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PETITIONER: RANGILAL CHOUDHURY

       Vs.

RESPONDENT: DAHU SAO AND OTHERS

DATE OF JUDGMENT: 26/04/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS AIYYAR, T.L. VENKATARAMA

CITATION:  1962 AIR 1248            1962 SCR  (2) 401  CITATOR INFO :  RF         1972 SC 580  (17)  F          1973 SC 276  (5)

ACT: Election-Defect in the nomination Paper-if of a  substantial chayactey-Representation of the People Act, 1951 (No.  LXIII Of 1951), s. 33, sub-s. (4).

HEADNOTE: The  appellant was elected as a member of the  Bihar  Legis- lative     Assembly  in  a  bye-election  from   the Dhanbad constituency  by  a majority of votes while  the  nomination paper  of  the  respondent was  rejected  by  the  Returning Officer  on  the ground that the respondent’s  proposer  had nominated  him for election from the Bihar and  not  Dhanbad assembly constituency inasmuch as in the nomination paper he wrote   the   word  "Bihar"  before  the   words   "assembly constituency"  instead of the word "Dhanbad".   This  defect arose  out  of a mistake in the Hindi printed  form  of  the nomination  paper which did not exactly conform to the  form prescribed  by  the Rules.  In an election petition  by  the respondent  the Election Tribunal held that  his  nomination paper was rightly rejected but on appeal the High Court held that  it  was  improperly rejected.  On  appeal  by  special leave, Held, that in view of the mistake that occurred in the 402 printing  of the form and in view of the fact that the  name of  the constituency for which the election was  being  held was already in the heading, the defect in the filling up  of the  form which resulted from a mistake of the  proposer  in putting  the word "Bihar" instead of the word "Dhanbad"  was not of a substantial character as contemplated under s-33 of the Representation of the People Act, 1951. Held, further, that the defect arising out of the fact  that columns  nos. 2 and 5 were not properly filled was not of  a substantial  character  as  the  Returning  Officer  bad  no difficulty  in checking that the proposer and the  candidate were voters on the electoral rolls. Karnail Singh v. Election Tribunal, Hissay, [1954] 10 E.L.R.

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189, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 20 of 1961. Appeal  by special leave from the judgment and  order  dated March  25, 1960, of the Patna High Court in Election  Appeal No. 4 of 1959. N.   C. Chatterjee, D. P. Singh, M. K. Ramamurthy, R.  K. Garg and S. C. Agarwal, for the appellant. D. Goburdhan, for respondent No. 1. 1961.  April 26.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment of the Patna High Court in an election matter.  The brief facts necessary for present purposes are these.  There was a bye-election held on December 21 and 22, 1958, to fill up  a  vacancy in the Bihar Legislative  Assembly  from  the Dhanbad  constituency.  Nomination papers for the same  were to  be filed on or before November 8, 1958.  A large  number of  persons filed their nomination papers on or before  that date  and among them were the appellant  Rangilal  Choudhury and  the respondent Dahu Sao.  In the present appeal we  are only concerned with these two.  The nomination paper of  the respondent  was  rejected  by the  returning  officer  after scrutiny  on November 11, 1958.  The bye-election  was  duly held and the appellant was declared elected by a majority of votes.  Thereafter the respondent filed an election petition challenging the election of the appellant on a large                             403 number  of  grounds.   In the present  appeal  we  are  only concerned with one of the grounds that the nomination  paper of the respondent was improperly rejected.  The  appellant’s contention in this connection was that the nomination  paper was  rightly rejected.  The election tribunal held that  the nomination   paper  was  rightly  rejected  and   thereafter dismissed  the petition.  The respondent went in  appeal  to the  High  Court, and the main point pressed in  appeal  was that  the  election tribunal was wrong in holding  that  the nomination  paper  of the respondent was  rightly  rejected. The High Court agreed with the contention of the  respondent that  his  nomination  paper  was  improperly  rejected  and therefore  allowed the appeal and set aside the election  of the  appellant.   The appellant’s application for  leave  to appeal to this Court having been rejected by the High Court, he  applied for and obtained special leave from this  Court; and that is how the matter has come up before us. The  only ground on which the nomination paper was  rejected by the returning officer was that the proposer had nominated the  candidate  for  election from  Bihar  and  not  Dhanbad assembly  constituency.  The nomination was made on a  Hindi form   printed   for   the  purpose   by   the   Government. Unfortunately,  the printed form did not exactly conform  to the  Hindi  printed  form  in the  Rules  framed  under  the Representation  of  the  People  Act,  No.  LXIII  of  1951, (hereinafter  called the Act).  The heading in the  specimen printed form in the Rules requires the name of the State  in which the election is held, to be filled in the blank  space there;  but in the printed form supplied to  the  respondent the name of the State was already printed in the heading and therefore the blank space had to be filled in with the  name of the constituency.  The candidate therefore filled in  the name of the constituency in the blank space in the  heading. Thereafter the proposer filled in the next part of the  form which has five columns, after the main part which says  that

