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PETITIONER: PRAHLADDAS KHANDELWAL

       Vs.

RESPONDENT: NARENDRA KUMAR SALVE

DATE OF JUDGMENT11/09/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. BEG, M. HAMEEDULLAH MUKHERJEA, B.K.

CITATION:  1973 AIR  178            1973 SCR  (2) 157  1973 SCC  (3) 104  CITATOR INFO :  R          1975 SC1274  (2)

ACT: The  Representation of the People Act (43 of 1951),  ss.  33 and 36-Election to  Lok Sabha-Parliamentary Constituency not mentioned in,nomination  Form--Form    in     Hindi-Apparent confusion, but meaning clear-Defect     in  filling  pointed out,  but  not rectified-Rejection  of  nomination  paper-If correct.

HEADNOTE: The appellant filed his nomination paper for election to the Lok Sabha but did not mention the Parliamentary Constituency from  which he was contesting.  The nomination form  was  in Hindi.  Even though the Assistant Returning Officer drew his attention  to the omission, the appellant did not  cure  the JUDGMENT: that the defect was of a substantial character and  rejected the nomination paper.  In the appellant’s election petition, the High Court held that the Returning Officer was justified in rejecting the nomination paper. Dismissing, the appeal to this Court, HELD : (1) Form on which the nomination of the appellant was made was the one which had been statutorily prescribed.   It was  not  misleading or defective and in the  present  case, there   was  an  omission  to  mention  the  name   of   the Parliamentary Constituency for which the appellant was being nominated as a candidate. [162F-G] Under  the  conduct of Elections Rules, 1961, Form  means  a form  means  a  form appended to the Rules  end  includes  a translation  thereof  in any of the languages used  for  the official purposes of the State.  According to s. 5(1) of the Official   Languages  Act,  1963  a  translation  in   Hindi published  under  the  authority of  the  President  in  the Official Gazette shag be deemed to be the authoritative text in  Hindi.  The spaces to be filled in the Hindi form  might cause  confusion to a person unfamiliar with  the  language, but one familiar with the language will understand that  the space provided in the Form is for filling in the name of the Parliamentary  Constituency.   In  the  present  case,   the proposer had not been misled by the Form, and the appellant,

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who actually filled it of before getting     it signed to by the proposer, was informed of the defect in  filling.,[160C- E; 161E-F,H] (2)  This defect was essentially of a substantial  character and did not fall within those provisions where the Returning Officer  is enjoined either to get the defect  rectified  or ignore it.  It was not the duty of the Returning Officer  at the  stage of  scrutiny  to  draw  the  attention  of  the appellant  to  this substantial defect for  the  purpose  of getting  it cured, and ,he was fully justified in  rejecting the nomination paper. [164 F-H] Under s. 36(2) (b) of the Representation of the People  Act, 1951,  the Returning Officer may reject a nomination on  the ground ’that there has been a failure to comply with any  of the  provisions  of s. 33 or s. 34. Section  33(1)  provides that a nomination has to be presented after being  completed in the prescribed form and signed by the candidate and by an elector  of the Constituency as proposer.  This  requirement is  mandatory and s., 36(4) clearly contemplates that  where the  defect  is of a substantial  character,  the  Returning Officer  is  not enjoined to have it rectified  but  has  to reject the nomination paper. [163A-B, D , F-G], 158 Rattan  Anmol-Singh  & Another v. Atma Ram &  Others  [1951] S.C.R. 481 and Ram Dayal v. Brijram Singh & Others, [1970] 1 S.C.R. 530, followed. Kashi  Prasad v. Harigen Ram & Another.   Election  Petition No. 44 ,of 1967 decided on January 19, 1968, referred to. [Desirability of amendment of the Hindi version of the  form pointed out.]

