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PETITIONER: HARCHARAN SINGH

       Vs.

RESPONDENT: MOHINDER SINGH & ORS.

DATE OF JUDGMENT: 01/05/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1500            1969 SCR  (1) 198  CITATOR INFO :  R          1975 SC 290  (8)

ACT: Representation of the People Act (43 of 1951), ss. 33(5) and 36(4)--Certified copy of certificate filed by candidate  who is  a voter in different constituency fails to set out  age, and   house   number--If  defect   substantial   to   reject nomination.

HEADNOTE: The  appellant filed his nomination paper for a seat to  the Vidhan  Sabha  of a constituency different from the  one  in which his name was included as a voter.  With his nomination paper,  the  appellant  had produced an  application  for  a certified  extract  on the reverse of which was  recorded  a certificate,  containing relevant entries from  the  Voters’ list.   The  entries  in certificate did not  tally  in  all respects  with the entries in the voters’ list, in  that  it failed  to  set out the age of he appellant  and  his  house number.   No  objection to the nomination paper  was  raised before   the  returning  officer.   The  returning   officer accepted  the nomination and held that the particulars  were correct,  and that the appellant was over 25 years  of  age. The  appellant was declared elected.  The first  respondent, an  unsuccessful candidate, challenged the validity  of  the election  of the appellant on the ground that the  appellant had  failed  to produce before the  scrutiny  of  nomination paper,  the  electoral  roll  or a  certified  copy  of  the relevant entries in the roll in which his name was  included as  voter as required by s. 33(5) of the  Representation  of the People Act.  The High Court set aside the election.   In appeal, this Court : HELD:The appeal must be allowed. The  copy  of the relevant entries from the  electoral  roll relating to the appellant was defective.  But under s. 36(4) the  returning officer is entitled to accept the  nomination paper  even  if it be defective, if the defect is not  of  a substantial character : indeed he is enjoined not to  reject the nomination paper unless the’ defect is of a  substantial character.  The details for identifying the appellant as  an elector  were duly furnished. His age was mentioned  in  the nomination  paper,  though  it was not to be  found  in  the

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certified copy produced by the appellant.  No objection  was raised  to the acceptance of the nomination paper on  behalf of  the contesting candidate and his agents present  at  the scrutiny.   The  returning  officer  satisfied  himself   by personal  inquiry  that the appellant was above the  age  of twenty-five and competent to stand for election. it was true that  he did not come to the conclusion that the  defect  in the  copy  of  the  electoral  roll  was  of  a  substantial character. [204 G-H; 205 A-B] The  decision of the returning officer in the matter is  not final  and in appropriate cases it is open to the  Court  to reach  a different conclusion in an election  petition.   In this  case,  the  appellant was not negligent  nor  was  the purity of election process likely to be affected on  account of  the defects in the COPY produced by the appellant.   The defects  in  the  certificate  were  not  of  a  substantial character.   Therefore the returning officer did not err  in not rejecting the nomination paper. [204 B-C] Sri Baru Ram v. Shrimati Prasanni & Ors. [1959] S.C.R. 1403, referred to. 199