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the  proposer  nominates  so  and  so  for  such  and   such constituency.  In this main part, the name of the  candidate and the name of the constituency 404 have  to  be filled in by the proposer.  In  the  particular form  with  which  we  are concerned now  the  name  of  the candidate was rightly filled in but the proposer instead  of putting  down the name of the constituency, namely  Dhanbad, put  down the name Bihar there.  So the proposal read as  if the  candidate  was being nominated for the  Bihar  Assembly constituency.  The only objection taken before the returning officer  was  that  the  proposer  had  not  mentioned   the constituency  for which he was proposing the  candidate  for election  and therefore the nomination ’form  was  defective and should be rejected.  This found favour with the  return- ing  officer, who rejected the nomination paper  as  already said,  on  the ground that the proposer  had  nominated  the candidate  for election for Bihar assembly constituency  and not Dhanbad assembly constituency.  It may be mentioned that it  is  no one’s case that there is  any  constituency  like Bihar assembly constituency.  It may also be mentioned  that this. was a bye-election and not a General Election; and the question  whether the nomination paper was rightly  rejected will have to be considered in this background. Now  s.  33(1) of the Act requires that a  nomination  paper completed in the prescribed form and signed by the candidate and  by an elector of the constituency as proposer shall  be filed  on or before the date appointed for  the  nomination. Section  33(4)  lays  down that 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  the  returning  officer  shall  permit   any clerical  or  technical  error in the  nomination  paper  in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral roll; and where necessary, direct that  any clerical  or  printing error in the said  entries  shall  be overlooked.  Section 36 then prescribes for the scrutiny  of nomination papers and sub-s. (2) (b) thereof lays down  that the nomination -paper shall be rejected if there has been  a failure to comply with any                             405 of  the provisions of s. 33.  But sub-s. (4) lays down  that the returning officer shall not reject any nomination  paper on  the ground of any defect which is not of  a  substantial character.   The  result  of these provisions  is  that  the proposer  and  the  candidate  are  expected  to  file   the nomination  papers  complete in all respects  in  accordance with  the prescribed form; but even if there is some  defect in the nomination paper in regard to either the names or the electoral  roll  numbers, it is the duty  of  the  returning officer  to satisfy himself at the time of the  presentation of the nomination paper about them and if necessary to allow them to be corrected, in order to bring them into conformity with  the  corresponding  entries  in  the  electoral  roll. Thereafter  on scrutiny the returning officer has the  power to  reject the nomination paper on the ground of failure  to comply  with any of the provisions of s. 33 subject  however to  this that no nomination paper shall be rejected  on  the ground  of  any  defect  which  is  not  of  a   substantial character. The main dispute in the High Court centered on the  question whether  the defect in this case on the ground of which  the

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returning  officer  rejected the nomination paper was  of  a substantial  character  or not.  Generally speaking  if  the nomination  paper does not disclose at all the name  of  the constituency  for  which the nomination has been  made,  the defect would be of a substantial character, for there  would then  be  no  way of knowing the constituency  for  which  a candidate is being nominated.  But there may be cases  where the  nomination  form shows the constituency for  which  the nomination is being made though there may be some defect  in filling up the form.  In such a case it seems to us that  if the nomination form discloses the constituency for which the nomination  is being made even though the form may not  have been properly filled in  that respect, the defect in filling the  form  would not be of a substantial character.   It  is true that in this case there was a defect in filling up  the blank by the proposer inasmuch as he wrote the word  "Bihar" before the words "assembly constituency" instead of 52 406 the word "Dhanbad", which he should have done; and if  there were  nothing else in the form to disclose the  constituency for  which  the nomination was being made there  would  have been a substantial defect in the nomination form which would justify  the returning officer in rejecting the  same.   But the  circumstances of the present case are rather  peculiar. We have already mentioned that the printed Hindi form  which was  used in this case printed the heading wrongly  inasmuch as  the  heading  was not in  accordance  with  the  heading prescribed  under  the Rules.  In the specimen form  in  the Rules,  the blank space is meant for the State in which  the election  is  being  held; but because  of  the  mistake  in printing  the  heading in this case, the blank  space  could only  be  filled up with the name of the  constituency,  and that was what was done.  This name was filled in  apparently by  the  candidate  himself and not by  the  proposer.   But equally clearly the name of the constituency was there  when the  proposer in his turn came to fill up that part  of  the form  which he had to fill.  It seems that the proposer  was thus  misled,  as the name of the constituency  was  already there  in  the  heading, to write the word  "Bihar"  in  the second  blank  space  in his proposal instead  of  the  word "Dhanbad"   to   indicate  the   constituency.    That   was undoubtedly  a  defect  in  the form as  filled  in  by  the proposer.    The  question  however  is  whether  in   these circumstances  it  can be called a defect of  a  substantial character   which  would  justify  the  rejection   of   the nomination  paper.  It seems to us that the defect  appeared partly  because of the mistake in the printing of the  Hindi form  which was supplied to the candidates for the  purposes of the nomination to this bye election.  The form however as put in clearly shows in the heading the particular  assembly constituency  for which the election was being  held.   Then follows  the part which has to be filled in by the  proposer and  there the proposer made a mistake in filling  the  word "Bihar"  instead  of the word "Dhanbad" in the  blank  space relating to the constituency.  Considering however that  the name  of the constituency was already there in the  heading, it would in our                             407 opinion be not improper in the circumstances of this case to say  that the proposer was nominating the candidate for  the constituency which was already mentioned in the heading.  It seems  to  us  therefore that in view of  the  mistake  that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was

