Patna High Court
Chandra Shekar Prasad Singh And Anr. vs Jai Prakash Singh on 15 October, 1958
Equivalent citations: AIR1959PAT450, AIR 1959 PATNA 450
JUDGMENT U.N. Sinha, J.
1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (Act No. XLIII of 1951). The appeal is directed against the order dated the 20th March, 1958, passed by the Election Tribunal, Monghyr, by which the Tribunal set aside the election of the two appellants in this Court, who were respondents before the Tribunal. Jai Prakash Singh, the respondent in this Court, had filed the election petition praying that the election of the two candidates who had been declared elected on the 13th March, 1957, from Jhajha Assembly Double Member Constituency in the last General Election, be declared void.
As stated above, for reasons given by the Tribunal, the petition was allowed and the election of the two returned candidates was declared void.
2. A number of points had been agitated before the Tribunal but the questions have been confined in this Court, first, to whether appellant Bhagwat Murrau was qualified to be chosen to fill a seat in the legislative Assembly of this State and secondly, to, the effect of setting aside the election of one of the elected candidates in a double-member constituency. I will, therefore, mention only those facts and circumstances which are relevant for the determination of the questions raised in this court.
3. In the last general election to the Bihar State Assembly held in the year 1957 six persons including the appellants had contested from the Jhajha Constituency. It was double-member constituency with one seat reserved for the Scheduled castes or the scheduled tribes. Bhagwat Murmu had fulfilled this condition for the reserved seat.
4. After the issue of a notification calling upon this constituency to elect its members for the Bihar State Assembly Bhagwat Murmu applied to the Chief Electoral Officer, Bihar, on the 22nd January, 1957, for inclusion of his name in the electoral roll of the constituency. The provisions governing such an application are Section 23 of the Representation of the People Act, 1950 (Act XLIII of 1950) and Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 195a The relevant portion of Section 23 of Act XLIII of 1950 runs as follows : --
"23 (1). Any person whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll.
(2) Where an application under Sub-section (1) is made at any time after the issue of a notification calling upon that constituency or the Parliamentary constituency within which that constituency is comprised, to elect a member or members and before the completion of that election, it shall be made to the chief electoral officer; and in any other case, it shall be made to the electoral registration officer of that constituency.
(3) The chief electoral officer or, as the case may be, the electoral registration officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein :
Provided that if the applicant is registered in the electoral roll of any other constituency in the same State, the chief electoral officer, or as the case may be, the electoral registration officer of that constituency and that officer shall, on receipt of the information, strike off the applicant's name from that electoral roll."
5. Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, provides for the procedure to be followed when an application is made under Section 23 of Act XLIII of 1950. Rule 26 runs as follows:--
"26(1) Every application under Sub-section (1) of Section 23 shall be made in duplicate in Form 4 (Part I) and shall be accompanied -
(a) where it is the chief electoral officer, by a fee of five rupees, and
(b) where it is to the electoral registration officer, by a fee of one rupee.
(2) The fee specified in Sub-rule (1) shall be paid by means of non-judicial stamps.
(3) The chief electoral officer, or, as the case may be, the electoral registration officer, shall immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.
(4) The chief electoral officer or, as the case may be, the electoral registration officer shall, as soon as may be after the expiry of the period specified, in Sub-rule (3), consider the objections, if any, received by him and shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein". In pursuance of Rule 26 mentioned above, a notice inviting objections to Bhagwat Murmu's application was posted on the notice board of the Chief Electoral Officer from the 22nd January, 1957 to the 28th January, 1957. On the 29th January, 1957, the decision of the Chief Electoral Officer was given as follows :
"Decision of the Chief Electoral Officer/Revising authority electoral registration officer.
One copy of the application together with the notice inviting objections was kept posted on my notice board for seven days (22/1 to 28/1). No objection filed. The application is, therefore, allowed and the E. R. O. is directed under Section 23 (3) of the R. P. Act and Rule 26 (4) of the rules there under to include his name in the Electoral Roll for Jhajha Constituency.
Sd. S. A. A. Rizvi Signature of the Chief Electoral Officer, 29-1-57."
