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CASE NO.: Appeal (civil)  5841 of 2002

PETITIONER: Harikrishna Lal                                                       

RESPONDENT:              Babu Lal Marandi                                                         

DATE OF JUDGMENT: 30/10/2003

BENCH: R.C. LAHOTI & ASHOK BHAN  

JUDGMENT: J U D G M E N T  R.C. Lahoti, J.

       An election, to choose one member to the Jharkhand Legislative  Assembly from 23-Ramgarh Assembly Constituency, was held in the  month of January-February 2001 to fill up the vacancy caused by the  death of the then sitting member.  Though there were more than two  candidates in the election fray, the legal battle in the Court arena has  continued only between the appellant and the respondent, the two out  of the several candidates, in the backdrop of the controversy arising  for decision.  The nomination paper filed by the appellant was rejected  by the returning officer.  He could not participate in the elections. The  respondent was declared elected on 23.2.2001.  An election petition,  laying challenge to the election of the respondent and seeking setting  aside of his election, was filed in the High Court of Jharkhand at  Ranchi.   The facts  relevant for the purpose of appreciating the issues  arising for decision in this appeal, are briefly set out hereunder.

       As per the election programme notified by the Election  Commission of India, the nomination papers could be filed on January  25, 2001 through January 31, 2001 between 11 a.m. and 3 p.m.  before the returning officer who was the Sub-Divisional Officer of  Ramgarh.  The scrutiny of the nominations took place on February 1,  2001.  February 3, 2001 was the date for withdrawal of nomination, if  any.  The nomination paper filed by the appellant was rejected by  reference to Section 8 of the Representation of the People Act, 1951  (hereinafter ’the Act’, for short) for failure of the appellant to furnish  certain information in a prescribed proforma supported by an affidavit,  stating as to whether the petitioner was not disqualified to contest the  election due to any conviction for committing any offence as required  under Section 8 of the Act.  The prescribed proforma for furnishing the  information and the form of affidavit, though supplied to the petitioner  by the returning officer, were not filed up to the date and time  appointed for scrutiny of nominations.  So far as this aspect of the  case is concerned, the controversy stands resolved by a recent  decision of this Court in Shaligram Shrivastava Vs. Naresh Singh  Patel, (2003) 2 SCC 176. The appellant appearing in-person has very  fairly stated that he does not want to pursue any further this plea,  disputing the rejection of his nomination paper, in view of the  abovesaid decision of this Court.

       The next controversy, and now the only one surviving for  decision, is as to whether the nomination paper filed by the  respondent suffered from any defect of a substantial character.   Inasmuch as this issue has been highlighted by the appellant from  very many angles, it would be useful to reproduce and set out from  the averments made in the election petition itself as to what the

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appellant’s case is.  According to the appellant  __          "The returning officer ought to have rejected  the nomination papers of the respondent on the  following grounds:-

(a)     That the respondent’s name is ’Babulal’.  His  surname is Marandi.  He is known,  recognized, addressed and identified every  where by this name ’Babulal Marandi’ alone  and not by any other name or surname  whatsoever.

       The name of the respondent Babu Lal  Marandi has not been enrolled as an elector  in the electoral roll of any Assembly  constituency of Legislative Assembly of  Jharkhand State.

       He has not filed certified copy of any  Assembly constituency of Jharkhand  Legislature to the Returning Officer either at  the time of filing his nomination papers or at  the time of scrutiny showing therein that his  name ’Babu Lal Marandi’ has been registered  as an elector in that Assembly Constituency.   Thus, the respondent is not competent to  contest the said election.  His nomination  papers filed to the returning officer suffer  from a defect of substantial character under  Section 36(4) of the R.P. Act, 1951 and they  ought to have been rejected by the  Returning Officer."

