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PETITIONER: HIRA SINGH PAL

       Vs.

RESPONDENT: MADAN LAL

DATE OF JUDGMENT: 15/01/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. HIDAYATULLAH, M.

CITATION:  1968 AIR 1179            1968 SCR  (2) 778

ACT: Representation  of  the People Act, 1951, ss.  36  and  100- Clerical  mistake  in nomination  papers-Duty  of  Returning Officer-Nomination papers must not be lightly rejected  even in the case of dummy candidate -Election to he set aside  if papers of such a candidate wrongly rejected.

HEADNOTE: The  respondent filed two nomination papers for election  to the  Legislative  Assembly from a constituency  in  Himachal Pradesh  in the 1967 general election.  Both his  nomination papers were rejected at the scrutiny.  The first  nomination paper  was rejected on the ground that the  proposer’&  name was wrongly mentioned as being at serial No. 380 of Part  13 of  the  Electoral Roll of the constituency whereas  it  was actually  at  serial No. 380 of Part 23 of  the  Roll.   The second nomination paper was rejected on the ground that  the respondent  was  shown as the elector at Serial No.  504  of Part  2 of 9-Arki Assembly constituency but really his  name was found at serial No. 504 of Part 12 of that constituency. At  the  election subsequently held the  appellant  was  the winning   candidate.   The  respondent  filed  an   election petition challenging the appellant’s election on the  ground that  his  (the  respondent’s) nomination  papers  had  been wrongly  rejected.   The  High Court  allowed  the  petition whereupon,  by  special leave, the appellant  came  to  this Court.  It was urged on behalf of the appellant, inter alia, that  the respondent was only a dummy candidate who was  not even  present at the time of the scrutiny and had filed  the petition  only because the candidate representing his  party had been defeated. HELD  :  The  respondent’s nomination  papers  were  wrongly rejected  in  a  manner impermissible under  s.  36  of  the Representation  of the People Act and the election  must  be set aside under s. 100 of the Act. [785 A] it may be that while scrutinising the first nomination paper the Returning Officer had no material before him to find out whether the proposer of the candidate was really an  elector in  the  constituency or not but in  the  second  nomination paper the proposer’s name as well as place in the  electoral roll  was correctly mentioned.  It was improper on the  part of  the  Returning  Officer  to  have  rejected  the  second

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nomination  paper merely on the ground that the part of  the electoral  roll in which the respondent’& name was  recorded was  wrongly  mentioned because the correct  number  of  the electoral roll was mentioned in the first nomination  paper. All  the  required  information ’was  before  the  Returning Officer  and  the mistake was only clerical.   Obviously  he rejected  the  nomination  paper for  the  reason  that  the respondent  was a dummy candidate but that was not a  matter for him to decide. (784 D-H]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1112  of 1967. Appeal  under s. 116-A of the Representation of  People  Act 1951 from the judgment and order dated July 14, 1967 of  the Delhi  High  Court,  Himachal  Bench  at  Simla  in   C.O.P. (Election) Petition No. 3 of 1967. 779 H.   R. Gokhale, S. K. Khanna, S. K. Mehta and K. L.  Mehta, for the appellant. R. K. Garg, Naunit Lal and B. P. Singh, for the respondent. The Judgment of the Court was delivered by Hegde,  J. This appeal is directed against the order of  the High  Court  of  Delhi  and  Himachal  Pradesh  in  Election Petition  No.  3  of 1967.  That  petition  related  to  the election to the Himachal Pradesh Legislative Assembly during the   last   General   Election,   from   9-Arki    Assembly Constituency. The only ground taken in the petition was whether the  nomi- nation  of  the  respondent was  improperly  rejected.   The respondent  had  filed his nomination for  the  election  in question  on January 20, 1967.  He had filed two  nomination papers.   The scrutiny took place on January 21,  1967.   At the  time of the scrutiny, the respondent was  not  present; his  nomination  papers  were  rejected  by  the   Returning Officer.   The election took place in February,  1967.   The two  contesting candidates were the appellant and  Hari  Das the  Congress nominee.  The appellant succeeded by a  margin of about 8000 votes.  After the results of the election were announced,  the respondent filed an election  petition  with which we are now concerned. The only ground taken in the election petition as  mentioned earlier  was  that  his nomination  papers  were  improperly rejected.   in  rejecting  the  nomination  papers  of   the respondent, the Returning Officer observed as follows :               "Shri Madan Lal, resident of Village Parchech,               P.O.  Ghanahatti  District  Mahasu  filed  two               nomination  papers before me on 20th  January,               1967 which bear serial Nos. 5 and 6. According               to  the entry in the nomination  paper  serial               No.  5 Shri Anant Ram proposer has been  shown               to  be entered at serial No. 383 of 13 of  the               electoral    rolls   for    9-Arki    Assembly               Constituency.   From the comparison  with  the               final   copy  of  electoral  rolls  for   this               constituency, at serial No. 383 of part 13 the               name  of Shrimati Phullu wife of  Shri  Nirjal               Singh has been entered.  As such this entry in               this nomination paper is wrong.               As regards nomination paper bearing serial No.               6  the  candidate  has shown his  name  to  be               entered  at  serial No. 504 of part 2  of  the               Electoral    rolls   for    9-Arki    Assembly

