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PETITIONER: RANJIT SINGH

       Vs.

RESPONDENT: PRITAM SINGH & ORS.

DATE OF JUDGMENT: 08/02/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1966 AIR 1626            1966 SCR  (3) 543  CITATOR INFO :  R          1970 SC2097  (229)  F          1988 SC1796  (8)

ACT: Representation  of  the People Act (43 of 1950),  s.  33(5)- Requirements of section-Copy of electoral roll whether to be filed  by  candidate  with  each  nomination  paper-Copy  of electoral roll of assembly constituency whether can be filed in  election for Parliament-’Part’, of electoral roll to  be filed-Filing of incomplete copy of ’part’ whether defect  of substantial character for the purpose of s. 36(4).

HEADNOTE: The appellant’s election to Parliament was challenged by the first respondent on the ground that the nomination papers of the  third  candidate, W, had been wrongly rejected  by  the returning  officer  and  this had  materially  affected  the result  of  the  election.  We had  filed  three  nomination papers  with  one only of which he had filed a copy  of  the electoral  roll  of the assembly constituency  in  purported compliance with s. 33(5) of the Representation of the People Act, 1950.  The nomination paper with which W had filed  the said copy was rejected on account of technical defects;  the other two were rejected because no such copy was filed with them.    The   Election   Tribunal   dismissed   the   first respondent’s petition holding that the returning officer had rightly rejected the nomination papers of W. The High  Court took  the  opposite view and set aside  the  election.   The appellant  came to this Court by certificate  and  contended that W had not complied with s. 33(5) because (i) under that section  a copy of the electoral roll must be produced  with every  nomination  paper,  (ii) W had filed a  copy  of  the electoral  roll of the assembly constituency and not of  the Parliamentary constituency, (iii) the copy produced was  not a  complete  copy of the relevant ’part’  of  the  electoral roll. HELD : (i) The returning officer was wrong in not looking at the  copy  of  the  electoral roll filed  with  one  of  the nomination  papers  filed by W when dealing with  the  other

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nomination  papers  filed by him.  Section  33(5)  does  not require that a copy must be filed with each nomination paper or  that any copy should be filed at all, for the  candidate is  given  the alternative to produce before  the  returning officer  such copy at the time of scrutiny.  The purpose  of filing  the copy is to ensure that the returning officer  is able  to check whether the candidate concerned is  qualified or not and that purpose would be effectively served even  if only  one  copy is filed with one nomination  paper  and  no copies  are  filed with the other nomination papers  by  the said candidate. [547 F-548 D] (ii) The electoral roll for a parliamentary constituency  is made  up  by stitching together the electoral rolls  of  the assembly  constituencies comprised therein.  Therefore if  a candidate files a copy of the electoral roll of an  assembly constituency  that copy is sufficient to show that he is  an elector   in  the parliamentary constituency in  which  that assembly constituency is included.  W had filed  copy of the assembly constituency in which he was recorded as an elector and  the  High Court was right in rejecting  the  contention based  on  the  fact  that  the copy  of  the  roll  of  the parliamentary constituency was not filed. [548 G, H] 544 (iii)     Under r. 5 of the Registration of Electors  Rules, 1960  it  is provided that "the roll shall be  divided  into convenient  parts  which shall be  numbered  consecutively". When a. 33(5) refers to a copy of the relevant parts of  the electoral  roll  it  means a part as defined  in  r.  5.  In producing  not  the  full part but only  a  portion  of  the electoral roll in which he was recorded as an elector W  did fail  to  comply  with  the requirements  of  s.  33(5).   A complete copy would carry the various amendments made in the roll  and  enable the returning officer to see  whether  the name of the candidate continued in the roll for the whole of the  relevant period.  The High Court was not right  in  its view  that  the production of an incomplete copy was  not  a defect  of  substantial  character  which  would  make   the nomination  paper  liable to be  rejected.   The  nomination papers  of W were rightly rejected by the returning  officer though for different reasons. [549 D; 551 E-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 459 of 1965. Appeal  by special leave from the judgment and  order  dated July 14, 1964 of the Punjab High Court in First Appeal  from Order No.1 E of 1964. Bishan  Narain, J. B. Dadachanji, O. C. Mathur and  Ravinder Narain, for the appellants. S. S. Shukla, for respondent No. 1. The Judgment of the Court was delivered by  Wanchoo,J.   This  is an appeal by special leave  from  the judgment of the Punjab High Court.  In the general  election held  in  1962  for Parliament (House of  the  People),  the appellant  was  elected  from  the  Sangrur   parliamentary. constituency.   Pritam Singh respondent was also one of  the contesting  candidates but lost in the election.   Thereupon he   filed  an  election  petition  against  the   appellant challenging  his  election on a number of grounds.   In  the present  appeal we are only concerned with one  ground,  and that was that the nomination papers of one of the candidates for  the ,election, namely, Wazir Singh, had  been  rejected improperly by the returning officer.  Wazir Singh had  filed three nomination papers; with one of them he had attached  a