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1554  of 1967. Appeal  from the judgment and order dated September 1,  1967 of  the Punjab and Haryana High Court in  Election  Petition No. 4 of 1967. S. V. Gupte, Mehra Singh Chaddah and Harbans Singh, for  the appellant. A.  K.  Sen, R. L. Kohli and J. C.  Talwar,  for  respondent No.1. The Judgment of the Court was delivered by Shah, J. At the general elections held in February 1967  the appellant  polled  the  largest  number  of  votes  and  was declared  elected to the Punjab Vidhan Sabha from  the  Zira Constituency.   The first respondent S. Mohinder Singh,  who was  a candidate at the election, applied to the High  Court of Punjab for setting aside the election of the appellant on the ground that the nomination of the appellant who was  not a voter in the Zira Constituency was improperly accepted  by the Returning Officer, for the appellant had failed to  file before  the  scrutiny a copy of the electoral  roll  or  the relevant  part thereof or a certified copy of  the  relevant entries of the poll pertaining to the constituency to  which he belonged, and that the result of the election to the Zira Constituency  insofar  as  it concerned  the  appellant  was materially   affected   by  improper   acceptance   of   his nomination.   The High Court upheld the contention  and  set aside  the  election  of  the  appellant  and  declared  the election of the appellant void under s. 100(1)(d)(1) of  the Representation of the People Act, 1951.  Against that  order the appellant has appealed to this Court. The name of the appellant is included as a voter in the Gid- derbha  Constituency,  and his name is not included  in  the list  of’  electors in the Zira Constituency.  But  on  that account  he was not disqualified from standing for  election from the Zira Constituency.  The validity of the election of the  appellant was challenged only on the (,round  that  the appellant  had  failed  to produce before  the  scrutiny  of nomination  papers, the electoral roll, or a certified  copy of the relevant entries in that roll concerning him.

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By  sub-s. (4) of s. 33 of the Act the returning officer  is directed  to  satisfy himself when the nomination  paper  is prescribed  that  the  names and electoral  numbers  of  the candidate  and  his proposer as entered  in  the  nomination paper are the same as those entered in the electoral  rolls. Sub-section  (5)  provides that where the  candidate  is  an elector of a different constituency a copy of the  electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless  it has been filed along with the nomination  papers, be produced before the returning officer at the time of 200 scrutiny.   The appellant not being an elector in  the  Zira Constituency,  he had to produce either with the  nomination paper  or at the time of scrutiny the relevant part  of  the electoral roll, or a certified copy of the relevant  entries in  the electoral roll.  Section 36 deals with the  scrutiny of nomination.  By sub-s. (2) of s. 36 it is provided :               "(2) The returning officer shall then  examine               the  nomination  papers and shall  decide  all               objections   which   may  be   made   to   any               nomination,   and   may,   either   on    such               objections,  or on his own motion, after  such               summary   inquiry,  if  any,  as   he   thinks               necessary, reject any nomination on any of the               following grounds :               (a) that on the date fixed for the scrutiny of               nominations   the  candidate  either  is   not               qualified or is disqualified for being  chosen               to  fill the seat under any of  the  following               provisions that may be applicable, namely :               Aticles 84, 102, 173 and 191.               (b)  that there has been a failure  to  comply               with  any of the provisions of section  33  or               section 34; or               (c) ........................................ By  sub-s.  (4)  the returning officer is  enjoined  not  to reject  any  nomination paper on the ground  of  any  defect which is not of a substantial character.  Sub-section (7) of S. 36 provides :               "For   the  purposes.  of  this   section,   a               certified  copy of an entry in  the  electoral               roll  for  the  time  being  in  force  of   a               constituency  shall be conclusive evidence  of               the  fact that the person referred to in  that               entry  is  an elector for  that  constituency,               unless  it is proved that he is subject  to  a               disqualification  mentioned in section  16  of               the Representation of the People Act, 1950." This  Court in Sri Baru Ram v. Shrimati Prasanni  &  Ors.(1) observed at p. 141 8 :               "Sub-section (5) of s. 33 deals with the stage               of  the scrutiny of the nomination papers  and               it  provides  that  where a  candidate  is  an               elector of a different constituency, a copy of               the electoral roll of that constituency or the               relevant  part thereof or a certified copy  of               the relevant entry of such roll shall,  unless               it  is filed along with the nomination  paper,               be  produced before the returning  officer  at               the  time of the scrutiny.  It is  thus  clear               that when the stage of scrutiny is reached the (1) [1959] S.C.R. 1403. 201               returning officer has to be satisfied that the