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             Constituency.   From the comparison  with  the               aforesaid  entry  in  the final  copy  of  the               electoral rolls at the aforesaid serial No. of               the aforesaid part one Shrimati Darshnoo  wife               of Shri Ghanaya Ram has been               7 80               entered.   Hence this entry in the  nomination               paper bearing serial No. 6 is incorrect.               At the time of scrutiny neither Shri Madan Lal               nor his proposer or election agent nor any one               authorised  on his behalf was present so  that               he   could   be  given  an   opportunity   for               correcting  these  entries.   This   candidate               while presenting his nomination papers claimed               to  be the substitute candidate of the  Indian               National  Congress who have put up  Shri  Hari               Dass as their only candidate.               In  view  of the  aforesaid  circumstances  it               cannot  be ascertained whether Shri Madan  Lal               is an elector in any Assembly Constituency  of               Himachal  Pradesh  or that his  proposer  Shri               Anant Ram is an elector in the 9-Arki Assembly               Constituency.  Shri M. R. Gupta, Advocate  the               person authorised on behalf of Shri Hari  Dass               was informed to convey to Shri Madan Lal  that               he  can approach me, any time upto  3.00  p.m.               today  for  correcting  these  entries.   Shri               Madan Lal has not turned up as yet.  It is now               15 minutes past 3.00 p.m.               In these circumstances there is no alternative               but to reject both these nomination papers  as               the  candidate does not seem to be  interested               in correcting these entries and filing  proper               and valid nomination papers.  These orders are               passed  ex-parte since Shri Madan Lal has  not               cared to turn up.               Announced.               Sd/- R. C. Gupta, 21-1-1967.               Returning Officer,               9-Arki Assembly Constituency."               The  two nominations filed by  the  respondent               are marked as annexures A and B. They read  as               follows               ANNEXURE ’A’               Form 2-B               (See rule 4)                             Nomination paper.               Election to the Legislative Assembly of  Union               territory of Himachal Pradesh (State).               1.    Nomination as candidate for election  to               the  Legislative  Assembly  from  the   9-Arki               assembly constituency.               781               Candidate’s name                 Madan Lal               His  postal  address.  Village  Parhech   P.O.               Ghanahatti District, Mahasu.               His  name is entered at serial No. 504 of  the               Electo-  ral Roll for the 9-Arkiin part No. 12.  Assembly Constituency               My name is Anant Ramand it is in Part No. 13  entered at serial No. 380               Electoral Rollof the Assembly Constituency  for the 9-Arki               Date: 20-1-1967.

