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PETITIONER: SRI BARU RAM

       Vs.

RESPONDENT: SHRIMATI PRASANNI & OTHERS

DATE OF JUDGMENT: 30/09/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SARKAR, A.K.

CITATION:  1959 AIR   93            1959 SCR  Supl. (1)1403  CITATOR INFO :  R          1964 SC1545  (9)  O          1965 SC 669  (9)  RF         1968 SC1500  (4)  F          1974 SC 951  (6)  R          1979 SC1148  (4)  F          1988 SC1706  (7)

ACT: Election  Petition-Corrupt Practice-Procuring assistance  Of Government  servant  by appointing as  Polling  agent-Proof- Nomination  paper, rejection of-Failure to produce  copy  of electoral roll -If rejection improper-Representation of  the People  Act,  195I (43 Of 1951), SS. 2(C), 33,  36,  46  and 123(7).

HEADNOTE: The first respondent filed an election petition against the 1404 appellant on the grounds: (i) that he committed the  corrupt practice specified in s. 123(7) Of the Representation of the People Act, 195I inasmuch as he had obtained the  assistance of one P, a member of the armed forces, who had acted as his polling agent and (ii) that the nomination of one J had been improperly   rejected  by returning officer.   The  election tribunal  held that the corrupt practice was not proved  but that  the nomination of J had been improperly  rejected  and consequently it declared the election of the appellant to be void.  On appeal the High Court held that the nomination  of J was not improperly rejected but that the corrupt  practice alleged was established and dismissed the appeal.  The  High Court found that P had signed the form a pointing him as the appellant’s  polling agent and had presented it  before  the presiding officer, that P was seen at the polling booth  and that  the  scribe who wrote this form had also  written  the form  by which the appellant had appointed  another  polling agent.   From these circumstances the- High Court  drew  the inference that the appellant had appointed P as his  polling agent  and  had  in fact signed the form in  token  of  such appointment.    With  respect  to  the  rejection   of   the nomination of J the High Court held that J was a voter in  a different  constituency and that he had failed to produce  a

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copy of the electoral roll when he presented the  nomination paper,  nor was it produced at the time of the  scrutiny  or within  the  time given by the returning  officer  and  that consequently the nomination was properly rejected. Held, that to establish that the appellant was guilty of the corrupt practice charged it was not sufficient to show  that P had acted as his polling agent but it must also be  proved that  the  appellant had appointed P as his  polling  agent. This  fact the first respondent had failed to prove  by  any legal  evidence.  The facts and circumstances found  by  the High  Court did not inevitably lead to the  conclusion  that the  appellant  had  signed  the  form  and  hence  such  an inference could not be drawn. Held,  further, that the nomination of J was not  improperly rejected.   Where a candidate is an elector of  a  different constituency  he  has  to  prove that  fact  in  the  manner prescribed  by s. 33(5) by the production of a copy  of  the electoral roll of that constituency or of the relevant  part thereof  or  of  a certified copy of  the  relevant  entries thereof.  In the present case there was failure on the  part of J to comply with s. 33(5) and his nomination was properly rejected  under s. 36(2)(b).  The failure to comply with  s. 33(5) is not a defect of an unsubstantial character so as to attract  the  application  Of s. 36(4).   When  the  statute requires  specific facts to be proved in a specific way  and it also provides for the consequences of non-compliance with the  said requirement the application of the penalty  clause cannot  be resisted on the ground that such  application  is based on a technical approach. jagan Nath v. jaswant Singh, [1954] S.C.R. 892; Rattan 1405 Anmol Singh v. Atma Ram, [1955] S.C.R. 481 and Pratap Singh v.   Shri Krishna Gupta, A.I.R. 1956 S.C. 140, referred to. Mohan  Reddy v. Neelagiri Muralidhar Rao, A.I.R.  1958  A.P. 485, not approved.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  P  409  of 1958. Appeal  by special leave from the judgment and  order  dated May  13,  1958, of the Punjab High Court  at  Chandigarh  in First Appeal from Order No. 24 of 1958. C.   B. Aggarwala and Naunit Lal, for the appellant. H.   S. Doabia, K. R. Chaudhury and M. K. Ramamurty, for the respondent No. 1. 1958.   September  30.   The  Judgment  of  the  Court   was delivered by GAJENDRAGADKAP.   J.-This appeal by special leave  has  been filed  against  the  decision  of  the  Punjab  High   Court confirming  the  order passed by the  Election  Tribunal  by which the appellant’s election has been declared to be void. The  appellant  Shri  Baru Ram was  elected  to  the  Punjab Legislative  Assembly from the Rajaund constituency  in  the Karnal  District.  Initially seventeen candidates had  filed their nomination papers in this constituency.  Out of  these candidates, thirteen withdrew and the nomination paper filed by Jai Bhagawan was rejected by the returning officer.  That left three candidates in the field.  They were the appellant Baru  Ram,  Mrs. Prasanni and Harkesh, respondents 1  and  2 respectively.  The polling took place on March 14, 1957, and the  result was declared the next day.  Since the  appellant had secured the largest number of votes he was declared duly elected.  Soon thereafter Mrs. Prasanni, respondent 1, filed

