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PETITIONER: DHARAM SINGH RATHI

       Vs.

RESPONDENT: HARI SINGH M.L.A. & ORS.

DATE OF JUDGMENT02/05/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. FAZALALI, SYED MURTAZA

CITATION:  1975 AIR 1274            1975 SCR  696  1975 SCC  (2) 240

ACT: Representation  of the People Act, 1951--S. 33(1)--Rr.  2(2) and  (4) of the Rules--Failure to supply postal  address  in the   nomination   paper--Effect   of--Failure   of   proper authentication of thumb mark--Effect of.

HEADNOTE: The  appellant challenged the election of the respondent  to the State.  Assembly on the ground that he nomination papers of  two  persons were improperly rejected  by  the  Retiring Officer.   The  High Court held that the  nomination  papers suffered   from   defects  of  non   compliance   with   the requirements of s. 33(1) of the Representation of People Act and so were rightly rejected. Dismissing the appeal to this Court, HELD : (i) The High Court was right in its finding that  the nomination  paper of one of the persons was  not  improperly rejected  by the Returning Officer.  From a reading of s.  4 of  the Rules and Form 28 it would be clear that  non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address  is a  failure to comply with the provisions of s. 33(1) of  the Act. [471-G] (2)(a)  Nomination  paper of the second  person  had  been rightly rejected by the Returning Officer.  The defect  that the  name of the constituency of the proposer was not  given in the nomination form was of a substantial character. [472-B] (b)There  was clear violation of r. 2(2) of the Rules.   A thumb mark has to be placed by the proper on the  nomination paper  in  the presence of the Returning  Officer  and  such officer,  on  being  satisfied as to his  identity,  has  to attest the mark as being the mark of that person.  This  has not been done in this case. [472-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 84 of 1973 From  the judgment and order dated the 8th day of  December, 1972  of the Punjab and Haryana High Court at Chandigarh  in Election Petition No. 13 of 1972

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B.   R. L. Iyangar and R. L. Kohli, for the appellant. J.   P. Goyal and R. A. Gupta, for respondent No. 1. The Judgment of the Court was delivered by UNTWALIA,  J.-This  is an appeal under section 116A  of  the Representation of the People Act 1951-hereinafter called the Act,  by the election petitioner whose petition  challenging the   election   of  respondent  no.  1   (for   brevity-the respondent)   has   been  dismissed  by  the   High   Court. Eventually  the  only ground which could be pressed  in  the High  Court to challenge the election of the respondent  was that the nomination papers of two persons namely Shri  Jagan Nath  and  Shri Prabha Ram were improperly rejected  by  the Returning  Officer.  The High Court framed only  two  issues for trial and decided 470 them against the appellant.  It has held that the nomination papers-both  of  Jagan  Nath and Prabha  Ram  suffered  from defects  of substantial character and, therefore, they  were rightly rejected by the Retuning Officer. Jagan  Nath  filed two nomination papers in  the  prescribed Form  No. 28 prescribed under rule 4 of the Conduct  of  the Election  Rules 1961-hereinafter referred to as  the  Rules. In  both the papers in the column "His postal  address"  the only  thing  written  was-"Smalkha  Mandi".   The  Returning Officer rejected both the nomination papers of Jagan Nath on the ground that the candidate had not given the name of  his under  and his full address.  The name given as  Jagan  Nath and  address  as  Smalkha Mandi were  not  sufficient.   The Returning  Officer described if as a technical error fit  to be rectified but because there was nobody present on  behalf of  the  candidate  at  the time  of  the  scrutiny  of  the nomination  papers  the  rectification could  not  be  made. Hence   the  nominations  were  rejected.    Following   the decisions of this Court in Brijendralal Gupta and another v. Jwalaprasad  and others(1) and in Prahladdas  Khandelwal  v. Narendra  Kumar  Salve(2) the High Court has held  that  the nomination  papers suffered from a defect of  non-compliance with  the requirement of section 33(1) of the Act  and  that the defect was of a substantial character.  On consideration of the evidence adduced before it, it held :               "Thus in the established circumstances of  the               case,  it  was manifest that  the  mention  of               Smalkha  Mandi only, in the nomination  papers               was no more than an apology of an address.  It               was,  according to Mr. Joginder  Pal  Narang’s               testimony in this Court hopelessly incomplete.                             To my mind also it was equal to not gi ving  any               address at all." We concur in the view of the High Court that filling up  the column of postal address of the candidate in the  nomination paper is necessary.  The High Court has referred to  several provisions in the Act and.the Rules to point out the purpose of  supplying the postal address.  It appears that the  name of  the  post  office  concerning  Smalkha  Mandi,   Smalkha village, Model Town etc. was Smalkha.  The name of the  post office  was not Smalkha Mandi.  On the face of  the  address given  in  the  nomination papers there was  the  defect  of incorrect mention of the name of the post office.  The  name of  the  District was also not given.  It has  come  in  the evidence of the respondent that there were other places,  of the  names  of Smalkha and Smalkha Mandi in  the  States  of Haryana and Rajasthan.  Even ignoring the defects  aforesaid the High Court has noticed on consideration of the  evidence and specially of Jagan Nath himself that the postal  address