& CIVIL APPELLATE JURISDICTION : C.A. No. 2904 of 1971. Appeal  under S. 116-A of the Representation of  the  People ,Act, 1951 dated October 4, 1971 of the Madhya Pradesh  High ,Court at Jabalpur in E.P. No. 3 of 1971. S.   S.  Khanduja,  Pramod Swarup and Lalita Kohli  for  the ,appellant. N.   A. Palkhiwala, A. S. Bobde and J. B. Dadachanji for the respondent. The Judgment of the Court was delivered by GROVER,  J. This is an appeal from a judgment of the  Madhya Pradesh  High  Court in an election petition  filed  by  the appellant  Prahladdas Khandelwal one of the  candidates  for the  Mid-term  election  to the Lok  Sabha  from  the  Betul Parliamentary  Constituency  No. 26 in the State  of  Madhya Pradesh challenging the election of the respondent  Narendra Kumar Salave-the returned candidate. Some of the material dates may be noticed.  The notification calling  for  the election was issued on January  27,  1971. The  last date for filing the nomination paper was  February 3, 1971; the scrutiny was to take place on February 4, 1971. The  election Was to be actually held on March 4,  1971  and the election result was to be declared on March It. 1971. The  appellant  filed his nomination paper  on  February  2, 1971.   An acknowledgement of the receipt of the  nomination paper  was  given by the Assistant Returning  Officer.   The Assistant Returning Officer gave a certificate under Art. 84 of   the   Constitution  that  the   appellant   had been administered  the oath as required under that  Article.   In this   certificate  there  was  a  mention  of  26th   Betul Parliamentary  Constituency.  According to the  evidence  of the Assistant Returning Officer Shri S. K. Sharma R.W. 2, in

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the nomination paper which the appellant filed there was  no mention of the Parliamentary Constituency from which he  was contesting the election.  This defect was pointed out to him by the Assistant                             159 Returning Officer but it appears that the appellant did  not cure  that defect.  On February 4, 1971 which was  the  date fixed for scrutiny the nomination paper of the appellant was rejected  by the Returning Officer Shri Komal Singh  Thakur, Collector  of  Betul on the objection of  one  Goverdhandas. The  ground  given for rejection was that the  name  of  the Constituency   for  which  the  appellant  had   filed   the nomination  paper was not mentioned therein.  The  Returning Officer  held  that  owing to this defect  which  was  of  a substantial character the nomination paper was invalid. The  sole  ground  in the election  petition  filed  by  the appellant was that his nomination paper had been erroneously and wrongly rejected by the Returning Officer.  In paragraph 6  it  was  stated that a blank  nomination  form  had  been purchased  by him from the Election Office, Betul.  All  the details  mentioned  in  the form were  properly  filled  in. There was no separate space left in the form to mention  the name  of the Constituency.  It was asserted that  there  was difference  between  the  nomination form in  Hindi  and  in English  and  even  if  the name  of  the  Constituency  was necessary  to be mentioned the Assistant  Returning  Officer should have got it filled up under proviso to s. 3 3 (4)  of the Representation of People Act 1951.  In other paragraphs, of the petition it was pleaded that the certificate relating to  the oath clearly contained a mention of the  26th  Betul Parliamentary  Constituency  and, therefore,  the  Returning Officer  was in a position to know from  which  Constituency the  appellant was contesting the election.  It was  claimed that  the alleged defect was not of a substantial  character and the nomination paper could not have been rejected by the Returning Officer. The  respondent  resisted  the,  election  petition  on  the ground,  inter  alia,  that  there  was  no  defect  in  the nomination form supplied to the appellant.  The omission  to mention  the  name  of  the Constituency  was  a  defect  of substantial  character.  It was denied that it was the  duty of  the Assistant Returning Officer to get  the  substantial defect  in  the nomination form rectified.  The  sole  issue which arose for decision was whether the nomination paper of the  appellant  had been wrongly rejected.  The  High  Court gave the following findings, : (1)  The  nomination  paper  in Hindi  (Ext.   P-2)  is  the authoritative text of the form prescribed under the Act  and the rules made thereunder; (2)  Neither the name nor the number of the Constituency was mentioned in the nomination paper, (Ext.  P-2). (3)  The  omission to mention the name of the  Constituency was a defect of a substantial character. 16 0 (4)The  Returning Officer was not enjoined under the law  to go  beyond  the nomination paper and to find out  for  which Constituency a particular candidate had been nominated. (5)  The statutory requirements of the Election Law have  to be  strictly  applied.   As  the  nomination  paper  of  the appellant  was found to be defective the defect being  of  a substantial character the Returning Officer was justified in rejecting it.  Apart from that the appellant did not get the defect  rectified even though the same had been pointed  out to,him by the Assistant Returning Officer. The first question that has to be determined is whether  the

