Shri Bhogendra
Jha Vs. Shri Manoj Kumar Jha [1996] INSC 596 (23 April 1996)
Ramaswamy,
K.Ramaswamy, K.Hansaria B.L. (J) Majmudar S.B. (J)
CITATION:
1996 AIR 2099 JT 1996 (5) 658 1996 SCALE (4)542
ACT:
HEAD NOTE:
O R D
E R
The
appellant is a returned candidate to the 10th Lok Sabha from 13, Madhubani
Parliamentary Constituency in Bihar. The last
date for filling nominations for the Lok Sabha Elections was April 26, 1991. The date of scrutiny was April 27, 1991. Out of 61 candidates who filed
nominations, three nomination papers of Pawan Kumar Pathak, PW-4, Lal Bahadur
Singh, PW-6 and another came to be rejected by the Returning officer during
scrutiny. Poll was held on May 23, 1991.
Out of 49 candidates who remained in the contest, the appellant had secured 3,30,111
votes, i.e., 51.91 per cent as against the nearest candidate Dr. Jagannath Mishra
who secured 2,50,020, i.e., 39.31%. Rest of the candidates could not even
protect their deposits. The respondent Manoj Kumar Jha, an elector filed the
election petition impugning rejection of the nominations of PW-4 and PW-6 as
bad in law.
The
High Court in the impugned judgment has upheld his contention and declared the
election of the appellant as void in E.P.A. No.7/1991 dated August 25, 1995 by Patna High Court.
In
this appeal, the only question is: whether the view of the High court that the
Returning Officer had not conducted summary enquiry under section 36 of the
Representation of People Act, 1951 (for short, the 'Act') is correct in law? It
is seen that even Pawan Kumar Pathak (PW- 4) and Lal Bahadur Singh, PW-6 did
not feel aggrieved against the rejection of the nominations as they did not
file election petitions though they were examined on behalf of the respondent
as witnesses. The appellant, admittedly, was not and could not present himself
at the time of scrutiny of nomination papers and rejection of the nominations.
He did not know what had transpired at the time of scrutiny and rejection of
the nomination. As regards PW- 4, Pawan Kumar Pathak, the orders of rejection
read thus:
"the
proposer name does not tally with the name as entered in the electoral roll
hence rejected." As regards PW-6, it was rejected for the reason given
thus:
"The
name of the proposer does not tally with the name as entered in the electoral
roll hence rejected." It is not in dispute that PW-4's proposer's
electoral roll number with S. No. 413, Part 190 while in his nomination paper
he mentioned S. No.113 part 190. Lal Bahadur Singh's proposer mentioned his
name was in the Part 75 of electoral roll; in fact, it is in Part 74. The
question, therefore, is: whether it was necessary for the Returning Officer to
make a roving enquiry as regards the correct number of the proposers in the
nomination papers and the electoral roll. Section 33 of the Act prescribes
procedure for presentation of the nomination on the appointed date by each
candidate either in person or by his proposer, between the specified time under
sub-section (1) thereof. The nomination thereof is to be completed in the prescribed
form and signed by the candidate and by an elector of the constituency as
mandated under Section 31.
Under
sub-section (4), on the presentation of the nomination paper, the Returning
Officer has to satisfy himself that the names and numbers of the candidate and
his proposer as entered in the nomination paper are the same as entered in the
electoral roll. The proviso reads as under:
"Provided
that no misnomer or inaccurate description or clerical, technical or printing
error in regard to the 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." Section 36 prescribe the procedure for the scrutiny of
nomination paper. Sub-section (1) emphasizes that on the date of the scrutiny
of nomination paper, the candidates, their election agents,one proposer of each
candidate,and one other person duly authorised in writing by each candidate and
by no other person, may attend at such time and place as the Returning Officer
may appoint; and the Returning Officer shall give them all reasonable
facilities for examining the nomination papers of the candidates which might
have been delivered under Section 33. Under sub-section (2) thereof the
nomination paper shall be examined by the Returning Officer thereafter and he
shall decide all objections which may be made to any nomination and may, either
on such objection or after such summary inquiry, if any, as he thinks
necessary, reject any nomination on any of the grounds enumerated in clause
(a), namely, whether the candidate is not qualified or is disqualified for
being chosen to fill the seat or there has been a failure to comply with any of
the provisions of Section 33 or Section 34 or the signature of the candidate or
the proposer on the nomination paper is not genuine. Under sub-section (4), the
returning officer shall not reject any nomination paper on the ground of any
defect which is not of a substantial character. Even though no objection is
raised by any other candidate, if the Returning Officer on his own motion finds
that the defect is of substantial character, he is empowered to reject the
nomination. If any objection is raised, the candidate concerned may 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
to which the proceedings are adjourned as envisaged in proviso to sub-section
(5). The Returning Officer shall hold, under sub-section (1), the scrutiny on
the date in that behalf and shall not allow any adjournment of the proceedings
except when such proceeding are interrupted or obstructed by riot or open,
violence or causes beyond his control. Under sub-section (6), the Returning
Officer shall endorse on such 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. Under sub-section
(8), immediately after all the nomination papers have been scrutinised and
decisions, accepting or rejecting the same, have been recorded, the Returning
Officer shall prepare a list of validly nominated candidates, that is to say,
candidates whose nominations have been found valid, and affix it on his notice
board. What would be a defect of substantial character is always a question of
fact based on factual matrix on record. Each case is required to be considered
on its own backdrop.