       The respondent has in his written statement denied the  averment made by the election petitioner and submitted __ "that the name printed in the Electoral Roll is Babu  Marandi instead of Babu Lal Marandi and his  father’s name is correct, village is correct and in  between ’Babu’ and ’Marandi’, ’Lal’ is not printed.   In this regard, it is submitted that answering  respondent filed an application before the  Returning Officer, Ramgarh on 29.1.2001  mentioning there that the correct name of the  respondent is Babu Lal Marandi son of Sri Chhotu  Marandi, Village Kodaibank, P.O. Chandauri, P.S.  Tisri, District Giridih but by mistake in the Voter  List, his name is printed as Babu Marandi son of Sri  Chhotu Marandi and requested him to correct his  name."  

It is further submitted in the written statement that the respondent is  known as Babu Marandi and also as Babu Lal Marandi.  Apparently, in  the Voters List, the word ’Lal’ in between ’Babu’ and ’Marandi’ has  been left out due to mistake.  It is clear from the fact that below the  respondent’s name, the name of his wife Shanti Marandi, wife of Babu  Lal Marandi (the respondent) is mentioned. In continuity the name of  the respondent’s son Sanstan Marandi, son of Babu Lal Marandi (the  respondent) is mentioned.  A photocopy of the Voters List supporting  the above said plea was annexed with the written statement.  The  respondent had also moved an application duly supported by an  affidavit seeking rectification of the above said error in the Voters List.   Copies of the application, the affidavit, and the receipt showing the  deposit of fee for correction were also filed with the written statement.   The respondent has then submitted that such a printing mistake in the  Voters List did not affect the identity of the respondent and is certainly

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not a ground on which his nomination paper could have been rejected.   The electoral roll of the constituency was seen by the returning officer  at the time of scrutiny and the nomination paper, having been found in  order, was accepted.  There was no objection raised by anyone or the  election petitioner at the time of the scrutiny.  The returning officer  rightly accepted the nomination paper of the respondent.   

       On the pleadings of the parties, one of the issues framed by the  learned designated Election Judge was:- "Whether the real name of the respondent Babulal  Marandi is not registered in the electoral roll of any  of the Assembly Constituencies of the Jharkhand  Legislative Assembly and, as such, he is not  qualified to contest the election from 23-Ramgarh  Assembly Constituency?"

       The case was posted for trial.  The election petitioner declared  that he was not adducing any evidence. The respondent too chose not  to adduce any evidence. The arguments were heard.  The High Court  has found the averment made in the election petition not  substantiated.  In the opinion of the High Court the returning officer  has not erred in accepting the nomination paper of the respondent.   The election petition has been directed to be dismissed.

       The election petitioner has filed this appeal under Section 116A  of the Act.

       We have heard the appellant, appearing in-person, who argued  the case from all possible angles and Shri Sanyal, the learned senior  counsel for the respondent.  We are satisfied that no fault can be  found with the view taken by the High Court in dismissing the election  petition and consequently this appeal too is liable to be dismissed.                  The relevant statutory provisions which would clinch the singular  issue surviving for decision in this appeal are extracted from the Act  and reproduced hereunder: 33.     Presentation of nomination paper  and requirements for a valid  nomination. â\200\223  

(1) to (3) xxx  xxx                     xxx   (4)     On the presentation of a nomination  paper, the returning officer shall satisfy  himself 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: [Provided that no misnomer or inaccurate  description or clerical, technical or printing  error in regard to the name of the candidate  or his proposer or any other person, or in  regard to any place, mentioned in the  electoral roll  or the nomination paper and  no clerical, technical or printing error in  regard to the electoral roll numbers of any  such person in the electoral roll or the  nomination paper, shall affect the full  operation of the electoral roll or the  nomination paper with respect to such  person or place in any case where the  description in regard to the name of the  person or place is such as to be commonly  understood; and the returning officer shall

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permit any such misnomer or inaccurate  description or clerical, technical or printing  error to be corrected and where necessary,  direct that any such misnomer, inaccurate  description, clerical, technical or printing  error in the electoral roll or in the nomination  paper shall be overlooked.]

(5)     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  paper, be produced before the returning  officer at the time of scrutiny.

36. Scrutiny of nominations. â\200\223  (1)On the  date fixed for the scrutiny of nominations  under section 30, the candidates, their  election agents, one proposer of each  candidate, and one other person duly  authorized in writing by each candidate but  no other person, may attend at such time  and place as the returning officer may  appoint; and the returning officer shall give  them all reasonable facilities for examining  the nomination papers of all candidates  which have been delivered within the time  and in the manner laid down in section 33.  

