Chand Singh v. Shankarlal — 1959 DIGILAW 57 (RAJ)

JUDGMENT 1. - This is an appeal under section 116A of the Representation of the People Act, 1951 (hereinafter called the Act) by Shri Chand Singh whose election petition was dismissed by the Election Tribunal, Ajmer, on the 28th of February, 1958. Shri Chand Singh who was an elector in the Raipur constituency of the Rajasthan Legislative Assembly filed an election petition challenging the election of Shankarlal, respondent, to the Rajasthan Legislative Assembly from that constituency in the general elections held in March, 1957. Several allegations were made against Shankarlal for declaring his election as void but in this appeal the learned counsel for the appellant has confined his case to only one point, that the nomination paper of one candidate, Shri Chatarsingh, submitted by him to the Assistant Returning Officer for that constituency on the 29th of January, 1957, was wrongly rejected by the Returning Officer on the 1st of February, 1957. We, therefore, set out only the facts relating to the rejection of the nomination paper of Shri Chatarsingh. Shri Chatarsingh was an elector to the Kharchi constituency of the Rajasthan Legislative Assembly. He filed a nomination paper for election for that constituency at 2-15 p.m. on the 29th of January, 1957. He also filed another nomination paper for the Raipur constituency on the same day at 2-25 p.m. Both these nomination papers were filed before Shri Sharaf Ali who was appointed as the Assistant Returning Officer for both the constituencies and also of other constituencies. The nomination paper filed by Shri Chatarsingh for the Raipur constituency was not accompanied by any of the documents referred to in section 33(5) of the Act. Shri S.N. Shukla who was the Returning Officer scrutinized these nomination papers on the 1st of February, 1957. The nomination paper of Shri Chatarsingh for the Raipur constituency was rejected on the ground that "the certified copy from the entry in the electoral roll of Kharchi constituency to which the candidate belonged, was not produced." It may be mentioned that on the date of scrutiny, Shri Chatarsingh was absent and did not care to file any of the documents referred to in section 33(5) of the Act. In the election petition the appellant has urged that this nomination paper was rejected on the objection of the respondent but this is not correct as it appears from the order of rejection as well as other documents on record that no objection was taken by the respondent to the validity of the nomination paper of Shri Chatarsingh. The main ground on which it is urged that the nomination paper was wrongly rejected is that Shri S.N. Shukla was the Returning Officer for both Raipur Assembly constituency and Kharchi Assembly constituency, that a certified copy had already been produced at the time of the filing of the nomination paper before the Assistant Returning Officer which showed that the name of Shri Chatarsingh was entered in the electoral roll of the Kharchi Assembly constituency and the Assistant Returning Officer had admitted the correctness of that entry by a reference to the electoral roll of the Kharchi constituency, that the omission to produce at the time of scrutiny the electoral roll of the Kharchi constituency was merely a technical defect and that the Returning Officer could have himself examined the nomination paper filed by Shri Chatarsingh by reference to the electoral roll of the Kharchi constituency and could have satisfied himself that his name found place therein. It is also urged during the course of arguments before us that the Returning Officer had so satisfied himself when he had examined the various nomination papers filed by the various candidates on the 29th of January, 1957, when he held a preliminary examination of the nomination papers. In this connection it may be mentioned that the Returning Officer had got a memorandum prepared in his office of the points to be seen at the time of scrutiny of the nomination papers on the 1st of February, 1957. This memorandum is exhibit A1. In this memorandum several points were quoted and the remarks were given with reference to those points. The points at serial Nos. 2 and 3 are important in this case and they are as follows:- 2. Whether the proposer is an elector of the constituency from where the candidate is to contest the election. Yes correction made by candidate. 3. (a) Whether the candidate is an elector of a different constituency of this State in case of election of Assembly and of India in case of Parliamentary election. Yes. Whether the proposer is an elector of the constituency from where the candidate is to contest the election. Yes correction made by candidate. 