A telegram was sent by the Chief Electoral Officer, Bihar, on the same day, viz. the 29th January, 1957 to the Sub-divisional Officer, Jamui, stating as follows:
"Application filed on 22nd January, by Shri Bhagwat Murmu s/o Naika Murmu v. Matia, Mohalla Bela, House No. 209, P. O. Mallahpur, P. S. Laxmipur, District Monghyr, age 28 years 1 month allowed by me today 29th January. Please include his name on electoral roll for Jhajha Assembly Constituency ab once. Copy of order follows.
Electoral, Bihar."
The telegram indicates that it was despatched from Patna at 3.35 p.m. on the 29th January, 1957. This telegram was received by the Sub-divisional Officer, Jamui, who was the Electoral Registration Officer, at 5.45 P.M. on the same day.
6. According to Section 30 of Act XLIII of 1951, the following dates were appointed for the purpose of the election in question :
29th January, 1957 was appointed as the last day for making nominations;
1st February, 1957 was appointed for the scrutiny of nominations;
4th February, 1957 was appointed for withdrawal of candidatures;
25th February to 12th March, 1957 were appointed for taking poll.
The nomination paper of Bhagwat Murmu was filed an the 29th January, 1957. The nomination paper mentions at its bottom that it was delivered to the Returning Officer in his office at 2.30 p. m. Along with the nomination paper an affidavit was also filed affirmed by Bhagwat Murmu, stating as follows:
"That I under Section 23 of the Representation of the People Act, 1956, applied to the Chief Electoral Officer Patna, for inclusion of my name in the Electoral Roll of village Mafia, Thana Number 168 P. S. Lakshmipur, Circle 3, Sub-division Jamui, district Monghyr and the inclusion of my name as aforesaid has been allowed and my name has been included in correction slip No. 2 (i) under serial No. 658."
A separate application had also been filed, which will be considered in due course.
7. On the 1st February, 1957, when scrutiny was held, an objection had been raised by Sri Birendra Prasad Singh that on the 29th January, 1957, the name of Bhagwat Murmu was not on the electoral roll and hence he could not have been nominated. The objection was overruled by the Returning Officer on the ground that the candidate had sworn an affidavit on the 29th January, 1957, to the effect that his name was allowed to be included in the electoral roll by the direction of the Chief Electoral Officer given on the 29th January, 1957.
The poll was held in due course and, as mentioned earlier, on the 13th March, 1957, Bhagwat Murmu and Chandra Shekhar Prasad Singh, the two appellants in this Court, were declared elected. The election petition in this case was thereafter filed by Jai Prakash Singh as an elector in the constituency in question. It was contended on behalf of the petitioner, Jai Prakash Singh, that Bhagwat Murmu was not qualified to be nominated in view of Section 5(a) of Act XLIII of 1951.
So far as the election of appellant Chandra Shekhar Prasad Singh was concerned, it was stated that due to the improper acceptance of the nomination paper of Bhagwat Murmu, the result of the election had been materially affected in so far as the election of Chandra Shekhar Prasad Singh was concerned.
8. The following issues framed by the Tribunal are relevant for the purpose of this appeal:
"4. Whether there was an improper acceptance of the nomination paper of respondent No. 2?'
10. Whether the election is wholly void?
11. What relief, if any, is the petitioner entitled to?"
Upon issue No. 4, the Election Tribunal has held that by the passing of the direction dated the 29th January, 1957, by the Chief Electoral Officer (quoted above), the inclusion of the name of Bhagwat Murmu in the electoral roll was not accomplished; hence, Bhagwat Murmu was not an elector on the 29th January, 1957, within the definition of Section 2(1)(e) of Act XLIII of 1951 and his nomination paper was improperly accepted.
A further question of law was also urged before the Election Tribunal to the effect that the direction of the Chief Electoral Officer to post Bhagwat Murmu's application on the notice board from the 22nd to the 28th January, 1957, was in contravention of Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules 1956, inasmuch as it fell short of the requisite period of seven days by one day. This contention was, however, rejected by the Election Tribunal.
