Patna High Court
Dahu Sao vs Ranglal Chaudhary And Ors. on 25 March, 1960
Equivalent citations: AIR1960PAT371, AIR 1960 PATNA 371, ILR 39 PAT 630
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalla, J.
1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) by Shri Dahu Sao, who was the petitioner before the Election Tribunal, Dhan-bad, and had asked it to declare the election of Shri Ranglal Chaudhary, respondent No. 1, as void. There was a by-election held on 21st and 22nd of December., 1958, to fill up a vacant seat of the Dhan-bad Constituency in the Bihar Legislative Assembly. Several persons had filed their nomination papers on or before 8-11-58 as candidates for the said by-election.
Besides the appellant and respondent No. 1, the other candidates were Shri Mahesh Desai and Shri Binode Bihari Mahto, respondents 2 and 3, respectively and Shri Rupan Prasad, Shri Harbans Singh and Shri Dhirendra Chandra Mallick, who were not joined as respondents in the petition. The scrutiny of the nomination papers was held by the Returning Officer on 11-11-58 and the nomination paper of the appellant as also of Rupan Prasad was rejected by him. Dhirendra Chandra Mallick and Harbans Singh withdrew their nomination on 14-11-1958, the last date for withdrawal. The contest, therefore, was among the three respondents. Respondent No. 1 having secured the largest number of votes was declared elected.
Thereafter, the present application giving rise to this appeal was filed by the appellant challenging the election of the first respondent chiefly on two grounds--(i) that the nomination paper of the appellant as also of Rupan Prasad was improperly refected; and (ii) that various corrupt practices had been committed by the returned candidate or his election agent or by other persons with the consent of the returned candidate and the result of the election had been materially affected by the corrupt practices committed in the interest of the returned candidate.
2. The election petition was contested by the first respondent who controverted all the allegations made on behalf of the appellant. He also raised certain technical pleas in regard to the maintainability of the application and likewise. The second respondent did not appear, at all. The 3rd respondent filed a written statement supporting the case of the appellant.
3. As many as seven issues were framed by the learned member. Some were answered in favour of the petitioner and some against him. The first respondent in this appeal has not tried to attack the decision of the Tribunal in regard to those issues which have been decided in favour of the appellant. And, the appellant also has not attempted to assail the decision of the Tribunal in regard to all matters decided against him but he has picked up a few and pressed them for our consideration in .support of the appeal. The decision on the 6th issue in regard to the rejection of the nomination paper of Rupan Prasad has not been attacked before us by Mr. K. P. Varma, learned Advocate for the appellant. He has concentrated his whole argument with respect to the 3rd issue, namely, as to whether the nomination paper of the appellant was impronerly rejected. In that connection, he has also pressed the 7th issue which runs thus :
"Was the date of the scrutiny illegally postponed?"
He also endeavoured to press for our consideration. one item of the alleged corrupt practices but found much difficulty to pursue even that up to the last and ultimately did not seriously press it. I shall, therefore, first address myself to the main argument advanced in support of this appeal.
4. Four nomination papers (Exts. 1 to 1-C) were filed on behalf of the appellant and all of them were in printed Hindi forms filled up in Devanagri script. They show that they were printed in Bihar Government press, Gaya, and, according to the evidence of the appellant, he got these nomination papers from the office of the Returning Officer. The other Hindi forms which were filed before the Returning Officer in connection with this election were also similar and some of them had been accepted as valid. The English form which was used by some of the candidates was the standard one and the heading of this form before the column to be filled up by the proposer is :
"Election to the Legislative Assembly of Bihar."
All these words are printed. The first two printed lines to be filled up by the proposer are like this :
"I hereby nominate ..... as a candidate for election from the ..... Assembly constituency."
In the two blank spaces in the lines mentioned above the names of the candidate & of the constituency, were filled up by the proposer. The Hindi form which was supplied was slightly defective. Ab the top the printed heading runs thus :
^^fuokZpu {ks= ls fcgkj dh fo/kku lHkk ds fy;s fuokZpu-** The first two lines to be filled up by the proposer in the Hindi form are like this:
^^eS bl ds }kjk Jh-------dks-------fo/kku lHkk fuokZpu {ks= ds fy;s mEehnokj euksuhr djrk gwa A** In all the four forms, which were filed on behalf of the appellant, the name of the constituency ^/kuckn* in Devanagri script was mentioned in the blank space in the headline .and in the two blank spaces the name of the appellant was written at the place where it ought to have been written but in the second blank space, instead of the name of constituency -- Dhanbad -- the word ^fcgkj* was put in Devanagri script. An objection was raised on behalf of the first respondent that the respective proposers had not nominated the appellant for Dhanbad constituency.
