Ram Awadesh Singh Vs. Sumitra Devi
& Ors  INSC 334 (3 December 1971)
CITATION: 1972 AIR 580 1972 SCR (2) 674
F 1973 SC 276 (5) RF 1976 SC1187 (31) D 1985
SC 847 (23)
Representation of the People Act, 1951, ss.
33(4) and 36(4)--Nomination paper--Mistaken entry as to candidates' name in
electoral roll--Mistake not substantial--Acceptance of nomination paper does
not vitiate election.
Evidence--If several instances of corrupt
practice are not separately proved they have no collective effect.
During the midterm election held in 1969 in
Bihar the respondent and 11 others contested from the Arrah Assembly
Constituency. The appellant was declared elected as having obtained the highest
number of votes. His nearest rival was the respondent.' The respondent filed an
election petition challenging the election of the appellant on various. The
principal ground taken was that the result of the election had been material
affected by the improper acceptance of the appellant's nomination papers. It
was alleged that nomination Paper showed that r the appellant's name was
registered as an elector in the Arrah Constituency whereas at the relevant time
it had been removed therefrom.
The returning Officer was therefore wrong in
accepting the nomination paper. The other allegations against the appellant
related to corrupt practice. The High Court rejected the allegations as regards
corrupt practice but it set aside the election of the appellant on the ground that
the nomination paper had been improperly accepted and the election had been
materially affected thereby.. In appeal to this Court,
HELD : (i) The appellant was fully qualified
to be nominated at the election. The only thing said against his nomination was
that his nomination paper was not properly filled in.
It was proved from the evidence that the
Returning officer did look into the nomination paper but unfortunately he also
did not notice that the name of the appellant had been removed from the electoral
roll of Arrah constituency. If he had noticed F that fact he would have asked
the appellant either to correct the mistake or to file a fresh nomination
paper. The appellant filed his nomination paper on the 6th of January 1969 and
the last date for filing the nomination paper was the 8th of that month. That
being so there would have been no difficulty for him neither to correct the
nomination paper filed or to file a fresh nomination paper.
The appellant had with him a certified copy
of the electoral roll of Sandesh Constituency where his name was enrolled and
he had shown the same to the Returning Officer. Mistakes complained of occurred
because both the appellant as well as the Returning Officer merely looked into
the main voters' list in Arrah constituency but overlooked the deletion noted
in a separate list [670 A-D] From a combined reading of ss. 33 and 36 of the
Representation of the People Act, 1961 it is clear that a mis-description as to
the 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. The
High Court was accordingly not justified in allowing the election petition on
the ground that the nomination paper of the appellant was improperly accepted.
[681 A; 683 E] 675 In view of the above
finding the further question whether the result of the election was materially
affected did not survive for consideration. [683 E-F] (ii) The appeal of the
respondent on the question of corrupt practice had no merit. The three
instances mentioned were in the opinion of the High Court not established by
the evidence. Each instance of a corrupt practice pleaded has to be established
separately. If every one of the instances was not proved all of them put
together cannot be accepted as true because of the volume of evidence. [685
B-C] The election petition must therefore be dismissed.
Karnail Singh v. Election Tribuna, Hissar
& Ors., 10 E.L.R.
189, Rangilal Choudhury v. Dahu Sao &
Ors.,  2 S.C.R.
401, Namdeo Chimnaiji Tapre & Anr. v.
Govindas Ratanlal Bhatia & Ors.. I.L.R. 1964 Bom. 114 and Wey Kanta Barooah
Kusharam Nath & Ors,, XXI E.L.R. 459,
Narbada Prasad v. Chhagal Lal & Ors.,
 I S.C.R. 499, Ram Dayal v. Brijrai Singh & Ors.,  I S.C. R.
530 and Brijendralal Gupta find Anr. v. Jawalaprasad & Ors.,  3
S.C.R. 650, distinguished.
Vashist Narainin Sharma v. Dev Chandra and
Ors.,  S.C.R. 509, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1384 and 1584 of 1970.
Appeals under Section 116-A of the
Representation of the People Act, 1951 from the Judgment and Order dated
May.22, 1970 of the Patna High Court in Election Petition No. 2 of 1969.
J. P. Govat, Subhagmal Jain, S. P. Mukherjee,
Pranab Chatterjee and G. P. Roy, for the appellant (in C.A. No. 1384 of 1970)
and respondent No. 1 (in C.A. No. 1584 of 1970).
