There is no force in the second submission
that at any rate the Returning Officer should have waited till the date of the
scrutiny L7Sup.(CI)170-7 342 because as soon as he finds that a nomination
paper has not been duly presented and received he must reject it outright at
the time it is handed over to him.
The learned counsel contends that even if
there has been a breach of r. 4(l), the rule is not mandatory and the breach of
it should not be deemed fatal. We are unable to agree with this submission. As
we have mentioned before, the rules contemplate only one method of presentation
and if that method is not followed the nomination papers cannot be held to be
validly presented and must be rejected outright.
To hold otherwise would lead to utter
confusion and delay in the completion of the election. The Returning Officer
would not know who and where to inform about the date of scrutiny;
he would not be certain whether it is
genuine, and would have to take evidence as to whether it is a genuine
nomination paper or a forged paper.
In the result the petition fails and is
dismissed with costs. The petitioner will pay to the respondent Rs. 500 as total
amount of costs.
G.C. Petition dismissed.