3. (a) Whether the candidate is an elector of a different constituency of this State in case of election of Assembly and of India in case of Parliamentary election. Yes. (b) Whether he has submitted a copy of the electoral roll of that constituency. To be produced (Not produced Hence form rejected on 1-2-57). The appellant relied on the word "Yes" noted against the serial No. 3(a) and urged that the Returning Officer had satisfied himself that the candidate, that is Shri Chatarsingh, was an elector of a different constituency of the State, i.e., of the Kharchi constituency. On behalf of the respondent it was urged that the nomination paper of Shri Chatarsingh had been rightly rejected under section 36(2)(a) of the Act as there had been a failure by Shri Chatarsingh to comply with the provisions contained in section 33. 2. The Tribunal accepted this contention of the respondent and also rejected the other allegations made on behalf of the appellant for setting aside the election. In this view of the matter the Tribunal rejected the election petition. 3. As already pointed out in this appeal the learned counsel for the appellant confined himself to the argument that the nomination paper of Shri Chatarsingh to the Raipur constituency was wrongly rejected by the Returning Officer. We heard the arguments in this case on the 6th of January, 1959. The main points that were taken up before us were that under section 33(4) it was the duty of the Returning Officer to satisfy himself on the presentation of the nomination paper that the name and the electoral roll number of Shri Chatarsingh as entered in the nomination paper were correct and that Shri Sharaf Ali had so satisfied himself. It was further argued that the Returning Officer Shri S.N. Shukla had also satisfied himself to that effect at the time of the preliminary examination of the nomination paper which he held in his office and as was clear from the fact that he put the word "yes" in his own handwriting against the point in serial No. 3(a) in exhibit Al. It was also argued that the Returning Officer Shri S.N. Shukla was also the Returning Officer of the Kharchi Legislative Assembly constituency and of the Pali Parliamentary constituency and had with him the electoral rolls of these constituencies at the time of scrutiny and he could very well verify that the name of Shri Chatarsingh appeared in the Kharchi constituency. In failing to do so the Returning Officer failed to discharge his duty of examining the nomination paper of Shri Chatarsingh filed for Raipur constituency as required under section 36(2) of the Act. In this connection it was also urged that in any case the Returning Officer could have held the summary enquiry to satisfy himself that the name of Shri Chatarsingh appeared in the Raipur constituency and had he made any such enquiry he would have very easily come to the conclusion that the name of Shri Chatarsingh appeared in that constituency. Learned counsel for the appellant relied on the statements of Shri Sharaf Ali and Shri Brijnandan in connection with the argument that Shri S.N. Shukla, Returning Officer, had satisfied himself at the time of the preliminary examination when exhibit A1 was prepared that the name of Shri Chatarsingh appeared in the electoral roll of Kharchi constituency. Shri Sharaf Ali was examined on behalf of the respondent and he had stated that the word "yes" against serial No. 3(a) in exhibit A1 was in the handwriting of Shri S.N. Shukla, Returning Officer. Shri Brijnandan was also examined on behalf of the respondent and he also stated in cross-examination that the word "yes" against serial No. 3(a) in exhibit A1 was written by Shri S.N. Shukla. Shri S.N. Shukla was not examined by any of the parties before the Tribunal. Relying on these two statements it was urged that Shri S.N. Shukla had satisfied himself with the entry made in exhibit A1 that Shri Chatarsingh was an elector in the Kharchi constituency and this satisfaction he had noted down by putting the word "yes" in serial No. 3(a) in exhibit Al. In this connection it was also urged that the nomination paper was rejected solely on the ground that the certified copy from the entry in the electoral roll of Kharchi constituency was not produced. In this connection it was also urged that the nomination paper was rejected solely on the ground that the certified copy from the entry in the electoral roll of Kharchi constituency was not produced. It was urged that it was not mentioned in this order that the Returning Officer was not satisfied that the name of Shri Chatarsingh did not appear in the Kharchi constituency. 4. The word "yes" against serial No. 3(a) in exhibit A1 was capable of two meanings : (1) that the nomination paper showed that the candidate was an elector of the different constituencies for which he had filed the nomination paper, and (2) that the Returning Officer was satisfied that he was the voter in some different constituency. 