Modi, J.
1. This is an election appeal under Section. 116A of the Representation of the People Act (No. 43) of 1951 (hereinafter called the Act).
2. The appellant Shri Balji was a candidate for election to the House of the People from the Jhunjhunu Parliamentary Constituency at the General Election held in January, 1962. The respondent Shri Murarka Radheyshyam Ramkumar was declared successful at this election. There were more than a dozen other candidates at the election in question, but we are not concerned with them. The appellant's nomination paper was rejected by the Returning Officer Shri V. I. Raja-gopal R. W. 2 (Collector, Jhunjhunu) at the time of the scrutiny which was held on the 22nd January, 1962. A copy of the order of rejection of the nomination paper is Ex. 13. It shows that neither the candidate Shri Balji nor his proposer Abdul Gani nor any election agent or representative on his behalf was present at the time of the scrutiny. The reason for the rejection was stated to be that the proposer Abdul Gani had given his electoral roll number as 105, ward No. 13 (Nawalgarh); but the name of Atma Ram son of Ramgopal appeared in the relevant Electoral roll against the said particulars and wrong particulars given by the prosposer constituted a defect of a substantial nature. The order also shows that all present at the time of the scrutiny were given full opportunity to examine the nomination form before the final decision was given. Aggrieved by this decision, the appellant filed an election petition to the Election Commission of India, New Delhi, on the 13th April, 1962, which was referred for disposal to Shri Roop Singh Rathore, District Judge, Jhunjhunu as the Election Tribunal.
3. The principal contentions raised by the appellant election petitioner in his application are:
(1) that the nomination, paper was filed by the candidate and his proposer before the Returning Officer on the 19th January, 1962, at 2.58 P.M. and was received by the Assistant Returning Officer Shri K. C. Jain (vide receipt Ex. 2) without any objection and at that time the numbers on the electoral roll both of the candidate and the proposer had been checked up;
2. that in the receipt Ex. 2 which was given by the said Assistant Returning Officer to the appellant, it was mentioned that the scrutiny of the nomination papers would take place at 2.58 on the 22nd January, 1962, which led the petitioner and the proposer to believe that the scrutiny of his nomination form would not take place before the time so indicated, and yet the Returning Officer held the scrutiny at 11 A.M. on the 22nd January, 1962, behind the back of the petitioner and his proposer, and that he had done so deliberately to help the respondent Shri Murarka who was a Congress candidate and
3. that the Returning Officer had fallen into a serious error of law in holding that the supply of wrong electoral number from a wrong electoral roll was a defect of a substantial character. The appellant's version on this aspect of the case was that the proposer' was a resident in the town of Nawalgarh and that the particulars which, were given in the nomination form in the shape of his electoral roll number were inadvertently given from the municipal electoral roll for the town of Nawalgarh (Ex. 4) inasmuch as his number in that electoral Roll was 105 in Ward No. 13 thereof. It is submitted that the correct electoral roll number of the appellant's proposer Abdul Gani in the relevant (Nawalgarh) Assembly Constituency electoral roll was No. 96 in Ward No. 15. It may be conveniently pointed out here that this number should have been mentioned in the nomination paper as No. 96 Part 57 of the Nawalgarh Assembly Constituency. Be that as it may, the position taken up by the election petitioner was and is that this defect was of a clerical nature and was of a non-stibstantial character and, therefore, should not have been allowed to prevail by the Returning Officer. It is further stressed in this connection that if the scrutiny of the appellant's nomination paper had not been made before the time noted dawn in the receipt Ex. 2 which had been given to him in lieu of the presentation of his nomination paper, it should have been possible for him to establish the identity of his proposer by leading the necessary evidence and that the rejection of his nomination paper, therefore, before the time so fixed had caused him grave prejudice.
4. It is necessary to mention two other facts to complete the narration of events. The first is that according to the petitioner he and his proposer had reached the office of the Returning Officer at about 1-30 P.M. on the 22nd January, 1962, and having come to know that his nomination paper had been rejected by him, he made efforts to find out the reason why his nomination paper had been rejected. The petitioner's grievance obviously is that on that very day he had made one or more applications for obtaining a copy of the order but without any success. Consequently he sent a telegram to the Election Commission (See; Ex. 10) on the 25th January, 1962, complaining that the Returning Officer had illegally rejected his nomination paper and had also refused to supply a copy of his order even on double fees and he further sent an application (See copy Ex. 11) dated the 5th February, 1962, also to that very authority wherein he complained more or less in the same strain; but further submitted that he had filed an application duly stamped for supply of copies of the elevant documents but it was returned to him. The appellant also submitted that he feared foul play. The other fact is that the appellant had also filed his nomination paper for a seat in the House of People from the Sikar constituency which he admittedly withdrew later on.
5. The appellant election-petitioner, therefore, prayed that the rejection of his nomination paper was illegal and consequently the election of the respondent declared void.
