Harcharan Singh Vs. Mohinder Singh
& Ors [1968] INSC 134 (1 May 1968)
01/05/1968 SHAH, J.C.
SHAH, J.C.
BHARGAVA, VISHISHTHA
CITATION: 1968 AIR 1500 1969 SCR (1) 198
CITATOR INFO:
R 1975 SC 290 (8)
ACT:
Representation of the People Act (43 of
1951), ss. 33(5) and 36(4)--Certified copy of certificate filed by candidate
who is a voter in different constituency fails to set out age, and house
number--If defect substantial to reject nomination.
HEADNOTE:
The appellant filed his nomination paper for
a seat to the Vidhan Sabha of a constituency different from the one in which
his name was included as a voter. With his nomination paper, the appellant had
produced an application for a certified extract on the reverse of which was
recorded a certificate, containing relevant entries from the Voters' list. The
entries in certificate did not tally in all respects with the entries in the
voters' list, in that it failed to set out the age of he appellant and his
house number. No objection to the nomination paper was raised before the
returning officer. The returning officer accepted the nomination and held that
the particulars were correct, and that the appellant was over 25 years of age.
The appellant was declared elected. The first
respondent, an unsuccessful candidate, challenged the validity of the election
of the appellant on the ground that the appellant had failed to produce before
the scrutiny of nomination paper, the electoral roll or a certified copy of the
relevant entries in the roll in which his name was included as voter as
required by s. 33(5) of the Representation of the People Act. The High Court
set aside the election. In appeal, this Court :
HELD: The appeal must be allowed.
The copy of the relevant entries from the
electoral roll relating to the appellant was defective. But under s. 36(4) the
returning officer is entitled to accept the nomination paper even if it be
defective, if the defect is not of a substantial character : indeed he is
enjoined not to reject the nomination paper unless the' defect is of a
substantial character. The details for identifying the appellant as an elector
were duly furnished. His age was mentioned in the nomination paper, though it
was not to be found in the certified copy produced by the appellant. No
objection was raised to the acceptance of the nomination paper on behalf of the
contesting candidate and his agents present at the scrutiny. The returning
officer satisfied himself by personal inquiry that the appellant was above the
age of twenty-five and competent to stand for election. it was true that he did
not come to the conclusion that the defect in the copy of the electoral roll
was of a substantial character. [204 G-H; 205 A-B] The decision of the
returning officer in the matter is not final and in appropriate cases it is
open to the Court to reach a different conclusion in an election petition. In
this case, the appellant was not negligent nor was the purity of election
process likely to be affected on account of the defects in the COPY produced by
the appellant. The defects in the certificate were not of a substantial
character. Therefore the returning officer did not err in not rejecting the
nomination paper.
[204 B-C] Sri Baru Ram v. Shrimati Prasanni
& Ors. [1959] S.C.R. 1403, referred to.
199
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1554 of 1967.
Appeal from the judgment and order dated
September 1, 1967 of the Punjab and Haryana High Court in Election Petition No.
4 of 1967.
S. V. Gupte, Mehra Singh Chaddah and Harbans
Singh, for the appellant.
A. K. Sen, R. L. Kohli and J. C. Talwar, for
respondent No.1.
The Judgment of the Court was delivered by
Shah, J. At the general elections held in February 1967 the appellant polled
the largest number of votes and was declared elected to the Punjab Vidhan Sabha
from the Zira Constituency. The first respondent S. Mohinder Singh, who was a
candidate at the election, applied to the High Court of Punjab for setting
aside the election of the appellant on the ground that the nomination of the
appellant who was not a voter in the Zira Constituency was improperly accepted
by the Returning Officer, for the appellant had failed to file before the
scrutiny a copy of the electoral roll or the relevant part thereof or a
certified copy of the relevant entries of the poll pertaining to the
constituency to which he belonged, and that the result of the election to the
Zira Constituency insofar as it concerned the appellant was materially affected
by improper acceptance of his nomination. The High Court upheld the contention
and set aside the election of the appellant and declared the election of the
appellant void under s. 100(1)(d)(1) of the Representation of the People Act,
1951. Against that order the appellant has appealed to this Court.
The name of the appellant is included as a
voter in the Gid- derbha Constituency, and his name is not included in the list
of' electors in the Zira Constituency. But on that account he was not
disqualified from standing for election from the Zira Constituency. The
validity of the election of the appellant was challenged only on the (,round
that the appellant had failed to produce before the scrutiny of nomination
papers, the electoral roll, or a certified copy of the relevant entries in that
roll concerning him.
