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PETITIONER: SHRI BHOGENDRA JHA

       Vs.

RESPONDENT: SHRI MANOJ KUMAR JHA

DATE OF JUDGMENT:       23/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR 2099            JT 1996 (5)   658  1996 SCALE  (4)542

ACT:

HEADNOTE:

JUDGMENT:                          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:

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    "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

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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

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    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

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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.