6. The respondent completely traversed the allegations made in the election petition.
7. Now it has been found by the Tribunal that the nomination paper of Shri Balji was received by the Returning Officer on the 19th January, 1962, at 2-58 P.M. and the receipt (Ex.. 2) for, the same was executed by the Assistant Returning Officer Shri K. C. Jain and that in that receipt it was mentioned that the time for the scrutiny of the nomination paper was 2-58 (P.M.) on the, 22nd January, 1962. The Election Tribunal, however, further found that the mention of the time of the scrutiny in the nomination paper as 2-58 P.M. in this receipt was a pure and simple accidental mistake inasmuch as the appellant's own witness Shri Jain had said so. It was further found that the appellant's assertion at the trial that Shri K. C. Jain had also orally told him that the scrutiny would take place at 2-58 P.M. on the 22nd January, 1962, was not at all substantiated by the evidence either of Shri K. C. Jain or the other witnesses of the appellant. The Tribunal also found, that it had not been satisfactorily proved that the appellant Balji had reached the office of the Returning Officer on the 22nd January, 1962, at 1-30 P.M.
On the question whether the Assistant Returning Officer had compared the electoral number of the appellant's proposer with the correct and the relevant electoral roll and whether he was satisfied as to the correctness thereof, the finding of the Tribunal is that the Assistant Returning Officer had no doubt tried to check the name and the electoral roll number of the proposer Abdul Gani; but this comparison had somehow been made not with respect to the entries in the Legislative Assembly Electoral roll but with the Municipal Electoral roll for the town of Nawalgarh, which had been placed on his behalf before the Assistant Returning Officer, and this is how that officer did not notice the discrepancy. On the last and the most important question as to whether the defect with respect to the wrong mention of the electoral roll number of the proposer in the nomination form was a defect of a substantial nature or not, the Tribunal found that it was not a defect which was merely of a clerical or technical nature but was a defect of a substantial nature justifying' the rejection of the nomination paper of the election petitioner. In coming to this conclusion, the Tribunal further found that the story trotted out by the petitioner and some of his witnesses that Abdul Gani had been traced before the Returning Officer at the time of the scrutiny and that his identity had been fixed with reference to the assembly electoral roll could not be accepted as correct. These are in brief the findings of the Tribunal which have been attacked before us in this appeal.
8. Now; the most important question which emerges for determination in this appeal is whether the wrong entry as to the electoral roll number of the proposer in the nomination paper is a defect which is merely of a technical or clerical nature or is of a substantial character, for we might state at once that if the defect was of an unsubstantial, nature, there would be no justification for the Returning Officer to have rejected it and in support of this view, it should be sufficient to refer to Sub-section (4) of Section 36 of the Act, which reads as follows:
'The returning officer shall not reject any nomination paper on the ground of any defect which, is not of a substantial character.'
9. But before we address ourselves to this question, we consider it proper to dispose of another objection raised on behalf of the appellant that having regard to the mention that was made in the receipt that the nomination papers would be scrutinised by the returning officer at 2-58 P.M. on. the 22nd January, 1962, the said officer had no business to scrutinise his nomination paper before that time, and that this has caused him a serious prejudice from which he had and has a right to be saved and which must, therefore, result in the setting aside of this election. The mainstay of learned counsel's argument in this connection was Section 35 which reads as follows:
'The returning officer shall, on receiving the nomination paper under Sub-section (i) of Section 33, inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations and shall enter op the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer.'
The argument was that Section 35 places a duty on the returning officer after a nomination paper has been presented to and received by him to inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of the nominations, and that that being so, the returning officer could not have made a scrutiny of the appellant's nomination paper before the time and the date or save at the place so specified. The argument may be attractive at first sight; but, in our opinon is devoid of substance. This would be clear from the sections which precede Section 35 in Part V of the Act. Part V deals with conduct of elections, and begins with Section 30. This section contemplates that after a notification calling upon a constituency to elect a member or members is issued, the Election Commission shall by notification in the Official Gazette, appoint:
(a) the last date for making nominations,
(b) the date for the scrutiny of nominations
(c) the last date for the withdrawal of candidatures,
(d) the date or dates on which a poll shall be taken, and
(e) the date before which the election shall be completed.,
and lays down certain points of time for all these stages of an election, which it is not necessary forour purposes to reiterate here and consequently we refrain from doing so. Section 31 then is in these terms:
'On the issue of a notification under Section 30, the returning officer for the constituency shall give public notice of the intended election in such form and manner as may be prescribed, inviting Dominations of candidates for such election and specifying; the place at which the nomination papers are to be delivered,'
Section 32 then lays down that
'Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the-Constitution and this Act.'
Section 33 deals with the requirements of a valid nomination as also the presentation' thereof. Sub-section (i) of this section reads as follows:
'On or before the date appointed under clause (a) of Section 30 each candidate shall; either in person or by his proposer, between the hours of eleven O' clock in the forenoon and three O' clock. in the afternoon deliver to the returning officer air the place specified in this behalf in the notice issued under Section 31 'a nomination paper completed? in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.' '
(The underlining (here into ' ') is ours). Sub-section (4) of this section reads as follows:
'On the presentation of a nomination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidater and his proposer as entered in the nomination paper are the same as those entered in the electoral! rolls:
Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.'