5. Shri S.N. Shukla is alleged to have put the word "yes" in serial No. 3(a) but Shri S.N. Shukla was not examined before the Tribunal though an attempt was made on behalf of the applicant to summon him as a witness, but later on he was given up. 6. In the circumstances of this case it became important to determine whether the Returning Officer noted the word "yes" in serial No. 3(a) to denote his satisfaction to the effect that Shri Chatarsingh was an elector in the Kharchi constituency. The best witness who could have stated on this point was Shri S.N. Shukla. He was also the person who could say whether the word "yes" was in his handwriting. We, therefore, thought it proper to summon Shri S.N. Shukla as a court witness under Order 41, rule 27, of the Civil Procedure Code in order that this point may be rightly determined by us. 7. Shri S.N. Shukla was examined by this Court on the 4th of February, 1959. He stated that he was the Returning Officer for the Kharchi constituency as well as for the Raipur constituency. Shri Sharaf Ali was the Assistant Returning Officer for these constituencies. The nomination form for these constituencies could be submitted by any of the candidates to any one of them. Whenever any nomination form was submitted to him, he used to scrutinize it to see whether the name of the candidate appeared in the electoral roll of the constituency for which the nomination paper was submitted if he was the candidate of that very constituency. Whenever any nomination form was submitted to him, he used to scrutinize it to see whether the name of the candidate appeared in the electoral roll of the constituency for which the nomination paper was submitted if he was the candidate of that very constituency. He further stated that before the scrutiny he had thought it proper to get such notes prepared on the basis of the nomination forms. He was shown the original of exhibit A1 which was marked exhibit X by this Court and he said that the office had noted the points to be seen at the time of scrutiny of the nomination papers in exhibit N. He stated that he had himself not verified whether the report of the office was correct. He and the Assistant Returning Officer were sitting at the time of the preparation of the notes. Both of them were only guiding the clerks as to on what lines the points were to be prepared. He further stated that the word "yes" was written by some clerk in the office at the time when the note was prepared. He also stated that it was not verified at the time of the preparation of the note that the name of the candidate Shri Chatarsingh appeared in any constituency. At the time of the scrutiny also he did not verify that his name appeared in the electoral roll of any constituency. He further said that the words "Not produced. Hence form rejected" were written by him on the 1st of February, 1957, at the time of scrutiny. At that time he had also written the words "correction made by candidate". He also stated that the words "to be produced" were written by the office when the note was prepared. On cross-examination by the respondent, he stated that the nomination forms for Raipur constituency were taken first for scrutiny on the 1st of February, 1957. At the time of the scrutiny of the nomination paper of the Raipur constituency, only the record and papers of that constituency were with him. The electoral roll of that constituency alone was with him and the electoral rolls of other constituencies were not with him. On cross-examination by the appellant he stated that at the time of the filling up of the nomination papers he and the Assistant Returning Officer had electoral rolls of all the constituencies with them. The electoral roll of that constituency alone was with him and the electoral rolls of other constituencies were not with him. On cross-examination by the appellant he stated that at the time of the filling up of the nomination papers he and the Assistant Returning Officer had electoral rolls of all the constituencies with them. He further stated that when the candidate presented the nomination paper for any other constituency, he could not scrutinize the electoral roll of that constituency in order to see that the candidate presenting the nomination paper was enrolled in that constituency. He explained this later on by saying that as the requirement of law was that a candidate, who filed the nomination paper for a constituency different from the constituency in which the name of the candidate appeared, should file a certified copy of the relevant entry of the electoral roll, he did not think it necessary to see by reference to that electoral roll that his name appeared in that constituency even though such electoral roll might be in his possession. 