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an election petition in which she alleged that the appellant had  committed  several  corrupt  practices  and  claimed  a declaration  that  his  election was  void.   The  appellant denied  all  the  allegations  made  by  respondent  1.  The election  tribunal first framed six preliminary  issues  and after  they were decided, it -raised twenty-nine  issues  on the merits.  The tribunal was not 1406 satisfied with the evidence adduced by respondent I to prove her   allegations  in  respect  of  the  corrupt   practices committed  by  the  appellant and so  it  recorded  findings against  respondent  1 on all the issues in  regard  to  the said  corrupt practices.  Respondent I had  also  challenged the validity of the appellant’s election on the  ground that the returning officer had improperly rejected the nomination paper  of  Jai  Bhagawan.  This point  was  upheld.  by  the election  tribunal  with  the result  that  the  appellant’s election was declared to be void. The  appellant then preferred an appeal to the  Punjab  High Court.   He  urged before the High Court that  the  election tribunal  was in error in coming to the conclusion that  the nomination  paper  of  Jai  Bhagawan’  had  been  improperly rejected.   This contention was accepted by the  High  Court and the finding of ’the tribunal on the point was  reversed. Respondent  1  sought to support the order of  the  election tribunal  on the ground that the tribunal was not  justified in  holding that the appellant was not guilty of  a  corrupt practice  under  s.  123(7)(c).   This  argument  was   also accepted  by  the  High  Court and  it  was  held  that  the appellant  was  in fact guilty of the said  alleged  corrupt practice.  In the result, though the appellant succeeded  in effectively  challenging  the only finding recorded  by  the tribunal  against  him, his appeal was not  allowed  because another finding which was made by the tribunal in favour  of the appellant was also reversed by the High Court.  That  is why   the  order  passed  by  the  tribunal  declaring   the appellant’s  election to be void was confirmed though  on  a different  ground.   It is this order  which  is  challenged before  us by Mr. Aggarwal on behalf of, the  appellant  and both the points decided by the High Court are raised  before us by the parties. At the hearing of the appeal Mr. Doabia raised a preliminary objection.   He  contends that the present appeal  has  been preferred beyond time and should be rejected on that  ground alone.   The judgment under appeal was delivered on May  13, 1958, and the petition for leave to appeal under Art. 136 of the Constitution                      1407 has  been  filed in this Court on September 2, 1958.  It  is common ground that the appellant had appliedfor  leave   to the Punjab High Court on June 9, 1958,and his  application was dismissed on August 22, 1958.If  the time occupied  by the appellants application for leave is taken into  account, his appeal would be in time; on the other hand, if the  said period  is not taken into account, his application would  be beyond  time.  Mr. Doabia argues that the proceedings  taken on an election petition are not civil proceedings and so  an application for leave under Art. 133 of the Constitution was incompetent;  the  time taken in the disposal  of  the  said application  cannot  therefore  be  taken  into  account  in computing the period of limitation.  On the other hand,  Mr. Aggarwal urges that s. 116A (2) of the Representation of the People  Act  (43  of  1951)  (hereinafter  called  the  Act) specifically  provides  that the High Court, in  hearing  an appeal   presented  to  it  shall  have  the  same   powers,

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jurisdiction  and  authority and follow the  same  procedure with respect to the said appeal as if it were an appeal from an  original decree passed by a civil court situated  within the  local limits of its civil appellate jurisdiction.   The result  of  this  provision is to  assimilate  the  election proceedings coming before the High Court in appeal to  civil proceedings as contemplated by Art. 133 of the  Constitution and  so,  according  to him, it was not  only  open  to  the appellant   but  it  was  obligatory  on  him  to  make   an application  for  leave to the Punjab High Court  under  the said  article.   That is why the time occupied by  the  said proceedings  in  the Punjab High Court must be  excluded  in deciding  the question of limitation.  We do not propose  to deal  with  the  merits of these  contentions.   It  is  not seriously  disputed by Mr. Doabia that parties aggrieved  by orders passed by High Courts in appeals under s. 116A of the Act  generally  apply for leave under Art. 133 and  in  fact such  applications  are entertained and  considered  on  the merits  by them.  It is true that Mr. Doabia’s  argument  is that  this  practice is erroneous and that Art. 133  has  no application  to  the appellate decision of  the  High  Court under s. 116A 179 1408 of the Act.  Assuming that Mr. Doabia is right, it is  clear that the appellant has merely followed the general  practice in this matter when he applied for leave to the Punjab  High Court; his application was   entertained,  considered on the merits  and  rejected  by  the  High  Court.   Under   these circumstances  we think  that even if we were to  hold  that Art.  133 has no application, we would  unhesitatingly  have excused  the delay made in the presentation of  the  appeal; and so we do not think we can throw out the appeal in limine on  the ground of limitation.  If necessary we would  excuse the  delay  alleged  to have been made  in  presenting  this appeal. On the merits, Mr. Aggarwal contends that the finding of the High  Court  that  the appellant  has  committed  a  corrupt practice  under  s.  123(7)(c)  is  not  supported  by   any evidence.   Before  dealing with this argument it  would  be relevant  to  consider  the legal position  in  the  matter. Corrupt  practice as defined in s. 2(c) of the Act  means  " any  of  the  practices  specified  in  s.  123  ".  Section 123(7)(c)   provides  inter  alia  that  the  obtaining   or procuring or abetting or attempting to obtain or procure  by a candidate any assistance other than giving of vote for the furtherance  of the prospects of that  candidate’s  election from any person in the service of the Government and who  is a  member  of the armed forces of the Union,  is  a  corrupt practice.   The  case against the appellant as  set  out  by respondent 1 in her election petition on this point is  that the appellant secured the assistance of Puran Singh who is a member  of  the armed forces of the Union.  It  was  alleged that  Puran Singh " actively canvassed for the appellant  on March 11th to 13th, 1957, in his village and so much so that he subsequently served as his polling agent at polling booth No.  15  at  village Kotra on March 14,  1957  ".  Both  the tribunal  and the High Court are agreed in holding  that  it had not been proved that Puran Singh actively canvassed  for the appellant on March 11th to 13th as alleged by respondent 1.  They  have,  however, differed on  the  question  as  to whether  the  appellant  had appointed Puran  Singh  as  his polling agent for the 1409 polling  booth in question.  It would thus be seen that  the

