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PETITIONER: HARI VISHNU KAMATH

       Vs.

RESPONDENT: GOPAL SWARUP PATHAK

DATE OF JUDGMENT: 18/12/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1970 AIR  819            1970 SCR  (3) 334  1970 SCC  (1) 143

ACT: Presidential  and  Vice-Presidential Elections  Rules,  1962 framed  under  s. 21 of Presidential  and  Vice-Presidential Elections  Act  (31 of 1952)Rule 4(1)  requiring  nomination papers  to be presented personally by candidate or  proposer or  seconder-Nomination paper sent by post whether  properly presented-Whether "received" within the meaning of r.  4(2)- Returning  Officer whether can reject such nomination  paper before  date  of  scrutiny-Rule 4(1)  whether  mandatory  or directory.

HEADNOTE: At  the  election for the office of Vice-President  held  in 1969 the nomination paper of one ’S’ was sent by post.   The Returning Officer rejected it forthwith  on the ground  that it did not comply with the requirements of   r. 4(1) of  the Presidential  and Vice-Presidential Rules, 1952 inasmuch  as it  had not been presented by the candidate or his  proposer or seconder. in     person.   The said nomination paper  was not put up for scrutiny under r.   6. The respondent won the election.   The  petitioner  who  was  one  of  the   losing candidates filed an. election petition under Art. 71 of  the Constitution  and  s.  14  of  the  Presidential  and  Vice- Presidential  Elections  Act.  1952  and  prayed  that   the election  of the respondent be declared void under s. 18  of the  Act.  The questions that fell for consideration were  : (i) whether the nomination of S had been wrongly rejected on the  ground  given; (ii) whether the Returning  Officer  had power to reject the nomination before the date of  scrutiny; (iii) whether r. 4(l) was directory or mandatory. HELD:(i)   Rule  4(1)  provides  only  one  method   of presentation i.e. delivery either in person by the candidate or  by  his proposer or seconder.  Further it  mentions  the time within which the nomination paper can be delivered i.e. between the hours of eleven in the forenoon and three in the afternoon.   Therefore,  if  the  nomination  paper  is  not presented  in  person  either by the  candidate  or  by  the proposer  or  seconder  it cannot be  deemed  to  have  been

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presented at all.  There is good reason for making this rule because  otherwise not only the authenticity of  the  person sending  the nomination paper but also the time of  delivery of  the nomination paper would be in doubt.  Since the  rule provides only one method of presentation that method must be followed.   The provisions of rr. 4(2), 5 and 6 support  the above conclusion. The nomination paper of ’S’ could be rejected on the  ground that it had not been presented in person and received before 3 O’clock in the afternoon on the last date appointed  under cl.  (a)  of sub-Jr. (1) of r. 4. Such  a  nomination  paper could  not  be treated to have been  ’received’  within  the meaning of sub-r. (2) or r. 4 and the Returning Officer  was entitled to reject it. [340 F-341 C, HI (ii)There was no force in the submission that the Returning Officer  should have waited till the date of  the  scrutiny. As  soon  as the Returning Officer finds that  a  nomination paper  has  not  been duly presented and  received  he  must reject  it  outright at the time it is handed over  to  him. [341 H-342 Al 335 (iii)Rule  4(l) is mandatory.  To hold otherwise  would lead  to utter confusion and delay in the completion of  the election.   The  Returning Officer would not  know  who  and where to inform about the date of scrutiny, he would not  be certain  whether  it  is genuine, and  would  have  to  take evidence as to whether it is a genuine nomination paper or a forged paper. [342 B]

JUDGMENT: ORIGINAL JURISDICTION : Election Petition No. 6 of 1969. Petition  under Art. 71 of the Constitution of India and  S. 14  of the Presidential and Vice-Presidential  Election  Act (Act XXXI of 1952). Sarjoo  Prasad,  P. Paramegwara Rao and K. C. Dua,  for  the petitioner. M.C.  Setalvad,  N. A. Palkhivala, M. C.  Chagla,  J.  B. Dadachanji,  Ravinder  Narain  and 0.  C.  Mathur,  for  the respondent. Jagdish  Swarup, Solicitor-General, L. M. Singhvi and S.  P. Nayar, -for the Election Commission and Union of India. The Judgment of the Court was delivered by Sikri,  J.  This  is  a  petition  under  Art.  71  of   the Constitution  and  S.  14  of the  Presidential  ,  &  Vice- Presidential   Elections  Act  (XXXI  of   1952)-hereinafter referred  to as the Act-praying for a declaration  that  the election  of  Shri Gopal Swarup Pathak, respondent,  to  the office of the Vice-President of India is void. The main ground on which this declaration is sought is, that the  nomination  paper of Dr. Ram Sharan Dass  Sakhuja  was. wrongly rejected by the Returning Officer on August 6, 1969. The respondent apart from meeting thus ground has raised  a, number  of  other  issues including the  issue  whether  the nomination paper of Dr. Ram Sharan Dass Sakhuja was genuine, and  if  not,  whether the petition  is  maintainable.   The learned  counsel for the respondent strongly pressed  on  us that we should first try this issue suggested by him but  as we  have come to the conclusion that the petition must  fail on  the ground that the nomination paper of Dr.  Ram  Sharan Dass Sakliuja was rightly rejected on August 6, 1969, it  is not necessary to consider the other issues that arise out of the pleadings of the parties. The two issues suggested by the petitioner which we propose-