It was also urged before the Tribunal that the telegram sent by the Chief Electoral Officer from Patna (quoted above) had been despatched from Patna at 3.35 p.m. on the 29th January, 1957 and hence, even the direction of the Chief Electoral Officer had been passed after the expiry of the time for filing nomination papers which was 3 P.M. on the 29th January, 1957. The last point has merely been mentioned by the Tribunal but the Tribunal has set aside the election of Bhagwat Murmu on the first ground mentioned above.
9. Issue Nos. 10 and 11 were considered together and the Election Tribunal has held that since the election of two candidates in a double-member constituency is indivisible, the election of Chandra Shekhar Prasad Singh must be declared to be void because the election of Bhagwat Murmu was void. The Tribunal however, has come to the conclusion that Chandra Shekhar Prasad Singh was innocent of all the charges levelled against him and was free from all the blames.
10. Learned Counsel for the appellants hag submitted that the Election Tribunal erred in hold-ing that Bhagwat Murmu was not an elector on the 29th January, 1957, and, therefore, his nomination paper had been improperly accepted. Learned Counsel urged that the Election Tribunal has wrongly relied upon the cases, P. N. Balasubra-manian v. C. R. Narasimham, 1 Ele LR 461 and Awdhesh Prasad Sinha v. Prabhabati Cupta, 8 Ele LR 45, for the interpretation of the word "elector".
11. An elector has been defined in Section 2(1)(e) of Act XLIII of 1951, as follows : --
"2(1) In this Act, unless the context otherwise requires,
(e) 'elector' in relation to a constituency means 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".
12. It has been mentioned above that Bhagwat Murmu filed his application for the inclusion of his name in the electoral roll on the 22nd January, 1957. A copy of the application together with a notice inviting objections to it was posted on the notice board from the 22nd January to the 28th January, 1957, as mentioned in the direction of the Chief Electoral Officer quoted above. Thereafter, on the 29th January, 1957, the Chief Electoral Officer directed inclusion of Bhagwat Murmu's name in the electoral roll for Jhajha constituency.
The question arises as to whether in the absence of an actual insertion of the name of Bhagwat Murmu in the said electoral roll, he can be termed as an elector within the meaning of Section 2 (1)(e) of Act XLIII of 1951.
13. The three decisions relied upon by the Tribunal are really not in point. In the case of 8 Ele LR 45, the last date for filing nomination papers was the 24th November, 1951. Although the application for inclusion of the name of Prabha-vati Gupta had been made before the last date for filing the nomination, the direction of the Election Commission was issued on the 27th November, 1951. Actually, the direction bore no date and the decision was on the footing that the direction was issued on the 27th November, 1951.
Upon these facts, it was held that it was not established that the order of the Election Commission had been issued on or before the 24th November, 1951. The facts of the case, Ramayan Saran Singh v. Rameshwar Yadav, 5 Ele LR 296 show that the last date for filing nomination papers was the 24th November, 1951, and the direction of the Election Commission was passed on the 26th November, 1951. The telegram sent in that case on the 26th November, 1951 mentioned that the direction given by the Commission was "to take effect from today (26th November, 1951)".
Hence, this decision is also not of assistance, In the case of 1 Ele LR 461, the last day for filing nomination papers was on the 21st November, 1951. The application for inclusion of the name itself was forwarded to the Election Commission on the 22nd November, 1951. Therefore, the facts of this case are distinguishable.
14. The question in issue, therefore, will have to be answered from principles to be deduced from the various sections of the two Acts, namely, Act No. XLIII of 1950 and Act No. XLIII of 1951 and the various rules framed thereunder. I have already mentioned the relevant portion of Section 23 of Act XLIII of 1950. Section 24 of the same Act meant for the inclusion of certain newly registered candidates states in Sub-section (3) that upon receiving a list under Sub-section (2), the Electoral Registration Officer shall, after enquiring into the correctness of the list, direct inclusion in the electoral roll of the names of all persons included in the list who are entitled to be registered in the electoral roll under Section 24, Sub-section (1).