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point  which  falls for our decision in the  present  appeal lies within a very narrow compass.  Did the appellant secure the  assistance  of  Puran Singh by appointing  him  as  his polling agent ? Going back to s. 123, explanation (2) to the said  section provides that " for the purpose of cl.  (7)  a person shall be’ deemed to assist in the furtherance of  the prospects  of  a  candidate for election if he  acts  as  an election agent or polling agent or a counting agent of  that candidate  ". In other words, the effect of explanation  (2) is  that  once  it is shown that Puran Singh  had  acted  as polling  agent  of the appellant, it would follow  that  the appellant   had  committed  a  corrupt  practice  under   s. 123(7)(c).  But it is important to bear in mind that  before such  a conclusion is drawn the provisions of s. 46  of  the Act  must  be taken into account.  Section 46  authorises  a contesting  candidate  to appoint in the  prescribed  manner such number of agents and relief agents as may be prescribed to  act as polling agents of such candidate at each  polling station  provided  under s. 25 or at the place  fixed  under subs.  (1)  of s. 29 for the poll.  There can  be  no  doubt that,  when  explanation (2) to s. 123 refers  to  a  person acting  as a polling agent of a candidate,  it  contemplates the  action  of the polling agent who is duly  appointed  in that behalf by the candidate under s. 46. It is only when it is shown that a person has been appointed a polling agent by the candidate and has in consequence acted as such agent for the  said  candidate that explanation (2)  would  come  into operation.   If, without being appointed as a polling  agent by   the  candidate,  a  person  fraudulently,  or   without authority,  manages to act as the polling agent of the  said candidate, explanation (2) would not apply.  That being  the true  legal  position the short point which arises  for  our decision is whether the appellant had appointed Puran  Singh as  his polling agent and whether Puran Singh acted as  such polling agent at the polling booth No. 15 at Kotra. What  then  are the facts held proved by the High  Court  in support of its conclusion against the appellant 1410 under  s.  123(7)(c) ? The first point which  impressed  the High  Court  is  in  respect of the  writing  by  which  the appellant  is alleged to have appointed Puran Singh  as  his polling  agent.   The  printed  prescribed  forms  were  not available  to  the candidates and so they had  to  copy  the prescribed form for the purpose of appointing their  polling agents.   This position is not disputed.  The form by  which Puran   Singh  is  alleged  to  have  been   appointed   the appellant’s polling agent contains a glaring mistake in that while reciting that the polling agent agreed to act as  such polling  agent  the  form  says " I agree  to  act  as  such following  agent " (P.  W. 48/1).  The same glaring  mistake is to be found in the form by which the appellant admittedly appointed Pal Chand to act as his polling agent at the  same polling booth.  The High Court thought that the identity  of this  glaring  mistake in both the forms  coupled  with  the similarity of the handwriting of the rest of the writing  in them showed that the two forms must have been written by the same  scribe.   This  is a finding of fact  and  it  may  be accepted  as  correct for the purpose of our  decision.   It would,  however,  be relevant to add that it is not  at  all clear  from  the record that the same scribe  may  not  have written  similar forms for other candidates as well.   There is no evidence to show that the scribe who made this glaring mistake  had  been  employed  as  his  own  scribe  by   the appellant. The High Court was also disposed to take the view that Puran