The Returning Officer noted this objection on 11-11-58 on the back of each nomination paper and further noted 'I will give my decision tomorrow at 11 a.m.' On 12-11-58 be rejected all the nomination papers of the appellant by similar orders noted on the back of each which run as follows :
"The nomination paper is rejected as the proposer has nominated the candidate for election from Bihar and not Dlfanbad Assembly Constituency."
5. It appears that no other grounds of objection were taken before the Returning Officer in re-gard to any of the four nominations of the appel-lant. But some other grounds have been taken by the first respondent before the Tribunal and the learned Member of the Tribunal has held that all the four nominations of the appellant were properly refected on the ground stated by the Returning Officer and their rejection has been further held to be proper in view of the new defects which were pointed out before the Tribunal. I shall deal with these new defects a bit later.
6. The stand taken on behalf of the appellant before the Returning Officer was that the name of the constituency 'Bihar' had been properlv filled up in the second blank space in. the first line meant to bo filled up by the proposer. This stand was reiterated before the Tribunal and some mistakes of hyphen being there or not being there in the form supplied by the office of the Returning Officer were I pointed out in support of the stand. But, in my opinion, that has rightly been not accepted either by the Returning Officer or by the learned Member of the Tribunal.
It is clear to me that the proper name to be filled up in Hie second blank space was 'Dhanbad' and the name 'Bihar' was wrongly mentioned because of the fact that immediately after the blank space the words 'Vidhan Sabha' are there & also because in the head-line the word 'Dhanbad' had been written. But the question, which was mooted out before the Tribunal and before us, is as to whether this is a defect of a substantial character, as Section 36 (4) of the Act provides :
"The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."
In my opinion, the head-line sufficiently and clearly indicated that the nomination was for Dhanbad Nirbachan Kshetra and it was a by-election only for Dhanbad constituency. That being so, the mistake in the first line below the head-line ought to have been ignored as a bona fide mistake of an unsub-stantial character. The learned Member of the Tribunal has laid stress on the fact that it has come in evidence that the name 'Dhrmbad' in the headline was filled up by the candidate himself and, so far as the nroposer is concerned, he bad put the name 'Bihar'. In my opinion, that is of no consequence in this case.
The evidence is also there on the record that at the time of scrutiny all concerned on behalf of the appellant claimed that these nomination papers were for the Dhanbad constituency which was clearly & distinctly mentioned in the head-line. That being so, I have no difficulty in holding that the nominations of the appellant were improperly refected on the ground stated in the orders of the Returning Officer.
I may also mention here that in the case of Ramayan Shukla v. Rajendra Prasad Singh, 1959 BLJR 162 : (AIR 1959 Pat 419) decided by my learned brother -- to which decision I also was a party and on which very great reliance has been placed on behalf of the first respondent --one of the defects in the nomination papers of a candidate was exactly of this nature and the Tribunal had held that the omission of the name of the constituency in the blank space meant to be filled up by the proposer was not a defect of a substantial character as the name of the constituency had been mentioned at the top of the nomination. paper and the decision of the Tribunal in this regard was neither attacked by the respondents in that appeal nor was it upset by us.
7. Before I allude to the other grounds of attack on the validity of the nominations of the appellant taken before the Tribunal, I would like to dispose of two points of law urged on behalf of the appellant. One of them is covered by the 7th issue Quoted by me in the beginning of my judgment. Mr. Varma strenuously argued that the Returning Officer had no jurisdiction to postpone the decision as to the validity of the nominations on to the following day as the candidate concerned had not asked for any time to rebut the objection which wag raised in respect of his nomination papers.
I am not prepared to hold that the proviso to Sub-section (5) of Section 36 should be interpreted in the strict manner suggested on behalf of the appellant. Various sub-sections of that section would show that holding of the scrutiny is quite distinct from the decision of the Returning Officer in that.
regard. The holding of the scrutiny cannot be postponed by the Returning Officer 'except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control but the scrutiny can be postponed for a day or two for further scrutiny in. order to allow time to this candidate concerned whose nomination is objected to.