8. This statement of Shri S.N. Shukla clearly shows that the word "yes" against serial No. 3(a) was not in his handwriting but was written by some clerk in the office at the time of the preparation of the note. It also shows that no argument could be made on the word "yes" appearing against serial No. 3(a) inasmuch as Shri S.N. Shukla had stated that he and the Assistant Returning Officer were merely guiding the clerks on the points to be jotted down and were not verifying whether the various entries in the remarks column were correct or not. Learned counsel for the appellant urged that Shri Sharaf Ali has definitely stated that word "yes" against serial No. 3(a) in exhibit A1 was written by Shri S.N. Shukla. The same is the statement of Shri Brijnandan. He has urged that the statement of these two witnesses should be given preference to the statements of Shri S.N. Shukla. We do not think that we should rely on the statements of Shri Sharaf Ali and Shri Brijnandan in preference to the statement of Shri S.N. Shukla who was the District Magistrate and Collector at the time when he made the statement and was also holding that post when he was appointed Returning Officer. We do not think that we should rely on the statements of Shri Sharaf Ali and Shri Brijnandan in preference to the statement of Shri S.N. Shukla who was the District Magistrate and Collector at the time when he made the statement and was also holding that post when he was appointed Returning Officer. Shri S.N. Shukla was the best person to say whether the word "yes" against serial No. 3(a) was in his handwriting or not and he has stated that it was not in his handwriting but was written in the office. We do not think that there is any reason to doubt the statement of such a respectable witness on a point in which he is not in any way interested and on which he could speak with certainty and authority. We have also examined exhibit X and we do not find any reason to come to a different conclusion on this point. 9. Thus on the evidence as it stands after the statement of Shri S.N. Shukla the argument of the learned counsel for the appellant that the Returning Officer had satisfied himself before the scrutiny that the name of Shri Chatarsingh appeared in the electoral roll of Kharchi constituency stands demolished. 10. Now we consider the other submissions made by the learned counsel for the appellant. His argument is that the provisions of section 33(5) were merely technical, and a failure to comply with them do not entail by itself the penalty that the nomination paper should be rejected. He cited various authorities on this point before us but this point is concluded by the recent authority of their Lordships of the Supreme Court in the case of Baru Ram v. Smt. Prasanni and others 16 E.L.R. 450 : A.I.R. 1959 S.C. 93 . In that case Jai Bhagwan presented his nomination paper to the Returning Officer on the 29th of January, 1956, for contesting the election of the Rajaund constituency in the District of Karnal. He was admittedly not an elector in that constituency. It was stated that he was an elector in another constituency but when he presented his nomination paper he did not produce a copy of the electoral roll of the other constituency or the relevant part thereof or a certified copy of the relevant entry in the said roll. He was admittedly not an elector in that constituency. It was stated that he was an elector in another constituency but when he presented his nomination paper he did not produce a copy of the electoral roll of the other constituency or the relevant part thereof or a certified copy of the relevant entry in the said roll. Nor did he produce any of these documents on the 1st of February, 1957, which was the date for the scrutiny of the nomination papers. When the Returning Officer found that the candidate had not produced the relevant document he gave him at his request two hours time to produce it. The candidate failed to produce the document within the time allowed. In consequence the Returning Officer rejected his nomination paper under section 36(2)(b) of the Act. Before the Supreme Court it was contended that the rejection of the nomination paper under the circumstances said above was not justified. Their Lordships referred to the provisions of sections 33 to 36 of the Act in this connection and laid down as follows:- "There is no doubt that in the present case there was failure on the part of Jai Bhagwan to comply with section 33(5) and prima facie section 36(2) seems to justify the rejection of his nomination paper on that ground. Section 33(5) requires the candidate to supply the prescribed copy and section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of section 33(5) is not mandatory but is directory, because the statute itself has made it clear that failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence." 11. Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence." 11. It was also argued before their Lordships that under section 36(4) of the Act the Returning Officer cannot reject the nomination paper on the ground of any defect which was not of a substantial character. It was urged that failure to produce the requisite copy was not a defect of a substantial character. Their Lordships overruled this contention by observing that "where, however, the statute requires specific facts to be proved in a specific way and it also provides for the consequence of non-compliance with the said requirement it would be difficult to resist the application of the penalty clause on the ground that such an application is based on technical approach." 12. After this authoritative pronouncement of their Lordships of the Supreme Court it is not possible to hold that the requirement of section 33(5) is not mandatory but is directory or that the breach of that provision was merely a technical defect and not a defect of a substantial character. 