Act XLIII of 1950 contains no provision as to the procedure to be followed after direction has been issued under Sections 23 and 24 of the Act. In this connection Section 28 under which the rules are framed for carrying out the purposes of this Act may be noticed. Section 28, Sub-section (2) Clause (h), as it originally stood, was worded thus :
"(h) the revision or correction of an electoral roll under Section 25 and the final publication of the list referred to in that section;"
After amendment, Section 28, Sub-section (2), Clause (h) runs as follows :
"(h) the revision and correction of electoral roll and inclusion of names therein."
We are concerned with the amended clause. Rule 26 of the rules framed under Section 28 of Act XLIII of 1950 has been quoted above in extenso. Sub-rule (4) of that rule merely states that the Chief Electoral Officer or, as the case may be, the Electoral Registration Officer shall direct inclusion of a name upon an application under Section 23(1). Rule 27A framed for the purposes of Section 24 Sub-section (2) of Act XLIII of 1950 also states that the Electoral Registration Officer shall then direct inclusion in the electoral roll of the names of all persons who are entitled to be registered in the electoral roll.
The rules thereafter make no provision for the procedure to be followed after a direction has been passed either by the Chief Electoral Officer or the Electoral Registration Officer. In connection with the argument to the effect that the name of a person directed to be included under Section 23 of Act XLIII of 1950 read with Rule 26 of the Rules of 1956, must be actually inserted in the electoral roll before the person can be called an elector, Section 30 Sub-section (a) of Act XLIII of 1951 may be seen.
As soon as a notification calling upon a constituency to elect a member or members is issued, the Election Commission shall appoint the last date for making nomination which shall be the tenth day after the date of publication of the notification or, if that day is a public holiday, the next succeeding day which is not a public holiday. Now Section 23 of Act XLIII of 1950 contemplates an application for inclusion of a name after the notification mentioned in Section 30 of Act XLIII of 1951 has been published.
Therefore, the entire procedure indicated by Section 23 of Act XLIII of 1950 read with Rule 26 of the Rules framed under that Act, has to be completed within those ten days. Rule 26 framed under Act XLIII of 1950 contemplates that the application for inclusion must be notified for a certain period so that objections, if any, could be filed and determined. Therefore, it does not appear that there can be sufficient time for the actual insertion of a name in the electoral roll after a direction has been, passed under Section 23 of Act XLIII of 1950. The reasonable interpretation of the words, "entered in the electoral roll" contained in Section 2(1)(e) of Act XLIII of 1951, should be, "included in the electoral roll."
When a direction has been passed under Section 23 of Act XLIII of 1950 read with Rule 26, directing that a particular name not included in the electoral roll should be included therein, it ought to be sufficient for the purpose of holding that a person whose name has been ordered to be included, is, an elector within the meaning of Section 2 (1) (e) of Act XLIII of 1951.
15. Mr. Verma appearing for the respondent in this appeal, has then submitted that the Tribunal's interpretation of Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, is incorrect. He has urged that upon a true interpretation of Rule 26, Sub-rule (3) it should have been held that the day on which the application was filed by Bhagwat Murmu under Section 23 of Act XLIII of 1950, for inclusion of his name in the electoral roll, should have been excluded in computing the period of seven days mentioned in the said Rule 26, Sub-rule (3).
It is argued that the General Clauses Act, 1897 (Act X of 1897) applies to the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Our attention has been drawn to Rule 2 Sub-rule (6) of the Representation of the People (Conduct of. Elections and Election Petitions) Rules, 1956, which runs as follows :
"2 (6) The General Clauses Act, 1897 (10 of 1897) shall apply for the interpretation of these rules as it applies for the interpretation of an Act of Parliament."
Mr. Verma has urged that this sub-section should be held to mean that the General Clauses Act is applicable to the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. This argument does not appear to be a valid argument and in my opinion, the argument was correctly repelled by the Tribunal, The two sets of Rules were framed under different Acts altogether. Rule 26 with which we are concerned, was framed under Act XLIII of 1950 whereas Rule 2 Sub-rule (6) which makes the General Clauses Act applicable "for the interpretation of these rules" was framed under Act XLIII of 1951.
Therefore, it is not possible to hold that the General Clauses Act should be made applicable to Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, by virtue of Rule 2 Sub-rule (6) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956.