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given  in either of his nomination forms was so very  incom- plete that no letter addressed to him to that address  could possibly be delivered to him.  There were several persons of the  name of Jagan Nath in Smalkha Mandi,  Smalkha  village. Jagan Nath was (1)  [1960] 3 S.C.R.650. (2)  [1973] 2 S.C.R.157.  471 serving  at the shop of a Sweet meat Seller,  Railway  Road, Smalkha Mandi and was resident of Bharbbujanwali Gali.   The interesting pan of this case is that Jagan Nath did not file an  election  petition.  It was filed by the brother  of  an unsuccessful   candidate.    Eventually   Jagan   Nath   was impleaded  as  a respondent in the  election  petition.   He filed  a written statement and examined himself as  R.W.  5. His  definite  case  was that until  and  unless  some  more details  were given in his postal address no letter on  that skeleton description as given in the nomination papers could be  delivered to him by the postal authorities.  Taking  the totality  of  the circumstances the High Court  has  rightly held that no postal address in effect was given on either of the nomination papers of Jagan Nath. A  nomination  paper has to be delivered  to  the  Returning Officer by the candidate or his proposer in accordance  with section  33(1)  of the Act.  The nomination  paper  must  be completed  in the prescribed form.  The requirement of  sub- section  (4)  is that the Returning  Officer  shall  satisfy himself  on the presentation of a nomination paper that  the names and electoral roll numbers of the candidate and hi,-,’ proposer as entered in the nomination paper are the same  as those  entered in the electoral rolls.  In certain types  of defects  detected  at the time of the  presentation  of  the nomination paper the proviso to sub-section (4) empowers the Returning  Officer to overlook such mistakes or to get  them rectified as the case may be.  Generally speaking the  kinds of  defects  mentioned  in  the  proviso  would  be  of’   a substantial  character so as to justify the rejection  of  a nomination.  paper.  There may, however, even amongst  these types  of  defects  be some  such  that  necessitates  their rectification  and  if  not  rectified  that  may  make  the nomination  paper liable to be rejected.  But the defect  of non-supply  of postal address is not covered by the  proviso to sub-section (4) of section 33 of the Act.  It is a defect which calls for consideration at the time of the scrutiny of the  nomination papers.  If the defect is a substantial  one then  the  nomination paper has got to  be  rejected.   Sub- section (4) of section 36 enjoins the Returning Officer  not to  reject any nomination paper on the ground of any  defect which is not of a substantial character.  But if it is of  a substantial character then sub-section (2) provides that the Returning  Officer  shall reject the nomination  paper  when "there  has  been  a  failure to  comply  with  any  of  the provisions  of section 33 or section 4." Reading Rule  4  of the  Rules and Form 28 it would be, noticed that  non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address  is a  failure to comply with the provisions of  section  33(1). Hence  we  agree with the findings of the  High  Court  that Jagan Nath’s nomination. papers were not improperly rejected by the Returning Officer. The  nomination  paper  of Prabha  Ram  suffered  from  more serious  types of defects.  The Returning  Officer  rejected the  nomination  of Prabha Ram on the grounds (1)  that  the name  of the Constituency of the proposer was not  given  in the  nomination  paper ; (2) that the numbers  of  electoral

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roll  given in the nomination paper did not tally  with  the candidate’s number in the true copy of the electrol roll; 10 SC/75-31 472 (3)that  at  the name of the proposer one  more  name  was given  and the entries in the electoral roll did  not  tally with the numbers mentioned by the proposer and the candidate in the nomination paper.  Following the dictum of this Court in the case of N. T. Veluswami Thever v. C. Raja Nainar  and others(1)  the  High  Court  has  taken  into  consideration another  defect, in that the thumb impression of one of  the two  proposers  had  not been authenticated  in  the  manner required by law.  Even ignoring grounds 2 and 3 forming  the basis  of the order of the Returning Officer  rejecting  the nomination paper of Prabha Ram as being possibly covered  by the  proviso to section 33(4), the first defect pointed  out by  the Returning, Officer was of a  substantial  character. It  made  it  obligatory for him to  reject  the  nomination paper.   Over  and  above that defect  the  High  Court  has rightly  noticed another fatal defect.  Section 2(i) of  the Act says :               " sign’ in relation to a person who is  unable               to  write his name means authenticate in  such               manner as may be prescribed." The  prescribed Manner of authentication is to be  found  in Rule  2(2) of the Rules.  A thumb mark has to be  placed  by the proposer on the nomination paper in the presence of  the Returning Officer and such officer on being satisfied as  to his  identity  has to attest the mark as being the  mark  of that  person.   There was, therefore, a clear  violation  of this rule also.  We see no reason to differ from the view of the  High Court that the nomination paper of Prabha Ram  was not improperly rejected by the Returning Officer. For  the  reasons  stated  above the  appeal  fails  and  is dismissed with costs payable to respondent no.  I alone. Appeal dismissed. P.B.R. (1) A.I.R. 1959 S.C. 422. 473