13. Learned counsel for the appellant tried to distinguish this authority from the present case on facts. He urged that in that case the Returning Officer was not also the Returning Officer for the other constituency in which the name of Shri Jai Bhagwan appeared as a voter, while in the present case the Returning Officer was the Returning Officer both of the Kharchi constituency and also of the Raipur constituency. In Baru Ram's case 16 E.L.R. 450, it does not appear that the Returning Officer in that case was the Returning Officer of both the constituencies. But this point, in our opinion, does not in any way affect the requirements of section 33(5) of the Act. Section 33(5) casts a duty on a candidate when he is an elector in a different constituency to produce before the Returning Officer at the time of the scrutiny any of the documents referred to therein unless it has been filed along with the nomination paper. Section 33(5) casts a duty on a candidate when he is an elector in a different constituency to produce before the Returning Officer at the time of the scrutiny any of the documents referred to therein unless it has been filed along with the nomination paper. It is clear from this provision that when the stage of scrutiny is reached the Returning Officer is to satisfy that the candidate is an elector from the different constituency and the duty is east upon the candidate to satisfy the Returning Officer by the production of any of the documents mentioned in section 33(5) of the Act. Section 33 of the Act as it stands is different from section 33 of the Representation of the People Act, 1951. This amendment was made by Act No. 27 of 1956. Under section 33(5) of the old Act, the Returning Officer was to satisfy himself at the time of the presentation of the nomination paper that the names and electoral roll numbers of the candidate and his proposer and seconder as entered in the nomination paper were the same as those entered in the electoral rolls. Under section 33(6) of the old Act if the Returning Officer finds that the name of the candidate was not registered in the electoral roll of the constituency for which he was the Returning Officer, he was to require the person presenting the nomination paper to produce either a copy of the electoral roll in which the name of the candidate was included or a certified copy of the relevant entries in such roll. While under section 33 of the old Act it was the Returning Officer on whom the duty was cast to verify from the electoral roll that the name of the candidate appeared in the electoral roll of any constituency and he was to direct the person presenting the nomination paper to produce the documents referred to therein for the purpose of satisfying himself that the names in the nomination paper were the same as were entered in the electoral roll, under the amended law the duty is now on the candidate to produce the relevant documents referred to in section 33(5). No distinction is drawn between a case in which the name of the candidate appeared in a constituency for which the same Returning Officer had been appointed and a case in which different Returning Officers have been appointed. 14. Learned counsel for the appellant argued that when Shri Chatersingh presented the nomination paper, Shri Sharaf Ali was satisfied that he was a voter in the Kharchi constituency. For this he relied on the statement of Shri Sharaf Ali that he had consulted the electoral roll of the Kharchi constituency to satisfy himself that the specific name appeared in the electoral roll of that constituency when he filed his nomination paper for the Kharchi constituency and he was satisfied that Shri Chatarsingh's name was duly entered in the electoral roll of the Kharchi constituency. We may mention that the nomination paper for the Kharchi constituency was filed at 2-15 p.m. Shri Sharaf Ali further stated that at 2-25 p.m. the nomination paper of the Raipur constituency was presented by Shri Chatarsingh and at that time he knew that this name appeared in the electoral roll of the Kharchi constituency. It is true that from this statement it appears that Shri Sharaf Ali was satisfied at the time of the presentation of the nomination paper for the Raipur constituency by Shri Chatarsingh that he was an elector in the Kharchi constituency. But the Returning Officer who was to scrutinize the nomination papers on the 1st of February, 1957, was not Shri Sharaf Ali but Shri S.N. Shukla. In this connection it must be remembered that it is only the Returning Officer who could scrutinize the nomination papers and not any other officer. Section 33(5) lays down that the documents referred to therein are to be filed before the Returning Officer at the time of scrutiny if they had not been filed earlier. This provision, therefore, makes clear that it is the Returning Officer at the time of the scrutiny who is to be satisfied that the name of the candidate appears in some different