Harcharan Singh versus Mohinder Singh & Ors.

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HARCHARAN SINGH

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A

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v.

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MOHINDER SINGH & ORS.

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May I, 1968

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[J. C. SHAH AND Y. BHARGAVA, JJ.)

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Reprr<r11w1io11 of thr l'eop/e Act (43 of 1951 ) .. tr. 33(5) and 36(4)-Certified copy of <'<!rli{ic:arc filed hv candidate \'lro is a voter in diff.::re11t constituency fails to set ou1 (igc, and house number-I/ dcfecr sub,·rn11tial to reject fl()/nination._ The nppi:llant filed his nomination paper for a se.;:ll to the Vidban Sabha of a constituency different fron1 the one in v.•hich his name was included as a voter. With his nomin.;1tion paper, the appellant had producl.-d an applicarion for a certified extract on the reverse of which \'as recorded a. certificate. containing relevant entries from the Voters· list. "fhe entries in certificate did not t;1\ly in all respects with the entries jn the voters' list. in that it failed to set out the 3J?C of he -appellant and hi'i huusc number. No objection to the nomination paper was raised before the returning officer. ·rhc returning officer accepted the nomination and held that the particular~ "'·ere. correct. and that the appcllant was over 15 years of age. The appellant was declared elected. "fhc first respondent. an unuccessful candidate, challen.ed the validity of the election of the appellant on the ground that the appellant had failed to produce before the scrutiny of nomination paper. lhe electoral roll or a certified copy of the relevant entries in the roll in which his name wa-; included as voter as requird by s. 33 (5) of the Representation of the People Act. The llih Court sci aside the election. In appeal. this Court :

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HELD : The appeal must be allowed.

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The copy of the relevant entries frnm the electoral roll relating to the appellant was defective. But under s. 36( 4) the returning officer is entitled to accept the nomination paper even if it he defective. if the defect is not of a substantial character : indeed he is enjoined not to reject ·the non1ination paper unlcs-; the defect is of a suhslantial character. The details for indentifvin.J! the appellant as an elector \·ere duly furnish· ed. His ac- w;1s mentioned in the nomination paper. though it was not 10 be found in the certified copy produced by the appell.im. No obicc· tion \i.:as raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at the scrutiny. The returning ofT1ccr satisfied himself by personal inquiry th:-.t the ppcltant \vas above the :lge of twenty·five and cornpctent to stand for election. It wa.o; true that he did not come to the conclusion th:-it the defect in the copy of the clt.-ctoral roll v;as of a substantial charctcr. [204 G-H; 205 A-Bl The decision of the returning officer in the matter is not final ind in appropri:ltc cases it is open to the ('..()urt lo reach a different COf!· c:uion in <i.n election petition. Jn this case. the appellant was not ncgh!...-nl nor .... ·as the purity of election proccs:. likely to he affcctd on iiccount of the defects in the copv produced by the appellant. The defects in the certificate v.·erc not of :1 suhstantial character. Therefore the retl1;·nin" officer did not err in not rcjcctin the nomination paper. ' [204 B-C] Sri Barn Ram v. Sh,.imati Prasnnni & Ors. [1959] SC.R. 1403, referred 10.

B

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c

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D

E

F -

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G

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II

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HARCHARAN SINGH V. MOHINDER SINGH (Shah, J.) 19 9·

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•

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A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1554 of. 1967.

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Appeal from the judgment and order dated September 1, 1967 of the Punjab and Haryana High Court in Election Petition No. 4 of 1967.

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•

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S. V. Gupte, Mehra Singh Chaddah and Harbans Singh, for B the appellant. A. K. Sen, R. L. Kohli and J. C. Ta/war, for respondent No. I.

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The Judgment of the Court was delivered by

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..

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Shah, J. At the general elections held in February 1967 the

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c appellant polled the largest number of votes and was declared elected to the Punjab Vidhan Sabha from the Zira Constitue'lcy . The first respondent S. Mohinder Singh, who was a candidate at the election, applied to tlle High Court of Punjab for setting. a5ide the election of the appellant on the ground that the nomination of the appellant who was not a voter in the Zira Constitu-

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D ency was improperly accepted by the Returning Officer. for the appellant had failed to file before the scrutiny a copy of the electoral roll or the relevant part thereof or a certified copy of the· relevant entries of the poll pertaining to the constituency to which he belonged, and that the result of tlle election to the Zira Constituency insofar as it concerned the appellant was materially affected by improper acceptance of his nomination. The High

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E Court upheld the contention and set aside the election of the· appellant and declared the election of the appellant void under s. lOO(l)(d)(i) of the Representation of the People Act, 1951. Against that order the appellant has appealed to this Court.