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being  held was already in the heading, the mistake  of  the proposer  in  putting  in the word "Bihar"  instead  of  the "Dhanbad",  which resulted in a defect in the filling up  of the form was not of a substantial character and that it  was quite clear on the form in this case that the nomination was for  the  Dhanbad  assembly  constituency.   The   returning officer does not seem to have attached any importance to the name  of  the constituency in the heading in this  case  and also  seems  to have ignored the fact that this  was  a  bye election  to one constituency, when he came to consider  the defect  which undoubtedly was there in this respect  in  the nomination  paper.  We therefore agree with the  High  Court that in the peculiar circumstances created by the mistake in printing  the Hindi nomination form by the  Government,  the defect  which  has  occurred  in  this  case  is  not  of  a substantial  character  and  it was  quite  clear  that  the nomination  paper was for the Dhanbad assembly  constituency and was in consequence improperly rejected by the  returning officer. As  we have already said, this was the only ground on  which the nomination paper was challenged as defective before  the returning  officer;  but before the  election  tribunal  the appellant  also  contended  that the  nomination  paper  was defective  as  columns 2 and 5 of the part which has  to  be filled  in by the proposer were not properly filled  in  and were  defective; and it was urged that the defect there  was substantial  and  therefore  even  if  the  reason  for  the rejection of the nomination paper as given by the  returning officer was not substantial, these defects were  substantial and  the rejection should be upheld on the ground  of  these defects.  Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to be 408 filled in there.  Further according to the directions  given in  the form columns 2 and 5 should contain the name of  the constituency, the part of the electoral roll and the  serial number in that part.  The purpose of this provision is  that the  returning officer should be able readily to check  that the  proposer and the candidate are voters on the  electoral roll.   In the present case only the serial number  and  the house  number are mentioned in columns 2 and 5 and  not  the name  of  the  constituency  and the  number  of  the  part. Undoubtedly  therefore  there  was a  defect  in  these  two columns.   Apparently the constituency was the  same,  viz., Dhanbad, as will appear from the address given in column  4. No part number could be given as the electoral roll in  this particular case was not numbered by Parts.  The question  is whether  in these circumstances this defect can be called  a defect  of a substantial character.  In this  connection  we cannot  ignore the provisions of s. 33(4) of the Act,  which casts  a  duty on the returning officer to  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 roll and  gives  him the  power  to  permit the removal of  any  defect  in  this connection.   The  returning officer does not seem  to  have noted this defect in the form for if he had done so he would have  given  an  opportunity to the  proposer  to  make  the corrections.   It is true that the failure of the  returning officer  to  give this opportunity for correction  does  not mean  that  the  defect  can  be ignored,  if  it  is  of  a substantial  character.   But considering  the  purpose  for which  the electoral roll numbers are given, it  seems  that the  returning-officer found no difficulty in checking  that the  proposer  as well as the candidate was a voter  on  the

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electoral rolls.  The High Court in this connection referred to  the evidence of the respondent who stated that when  his nomination  paper was taken up for scrutiny,  the  returning officer  compared  the names in the  nomination  paper  with those  in the electoral rolls.  It seems therefore  that  in this  case  the  returning officer found  no  difficulty  in tracing the names of the proposer and the candidate                             409 in  the  electoral rolls and that is why  no  objection  was raised  before him as to the defect in columns 2 and  5.  In the circumstances it must be hold that the defect was of  an unsubstantial   character  and  would  not  result  in   the rejection   of  the  nomination  paper.   We  may  in   this connection  refer  to Karnail Singh  v.  Election  Tribunal, Hissar and Other8 (1), where this Court observed that it was quite clear on the evidence that there was no difficulty  in identifying the candidate and the candidate himself  pointed out  to the returning officer his own name in the  electoral rolls.   Therefore the defect in columns 2 and 5 was in  the circumstances  held  to  be a technical one  and  not  of  a substantial  character.  The principle of that case  in  our opinion  applies to the present case also, for there  is  no doubt here that the returning officer found no difficulty in identifying  the proposer as well as the candidate and as  a matter  of fact the evidence is that the  candidate  himself pointed out the place in the electoral rolls where his  name was entered.  We therefore agree with the High Court that in the circumstances of this case the defects in columns 2  and 5  were of an unsubstantial character and the  rejection  of the  nomination  paper  cannot be  upheld  on  this  further ground,  which  was  not even  urged  before  the  returning officer. We therefore dismiss the appeal.  In these circumstances  we pass no order as to costs. Appeal dismissed. (1) [1951] 10 E.L.R.  189. 410