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PETITIONER: DILIP KUMAR GON

       Vs.

RESPONDENT: DURGA PRASAD SINGH

DATE OF JUDGMENT04/11/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH ALAGIRISWAMI, A.

CITATION:  1975 AIR 2343            1975 SCR  (2) 570  1975 SCC  (1) 401

ACT: Election-Contest  from  a general Constituency  to  seat  in State Legislative Assembly-Omission to strike off ’Scheduled Caste/Tribe’ and to fill in candidate’s caste in  nomination paper-If defective justifying rejection of nomination paper.

HEADNOTE: In relation to an election to the State Legislative Assembly from  a general constituency, one candidate had not  in  the nomination paper (a) filled his specific caste in the  blank meant  for  that  purpose, and (b) he had,  left  the  words ’Scheduled Caste’ unscored.  The Returning Officer  rejected his  nomination  paper  on the ground that  his  failure  to delete the words ’Scheduled Caste’ meant that he belonged to the  scheduled caste which was not true,  and  consequently, the  nomination  paper  was not  filled  up  properly.   The respondent  was declared elected.  The High  Court,  holding that  the candidate, whose nomination paper was rejected  by the   Returning  Officer.  had  not  properly   filled   his nomination  paper,  upheld the rejection and  dismissed  the election petition challenging the respondent’s election. Allowing the appeal to this Court. HELD  : (1) The seat for which the candidates contested  was not a reserved seat.  There is no statutory provision in the Representation  of the People Act, 1951, or elsewhere  which enjoins  a candidate who is contesting the election  for  a. general seat, and not for a reserved seat, to specify in his declaration his caste or tribe. [571G] (2)The Returning Officer admitted in his evidence that  at the  time  of the scrutiny of the nomination papers  he  was aware   that  the  candidate,  whose  nomination  paper   he rejected,  was not a member of the scheduled caste and  that he had deposited Rs. 501- as security.  Therefore, the omis- sion to strike off scheduled caste/tribe in the form did not amount  to  a defect in the eye of law, much less was  it  a defect of a substantial character, warranting the  rejection of the nomination paper. [571H] Amolak  Chand  v.  Raghuveer  singh  [1968]  3,  S.C.R.  246 followed.,

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 602 of 1973. From  the Judgment’s Order dated the 6th February,  1973  of the Patna High Court in Election Petition No. 6 of 1972. R.K. Garg, S C. Agarwala, S. S. Bhatnagar and V. J. Francis, for the appellant. D. Goburdhan, for the respondent. The Judgment of the Court was delivered by SARKARIA,  J. Durga Prasad Singh, respondent herein,  Khatir Ali  and Abdul Hamid, filed their nomination  papers  before the  Returning ,Officer for contesting the election  to  the Bihar   Legislative  Assembly  from   147-Jamtara   Assembly Constituency  (General).   The  date for  :scrutiny  of  the nomination  papers  was  February  9,  1972-  The  Returning Officer  rejected the nomination papers of Khatir,  Ali  and Abdul  Hamid  ignoring the objections that  were  raised  on their behalf.  Durga Prasad Singh was declared duly elected. 571 The  appellant,  an elector of the  Constituency,  filed  an Election  Petition challenging the election of Durga  Prasad Singh inter alia on the ground that the nomination papers of Abdul Hamid and Khatir All had been improperly rejected.   A learned  single  Judge  of the High  Court,  who  tried  the Petition  decided that issue against the petitioner, and  in consequence, dismissed the Petition.  Hence this appeal. Before us, Mr. R. K. Garg, learned Counsel for the Appellant has.  confined  his  arguments  to  the  rejection  of   the nomination paper of Abdul Hamid, only.  It is submitted that the  defect  on the basis of’ which  the  Returning  Officer rejected Abdul Hamid’s nomination papers, was not a ’defect’ in the eye of law.  At any rate, proceeds. the argument,  it was  not  a defect of a substantial  character  which  could justify rejection of the nomination papers. There is merit in this contention. What  happened  was  that  in  the  column  of  the  printed nomination  form,  meant  for making a  declaration  of  the candidates’  of the Scheduled Caste/Tribe contesting  for  a Reserved.  Seat, Abdul Hamid had not (a) filled his specific caste  in the bank ’Meant for that purpose and further,  (b) he  had  in that column, left the  words  ’Scheduled  Caste’ unscored.   The  Returning Officer rejected  the  nomination papers  on the ground that the failure of the  candidate  to delete the words ’Scheduled Caste’ means that "he belongs to Scheduled  Caste which is not true" said consequently,  "the nomination papers are not filled up properly". The  learned Judge of the High Court upheld this  rejection, holding that "the candidate’s filling of these entries  were on  the face of it, not proper and did not comply  with  the requirements  of law on this subject" and further that  this defect  was not "trivial or technical" but of a  substantial character. In  our  opinion,  in the circumstances  of  the  case,  the rejection  of  the  nomination papers  of  Abdul  Hamid  was manifestly erroneous.  The High Court’s view that in scoring out  only the word ’Jan-Jati’ (Tribe) and leaving  the  word ’Jati’  (caste)  untouched in the aforesaid  column  of  the nomination form, Abdul Hamid had failed "to comply .With the requirement  of  the law on the subject" was  entirely  mis- conceived.    It  overlooked  the  fact  that  the   Jamtara Constituency was a ’General’ Constituency, and the seat  for which the candidates wanted to contest the election was  not a Reserved seat.  Section 33(2) of the Representation of the People Act, 1951, or any other statutory provision does  not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved seat, to specify in his

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declaration  his  caste or tribe.   Further,  the  Returning Officer  appearing as R. W. 2, had clearly admitted that  at the  time of the scrutiny of the nomination papers,  he  was aware  that  Abdul Hamid was not a member of  the  Scheduled Caste and that he had deposited Rs. 250/- as security.   The omission to strike off the column in the printed  nomination form  relating to Scheduled Caste/Tribe did not amount to  a defect  in  the eye of law, much less was it a defect  of  a substantial   character,   warranting   rejection   of   the nomination paper. 572 In Amolak Chand v. Raghuveer Singh,(1) the nomination papers of two candidates contesting for a General Constituency were rejected  on a similar ground.  Holding that  the  rejection was improper, Ramaswami J. speaking for the Court stated the law on the point thus:               "The printed form 2A is meant both for General               and  Reserved Constituencies but while  it  is               obligatory  for  candidates  in  the  reserved               constituency  to  make a  declaration  in  the               proper  column  that  he  is  a  member  of  a               particular  caste or tribe, there is  no  such               rule  with  regard  to  General  Constituency.               Section 33(2) of the Act imposes an obligation               on the candidate in the reserved  constituency               to  make a declaration in the  proper  column,               but there is no such direction in the  statute               with  regard to the General Constituency.   In               our  opinion, the mention of the caste of  the               candidate  in the nomination form was a  clear               superfluity  because it was not necessary  for               the  candidate to fill in the column  when  he               was contesting in a General Constituency. ." In the light of what has been said above, we would,  reverse the  finding of the High Court and hold that the  nomination papers  of  Abdul  Hamid were  improperly  rejected  by  the Returning Officer. In  the  result, we would on this short ground,  allow  this appeal and the Election Petition and declare the election of Durga  Prasad  Singh,  Respondent herein to  be  void.   The appellant shall have his costs throughout. V. P. S. (1) [1968] 3 S.C.R. 246. Appeal allowed. 573