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The name of the appellant is included as a voter in the Gid-

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derbha Constituency, and his name is not included in the !ist of

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F electors in the Zira Constituency. But on that account he was not disqualified from standing for election from the Zira Constituency. The validity of the election of the appellant was challenged only on the ground that the appellant had failed to produce before the scrutiny of nomination papers, the electoral roll, or a cert;fied copy of the relevant entries in that roll concerning him.

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G By sub-s. ( 4) of s. 33 of the Act the returning officer is dirncted to satisfy himself when the nomination paper is prescribed that the names and electoral numbers of the candidate and his proposer as entered in the nomination paper are the slmc as tho5e entered in the electoral rolls. Sub-section (5) provides th3t where the candidate is an elector of a different constituency

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H a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomi:;ation papers, be produced before the returning officer at the time of

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11 %9) I S C.R.

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200

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SlJl'ROll: COt:RT REPORTS

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scrutiny. The appellant not beini; an elector in the Zira Constitu-ency, he had to produce either with the nomination paper or at the time of scrutiny the relevant part of the electoral roll. or " certified copy of -the relevant entries in the electoral roll. Section 36 deals with the scrutinv of nomination. Hv sub-s. 12) of s. 3h it is provided : - •

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"(2) The returning ol!iccr sha\ then examine the nomination papers and-shall decide all objections wli.ch may be made to any nomination, and may. either on such objections, or on his own molion. after such summary inquiry. if any, ;is he thinks necessary, reject any nomination on any of the following grounds :

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(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for hcing chosen to fill the seat under any of the following provisions that may be applicable. namely :

A

B

c

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._..

Articles 84, 102, 173 and 191.

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(h) that there has been a failure to comply with any of the provisions of section 33 or seetkn 34; or

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(c) ,, By sub-s. ( 4) the rcturnin~ ofliccr is enjoined not to reject any nomination paper on the ground of any defect which is not of a ,;utantial character. Sub-section ( 7) of s. 36 provid> :

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"For the purposes of this section, a certified copy of an entry in the electoral roll for the time hcing in force of a cmmituency shal! be conclusive evidence of the fact that the person referred to in that entry is 3!1 elector for that constituency. unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation <Jf the People Act. 1950."

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D

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E

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F -

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This Court in Sri lJ11r11 Ram v. Shrimati Prasanni & Ors. ( ') 0bservcd at p. 1418 :

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"Sub-section (5) of s. 33 deals with the stage of the scrutiny of the nominc1tion papers and it provides that where a candidate is an elector of a different constituency, a copv of the electoral roll of that constituency or the rclevimt part thereof or a certified copy of the relevant cntrv of such roll shall. unless it is filed along with the n01i1ination paper, be produced hoforc tl1e returnin2 officer at the time of the scrutiny. It is thus clear that when the sta~e of scrutiny is reached the (t) [19l9[ S.C.R. 14m.

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G

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H

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HARCHARAN SINGH v. MOHINDER SINGH (Shah, J.)

201

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•

A

B

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D

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F

G

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returning oJlicer has to be satisfied that the candidate is an elector of a different constituency and for that purpose the statute has provided the mode of proof. Section 36, sub-s. ( 7) lays down that the certified copies which are required to be produced under s. 33(5) shall be conclusive evidence of the fact that the person referred to in the relevant entry is an elector of that constituency. In other words, the scheme of the Act appears to be that where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive evidence of the said fact."

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The appellant concedes ·that with his nomination paper he did not produce the electoral roll or a copy of the relevant part thereof of the Gidderbha Constituency. He, however, pleaded that at the time of the scrutiny of the nomination papers he had produced before the returning ollicer copies of the electoral roll. and had requested that officer to keep the copies of the roll on !:is file if he needed them, and the returning officer had said tha1 he did not need the copies of the electoral roll. This case was not set up by the appellant in his reply to the election petition. The returning officer Sher Singh Sindhu was summoned to appear before the High Court to produce certain documents ir. his custody. Sher Singh Sindhu personally appeared in Court and tendered •the documents called for, but the appellant did not ask the Trial Judge to administer him oath and to examine him as a witness. There is no written record about the production of the electoral roll before the returning officer. In the order passer! by !he returning officer dated January 21, 1967, the returning officer has referred to the production of a certificate, but not to the production of the electoral roll. We therefore agree with the High Court that the case set up by the appellant that he had produced copies of the electoral roll or relevant parts thereof before the returning officer at the time of the scrutiny of nomination papers cannot be accepted as true.