(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  objection 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 for being chosen to fill the seat  under any of the following provisions that  may be applicable, namely:-

Articles 84, 102, 173 and 191,]

[Part II of this Act and sections 4 and 14 of  the Government of Union Territories Act,  1963 (20 of 1963); or

(b)     that there has been a failure to  comply with any of the  provisions of section 33 or  section 34; or

(c)     that the signature of the  candidate or the proposer on  the nomination paper is not  genuine.]

(3)     xxx             xxx                     xxx

(4)     The returning officer shall not reject

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any nomination paper on the ground of any  defect which is not of a substantial  character.

(5)     The returning officer shall hold the  scrutiny on the date appointed in this behalf  under clause (b) of section 30 and shall not  allow any adjournment of the proceedings  except when such proceedings are  interrupted or obstructed by riot or open  violence or by causes beyond his control :

       Provided that in case [an objection is  raised by the returning officer or is made by  any other person] the candidate concerned  may be allowed time to rebut it not later  than the next day but one following the date  fixed for scrutiny, and the returning officer  shall record his decision on the date to which  the proceedings have been adjourned.

(6)     The returning officer shall endorse on  each nomination paper his decision accepting  or rejecting the same and, if the nomination  paper is rejected, shall record in writing a  brief statement of his reasons for such  rejection. [emphasis supplied]

       It is pertinent to point out that the proviso to sub-section (4) of  Section 33 was not to be found in the Act as originally enacted; the  same was inserted by Amending Act 47 of 1966 with effect from  14.12.1966.  Notes on Clauses of the Bill proposing the amendments  speak of the abovesaid proviso as under: ". . . . . . . . . .   The new proviso to sub-section (4)  is comprehensive in nature and it is on the lines of  sub-section (5) of section 39 of the U.K.  Representation of the People Act, 1949.  This has  been done to remove all possible doubts about the  power of the returning officer to correct any  misnomer or inaccurate description in regard to the  name of a candidate or his proposer or any other  person or in regard to any place mentioned in the  electoral roll or in the nomination paper."

(See Gazette of India, Extraordinary, dated August 29, 1966, Part 2  Section 2 page 667, 699).

       A bare reading of the provisions shows that so far as sub- section (4) of Section 33 is concerned the effect of non-compliance  may be merely an irregularity which would not necessarily entail the  rejection of nomination paper.  Acceptance or rejection of the  nomination paper by the returning officer shall depend on his forming  an opinion as to whether the defect is of a non-substantial character or  of a substantial character.  A statutory duty is cast on the returning  officer to scrutinize the nomination papers on the appointed date  without adjourning the proceedings.  If the returning officer finds any  irregularity or defect in the nomination paper he may hold an enquiry  suo motu affording the candidate, whose nomination is under scrutiny,  an opportunity to satisfy the returning officer that no such defect or  irregularity exists.  An objection may be raised by any other person  and in that case also the candidate concerned may be allowed time to  rebut the objection.  Within the meaning of proviso to sub-section (5)