I do not find clear and express words in the proviso to the 5th sub-section to enable me to hold that the Returning Officer cannot reserve his decision to be given on the day following the scrutiny It may well be that objections of a kind are raised which may require further consideration by the Returning Officer with reference to books, statutes or rules, and, in absence of clear and express provision, I am not prepared to stifle the power of the Returning Officer to the extent suggested on behalf of the appellant. This view of mine finds some support from my observations in the case of Parmeshwar Kumar v. Lahtan Chaudhary, 1958 BLJR 386 : (AIR 1959 Pat 85).
8. The second point of Jaw which was faintly contended by Mr. Varma is that new grounds of attack ought not to have been allowed to be taken before the Tribunal in relation to the nomination papers of the appellant. He places reliance upon Durga Shankar Mehta v. Raghuraj Sineh, 1955-1 SCR 267 : AIR 1954 SC 520. But he did not pursue the noint in view of the Supreme Court decision in Veluswami Thevar v. Raja Nainar, ATR 1959 SC 422. In the latest decision of the Supreme Court in S. M. Banerji v. Sri Krishna Agarwal, Civil Appeal No, 301 of 1959, D/- 20-11-1959 : (AIR 1960 SC 368) it has been observed with reference to the above mentioned two decisions :
"The two decisions can stand together and they deal with two different situations : in the former. no objection was raised at all to the nomination, while in the latter an objection was raised on the ground of disqualification; but in the election petition additional grounds of disqualification were alleged and sought to be proved; one is concerned with a case of improper acceptance and the other with a case of improper rejection. Though some of the observations in the later decision may well have been advanced to come to a contrary conclu-son in the earlier decision, Venkatarama Ayyar, J. who was party to both the decisions, distinguished the earlier one on the ground that it was not a direct pronouncement on the question raised in the later."
In my opinion, the principle decided in the case of AIR 1959 SG 422 is applicable to the facts of the instant case. I would, therefore, hold that additional grounds of attack could be taken before the Tribunal in regard to the validity of the nomination of the appellant.
9. The additional ground of attack is that columns 2 and 5 meant to be filled up by the proposer were not duly filled up in any of the 4 nomination papers filed by the appellant. The defects' pointed out are that neither the name of the constituency in the electoral roll, in which the names of the proposer and the candidates were to be found nor the number of its part was mentioned. Columns 2 and 5 are meant for furnishing electoral roll numbers of proposer and of candidate respectively. Rule 2 (1) (b) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, states :
" "Electoral roll number' of a person means-
(i) the serial number of the entry in the electoral roll in respect of that person;
(ii) the serial number of the part of the. electoral roll in which, such entry occurs; and
(iii) the name of the constituency to which the electoral roll relates; "
At the foot of both the English and the Hindi forms it has been clearly and specifically mentioned by giving an illustration as to with what particulars and in what manner these two columns namely, columns 2 and 5 ore to be filled up. In none of the four nomination papers filed on behalf of the appellant, the part number of the electoral roll was mentioned either in column 2 or in column 5. But, at the same time, it is conceded on all hands that the electoral roll of the Dhanbad constituency where the names of the, proposers and of the candidate were entered was not given any part number. It was divided municipal ward-wise and ward numbers were given.
Strictly speaking, therefore, non-mention of the part number was not a defect in any of the nomination papers. In absence of the part number in the electoral roll a proposer is left to his discretion either not to give any distinctive mark of the portion of the electoral roll where the names of the proposer and of the candidate are to be found entered or to give such distinctive mark as he may think fit and proper. In Exts. 1, 1-A and 1-C no such distinctive mark is given either in dolumn 2 or in column 5, only the serial numbers are mentioned in both the columns including the house numbers. But in Ext. 1-B which, according to the appellant, is the least defective of the four, in column 2 besides the serial number and house number the words mentioned are ^^u;k cktkj /kuckn-** In column 5, however, only the serial number and the house number are mentioned but no other words are to be found there. In my opinion, therefore, so far as this nomination paper is concerned, there was no defect at all in filling up column No. 2 as the mohalla -- Naya Bazar, which must have had some specific ward! number was mentioned and 'Dhanbad' was also mentioned which was the name of the constituency of the electoral roll. But in Column 5 there wag a defect inasmuch as the name of the constituency was not mentioned nor the part number. The omission to mention the latter on the facts of this case, I have already observed, was, however, not a defect.