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             Sd./- Anant Ram Signature of Proposer-.               "Decision  of Returning Officer  accepting  or               rejecting the Nomination paper.               I  have  examined  this  nomination  paper  in               accordance    with   section   36    of    the               Representation  of the People Act,  1951,  and               decide as follows: Rejected.               Shri Anant Ram proposer is not entered at  SI.               No.  380 of Part No. 13 of the Electoral  Roll               of  9-Arki  Assembly  constituency.    Despite               opportunity this entry has not been corrected.               Sd./ R. C. Gupta 21-1-1967               Returning Officer               3-15 P.M., 9-Arki Assembly Constituency.  Date               21-1-1967.               1.    the above mentioned candidate assent  to               this nomination and hereby declare--               (a)that I have completed 49 years of age;               (b)that I am sponsored at this election  by               the lndian National Congress Party;               (c)that  the symbols I have chosen are,  in               order of preference               (i)   Two Bullocks with yoke on (ii) .... and               (iii)....    x x               * Score out this paragraph, if not applicable.               ** Score out the word not applicable.               (to be filled by the returning officer)               Serial No. of nomination paper             5.               This  nomination  was delivered to  me  at  my               office at 1.2  P.M. (hour) on               20/l/67 (date by the *candidate/               Sd. R.C. Gupta 20/l/67               Returning officer,               Dated  20/l/67.                             9-               Arki Assembly Constituency.               L3SSup.Cl/68-6               -782               ANNEXURE ’B’               Form 2-B               (See rule 4)               Nomination paper.               Election   to  the  Legislative  Assembly   of               Himachal Pradesh (State)               I nominate as a candidate for election to  the               legislative Assembly from the 9-Arki  assembly               constituency Candidate’s name Madan Lal               His postal addressVillage   Pathech    P.O.               Ghanahati District Mahasu               His name is entered at Serial No. 504, in part               No.  2 of the Electoral Roll for  the,  9-Arki               Assembly Constituency.               My  name  is Hari Nand and it  is  entered  at               serial No. 799 in Part No. 13 of the Electoral               roll for the 9-Arki Assembly Constitutency.               Date : 20-1-1967.               Sd./ Hari Nand Signature of proposer.               Decision  of  Returning Officer  accepting  or               rejecting the Nomination paper.               I  have  examined  this  nomination  paper  in               accordance    with   section   36    of    the               Representation  of the People Act,  1951,  and               decided as follows :-Rejected.               1.    The above-mentioned candidate, assent to               this nomination and hereby declare :-               (a)   that I have completed 49 years of age

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             (b)   that I am sponsored at this election  by               the Indian National Congress party;               (c)   that  the symbols I have chosen are,  in               order of preference.               (i) Two bullocks with yoke on (ii).......  and               (iii)               *Score out this paragraph, if not applicable.               **Score out the word not applicable.               (to be filled by the Returning               Officer)               Serial No. of nomination paper 6               This  nomination  was delivered to  me  at  my               office  at 1.20 P.M.(hour) on 20-1-67  (dated)               by the* candidate/               Sd. R.C. Gupta, Returning Officer,               9-Arki Assembly Constituency               Date :20-1-67               7 8 3               The  name of the candidate is not  entered  at               SI.   No. 504 of Part No. 2 of  Arki  Assembly               Constituency    Electoral    roll;     despite               opportunity  he; has not cared to correct  the               entry.               Sd. / R. C. Gupta Date : 21-1-1967.  Returning               Officer,  21-1-67  3-15 P.M.  9-Arki  Assembly               Constituency. In  the first nomination paper, the proposer was  one  Anant Ram.   It was mentioned in the nomination paper that  he  is the  elector  shown  at serial No. 380 of  Part  13  of  the Electoral  Roll  of Arki Assembly  Constituency.   This  was clearly  a mistake.  His name is really found at serial  No. 380  of  Part  23.   In  the  second  nomination  paper  the candidate is shown as the elector at serial No. 504 of  Part 2  of 9-Arki Assembly Constituency; but really his  name  is found  at serial No. 504 of Part 1 2 of  that  Constituency. Hence  the  question  is whether the grounds  on  which  the Returning  Officer  rejected the nomination  papers  of  the respondent were substantial grounds as contemplated by s. 36 of the Representation of the People Act, 1951.  ’ Before  we deal with that question, it is necessary  to  set out  few  more  facts.   According  to  the  appellant   the respondent  was  not  a genuine candidate; he  was  a  dummy Congress  candidate;  he  never  intended  to  contest   the election.    There  is  basis  for  this  contention.    The respondent was the General Secretary of the Mahasu  District Congress  Committee.   He  never applied  for  any  Congress ticket;  nor his name was considered either by the  District Congress Committee or by the Pradesh Congress Committee.  He did  not give the contribution required to be given  by  the candidates  to  the  party; nor did  he  give  the  security prescribed by the party.  The Congress had selected Mr. Hari Dass,  one  of the then Ministers in  the  Himachal  Pradesh Government for contesting the constituency in question.  His name had been recommended by the District Congress Committee as  well as by the Pradesh Congress Committee.  It had  been accepted  by  the  Parliamentary Board.   He  had  paid  the necessary   subscription.    He  had  also   deposited   the prescribed  security.  It is found from the evidence of  the appellant that both Mr. Hari Dass as well as the  respondent went  together  to the Returning Officer  for  filing  their nominations.   In  fact it is clear from the  order  of  the Returning  Officer that the appellant had told him  that  he was  only  a covering candidate for Mr. Hari Dass.   It  may also be noted that the respondent had declared that he was a Congress  nominee.   He  had also  asked  for  the  Congress