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copy  of a part of the electoral roll.  He attached no  such copy  with  the  other  two  nomination  papers.   When  the nomination  papers were being scrutinised, an objection  was taken  to  the  validity  of  the  nomination  papers.   The returning  officer first took up the nomination  paper  with which a copy of part of the roll had been filed and rejected it  on  the  ground  that  the  name  of  the  parliamentary constituency  and the name of the village and  the  assembly constituency  and the part number of the electoral  roll  of the candidate was not mentioned also because the name of the parliamentary constituency (House of the People) of proposer was  not given.  After rejecting this nomination paper,  the returning  offices took up the other two  nomination  papers and rejected them on the ground that a copy of the electoral roll  of the constituency concerned or of the relevant  part thereof or a certified 545 copy  of the relevant entries had not been filed along  with these  nomination    papers.   It  may  be  added  that   the returning officer refused to look into the copy of the  part of  the  roll  which Wazir Singh had filed  along  with  his nomination  paper  which the returning officer  had  already rejected before-he took up the other nomination papers. The  main  contention  of respondent  Pritam  Singh  in  the election  petition was that the returning officer was  wrong in  not looking into the copy of the part of the roll  which had  been  filed with the first nomination  paper  of  Wazir Singh and that merely because that nomination paper had been rejected,  the  returning  officer was  not  precluded  from looking into the copy of the part of the roll which had been produced  with  that  nomination paper for  the  purpose  of scrutiny of the other two nomination papers.  The  appellant on  the other hand contended that the nomination papers  had been  rightly  rejected, and this contention  was  based  on three points raised on his behalf, namely-(i) that a copy of the  electoral roll of that constituency or a relevant  part thereof or a certified copy of the relevant entries of  such roll  should have been produced with each  nomination  paper separately;  (ii) in any case the copy produced should  have been  of  the  parliamentary constituency  and  not  of  the assembly  constituency; and (iii) that the copy produced  of the part of the roll was not a complete copy of the part and therefore  was not a compliance with the requirements of  s. 33  (5) of the Representation of the People Act, No.  43  of 1950, (hereinafter referred to as the Act). The Election Tribunal seems to have taken the view that  the copy  filed along with the first nomination paper could  not be looked into when the returning officer came to scrutinise the other nomination papers, even if it might be assumed  to be  a copy of the parliamentary electoral roll.  It  further held that even if the copy could be looked into, it was  not a  complete copy and therefore there was no compliance  with s.  33 (5) of the Act and in consequence the  Tribunal  held that  the returning officer was justified in  rejecting  the nomination  papers notwithstanding the provisions of  s.  36 (4) of the Act. Pritam  Singh  then went in appeal to the High  Court.   The High Court held that the returning officer was wrong in  not looking into the copy which had been produced along with the first  nomination paper, and that the copy produced,  though it was apparently of an assembly constituency, could also be taken to be a copy of the parliamentary roll.  Lastly on the question  whether the copy produced was a complete  copy  or not,  the High Court held that the copy  actually  produced, though  it  admittedly did not contain  certain  pages,  was