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             candidate   is  an  elector  of  a   different               constituency and for that purpose the  statute               has  provided the made of proof.  Section  36,               sub-s. (7) lays down that the certified copies               which are required to. be produced under s. 33               (5)  shall be conclusive evidence of the  fact               that  the person referred to. in the  relevant               entry  is an elector of that constituency.  In               other words,  the scheme of the Act appears to               be  that where a candidate is an elector of  a               different  constituency he has to  prove               that  fact  in the manner prescribed  and  the               production  of the  prescribed copy has to  be               taken  as  conclusive  evidence  of  the  said               fact."     The  appellant concedes ,that with his nomination  paper he  did  not  produce the electoral roll or a  copy  of  the relevant  part thereof of the Gidderbha  Constituency.   He, however,  pleaded  that at the time of the scrutiny  of  the nomination  papers  he  had produced  before  the  returning officer copies of the electoral roll. and had requested that officer  to keep. the copies of the roll on his file  if  he needed them, and the returning officer had said that he  did not  need the copies of the electoral roll.  This  case  was not  set  up by the appellant in his reply to  the  election petition.   The  returning  officer Sher  Singh  Sindhu  was summoned   to   appear  before the  High  Court  to  produce certain  documents  in  his  custody.   Sher  Singh   Sindhu personally  appeared  in Court and  tendered  the  documents called for, but the appellant did not ask the Trial Judge to administer  him  oath  and to examine him   as   a  witness. There  is  no  written record about the  production  of  the electoral  roll before the returning officer.  In the  order passed by ,the returning officer dated January 21, 1987, the returning  officer  has  referred to  the  production  of  a certificate,  but  not to the production  of  the  electoral roll’.  We therefore agree with the High Court that the case set  up by the appellant that he had produced copies of  the electoral   roll  or  relevant  parts  thereof  before   the returning officer at the time of the scrutiny of  nomination papers cannot be accepted as true.      The  appellant  contends that he had produced  with  the nomination paper a certified extract from the electoral list of  the  Gidderbha   Constituency supplied  to  him  by  the Tahsildar  Muktsar,  who also held the office  of  Electoral Registration Officer, and the requirements of s. 33(5)  were satisfied.   With  his nomination paper  the  appellant  had produced an Ext. P.W. 1/4 to the following effect:                     "Certified  that the names of  Harcharan               Singh  s./o Teja Singh and Gurdial  Singh  s/o               Harcharan Singh are there on the vote.rs  list               of  V. Badian H.B. No. 24, Tehsil Muktsar,  in               the  voters’ list of Lambi  Constituency;  for               the year 1965.               10 Sup CI/68--14               202               S.     No.       Name     of     the     voter               Vote No.               1.     Harcharan   Singh   s/o   Teja    Singh               1825               2.       Gurdial  Singh  s/o  Harcharan  Singh               1827               Sd. Illegible                  19.1.67"               The  circumstances in which this document  was