V. M. Tarkunde, P. N. Tiwari, 0. C. Mathur,
Ravinder Narain and J. B. Dadachanji, for respondent No. 1 (in C.A. No. 1384 of
1970) and the appellant (in C.A. No. 1584 of 1970).
The Judgment of the Court was delivered by
Hegde, J. These are cross-appeals under s. 116-A of the Representation of the
People Act, 1951 (to be hereinafter referred to as the Act) arising from an
election petition filed by the first respondent (who for the sake of
convenience will hereinafter be referred to as the respondent), before the High
Court of Patna.
During the last midterm election for the
Bihar Legislative Assembly held in the beginning of 1969, the appellant, the
respondent and 1 1. other contested from the Arrah Assembly Constituency. The
last date for filing the nomination was January 8, 1969 and the date of
scrutiny was January 9, 1969. The poll took place on February 9, 1969 and the
votes were counted on the next day. The appellant was declared elected as
having obtained the highest number of votes i.e 13,556. His nearest rival was
the respondent 676 who secured 12,278 votes. The appellant was the nominee of
the Socialist party and the respondent was the nominee of the Congress party.
After the publication of the results in the
official gazette, the respondent filed the election petition challenging the
validity of the appellant's election on various grounds. The principal ground
taken by her was that the result of the election had been materials affected by
the improper acceptance of the appellant's nomination papers. She also charged
the appellant with the commission of various corrupt practices to which
reference will be made at a later stage. The learned trial judge accepted the
contention of the respondent that the result of the election had been
materially affected by the improper acceptance of the appellant's nomination.
He accordingly set aside the election of the appellant; but lie ,rejected the
contention of the respondent that the appellant was guilty of any corrupt
practice. Aggrieved by the decision of the High Court, the appellant has filed
Civil Appeal No. 1384 of 1970 and the respondent has filed Civil Appeal No. 1.
5 84 of 1970.
The principal questions that arise for
decision are : (1) whether the defects found in the nomination paper of the
appellant are, of " substantial character" within the meaning of that
expression in s. 36(4) of the Act and (2) whether it in is established that the
acceptance of the nomination of the appellant had materially affected the
result of the election.
After dealing with those questions, we shall
proceed to consider the appeal of the respondent challenging the conclusion of
the trial court regarding the corrupt practices alleged to have been committed
by the appellant.
Before proceeding to consider the relevant
provisions in the Act, it is necessary to set out a few more facts. The
appellant has been contesting from the Arrah constituency from about the year
1962. He represented that constituency before the dissolution of the Bihar
He was registered as on elector in the
Sandesh Assembly Constituency of the Bihar State. His name continued to be on
the electoral roll of that constituency even at the time he filed his
nomination from the Arrah constituency on January 6, 1969 i.e. two days before
the last date for filling the nomination. It appears that in 1968, his name was
also entered in the electoral roll of Arrah constituency. But later on,
evidently because. his name stood entered in the Sandesh constituency, the same
was deleted from the Arrah constituency. But this deletion was done without
notice to the appellant. The deletion was shown in a separate supplemented
list. In the main electoral roll, his name continued to be shown in the Arrah
constituency. According to the appellant when he came, to file his nomination
paper, he was not aware of the fact that his name was entered in the electoral
677 roll of the Arrah constituency. Therefore he had brought with him a
certified copy of the electoral roll of the Sandesh constituency. But in the'
morning of January 6, 1969 he came to know that his name was also in the Arrah
constituency. At that time he did not notice the deletion of his name which was
in a separate list. Therefore in his nomination paper, he entered his electoral
roll No., as shown in the electoral roll of Arrah constituency. But at the,
same time he showed to the Returning Officer the certified copy of the
scrutiny, no one objected to the nomination of the appellant. The Returning
Officer supports this version of the appellant. After checking the name of the
appellant as well as his electoral number as found in the electoral roll of
Arrah constituency, and also the names and electoral roll number of his
proposers, the Returning Officer received the nomination paper filed by him. At
the time of the scrutiny, no one objected to the nomination of the appellant.
The Returning Officer accepted his nomination as a valid nomination. The
objection to the acceptance of the nomination of the appellant was put forward
for the first time, in the election petition. We have now to consider whether
the appellant was validly nominated.
