Prahladdas Khandelwal Vs. Narendra
Kumar Salve [1972] INSC 213 (11 September 1972)
GROVER, A.N.
GROVER, A.N.
BEG, M. HAMEEDULLAH MUKHERJEA, B.K.
CITATION: 1973 AIR 178 1973 SCR (2) 157 1973
SCC (3) 104
CITATOR INFO :
R 1975 SC1274 (2)
ACT:
The Representation of the People Act (43 of
1951), ss. 33 and 36-Election to Lok Sabha-Parliamentary Constituency not
mentioned in nomination Form--Form in Hindi-Apparent confusion, but meaning
clear-Defect in filling pointed out, but not rectified-Rejection of nomination
paper-If correct.
HEADNOTE:
The appellant filed his nomination paper for
election to the Lok Sabha but did not mention the Parliamentary Constituency
from which he was contesting. The nomination form was in Hindi. Even though the
Assistant Returning Officer drew his attention to the omission, the appellant
did not cure the
that the defect was of a substantial
character and rejected the nomination paper. In the appellant's election
petition, the High Court held that the Returning Officer was justified in
rejecting the nomination paper.
Dismissing, the appeal to this Court,
HELD : (1) Form on which the nomination of
the appellant was made was the one which had been statutorily prescribed. It
was not misleading or defective and in the present case, there was an omission
to mention the name of the Parliamentary Constituency for which the appellant
was being nominated as a candidate. [162F-G] Under the conduct of Elections
Rules, 1961, Form means a form means a form appended to the Rules end includes
a translation thereof in any of the languages used for the official purposes of
the State. According to s. 5(1) of the Official Languages Act, 1963 a
translation in Hindi published under the authority of the President in the
Official Gazette shag be deemed to be the authoritative text in Hindi. The
spaces to be filled in the Hindi form might cause confusion to a person
unfamiliar with the language, but one familiar with the language will understand
that the space provided in the Form is for filling in the name of the
Parliamentary Constituency. In the present case, the proposer had not been
misled by the Form, and the appellant, who actually filled it of before getting
it signed to by the proposer, was informed of the defect in filling.,[160C- E;
161E-F,H] (2) This defect was essentially of a substantial character and did
not fall within those provisions where the Returning Officer is enjoined either
to get the defect rectified or ignore it. It was not the duty of the Returning
Officer at the stage of scrutiny to draw the attention of the appellant to this
substantial defect for the purpose of getting it cured, and ,he was fully
justified in rejecting the nomination paper. [164 F-H] Under s. 36(2) (b) of
the Representation of the People Act, 1951, the Returning Officer may reject a
nomination on the ground 'that there has been a failure to comply with any of
the provisions of s. 33 or s. 34. Section 33(1) provides that a nomination has
to be presented after being completed in the prescribed form and signed by the
candidate and by an elector of the Constituency as proposer. This requirement
is mandatory and s., 36(4) clearly contemplates that where the defect is of a
substantial character, the Returning Officer is not enjoined to have it
rectified but has to reject the nomination paper. [163A-B, D , F-G], 158 Rattan
Anmol-Singh & Another v. Atma Ram & Others [1951] S.C.R. 481 and Ram
Dayal v. Brijram Singh & Others, [1970] 1 S.C.R. 530, followed.
Kashi Prasad v. Harigen Ram & Another.
Election Petition No. 44 ,of 1967 decided on January 19, 1968, referred to.
[Desirability of amendment of the Hindi
version of the form pointed out.] & CIVIL APPELLATE JURISDICTION : C.A. No.
2904 of 1971.
Appeal under S. 116-A of the Representation
of the People ,Act, 1951 dated October 4, 1971 of the Madhya Pradesh High
,Court at Jabalpur in E.P. No. 3 of 1971.
S. S. Khanduja, Pramod Swarup and Lalita
Kohli for the ,appellant.
N. A. Palkhiwala, A. S. Bobde and J. B.
Dadachanji for the respondent.
The Judgment of the Court was delivered by
GROVER, J. This is an appeal from a judgment of the Madhya Pradesh High Court
in an election petition filed by the appellant Prahladdas Khandelwal one of the
candidates for the Mid-term election to the Lok Sabha from the Betul
Parliamentary Constituency No. 26 in the State of Madhya Pradesh challenging
the election of the respondent Narendra Kumar Salave-the returned candidate.
Some of the material dates may be noticed.
The notification calling for the election was issued on January 27, 1971.
The last date for filing the nomination paper
was February 3, 1971; the scrutiny was to take place on February 4, 1971.