Then follows Section 36 which deals with the scrutiny of nomination papers. But to this, we propose to refer at the proper place.
Suffice it to mention here that this section enjoins the rejection of a nomination paper where, among; other matters, there has been a failure to comply with any of the provisions of Section 33.
10. We must at this place also invite attention to the Conduct of Election Rules, 1961 (hereinafter called the Rules). Rule 3 of these rules reads as follows:
'The public notice of an intended election referred to in Section 31 shall be in Form 1 and shall, subject to any directions of the Election Commission, be published in such manner as the returning officer thinks fit.'
These rules have obviously been made under Section 169 of the Act. Form I as prescribed in these (rules reads as follows:
'FORM 1
Notice of Election
(See Rule 3)
(Election, to ............'
Notice is hereby given that:
(1) an election is to be held of .........
(2) forms of nomination paper may be obtained at the offices of the officers specified in paragraph 6 (between the hours of ,....,... and ...... from ...... (date) to ......... (date)
(3) domination papers may be delivered between the hours of II in the morning and 3 in the afternoon by a candidate or his proposer to any of the officers specified in paragraph 6 at his office on any day not later than the ......... day of ......
(4) the nomination papers will be taken up forscrutiny at .... (hours) on .... (date) at (place).
(5) notice of withdrawal of candidature may be delivered by a candidate, his proposer or election agent to anyone of the officers specified in paragraph 6 at his office before 3 p.m. on .........
(6) nomination papers and notices of withdrawal may be. delivered to any of the officers specified an the first column of the following table at his office specified in the corresponding entry in the second, column of the table: TABLE
Designation of OfficerLocation of Officer12
1. Returning Officer. 2. Assistant Returning Officer.
(7) in the event of the election being contested, the poll will take place on...........
between the hours of ........................ and ................................Returning Officer
.................................... ConstitutencyPlace ..................Date ..................
'Here appropriate particulars of the electionare to be inserted.'
11. We would invite particular attention to paragraph (4) of this form according to which time for the scrutiny of the nomination papers is required to be fixed.
12. Now, it is not disputed before us that a public notice (Ex. A-1) under Rule 3 of the Rules which in its turn refers to Section 31 was issued and duly published by the returning officer in this case on the 13th January, 1962, as under:
FORM 1 NOTICE OF ELECTION
Sd/-
(Seal)
(See Rule 3) Returning Officer
Election to House of the Jhunjhunu Parliamentary
People Constituency (B. M.)
Notice is hereby given JHUNJHUNU.
that :--
(1) an election is to be held of a member to fill the seat allotted to the Jhunjhunu constituency of the House of the People.
(2) forms of nomination paper may be obtained at the offices of the officers specified in paragraph 6 between the hours of 11 A.M. to 2 P.M. and from 13th January 1962 (date) to 20th January 62 (date).
(3) nomination papers may be delivered between the hours of IT in the morning and 3 in the afternoon by a candidate or his proposer to any of the officers specified in paragraph 6 at his office on any day not later than the 2oth day of January 1962.
(4) the nomination papers will be taken up for scrutiny at 11 A. M. (hours') on 22nd January (date) 1962 at Collectorate Jhunjhunu (Place).
(5) notice of withdrawal of candidature may be delivered by a candidate, his proposer or election agent to any one of the officers specified in paragraph, 6 at his office before 3 P.M. on 25th January 1962.
(6) nomination papers and notices of withdrawal may be delivered to any one of the officers specified in the first column of the following table specified, in the corresponding entry in the second column of the table:
TABLE
Designation of the officer Location of officer 12
1.Returning Officer.Diet. Electoral Officer, Dist. Magistrate, Jhun-jhunuCollectorate, Jhunjhunu2.AsssistantReturning OfficerDy. Dist. Electoral Officer jhunjhunu.Collectorate, Jhunjhunu.
(7) In the event of the election being contested, the poll will take place on 21st, 23rd and 25th of February 1962 (dates) between the hours of 8 A.M. and 5 P.M. .
Sd./V.I. Rajagopal
Returning Officer
Jhunjhunu Parliamentary Constituency Jhunjhunu
Sd./ K.C. Jain
Date : 13.01.62
Place : Jhunjhunu (Seal)
RETURNING OFFICER
PARLIAMENTARY CONSTITUENCY.'
13. It will thus be seen that it was clearly mentioned in this public notice dated tie 13th January 1962 that the nomination papers will be taken up for scrutiny at 11 A. M. on the 22nd January, 1962, at the Collectorate Jhunjhunu.