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sufficient  for  the purposes of s. 33 (5) of the  Act.   In this  view, the High Court held that one of  the  nomination papers of 546 Wazir  Singh was improperly rejected and in  consequence  of that the result of the election was materially affected.  It therefore  set  aside the election.  The High  Court  having refused  to  grant a certificate, the appellant  applied  to this Court for special leave which was granted; and that  is how the matter has come before us. The  same three points which were urged before the  Tribunal on  behalf of the appellant have been raised before us.   In the first place it is urged that the necessary copy required under  s.  33  (5) of the Act must be  produced  with  every nomination  paper,  and  that it is not  enough  where  more nomination papers than one are filed that a copy should have been filed with only one of them.  Secondly it is urged that the copy produced was of the assembly constituency while  it should have been of the parliamentary (House of the  People) constituency.   Lastly the argument is that in any case  the copy  produced was not complete and therefore there  was  no compliance with S. 33 (5) of the Act.  The returning officer therefore  was justified in rejecting the  nomination  paper under  S. 36 (2) (b) of the Act and that s. 36 (4)  did  not apply in the circumstances of the case.  We shall deal  with these points seriatim. Section  32 at the relevant time provided that  "any  person may be nominated as a candidate for election to fill a  seat if he is qualified to be chosen to fill that seat under  the provisions of the Constitution and this Act."-Section 4  (d) of  the Act requires that in the case of any other seat  for the House of the People besides those mentioned in cls. (a), (b)  and (c) of that section, a person has to be an  elector for any parliamentary constituency (House of the People)  to be  entitled  to  stand for election to  the  House  of  the People.   It  is with this qualification alone that  we  are concerned in the present appeal.  "Elector" is defined in s. (2) (e) of the Act as meaning "in relation to a constituency a person whose name is entered in the electoral roll of that constituency  for  the time being in force and  who  is  not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950." Therefore if  a person is an elector in a parliamentary (House of  the People)   constituency   and   is   not   subject   to   any disqualification  he can stand for election to the House  of the People from any constituency. Then  we  come to s. 33 (5).  The object of  this  provision obviously  is  to  enable the  returning  officer  to  check whether  the person standing for election is  qualified  for the  purpose.   The electoral roll of the  constituency  for which the returning officer is making scrutiny would be with him, and it is not necessary for a candidate to produce  the copy  of  the  roll of that  constituency.   But  where  the candidate  belongs  to another  constituency  the  returning officer  would not have the roll of that other  constituency with him and therefore the provision contained in S. 33  (5) has  been  made by the legislature to enable  the  returning officer to check that the candidate is qualified                             547 for  standing for election.  For that purpose the  candidate is  given  the  choice  either to  produce  a  copy  of  the electoral  roll  of  that  other  constituency,  or  of  the relevant part thereof or of a certified copy of the relevant entries  in  such roll before the returning officer  at  the time of the scrutiny, if he has not already filed such  copy