16. For the purpose of interpretation of Rule26 Sub-rule (3), Mr. Singh appearing for the appellants in this Court, has urged: first, that the day on which an application is filed under Section 23 of Act XLIII of 1950 should be included for the purpose of computing the period indicated by the words "within a period of seven days from the date of such posting", and secondly, that the words "within a period of seven days" are merely directory and not mandatory and a substantial compliance with the requirements of Rule 26 is sufficient for the validity of a direction given under Section 23 of Act XLIII of 1950.
17. A question was further mooted before us as to the interpretation of the words "within a period of seven days, from" even if the General Clauses Act is not applicable to the words. Mr. Verma has argued, on the strength of the case, Marakanda Sahu v. Lal Sadananda Singh, AIR 1952 Orissa 279, and the cases cited therein, that the day on which an application is filed under Section 23 of Act XLIII of 1950 should be excluded for the purpose of computing the period mentioned in Rule 26(3) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956.
In Marakanda Sahu's case, AIR 1952 Orissa 279 it was held that the equitable principle of Section 9 of the General Clauses Act should, as a rule, be applied to the construction of decrees and orders of Courts, It was held in that case that in interpreting an order saying that the plaintiff must deposit a sum of Rs. 100/- within one month from this date, the date on which the order was passed should be excluded. The learned Judges of the Orissa High Court noticed the decisions of Puran Chand v. Mohd Din, AIR 1935 Lah 291; and Ramehandra Govind v. Lasman Savleram, AIR 1938 Bom 447, upon which Mr. Verma also relies. Puran Chand's case, AIR 1935 Lah 291, was also dealing with a similar expression, "within three months from today" occurring in a decree.
The learned Judges of the Lahore High Court, holding that an earlier interpretation of the words "within three months from 11-7-1873" made in the case of Kharak Singh v. Bhup Chand, 27 Pun Re 1874, was in the nature of an 'obiter dictum', came to the conclusion that the day on which the decree was passed should foe excluded. Ramchandra Govind's case, AIR 1938 Bom 447, was dealing with a case of a decree directing that the defendant should deposit Rs. 200/- "within fifteen days from that day, i. e., 23-1-1936". The learned Judge held that the expression "fifteen days" would mean fifteen clear days and the date of making the order should be excluded.
18. It thus appears that the decisions relied upon by Mr. Verma refer, to the meaning of the expression "within" appearing in decrees or orders. After dealing with the earlier decisions upon that point the learned Judges of the Orissa High Court mentioned that no decision to the contrary had been cited before them. There is, however, a decision of the Bombay High Court in the case of Commissioner of Income-tax v. Ekbal and Co., AIR 1945 Bom 316, which throws- considerable light upon the point which arises in the instant case. The learned Judges had an occasion to interpret the words "within such period" occurring in Section 22, Sub-section (2) of the Income-tax Act. Stone C. J., stated thus:
"In my judgment expressions 'within 30 days' and 'not less than 30 days' are two quite different things. 'Within 30 days' is within two points of time, one at which the period begins and the other at which it expires. On the other hand, 'not less than 30 days' is outside these two points of time. There must be an interval of not less than 30 days and that means 30 days clear: see In re, Railway Sleepers Supply Co., (1885) 29 Ch D 204. The period must continue beyond the expiration of the stated time. Whereas 'within' the stited period must mean what it says, something less than the moment of expiration."
In the same decision, Kania J., as he then was, stated that when a party is called upon to do an act "within" a stated number of days, he necessarily cannot get that number of days as "clear" days. I am inclined to hold, for the purpose of interpreting Rule 26 in this case, that the interpretation of their Lordships of the Bombay High Court in the case, AIR 1945 Bom 316, is preferable. In the case, In re Court-fees-, AIR 1924 Mad 257 (SB), a quastion arose as to the interpretation of the words in a notification to the effect:
"the amendments do come into force from the date of publication in the Fort St. George Gazette."
According to the decision of two of the learned Judges, who formed the Special Bench, the notification came into force from the earliest moment of the day of its publication and that it governed all transactions which took place on the day on which the notification was published. K. Sastri, J., who delivered the dissentient judgment, held that there was no hard and fast rule for deciding whether the word "from" was inclusive or exclusive of the date of the notification.