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nomination  form  which  was  supplied  was  misleading  or- defective and for that reason it was not possible to fill in the  name of the Parliamentary Constituency from  which  the appellant was contesting the election. Selection 2(1)(g)  of the  Conduct of Elections Rules, 1961 gives the, meaning  of the word "Form".  It means a Form appended to the rules  and in respect of any election in a state includes a translation thereof  in any of the languages used for official  purposes of  the State.  Rule 4 provides that every nomination  paper presented  under sub-s. (1) of s. 3 3 shall be completed  in such one of the Forms 2A to 2E as may be appropriate.   Form 2A relates to the nomination paper to be filed for  election to the House of the People.  According to s. 5 ( 1 ) of  the Official Language Act 1963 a translation in Hindi  published under the authority of the President in the Official Gazette on  or  after the appointed day, inter alia, of  any  order, rule regulation or bye-law issued under the Constitution  or under   any   Central  Act  shall  be  deemed  to   be   the authoritative text thereof in Hindi. Form 2A as prescribed by the Conduct of Elections Rules 1961 in English is as follows :                          " FORM 2A I nominate as a candidate for election to   the House of the People from the................. Parliamentary Constituency. Candidates’ name........................................... His postal address......................................... His name is entered at S. No..........in Part No............ of the electoral roll for............(assembly  Constituency comprised within)...Parliamentary Constituency. My  name is..........................................and  it is entered at S. No.in Part No.....of the)   electoral rolls for..(Assembly constituency comprised within)Parliamentary constituency..............Date.....(Signature of Proposer) 1 the abovementioned....................." 161 The nomination form in Hindi used in the Mid-term  Elections 1971 begins with the word "Main" (1).  Then there is a blank space which is followed by these words If the form were to be read in the same way as if it were in the  English language an impression is likely to be  created that after the word ".I" the proposer has to fill in his own name as was actually done in the present case in Ext.   P-2. But any one familiar with the Hindi language would not  read it  that way and the blank space in the context, it will  be understood,  is  meant  for  filling  in  the  name  of  the Parliamentary Constituency.  If that is not done the name of the Constituency for which the candidate is-being  nominated cannot  find any mention in the material part of  the  form. It could never be contemplated that the official translators who  are  presumed  to be fully conversant  with  the  Hindi language  would have translated the English form in such  a way   as  to  leave  out  the  name  of  the   Parliamentary Constituency  altogether  for which the candidate  is  being proposed.  It may be mentioned that to an ordinary person  a wrong impression may be conveyed that after the word "I"  he has to give his own name but even if he gives his own  name lie can indicate the name of the Parliamentary  Constituency thereafter  which  would  make the form  complete  in  every respect.   It appears that the Election Commission of  India addressed  a letter, Ext.  R-4, to the  Secretary,  Official Language  Legislative  Commission  saying  that  the   Hindi translation  of  Form 2A appeared to be  defective  in  some respects  and  it was suggested that in paragraph 1  of  the Form  as  shown in Ext.  R-5 after the word  "Main"  (1)  in Hindi  the  name of the Parliamentary Constituency  must  be