14. Now it is in this setting that we have to see whether the appellant could have any legitimate grievance that he had been misled by the time for scrutiny mentioned in his receipt Ex. 2 dated the 19th January, 1962. Evidence has been led on behalf of the respondent to show that this notice had been read out to the appellant by the respondent's witness Sitaram Parasrampuria about the 15th or 16th January, 1962, when he had gone to the office of the Collector, Jhunjhunu to collect certain forms etc. for the respondent. Even if we were to reject this evidence as untrue, we find it impossible to hold that the appellant was not aware of this notice. Indeed we must hold that he was very much aware of it because otherwise one could hardly know how the programme of the entire election stood for this constituency for which the appellant was a candidate 'and how for example the nomination papers were to be obtained and when and during which hours they were required to be presented and so on and so forth. It was clearly mentoined in this notice that the nomination papers would be taken up for scrutiny at 11 A. M. on the 22nd January, 1962, at the Collectorate, Jhunjhunu.
We, therefore, find it hard for us to accept that the appellant was or could be really prejudiced by anything mentioned in the receipt. As we look at the matter, if the respondent had himself read the receipt or had it read out to him, he would have at once seen that there was a conflict in the time table so far as the scrutiny of the nomination papers was concerned, which is indeed a very vital step in the whole process of election, and we should have expected him to further inquire into the matter. And if he had done so, he would have at once come to know how 'the position correctly stood.
15. So far as the appellant's version made at the trial that he had been orally informed by the Assistant Returning Officer that the scrutiny would take place at 2-58 P. M. on the 22nd January 3962, we have no hesitation in saying that it is absolutely unacceptable. No question was put to Shri K. C. Jain, the Assistant Returning Officer, in that behalf when he was examined by the appellant himself on his side and consequently he has said nothing on that aspect of the matter. On the other hand, he clearly deposed that the time entered in the receipt Ex. 2 for scrutiny as 2.58 P. M. was just an accidental slip of pen, because at this time the nomination form was presented'. We should also like to make it clear that reading Section 31 together with Rule 3 of the Rules and the form 1 prescribed thereunder, the notice issued under these provisions already set out the time for the filing and the scrutiny of the nomination papers, and we are not prepared to accept the submission of learned counsel for the appellant that this is properly required to be done under the scheme of the Act for the first time under Section 35 thereof, when the last-mentioned section, among other matters, requires that on receiving the nomination paper under Sub-section (1) of Section 33, the'Returning Officer shall inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations.
That provision, to our mind, has been made merely by way of abundant caution and no more so far as this aspect of the matter is concerned. We should also like to make it clear that the phrase 'intended election' as used in Section 31 has not been based in any narrow sense but embraces the entire process of election from the time the constituency has bean called upon to go to poll till the result of the poll is declared. As we look at the matter, therefore, we are clearly of the opinion that having regard to all the circumstances, it was the duty of the appellant election-petitioner to have been present at the time of the scrutiny, that is, 11 A. M. on the 22nd January, 1962, in the office of the Returning Officer at Jhunjhunu, and if he failed to do so, and his nomination paper was disposed of in his absence, the fault is entirely his own, and, at any rate, we are not able to hold that that has really caused him any prejudice.
16. Before parting with this aspect of the case, we cannot also fail to remark that if the wrong mention of the time for scrutiny in the receipt Ex. 2, should have had any such effect on his mind, as the appellant now wishes to be believed, it is indeed highly strange that no mention of this should have at all been made either in his telegram Ex. 10 dated the 25th January, 1962, or in his application Ex. 11 dated the 5th February, 1962, to the Chief Election Commissioner. It is further significant to note in this connection that although the appellant stated at the trial that he had made an application to the Returning Officer protesting against the procedure followed by him on that very day, that is, the 22nd January, 1962, no such application has been forthcoming on the record.
The appellant has tried to explain this by saying that that application had been returned to him by the Returning Officer., But if that was so, one should have found a reference to this part of the complaint also which certainly betrayed the alleged high-handedness of the Returning Officer in the telegram and the application sent to the Chief Election Commissioner. A question was 'put to the Returning Officer when he came into the witness-box in this connection and his reply was 'II the suggestion is that I refused to take an application presented to me in writing, it is a canard. If any such application would have been presented, that should be on record'. We see no reason to disbelieve the Returning Officer. This contention, therefore, besides being otherwise untenable seems to us to be in the nature of an afterthought. We hold accordingly,
17. Yet another contention raised on behalf of the appellant which may next be considered is that based on Section 33(4) of the Act. The submission is that when the nomination of the appellant had been presented to the Returning Officer, the latter was satisfied that the name and the electoral roll number of the proposer as entered in the nomination paper were the same as entered in the electoral rolls, and, consequently, the failure of the Assistant Returning Officer who dealt with the nomination paper at that stage to raise any objection in that behalf amounts to non-compliance on his part with the requirements of that section and should be held to be sufficient to declare the election of the respondent void within the meaning of Section 100(d)(iv) of the Act.
It may be accepted that Section 33 (4) requires that when a nomination paper is presented to the Returning Officer, he shall attend to file names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper and. see. whether they are the same as entered: in the relevant electoral rolls, and where he comes to the conclusion that there is any clerical or technical error in regard to such names or numbers, power has been given to him to- have the same corrected in order to bring them into, conformity with the latter. The fact that this requirement was only followed perfunctorily in this case admits of no doubt. We have it from the Assistant Returning Officer Shri K. C. Jain who was examined, by the appellant himself in this case that when the nomination paper of the appellant together with a certain electoral roll was placed before him be found that the name and the electoral roll numbers as mentioned in the nomination paper and the electoral roll tallied, whereupon that electoral; roll was taken away.