The reason for the decision of K. Sastri J., was that each case must depend upon its own circumstances and the subject-matter of the case. According to the learned Judge, the test for the interpretation should be whether the inclusion or exclusion would be just or equitable having regard to the circumstances and subject-matter of each case. Of the decisions discussed by K. Sastri J., the case, In re North Ex Parte, Hasluck, (1895) 2 QB 264, may be mentioned. Lord Esher, M. R., observed that notwithstanding the elaborate array of authorities which had been cited before them, they seemed, on being sifted, to contain no binding rule to the effect that time must be computed according to any hard and fast rule.
In the same case, Rigby L. J., observed that whether the day on which an act is done is to be included" or excluded must depend on whether it is to the benefit or disadvantage to the person primarily interested. Hence, in my opinion, even according to this test, it should be held that Rule 26, with which we are concerned, did not contemplate seven clear days. I have already mentioned above that only ten days are available to the person who applies for inclusion of his name by a direction contemplated by Section 23 of Act XLIII of 1950.
The period of seven days mentioned in Rule 20 is for the purpose of waiting for objections, if any, before the officer concerned can pass his direction. We must also take into account that the starting point of the period mentioned in Rule 26 (3) is not within control of the person applying for inclusion of his name. It is the officer concerned who has to direct the posting of the copy of the application "immediately on receipt of such application". It is the officer concerned who has to invite objections within a period of seven days to be fixed by him. Both' these matters depend on the subjective conception of the officer concerned.
This should also be taken into consideration in coming to the conclusion whether the period of seven days would be the larger period of seven clear days or the smaller period of seven days inclusive of the day on which the application is posted inviting objections to such an application. It is, therefore, just and equitable that the day on which a copy of the notice is posted calling for objections should also be included in the period of seven days.
19. In the case, Harinder Singh v. Karnail Singh, (S) AIR 1957 SC 271, the effect of Section 10 of the General Clauses Act (1897) was considered in connection with a petition under Section 81 of Act XLIII of 1951. The period of limitation for filing such a petition for declaring election of any person to be void was "not later than 14 days from the date of publication of the notice in the Official Gazette under Rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer".
The return of the election expenses was published on 2-5-1954. The petition under Section 81 was filed on 18-5-1954. The question was whether the petition was in time as the offices were closed on the 16th and 17th May. In the statement of fact made in the judgment of the Supreme Court it has been mentioned that the last date for filing petition Under Section 81 would have been 16-5-1954, which happened to be a Sunday. It appears that the day on which the return of the election expenses was published was excluded in calculating the 14 days mentioned above.
In my opinion, however, this decision of their Lordships of the Supreme Court has not decided the question that has arisen in the instant case. The words "not later than 14 days" imply in the context 14 clear days:
20. Further, in my opinion, the contention of Mr. Singh that the words of computation occurring in Rule 26, Sub-rule (3) should be taken to be directory and not mandatory should also be accepted. In the case of Pratap Singh v. Krishna Gupta, (S) AIR 1956 SC 140, their Lordships of the Supreme Court stated thus:
"We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter, and, exercising a nice discrimination, sort out one class from the other along broad-based commonsense lines. This principle was enunciated by Viscount Maugham in "Punjab Co-operative Bank Ltd., Amritsar v. Income-tax Officer, Lahore, AIR 1940 PC 230 at p. 233 and was quoted by the learned High Court Judges:
'It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.'"
21. In the case, State of U. P. v. Manbodhau Lal Srivastava, (S) AIR 1957 SC 912, a question arose as to whether the provisions of Article 320 (3) (c) of the Constitution of India were mandatory or directory in the nature. Their Lordships of the Supreme Court held thus :
"The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320 (3) (c)? It does not, either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the proceeding's ending with the final order of the Government.
This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Article 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin, 1917 AC 170. In that case, the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the Jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment:
'................ The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Ed., p. 596 and the following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.' The principle laid down in this case was adopted by the Federal Court in the case of Bishwanath Khemka v. Emperor, 1945 FCR 99: (AIR 1945 FC 67). In that case the Federal Court had to consider the effect of non-compliance with the provisions of Section 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers etc. The Court repelled the contention that the provisions of Section 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character".