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with the nomination paper.  Naturally where the candidate is standing  for  a parliamentary constituency  (House  of  the People)  he  will have to file a copy of the  roll  of  some parliamentary  constituency.  The argument on behalf of  the appellant is that under the proviso to s. 33(6) a  candidate is  entitled  to  file  upto  four  nomination  papers   and therefore when s. 33(5) says that a copy would be filed with the  nomination  paper it requires that one copy  should  be filed  with each nomination paper and if that has  not  been done  there is no compliance with s. 33(5).   Section  33(5) does  not  require  that  a copy must  be  filed  with  each nomination   paper   for,  the  candidates  is   given   the alternative  to  produce before the returning  officer  such copy at the time of the scrutiny.  So the candidate need not file any copy with the nomination paper and it is enough  if he has a copy in his possession which he produces before the returning  officer  at the time of  the  scrutiny.   Further there  is  nothing  in s. 33(5) which  requires  that  if  a candidate  has (say) filed four nomination papers he  should have  four copies with him to produce before  the  returning officer  at  the  time of the scrutiny.   It  would  in  our opinion be enough if he has one copy with him at the time of the scrutiny and shows it again and again as each nomination paper is taken up for scrutiny by the returning officer.  We see  no  sense  in holding that. in  such  a  situation  the candidate  should  arm  himself with  four  copies  for  the purpose of showing the copy to the returning officer at  the time  of  scrutiny.   The same copy in our  opinion  can  be produced again and again before the returning officer as  he takes up the scrutiny of each of the nomination papers filed on  behalf  of  a  candidate.   If that  is  so  we  see  no difficulty  in  holding that where a  number  of  nomination papers have been filed and a copy has been filed with one of them,  that  is enough.  Again we see nothing  in  s.  33(5) which prevents a returning officer from looking at the copy filed with one nomination paper, even after that  nomination paper has been rejected or with a nomination paper which  is vending before him for scrutiny, when he comes to deal  with other  nomination  papers.   As we  have  said  before,  the purpose  of filing the copy is to ensure that the  returning officer is able to check whether the candidate concerned  is qualified  or  not  and that purpose  would  be  effectively served  even if only one copy is filed with  one  nomination paper  and  no copies are filed with  the  other  nomination papers.  It may be that for certain purposes each nomination paper stands by itself, but so far as filing of a copy  with a nomination paper under S. 33(5) is concerned, we must look at  the object behind the provision, and if that  object  is served by filing a copy with one nomi- 548 nation  paper,  we see no sense in requiring  that  where  a number of nomination papers are filed there should be a copy with  each, nomination paper.  There is nothing in s.  33(5) which  prevents,  them returning officer from looking  at  a copy filed with a nomination paper which has been  rejected, or  which  is  still to be scrutinised for  the  purpose  of satisfying  himself when he takes up the  other.  nomination papers  that the candidate is qualified to stand.   Nor  has any  rule  been  shown to us which  in  terms  prevents  the returning  officers from looking into a copy which has  been filed with a nomination paper (which might have already been rejected)  for the purpose of scrutinising other  nomination papers  of the same candidate.  If the purpose of  s.  33(5) can  be served by the production of one copy at the time  of scrutiny  when  it has not been filed  with  the  nomination

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paper, we do not see why that purpose could not be served by filing   a  copy  with  one  nomination  paper  where   more nomination  papers  than  one have been filed  by  the  same candidate.  We therefore agree with the High Court that  the returning officer was wrong in not looking at the copy filed with  one  nomination paper when he was dealing  with  other nomination papers of Wazir Singh. This brings us to the second point raised before us, namely, that  the copy filed was not of the parliamentary (House  of the  People) constituency but of the assembly  constituency. This  contention  also  has no force.  If  we  look  at  the Representation of the People Act, 1950 we find that Part III thereof provides for the preparation of electoral rolls  for assembly   constituencies.    So   far   as    parliamentary constituencies  (House of the People) are concerned, s.  13D provides  inter  alia  that the  electoral  roll  for  every parliamentary  constituency shall consist of  the  electoral rolls  of  so  much of the assembly  constituencies  as  are comprised  within  that parliamentary constituency;  and  it shall  not be necessary to prepare or revise separately  the electoral roll for any such parliamentary constituency.   It is   clear   therefore  that  the  electoral  roll   for   a parliamentary  constituency is no other than  the  electoral roll  for the assembly constituencies comprised within  that parliamentary  constituency.  It is not in dispute that  the electoral  roll for a parliamentary constituency is made  up by  stitching together the electoral rolls of  the  assembly constituencies comprised therein.  Therefore if a  candidate files   a  copy  of  the  electoral  roll  of  an   assembly constituency, that copy is sufficient to show that he is  an elector  in  the parliamentary constituency, in  which  that assembly  constituency is included.  The argument  that  the copy filed in the present case did not comply with s.  33(5) as it was not a copy of the parliamentary constituency  must therefore fail.  The copy was of an assembly constituency in this  case;  and  if the candidate was  an  elector  in  the assembly  constituency  he  would  be  an  elector  in   the parliamentary  (House  of  the  People)  constituency  which includes 549 that  assembly constituency.  The High Court  therefore  was right in rejecting the contention that the copy of the  roll of the parliamentary (House of the People) constituency  was not filed. This  brings  us to the last point raised on behalf  of  the appellant,  namely, that the copy filed was not  a  complete copy and therefore there was no compliance with s. 33(5)  of the Act.  It is not in dispute that the copy filed was not a complete  copy.  The appellant produced a complete  copy  of that  part of the roll and that showed that pages 19  to  22 and page 25 of that part of the roll were not filed by Wazir Singh.  Now s. 33 (5) gives three options to a candidate  in the  matter of filing a copy.  He may file either a copy  of the electoral roll which means a copy of the entire  electo- ral  roll  of  the  parliamentary  (House  of  the   People) constituency, or a copy of the relevant parts thereof, which means   the  whole  of  the  parts  concerned.   Under   the Registration  of Electors Rules, 1960 (hereinafter  referred to  as  the Rules), it is provided by r. 5  that  "the  roll shall  be  divided  into convenient  parts  which  shall  be numbered consecutively".  Therefore when s. 33(5) refers  to a  copy  of the relevant parts thereof, it means a  part  as defined  in r. 5 above.  Besides these two  alternatives,  a candidate has a third alternative, namely, the production of certified copies of the entries of his name and the name  of