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Singh  in fact had acted as the polling agent on the day  of the  election at the said polling booth.  Respondent  1  had examined  herself  in support of this plea and  Banwari  Lal whom  she  examined  supported  her  in  that  behalf.   The tribunal  was  not impressed by the evidence  of  these  two witnesses; and it has given reasons for not accepting  their evidence  as  true  or  reliable.   It  is  unnecessary   to emphasize  that, in dealing with an appeal under s. 116A  of the  Act, High Courts should normally attach  importance  to the findings of fact recorded by the tribunal when the  said findings  rest solely on the appreciation of oral  evidence. The judgment of the High Court does not show that 1411 the  High Court definitely accepted the evidence of the  two witnesses as reliable; in dealing with the question the High Court  has  referred  to  this  evidence  without  expressly stating whether the evidence was accepted or not; but it may be  assumed that the High Court was disposed to accept  that evidence.  In this connection, we would like to add that  it is difficult to understand why the High Court did not accept the  criticism  made  by  the  tribunal  against  these  two witnesses.   If  we  consider  the  verifications  made   by respondent  I in regard to the material allegations on  this point both in her petition and in her replication, it  would appear  that she had made them on information  received  and not as a result of personal knowledge; that being so, it  is not  easy  to accept her present claim that  she  saw  Puran Singh  working  as  polling  agent;  but  apart  from   this consideration,  the  evidence  of  respondent  1,  even   if believed,  does not show that Puran Singh was working  as  a polling  agent  of  the appellant ;  and  the  statement  of Banwari Lal that Puran Singh was working as the  appellant’s polling  agent  loses  much  of its force  in  view  of  his admission that he had no knowledge that Puran Singh had been appointed  by the appellant as his polling agent.  Even  so, we  may  assume, though not without hesitation,  that  Puran Singh  did  act as appellant’s polling agent as  alleged  by respondent 1. in dealing with this question the High Court appears to have been considerably influenced by the statement made by  Jangi Ram  whom  the  appellant  had  examined.   In  his   cross- examination, Jangi Ram stated that Jagtu and Pal Chand  were the  agents of Shri Baru Ram, but he added that Puran  Singh was not at the polling booth.  It may be mentioned that  the appellant’s case was that he had appointed only one  polling agent  at Kotra; and this allegation, according to the  High Court, was disproved by the statement of Jangi Ram  inasmuch as  he  referred  to  two polling  agents  working  for  the appellant.  In considering the effect of this statement, the High  Court  has failed to take into  account  the  positive statement  of  the witness that Puran Singh was not  at  the polling 1412 station at all.  The evidence of the witness may be rejected if  it appears to be unreliable; but if it is  accepted,  it would not be fair to accept it only in part and to hold that two  polling agents had been appointed by the appellant  one of whom was Puran Singh.  There is another serious infirmity in the inference -drawn by the High Court from the statement of  Jangi Ram ; that is that Jagtu to whom the  witness  has referred as a polling agent of the appellant appears in fact to  have acted as a polling agent of Harkesh, respondent  2. Jhandu, another witness examined by the appellant has stated so  on  oath and his statement has not  been  challenged  in cross-examination.  Thus, reading the evidence of Jhandu and

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Jangi  Ram, it would be clear that Jangi Ram was right  when he said that Jagtu was acting as a polling agent but he  was wrong  when he thought that Jagtu was the polling  agent  of the appellant.  If the attention of the High Court had  been drawn to the unchallenged statement of Jhandu on this point, it  would probably not have drawn the inference  that  Jangi Ram’s  evidence supports the case of respondent I about  the appointment of Puran Singh as the appellant’s polling agent. The next’ circumstance on which reliance has been placed  in the  judgment  of  the High Court is that  Puran  Singh  has signed  the  prescribed form appointing him as  the  polling agent  and  he  must  have presented  it  to  the  returning officer.   The  prescribed form requires  that  a  candidate appointing  his polling agent and the polling agent  himself should  sign the first part of the form.  Then  the  polling agent is required to take the form to the returning officer, sign  in  token of his agreeing to work as a  polling  agent before  the  said officer and present it to him.   The  High Court  has found that Puran Singh must have signed the  form and  presented  it  as required by  law.   Puran  Singh  was examined by respondent 1; but when he gave evidence, he  was allowed  to be treated as hostile and cross-examined by  her counsel.   Puran  Singh  denied that he  had  acted  as  the appellant’s  polling agent and that he had signed  the  form and  presented  it to the returning officer.   It,  however, appears that Chand                      1413 Jamadar  to  whose  platoon Puran  Singh  is  attached  gave evidence  that the signature of Puran Singh on the  form  in question  (P.W. 48/1) appeared to be like the signatures  on acquittance rolls which had been admittedly made by him.  On the same question hand writing experts were examined by both the parties.  Mr. Om Parkas was examined by respondent I and he  stated that he had compared the admitted  signatures  of Puran Singh with the disputed signature and had come to  the conclusion  that  Puran Singh must have  made  the  disputed signature.  On the other hand, Mr. Kapur whom the  appellant examined gave a contrary opinion.  The tribunal thought that in  view  of  this  conflicting evidence  it  would  not  be justified  in finding that Puran Singh had signed the  form. The High Court has taken a contrary view.  Mr. Aggarwal  for the  appellant contends that the High Court was in error  in reversing the finding of the tribunal on this point.   There may  be  some force in this contention ; but we  propose  to deal  with this appeal on the basis that the finding of  the High Court on this question is right.  The position thus  is that,  according to the High Court, Puran Singh  signed  the form  appointing him as the appellant’s agent and  presented it before the officer.  Puran Singh was seen at the  polling booth  and  the scribe who wrote the form in  question  also wrote the form by which the appellant appointed Pal Singh as his polling agent at the same booth.  The High Court thought that  from  these circumstances it would  be  legitimate  to infer  that the appellant had appointed Puran Singh  as  his polling  agent and had in fact signed the form in  token  of the said appointment.  It is the correctness of this finding which is seriously disputed by Mr. Aggarwal before us. It  is significant that from the start the parties  were  at issue  on  the question as to whether Puran Singh  had  been appointed  by  the appellant as his polling  agent;  and  so respondent 1 must have known that she had to prove the  said appointment  in order to obtain a finding in her  favour  on issue  29 under s. 123 (7)(c) of the Act.  Respondent  I  in fact led evidence to prove the signature of Puran Singh  but no attempt