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mentioncd.  Indeed it had been pointed out in a judgment  of the Allahabad High  Court in Kashi Prasad v. Harigen Ram and Another(1)  that  the  Hindi Form  might  have  caused  some confusion  ,is  there also a similar defect appeared  as  in Ext.  P-2 here and the name of the Constituency had not been mentioned.   The  Court  held that since  the  name  of  the Constituency   was  not  mentioned  the  defect  was  of   a substantial  nature  and the Returning Officer  should  have rejected the nomination paper.  But as stated before it  was pointedly  mentioned that the Hindi form might  have  caused some confusion and the proposer would have been well advised in  consulting some competent person before filling  it  in. Unfortunately  it  appears  and that  is  supported  by  the evidence of Shri 1. Election Petition No. 44 of 1967 decided en January,  19, 1968. 12-L348Sup.C.I./73 162 Komal Singh Returning Officer that the amendment proposed by the  Election  Commission of India was not  given  elect  to although  certain other amendments in the Form were made  in accordance will the procedure prescribed by tile Act and the Rules.  The appellant has not been able to show any error in tile  conclusion of the High Court that the Form  Ext.   P-2 was not the prescribed Form under the Act and the Rules  and the  same had been sent for the purpose of the  election  in question by the Chief Electoral Officer, Madhaya PradesH, to the Returning Officer Shri Kornai Singh. In the Election Petition the sole grievance of the appellant was that there was no separate space in the nomination  form where  the name or the Constituency could be  mentioned.  it was  not suggested that the Proposer, whose name was  Ajudha prasad  or the appellant, had been missed in any way by  the language of the Hindi Form.  The appellant who gave evidence as  P.  W.  1  deposed that he  had  himself  filed  up  the nomination form Ext.  P-2 and got it signed by his proposer. There   was  no  place  for  mentioning  the  name  of   the Constituency and therefore it was not mentioned.  The appel- lant is not only a law graduate but has also worked as Civil Judge, for some years and resumed practice in January  1968. Shri  S. K. Sharma the Assistant Returning Officer  to  whom the nomination paper was handed over gave evidence, as  P.W. 2.  He stated that lie had told the appellant that the  name of  the  Constituency should be mentioned  but  tile  latter replied that there was no such space for writing the name of the  Constituency  in  the nomination  paper.   Shri  Sharma further stated, "I again told him that after the word "Main" (1)  in  the nomination paper the name of  the  Constituency should  be mentioned and you would realise the same  if  you would minutely read the form.  Thereupon the petitioner said "I  know my own job".  The learned trial judge has  believed this  evidence and nothing has been shown why it should  not have  been so believed.  We concur with the High Court  that the  form on which the nomination of the appellant was  made (Ext.    P-2)  was  the  one  which  had  been   statutorily prescribed and that there was a complete omission to mention the  name  of the Parliamentary Constituency for  which  the appellant  was being nominated as a candidate.   Furthermore the  Assistant Returning Officer had drawn the attention  of the  appellant to this omission and yet the defect was:  not cured.   This was done notwithstanding the fact, as will  be presently  seen, that where the defect is of  a  substantial character  and is not of the nature contemplated by the  Act and the Rules it is not the duty of the Returning Officer to get this defect rectified or omission completed.

