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PETITIONER: K.S. ABDUL AZEEZ

       Vs.

RESPONDENT: RAMANATHAN CHETTIAR & ORS.

DATE OF JUDGMENT: 28/02/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1967 AIR   85            1966 SCR  (3) 672

ACT: The Representation of the People Act (43 of 1951), s.  36(4) and  Conduct  of  Election  Rules,  1961,  r.  4-Filling  up nomination  paper with one reserved symbol and  leaving  the rest blank-If a defect of "substantial character:’

HEADNOTE: The  nomination  Form prescribed for election to  the  State Assembly  had  a blank space, where a candidate  could  show three symbols in order of preference as his symbol.  One  of the  candidates for -election showed only one  symbol  which was reserved for a political party, and left blank the  rest of the space.  The Returning Officer rejected the nomination paper  holding  that  the  defects  was  of  a   substantial character.   Alleging  that the rejection was  improper  two voters filed an election petition challenging the lection of the appellant who was successful at the ensuing election the tribunal dismissed the petition but, on appeal, the High set aside  the  election or the ground that  the  rejection  was improper. In appeal to this Court, HELD  :  Under s. 36(4) of the Act,  the  returning  officer shall not reject the nomination paper when the defect is not of  a  substantial character. The mention  of  the  reserved symbol,in  the first space and leaving blank the rest  of the space is covered bythe phrase, "failure to  complete, or defect in completing, the declarationas to symbols," in the    provisio   to  r.  4 of the  Conduct  of  Election Rules,and  was  therefore not defect  of  a  substantial character. [674 E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 435 of 1965 Appeal  from the judgment and order dated March 4,  1963  of the  Madras  High Court in Appeal against Order No.  300  of 1962. R.   Ganapathy lyer, for the appellant.

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R.   Mahalingier, for respondents Nos.  I and 2. The Judgment of the Court was delivered by Hidayatullah,  J.  At  the  last  General  Election  to  the Assembly  in  the Madras State five candidates  filed  their nomination  papers  for the  Nilakottai  constituency.   The appellant  K.  S.  Abdul Azeez was one of them  and  at  the ensuing election he was successfull having polled 4,000  and odd  votes  in excess of those of his nearest  rival.   Four other  candidates  had  filed  nomination  papers  and  they included  respondents  3 to 5 in this appeal.   One  of  the candidate,,  withdrew  and the nomination paper of  the  5th respondent 673 (Peyathevar) was rejected at the scrutiny.  He had shown  in his nomination paper only one symbol in the spaces  provided for  three symbols and that was the star which  is  reserved for  the  Swatantra  Party.   He  was  not  the   accredited candidate  of the Swantantra Party and as he had  not  shown any other symbol,the nomination paper was held to contain  a defect of substance. After the election was over two voters (who are  respondents I  and 2 in this appeal) filed an election petition  against the  appellant and one of the grounds urged against him  was that as the rejection of the nomination paper of  Peyathevar was  improper, under s. 100 (1)(c) of the Representation  of the  People  Act the election was void.   Other  grounds  on which  the  election  was challenged  need  not  concern  us because  nothing  turns  upon  them  in  this  appeal.   The Election Tribunal held that the nomination paper was rightly rejected  and dismissed the election in petition  negativing the other allegations to the election at the same time.   On appeal  by the two voters the decision of the  Tribunal  was reversed  and  it  was held that the  nomination  paper  was improperly  rejected and the election of the appellant  was, therefore, void.  On hearing Mr. Ganapathy lyer and  looking into the relevant provision on the subject of symbols we are satisfied that the decision of the High Court was right. The  matter has to be considered in relation to the  Conduct of Election Rules, 1961.  Sub-rule (1) of Rule 5 enables the Election  Commission  to  specify the symbols  that  may  be chosen  by candidates at elections and the  restrictions  to which  their  choice shall be subject.  By  virtue  of  this power  the Election Commission issued a notification No.  So 2316 dated 19th September, 1961 which showed in a table  the symbols for the Madras Legislative Assembly elections.  Some of  these  symbols were reserved  for  recognised  political parties and the name of the party was mentioned in  brackets against  the  reserved  symbol.   Symbols  which  were   not reserved  were "free symbols" and an independent  candidate, such as the appellant, could choose one of them.  If two  or more independent candidates chose the same free symbols lots were to be drawn.  These rules were in the notification  and detailed  reference to them is hardly necessary because  the matter is perfectly plain. The question is whether by choosing a symbol reserved for  a political  party  and by leaving blank the  space  where  he could  have  shown  two other  symbols  as  his  alternative choice,  Peyathevar’s nomination paper became  so  defective that it was rightly rejected.  In this connection we have to see  the provision of s. 36(4) of the Representation of  the People Act, 1951.  Sub-section(4) provides: "The returning officer shall not reject any nomination paper on  the ground of any defect which is not of  a  substantial character," 674

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This sub-section must be read with Rule 4 of the Conduct  of Election Rules.  It provides as follows:- "Every  nomination paper presented under subsection  (1)  of section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate." The  form  appropriate to this election had  a  blank  space where  a  candidate  could show three symbols  in  order  of preference as symbols of his choice.  Peyathevar showed only the  star  in the first space and left blank the  other  two places.   The  nomination paper, therefore, did  not  comply with  s.  33  read with Rule 4. The  nomination  paper  was, however, saved by the proviso to Rule 4 which reads: "Provided   that  a  failure  to  complete,  or  defect   in completing,  the declaration as to symbols in  a  nomination paper in Form 2A or Form 2B shall not be deemed to be defect of  a  substantial  character within  the  meaning  of  sub- section(4) of section 36." The  Tribunal  held that mentioning a  reserved  symbol  and leaving  blank  the space for alternative symbols,  did  not come within this proviso and was a defect of substance.  The High Court held otherwise and, in our opinion, rightly.   In so  far as the blank space is concerned it showed a  failure to complete the declaration as to symbols and where the star was  shown  as  the  symbol  it  amounted  to  a  defect  in completing  the declaration as to symbol in  the  nomination paper.   In other words, taking the proviso as a  whole  the mention of the star and leaving blank rest of the space  was covered  by  the composite phrase "failure  to  complete  or defect in completing the declaration as to symbols." Mr. Ganapathy Iyer contends that a defect in completing  the symbol  is  something like putting down "two  bullocks"  but omitting the words "with yoke on" or mentioning the "ears of corn"  without  mentioning "the sickle"  in  describing  the reserved symbols for the Congress and the Communist  Parties respectively.  We do not agree.  If an independent candidate named  "star,"  "bicycle" and "flower"  as  his  preferences there would be no defect in the nomination paper except one, namely,  that he included the "star-" a  reserved  symbol-to which he was not entitled.  The phrase "defect in completing the declaration as to symbols" would obviously cover such  a case  and there is no difference between that case and  this where  the star is shown in the first space and the rest  of the space is left blank.  The intention seems to be that the question  of  symbols  should not  play  an  important  part because  symbols can be assigned by political  parties  till the  date for withdrawal and nomination paper should not  be cancelled during the interval. 675 On the whole the decision of the High Court was right in the circumstances  of this case and we see no reason to  reverse it.   The appeal, therefore, fails and is dismissed  but  as none  appeared to contest it there shall be no order  as  to costs. Appeal dismissed.. 676