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1414 was  made by her to prove the signature of the appellant  on the  said form.  The appellant had specifically denied  that he  had appointed Puran Singh as his polling agent and  when he  stepped into the witness  box he stated on oath that he had  not  signed  any  form in  that  behalf.   Under  these circumstances, it was clearly necessary for respondent I  to examine   competent  witnesses  to  prove  the   appellant’s signature  on  the form.  It is true  that  the  appellant’s signature on the form appears to have been overwritten,  but it  is  only the expert who could have  stated  whether  the overwriting  in question made it impossible to  compare  the said   signature  with  the  admitted  signatures   of   the appellant.  It appears that after the whole of the  evidence was  recorded, respondent woke up to this infirmity  in  her case  and applied to the tribunal for permission to  examine an  expert  in that behalf.  This application  was  made  on February  6,  1958; and the only explanation given  for  the delay  in  making  it was that it was  after  the  appellant denied his signature on oath that respondent I realized  the need  for examining an expert.  The tribunal  rejected  this application and we think rightly.  In its order the tribunal has  pointed  out  that  respondent  I  had  been  given  an opportunity  to  examine  an expert and if  she  wanted  her expert  to  give evidence on the alleged  signature  of  the appellant  her  counsel  should  have  asked  him   relevant questions when he was in the witness box.  Thus the position is  that there is no evidence on the record to  support  the case of respondent I that the said alleged signature has  in fact been made by the appellant.  The only relevant evidence on the record is the statement of the appellant on oath that he had not signed the form in question. Mr. Doabia fairly conceded that there was no legal  evidence on  this  point; but his argument was that  from  the  other findings  of  fact recorded by the High Court  it  would  be legitimate  to  infer that the appellant had made  the  said signature.   In  our  opinion  this  contention  is   wholly untenable.   It  must be borne in mind that  the  allegation against  the  appellant is that he has committed  a  corrupt practice and a finding 1415 against him on the point would involve serious consequences. In  such a case, it would be difficult to hold  that  merely from  the  findings recorded by the High Court it  would  be legitimate  to infer that the appellant had signed the  form and had in fact appointed Puran Singh as his polling  agent. Mr. Doabia argues that it is not always absolutely necessary to  examine  an expert or to lead other  evidence  to  prove handwriting.   It would be possible and legal, he  contends, to  prove  the handwriting of a person  from  circumstantial evidence.   Section 67 of the Indian Evidence  Act  provides inter alia that if a document is alleged to be signed by any person   the  signature  must  be  proved  to  be   in   his handwriting.   Sections  45  and 47 of the said  Act  (I  of 1872),  prescribe the method in which such signature can  be proved.  Under s. 45, the opinion of the handwriting experts is  relevant  while under s. 47 the opinion  of  any  person acquainted with the handwriting of the person who is alleged to have signed the document is admissible.  The  explanation to  the  section explains when a person can be  said  to  be acquainted  with the handwriting of another  person.   Thus, there can be no doubt as to the manner in which the  alleged signature  of  the  appellant could  and  should  have  been proved;  but  even  assuming  that  the  signature  of   the appellant can be legally held to be proved on circumstantial