The election Was to be actually held on March
4, 1971 and the election result was to be declared on March It. 1971.
The appellant filed his nomination paper on
February 2, 1971. An acknowledgement of the receipt of the nomination paper was
given by the Assistant Returning Officer. The Assistant Returning Officer gave
a certificate under Art. 84 of the Constitution that the appellant had been
administered the oath as required under that Article. In this certificate there
was a mention of 26th Betul Parliamentary Constituency. According to the
evidence of the Assistant Returning Officer Shri S. K. Sharma R.W. 2, in the
nomination paper which the appellant filed there was no mention of the
Parliamentary Constituency from which he was contesting the election. This
defect was pointed out to him by the Assistant 159 Returning Officer but it appears
that the appellant did not cure that defect. On February 4, 1971 which was the
date fixed for scrutiny the nomination paper of the appellant was rejected by
the Returning Officer Shri Komal Singh Thakur, Collector of Betul on the
objection of one Goverdhandas.
The ground given for rejection was that the
name of the Constituency for which the appellant had filed the nomination paper
was not mentioned therein. The Returning Officer held that owing to this defect
which was of a substantial character the nomination paper was invalid.
The sole ground in the election petition
filed by the appellant was that his nomination paper had been erroneously and
wrongly rejected by the Returning Officer. In paragraph 6 it was stated that a
blank nomination form had been purchased by him from the Election Office,
Betul. All the details mentioned in the form were properly filled in.
There was no separate space left in the form
to mention the name of the Constituency. It was asserted that there was
difference between the nomination form in Hindi and in English and even if the
name of the Constituency was necessary to be mentioned the Assistant Returning
Officer should have got it filled up under proviso to s. 3 3 (4) of the
Representation of People Act 1951. In other paragraphs, of the petition it was
pleaded that the certificate relating to the oath clearly contained a mention
of the 26th Betul Parliamentary Constituency and, therefore, the Returning
Officer was in a position to know from which Constituency the appellant was
contesting the election. It was claimed that the alleged defect was not of a
substantial character and the nomination paper could not have been rejected by
the Returning Officer.
The respondent resisted the, election
petition on the ground, inter alia, that there was no defect in the nomination
form supplied to the appellant. The omission to mention the name of the
Constituency was a defect of substantial character. It was denied that it was
the duty of the Assistant Returning Officer to get the substantial defect in
the nomination form rectified. The sole issue which arose for decision was
whether the nomination paper of the appellant had been wrongly rejected. The
High Court gave the following findings, :
(1) The nomination paper in Hindi (Ext. P-2)
is the authoritative text of the form prescribed under the Act and the rules
made there under;
(2) Neither the name nor the number of the
Constituency was mentioned in the nomination paper, (Ext. P-2).
(3) The omission to mention the name of the
Constituency was a defect of a substantial character.
16 0 (4)The Returning Officer was not
enjoined under the law to go beyond the nomination paper and to find out for
which Constituency a particular candidate had been nominated.
(5) The statutory requirements of the Election
Law have to be strictly applied. As the nomination paper of the appellant was
found to be defective the defect being of a substantial character the Returning
Officer was justified in rejecting it. Apart from that the appellant did not
get the defect rectified even though the same had been pointed out to him by
the Assistant Returning Officer.
The first question that has to be determined
is whether the nomination form which was supplied was misleading or- defective
and for that reason it was not possible to fill in the name of the
Parliamentary Constituency from which the appellant was contesting the
election. Selection 2(1)(g) of the Conduct of Elections Rules, 1961 gives the,
meaning of the word "Form". It means a Form appended to the rules and
in respect of any election in a state includes a translation thereof in any of
the languages used for official purposes of the State. Rule 4 provides that
every nomination paper presented under sub-s. (1) of s. 3 3 shall be completed
in such one of the Forms 2A to 2E as may be appropriate. Form 2A relates to the
nomination paper to be filed for election to the House of the People. According
to s. 5 ( 1 ) of the Official Language Act 1963 a translation in Hindi
published under the authority of the President in the Official Gazette on or
after the appointed day, inter alia, of any order, rule regulation or bye-law
issued under the Constitution or under any Central Act shall be deemed to be
the authoritative text thereof in Hindi.
Form 2A as prescribed by the Conduct of
Elections Rules 1961 in English is as follows :
" FORM 2A I nominate as a candidate for
election to the House of the People from the................. Parliamentary
Constituency.
Candidates'
name...........................................
His postal address.........................................
His name is entered at S. No..........in Part
No............
of the electoral roll
for............(assembly Constituency comprised within)...Parliamentary
Constituency.