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symbols namely a pair of bullocks.  It may further he  noted that on the date of the scrutiny, the respondent was  absent and there was nobody to represent him.  The Advocate 7 84 who represented the Congress Organisation did not object  to the rejection of the nomination of the respondent presumably because  no  one  was interested in his  nomination  as  the nomination of Mr. Hari Dass had been accepted.  Possibly  he is   now  challenging  the  election  because  his   party’s candidate  has  been  defeated.  At this  juncture,  we  may notice that the respondent did not even apply for a copy  of the order of the Returning Officer rejecting his  nomination till the election results were announced.  He admitted  dur- ing his cross-examination that he had acted as the  counting agent  of Mr. Hari Dass.  It is proved from the evidence  of the appellant that he actively canvassed for Mr. Hari  Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a  genuine candidate.  He is merely availing himself of  the opportunity  of  the rejection of his nomination  paper  for undoing the result of the election. That,  however, is not the end of the matter.  All  that  we have  to  consider in this appeal is whether  the  Returning Officer  was  right  in  rejecting  the  nomination  of  the respondent.   As mentioned earlier, the errors found in  the nomination papers are purely clerical errors.  The Returning Officer  had  the duty to scrutinise the  nomination  papers when they were presented for finding out whether there  were any clerical mistakes in the same.  Under that provision  he was required to find out whether the names of the candidates as  well  as their proposers and  seconders  were  correctly mentioned in the nomination papers.  He was also required to see whether their place in the electoral roll was  correctly mentioned in the nomination papers.  Evidently the Returning Officer  failed in his duty.  Further, when  he  scrutinised the nomination papers on January 21, 1967, he had before him all  the  required  information.   It  may  be  that   while scrutinising  the first nomination paper (marked as  No.  5) lie  had  no  material before him to find  out  whether  the proposer  of  the  candidate was really an  elector  in  the constituency  or  not;  but  when  he  came  to  the  second nomination  paper where the proposer’s name as well  as  his place  in the electoral roll is correctly mentioned, it  was improper on his part to have rejected that nomination paper. It  is  true  that in that nomination  paper,  it  had  been mentioned  that the candidate’s name is found at serial  No. 504  of  part 2 of 9-Arki Assembly Constituency,  though  in fact  it  is  found at serial No. 504 in  part  12  of  that constituency;  but  from  the first  nomination  paper,  the Returning,  Officer could have easily found out the  correct part  of the electoral roll.  All the  required  information was before him.  Obviously he rejected the nomination papers for  the  reason  that  the  respondent  was  only  a  dummy candidate  but that was not a matter for him to decide.   If he  was  a  dummy candidate there was occasion  for  him  to withdraw  his  candidature after the scrutiny of  the  nomi- nation  papers.   Therefore  it  is  quite  clear  that  the respondent’s  785 nomination   papers  were  improperly  rejected.    Such   a rejection  was impermissible under s. 36 and the same  is  a ground  for setting aside the election under s. 100  of  the Representation of the People Act. For the reasons mentioned above, we dismiss this appeal  but in the circumstances of the case, we direct that the parties

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shall bear their own costs throughout. G.C.                                                  Appeal dismissed. 786