By sub-s. (4) of s. 33 of the Act the
returning officer is directed to satisfy himself when the nomination paper is
prescribed that the names and electoral numbers of the candidate and his
proposer as entered in the nomination paper are the same as those entered in
the electoral rolls.
Sub-section (5) provides that where the
candidate is an elector of a different constituency a copy of the electoral
roll of that constituency or of the relevant part thereof or a certified copy
of the relevant entries in such roll shall, unless it has been filed along with
the nomination papers, be produced before the returning officer at the time of
200 scrutiny. The appellant not being an elector in the Zira Constituency, he
had to produce either with the nomination paper or at the time of scrutiny the
relevant part of the electoral roll, or a certified copy of the relevant
entries in the electoral roll. Section 36 deals with the scrutiny of
nomination. By sub-s. (2) of s. 36 it is provided :
"(2) The returning officer shall then
examine the nomination papers and shall decide all objections which may be made
to any nomination, and may, either on such objections, or on his own motion,
after such summary inquiry, 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 nominations the candidate either is not qualified or is disqualified for
being chosen to fill the seat under any of the following provisions that may be
applicable, namely :
Aticles 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)
........................................
By sub-s. (4) the returning officer is
enjoined not to reject any nomination paper on the ground of any defect which
is not of a substantial character. Sub-section (7) of S. 36 provides :
"For the purposes. of this section, a
certified copy of an entry in the electoral roll for the time being in force of
a constituency shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that constituency, unless it is
proved that he is subject to a disqualification mentioned in section 16 of the
Representation of the People Act, 1950." This Court in Sri Baru Ram v.
Shrimati Prasanni & Ors.(1) observed at p. 141 8 :
"Sub-section (5) of s. 33 deals with the
stage of the scrutiny of the nomination papers and it provides that where a
candidate is an elector of a different constituency, a copy of the electoral
roll of that constituency or the relevant part thereof or a certified copy of
the relevant entry of such roll shall, unless it is filed along with the
nomination paper, be produced before the returning officer at the time of the
scrutiny. It is thus clear that when the stage of scrutiny is reached the (1)
[1959] S.C.R. 1403.
201 returning officer has to be satisfied
that the candidate is an elector of a different constituency and for that
purpose the statute has provided the made of proof. Section 36, sub-s. (7) lays
down that the certified copies which are required to. be produced under s. 33
(5) shall be conclusive evidence of the fact that the person referred to. in
the relevant entry is an elector of that constituency. In other words, the
scheme of the Act appears to be that where a candidate is an elector of a
different constituency he has to prove that fact in the manner prescribed and
the production of the prescribed copy has to be taken as conclusive evidence of
the said fact." The appellant concedes ,that with his nomination paper he
did not produce the electoral roll or a copy of the relevant part thereof of
the Gidderbha Constituency. He, however, pleaded that at the time of the
scrutiny of the nomination papers he had produced before the returning officer
copies of the electoral roll. and had requested that officer to keep. the
copies of the roll on his file if he needed them, and the returning officer had
said that he did not need the copies of the electoral roll. This case was not
set up by the appellant in his reply to the election petition. The returning
officer Sher Singh Sindhu was summoned to appear before the High Court to
produce certain documents in his custody. Sher Singh Sindhu personally appeared
in Court and tendered the documents called for, but the appellant did not ask
the Trial Judge to administer him oath and to examine him as a witness.
There is no written record about the
production of the electoral roll before the returning officer. In the order
passed by ,the returning officer dated January 21, 1987, the returning officer
has referred to the production of a certificate, but not to the production of
the electoral roll'. We therefore agree with the High Court that the case set
up by the appellant that he had produced copies of the electoral roll or relevant
parts thereof before the returning officer at the time of the scrutiny of
nomination papers cannot be accepted as true.
The appellant contends that he had produced
with the nomination paper a certified extract from the electoral list of the
Gidderbha Constituency supplied to him by the Tahsildar Muktsar, who also held
the office of Electoral Registration Officer, and the requirements of s. 33(5)
were satisfied. With his nomination paper the appellant had produced an Ext.