The question, therefore, arises as to whether on the particular facts and circumstances of this case, the omission to mention the name of the con-stituency in column 5 was a defect of a substantial character. Mr. K. P. Varma tried to submit that in column 4 which is meant for full postal address of candidate there is mentioned ^^u;k cktkj /kuckn-** and that on reading it together with column 5, it did Indicate that, the candidate's name was also to be found in the electoral roll of the Dhanbad constituency in the Naya Bazar part.
I am not prepared to accept this argument. It may well be that the postal address of the candidate was Naya Bazar, Dhanbad, but the candidate might be an doctor of the Dhanbad constituency from some other mohalla or even of a different con-stituency because under the law the proposer must be of the constituency for which he is proposing a candidate to stand at the election but the candi-date need not necessarily be an elector in the same constituency. I have, therefore, no difficulty in holding that even in the nomination paper (Ext. 1-B) there was a defect in column 5, namely, the omission to mention the name of the constituency.
10. The nomination paper (Ext. 1-B) was marked A/2 by the Returning Officer when it was handed aver in his office, on 6-11-58 and the receipt (Ext. 4) was granted for it. One of the arguments put forward by Mr. Varma on the basis of the provisions of Sub-section (4) of Section 33 is that, as soon as the nomination paper was presented to the Returning Officer, it was his duty to 'satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nominaiton paper are the same as those entered in the electoral rolls' and that it was incumbent upon him to permit any error to be corrected at the time of the presentation of the nomination paper if there was any defect in it; that having not been done in this case, it must be held that the defect in column 5 was no defect at all or at most it was a defect of unsubstantial character. Section 33 (4) reads as follows :
* * * * * "(4) On the presentation of a nomination, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls :
Provided that the Returning Officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked."
It is no doubt true, that, in view of this provision the Returning Officer would have been well advised to compare the names and electoral roll numbers' of the candidate and his proposer as entered in the nominntion paper with those entered in the electoral rolls, and, if he would have done so, the technical error of the omission of the name of the consti-tuency in column 5 would) have been detected and could have been allowed to be corrected at the time of the presentation of the nomination paper. But failure of the Returning Officer to follow the procedure laid down in that sub-section of Section 33 would not cure the defect and still it would be a case where there has been a failure to comply with the provisions of Section 33 (1) on the part of the candi-date in not filing a nomination paper completed in the prescribed form.
As held by the Supreme Court in Rattan Anmol Singh v. Ch. Atma Ram, AIR 1954 SC 510, the said defect could not have been allowed to be, remedied at the time of scrutiny at which the only jurisdiction of the Returning Officer was to see whether the nominations were in order and to hear and decide the objections. The Returning Officer, in such a situation, had the power under Sub-section (2) of Section 38 to reject such a nomination because there has been a failure to comply with the provisions of Section 33 (1) of the Act but, if the defect was not of a substantial character, he had no power to reject it as Sub-section (4) of Section 36 directs the Returning Officer not to reject any nomination paper on the ground of any defect which is not of a substantial character.
11. Before I deal with the authorities cited at the Bar on behalf of the contesting parties, I would like to lay stress on some special facts of this case in order to judge as to whether the said defect in column 5 in Ext. 1-B was not of a substantial character. Although I have held above that this additional ground of attack as to the validity of the nomination paper could be taken before the Tribunal, in order to judge, however, about the substantial character or otherwise of the defect, one has to bear in mind that the objection was not taken before the Returning Officer and he did not feel any difficulty in locating the name or the candidate in the electoral roll of Dhaubad constituency. The evidence of the appellant (P. W. 6) is :
"When my nomination papers were taken up the Returning Officer compared the names in the nomination papers with those in the electoral rolls."
The first respondent (P. W. 2) or anybody on his behalf has not controverted this statement of the appellant. P. W. 2 was present at the time of the scrutiny and he has deposed to the fact oF rejection of the appellant's nominations on the ground of the first defect discussed by me above but has not said a word in regard to the statement of the appellant that there was no difficulty in locating his name in the electoral roll by, the Returning Officer. I may also note here that one of the nomination papers (Ext. 1/o) filed on behalf of Dhirendra Chandra Maliick contained only the serial numbers in columns 2 and 5 and did not contain the house number or the distinctive part the name of the constituency of the electoral roll yet it was accepted as a valid nomination by the Returning Officer. His nomination paper (Ext. 1-S) which was also accepted as valid suffered from similar defects in filling up columns 2 and 5.