22. Upon examination of the question, their Lordships held that the provisions of Article 320 (3) (c) of the Constitution were not mandatory. In the case of M. R. Masani v. Member, Election Tribunal, Ranchi, 1957 Pat LR (SC) 20: (AIR 1958 SC 687), a decision of the Supreme Count, a question arose as to whether the requirements of Section 117 of Act XLIII of 1951 were mandatory or directory in nature. Their Lordships of the Supreme Court held that the requirements were directory. It was held that what is to be looked into is the essence of the provisions contained in a section. Applying that test in the instant case, I am of the opinion that the essence of the provisions contained in Rule 26 is that sufficient time has to be given for objections, If any, to be filed, against the inclusion of a particular name in the electoral roll. No case has been made out by the respondent in this Court that he suffered any prejudice by the fact that the time given in this particular case was less than seven clear days. As a matter of fact, no objection was at all filed nor any attempt to file was made.
23. Mr. Verma has lastly argued that it would be held that the direction of the Chief Electoral Officer passed under Section 23 of Act XLIII of 1950 had been passed after 3 p. m. on 29-1-1957. The importance of the point of time, namely, 3 p. m. lies in the fact that the nomination papers could have been accepted only up to 3 p. m. of 29-1-1957. Bhagwat Murmu has deposed that along with his nomination paper filed at 2.30 p. m. on 29-1-1957, he had filed an application addressed to the Returning Officer and also an affidavit affirmed by him. The application is Exhibit L and the affidavit is Exhibit M. Exhibit L, the application, mentions that Bhagwat Murmu has been informed at 1.30 p. m. on telephone that his name has been ordered to be included in the electoral roll and that the order would be telegraphically communicated to the Returning Officer. The relevant portion of the affidavit (Exhibit M) has been quoted above. The telegram that followed from the Chief Electoral Officer has also been quoted above. Mr. Verma has argued that whereas the petition. Exhibit L, mentions that the information had been conveyed to Bhagwat Murmu by the Chief Electoral Officer, the evidence of Bhagwat Murmu is to the effect that he received information from one Rup Narain Singh. The evidence of Bhagwat Murmu is that he had made arrangement with Rup Narain Singh to the effect that Bhagwat Murmu would telephone to Rup Narain Singh in the office of the Chief Electoral Officer at Patna for information regarding, the direction of the Chief Electoral Officer for the inclusion of his name.
Bhagwat Murmu has deposed that in pursuance of this arrangement, he had telephoned Rup Narain Singh and the latter had informed Bhagwat Murmu on telephone that his name had been ordered to be included by the Chief Electoral Officer. According to Bhagwat Murmu, he had telephoned Rup Narain Singh at Patna from the shop of Juggu Bohar. In this respect Chandra Shekhar Singh, respondents' witness No. 14 (appellant in this Court) has supported the evidence of Bhagwat Murmu. Chandra Shekhar has deposed that Bhagwat Murmu had a conversation on the telephone at 1 p. m. on 29-l-l957, from the shop of Juggu at Jamui.
Therefore, although it has been mentioned in the application (Exhibit L) that the information to Bhagwat Murmu had been conveyed by the Chief Electoral Officer there is no reason to disbelieve the evidence of Bhagwat Murmu when he says that actually the information was given to him by Rup. Narain Singh from the office of the Chief Electoral Officer. It should be noted that Exhibit L mentions that the order of the Chief Electoral Officer would be telegraphically communicated to the Returning Officer on the same day and, in fact, a telegram was despatched from Patna at 3.35 p. m. on the same day. Bhagwat Murmu could not have anticipated at 2,30 p. m. at Jamui when he filed, his nomination paper that the Chief Electoral Officer had already passed his order directing inclusion of his name in the electoral roll and that the Chief Electoral Officer would send his direction telegraphically on that day, unless his evidence is true.
