ORDER
REGARDING SCRUTINY
The Nomination of Sunil Kumar was received on 20.1.1997 at 12.10 p.m. His name was proposed by one proposal and was registered at serial No. 8.
On 20.1.1997 the candidate brought Form A and Form B wherein it has been mentioned by the President of the Bhartiya Janta Party that Sunil Kumar would be main party candidate.
However another candidate namely Shri Vir Abhimanu also filed Form A & Form B along with his application wherein it has been mentioned that he is the main candidate of Bhartiya Janta Party.
However on the date of scrutiny it was noticed that his authorisation does not any where state that the earlier authorisation has been cancelled. Shri Sunil Mehra has pleaded that since his papers are in order his candidature cannot be rejected at this stage - opportunity should be given to the party to withdraw candidature before the last date of withdrawal. He also argued that the party has a right to cancel or substitute an authorisation in favour of any candidate before the last date of withdrawal. However I am unable to agree with this contention.
The Representation of People Act, 1996 has been amended as per amended Section 33 of the Representation of People Act 1951, the Nomination of the candidate to a state Legislative assembly to be subscribed by:
(i) One elector of the constituency if the candidate has been set up either by a recognised national Party or by a recognised Party in the State or in the States in which it is recognised as a State party.
(ii) Ten (10) electors of the Constituency as proposer if the candidate has been set up by a Registered unrecognised political party or if he is an independent candidate.
The political parties are required to intimate the names of the candidates set up by them to the Returning Officer before scrutiny of Nomination papers. In this case the last date for the party to make nomination in Form 'A' and Form 'B' was 20.1.1997 upto 3 p.m.
Therefore, under the amended law the nomination made by the party in Form 'A' and Form 'B' prescribed for this purpose by the Commission under para 13 of the Election Symbols (Reservation and Allotment) Order 1968 also become part of scrutiny. The Returning officer has to determine the validity of nomination order (paper), keeping in view whether the candidate has been set up by the Political party or not. If he has been set up by the Political party only one proposer is required and if he has been an independent then ten proposers are required. The political parties has to decide before scrutiny of the Nominations as to which it is sponsoring. It cannot be given further time to change such authorisation after scrutiny.
Hence the contention of Shri Sunil Kumar that party be given time till date of withdrawal is not valid. Hence I am duty bound to decide the matter today itself.
Accordingly I have scrutinised the nomination papers of Sunil Kumar and also Vir Abhimanyu. Since the party has submitted authorisation in respect of both these candidates as main candidates and no authorisation mention the cancellation of the otheuthorisation. I have to reach the conclusion that the party has set up two main candidates which it cannot do. Therefore, as per law both candidates have to be treated as independent candidates.
But the law also required that the independent candidate should be sponsored by 10 proposers.
In this case there is only one proposer, hence the requirement of law has not been fulfilled and therefore, the Nomination paper of Sunil Kumar is rejected.
Dated : 21.1.1997
Sd/- Daljit Singh,
Returning Officer,
57- Ludhiana North'
18. As already noticed, after the amendment of Section 33(1) of the Act in 1996 a change has been brought about by the Legislature with regard to the requirement of the number of proposers of nomination papers to be filed by the candidates. After the amendment, the nomination of a candidate to a State Legislative Assembly is required to be subscribed by only one elector of the constituency, where the candidate has been set up either by a recognised national political party or by a recognised political party in the State or in the States in which it is recognised as a party and in other cases the nomination paper has to be subscribed by 10 electors of the constituency, as proposers, where the candidate has been set up either by an un-recognised political party or is an independent candidate. The political parties are also required to intimate the names of the candidates set up by them to the Returning Officer before scrutiny of nomination papers in Forms A & B.
19. The returning officer rejected the nomination paper of the respondent, relying upon Section 33(1) of the Act, as amended. It was held that since BJP had set up more than one candidates and had not decided before scrutiny of the nomination papers as to who was its official candidate by cancelling die authorisation of the other candidate, both the BJP candidates could be treated only as 'independent' candidates and not the candidates set up by a recognised political party and since neither of the candidates had been sponsored by ten proposers, their nomination papers were invalid.
20. The Election Commission of India has issued instructions in exercise of its statutory functions. Those instructions are contained in the Hand Book for Returning Officers. Chapter VI of the Handbook deals with scrutiny of nomination papers by the returning officer. The learned single Judge of the High Court has referred to various provisions of the instructions and has rightly come to the conclusion that the returning officer did not follow those instructions while scrutinising the nomination papers, thereby adopting a wrong procedure. We agree with the view of the High Court in that behalf. We are unable to persuade ourselves to agree with the submission of Mr. Mishra that the returning officer was justified in rejecting the nomination paper of the respondent for non-compliance with the requirements of Section 33(1), as amended, without any further enquiry. The argument over looks the proviso to Section 36(5) of the Act as well as the instructions issued by the Election Commission of India (supra). The legislature in its supreme wisdom did not amend the proviso to Section 36(5) of the Act after Section 33(1) was amended in 1996, thereby clearly exhibiting its intention that the said proviso was required to be given its full effect, more particularly because the duty which a returning officer performs while scrutinising the nomination papers is quasi judicial in character, even after Section 33(1) had been amended.