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to discuss are 1.   Whether the nomination of Dr. Ram Sharan Dass, Sakchuja has been wrongly rejected on the ground that the  nomination paper was not delivered in person; 336 2.   Whether  the Returning Officer had power to reject  the nomination even before the date of scrutiny. The  relevant facts for determining these issues may now  be set  out.   On 19th or 20th July, 1969, the  office  of  the Vice  President of India fell vacant on the  resignation  of the   then  incumbent,  Shri  V.  V.  Giri.   The   Election Commission  appointed Shri B. N. Banerjee, Secretary,  Rajya Sabha,  as Returning Officer for the election of  the  Vice- President  of  India.   The  Election  Commission  issued  a notification  under s. 4 appointing August 9, 1969,  as  the last date for filing nomination for election to the  ,office of  the  Vice-President Of India and August  11,  1969,  for scrutiny of nomination papers.  A number of candidates filed nomination  papers  and on August 11,  1969,  the  Returning Officer made a record of proceedings.  The relevant part  of the pro-ceedings reads as follows "I  held  the scrutiny of nomination papers  for  the  Vice- Presidential  Election today, the 11th August, 1969, at I  I A.M.  in  my office (Room No. 29) in Parliament  House,  New Delhi, 24 nomination papers were delivered to me within  the time  and  in  the  manner  laid  down  in  rule  4  of  the Presidential  and  Vice-Presidential Election  Rules,  1952. These nomination papers related to :- 1.   Shri S. Nagappa (One nomination paper) 2.   Shri G. S. Pathak (Seventeen nomination papers) 3.   Shri    Sivashanniugam    (Two    nomination    papers) (Jagannathan Pillai) 4.   Smt.  Manohara Nirmala (One nomination paper) Holkar 5.   Shri B. P. Mahaseth (One nomination paper) 6.   Shri  Hari  Vishnu  Kamath           (.Two   nomination papers) 3.I  gave  the  candidates and  the  others  present  all -facilities for examining the nomination papers -of all  the candidates  delivered  to  me.  The  nomination  paper  were examined by them.  No objection was raised to any nomination papers   by   any  candidate  or  his   representative.    I scrutinised all the nomination papers and I found that  they satisfied  the requirements of a valid nomination paper.   I accordingly accepted all the nomination papers as valid  and made endorsements on all the 24 nomination papers  accepting them. 337 4.   I  also brought to the notice of those present  that  I had received some nomination papers, and some other  papers- purporting  to  be nomination papers, by post,  and  that  I could not treat them as valid nomination papers as they were not delivered to me in accordance with sub-rule (1) of  rule 4 of the Presidential and Vice-Presidential Election  Rules, 1952, and that they also did not comply with, the provisions of law in other respects. I  further mentioned to  those present that there werein  addition  three  other   papers which, though presented  to  me  in person, did  not  comply with   the  requirements  of  the  law  as  they  were   not accompanied  by  the certified extracts from  the  electoral roll  and suffered from other defects.  I had not given  any serial number to any of these papers and had rejected all of them." One of the nominations referred to in para 4 of the proceed- ings  was that of Dr. Ram Sharan Dass Shakuja.   It  appears that.  the nomination papers of Dr. Shakuja, alleged  to  be