The fact remains that the said officer did not check up the number and the name from the relevant electoral roll which was the Assembly roll, for, if he had done done so., he would have immediately found, that there was an error in the nomination paper. That, in our opinion, however, would not necessarily lead to the conclusion that the error could be got corrected by him for the simple reason that it raised a further and 3 ticklish question whether the error in this case was a merely technical or clerical error, or it was fundamental in which case even if the error should have been painted out to the proposer it would still be a question whether it could be corrected or not.
Apart from that, we are clearly of opinion that the failure of the Assistant Returning Officer to find, out the error cannot have the effect of vitiating the election within the meaning of Section 100(1)(d)(iv) of the Act. For one thing, that would be putting a premium on the negligence of the candidate himself. For another, we are disposed to think that it is not the non-compliance with any and every provision of the Constitution or of this Act or any rules or orders made under this Act which must necessarily be permitted to have the effect, contended for. The simple reason to our mind is that there are provisions and provisions. Some provisions are of a mandatory nature and others directory. To hold that non-complianced with the provisions of the Constitution or of the Act or of any rules or orders made under this Act irrespective of this distinction should necessarily vitiate an election would, in our opinion, lead to startling results, and we cannot possibly approve that as intended by the Legislature.
18. Having regard to the setting in which, this1 provision occurs, we have no hesitation in saying that Section 33(4) is of a directory nature. Suppose, there is an error of a technical or clerical nature, which has not been detected by the Returning Officer at the time of the presentation of the nomination paper and consequently it has not been, corrected. There is a further stage namely the stage of scrutiny of the nomination paper where the error may happen to be detected. But the failure to detect or correct the error at the earlier stage need not stand in the way of the same being-ignored at the scrutiny stage provided of course the error is of an unsubstantial character. Suppose again, the error is of a radical nature and the Returning Officer who had not at that time the benefit of other opinions on the matter ignored the error although it should not have been.
It seems to us that such a matter could again be raised at the stage of scrutiny by the rival candidates or their agents or representatives as the case may be and such a matter may undoubtedly fall to be considered and decided in an appropriate manner at that stage. This view receives high support from the decision of their Lordships of the Supreme Court in Rangilal v. Dahu Sao AIR 1962 SC 1248. We have, therefore, no hesitation in coming to the conclusion that the provisions contained in Section 33(4) are of a directory nature and any non-compliance with them should not and cannot in law have the effect of vitiating the election. Consequently, we repel this objection also.
19. This brings us to the last but not the least question whether the defect as to the number in the nomination form from a wrong electoral roll from which the same was given is a merely technical or clerical defect or it is one of a substantial character.
20. Now, while we are on this aspect of the case, let us be clear about the meaning of the word 'electoral, roll' as contemplated by law. Section 130 (1) of the Representation of the People Act 1950 lays down as follows: --
'The electoral roll for every parliamentary constituency other than a parliamentary constituency in a Union territory shall consist of the electoral rolls of so much of the assembly constituencies as are comprised within that parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any sucb parliamentary constituency.'
Therefore, the relevant roll with reference to which the number of the proposer should have been stated is that of the assembly constituency for Jhunhunu wherein the proposer resided and for which the condidate was standing.
21. Section 33(1) of the Act then clearly provides that a nomination paper shall be completed in the prescribed form. The form as prescribed by Rule 4 of the Rules says that every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the forms 2A to 2E as may be appropriate. The form relevant for our purpose is Form 2A. Clause (i) of this form deals with the full name of the proposer and Clause (2) with his electoral roll number. The foot note to this form in connection with the electoral roll number is instructive which reads as follows:
'Here insert-
(i) the name of the parliamentary constituency;
(ii) the name of the component assembly or electoral colleges constituency in the electoral rolls of which the name of the proposer has been entered;
(iii) the serial number of the part of the electoral roll in which such entry occurs; and
(iv) the serial number of the entry in that part.
Illustration-
'Lucknow Parliamentary constituency;
Lucknow City East Assembly constituency;
Part 7
No 358.
Following this pattern, the electoral roll number of the proposer should have been stated as follows: --
Jhunjhunu Parliamentary constituency;
Nawalgarh Assembly constituency;
Part 57:
No. 96.'
The name against the number 96 is
'Abdul Gani son of Baxa( Male, Age 40years''.
Instead the entries to be found against columns Nos. 1 and 2 of the nomination form Ex. 1 are these:
'Abdul Gani
105 Ward No. 13,
Nawalgarh.'
Even if we were to ignore that the names of the parliamentary and assembly constituencies are not mentioned in the nomination form and that the defects may not be treated as being of substantial nature, the question is whether the mention of the erroneous roll number as 105 in Ward No. 13 substantially fulfils the requirements of law prescribed by Section 33(1). We find ourselves altogether unable to answer this question in favour of the appellant.