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             obtained may first be set out.  On January 18,               1967,  the appellant submitted an  application               before the Sub-Divisional Magistrate, Muktsar,               to the following effect:               "The applicant begs to submit as under:                   It  is  submitted that I want  to  contest               for    Punjab   Assembly   seat   from    Zira               Constituency.   My name is entered as a  voter               in the voters’ list of village Badjan. I  have               received a voters’ list from the Panchayat  of               the   village  and  another  list   from   the               candidate  of Gidderbha circle.  One  list  of               voters   is   (part)  20  and in   the   other               (part)  31  is  written  in  red ink.               Both  of  them relate to  year  1966.   Kindly               certify  after verification from the  election               qanungo, whether there is also another  voters               list for the year 1966.  If there is one, what               is my voter No. therein.                     My  son  Gurdial Singh, is  my  covering               candidate.  Kindly verify Voters Nos. of  both               (of us)." On  this application it was recorded by  the  Sub-Divisional Magistrate  on January 19, 1967--"Allowed   certified   copy today".  On  the reverse of the application  is  recorded  a certificate of the Tahsildar, Muktsar, which is marked  P.W. 1/4.   The  entries  in the voters’  list  relating  to  the appellant may be set out:     Voters’  list  of Gidderbha  Assembly  --Village  Badian (Continued). Constituency 1825       211       Harcharan Singh       Male      60                      Teja Singh     Below  this  entry  and at the end of the  page  of  the electoral roll, this note appears: Serial      House    Name  of  the   voter         Father’s/ No.           No.                                 Male/Age                                              /other’s/Female/                                              Husband’s name. The  entries in P.W. 1/4 do not tally in all respects   with the entries in the voters’ list. P.W. 1/4 purports to be  an abstract from the voters’ list of Lambi Constituency whereas the  voters’  list  in which the name of  the  appellant  is entered is of the Gidderbha 203 Circle.   But  it appears that in transcribing the  name  of constituency  a  clerical mistake was made.   The  electoral roll  it  appears was prepared in 1965, and since  then  the original  Lambi  general constituency  was  named  Gidderbha constituency as a result  of delimitation of constituencies. But  in  Ext. P.W. 1/4 the house number and the age  of  the voter  which are found in the voters’ list are not set  out. There  can be no doubt that the copy supplied  is  defective and it does not comply  with the  requirements  of s. 33(5). Under  s.  36(2)(b)  the returning officer  has  to  hold  a summary inquiry on objections raised; or on his own  motion, whether  constitutional requirements are prescribed  in  cl. (a)  or  the  statutory requirements in el.  (b)  have  been fulfilled.  No objection to the nomination paper was  raised before  the  returning officer.  Apparently,  the  returning officer held some inquiry and recorded the following order:                 "I  have  examined the nomination  paper  in               accordance.    with   section   36   of    the               Representation  of the People Act,  1951,  and               decide as follows :-

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                      ’Particulars      correct.        The               candidate’s   age   is  not   shown   in   the               certificate.  But the candidate is an old  man               and is certainly above the age of 25 years and               as  such he is fully qualified.  No  objection               is  raised. Fee deposited. Oath taken.  Valid.               Accepted.’" By s, 36(4) the returning officer is enjoined  not to reject any  nomination paper on the ground of any defect  which  is not  of  a substantial character.  Exhibit  P.W.  1/4  which accompanied  the  nomination  paper  was  defective  in  two respects, but it still remains to be determined whether  the defects were of a substantial character.  The appellant  had produced  a  document which certified his roll  number,  his name, his father’s name, his village, H.B. number of  Tahsil Muktsar,  but did not certify his house number and his  age. On the application submitted by the appellant the  returning officer  had  asked  the Tahsildar   to   make   a   report. Niranian  Singh who was the Sub-Divisional Officer  Muktsar, and  also  the Electoral Registration Officer  of  Gidderbha Assembly Constituency at the relevant time deposed that  the application Ext. R.W. 1/5 was presented before him and  that he had ordered that the application be referred for disposal to  the  Tahsildar  who held the  office  of  the  Assistant Electoral  Registration  Officer. In  cross-examination  the witness  stated  that  he had  "desired   the  Tahsildar  to supply  a certified copy of the electoral roll" and that  he had never asked him to submit a report like the one endorsed on  the  reverse  of the  application.   But  the  Tahsildar purported  to  make a report and the application  with  that report  was delivered to the appellant in pursuance  of  his application.  We  see  no reason to disbelieve the statement of Niranjan Singh.  The ans- 204 wer referred ,to earlier is elicited in cross-examination by counsel for the respondent, and no reason has been suggested as  to  why the witness should bear  false  testimony.   The recitals  in  the  application filed by  the  appellant  are somewhat  obscure.   It  was  written  in  Punjabi  and  the official translation and the translation made by the learned Judge  in  the High Court did not wholly  tally.  The  order passed  by the Electoral Registration Officer which  he  has deposed  to is not amongst the papers.  But at the  foot  of the  application  it is recorded that a certified  copy  was allowed on January 19, 1967.  If the story of the  Electoral Registration Officer is to be believed, he had directed that a  certified copy of the electoral roll be furnished and  by some  mischance the Tahsildar made a report in  which  there was first a clerical mistake with regard to the name of  the Constituency,  and  again the two entries  relating  to  the house  number  and the age of the  appellant  were  omitted. Exhibit  P.W. 1/4 was filed with the nomination papers  ,and the  returning  officer was apparently satisfied  that  ,the requisite  details  were duly furnished.  Exhibit  P.W.  1/4 was   also before the returning officer at the time  of  the scrutiny    of  the  nomination  papers.    The   contesting candidate  and his agents were present and no objection  was raised  to. the validity or the sufficiency of the  document produced  with the nomination paper in purported  compliance with s. 33(5).   The returning  officer, however, thought it necessary to make an inquiry as to the age of the  appellant and  recorded that he was satisfied that the  appellant  was above the age of twenty-five.  Absence of ,the number of the house  in which the appellant lived from the  copy  produced does   not  appear  to.  have  been  regarded  as   of   any