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complete  in  every respect, were not  delivered  in  person either  by  Dr. Shakuja. or by the proposer or  seconder  in person to the Returning Officer but were received by him  by post  on  August 6, 1969.  On that very  day  the  Returning Officer  did not treat the papers as valid as they were  not delivered  to him in accordance with sub-r. (1) of r.  4  of the  Presidential  and  Vice-Presidential  Elections  Rules, 1952. In  order  to  discuss  the issues  mentioned  above  it  is necessary  to  set out the  relevant  statutory  provisions. Under   s.  4  of-  the  Act  the  Election  Commission   by notification  appoints for every election (a) the last  date for  making  nominations,  (b)  the  date  for  scrutiny  of nominations,  (c)  the  last  date  for  the  withdrawal  of candidatures,  and  (d) the date on which  poll  -shall,  if necessary, be taken.  Under s. 5 any person may be nominated as a candidate for election to the office of  Vice-President if  he is qualified to be elected to that office  under  the Constitution.  Subsection (2 ) of s. 5 prescribes that  each candidate shall be nominated by a nomination paper completed in  the  prescribed forms and subscribed  by  the  candidate himself  as assenting to the nomination and by two  electors as proposer and seconder. We  may assume for the purpose of this case that the  condi- tions laid down in s. 5(2) were complied with. Section 6 deals with the withdrawal of candidature and  pro- vides  that any candidate may withdraw his candidature by  a notice  in writing in the prescribed form subscribed by  him and  delivered before three o’clock in the afternoon on  the date fixed 338 under  clause  (c) of subsection (1) of section  4,  to  the Returning  Officer either by such candidate in person or  by his  proposer ,or seconder who has been authorised  in  this behalf in writing by such candidate. The learned counsel for the petitioner rightly conceded that if .a candidate wants to withdraw Ms candidature the  notice in  writing  must be delivered to the Returning  Officer  in person by such candidate or by his proposer or seconder  who has  been  authorised.   In other  words  no  candidate  can withdraw by sending a notice in writing by post. Section  18 gives the grounds for declaring the election  of a .returned candidate to be void.  One of the grounds is "If  the Supreme Court is of opinion that the nomination  of any candidate has been wrongly rejected or the nomination of the  successful candidate or of any other candidate who  has not withdrawn his candidature has been wrongly accepted, the Supreme  Court  shall declare the election of  the  returned candidate to be void."- Section  21 gives powers to the Central Government  to  make rules and the two matters, among others, on which rules  can be made are: "(d)  the form and manner in which nominations may  be  made and  the  procedure  to,  be  followed  in  respect  of  the presentation of nomination papers; (e)the  scrutiny  of nominations and, in  particular,  the manner  in which such scrutiny shall be, conducted  and  the conditions  and circumstances under which any person may  be present or may enter objections there at." In  pursuance  of these, powers rules were framed.   Rule  4 deals  with the presentation of nomination papers and is  in the following terms "4. (1) On or before the date appointed under clause (,a) of sub-section  (1) of section 4, each candidate shall,  either in person or by his proposer or seconder, between the  hours

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of  eleven  in  the forenoon and  three  in  the  afternoon, deliver  to the Returning Officer at the place specified  in this  behalf  in  the  public  notice  a  nomination   paper completed in Form 2 in the case of a Presidential  election, and in Form 3 in the case ,of a Vice-Presidential  election, together with a certified copy of the entry relating to  the candidate  in  the  electoral  roll  for  the  Parliamentary constituency in which he is registered. 339 (2)Any  nomination paper which is not received before  three o’clock  in the afternoon on the last date  appointed  under clause  (a) of sub-section (1) of section 4 or to which  the certified  copy referred to in subrule (I) of this  rule  is not attached shall be rejected." Rule  5  prescribes the procedure on receipt  of  nomination papers as follows : "5.  On  the  presentation  of  a.  nomination  paper,   the Returning Officer shall- (a)  sign thereon a certificate stating the date and time of presentation  of the nomination paper and enter thereon  its serial number; (b)  inform the person or persons presenting the  nomination paper of the date, time, and place fixed for the scrutiny of nominations; and (c)  cause  to be affixed in some conspicuous place  in  his office  a  copy  of the nomination paper  as  certified  and numbered under clause (a) of this rule." Rule  6 provides for the scrutiny of nominations and  is  in the following terms : "6.  (1)  The candidates, one proposer and one  seconder  of each  candidate,  and one other person  duly  authorised  in writing by such. candidate, shall be entitled to be  present at  the time of scrutiny of nominations; and  the  Returning Officer  shall  give  them  all  reasonable  facilities  for examining  the  nomination papers, of all  candidates  which have been delievered within the time and in the manner  laid down in rule 4. (2)  The Returning Officer shall then examine the nomination papers and decide all objections which may be made to any of them. (3)The Returning Officer may, either on such objection or on his  own motion, and after such summary inquiry, if any,  as he  thinks  necessary, reject a nomination paper on  any  of the, following grounds, namely : (a)that  the  candidate is not eligible  for  election  as President  or Vice-President, as the case may be, under  the Constitution; or (b)that the proposer  or  seconder  is  not  qualified  to               subscribe a nomination paper under sub-section               (2) of section 5; or 340 (c)that  the  signature  of  the  candidate,  proposer  or seconder is not genuine or has been obtained by fraud; or (d)that the nomination paper has not been duly completed and the defect or irregularity is of a substantial character; or (e)that the proposer or seconder has subscribed, whether  as proposer  or  seconder, another  nomination  paper  received earlier by the Returning Officer at the same election. (4)The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of sub-section (1) of  section  4 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 made, the  candidate