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The  next question is whether the omission to  mention  the name  of the 26th Betul Parliamentary Constituency  in  Ext. P-2 163 was  a defect of a substantial character by reason of  which the  nomination  paper  must be rejected  by  the  Returning Officer.   Section  33 deals with the  presentation  of  the nomination  paper and requirements for a  valid  nomination. It  has  to  be  presented  after  being  completed  in  the prescribed  form  and  signed by the  candidate  and  by  an elector  of the Constituency as proposer.  Sub-section 4  of that section is to the following effect :               "On   the presentation of a nomination  paper,               the  returning Officer shall satisfy that  the               names  and  electoral  roll  numbers  of   the               candidate  and his proposer as entered in  the               nomination paper are the same as those entered               in. the electoral rolls". Section  36 deals with scrutiny of nominations.  Sub-s.  (2) thereof  provides that the Returning Officer  shall  examine the nomination papers and decide all objections which may be made to any nomination and may, either on such objection  or on  his  own  motion after a  summary  inquiry,  reject  the nomination paper on the ground given in clauses (a), (b) and (c).  Clause (b) is "that there has been a failure to comply with  any  of the provisions of section 33 or  section  34." Sub-section  (4)  furnishes  the  key  to  the  point  under consideration.  According to it the Returning Officer  shall not reject any nomination paper on the ground of any  defect which  is  not of a substantial character.  The  proviso  to rule 4 may also be noticed.  It says that a failure to  com- plete 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 a defect of a substantial character within  the meaning of sub-s. (4) of s. 36. It is thus clear that  in the statute and the rules those defectshave been  indicated for  which the nomination paper cannot be rejected  and  the Returning  Officer  has to permit the  correction  of  those defects; [vide proviso to s. 33(4) of the Act and Rule 4  of the  Rules].  But s. 36(4) clearly contemplates  that  where the  defect  is  of a substantial  character  the  Returning Officer  is not enjoined to have it rectified and he has  to reject  that nomination paper The matter is not rev  integra and  is settled by a series of decisions of this Court.   We need refer only to two of such decisions, viz., Rattan Anmol Singh  &  another v. Atma Ram & Others(1) and Ram  Dayal  v. Brijram  Singh & Others(1).  Tn. the first case it was  laid down  in  categorical  terms that s.  36  is  mandatory  and enjoins the Returning- Officer to refuse any nomination when there  has  been  any  failure to comply  with  any  of  the provisions  of s. 33.  The only jurisdiction  the  Returning Officer  has  at the scrutiny stage is to  see  whether  the nominations are in order and to hear and decide  objections. He cannot at (1) [1955]  1 S.C.R. 481.               (2) [1970] 1  S.C.R. 530. 164 that  stage  remedy essential defects or permit them  to  be remedied.   It  is not open to him to  reject  a  nomination paper on the ground of a technical defect which is not of  a substantial  character.  But he cannot remedy  that  defect. He  must  leave it as it is.  If it :Ls technical  and  non- substantial  it  will not matter.  In the  second  case  the following observations at page 533 are noteworthy               "The  requirement  under s. 33(1) of  the  Act

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             that  the nomination shall be signed  by  the               candidate  and by the proposer  is  mandatory.               Signing, whenever signature is necessary, must               be in strict accordance with the  requirements               of  the Act and where the signature cannot  be               written  it must be authorised in  the  manner               prescribed by the Rules.  Attestation is not a               mere  technical or  unsubstantial  requirement               within the meaning of S. 36(4) of the Act  and               cannot be dispensed with.  The attestation and               the  satisfaction must exist at the  stage  of               presentation and omission of such an essential               feature  may not be subsequently validated  at               the  stage  of  scrutiny  any  more  than  the               omission  of a candidate to sign at all  could               have been". In this case the earlier decision in Rattan Anmol Singh’s(1) case was followed. There  can  be no manner of doubt that in the  present  case there has been a failure to comply with the provisions of s. 33  inasmuch as the name of the Constituency was not  stated in  the  nomination  paper which, therefore,  could  not  be treated  as having been completed in the prescribed form  as required  by  S. 33(1) of the Representation of  the  People Act.  This defect was essentially of a substantial character and did not fall within those provisions where the Returning Officer  is enjoined either to get the defect  rectified  or ignore it.  It was not the duty of the Returning Officer  at the  stage  of the scrutiny to draw the  attention  of  the, appellant  to  the  aforesaid  substantial  defect  for  the purpose  of getting the same cured.  The  Returning  Officer was fully justified in rejecting the nomination paper. The  appeal  fails and it is dismissed.  Parties  will  bear their own costs. (1)[1955] 1 S.C.R. 481.                             165 A copy each of this judgment should be sent to the  Election Commission,  India, as also the Secretary, Ministry  of  Law for drawing their attention to the observations with  regard to the nomination paper 2A (in Hindi version) prescribed for nomination  of a candidate for election to the House of  the People and the desirability of accepting the suggestion made by  the Election Commission in its letter dated  August  24, 1968,  to  the Secretary, Official  Languages  (Legislative) Commission,  New Delhi, being Exhibit R-7 in the above  case or adding explanatory notes in the prescribed form in  Hindi language. V.P.S.                                                Appeal dismissed. 166