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of Section 36 the returning officer has to record his decision by way of  acceptance or rejection of the nomination paper.  If the nomination  paper is rejected a brief statement of his reasons for such rejection  has to be recorded in writing.                  In the present case, the appellant did not raise any objection to  the validity of the nomination filed by the respondent.  He never  submitted that the name of the respondent as appearing in the  nomination did not agree with the name as appearing in the voters’ list  and therefore the nomination was not valid.  Nor did he object that the  respondent was not an elector registered in the voters’ list of that  constituency.  The identity of the respondent was never called in  question.  It seems from the plea taken in the written statement and  the annexures filed with the written statement that the returning  officer suo motu asked the respondent to satisfy him on the minor  discrepancy which appeared in the voters’ list and the nomination  paper, i.e., while the voters’ list of the constituency contained the  entry "Babu Marandi, father’s name - Chotu Marandi, sex - Male, age -   37 years, resident of village Kodaibank, P.S. Tisri, Distt. Giridih", the  nomination paper mentioned the name of the respondent as ’Babulal  Marandi’, with all other particulars remaining the same as entered in  the voters’ list. Thus, the only variation in the name of the respondent  was that of ’Babu Marandi’ and ’Babulal Marandi’.  The respondent  contended before the returning officer by filing an affidavit that he was  known both as ’Babu Marandi’ and ’Babulal Marandi’, and that the  omission of ’Lal’ in the voters’ list was inadvertent, erroneous and in  any case technical.  It is well-known that in Indian society the name of  a person consists of the first name, the second name and the surname  or the family name.  The first name and the family name of the  respondent tallied; the second name was mentioned in the nomination  paper but was not found to be mentioned in the voters’ list.  According  to the plea taken in the written statement all other descriptions such  as  father’s name, age, sex and residence etc. of the respondent as  given in the voters’ list and as appearing in the nomination paper  tallied.  There was thus no defect in the nomination paper.  The  respondent being a candidate from that very constituency wherein he  was enrolled as an elector, it was not necessary for him to file a  certified copy of the relevant entries in electoral roll or to produce the  same at the time of scrutiny.

       In Harcharan Singh Vs. S. Mohinder Singh and Ors. - AIR  1968 SC 1500 the purpose of the provisions contained in Sections 33  and 36 of the Act was  stated by their Lordships in these words â\200\223 "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 minimize their operation."   Their Lordships further observed that "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.  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.  He is enjoined not to reject the  nomination paper unless the defect is of a substantial character."   Harcharan Singh’s case (supra) was one where the details for  identifying the appellant as an elector were duly furnished and his age  though mentioned in the nomination paper was not to be found in the  certified copy produced by him and no objection was raised to the  acceptance of the nomination paper on behalf of the contesting  candidate.  The returning officer satisfied himself by personal enquiry  that the appellant was above the age of 25 and therefore competent to  stand for election.  It was held that even though the copy produced  was defective because of the absence therefrom of the house number  entered in the electoral register, yet the defect was not of a  substantial character and hence the returning officer was justified in  not rejecting the nomination paper.  In Viveka Nand Giri Vs. Nawal  

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Kishore Sahi â\200\223 (1984) 3 SCC 10 there was a difference in the age as  recorded in the electoral roll and as stated in the nomination paper.  It  was held that the nomination paper would fall in the category of an  inaccurate description and the returning officer could not have rejected  the nomination. In Karnail Singh Vs. Election Tribunal, Hissar and  Ors. - 10 ELR 189 the name of the Sub-Division was not stated in the  nomination paper.  However, it was quite clear that there was no  difficulty in identifying the candidate.  The defect was held to be a  technical one and not of substantial character.

       A reference may usefully be made to the maxim "Falsa  demonstratio non nocet cum de corrore constat" which means mere  false description does not vitiate, if there be sufficient certainty as to  the object.  ’Falsa demonstratio’ means an erroneous description of a  person or a thing in a written instrument; and the above rule  respecting it signifies that where the description is made up of more  than one part, and one part is true, but the other false, there, if the  part which is true describes the subject with sufficient legal certainty,  the untrue part will be rejected and will not vitiate the devise: the  characteristic of cases within the rule being that the description, so far  as it is false, applies to no subject at all, and, so far as it is true,  applies to one only. (See Broom’s Legal Maxims, 10th Edition, pp. 426- 427).  Broom quotes (at page 438) an example that an error in the  proper name or in the surname of the legatee should not make the  legacy void, provided it could be understood from the will what person  was intended to be benefited thereby.