In these circumstances, it is clear to me that the Returning Officer did not consider this kind of defect as one of a substantial character. But the question still remains whether it was .so as it is open to the Tribunal to say that that kind of defect was of a substantial character and the nominations ought to have been rejected on that ground too. That takes me to the discussion of some of the authorities cited at the Bar on the point.
12. Mr. Varma placed very great reliance upon the case of Ajayab Singh v. Karnail Singh decided by the Election Tribunal. Hissar, reported in 6 ELR 368, which was affirmed by the Supremel Court in Karnail Singh v. Election Tribunal, Hissar, 10 ELR 189. On reference to the facts of the case as mentioned in detail in the decision of the Tribunal, it would be noticed that in column 8 (equivalent to column 5 of the instant nomination paper) of the nomination paper of Shri Sher Singh the serial number was mentioned as 1400 (ward No. 1) but the name of the sub-division -- Sirsa-- one of the two towns which composed the constituency was not mentioned as was required under the rules. No candidate had objected to the nomination paper of Shri Sher Singh on any ground whatsoever but the Returning Officer rejected it suo motu.
The evidence in the case was that there was no difficulty in locating the entry relating to Sher : Singh in the electoral rolls and that the Returning Officer at once located it. In those circumstances it was held by the Tribunal that the defect was a technical one and was not of a substantial character. I may note here that the word 'technical' in the 4th sub-section of Section 36 has been deleted by the Representation, of the People (Second Amendment) Act, 1956. The Supreme Court delivered a very short judgment approving the aforesaid decision of the Tribunal and it said :
"The Tribunal in this case held that the nomination paper of Sher Singh was wrongly rejected on the ground that column No. 8 in the nomination form was not duly filled up. The only defect pointed out was that the name of the sub-division was not stated therein, but on the evidence it was quite clear that there was no difficulty in identifying the candidate and the candidate himself pointed out to the Returning Officer the entry oi his name in the electoral roll. The defect, in these circumstances, was a technical one and the Tribunal was perfectly right in holding that the defect was not 91/2 a substantial character and that the nomination paper should not have been rejected."
Relying upon the Supreme Court decision, the Kerala High Court has held in Rosamma Purpose v. Balakrishnan Nair, AIR 1958 Kerala 154 :
"When a wrong part number is furnished it cannot be said that the nomination paper has been duly completed in the prescribed form, but whether the defect is substantial or not will depend on whether it is such as to defeat the purpose of the requirement that the electoral roll number of the proposer should be entered in the nomination paper. Obviously the purpose is to ensure that the proposer's name can be readily located in the electoral roll so as to enable the Returning Officer to satisfy himself that the proposer is an elector of the constituency as required by Section 33(1) before he accepts the nomination under Section 36(6)."
In my opinion, these decisions support the case of the appellant to the fullest extent
13. Mr. A. K, Ray placed great reliance on our decision in Ramayan Shukla's case, 1959 BLJR 162 : (AIR 1959 Pat 419) on this point and drew our attention to the following passage in the judgment of my learned brother at p. 167 of (BLJR) : (at p. 423 of AIR) :
"In my judgment, omission of particulars against items Nos. 2 and 5 of each of the nomination papers constitutes a defect of a substantial character within. the meaning of Sub-section (4) of Section 36 of the Act of 1951 ....."
But oh reference to the facts of this case, it would be noticed that neither the part number nor the name of the constituency was mentioned in columns 2 and 5, and my learned brother observed in regard to the first defect :
"It seems to me, however, that, in the absence of the serial number of the part the proposer should have given such particulars as could enable the Returning Officer to identify the relevant entries. His failure to give those particulars created a practical difficulty and made the task of the Returning Officer extremely difficult and cumbrous, especially when neither he himself nor the candidate or any one else on his behalf was present to point out the relevant entries to him."
