Patna High Court
Daya Nand Sahay vs Kapil Sibal And Ors. on 27 April, 2000
Equivalent citations: AIR2000PAT309, 2000(48)BLJR1424, AIR 2000 PATNA 309, (2000) 4 PAT LJR 757 2000 BLJR 2 1424, 2000 BLJR 2 1424
ORDER R.N. Sahay, J.
1. By this application under Sections 80, 80-A and 81 of the Representation of the People Act, 1951 the petitioner has called in question the election of Sri Kapil Sibal respondent No. 1 as a member of Council of States in the election held on 18th day of June, 1998. Respondent Nos. 2 to 7 are remaining elected members of the Rajya Sabha. Election of respondent No. 1 has been assailed on the ground that the Re-turnlng Officer improperly accepted the nomination paper of respondent No, 1 as his nomination paper was not filled in accordance with Section 33(1) of the Representation of the People Act, 1951. In a nutshell, case of the election-petitioner is that the respondent No. 1 had not filled at the columns of the nomination paper properly as he did not give his postal address in his nomination paper in the relevant column which requires imperatively to furnish complete and full postal address so that a letter may reach the candidate's house easily and without any difficulty. However, respondent No. 1 instead of giving his complete and full postal address has given merely Shastri Nagar. Patna. He has not given his house number, name of the post office, number of Pin Code and the name of the district. So it was no more than an apology of an address hence it was equal to not giving any address at all.
2. The petitioner has sought a declaration that he should be declared as duly elected member of Council of the State after setting aside the election of respondent No. 1. There were eight contestants Including the Election-petitioner for election of seven members of the Council for the State in the State of Bihar. The election-petitioner was an independent candidate but he was supported by Samta Party. Respondent No. 1 represented Indian National Congress. The other respondents likewise were candidates of different parties. Polling of the said election was held on 18-6-1998 and the counting of the ballot papers were completed on the same day. After counting the value of first preference vote in the first count was determined. After completing first round of counting, quota was determined at 3926. Thereafter process of distribution of surplus votes and method of elimination were followed. In the end the petitioner was eliminated and respondents Nos. 1 to 7 were declared elected to Council of States from the State of Bihar.
3. It is contended that in case nomination paper of respondent No. 1 was rejected by the Returning Officer, the number of contesting candidate would have been reduced from eight to seven which was equal to the number of seats required to be filled up. In this situation, the petitioner would have been declared elected uncontested as provided under Section 53(2) of the Act. It is contended that the nomination paper tiled by respondent No. 1 ought to have been rejected outright at the time of scrutiny because respondent No. 1 in his nomination paper had not furnished complete and full address and such defect was defect of substantial character. The Returning Officer had no alternative but to reject the nomination paper of respondent No. 1 under Section 36(2)(b) on account of non-compliance of mandatory provisions of Section 33 of the Act.
4. The nomination paper filed by respondent No. 1 is Ext. 1. Name of respondent No. 1 appears at serial No. 1829, Part l8 Assembly Constituency No. 206. Patna. The respondent No. 1 has given his address as Shastri Nagar, Patna. Respondent No. 1 has prayed for dismissing the election petition on the ground that the election petition is an abuse of the process of the Court. It does not disclose any cause of action nor does the petitioner has any cause of action. Respondent No.l denied that nomination paper of respondent No. 1 was improperly accepted by the Returning Officer and the petitioner is entitled to be declared undontested. Respondent No. 1 was present before the Returning Officer. He found PS nomination paper valid and in order. It is stated in the written statement that neither the petitioner nor any other contesting candidate or their representatives or any other person authorised to be present objected to the nomination papers of respondent No. 1 or objected to any irregularity in respect thereof. Since no objection was filed, Returning Officer was pleased to accept the nomination paper in according with law. The Returning Officer has scrutinised the nomination paper before accepting it. Respondent No. 1 asserts that his nomination paper was properly accepted and he was duly elected. His nomination paper was duly filled up in accordance with law and in prescribed manner. It is denied that respondent No. 1 did not fill all the columns. Nomination paper was duly filled in. Respondent No. 1 had filled correct postal address. It is contended that there is definite purpose and object to electoral rolls published with reference to the provisions of the Representation of the People Act, 1951 and the nomination paper was duly filled in consistent with the particulars reflected in the electoral roll. The purpose of scrutiny is to identify the contesting candidate with reference to the electoral roll along with particulars provided in the nomination paper that the contesting candidate is the one whose name finds mention in the electoral roll. It Is submitted that no house number was given in the nomination paper since there are many colonies in Shastri Nagar where there is no house number.
5. Sri P. Chidambaram, learned Senior Counsel for the respondent No. 1 relied on the provisions contained in the Constitution of India and Representation of the People Act with regard to qualification of the elector. He submitted that filing of nomination paper is to establish that the contesting candidate is qualified in all respect to participate in the election and to ensure that the person filing the nomination paper is the same person whose name is found in the electoral roll. The first part of the nomination paper requires the proposers of the contesting candidate to fill in the form to ensure that the candidate's particulars are duly filled in and are consistent with the particulars reflected in the electoral roll. The second part of the nomination paper relates to the declaration given by the candidate which requires him to declare his age, his name and a declaration to the effect that he is a citizen of India. The declaration relates to the eligibility conditions which must be duly filled in and the conditions satisfied. It is asserted that every column of the nomination paper was filled up with abundant precaution giving all relevant particulars. It is denied that in absence of complete and full postal address the nomination is invalid.