The fact that the post office actually despatched the telegram at 3.35 p. m. is not sufficient for the purpose of concluding that the direction had not been passed before 3 p. m. on 29-1-1957. It must, therefore, be held that when Bhagwat Murmu filed the nomination paper at 2.30 p. m. on 29-1-1957, the direction of the Chief Electoral Officer under Section 23 of Act XLIII of 1950 had already been passed and information of the same bad been conveyed to the Returning Officer by Bhagwat Murmu by this petition (Exhibit L) and his affidavit (Exhibit M).
It may be mentioned in this connection that we are informed that the Returning Officer and the Electoral Registration Officer in this case was one and the same person, namely, the Sub-Divisional Officer of Jamui, Monghyr.
24. The last question is whether the election of Chandra Shekhar Prasad Singh has been rightly declared to be void by the Tribunal. It was urged before the Tribunal that the election for both the seats in the constituency in question was a single election and not two different elections and that, therefore, the entire election has to be set aside if the election of one of the candidates is held to be void.
The Tribunal held that if the nomination paper of Bhagwat Murmu had not been accepted, one of the other two scheduled tribe candidates would have been returned and that it was obvious, therefore, that due to the improper acceptance of the nomination paper of Bhagwat Murmu the result of the election must be considered to have been materially affected. Upon this ground the Tribunal accepted the argument advanced by the petitioner before it and set aside the election of Chandra Shekhar Prasad Singh also. Learned Counsel for the respondent in this Court has supported the finding of the Tribunal and has relied upon the case of Surendra Nath Khosla v. S. Dalip Singh, (S) AIR 1957 SC 242. He has submitted that the election in a double seat constituency js an integral whole and that if election has to be set aside, the whole election should be declared void. It may be noticed that this decision of their Lordships of the Supreme Court wag one dealing with Section 100 of Act XLIII of 1951 as it stood before it was amended by the Representation of the People (Second Amendment) Act (XXVII of 1956). Apart from the fact that the decision was dealing with a case of improper rejection of a nomination, Section 100 (1) (c) as it then stood, stated that "the Tribunal shall declare the election to be wholly void". Section 100 of Act XLIII of 1951, as it now stands, is substantially different in some of its aspects. The old Section 100 (1) (c) has been split up as follows:
"Section 100 (1) .....
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by improper acceptance of any nomination, or the Tribunal shall declare the election of the returned candidate to be void".
(Only the relevant portions have been quoted.) In this connection Section 98 of the same Act may also be noticed. Section 98 as it stood before its amendment by the same Amending Act of 1956, stood as follows:
"At the conclusion of the trial of an election petition the Tribunal shall make an order--(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void; or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected; or,
(d) declaring the election to be wholly void."
Section 98 now stands thus:
"At the conclusion of the trial of an election petition, the Tribunal shall make an order-
(a) dismissing the election petition; of
(b) declaring the election of all or any of the returned candidates to be void, or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected."
The substantial change is the deletion of Clause (d) by which election could be declared wholly void. Therefore, in my opinion, Sections 98 and 100 of Act XLIII of 1951, as they now stand, indicate that the improper acceptance of any nomination of a returned candidate cannot by itself be a good ground for declaring the election of any other candidate or candidates void. It may be noticed that no issue was framed for an enquiry as to whether the election of Chandra Shekhar Prasad Singh had been materially affected by the improper acceptance of the nomination of Bhagwat Murmu. The election of Chandra Shekhar Prasad Singh was declared void upon the general issues NOS. 10 and 11, quoted above. In spite of the finding of the Tribunal that Chandra Shekhar Prasad Singh was free from all blames suggested against him, his election was declared void on the ground that elections in a double member constituency are indivisible. In my opinion, the Tribunal has misdirected itself on this question. It must be held that the election of Chandra Shekhar Prasad Singh has been wrongly declared to be void.
25. In the result, upon a consideration of the questions that have been submitted before us, it must be held that the Election Tribunal's order dated 20-3-1958, declaring the elections of the appellants to be void is wrong and must be set aside. The appeal is, therefore, allowed and the order of the Election Tribunal of Monghyr dated 20-3-1958, allowing Election Petition No. 293 of 1957 is set aside. The respondent in this Court must pay the costs of the appellants and we assess the hearing fee at Rs. 100/-.
Misra, J.
26. I agree.