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the  proposer  from  any roll.  In  the  present  case,  the candidate Wazir Singh chose the second alternative,  namely, he produced a copy of the relevant part thereof. The part in question  produced  in this case was part IV  of  the  Simla legislative   assembly   electoral  roll.    Section   33(5) therefore  required the candidate (namely, Wazir  Singh)  to produce  the whole of this part.  It is not in despute  that he  did not produce the whole of this part and the  question is  whether  his  failure  to do  so  would  result  in  the rejection of his nomination paper. To  decide  this question it is necessary to  refer  to  the Rules.   Rule  10 requires that "as soon as the Roll  for  a constituency  is  ready,  the  registration  officer   shall publish  it in draft by making a copy thereof available  for inspection and displaying a notice in form 5." Under r.  II, the  registration  officer  is  required  to  give   further publicity  to the roll and to the notice in form  5.  There- after r. 12 provides for claims for the inclusion of a  name in the roll and objections to an entry therein.  After  such claims  and  objections  have been  made,  the  registration officer  has to consider them under r. 18.  Under r. 19,  he gives  a hearing if necessary and thereafter he  orders  the inclusion  of names in the roll or exclusion of’ names  from the  roll under r. 20.  Then under r. 22,  the  registration officer has to prepare a list of amendments to carry out his decisions  under  ff. 18, 20 and 21 and he may  correct  any clerical   or   printing  errors   or   other   inaccuracies subsequently discovered in the roll.  He then publishes  the roll together with the list of 550 amendments  by making a complete copy thereof available  for inspection,  and  displaying a notice in form 16.   On  such publication  the roll together with the list  of  amendments shall be the electoral roll of the constituency. The  scheme  of these Rules therefore, is that  a  draft  is first  prepared.   Thereafter  claims  and  objections   are disposed of.  If any claim is admitted, the name is included in the roll, if any objection is allowed the name already in the  draft  roll  (or may be in  an  earlier  amendment)  is deleted.   This inclusion or deletion is made by  publishing amendments  to the roll and thereafter the draft roll  along with  one or more amendments becomes the electoral  roll  of the  constituency.  It will be seen from this that  where  a name is excluded on an objection being allowed, the name  is not scored out.  What the rule provides is that deletion  of a  name from a draft or even from an earlier amendment  made by  inclusion by the registration officer, is  included  in the  list of amendments published Under r. 23, an appeal  is allowed  from  any  decision  of  the  registration  officer including  a  name or excluding a name, so  that  where  the registration  officer includes a name after hearing a  claim that  is subject to an appeal and the appellate officer  may reject  the  claim  whereupon  the  amendment  made  by  the registration  officer by including a name may fall  through. Under  sub  r. (5) of r. 23 of the Rules,  the  registration officer  is given power to cause such amendments to be  made in  the  roll  as may be necessary to  give  effect  to  the decisions of the appellate officer.  This shows that when S. 33 (5) requires that a copy of the relevant part of the roll may  be filed or produced the copy is to be a complete  copy along with all amendments, for it may be that even though  a name  may  be  included  in  the  first  amendment  by   the registration  officer  it  may be  excluded  in  the  second amendment if the appellate officer has rejected the claim. We  have already said that the object of producing the  copy