P.W. 1/4 to the following effect:
"Certified that the names of Harcharan
Singh s./o Teja Singh and Gurdial Singh s/o Harcharan Singh are there on the
vote.rs list of V. Badian H.B. No. 24, Tehsil Muktsar, in the voters' list of
Lambi Constituency; for the year 1965.
10 Sup CI/68--14 202 S. No. Name of the voter
Vote No.
1. Harcharan Singh s/o Teja Singh 1825
2. Gurdial Singh s/o Harcharan Singh 1827 Sd.
Illegible 19.1.67" The circumstances in which this document was obtained
may first be set out. On January 18, 1967, the appellant submitted an
application before the Sub-Divisional Magistrate, Muktsar, to the following
effect:
"The applicant begs to submit as under:
It is submitted that I want to contest for
Punjab Assembly seat from Zira Constituency. My name is entered as a voter in the
voters' list of village Badjan. I have received a voters' list from the
Panchayat of the village and another list from the candidate of Gidderbha
circle. One list of voters is (part) 20 and in the other (part) 31 is written
in red ink.
Both of them relate to year 1966. Kindly
certify after verification from the election qanungo, whether there is also
another voters list for the year 1966. If there is one, what is my voter No.
therein.
My son Gurdial Singh, is my covering
candidate. Kindly verify Voters Nos. of both (of us)." On this application
it was recorded by the Sub-Divisional Magistrate on January 19,
1967--"Allowed certified copy today". On the reverse of the
application is recorded a certificate of the Tahsildar, Muktsar, which is
marked P.W.
1/4. The entries in the voters' list relating
to the appellant may be set out:
Voters' list of Gidderbha Assembly --Village
Badian (Continued).
Constituency 1825 211 Harcharan Singh Male 60
Teja Singh Below this entry and at the end of the page of the electoral roll,
this note appears:
Serial House Name of the voter Father's/ No.
No. Male/Age /other's/Female/ Husband's name.
The entries in P.W. 1/4 do not tally in all
respects with the entries in the voters' list. P.W. 1/4 purports to be an
abstract from the voters' list of Lambi Constituency whereas the voters' list
in which the name of the appellant is entered is of the Gidderbha 203 Circle.
But it appears that in transcribing the name of constituency a clerical mistake
was made. The electoral roll it appears was prepared in 1965, and since then
the original Lambi general constituency was named Gidderbha constituency as a
result of delimitation of constituencies.
But in Ext. P.W. 1/4 the house number and the
age of the voter which are found in the voters' list are not set out.
There can be no doubt that the copy supplied
is defective and it does not comply with the requirements of s. 33(5).
Under s. 36(2)(b) the returning officer has
to hold a summary inquiry on objections raised; or on his own motion, whether
constitutional requirements are prescribed in cl.
(a) or the statutory requirements in el. (b)
have been fulfilled. No objection to the nomination paper was raised before the
returning officer. Apparently, the returning officer held some inquiry and
recorded the following order:
"I have examined the nomination paper in
accordance. with section 36 of the Representation of the People Act, 1951, and
decide as follows :- 'Particulars correct. The candidate's age is not shown in
the certificate. But the candidate is an old man and is certainly above the age
of 25 years and as such he is fully qualified. No objection is raised. Fee
deposited. Oath taken. Valid.
Accepted.'" By s, 36(4) the returning
officer is enjoined not to reject any nomination paper on the ground of any
defect which is not of a substantial character. Exhibit P.W. 1/4 which
accompanied the nomination paper was defective in two respects, but it still
remains to be determined whether the defects were of a substantial character.
The appellant had produced a document which certified his roll number, his
name, his father's name, his village, H.B. number of Tahsil Muktsar, but did
not certify his house number and his age.
On the application submitted by the appellant
the returning officer had asked the Tahsildar to make a report.
Niranian Singh who was the Sub-Divisional
Officer Muktsar, and also the Electoral Registration Officer of Gidderbha
Assembly Constituency at the relevant time deposed that the application Ext.