In such a situation, with reference to the two detects, the reasons for the conclusion arrived at by my learned brother in the passage quoted above on which reliance was placed on behalf of the first respondent as mentioned in the judgment are :
".....because (1) the Returning) Officer could not ascertain the relevant entries owing to the omission of particulars of the area in which the names are entered and the failure of the candidate or the proposer to point out those entries or to get them pointed out to the Returning Officer, and (2) he could not ascertain whether the proposer and the candidate were, respectively, qualified to bo proposer and the candidate."
Mr. Ray also relied on the passage in the Halsbury's-Laws of England (Third Edn.) at p. 95 quoted in the judgment of my learned brother in Rama-van Shukla's case, 1959 BLJR 162 : (AIR 1959 Pat 419) as also on the two English decisions discussed therein. But I may venture to point out that the law in India in this regard is not exactly the same as in England. A mere omission of some particular in England may be an incurable defect but in India it will depend on the facts and circumstances of a particular case. The English law) and the authorities were relied upon in Ramayan Shukla's case 1959 BLJR 162 : (AIR 1959 Pat 419) because on the facts of that case they were quite applicable while, on the facts of the instant case, I will presently show, they are not quite apposite.
14. In R. v. Tugwell, (1868) 3 Q.B. 704, the facts to be found are that at the election of councillors every burgess may vote for any number of persons not exceeding the number of councillors to be chosen, by delivering to the presiding officer 'a voting paper containing the Christian names and surnames of the persons for whom ha votes, with their respective places of abodo and descriptions'. Nine of the voting papers in favour of Thomas Jackson, a physician, gave his Christian name and surname and his place o£ abode accurately, but they contained no further 'description'. Section 142 of the relevant Act governing that election provided that "no misnomer or inaccurate description of any person, body corporate, or, place, named in any schedule to this act, or in any roll, list, notice, or voting paper required by this act, shall hinder the full oneration of this act with respect to such parson, body corporate, or place, provided that the description of such person, body corporate, or place be such as to be commonly understood.."
In that case, Cockburn, C.J. held that the nine votes must be struck off as Section 142 did not cure the defect. The reasoning is :
"Now tins is not an inaccurate description, but a total omission of 'description,' which is one of the things required by Section 32, and the omission is not cared by Section 142, and is therefore fatal to the validity of the voting papers; no doubt there is a proviso that inaccuracy is not to vitiate, provided the description be such as to be commonly understood but the words are not large enough to cure a total omission."' It is to be remembered that the words of Section 36(4) of the Indian Representation of the People Act, 1951, and specially after the Second Amendment of 1956, are 'large enough to cure a total omission' on the facts and in the circumstances of a particular case. In Baldwin v. Ellis, (1929) 1 KB 273, the nomination papers of four persons nominated for election as rural district councillors merely stated in column 5, under the heading. "How qualified,"
that the persons nominated were "Local Govern-ment electors," and did not state the name of the parish for which they were qualified as local government electors, as required by Rule 4 of the Rural District Councillor's Election Order, 1898. It was, therefore, held by Horridge, J., at page 283 -
"I do not think that the statement of 'Local Government elector' is a mere inaccurate description of the person nominated. In my view the omission to state the name of the parish for which the person nominated elector, is qualified as a local government elector is a non-compliance with the requirements of Rule 4 of the Local Government Boars's Order of 1898, and that defect is not cured by Rule 33."
I may note here that Section 39(5) of the English Representation of the People Act, 1949 (12 and 13 Geo. 6 Ch. 68) makes a similar provision and runs as follows :
"No misnomer or inaccurate description of any person or place named in the register of parliamentary electors or in the register of local government electors or in any list, record, proxy paper, nomination paper, ballot paper, notice or other document required for the purposes of this part of this Act shall affect the full operation of the document with respect to that person or place in any case where the description of the person or place is such as to be commonly understood."
The English law and authorities are, therefore, clearly distinguishable.
15. The next case cited by Mr. Ray is the decision of the Supreme Court in AIR 1954 S. C. 510. In that case the proposer and the seconder had put their thumb marks on the nomination papers instead of signatures but the thumb marks were not attested. The Returning Officer held that without attestation they were invalid and so rejected them. The law required that in case of illiterate persons their thumb marks had to be attested. In those circumstances, it was held by the Supreme Court :
"The four nomination papers we are concerned with were not 'signed' by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been 'signed' in the special way which the Act requires in such cases. If they were not 'signed' either in one way or the other, then it is clear that they have not been 'subscribed' because 'subscribing' imports a 'signature' and as the Act sets out the only kinds of 'signatures' which it will recognise as 'signing' for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was, therefore, bound to reject under Section 36(2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4)."