My name is..........................................and
it is entered at S. No.in Part No.....of the) electoral rolls for..(Assembly
constituency comprised within)Parliamentary
constituency..............Date.....(Signature of Proposer) 1 the
abovementioned....................." 161 The nomination form in Hindi used
in the Mid-term Elections 1971 begins with the word "Main" (1). Then
there is a blank space which is followed by these words If the form were to be
read in the same way as if it were in the English language an impression is
likely to be created that after the word ".I" the proposer has to
fill in his own name as was actually done in the present case in Ext. P-2.
But any one familiar with the Hindi language
would not read it that way and the blank space in the context, it will be
understood, is meant for filling in the name of the Parliamentary Constituency.
If that is not done the name of the Constituency for which the candidate
is-being nominated cannot find any mention in the material part of the form.
It could never be contemplated that the
official translators who are presumed to be fully conversant with the Hindi
language would have translated the English form in such a way as to leave out
the name of the Parliamentary Constituency altogether for which the candidate
is being proposed. It may be mentioned that to an ordinary person a wrong
impression may be conveyed that after the word "I" he has to give his
own name but even if he gives his own name lie can indicate the name of the
Parliamentary Constituency thereafter which would make the form complete in
every respect. It appears that the Election Commission of India addressed a
letter, Ext. R-4, to the Secretary, Official Language Legislative Commission
saying that the Hindi translation of Form 2A appeared to be defective in some respects
and it was suggested that in paragraph 1 of the Form as shown in Ext. R-5 after
the word "Main" (1) in Hindi the name of the Parliamentary
Constituency must be mentioncd. Indeed it had been pointed out in a judgment of
the Allahabad High Court in Kashi Prasad v. Harigen Ram and Another(1) that the
Hindi Form might have caused some confusion ,is there also a similar defect
appeared as in Ext. P-2 here and the name of the Constituency had not been
mentioned. The Court held that since the name of the Constituency was not
mentioned the defect was of a substantial nature and the Returning Officer
should have rejected the nomination paper. But as stated before it was
pointedly mentioned that the Hindi form might have caused some confusion and
the proposer would have been well advised in consulting some competent person
before filling it in.
Unfortunately it appears and that is
supported by the evidence of Shri
1. Election Petition No. 44 of 1967 decided
en January, 19, 1968.
12-L348Sup.C.I./73 162 Komal Singh Returning
Officer that the amendment proposed by the Election Commission of India was not
given elect to although certain other amendments in the Form were made in
accordance will the procedure prescribed by tile Act and the Rules. The
appellant has not been able to show any error in tile conclusion of the High
Court that the Form Ext. P-2 was not the prescribed Form under the Act and the
Rules and the same had been sent for the purpose of the election in question by
the Chief Electoral Officer, Madhaya PradesH, to the Returning Officer Shri
Kornai Singh.
In the Election Petition the sole grievance
of the appellant was that there was no separate space in the nomination form
where the name or the Constituency could be mentioned. it was not suggested
that the Proposer, whose name was Ajudha prasad or the appellant, had been
missed in any way by the language of the Hindi Form. The appellant who gave
evidence as P. W. 1 deposed that he had himself filed up the nomination form
Ext. P-2 and got it signed by his proposer.
There was no place for mentioning the name of
the Constituency and therefore it was not mentioned. The appel- lant is not
only a law graduate but has also worked as Civil Judge, for some years and
resumed practice in January 1968.
Shri S. K. Sharma the Assistant Returning
Officer to whom the nomination paper was handed over gave evidence, as P.W.
2. He stated that lie had told the appellant
that the name of the Constituency should be mentioned but tile latter replied
that there was no such space for writing the name of the Constituency in the
nomination paper. Shri Sharma further stated, "I again told him that after
the word "Main" (1) in the nomination paper the name of the
Constituency should be mentioned and you would realise the same if you would
minutely read the form. Thereupon the petitioner said "I know my own
job". The learned trial judge has believed this evidence and nothing has
been shown why it should not have been so believed. We concur with the High
Court that the form on which the nomination of the appellant was made (Ext.
P-2) was the one which had been statutorily prescribed and that there was a
complete omission to mention the name of the Parliamentary Constituency for
which the appellant was being nominated as a candidate. Furthermore the
Assistant Returning Officer had drawn the attention of the appellant to this
omission and yet the defect was: not cured. This was done notwithstanding the
fact, as will be presently seen, that where the defect is of a substantial
character and is not of the nature contemplated by the Act and the Rules it is
not the duty of the Returning Officer to get this defect rectified or omission
completed.