22. The object underlying the provision contained in Section 33(1) of the Act read with Rule 3 and the form prescribed thereunder, clearly is that the Returning Officer should be in a position to readily know from the particulars given in the nomination form that the candidate and his proposer are entitled according to law respectively to stand and to propose at the election; and the law, inter alia, is that so far as the proposer is concerned, he must be a registered voter on the electoral roll relative to the election which is the electoral roll prepared for the assembly constituency for that area, while the candidate may be a registered voter in any parliamentary constituency (in the State or outside it) and may not necessarily be a registered voter in the constituency where he chooses to set up his candidature,
There is also another object, and that is that the other candidates and the voters in that area precisely know who are their rival candidates and their proposers at the election to be held in and for their constituency. To achieve these objects, it is absolutely necessary in our opinion that the candidate and his proposer should give their correct names and their numbers on the relevant electoral rolls, and this clearly brings out the importance of the requirement laid down in Section 33(1) as well as the force of the consequential provision made in Section 36.
23. Now Section 36 of the Act in so far as it is material for bur purposes reads as follows:--
'36. (1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but 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 all candidates which have been delivered within the time and in the manner laid down in Section 33.
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 objection 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) .......
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(c) ........
(3) .......
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the- 'scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control;
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 tirae 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:
(6) 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.
(7) For the purpose 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 provided that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950.
(8) Immediately after all the nomination papers have been scrutinized 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 to his notice board.'
This section imposes an obligation on the Returning Officer to examine the nomination papers in the light of any objections that may be raised before him, or on his own initiative and to reject a nomination paper on certain grounds which are specified in Clauses (a), (b) and (c) of Sub-section (2) thereof, and one of these grounds is the failure to comply with the provisions of Section 33. The Supreme Court case of Brijendralal v. Jwala Prasad, 22 Ele. LR 366 : (AIR 1960 SC 1040) is an authority for the proposition that a case like the present where a breach of Section 33 is established falls squarely under Section 36(2)(b) and no enquiry under Section 36(2)(a) is called for or can be made and the only question which survives in such, a case is whether the defect arising is of a substantial character or not, for, if the defect in the nomination paper is not of a substantial nature, then it shall not be invalidated for such a defect, which shall be ignored under Section 36(4). It is, therefore, to this question that; we proceed to address ourselves.
24. Now we have it from the Returning Officer Shri Rajagopal R. W. 2 that the electoral roll of the Nawalgarh Assembly Constituency consists, of 90 parts, and in each part, the serial number of voter starts with No. 1. We are prepared to accept that where, an electoral roll is not divided into parts, the number of the part may not be given, and that the omission to mention the particular part would not be a defect of a substantial nature. But where the electoral roll is divided into a number of parts, and each patt, consists of hundreds of persons; as in the case, before us, and where each part begins with, the serial number of the voters therein, contained as No. 1 we cannot but hold that the number of the part is a matter of substance, because if the number of the part is not given, the Returning Officer would be put to the almost impossible, task of wading through all the 90 parts, or as many more as may be in a given case, to hunt out where the name of the proposer (or a candidate as the case may be) happens to be enrolled.
We have no doubt that the Legislature does not expect such a performance from him. Again, even if we were to hold the failure of the proposer to mention, the part of the electoral roll as a non-substantial defect in the present case, inasmuch as he had mentioned his electoral roll number with reference to a ward and therefore that indicated that in all probability he was a resident of the municipal town of Nawalgarh itself, then all that the Returning Officer was required to do was to see whether his name appeared in that ward at No. 105 in the relevant electoral roll. It is admitted before us that the relevant electoral roll with respect to the town of Nawalgarh consists of 19 parts (See parts 43 to 61), or let us say, wards.
The Returning Officer's evidence is, and he is undoubtedly correct when he says so, that in this electoral roll in ward No. 13 at No. 105 as given in the nomination paper, the name that appears is that of Atma Ram son of Ramgopal, Male, Age 26 and not that of Abdul Gani the appellant's proposer. There is evidence on the record to show that there are a number of entries, appearing in the same name, that is, of Abdul Gani in these 19 parts and that has not been questioned before us. It may also be noticed here that the nomination paper which is prescribed does not require the parentage of the proposer to be mentioned and consequently it was not mentioned therein. That being so, it should have been almost a gamble if not an impossibility, to trace out who the proposer of the appellant was in the relevant roll, which as we have already stated contain several entries in the name of Abdul Gani in the relevant electoral roll relating to the town of Nawalgarh.
We should, also, like to mention here that the Returning Officer was not required in law to look up the name of the appellant in the municipal electoral rolls which had, no relevance whatever to the purpose in hand. ' It , may incidentally be mentioned that it was admitted before us that even the municipal electoral roll Ex. 4 contained a number of entries in the name of Abdul Gani as voters in the different wards thereof. The position, there, fore, boils down to this that the electoral roll number of the proposer having been given from an entirely different and irrelevant electoral roll, his name could not possibly be found at the given number in the given ward of the relevant electoral roll and this was certainly a defect in the filling up of the nomination form. We are further disposed 1 to hold that the error with which we have to deal in this case is of a radical or fundamental character and cannot be ignored or condoned as merely clerical.