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evidence  the  principle which governs the  appreciation  of such circumstantial evidence in cases of this kind cannot be ignored.   It  is only if the court is  satisfied  that  the circumstantial evidence irresistibly leads to the  inference that the appellant must have signed the form that the  court can  legitimately reach such a conclusion.  In our  opinion, it is impossible to accede to Mr. Doabia’s argument that the facts  hold proved in the High Court inevitably lead to  its final  conclusion that the appellant had in fact signed  the form.  It is clear that in reaching this conclusion the High Court did not properly appreciate the fact that there was no legal  evidence on the point and that the other facts  found by it cannot even reasonably support the 180 1416 case  for  respondent  1. We must  accordingly  reverse  the finding  of the, High Court and hold that respondent  I  has failed  to prove that the appellant had committed a  corrupt practice under s. 123(7)(c) of the Act. This  finding,  however,  does not finally  dispose  of  the appeal  because Mr. Doabia contends that the High Court  was in  error  in reversing the tribunal’s conclusion  that  the nomination  paper  of  Jai  Bhagawan  had  been   improperly rejected.  Mr. Aggarwal, however, argues that it is not open to respondent I to challenge the correctness of the  finding of  the  High  Court  on this  point.   In  support  of  his objection,  Mr. Aggarwal has referred us to the decision  of this Court in Vashist Narain Sharma v. Dev Chandra (1).   In this case, when the respondent, having failed on the finding recorded  by the tribunal in his favour, attempted to  argue that he could support the decision of the tribunal on  other grounds  which had been found against him, this  Court  hold that  he  was not entitled to do so.  The provision  of  the Code  of  Civil Procedure which permits  the  respondent  to adopt such a course, it was observed, has no application  to an  appeal filed by special leave under Art. 136.  "We  have no appeal before us on behalf of the respondent ",  observed Ghulam Hasan J. "  and we are unable to allow  that question to be reagitated ". Mr. Doabia challenges the correctness of these  observations.  He relies on s. 116A of the Act  which empowers  the  High  Court  to  exercise  its  jurisdiction, authority  and power, and to follow the same  procedure,  as would  apply to appeals preferred against  original  decrees passed by a civil court within the local limits of its civil appellate  jurisdiction.   There  is no doubt  that,  in  an ordinary  civil appeal, the respondent would be entitled  to support the decree under appeal on grounds other than  those found  by the trial court in his favour.  Order 41, rule  22 of the Code of Civil Procedure, which permits the respondent to file crossobjections recognize the respondent’s right  to support the decree on any of the grounds decided against him by the court below.  In the present case no appeal (1)[1955] 1 S.C.R. 509. 1417 could  have been preferred by respondent I because  she  had succeeded in obtaining the declaration that the  appellant’s election was void and it should therefore be open to her  to support the final conclusion of the High Court by contending that  the  other finding recorded by the  High  Court  which would  go  to the root of the matter  is  erroneous.   Prima facie there appears to be some force in this contention; but we  do  not think it necessary to decide this point  in  the present  appeal.   Mr.  Aggarwal’s  objection  assumes  that respondent  I should have preferred a petition  for  special leave to appeal against the finding of the High Court on the

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issue  in question; if that be so, the application  made  by her  for leave to urge additional grounds can  be  converted into a petition for special leave to appeal against the said finding,  and  the  delay made in filing  the  same  can  be condoned.   As  in  the case of  the  preliminary  objection raised  by respondent 1 against the appellant on the  ground of limitation, so in the case of the objection raised by the appellant  against  respondent I in this  matter,  we  would proceed on the basis that we have condoned the delay made by respondent  1 in preferring her petition to this  Court  for leave  to challenge the finding of the High Court  that  the nomination form of Jai Bhagawan had been properly  rejected. That  is why we have allowed Mr. Doabia to argue this  point before us.  We may add that the two points of law raised  by the respective objections of both the parties may have to be considered by a larger Bench on a suitable occasion. On  the  merits,  Mr. Doabia’s case is  that  the  returning officer  was  not  justified  in  rejecting  Jai  Bhagawan’s nomination under s. 36(2)(b) of the Act.  The facts on which this contention is raised are no longer in dispute.  Mr. Jai Bhagawan who presented his nomination paper to the returning officer  on January 29, 1956, was admittedly not an  elector in  the constituency of Rajaund in the District  of  Karnal. It  is alleged that he was a voter in another  constituency. When his nomination paper was presented, he did not  produce a copy of the electoral roll of the said constituency or  of the relevant part thereof or a certified copy of the 1418 relevant entries in the said roll; nor did he produce any of these documents on the first of February which was fixed for scrutiny  of  the  nomination papers.   When  the  returning officer  noticed  that the candidate had not   produced  the relevant  document, he gave him, at his request,  two  hours time  to  produce it.  The candidate failed to  produce  the document within the time allowed and thereupon the returning officer rejected his nomination paper tinder s. 36 (2)(b) of the  Act.   It  is  true  that  the  candidate  subsequently purported  to produce before the officer his affidavit  that his  name was entered as a voter in the list of voters  (No. 1074,  Constituency No. 6, Karnal Baneket No. 21, Vol.  10), but the returning officer refused to consider the said affi- davit  because he had already rejected his nomination  paper under  s.  36(2)(b).  Thus the rejection of  the  nomination paper  was the result of the candidate’s failure to  produce any  of  the  prescribed  documents  before  the   returning officer.   On  these  facts the question  which  arises  for decision  is whether the returning officer was justified  in rejecting the nomination paper under s. 36(2)(b). Section  33  of  the  Act deals  with  the  presentation  of nomination  papers  and prescribe--,  the  requirements  for valid nomination.  It would be relevant to refer to  sub-ss. (4) and (5) of this section.  Sub-section (4) provides  that on  the presentation of the 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  roll.  The proviso to this  sub-section  requires the returning officer to permit clerical or technical errors to be corrected.  Under this sub-section it would have  been open  to Jai Bhagawan while presenting his nomination  paper to  produce  one  of the prescribed documents  to  show  his electoral  roll  number  on the roll  of  his  constituency. However,  his failure to do so does not entail any  penalty. Sub-section  (5)  of  s.  33 deals with  the  stage  of  the scrutiny of the nomination papers and it provides that where