6. Mr. S.N.P. Sharma, learned counsel for the election-petitioner has invited my attention to the address given by respondent No. 1 in the electoral roll of Patna Assembly Constituency. He submitted that there is wide variance between the nomination paper filed by the respondent No. 1 and the address in the electoral roll. Respondent No. 1 in his evidence has filed document to show that he has been receiving letters and important documents by post at the postal address given in the nomination paper. Sri Sharma has placed strong reliance on Dharam Singh Rathi v. Hari Singh (1975) 2 SCC 240: (AIR 1975 SC 1274), in support of his contention that in absence of complete postal address of respondent No. 1 in his nomination paper, the nomination paper suffers from defect of substantial character which was illegally accepted by the Returning Officer. The election of respondent No. 1 is, therefore, void.
7. In Dharam Singh Rathi's case [AIR 1975 SC 1274) one candidate Jagan Nath had filed two nomination papers in the prescribed Form No. 2B prescribed under Rule 4 of the Conduct of Election Rules, 1961. In both the papers in the column "His postal address" the only thing written was "Smalkha Mandi". The Returning Officer rejected both the nomination papers of Jagan Nath on the ground that the candidate had not given the name of his father and his full address. The name given as Jagan Nath and address as Smalkha Mandi were not sufficient. The election of elected candidate was challenged before Punjab and Haryana High Court and the said 1 ligh Court following the decision of the Apex Court in Brijendralal Gupta v. Jwalaprasad, AIR 1960 SC J 1049 and Prahlad Khandelwai v. Narendra Kumar Salve (1973) 3 SCC 104: (AIR 1973 SC 178), held that the nomination paper suffered from a defect of non-compliance of Section 33(1) of the Act and the defect was of the substantial character. The Supreme Court affirmed the decision of Punjab and Haryana High Court. Untwalia. J. speaking for the Bench in para 3 of the report observed at follows :
"We concur in the view of the High Court that filling up the column of postal address of the candidate in the nomination paper is necessary. The High Court has referred to several provisions in the Act and the Rules to point out the purpose of supplying the postal address. It appears that the name of the post office concerning Smalkha Mandi, Smalkha village, Modeltown, etc. was Smalkha. The name of the post office was not Smalkha Mandi. On the face of the address given in the nomination papers there was defect of incorrect mention of the name of the post office. The name of the district was also not given. It has come in the evidence of the respondent that there were other places of the names of Smalkha and Smalkha Mandi in the States of Haryana and Rajasthan, Even ignoring the defects aforesaid the High Court has noticed on consideration of evidence and specially of Jagan Nath himself that the postal address given in either of his nomination forms was so very incomplete that no letter addressed to him to that address could possibly be delivered to him. There were several persons of the name of Jagan Nath in Smalkha Mai J, Smalkha village. Jagan Nath was serving at the shop of a sweetmeat seller, Railway Road, Smalkha Mandi and was resident of Bharbbujanwali Gali. The interesting part of this case is that Jagan Nath did not file an election petition. It was filed by the brother of an unsuccessful candidate. Eventually Jagan Nath was impleaded as a respondent in the election petition. He filed a written statement and examined himself as RW-5. His definite case was that until and unless some more details were given in his postal address no letter on that skeleton description as given in the nomination papers could not delivered to him by the postal authorities. Taking the totality of the circumstances the High Court has rightly held that no postal address in effect was given on either of the nomination papers of Jagan Nath."
8. Hon'ble Supreme Court held that the defect of non-supply of postal address is not covered by the proviso to Sub-section (4) of Section 33 of the Act. This defect cannot be rectified.
9. Sri P. Chidambaram has distinguished the ratio in Dharam Singh Rathi's case (AIR 1975 SC 1274) (supra) with the present case. He submitted that the decision was distinguishable on facts which is apparent from the paragraph quoted above. The candidate whose nomination paper was rejected admitted in his evidence that unless some more details are given in the address, no letter could be delivered to him by the postal authorities,
10. The ratio of Dharam Singh Rathi's case (AIR 1975 SC 1274) (supra) was considered in Rit Lal Prasad Verma v. Shri Mumtaz Ansari (E. P. No. 2 of 1991 (R)) disposed of on llth January, 1995. The election of returned candidate was set aside on the ground that nomination paper of elected candidate relating to postal address was not properly filled up and this defect was of substantial character and on this ground the nomination paper was defective. The elected candidate had given his address in the nomination paper as "Phulwari". It was held that there is no post office like "Phulwari" in the list of post office issued by the Central Government for the State of Bihar. There is one post office in the iist i.e. "Phulwarisharif in the district of Patna. The operation of this judgment was stayed by the Hon'ble Supreme Court, This decision is distinguishable on facts,
11. Qualification for membership of Council of States is provided in Section 3 of the Representation of the People Act, 1951 which provides as follows :
"A person shall not be qualified to be chosen as a representative of any State or Union Territory In the Council of States unless he is an elector for a Parliamentary Constituency in that State or territory".