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The appellant contends· that he had produced with the nC1mination paper a certified extract from the electoral list of the Gidderbha Constituency supplied to him by the Tahsildar of Muktsar. who also held the office of Electoral Registration Officer, and the requirements of s. 33(5) were satisfied. Wit!J his nomination paper the appellant had produced an Ext. P.W. 1/4 to the following effect :

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"Certified that the names of Harcharan Singh s_/o Teja Singh and Gurdial Singh s/o Harcharan Sin)!h are there on the voters list of V. Badian H. B. No. 24, Tehsil Muktsar, in the voters' list of Lambi Constituency; for the year l 965.

· 10 Sup CJ/68-14

202

[1969] I SCR.

SUPREME COURT REPORTS

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s. ;'o. 1'anu• of the niter Vo1c No.
l. ltircharan Singh sio T1.:j;t Singh Jt\25
Gurdial Singh sfo Harcharan Singh 1827
Sd. lllcgihk
19.J.67"

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The circumstances in which this document was obtained may first be set out. On January 18, 1967, the appellant submitled an application before the Sub-Divisional Magistrate, Muktsar, to the following effect :

A

B

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''The applicant begs to submit as under :

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It is submitted that [ want 1o contest for Punjab Assembly scat from Zira Constituency. My name is entered as a voter in the voters' list of village Badian. I have received a voters' list from the Panchayat of the vi!lacc and another list from the candidate of Giddcrbha -circle. One list of vo1ers is (part) 20 and in the other (part) 31 is writlcn in red ink. Both of them rclaic to year 1966. Kindly certify after verification from the election qanungo, whether there is also another voters list for the year 1966. If there is one, what is my voter Ko. therein.

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My son Gurdial Singh, is my covering candidate. Kindly verify Voters Nos. of both (of us)."

c

D

E

On this application it was recorded by the Sub-Divisional Magis-
trate on January 19, 1967-"Allowed certified copy today".
On the reverse of the application is recorded a certificate of the
Tahsildar, Muktsar, which is marked P.W. 1/4. The entries in
the voters' list relating to the appellant may be set out :
Voters' list of Gidderbha Assembly Constituency F
-Village Badian (Continued).
t825 211 Harcharan Singh
Tcja Singh
Below lhis entry and at the cr.d of the paec of the cil'cl(lr;.l roll. 1b1!- note G
appears
--- --------------
Serial House Nan1c of the voter Fathcr's/Malc/A!!C
No. No. ~101hcr's/Fcmak/
Hus.band's narr,c.

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The entries in P.W. 1/4 do not ~ally in all respects with the entries in the voters· list. P.W. l/4 purports to be an abstract from the voters' list of Lambi Constituency whereas the voters' list in ,~hich the name of the appellant is entered is of the Gidderbha

H

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. ""' "

HARCHARAN SINGH V. MOHINDER SINGH (Shah, /.)

203

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A Circle. · But it appears that in transcribing the name of constituency a clerical mistake was made. The electoral roll it appears was prepared in 1965, and since then the original Lambi general constituency was named Gidderbha constituency as a result of delimitation of constituencies. But in Ext. P.W. 1/4 the house number and the age of the voter which are found in the vot~rs'

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B list are not set out There can be no doubt that the copy supplied is defective and it does not comply with the requirements of s. 33(5). Under s. 36(2)(b) the returning officer has to hold a summary inquiry on objections raised, or on his own motion, whether constitutional requirements are prescribed in cl. (a) or the statutory requirements in cl. (b) have been fulfilled. ~o objection to the nomination paper was raised before the returmng

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c officer. Apparently, the returning officer held so;ne inquiry and recorded the following order :

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"I have examined the nomination paper in accord-

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ance with section 36 of the Representation of the People Act, 1951, and decide as follows :-

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' 'Particulars correct. The candidate's age is not shown in the certificate. But the candidate is an old man and is certainly above the age of 25 years and as such he is fully qualified. No objection is raised. Fee deposited. Oath taken. Valid. Accepted.' "

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D

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E By s. 3 6 ( 4) the returning officer is enjoined not to reject any nomination paper on the ground of any defect which is not of a substantial character. Exhibit P.W. 1/ 4 which accompanied the nomination paper was defective in two respects, but it still remains to be determined whether the defects were of a substantial character. The appellant had produced a document which certified

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F his roll number, his name, his father's name, his village, H.B. number of Tahsil Muktsar, but did not certify his house number and his age. On the application submitted by the appellant the returning officer had asked the Tahsildar to make a report. Niranjan Singh who was the Sub-Divisional Officer Muktsar, and also the Electoral Registration Officer of Gidderbha Assembly Constituency at the relevant time deposed that the application

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G Ext. R. W. 1I5 was presented before him and that he had ordered that 1he application be referred for disposal to the Tahsildar who held the office of the Assistant Electoral Registration Officer. Jn cross-examination the witness stated that he had "desired the Tahsildar to supply a certified copy of the electoral roll" and that he had never asked him to submit a report like the one endorsed

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H on the reverse of the application. But the Tahsildar purported to make a report and the application with that report was delivered to the appellant in pursuance of his application. We see no reason to disbelieve the statement of Niranjan Singh. The ans-

20-1

[ 1969] I S.C.R.