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a  candidate  is an elector of a different  constituency,  a copy of the electoral 1419 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 returning officer has to be  satisfied  that the candidate is an elector of a different constituency  and for that purpose the statute has provided the mode 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.  This requirement  had not  been  complied with by Jai Bhagawan and  the  returning officer  thought  that  the  said  non-compliance  with  the provisions  of  s.  33(5) justified  him  in  rejecting  the nomination paper under s. 36(2)(b) of the Act.  The question is whether this view of the returning officer is right. Section 36 of the Act deals with the scrutiny of nominations and  the object of its provisions as shown by sub-s. (8)  is to  prepare a list of validly nominated candidates, that  is to  say, candidates whose nominations have been found  valid and  to  affix  it  to the notice  board  of  the  returning officer.  Sub-section (1) of s. 36 provides that on the date fixed for the scrutiny of nominations each candidate and one other  person  duly authorized may attend at such  time  and place as the returning officer may appoint and the returning officer  is required to give them all reasonable  facilities for examining the nomination papers of all candidates  which have  been duly delivered.  Sub-section (2) then deals  with the scrutiny of the nomination papers and provides that  the returning  officer 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 -enquiry, if any,  as he thinks 1420 necessary,  reject  any  nomination on any  of  the  grounds mentioned in cls. (a), (b) and (c) of the said  sub-section. It  is obvious that this enquiry must be summary and  cannot be elaborate or prolonged.  In fact, sub-s. (5) directs that the returning officer shall not allow any adjournment of the proceedings except when such proceedings are interrupted  or obstructed  by riots, by open violence or by  causes  beyond hip,  control and the proviso to this sub-section adds  that in case an objection is made 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.  Sub-section (2) (b)  deals with cases where there has been a failure to comply with any of the provisions of s. 33 or s. 34.  There is no doubt that in  the  present case there was failure on the part  of  Jai Bhagawan to comply with s. 33(5) and prima facie s. 36(2)(b) seems  to justify the rejection of his nomination  paper  on that ground.  Section 33(5) requires the candidate to supply the  prescribed  copy and s. 36(2)(b) provides that  on  his failure  to comply with the said requirement his  nomination paper  is liable to be rejected.  In other words, this is  a

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case where the statute requires the candidate to produce the prescribed  evidence and provides a penalty for his  failure to do so.  In such a case it is difficult to appreciate  the relevance  or validity of the argument that the  requirement of  s. 33(5) is not mandatory but is directory, because  the statute itself has made it clear that the failure to  comply with  the  said requirement leads to the  rejection  of  the nomination  paper.  Whenever the statute requires  a  parti- cular  act to be done in a particular manner and  also  lays down that failure to comply with the said requirement  leads to  a specific consequence it would be difficult  to  accept the  argument  that  the failure to  comply  with  the  said requirement should lead to any other consequence. It  is,  however,  urged that the  statute  itself  makes  a distinction  between  defects  which are  of  a  substantial character and those which are not of a substantial 1421 character.  This argument is based upon the provisions of s. 36(4)  of the Act which provides that the returning  officer shall  not reject any nomination paper on the ground of  any defect  "  which is not of a substantial  character  ".  The failure  to  produce the requisite copy, it  is  urged,  may amount  to a defect but it is not a defect of a  substantial character.  We are not impressed by this argument.  There is no  doubt  that  the essential object  of  the  scrutiny  of nomination  papers is that the returning officer  should  be satisfied  that the candidate who is not an elector  in  the constituency  in  question  is  in  fact  an  elector  of  a different  constituency.  The satisfaction of the  returning officer   is   thus  the  matter  of  substance   in   these proceedings;  and if the statute provides the mode in  which the  returning officer has to be satisfied by the  candidate it  is  that mode which the candidate must  adopt.   In  the present  case  Jai  Bhagawan failed to produce  any  of  the copies  prescribed and the returning officer  was  naturally not  satisfied  that  jai  Bhagawan was  an  elector  of’  a different constituency.  If that in substance was the result of  Jai Bhagawan’s failure to produce the relevant copy  the consequence  prescribed  by  s.  36(2)(b)  must   inevitably follow.   It  is  only if the  returning  officer  had  been satisfied  that Jai Bhagawan was an elector of  a  different constituency  that  his nomination papers  could  have  been accepted  as valid.  It is well-settled that  the  statutory requirements  of election law have to be strictly  observed. As  observed by Mahajan C. J. who delivered the judgment  of this  Court  in Jagan Nath v. Jagwant  Singh(1)  "......  an election contest is not an action at law or a suit in equity but  is a purely statutory proceeding unknown to the  common law and that the court possesses no common law power ".  The learned  Chief Justice has also added that "...... it  is  a sound  principle  of natural justice that the success  of  a candidate  who has won at an election should not be  lightly interfered  with and any petition seeking such  interference must  strictly conform to the requirements of the  law."  In this connection we may usefully refer to another decision of this Court in Rattan Anmol (1)[1954] S.C. R. 892, 895, 896. 1422 Singh  v. Atma Ram (1).  While dealing with the question  as to  whether  the requirements as to attestation  were  of  a technical or of an unsubstantial character, Bose J. observed that " when the law enjoins the obser vance of a  particular formality, it cannot be disregarded and the substance of the thing  must be  there ". We must, therefore, hold  that  the High  Court was right in coming to the conclusion  that  the