12. It is not disputed nor can be disputed that respondent No. 1 is an elector of Patna Parliamentary Constituency. It is evident that the name of Respondent No. 1 finds place at serial No. 1829 part 19 Patna West Assembly Constituency. Respondent No. 1 does not suffer from any other disqualification. Electoral Roll is conclusive to prove that he has necessary qualification as he is ordinary resident of that constituency. He is above the minimum qualifying age. Nobody raised any objection about the inclusion of the name of respondent No. 1 in the electoral roll. Respondent No. 1 presented his nomination paper in Form 2-C appended to the Conduct of the Election Rules, 1961. He gave his postal address in his nomination paper as Shastri Nagar, Patna.
13. The contention of Sri Sharma; learned counsel for the Election Petitioner is that respondent No. 1 had not furnished Road Number, House Number, MohaJla etc. in his postal address and thus there was no compliance of Sub-section (1) of Section 33 of the Representation of the People Act. In other words, it is contended that the nomination paper filed by respondent No. 1 was not completely in the prescribed form and as such his nomination paper was liable to be rejected.
14. Section 36 of the Representation of the People Act, 1951 provides for scrutiny of nomination papers and rejection of nomina-
tion paper on any of the following grounds :--
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :--
Articles 84, 102, 173 and 191.
Part II of this Act and Ss. 4 and 14 of the Government of Union Territories Act, 1963. or
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
15. It is not the case of the petitioner that there was total non-compliance of Section 33 of the Representation of the People Act which entitled the Returning Officer to reject the nomination paper in terms of Clause (b) of Sub-section (2) of Section 36 of the Act.
16. Under Sub-section (4) of Section 36 of the Act the Returning Officer shall not reject any nomination paper on the ground of any delect which is not of substantial character. The omission of not furnishing House number, Road number etc. in the nomination paper by no stretch of imagination can be held to be defect of substantial character entitling the Returning Officer to reject the nomination paper. Respondent No. 1 was only required to give his postal address which he had furnished in the nomination paper.
17. In Prahlad Das Khandelwal v. Narendra Kumar Salve, AIR 1973 SC 178, relied upon by Sri Sharma. nomination paper was rejected as the name of the Constituency was not stated in the nomination form. It was held by the Apex Court that the Returning Officer was, therefore, justified in rejecting the nomination form.
18. In Rangilal Chaudhari v. Dahu Sao. AIR 1962 SC 1248, Hindi nomination form did not conform with prescribed form under the Rules and because of this mistake in the form the name of the constituency was not written. The Supreme Court held that omission was not of a substantial character as to entail rejection of the nomination form. This was so because the mistake had occurred due to defect in the printing of the nomina-
tion paper. The Supreme Court appears to have taken note of two important facts; firstly the election was a by-election and there was no question of any dispute about the constituency for which the nomination is to be treated and secondly, there was defect in the printed nomination form.
19. Sub-section (4) of Section 33 clearly provides that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. Thus the power given to the Presiding Officers under Rule 35(4) of the Conduct of Elections Rules, 1961 to overlook clerical mistakes in identifying voters while allowing them to vote are also available to the Returning Officers ascertaining their identity while examining the nomination. If the Identity of person as a person having voting right is established and it is established that person enrolled in electoral roll is the same, the description error would be Immaterial, Rule 4 of the Conduct of Election Rules, 1961 shows that the nomination paper presented under Section 33(1) must specify only two requirements so far as the name of the proposer and candidate are concerned under Items (1) and (3) thereof viz. "full name of proposer" and "name of candidate's father/ husband".
20. Bombay High Court in ILR (1964) Bom 114 held that once the Identity of a candidate is established, any other defect not affecting that Identity would be a clerical or technical defect and not a substantial defect.
21. In Ram Avadhesh Singh v. Sumitra Devt, AIR 1972 SC 580, a candidate had entered his roll number in the electoral roll of Arrah Constituency and this entry was already deleted and did not mention the roll number in Sandesh Constituency in which his name had'contlnued at the time of nomination but did show certified copy of electoral roll of Sandesh Constituency to the Reluming Officer, Arrah. The Supreme Court found that the defect was not of a substantial character and hence the nomination of the candidate was valid. The Supreme Court made following observations :--
'The Implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That is why the Legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected. What is of importance In an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act, The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that he is not otherwise disqualified. In other words those informations relate to the proof of the required qualifications...... From the combined reading of Sections 33 and 36 (of the Act of 1951) it is clear that a misdescription as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as material defect in the nomination paper."
22. The decisions hereinabove relied upon by Sri Sharma and the decision in AIR 1975 SC 1612 have been considered and distinguished on facts. As a result of discussions above the case of the election petitioner that the nomination paper of respondent No. 1 should have been rejected by the Returning Officer on account of non-compliance of Section 33( 1) of the Representation of the People Act is not substantiated and accordingly th'e election petition must be dismissed.
23. In the result, the election petition fails and is accordingly dismissed but without costs.