21. The proviso to Section 36(5) of the Act lays down:
Provided that in case (an objection is raised by the returning officer or is made by any other person) 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 have been adjourned.
22. Through the proviso, the legislature has provided that in case an objection is raised during the scrutiny, to the validity of a nomination paper of a candidate, the Returning Officer, may, give an opportunity to the concerned candidate to rebut the objection by giving him time 'not later than the next day'. This is in accord with the principles of natural justice also. Since, no other candidate had raised any objection to the claim of the respondent of being the official candidate of BJP, and the objection had been raised by the Returning Officer suo motu, the mandate of the proviso to Section 36(5) of the Act warranted the holding of a summary enquiry, to determine the validity of the nomination paper by the returning officer, while exercising his quasi-judicial function. In the present case, the respondent had sought an opportunity to meet the objection, but even if he haut sought such an opportunity, the returning officer ought to have granted him time to meet the objection in the interest of justice and fair play.
23. The Returning Officer would have been justified in rejecting the nomination paper of the respondent, had the respondent either not sought an opportunity to rebut the objection raised by the Returning Officer or was unable to rebut the objection within the time allowed by the returning officer. Since, the respondent, had by his written application (supra), filed at the time of scrutiny of the nomination papers itself claimed to be the official candidate set up by BJP, which claim was not disputed by any one else during the scrutiny, and had sought time of 24 hours to provide relevant material in support of his submission, it was obligatory on the part of the Returning Officer to allow time to him to rebut the objection, mo motu, raised by the Returning Officer. He could have given him any time to do so 'within 24 hours' but to deny him such an opportunity, in the facts and circumstances of the case, was neither fair nor proper or justified. It was expected of the Returning Officer to adjourn the scrutiny of the nomination paper to enable the respondent to meet the objection. The use of the expression 'not later than the next day but one following the date fixed for scrutiny' under proviso to Sub-section (5) of Section 36 of the Act un-mistakably shows that the Returning Officer has been vested with the discretion to fix time to enable a candidate to rebut an objection to the validity of his nomination paper and such a discretion has to be fairly and judicially exercised. The refusal to grant an opportunity to the returned candidate (respondent) and rejecting his nomination paper was clearly an arbitrary exercise of the discretion vested hi the Returning Officer. The Returning Officer has also not given any cogent reasons for his refusal to grant an opportunity as prayed for by the respondent. The Returning Officer appears to have been labouring under some misconception when he recorded that the political party 'cannot be given further time to change such authorisation after scrutiny'. Under the proviso to Section 36(5) of the Act, the scrutiny itself would have been postponed to the adjourned time and, therefore, it was not a case of meeting the objection after scrutiny of the nomination papers. The failure to exercise his jurisdiction to postpone the decision as to the validity of the nomination paper of the respondent, even after the respondent had sought time to meet the objection, indeed rendered the rejection of the nomination paper of the respondent as both improper and illegal. The Returning Officer is not expected to reject a nomination paper, without giving an opportunity to the candidate or hypersensitive present at the time of scrutiny to meet an objection, capable of being met, particularly where such an opportunity is sought for by the candidate or his representative and no one present on behalf of the other candidates had opposed the claim made by the respondent. Having raised the objection suo motu, the request of the respondent who was present and sought time in writing to seek clarification from the BJP as to who was its official candidate, the Returning Officer in all fairness was obliged to grant time to the respondent as prayed for by him and postponed the scrutiny to the next day but he ought not to have rejected his nomination paper in hot haste. The Returning Officer, obviously, failed to exercise his jurisdiction under Section 36(5) of the Act properly and thereby fell into a grave error in rejecting the nomination paper of the respondent. The learned Single Judge of the High Court was, therefore, perfectly justified in holding that the nomination paper of the respondent had been wrongly and illegally rejected, thereby rendering the election of the returned candidate as void. The impugned order, thus, suffers from neither a jurisdictional defect nor any other error whatsoever.
24. In the view that we have taken, we need not detain ourselves to consider the effect of the rejection of nomination papers of S/Shri Vir Abhimanyu and Harish Kumar as the Election Petition was bound to succeed for the improper and illegal rejection of the nomination paper of respondent, Sunil Kumar itself.
25. This appeal consequently has no merits and is dismissed with costs. Counsel fee Rs. 7,000/-