I would like to quote another passage from the samp judgment which occurs in reference to the consideration of the question as to whether that defect was of a technical and substantial character, "The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer hsd omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably 'in a case like that', be regarded as an unsubstantial technicality."
In the instant case I have shown above that the Returning Officer was able to locate the name of the candidate as also of his proposer in the electoral roll of the Dhanbad Constituency and therefore he was satisfied that they were respectively entitled to stand at and to propose for the election. The electoral roll is Exhibit B in the records of this case and we have also been shown the entries relating to the proposer and the candidate in that roll. In Dev Kanta Barooah v. Khusharam Nath, 15 ELR 66 : (AIR 1959 Assam 68) it was held by the Assam High Court that non-mention of the words 'Assembly constituency' in columns 2 and 3 is not a defect of substantial character. It is no doubt true that in that case the name 'Nowgong' had been mentioned and, therefore, on facts, that was a better case than the present one, yet, in my 'opinon, the principle of that case is applicable to the facts of this case also, specially when the Returning Officer was satisfied about the identity and the competency of the proposer and the candidate.
16. Reliance was placed by Mr. Ray on P. N. Balasubrahmanyan v. Election Tribunal of North Aroot at Vellore, AIR 1954 Mad 730. In that case the candidate's name was not included in the roll of any Parliamentary constituency on the date on which he filed has nomination paper for standing at the election to a seat in the Lok Sahha, Naturally, therefore, he could not give in column 8 his serial number in the electoral roll of the constituency in which his name was to bo found. Later on, as a result of an application made by him to the Election Commission, his name was eventually included in the Parliamentary roll of the Salem constituency on 27-11-1951. The scrutiny was held on 28-11-1951. The Returning Officer accepting the objection refected the nomination paper on the ground that it was incomplete for. want of the particulars to be furnished against columns 7 and 8. The High Court held.
"In our opinion it was a substantial defect which the Returning Officer had no jurisdiction to overlook. Without these particulars the Returning Officer could not decide whether a candidate is or is not qualified. Without these particulars 'ex facie' there was nothing to show that the petitioner was in fact a qualified elector in respect of the constituency."
This case, therefore, is clearly distinguishable and does not support the contention put forward an behalf of the respondent.
17. The next case referred to on behalf of the first respondent is Rup Lal v. Jugraj Singh AIR 1959 Punj 130. In that case at the time of scrutiny the names of the proposers had been scored through in the supplementary electoral roll and with reference to the particulars given in the nomination papers they could not be located elsewhere at the time of the scrutiny by the Returning Officer. In those circumstances, he rejected them. The finding of the Tribunal was that during the entire period fixed for scrutiny it was not shown to the Returning Officer that the two proposers were shown wider other- numbers in the electoral rolls. In such a situation, it was held by the High Court :
"All the same there should not be so much divergence between the entries in the nomination paper and the relevant entries in the electoral rolls that the Returning Officer is left in doubt as to whether they relate to the same person. If there is any such doubt and it is not resolved at the scrutiny stage, the Returning Officer has no alternative but to reject the nomination,"
The distinction between that case and the present one is apparent and needs no dilation.
18. In regard to the new defects which were pointed out to the Tribunal in the nomination : papers, the learned Member has observed :
"The failure on the part of the proposer to give those details created a practical difficulty and made the task of the Returning Officer extremely difficult and cumbrous because the electoral roll of this constituency is divided into parts and the same number is to be found in several parts."
In my opinion, this is an assumption which is against the evidence on record as discussed by me above. The Tribunal also says that the proposer should have also given the name of the constituency against items 2 and 5 of the nomination papers as required by Rule 2(b) (iii) of the Election Petition Rules, 1956, and mat defect is of a substantial character. I have shown above that in Exhibit 1/b in column 2 the name of the constituency was given although the words "Assembly constituency' were not there and in column 5, on the facts and in the circumstances of this case,. non-mention of the name of the constituency was not a defect of a substantial character.
19. On a careful consideration of the facts and circumstances of this case, I am of the view that the nomination of the appellant was improperly rejected by the Returning Officer and the case, therefore, is covered by Section 100(1) (c) of the Representation of the People Act, 1951.