R.W. 1/5 was presented before him and that he had ordered that the application
be referred for disposal to the Tahsildar who held the office of the Assistant
Electoral Registration Officer. In cross-examination the witness stated that he
had "desired the Tahsildar to supply a certified copy of the electoral
roll" and that he had never asked him to submit a report like the one
endorsed on the reverse of the application. But the Tahsildar purported to make
a report and the application with that report was delivered to the appellant in
pursuance of his application. We see no reason to disbelieve the statement of
Niranjan Singh. The answer referred ,to earlier is elicited in
cross-examination by counsel for the respondent, and no reason has been
suggested as to why the witness should bear false testimony. The recitals in
the application filed by the appellant are somewhat obscure. It was written in
Punjabi and the official translation and the translation made by the learned
Judge in the High Court did not wholly tally. The order passed by the Electoral
Registration Officer which he has deposed to is not amongst the papers. But at
the foot of the application it is recorded that a certified copy was allowed on
January 19, 1967. If the story of the Electoral Registration Officer is to be
believed, he had directed that a certified copy of the electoral roll be
furnished and by some mischance the Tahsildar made a report in which there was
first a clerical mistake with regard to the name of the Constituency, and again
the two entries relating to the house number and the age of the appellant were
omitted.
Exhibit P.W. 1/4 was filed with the
nomination papers and the returning officer was apparently satisfied that ,the
requisite details were duly furnished. Exhibit P.W. 1/4 was also before the
returning officer at the time of the scrutiny of the nomination papers. The
contesting candidate and his agents were present and no objection was raised
to. the validity or the sufficiency of the document produced with the
nomination paper in purported compliance with s. 33(5). The returning officer,
however, thought it necessary to make an inquiry as to the age of the appellant
and recorded that he was satisfied that the appellant was above the age of
twenty-five. Absence of the number of the house in which the appellant lived
from the copy produced does not appear to. have been regarded as of any
consequence. It was not suggested in the High Court, nor is it suggested before
us that the appellant was not competent to stand as a candidate for the Zira
Constituency either on account of any disqualification or on the ground that he
was not an elector of any constituency; it is only urged that Ex. P.W. 1./4 was
not a certified copy of the relevant entries in the electoral roll.
The statutory requirements of election law
must be strictly observed. An election dispute is a statutory proceeding
unknown to the common law: it is not an action at law or in equity. As a copy
of the relevant entries from the electoral roll relating to the appellant it
was indisputably defective. But under s. 36(4) the returning officer is
entitled to accept the nomination paper even if it be defective, if the defect
is not of a substantial character: indeed he is enjoined not to reject the
nomination paper unless the defect is of a substantial character. The details
for identifying the appellant as an elector were duly furnished. His age was
mentioned in the nomination paper, though it was not to be found in the
certified copy produced by the appellant. No objection was raised to the
acceptance of the nomination paper on behalf of the contesting candidate and
his agents present at 205 the scrutiny. The returning officer satisfied himself
by personal enquiry that the appellant was above ,the age of twenty-five and
therefore competent to stand for election.
It is true that he did not apply his mind ,to
the absence of house number entered in the electoral register. But he did not
come to the conclusion that even though the copy produced was defective the
defect was of a substantial character. The decision of the returning officer in
the matter is not final and in appropriate cases it is open to the Court to
reach a different conclusion in an election petition. But on a careful review
of the proceedings of the Returning Officer we are of the opinion that the
returning officer did not err in not rejecting the nomination paper; the
defects in Ext. P.W. 1/4 were not of a substantial character.
The primary purpose of the diverse provisions
of the election law which may appear to be technical is to safeguard the purity
of the election process, and the Courts will not ordinarily minimise their
operation. If there was any reason to think that the appellant was negligent,
or that on account of defects which were found in the copy produced by the
appellant the purity of the election process was likely to be affected, we
would have been loath to disagree with the High Court. But in this case the
appellant moved the Electoral Registration Officer for a copy certifying the
correctness of the entries in the list which had been supplied to him, and the
Electoral Registration Officer supplied to him a copy which though defective,
did include sufficient particulars for identifying the appellant. No objection
was raised before the returning officer and that officer after holding an
inquiry was apparently of the view that there was no defect which could be
regarded as of a substantial character. We do not think that any ground is made
out for disagreeing with the view of the' returning officer.
The order passed by the High Court is set
aside and the petition filed by the first respondent S. Mohinder Singh stands
rejected. The appeal is allowed: there will be no order as to costs throughout.
Appeal allowed.
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