This
Court in a recent judgment dated 14.3.1996 in C.A. No.6478/95 (Rafiq Khan &
Anr. v. Lazmi Narayan Sharma) reviewed the entire case law and held that:
"Unless
the defect is one which can be per se noticed and corrected at the stage of
section 33(4) or later at the stage of section 36(4) without the need to refer
to various other documents the same cannot be said to be of a non- substantial
character. In the instant case also the defect as to the number could have been
said to be not of a substantial character if the appellant had shown that the
name of the proposer appeared on the very same sheet at serial number 138
instead of 136 i.e. Only two steps away. In that case one can say that the
Returning Officer could have verified the same if he had exercised due
diligence. In such a situation even if the appellant had his proposer absent
the court could have taken the view that the defect was not of a substantial
nature. But the defect cannot be noticed unless the Returning Officer is
required to sift through various other documents or the voters list or is
required to undertake an enquiry as to whether the proposer's name appears
anywhere else in the voters list. The defect may not be one capable of being
cured without the assistance of the candidate or his proposer and in such a
situation he would be justified in rejecting the nomination paper. In the
instant case since there is no evidence to suggest that the name of the proposer
appeared on that very sheet at serial number 138 instead of 136 in the
electoral roll, we find it difficult to find fault with the rejection of the
nomination paper by the Returning Officer." Under Section 36(4) of the Act,the
Returning Officer shall not reject any nomination paper on the ground of any
defect which is not of a substantial character. Under Section 36(1), the
Returning Officer has the power to conduct an enquiry. It is settled law that
it is a summary enquiry. When the Returning Officer scrutinize the nomination
paper, the parties or the nominees are required to be present and if they seek
liberty to place the necessary material, the Returning Officer is enjoined to
adjourn the case to the next day. In case they are able to place the necessary
material and satisfy the Returning Officer of the correctness of the enrollment
as a candidate or the address of the nominee, the Returning Officer would
consider the same. But he is not expected to sift the evidence and find the
placement in the electoral roll, the name and particular of the nominee.
In
this case, PWs 4 and 6 who were the candidates and had filed their nominations,
though admittedly were present, did not ask for an opportunity nor attempted to
satisfy the Returning Officer as to the correctness of the particulars
furnished by them in the nomination papers of their proposers. Therefore, the
Returning Officer was not expected to make a roving enquiry to find out whether
the names of the proposers found place in the electoral roll. It is the duty of
the candidate/proposer to satisfy the Returning officer. It was suggested to
the witnesses, PWs 4 and 6, that they were only dummy candidates and had no
interest in the election and that in the event Dr. Misra was unsuccessful at
the election, they would be used as a means to unsettle the election of the
appellant.
We
find force in the suggestion. It was suggested that Dr. Misra had borne their
travel expenses to attend the Court for giving evidence. It is an admitted
position that they did not even know the result of the election and the person
who succeeded in the election. In other words, they did not even make any
attempt to know the result of the election, apart from the fact that they did
not file even the election petition. Under these circumstances, it would appear
that PWs 4 and 6 were only dummy candidates to be used as reserve material to
impugn the election of the returned candidate in the event the election result
went against any unsuccessful candidate.
Accordingly,
we hold that the High Court was not right in declaring the election of the
appellant as void on the ground that the nominations of PWs 4 and 6 were not
valid in law.
The
appeal is accordingly allowed with costs quantified at Rs.15,000/-. The judgment
of the High Court is set aside.
The
election petition stands dismissed.
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