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concerned shall, if he so requires, 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 on which the proceedings have  been adjourned. (5)The  Returning Officer shall endorse on  each  nomination paper  his decision either accepting or rejecting it and  if the nomination paper is rejected, he shall record in writing a brief statement of his reasons for rejecting it." The  question  whether a candidate is entitled to  send  his nomination  papers by post to the Returning Officer may  now be  considered.  It will be noticed that r. 4 provides  only one manner of presentation, i.e., delivery either in -person by the candidate or by his proposer or seconder.  Further it mentions  the time within which it can be  delivered,  i.e., between the hours of eleven in the forenoon and three in the afternoon.   It seems to us that if the nomination paper  is not  presented in person either by the candidate or  by  the proposer  or the seconder. it cannot be deemed to have  been presented at all.  There seems to be good reason for  making this rule because otherwise not only the authenticity of the person  sending  the nomination paper will be in  doubt  but also the time of the delivery of the nomination paper  would be in doubt. Be  that  as  it may, if the rule  provides  one  method  of presentation  that method of presentation must be  followed. That this                             341 is  the only method of presentation of nomination papers  is home  out  by subsequent provisions.  Sub-rule (2) of  r.  4 provides  that  any nomination paper which is  not  received before 3 o’clock in the afternoon on the last date appointed under cl. (a) of sub-s. (1)   of  s.  4 shall  be  rejected. This shows that even if a nomination    paper  is  presented personally but after 3 o’clock in the afternoon   it has  to be  rejected.   The  rule proceeds on  the  basis  that  the presentation must have been either ’in person or by the pro- poser or the seconder.  If a nomination paper is received by post it would be difficult to say that it has been presented and  received  before 3 o’clock on the last  date  appointed under cl. (a) of sub-s. ( 1 ) of s. 4. Rule-5 also proceeds on the basis that the presentation of a nomination  paper must be in person because it requires  the Returning Officer to sign thereon a certificate stating  the date  and time of presentation of the nomination  paper  and inform the person or persons presenting the nomination paper of  the  date,  time and place fixed  for  the  scrutiny  of nominations.   It is clear that r. 5 contemplates  only  one method  of  presentation.  This is again evident from  r.  6 which  directs the Returning Officer inter alia to give  the candidates  and other authorised persons present  reasonable facilities  for  examining  the  nomination  papers  of  all candidate s which have been delivered within the time and in the manner laid down in r. 4. In other words, the nomination papers which have not been delivered within time and in the, manner  laid down in r. 4 have not to be shown for  purposes of scrutiny. The learned counsel for the petitioner contends that  sub-r. (2)  of  r. 4 gives two grounds of rejection, one  that  the nomination  paper  is not received before 3 o’clock  in  the afternoon of the last date appointed under cl. (a) of sub-s. (1) of s. 4, and the second that the certified copy referred to (in sub-r. (1) of r. 4 is not attached.  He further  says that  r.  6 gives five more grounds of rejection.   He  says that  the  ground on which the nomination paper of  Dr.  Ram

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Sharan  Dass  Shakuja has been rejected is  not  covered  by either  sub.-r.  (2)  of r. 4 or r. 6  and  accordingly  the nomination  paper of Dr. Ram Sharan Dass Shakuja  could  not have been validly rejected. It seems to us that this nomination paper could be  rejected on  the ground that it has not been presented in person  and received before 3 o’clock in the afternoon on the last date, appointed  under  cl. (a) of sub-r. ( 1 ) of r.  4.  Such  a nomination paper could not be treated to have been  received within the meaning of sub-r. (2)   of r. 4 and the Returning Officer was entitled to reject it. There is no force in the second submission that  at any rate the  Returning Officer should have waited till the  date  of the scrutiny L7Sup.(CI)170-7 342 because as soon as he finds that a nomination paper has  not been duly presented and received he must reject it  outright at the time it is handed over to him. The  learned counsel contends that even if there has been  a breach of r. 4(l), the rule is not mandatory and the  breach of  it should not be deemed fatal.  We are unable  to  agree with  this  submission.  As we have  mentioned  before,  the rules  contemplate  only one method of presentation  and  if that method is not followed the nomination papers cannot  be held to be validly presented and must be rejected  outright. To hold otherwise would lead to utter confusion and delay in the completion of the election.  The Returning Officer would not know who and where to inform about the date of scrutiny; he  would  not be certain whether it is genuine,  and  would have  to  take  evidence  as to  whether  it  is  a  genuine nomination paper or a forged paper. In  the  result  the petition fails and  is  dismissed  with costs.  The petitioner will pay to the respondent Rs. 500 as total amount of costs. G.C.                          Petition dismissed. 343