20. In regard to the various corrupt practices alleged to have been committed by or on behalf of the first respondent, only one which was pressed : before us by Mr. Varma in the beginning of the argument on behalf of the appellant is that alleged in paragraph 17 of his petition which is to the following effect :
"That Respondent No. 1 got a statement of false fact published in a paper 'Awaz', the local weakly paper, against tho personal character and conduct of a candidate, namely, Sri Binode Bihar Mahton, Respondent No. 3, stating therein that he had taken money from a Raja for withdrawing his candidature, and the said paper was distributed by the Respondent No. 1, throughout the constituency which prejudiced the election of Sri Binode Bihari Mahton."
Mr. Varma started arguing before us that this paper was owned by the first respondent as his wife was a partner in the firm owning the paper. This allegation is not to be found in the 17th paragraph nor has it been substantiated on the evidence on record. Various lacunae and defects were seen at the time of argument in regard to this alleged corrupt practice also and, therefore, as stated above. Mr. Varma could not pursue this point and press it to the last. I need not, therefore, pursue and discuss this in great detail and would rest content by saying that tho point has no substance and the decision of the Tribunal in this regard could not be attacked before us with any amount of success.
21. In view of my finding that the nomination of the appellant has been improperly rejected the appeal succeeds and is allowed with costs; hearing fee Rs. 250/-. The decision of the Tribunal is set aside and the election of Shri Ranglal Choudhary, the returned candidate, to the Bihar Legislative Assembly from the Dhanbad Constituency, is declared void.
Sahai, J.
22. I concur and I desire to add only a few words in connection with the defects in column Nos. 2 and 5 of the nomination papers (exhibits 1 to 1/c).
23. The facts of Ramayan Shukla's case 1959 BLJR 162 : (AIR 1959 Pat 419) referred to by my learned Brother, are quite distinguishable from those of the present case. No particulars except the serial numbers of the candidate, Shivdayal Dubey, and the proposer in the electoral roll were given in that case, whereas the serial numbers and house numbers of both the candidate and the proposer have been given in the present case, along with the indication that their names are to be found in the electoral roll relating to Mahalla Naya Bazar of Dhanbad.
Secondly, neither the candidate nor the pro-poser was present in that case at the time of scrutiny to point out their names in the electoral roll to the Returning Officer; but, in the present case, the candidate pointed out his name to the Returning Officer without any objection by the other candidates or their representatives. As a result, the Returning Officer took it as one of the grounds for rejecting the nomination, papers in that case that the electoral roll number of the candidate and the proposer had not been mentioned; but the Returning Officer, in the present case did not take that as a ground for rejecting the nomination papers.
24. In my opinion, the principle for ascertaining whether a defect is one of a substantial character or not is simple and clear. The provisions requiring the candidate and his proposer to give out particulars in the nomination papers have all been made with this purpose in view that the Returning Officer should be able to locate the names of the candidate and the proposer in the electoral roll quickly and without any difficulty. If the defect is such as to defeat this purpose, it must be held to be of a substantial character. If, on the other hand, the. names of the candidate and the proposer can be located easily in the electoral roll in spite of the defect, or, if the defect is not of any importance, and the candidate or the. proposer is present to point out their names in the electoral roll to the Returning Officer, the defect cannot be held to be one of a substantial character. This is the view which I have expressed in Ramayan Shukla's case, 1959 BLJR 162 : (ATR 1959 Fat 419) in the following words :
"An omission which tends to defeat the purpose behind the provision requiring these particulars to be given must, therefore, be held to be material but the degree of importance will be different in different circumstances. If the entry can be ascertained easily or. if the particular which has been omitted to be mentioned or which contains some misdescription is not important and the candidate or his proposer points out the entry to the Returning Officer or is prepared to point it out, it cannot be described to be a defect of a substantial character."
It seems to me that this view receives- full support from the decision of the Supreme Court in 10 ELR 189.
25. On application of the aforesaid principle to the facts of Ramayan Shukla's case, 1959 BLJR 162 : (AIR 1959 Pat 419) we came to the conclusion that the Returning Officer was right in rejecting the nomination papers. When the same principle is applied to the facts of the present case, the conclu sion reached by my learned Brother inevitably follows.