Section 5 of the Act prescribes the
qualifications for membership of a Legislative Assembly. It says that "A
person shall not be qualified to be chosen to fill a seat in the Legislative
Assembly of a State unless (a) (b) (c) in the case of any other seat he is an
elector for any Assembly constituency in that State" It is not denied that
the appellant possesses all the qualifications prescribed either under the
Constitution or under the Act and further that he has none of the
disqualifications mentioned either under the Constitution or under the Act. All
that is said against his nomination is that his nomination paper was not
properly filled in. The law requires that the nomination of a candidate should
be in the prescribed form and among others it should contain the name of the
person nominated, his proposer's name as well as the electoral roll numbers of
the candidate and his proposer. Sub-cl. (4) of s. 33 provides that :
"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 678 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." Sub-s. (5) of s. 33 provides that where a 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 the
Section 36 of the Act prescribes the mode of
scrutiny of the nomination. Sub-s. (2) of that section says :
"The returning officer shall then
examine the nomination papers and shall decide all objections which may be made
to any nomination and may, either on such objection or on his own motion, after
such summary enquiry, if any, as he thinks necessary, reject any nomination on
any of the following grounds :
(a) that on the date fixed for the scrutiny
of nomination 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 (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." Sub-s. (4) of that section commands the Returning Officer
not to reject any nomination paper on the ground of any defect which 679 is not
of a substantial character. Sub-s. (6) of that section prescribes that :
"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." The only other relevant provision which we
need consider is sub-s. (1) of s. 100 which prescribes the grounds for
declaring election to be void. That section reads :
"Subject to the provisions of sub-s. (2)
if the High Court is of opinion(a) that on the date of his election a returned
candidate was not qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act or the Government of Union Territories Act,
1963; or (b) that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the consent of a
returned candidate or his election agent; or (c) that any nomination has been
improper rejected; or (d) that the result of the election, in so far as it
concerns a returned candidate, has been materially affected(i) by the improper
acceptance of any nomination. or (ii) by any corrupt practice committed in the
interests of the returned candidate by an agent other than his election agent
or (iii) by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void, or (iv) by any non-compliance with the
provisions of the Constitution or of this Act or of any rules or orders made
under this Act, the High Court shall declare the election of the returned
candidate to be void." The first question that we have got to decide is
whether the defects found in the nomination paper of the appellant are of
substantial character. As mentioned earlier, the appellant was fully 680
qualified to be nominated for the election. The only thing said against his
nomination is that his nomination paper was not properly filed in. We have
earlier seen that 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. In this case it is proved that the Returning Officer did
look into the nomination paper but unfortunately he also did not notice that
the name of the appellant had been removed from the' electoral roll of Arrah
constituency. If lie had noticed that fact, he, would have asked the appellant
either to correct the mistake or to file a fresh nomination paper. We have
earlier noticed that the appellant filed his nomination paper on the 6th of
January 1969 and the last date for filing the nomination paper was the 8th of
that month. That being so, there would have been no difficulty for him either
to correct the nomination paper filed or to file a fresh nomination paper. We
have earlier noticed that the appellant had with him a certified copy of the
electoral roll of the Sandesh constituency and he had shown the same to the
Returning Officer. Mistakes complained or occurred because both the appellant
as well as the Returning Officer merely looked into the main voters' list but
overlooked the deletion noted in a separate list.
But the implication of S. 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 information relate
to the proof of the required qualifications.
It may also be noted that the legislature
itself has made distinction between the acceptance of a nomination and the
rejection of a nomination. The Returning Officer is required to give reasons
for rejecting a nomination whereas he is not required to give reasons for
accepting a nomination. Further sub-s. (2) of S. 36 says that "he may
reject the nomination paper". It is further seen that the proviso to
sub-c. (4) of S. 33 says that no inaccurate description in regard to the name
of the candidate or his proposer or in regard to any place mentioned in the
nomination paper shall affect the full operation of the nomination.
681 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.
In Karnail Singh v. Election Tribunal, Hissar
and ors.(1), the tribunal held that the nomination paper of one of the
candidates was wrongly rejected on the ground that column No. 8 in the
nomination paper was not duly filled up. The only defect pointed out was that
the name of the subdivision was not stated therein'. But on the evidence it was
quite clear that there was no difficulty in identifying the candidate and the
candidate himself pointed out to the returning officer the entry of his name in
the electoral roll. Agreeing with the tribunal this Court held that the defect
in those circumstances was a technical one and the tribunal was perfectly right
in holding that the defect was not of a substantial character and that the
nomination paper should not have been rejected.