The next question is whether the omission to
mention the name of the 26th Betul Parliamentary Constituency in Ext.
P-2 163 was a defect of a substantial
character by reason of which the nomination paper must be rejected by the
Returning Officer. Section 33 deals with the presentation of the nomination
paper and requirements for a valid nomination.
It has to be presented after being completed
in the prescribed form and signed by the candidate and by an elector of the
Constituency as proposer. Sub-section 4 of that section is to the following
effect :
"On the presentation of a nomination
paper, the returning Officer shall satisfy 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".
Section 36 deals with scrutiny of
nominations. Sub-s. (2) thereof provides that the Returning Officer shall
examine the nomination papers and decide all objections which may be made to
any nomination and may, either on such objection or on his own motion after a
summary inquiry, reject the nomination paper on the ground given in clauses
(a), (b) and (c). Clause (b) is "that there has been a failure to comply
with any of the provisions of section 33 or section 34." Sub-section (4)
furnishes the key to the point under consideration. According to it the
Returning Officer shall not reject any nomination paper on the ground of any
defect which is not of a substantial character. The proviso to rule 4 may also
be noticed. It says that a failure to com- plete or defect in completing the
declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not
be deemed to be a defect of a substantial character within the meaning of
sub-s. (4) of s. 36. It is thus clear that in the statute and the rules those
defectshave been indicated for which the nomination paper cannot be rejected
and the Returning Officer has to permit the correction of those defects; [vide
proviso to s. 33(4) of the Act and Rule 4 of the Rules]. But s. 36(4) clearly
contemplates that where the defect is of a substantial character the Returning
Officer is not enjoined to have it rectified and he has to reject that
nomination paper The matter is not rev integra and is settled by a series of
decisions of this Court. We need refer only to two of such decisions, viz.,
Rattan Anmol Singh & another v. Atma Ram & Others(1) and Ram Dayal v.
Brijram Singh & Others(1). Tn. the first
case it was laid down in categorical terms that s. 36 is mandatory and enjoins
the Returning- Officer to refuse any nomination when there has been any failure
to comply with any of the provisions of s. 33. The only jurisdiction the
Returning Officer has at the scrutiny stage is to see whether the nominations
are in order and to hear and decide objections.
He cannot at (1) [1955] 1 S.C.R. 481. (2)
[1970] 1 S.C.R.
530.
164 that stage remedy essential defects or
permit them to be remedied. It is not open to him to reject a nomination paper
on the ground of a technical defect which is not of a substantial character.
But he cannot remedy that defect.
He must leave it as it is. If it :Ls
technical and non- substantial it will not matter. In the second case the
following observations at page 533 are noteworthy "The requirement under
s. 33(1) of the Act that the nomination shall be signed by the candidate and by
the proposer is mandatory.
Signing, whenever signature is necessary,
must be in strict accordance with the requirements of the Act and where the
signature cannot be written it must be authorised in the manner prescribed by
the Rules. Attestation is not a mere technical or unsubstantial requirement
within the meaning of S. 36(4) of the Act and cannot be dispensed with. The
attestation and the satisfaction must exist at the stage of presentation and
omission of such an essential feature may not be subsequently validated at the
stage of scrutiny any more than the omission of a candidate to sign at all
could have been".
In this case the earlier decision in Rattan
Anmol Singh's(1) case was followed.
There can be no manner of doubt that in the
present case there has been a failure to comply with the provisions of s.33
inasmuch as the name of the Constituency was not stated in the nomination paper
which, therefore, could not be treated as having been completed in the
prescribed form as required by S. 33(1) of the Representation of the People
Act. This defect was essentially of a substantial character and did not fall
within those provisions where the Returning Officer is enjoined either to get
the defect rectified or ignore it. It was not the duty of the Returning Officer
at the stage of the scrutiny to draw the attention of the, appellant to the
aforesaid substantial defect for the purpose of getting the same cured. The
Returning Officer was fully justified in rejecting the nomination paper.
The appeal fails and it is dismissed. Parties
will bear their own costs.
(1)[1955] 1 S.C.R. 481.
165 A copy each of this judgment should be
sent to the Election Commission, India, as also the Secretary, Ministry of Law
for drawing their attention to the observations with regard to the nomination
paper 2A (in Hindi version) prescribed for nomination of a candidate for
election to the House of the People and the desirability of accepting the
suggestion made by the Election Commission in its letter dated August 24, 1968,
to the Secretary, Official Languages (Legislative) Commission, New Delhi, being
Exhibit R-7 in the above case or adding explanatory notes in the prescribed
form in Hindi language.
V.P.S. Appeal dismissed.
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