       There is no manner of doubt that the respondent is a duly  enrolled elector in the voters list of No.23 Ramgarh Assembly  Constituency.  In the voters list as well as in the nomination paper the  respondent was correctly described.  The omission of his second name  ’Lal’ from the voters list is inadvertent or accidental and in any case  merely technical.  There is no doubt about the identity of the  respondent.  Apparently that is why none of the  candidates including  the writ petitioner and no one else raised any objection to the  acceptance of the nomination paper by submitting that the respondent  was not a registered elector of the constituency.  The returning officer  entered into suo moto enquiry for his own satisfaction, and felt  satisfied by looking into the electoral list of the constituency available  with him, that the respondent Babu Lal Marandi was the same person  who was mentioned as Babu Marandi in the electoral list.  Being an  elector in the same constituency wherefrom he was contesting election  it was not necessary for him to have filed a certified copy of the  relevant entry from the voters list. Before the High Court, the writ  petitioner has chosen not to adduce any evidence to demonstrate that  the returning officer was not right in arriving at the satisfaction which  he did or that the respondent was not enrolled in the electoral list of  that constituency or was the one enrolled in some other constituency.   The High Court has not erred in holding the election of the respondent  not liable to be set aside.

       In  Durga Shankar Mehta Vs. Raghuraj Singh and Ors. â\200\223  AIR 1954 SC 250 the Constitution Bench has held that if the want of  qualification does not appear on the face of the nomination paper or of  the electoral roll but is a matter which could be established only by  evidence, an enquiry at the stage of the scrutiny of the nomination  papers is required under the Act only if there is any objection to the  nomination.  The Returning Officer is then bound to make such enquiry  as he thinks proper on the result of which he can either accept or  reject the nomination.  But when the candidate appears to be properly  qualified on the face of the electoral roll and the nomination paper and  no objection is raised to the nomination, the Returning Officer has no  other alternative but to accept the nomination.

       The law so laid down by the Constitution Bench squarely applies

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to the present case. On the face of the nomination paper the  respondent was not disqualified in any manner.  The returning officer  satisfied himself as to  the identity of the respondent and, the electoral  roll of the constituency, which was available with him to be seen,  pointed out only an inconsequential technical variation in description,  as already stated hereinabove.  If the contention of the appellant is  that the respondent was not an elector of the constituency and his  nomination paper was therefore liable to be rejected for failure to file a  certified copy of entries of the relevant electoral roll, then it was for  the appellant to raise that objection so as to put the returning officer  on notice, who in his turn could have afforded the respondent an  opportunity of meeting the objection.  Clearly there is no merit in the  plea raised by the appellant.

       It is true that mere failure of the appellant in raising objection to  the validity of the nomination paper filed by the respondent before the  returning officer does not stop or exclude the election petitioner from  raising a plea before the High Court that the nomination paper filed by  the respondent was liable to be rejected or could not have been  accepted.  The enquiry which the returning officer has to make under  Section 36 of the Act is summary in character, which he may make as  he thinks necessary either suo moto or on an objection being raised.   Whether such an enquiry was held or not and if held whatever may  have been the result, the propriety of rejection or acceptance of a  nomination paper can always be raised by way of election  petition.(See N.T. Veluswami Thevar Vs. G. Raja Nainar & Ors.,  AIR 1959 SC 422).  But the fact remains that it will be for the election  petitioner to raise necessary pleadings and, if traversed, to  substantiate the same by adducing the necessary evidence.  This the  election petitioner has failed to do before the High Court.  The  inevitable consequence of the election petition being dismissed has  rightly followed.

       Even otherwise we find no substance in the plea raised by the  election petitioner.

       The appellant submitted that in the election petition it was  specifically alleged that the respondent was not an elector belonging to  the constituency and that it was further obligatory for the respondent  to adduce evidence to show that he was qualified to be a candidate  without the need of filing the certified copies of entries in the electoral  roll before the returning officer.  Such a submission runs counter to  basics of election law.  The success of a winning candidate is not to be  lightly interfered with.  The burden of proof lies on the one who  challenges the election to raise  necessary pleadings and adduce  evidence to prove such averments as would enable the result  of the  election being set aside on any of the grounds available in the law.  In  an election petition if nobody adduces evidence it is the election- petitioner who fails.  The High Court rightly framed the issue placing  the burden of proof on the election- petitioner.  As no evidence was  adduced by the election-petitioner, the High Court rightly dismissed  the election petition.

       The appeal is devoid of any merit and liable to be dismissed.  It  is dismissed though without any order as to the costs.

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