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consequence. It was not suggested in the High Court, nor  is it suggested before us that the appellant was not  competent to stand as a candidate for the Zira Constituency either  on account of any disqualification or on the ground that he was not  an elector of any constituency; it is only  urged  that Ex.  P.W.  1./4  was not a certified copy  of  the  relevant entries in the electoral roll.     The  statutory  requirements  of election  law  must  be strictly  observed.   An  election dispute  is  a  statutory proceeding unknown to the common law: it is not an action at law  or in equity.  As a copy of the relevant  entries  from the  electoral  roll  relating   to  the  appellant  it  was indisputably  defective.  But under s. 36(4)  the  returning officer  is entitled to accept the nomination paper even  if it  be  defective,  if the defect is not  of  a  substantial character:   indeed  he  is  enjoined  not  to  reject   the nomination   paper  unless the defect is  of  a  substantial character.  The details  for identifying the appellant as an elector  were duly furnished. His age was mentioned  in  the nomination  paper,  though  it was not to be  found  in  the certified copy produced by the appellant.  No objection  was raised  to the acceptance of the nomination paper on  behalf of the contesting candidate and his agents present at 205 the  scrutiny.  The returning officer satisfied  himself  by personal  enquiry that the appellant was above ,the  age  of twenty-five  and therefore competent to stand for  election. It is true that he did not apply his mind ,to the absence of house number entered in the electoral register.  But he  did not  come  to  the  conclusion that  even  though  the  copy produced  was  defective  the defect was  of  a  substantial character.   The  decision of the returning officer  in  the matter  is not final and in appropriate cases it is open  to the  Court  to reach a different conclusion in  an  election petition.   But on a careful review of ,the  proceedings  of the  Returning  Officer  we  are of  the  opinion  that  the returning   officer  did  not  err  in  not  rejecting   the nomination paper; the defects in Ext. P.W. 1/4 were not of a substantial character.     The  primary  purpose of the diverse provisions  of  the election  law  which  may  appear  to  be  technical  is  to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.  If there  was any  reason  to think that the appellant was  negligent,  or that  on  account of defects which were found  in  the  copy produced  by  the appellant the purity   of   the.  election process was likely to be affected, we would have been  loath to  disagree  with the High Court.  But in this   case   the appellant  moved the Electoral Registration Officer   for  a copy  certifying the correctness of the entries in the  list which   had  been  supplied  to  him,  and   the   Electoral Registration  Officer  supplied to him a copy  which  though defective,   did   include   sufficient   particulars    for identifying the appellant.  No objection  was  raised before the  returning  officer and that officer  after  holding  an inquiry was apparently of the view that there was no  defect which  could be regarded as of a substantial character.   We do  not  think that any ground is made out  for  disagreeing with the  view  of  the’ returning officer.     The order passed by the High Court is set aside and  the petition  filed  by the first respondent S.  Mohinder  Singh stands  rejected.  The appeal is allowed: there will  be  no order as to costs throughout. Appeal allowed. 206

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