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under  s. 33(5) is to enable the returning officer to  check whether the candidate and the proposer are qualified or not, one  for  the  purpose of standing and  the  other  for  the purpose of proposing.  In order to check this, the returning officer must have a complete copy of the relevant part.   If the  copy is not a complete copy it is possible that a  name which  may have been included in the draft or in  the  first amendment  may  have been excluded in the  second  amendment made  on  the basis of an order of  the  appellate  officer. Therefore to enable the returning officer to decide whether, a candidate,date is qualified to stand or whether a proposer is qualified to propose he must have a complete copy of  the relevant  part of the. roll.  If he has not a complete  copy he  will not be able to decide whether the candidate or  the proposer  has the necessary qualification.  In  the  present case it is not in dispute that Wazir Singh did not produce a complete copy of Part IV of the roll.  Part IV consisted                             551 of  25 pages; of these Wazir Singh did not produce pages  19 to  22  and page 25.  Page 25 as appears from  the  complete copy  of the roll filed by the appellant contained a  second list of amendments.  It is true that Wazir Singh’s name  did appear  in the first amendment at No. 1853; but that  as  we have  already  shown  was  not  conclusive  for  the  second amendment  which  was not produced might have  deleted  that name.  Therefore the copy produced by Wazir Singh not  being complete was not sufficient to enable the returning  officer to  decide whether he was qualified to stand or not for  his name  might  have  been  deleted  in  the  second  list   of amendments  in which case he would not have been  qualified. It  is  true that in actual fact it appears  from  the  copy which was produced by the appellant before the Tribunal that Wazir  Singh’s  name was not deleted in the second  list  of amendments;  but that appears from the copy produced by  the appellant before the Tribunal and not from the copy produced by Wazir Singh before the returning officer.  Section  33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that pur- pose  a  copy produced by the candidate should  be  complete whether  it is of the roll or of the relevant part  thereof. To such a case S. 36(4) has no application.  That  provision is to the effect that the returning officer shall not reject any  nomination paper on the ground of any defect  which  is not of a substantial character.  But the non-production of a complete  copy  of  the relevant part in our  opinion  is  a defect of a substantial character for it makes it impossible for the returning officer to decide whether the candidate  s qualified  or not.  Qualification for standing for  election is  a matter of substantial character.  We are therefore  of opinion  that  the High Court was not right in the  view  it took  that  the  production of an  incomplete  copy  of  the relevant  part was not a defect of a  substantial  character which would make the nomination paper liable to be rejected. The fact that the returning officer rejected the  nomination paper  on some other ground is of no consequence.  If  there was  in  truth a defect of a substantial  character  in  the matter  of compliance with s. 33 of the Act, the  nomination paper was liable to be rejected, and if it was so  rejected, rejection would be proper whatever may have been the  reason given by the returning officer.  In the present case we  are of  the  opinion  that  the production  of  a  copy  of  the electoral  roll  which  is  incomplete  is  a  defect  of  a substantial character.  This defect will invalidate all  the nomination papers.The nomination papers of Wazir Singh  were rightly  rejected by the returning officer, though  he  gave

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different reasons for doing so. The  appeal  therefore succeeds and is hereby  allowed  with costs.   The election petition is dismissed.  Pritam  Singh, respondent, will pay the costs.                                       Appeal allowed. 552