25. In support of his argument, learned counsel for the appellant relied on Ram Singh v. Hazari Lal, 6 Ele. LR 224 : (Ele. Tri Jaipur), Gurnaba Singh v. Partap Singh, 7 Ele. LR 338 (Ele. Tri Ludhiana), Jaswant Singh v. Mangal Das, 9 Ele. LR 385 (Ele, Tri Delhi), Rasamma Punnose v. K. Bala-krishnan Nair, 14 Ele. LR 210: (AIR 1958 Keralal 154) and Smt. Om Prabha Jain v. Gian Chand Puranchand, AIR 1960 Punj 526.
26. In the case of 6 Ele. LR 224 (Ele. Tri Jaipur) referred to above, it was held that where the electoral roll is Sub-divided into parts and separate serial numbers are assigned to the electors, entered in each part, the requirement that a description of the part in which the name of the person concerned is entered must also be given in items Nos. 8, 10 and 14 of the nomination form, is not a mandatory but a directory provision and that if the identity of the candidate in question is not in doubt, the mere omission to state the part of the electoral roll jn which the candidate's name is entered would not invalidate the nomination paper, and further that even if there is any doubt about the identity, if it can be cleared by the Returning Officer by holding a summary inquiry, under Section 36, he should do so. This is a decision of an election tribunal which was presided over by Mr. Justice K. K. Sharma, then a Judge of this High-Court.
The authority of this case seems to us to be considerably shaken by a subsequent decision of this High Court in Brij Sunder Sharma v. Election Tribunal, Jaipur 12 Ele, LR 216 : ((S) AIR 1957 Raj 189) to which Mr. Justice Sharma was himself a party. As the facts of this case are nearest to the case before us, we should like to state them briefly. In this case, the electoral roll of a Constituency prepared in 1951. was superseded by another electoral roll which was prepared in 1952. In a nomination paper filed in 1953, the serial number of the candidate as it appeared in the electoral roll of 1951 was given, and a certified copy of this electoral roll was also annexed to the nomination paper. A certified copy of the roll of 1952 was further produced at the time of the scrutiny of the nominations. The Returning Officer refused to allow the serial number to be corrected at the time of scrutiny and rejected the nomination paper on the ground that it did not comply with Section 33(1) of the Act.
As the result of an election petition by the candidate whose nomination paper was rejected the dispute came before an election tribunal. The majority of the members held that there was a substantial defect in the nomination as originally filed, but as a certified copy of the electoral roll of 1952 was produced at the time of scrutiny and the candidate's name appeared in the roll and there was no dispute as to the identity of the candidate, the nomination was improperly rejected. The Chairman who was in the minority held that there was a substantial non-compliance with the provisions of Section 33 of the Act and that this defect was not cured by the production of a certified copy of the roll of 1952 at the time of scrutiny and therefore the nomination was properly rejected.
The High Court in a writ application under Articles 226 and 227 held reversing the judgment of the majority that the giving of the serial number of the candidate as from the superseded roll and not giving the number in the roll which was in force at the time of the nomination was equivalent to: giving no number at all and amounted to a substantial non-compliance with the provisions of Section 33. It further held that the mistake was not merely a clerical or printing error and therefore could not be rectified at the time of scrutiny. It was also held that the opinion of the majority of the Tribunal that the defect in the nomination, lost its substantial character on the production of the roll of 1952 as there was no dispute about the identity of the candidate and the Returning Officer could, have easily seen from the copy of the roll of 1952 that the candidate was entered in that roll, was erroneous.
It was contended before us that since this decision was given, there has been a change in the statutory law inasmuch as the word 'technical' which occurred before the word 'defect' in Subsection (4) of Section 36 was removed by Act No. 27 of 1956. In our opinion, this submission is without any force for the simple reason that a defect which, was technical would certainly be not of a substantial character, and, therefore, the use of the word ''technical' before 'defect' was merely redundant. By the omission of the word 'technical', the subsection has been made more word-perfect, but we do not think that its substance has been changed in any manner, and, therefore, this argument is of no avail.
27. In the next place it was contended that the authority of certain observations made in the above noted case has been shaken by certain decisions of the Supreme Court, and our attention was invited' in this connection to Kamail Singh v. Election Tribunal, Hissar, 10 Ele. LR 189 (SC) and AIR 1962 SC 1248 (supra) . We have carefully read this judgment more than once and with all respect it appears to us that if this judgment is construed as any authority for the sweeping proposition that in no case is it possible for the Returning Officer, to take evidence to establish the identity of the proposer or the candidate as the case may be and that in every case of error the Returning Officer, must be confined to the four corners of the nomination paper before him, then to that extent it must be admitted that there, are decisions of the Superme Court which lay down that to establish the identity of the proposer or the candidate, evidence may be led at the time of the scrutiny where the error is technical and not of a substantial character. This seems to us with all respect, the true effect of the decisions of their Lordships of the Supreme Court in 10 Ele LR 189 (SC) and, AIR 1962 SC 1248 (Supra).