In Rangilal Choudhury v. Dahu Sao and ors.
(2) this Court held that the fact that the name of the constituency was
wrongly, mentioned as 'Bihar' instead of 'Dhanbad' in the nomination paper did
not vitiate the nomination as it was clear from a reading of the entire
nomination paper that the respondent was seeking election from the Dhanbad
constituency. In reaching that conclusion this Court referred to the
requirements, of S. 3 3 (4), S. 3 6 (2) (b) and (4). After referring to those
provisions this Court observed "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; bat even it there is
some defect in the nomination paper in regard to either the names of 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 a substantial character." In Namdeo Chimanji Tapre
and anr. v. Govinddas Ratanlal Bhatia and ors. (1), the High Court of Bombay
held that as the (1). 10, E.L.R. 189.
(2)  2. S.C.R. 401.
(3). I.L,R. 1964 Bom, 114.
682 identity of the candidate was not in
dispute, the rejection of the nomination paper by the Returning Officer was not
valid having regard to the provisions in s. 33 and s. 36 of the Act.
In Dev Kanta Barooah v. Kusharam Nath and
ors. (1), a nomination paper for the Nowgong constituency of the Assam
Legislative Assembly contained a recital in the heading that the respondent was
thereby nominated as a candidate for election "from the Assembly
constituency", but against column No. 2 of nomination paper relating to
the electoral roll number of the proposer and column No. 5 relating to the
electoral roll number of the candidate, the entry was "Assam Legislative
Assembly constituency, Part No. 10 of the Electoral Roll of village Phulaniati,
Mouza Hatichung, Police Station Sadar, Nowgong, Roll No.. . . . . " The
Returning Officer rejected the nomination paper on the ground that the name of
the constituency to which the electoral roll related was not mentioned in
columns 2 and 5 as required section 33 (4) of the Act. This Court agreeing with
the tribunal and the High Court held that the rejection of the nomination was
Our attention has not been invited to any
decision either of this Court or of any High Court or even of a tribunal where
the Returning Officer had accepted the nomination paper of a qualified
candidate, the same was found to be improper because of some defect in the
nomination paper. The case of rejection of a nomination paper by the Returning
Officer stands on a footing different from that of an acceptance of a nom inaction
paper. In the latter case the main though not the only question to be
considered is whether the candidate is qualified to be a candidate. The very
fact that the law requires the Returning Officer to look into the 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.
Learned Counsel for the respondent has sought
to place reliance on some decisions of this Court in support of his contention
that the appellant's nomination paper was improperly accepted. We shall now
refer to the decisions relied on by him., In Narbada Prasad v. Chhagan Lal and
ors. (2) a candidate's nomination paper was rejected by the Returning Officer
on the round that he did not produce the proof required under s. 33(5) of the
Act. That rejection was upheld by this Court. We fail to see how that decision
lends any support to the respondent's case. Without the required proof, the
Returning Officer could not satisfy himself that the candidate was qualified to
(1) XXI, E.L.R. 459. (2)  1, S.C.R.499
683 Reliance was next placed on the decision of this Court in Rana Dayal v.
Brijraj Singh and ors. (1) Therein the proposer of the candidate was an
illiterate person. He had not got authenticated or attested the mark put by him
in the nomination paper by one of the designated officers as required by the
relevant provisions of the Act and the rules framed thereunder. Hence the
nomination paper was rejected by the Returning Officer. That rejection was
upheld both by the High Court as well as by this Court. No nomination can be
held to be valid unless the candidate is duly proposed.
If the mark put by the proposer is not
authenticated in the manner required by law, it cannot be said that the
candidate has been properly nominated.
In Brijendralal Gupta and ant-. v.
Jwalaprasad and ors.(2), this Court observed that the word 'defect' in s. 36(4)
included an omission to satisfy the details prescribed in the nomination. It
further observed that the distinction laid down in English cases between
"omission and "inaccurate description" depended on the specific
provisions of the English statute which did not obtain under the Indian law.
This decision, again has no bearing on the
point in issue.
For the reasons mentioned above we are of the
opinion that the defect in the appellant's nomination paper was not a
substantial defect. Hence the High Court was not justified in allowing the
election petition on the ground that his nomination was improperly accepted.
In view of the conclusion reached above, it
is not necessary for us to go into the question as to the true interpretation
of s. 100(1) (d). We shall merely notice the arguments advanced on either side
on that question. According to the appellant the legislature has made a clear
distinction between improper rejection and improper acceptance of a nomination.