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nomination  paper of Jai Bhagawan had been validly  rejected by the returning officer. Mr.  Doabia,  however, contends that the view taken  by  the High  Court  is  purely technical and  does  not  take  into account  the substance of the matter.  This approach, it  is said,  is  inconsistent with the decision of this  Court  in Pratap Singh v. Shri Krishna Gupta (1).  It is true that  in this  case  Bose J. has disapproved of the tendency  of  the courts towards technicalities and has observed that " it  is the substance that counts and must take precedence over mere form  ". But in order to appreciate the scope and effect  of these  observations, it would be necessary to bear  in  mind the relevant facts and the nature of the point raised before the  court for decision in this case.  The  question  raised was  whether  the failure of the candidate  to  mention  his occupation as required by r. 9(1)(i) rendered his nomination paper  invalid  and  it was answered by  the  court  in  the negative.  The question arose under the provisions of the C. P.  and  Berar  Municipalities  Act  11  of  1922.   It   is significant   that  the  decision  of  this   Court   rested principally  on  the  provisions of s. 23 of  the  said  Act according to which " Anything done or any proceedings  taken under  this  Act  shall  not be  questioned  on  account  of any......... defect or irregularity in affecting the  merits of  the  case ". It was held by this Court that  reading  r. 9(1)  (iii)  (c) which directed the supervising  officer  to examine nomination papers, in the light of s. 23, the  court had  to  see whether the omission to set out  a  candidate’s occupation can be said to affect the merits of the case  and on that point there was no doubt that the said failure could not possibly affect the merits of the case.  The High  Court had, however, taken a (1) [1955] 1 S.C.R. 481, 488. (2) A.I.R. 1956 S.C. 140,141. 1423 contrary view and it was in reversing this view that Bose J. disapproved  the  purely technical approach adopted  by  the High  Court.  Where, however, the statute requires  specific facts  to be proved in a specific way and it  also  provides for  the  consequence  of non- P compliance  with  the  said requirement it would be difficult to resist the  application of the penalty clause on the ground that such an application is  based on a technical approach.  Indeed it was  precisely this approach which was adopted by this Court in the case of Rattan Anmol Singh v. Atma Ram (1). Mr.  Doabia  has also relied upon a decision of  the  Andhra High Court in Mohan Reddy v. Neelagiri Muralidhar Rao (2) in support  of  his argument that the failure  to  produce  the prescribed   copy  cannot  justify  the  rejection  of   the nomination  paper.   In our opinion this decision  does  not assist  Mr. Doabia’s contention.  In this case it was  urged before  the  High Court that the document  produced  by  the party was riot a certified copy as required by s. 33 (5)  of the Act.  This argument was based on the assumption that the certified copy mentioned in s. 33(5) of the Act must satisfy the  test  prescribed by s. 76 of the Indian  Evidence  Act. The  High Court rejected this argument for two reasons.   It held  that the certified copy mentioned ins. 33(5) need  not necessarily  satisfy  the test prescribed by s.  76  of  the Indian Evidence Act.  Alternatively it  held,      on      a consideration of the relevant statutory provisions, that the document in question was in fact and in law a certified copy under s. 76 of the Indian Evidence Act.  These points do not arise  for our decision in the present appeal.  Mr.  Doabia, however, relies on certain observations made in the judgment

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of  the  -nigh  Court  and it may  be  conceded  that  these observations  seem  to suggest that according  to  the  High Court the provisions of ss. 33(5) and 36(7) do not  preclude proof  by  other  means of the fact that  the  name  of  the candidate   is  on  the  relevant  electoral  roll.    These observations are clearly obiter.  Even so we (1)  [1955] 1 S.C.R. 481, 483. (2)  A.I.R. 1958 Andhra Pradesh 485. 181 1424 would  like to add that they do not correctly represent  the effect of the relevant provisions of the Act. The result is the appeal is allowed, the order passed by the High  Court is set aside and the election petition filed  by respondent 1 is dismissed with costs throughout. Appeal allowed.