28. But even so, it seems to, us that where the defect is not merely of a technical character but. is of a substantial nature, there is no scope for any further inquiry and the consequence mentioned in Section 36(2)(b) follows remorselessly and the nomination paper had got to be rejected. See 22 Ele LR; 366: (AIR 1960 SC 1049) (Supra). In this case, the candidate omitted to mention his age in the nomination paper. The nomination paper was consequently rejected by the Returning Officer. It was contended that in the electoral roll the age of the candidate was specified, and, therefore; the. Returning Officer could have satisfied himself easily as to that by looking at the electoral roll. It was held by their Lordships that if the nomination paper of a candidate does not comply with the provisions of Section 33 and the defect is not of a substantial character, the Returning Officer shall not reject the nomination paper on the ground of, that defect. But if on the other hand, the defect is of a substantial character, the Returning Officer has to reject the nomination paper on the ground of the said defect, and that this was the inevitable effect of the provisions of Section 36(2)(b) and (4) read together. It was further held that in such, a case no inquiry was necessary or could be demanded.
29. Having regard to the decision of the Supreme Court to which we have referred, the authority of the decision of this Court in 12 Ele-LR 216: ((S) AIR 1957 Raj 189) (Supra) cannot be considered to have been shaken where the defectappears to be not merely of a clerical or a technical nature but amounts to a substantial one. The principle of that decision appears to be fully binding on us under the circumstances, and we see no valid reason to depart from it, and in this view of the matter, we consider it unnecessary to deal with other cases except AIR 1960 Punj 526 (Supra) relied on by learned counsel for the appellant. In this case, the candidate omitted to mention his electoral roll number from the relevant electoral roll because his name was not included therein on the date of the nomination but was added to it before the date of the scrutiny.
An objection was raised to the appellant's nomination on the ground that when she had filed the nomination paper, she was not an elector as her name was not on the electoral roll. The Returning Ofiicer however overruled this objection. The appellant was in due course elected and this led to an election petition by a rival candidate. The Election Tribunal set aside the election. On appeal to the High Court, that decision was reversed and it was held that under the circumstances the failure of the candidate to mention her electoral roll number was not a substantial defect invalidating the nomination paper. It seems to us that this was a very peculiar case, for, as the learned Judges pointed out, the candidate could not have mentioned her electoral roll number at the time of the filing of the nomination paper. But from this decision it. would be going too far to hold that:
where the failure to mention such number altogether or to mention it correctly arises not from any inherent possibility to do such a thing but from sheer gross negligence or a similar other cause. It would not amount to a substantial defect entailing the consequence of rejection under Section 36(2)(b).
30. The proper question which thus falls for consideration in a case of this kind is whether the defect disclosed in the nomination paper is one of a merely technical or a clerical nature or is a more radical or a fundamental one and is one of a substantial character. If the defect is of the former type, it is capable of being remedied and other evidence may be given and identity of the candidate or the proposer as the case may be could be established by a summary inquiry with the result that the nomination need not and should not be reacted. But if, on the other hand, the defect is of a Substantial character, then no other inquiry on the views taken by their Lordships of the Supreme Court in Brijendra Lal Gupta's case is possible and the nomination paper has to be rejected under Section 36(2)(b) of the Act.
31. Applying then the law as it emerges from the discussion made above, let us see how it works out in the present case. On the question whether the defect in the nomination paper before us is of a substantial character or nots our conclusion is that it is anything but unsubstantial. It must, therefore, follow that such a defect could neither be corrected at the stage of the presentation of the nomination paper nor it could be ignored at the subsequent stage of the scrutiny thereof Section 36(2)(b) of the Act is at once attracted into application and most lead to the rejection of the nomination paper. There is no scope for any further inquiry as to the identity of the candidate or the proposer in such a case.
In this view of the matter, the contention of learned counsel for the appellant that if he had known the correct time for the scrutiny of the nomination paper by the Returning Officer, which was to be held on the 22nd January, 1962, he would have led evidence to prove his identity assuming that it is correct, although our finding in agreement with the Tribunal is that it is not, completely falls to the ground. So also the evidence of some of his witnesses that the proposer had been traced out by some of them to the Returning Officer for such an endeavour could not and need not have been made. But if we were to give our finding on the factual aspect of this part of the case, we should like to observe that we are not able to see any strength in this plea because there is no mention whatever of any such attempt having been made much less proved fruitful in the election petition itself. This part of the appellant's case, therefore, clearly seems to us to be the result of an afterthought and does not deserve to be believed though, as we have already pointed out above, on the law as we understand it to be applicable to the instant case, the appellant could not ask for any opportunity to establish his proposer's identity at the stage of the scrutiny of the nomination paper, and, therefore, if he did not have any, we are unable to see that any prejudice has been caused to him thereby.
32. For the reasons mentioned above, this appeal fails and is hereby dismissed with costs. We assess the counsel's fee at Rs. 300/-.