In the case of improper rejection, the High Court shall declare the election of
the returned candidate to be void but in the case of improper acceptance before
the election of the returned candidate can be declared void, the election
petitioner will have to establish that the result of the election in so far as
it concerns the returned candidate has been materially affected. At this stage
we, may notice that prior to the amendment of the Act in 1956, improper
rejection and improper acceptance were placed in the same category. Clause (c)
of s. 100(1) as it stood then read :
"If the Tribunal is of opinion.
(c) that the result of the election has been
materially affected by the improper acceptance or rejection of any nomination.
(1)  I S.C.R. 530.
(2)  3 S.C.R. 650.
684 the Tribunal shall declare the election
to be wholly void." This Court in Vashist Narain Sharma v. Dev Chandra and
(1) observed in the course of its judgment
that where the person whose nomination has been improperly accepted is the
returned .candidate himself, it may be readily conceded that his nomination has
materially affected the result of the election. This observation was not the
ratio of that decision. That apart, after this observation was made, the
Parliament has amended the relevant provision and has made a distinction
between improper rejection and improper acceptance of a nomination. It was
urged on 'behalf of the ,appellant that in view of the amendment the
observation made by this Court in Vashist Narain Sharma's case (supra), can no
more govern the point in issue. According to the learned Counsel, clause (d) of
s. 100(1) as it now stands definitely requires that in the case of improper
acceptance of any nomination, the election petitioner must establish that the
result of the election in so far as it concerns the returned candidate has been
materially affected. He urged that the word "any" in s. 100(1)(d) (1)
means every .nomination. On the other hand it was urged on behalf of the
respondent that the amendment of s. 100(1) did not affect the correctness of
the observation made by this Court and that observation had been quoted by this
Court in two cases arising under the amended provision. In view of our earlier
finding about the validity of the appellant's nomination, it is not necessary
to decide the controversy relating to the interpretation of s. 100 (1) (d).
For the reasons mentioned above, differing
from the view taken by the I earned trial judge, we have come to the conclusion
that the nomination of the appellant was properly accepted.
This takes us to the appeal filed by the
respondent. As mentioned earlier, the High Court has rejected the charges of corrupt
practices levelled by the respondent against the appellant. Those charges were
sought to be established only by oral evidence. The learned trial judge was
unable to accept the evidence adduced in support of the alleged corrupt
practices. Ordinarily this Court does not re appropriation Oral evidence. Our
attention has not been ,invited to any exceptional circumstances in this case
requiring us .to go into the evidence afresh. It is well known that the
factious feelings generated during elections continue even after the election
and hence the contesting parties are able to produce before court large (number
of witnesses, some of whom may be seemingly disinterested' But that by itself
is no guarantee of the truth of the .evidence adduced. Mr. Tarkunde, learned
Counsel for the respondent put forward three broad contentions in support of
the (1) S.C.R. 509.
685 appeal preferred by the respondent. They
are : (1) that the High Court failed to take an overall view of the evidence
adduced; it merely contented itself by examining evidence relating to each one
of the instances, (2) the High Court erred in not relying on the evidence
relating to an instance when the same is spoken to by a single witness and (3)
the High Court erred in rejecting the testimony of some of the witnesses on the
ground that they were chance witnesses.
None of these contentions appear to have any
merit. Each instance of a corrupt practice pleaded had to be established
separately. If every one of those instances are not proved, all of them put
together cannot be accepted as true because of the volume of evidence.
Now coming to the instances sought to be
proved by the evidence of a single witness, the learned trial judge observed in
the course of his judgment that those instances were not seriously pressed by
the Counsel for the respondent.
Evidently these charges were given up. In
appreciating evidence of the witnesses, the courts have to take into
consideration the probability of their being present at the time of the alleged
incident. Courts have always viewed with suspicion. the evidence of chance
witnesses. There was nothing wrong in the learned judge not being able to place
much reliance on the evidence of chance witnesses. Hence we see no merit in the
appeal filed by the respondent.
For the reasons mentioned above we allow
Civil Appeal 1384 of 1970 and dismiss Civil Appeal No. 1584 of 1970. In the
result the election petition stands dismissed with costs both in the High Court
as well as in this Court-in this Court the appellant is entitled to only one
G.C. C.A. No. 1384/70 allowed.