constituency and, as already mentioned, the section lays down the mode of proof. This provision, therefore, makes clear that it is the Returning Officer at the time of the scrutiny who is to be satisfied that the name of the candidate appears in some different constituency and, as already mentioned, the section lays down the mode of proof. Even if Shri Sharaf Ali was satisfied that Shri Chatarsingh was an elector in the Kharchi constituency at the time when he presented the nomination paper for the Raipur constituency, it does not in any way dispense with the duty cast on Shri Chatarsingh to produce any of the documents referred to in section 33(5) for satisfying the Returning Officer at the time of scrutiny that he was a voter in the Kharchi constituency. Shri Chatarsingh instead of filing any such documents before the Returning Officer absented himself. The result was that the Returning Officer who was scrutinizing the nomination papers rejected the nomination paper on the ground that he was not satisfied that Shri Chatarsingh was a voter in the Kharchi constituency as mentioned in the nomination paper. 15. Learned counsel for the appellant argued that the Returning Officer should have referred to the electoral roll of the Kharchi constituency which he had with him. Shri S.N. Shukla has stated on oath that at the time of scrutiny of the Raipur constituency which was taken up first on the 1st of February, 1957, the papers of only that constituency were with him. Had the Returning Officer been in a mood to oblige Shri Chatarsingh he could have called the electoral roll of the Kharchi constituency from his office, but there was no duty cast on him to do so and he was within his limits in dismissing the nomination paper of Shri Chatarsingh on the ground that he had not complied with the provisions of section 33(5) of the Act. Learned counsel for the appellant argued that under section 36(2), it was the duty of the Returning Officer to examine the nomination paper and he could reject the nomination paper only after such examination and enquiry if any enquiry was necessary. There can be no doubt that there was an examination of the nomination papers by the Returning Officer, Shri S.N. Shukla, at the time of scrutiny. There can be no doubt that there was an examination of the nomination papers by the Returning Officer, Shri S.N. Shukla, at the time of scrutiny. It is apparent from the fact that he had noted in exhibit A1 at the time of scrutiny that correction had been made by the candidate about the electoral roll number of proposers. It is urged that the Returning Officer remained satisfied with regard to the correctness of the electoral roll number of proposer on the ground that Shri Sharaf Ali must have been satisfied himself on that point, but with regard to Shri Chatarsingh he did not rest content that Shri Sharaf Ali must have satisfied himself that Shri Chatarsingh's name was in the electoral roll of the Kharchi constituency. It is also urged that if he entertained any doubt in this matter he should have held an enquiry. There is no note on the nomination paper by the Assistant Returning Officer that the nomination paper of Shri Chatarsingh appeared in the electoral roll of the Kharchi constituency. In the absence of any such note the Returning Officer could insist that the requirements of section 33(5) must be fulfilled by the candidate. There was no room for any enquiry as well as there was no body present to demand an enquiry. Had Shri Chatarsingh been present he could have said that the Returning Officer may verify the fact that he was a voter in the Kharchi constituency from the electoral roll in his office. In that case the Returning Officer could have lent the electoral roll to him for production before him. That would have been a technical compliance with section 33(5) of the Act, but as the appellant had not filed any of the documents referred to in section 33(5) before the time of scrutiny and was absent at that time, he must bear the consequences laid down in section 36(2). Before the Tribunal it was urged on behalf of the appellant that a pleader Shri Karan Raj of Sojat had appeared before the Returning Officer to grant him time for the production of the relevant copy of the electoral roll. This has not been believed by the Tribunal. We further find from the statement of Shri Brijnandan that there was no vakalatnama of Shri Karan Raj on record. 16. We accept the finding of the Tribunal on this point. This has not been believed by the Tribunal. We further find from the statement of Shri Brijnandan that there was no vakalatnama of Shri Karan Raj on record. 16. We accept the finding of the Tribunal on this point. In our opinion, the rejection of the nomination paper of Shri Chatarsingh for the Raipur constituency was not illegal and the election cannot be declared as void on the ground it was illegally rejected. There is no other point urged in this appeal.The result is that the appeal fails and is dismissed with costs. The advocate's fee is assessed at Rs. 200.Appeal dismissed. *******