"er referred ·lo earlier is elicited in cross-examination by counsel for the respondent, and no reason has been suggested as to why the witness should bear Lihc testimony. The recitab in the application filed by the appellant arc somewhat obscure. It was written in Punjabi and the oflieial tramlation and the trJnsbtion made by the learned Judge in the High Court did ncrt wholly tally. The order passed by the Electoral Registration Officer which he has deposed to is not amongst the papers. But at the font of ihe application it is recorded that a ccrtifkd copy was allowed on January 19, I 967. If the story of the Flcc1ornl Reistration Officer is 10 be believed. he had directed thJt a certified copy of the electoral roll be :·urnished and by some mischance the Tahsildar made a report in which !here was first a clerical mistake will: regard to the name o;· the Constituency. and :igain the· two entries relating to the house numb:· and 1he age of the appdlunt wer~ omitted. Exhibit P.W. l /4 was filed with the nomination papers and the returning ofiiccr was apparently satisfied that ·ihe requisite details were dulv furnished. Exhibit P.W. J /4 was also before the returning "o!llccr at the time of the scru·tiny of the nomination papers. The contesting candidate and his agents wer~ present and no objection was raised to the v:1lidi1y or the sufliciency of the document produced with the nomination paper in purported compliance with s. 33 ( 5). The returning officer. however. thought it necessary 10 make an inquiry as to the age of the appellant and recorded that he was satisfied that the appellant was above the age of twenty-five. Absence of 1hc number of the house in which the appell:tnt lived from the copy produced docs not appear to have been regarded as of any consequence. It WJS not suggested in the H'gh Court. nor i~ it suggested before llS that the appellant was not competent 10 stand as--a candidate for the Zira Constituency either on account of any disqualification or on the Qround that he was not an elector of any constituencv: it is only u-rl!ed that Ex. P.W. I /4 was not a certified copy of Ilic relevant entries in the electoral roll.

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The statutory requirements of election law must be strictly obcrYed. !'\n election dispute is ;1 ..;tatutory proceeding unkno\'J to the co111n1on hl\v: it is not an ct ion at la\· or in equity. /..:. a copy of the relevant entries from the electoral roll rclatin to the appe113nt ii was indisputably defective. But under s. '6( 4 l the returning officer is entitled to accept the nomination paper even if it be, defective. if the defect is not of a substantial character : indeed he is enjoined not to reject the nomination paper unless 1hc defect is of a substantial character. The details for identifying: the appellant <is an elector were duly fur_nishcd. 1-fo :ige was mentioned in the nomination paper. thou~h n wa' not to he found in the certified copy produced by the appellant. No objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at

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G

JI

HARCHARAN SINGH I',· MOHINDER SINGH (Shah, J.)

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205

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A the scrutiny. The returning officer satisfied himself by personal inquiry that the appellant was above the age of twenty-five and therefore competent to stand for election. It is true that he did not apply his mind ·to the absence of house number entered in the electoral register. But he did not come to the conclusion that even though the copy produced was defective the defect was of a

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B substantial character. The decision of the returning officer in the matter is not final and in appropriate cases it is open to the Court to reach a different conclusion in an election petition. But on a careful review of •the proceedings of the Returning Officer we are of the opinion tha1 the returning officer did not err in not rejecting the nomination paper; the defects in Ext. P.W. 1/4 were not of a substantial character.

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c

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The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts wi!l not ordinarily minimise their operation. If there was any reason to think that the appellant was negligent, or that on account of defects which were D found in the copy produced by the appellant the purity of the election process was likely to be affected, we would have been loath to disagree with the High Court. But in this case the appellant moved the Electoral Registration Officer for a copy certifying the correctness of the entries in the list which had been supplied to him, and the Electoral Registration Officer supplied to him a copy which though defective, did include sufficient partiE culars for identifying the appellant. No objection was raised before the returning officer and that officer after holding an inquiry was apparently of the view that there was no defect which could be regarded as of a substantial character. We do not think that any ground is made out for disagreeing wi•th the view of the returning officer. I ~

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D

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F

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The order passed by the High Court is set aside and the petition filed by the first respondent S. Mohinder Singh stands rejected. The appeal is allowed : there will be no order as to costs throughout.

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Y.P.

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A ppea/ allowed_

Harcharan Singh v. Mohinder Singh & Ors.

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Harcharan Singh v. Mohinder Singh & Ors.

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