Kanakmal v. Supervising Officer, Tahsildar, Jaora — 1965 DIGILAW 10 (MP)

ORDER P.V. DIXIT, J. 1. This order will also govern the disposal of M. Ps. Nos. 58, 60 and 61, all of 1964. 2. The petitioners in these four applications under articles 226 and 227 of the Constitution seek writs of certiorari for quashing the orders of the Supervising Officer, Jaora, rejecting their nomination papers for election to the Jaora Municipality from different wards of the Municipality. The orders of the Supervising Officer rejecting the nomination papers were upheld in appeal by the Sub-divisional Officer, Jaora. The petitioners pray for the issue of writs of certiorari for quashing also the decisions in appeal of the Sub-divisional Officer. They also pray that the Supervising Officer be directed to accept their nomination papers and declare them as having been elected unopposed from the wards for which they filed their nomination papers. 2. The nomination papers of the applicants were rejected by the Supervising Officer on a common ground, namely, that each of them had failed to make a declaration in his nomination paper about the choice of symbols as required by rule 15 of the Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962, (hereinafter called the Rules); and that thus there was a non-compliance on the petitioners' part with clause (i) of rule 13 (1) of the rule. The Sub-divisional Officer, Jaora, agreed in appeal with the view taken by the Supervising Officer. 3. The matter turns on the construction of clauses (i), (v) (c) and (vi) of rule 13 (1) and rule 15 of the rules. Rule 13 (1) (i) requires that the nomination paper shall be presented to the Supervising Officer on or before the date fixed for filing the nomination papers and between the prescribed hours and shall be completed in Form IV and subscribed in the manner laid down in the said rule. Form IV referred to in rule 13 contains the form of declaration to be made by the candidate, which is as follows:– "I, the above-mentioned candidate, assent to this nomination and hereby declare that the symbols I have chosen are in order of preference. 1... 2... 3... Dated......... 19 Signature of Candidate." Under clause (v) (c) of rule 13 (1) the Supervising Officer is competent to reject any nomination paper if there has been any failure to comply with clause (i) of rule 13 (1). 1... 2... 3... Dated......... 19 Signature of Candidate." Under clause (v) (c) of rule 13 (1) the Supervising Officer is competent to reject any nomination paper if there has been any failure to comply with clause (i) of rule 13 (1). Clause (vi) of rule 13 (1) then provides that the Supervising Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Rule 15 is as follows:– "15 (1) Immediately after the expiry of the period within which candidatures may be withdrawn under rule 17, the supervising Officer, shall consider the choice of symbols expressed by contesting candidates in their nomination papers and shall subject to these rules and any general or special direction issued on the subject by the State Government. (a) Allot different symbols to each contesting candidate in conformity, as far as possible, with his choice; and (b) If more contesting candidates than one have indicated, the preference for the same symbol, decide by lot to which of such candidate, the symbol will be allotted. (1-A) No symbol reserved for or assigned to a recognised political party for elections to a Parliamentary or an Assembly constituency of the State shall be allotted to a candidate unless he is formally sponsored as authorised representative of such political party of the district who shall intimate to the supervising officer under intimation to the Collector, the name of the candidate two days before the date of allotment of symbols. (1-B) The allotment by the supervising officer of any symbol to a candidate shall be final except where it is inconsistent with these rules or any directions issued by the State Government on the subject in which case the Collector may revise the allotment in such manner as he thinks fit. (1-C) Every candidate shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the supervising officer. (2) The supervising officer shall forward list in Form VII to the Chief Municipal Officer and to each presiding officer at least three days before the election showing the names of the candidates and the symbol allotted to each candidate and Chief Municipal Officer shall post copies of such list at the Municipal office and at the places fixed for the polling station." 4. Shri Chitale, learned counsel appearing for the petitioners, contended that the omission on the part of the petitioners to make a declaration in the nomination paper indicating their preferences for symbol was only a technical defect of an unsubstantial character not entailing the rejection of the nomination papers. On the other hand, the argument of Shri Garg, learned counsel appearing for respondent No.4 in all the petitions, submitted on the authority of Brijendralal vs. Jwalaprasad, AIR 1960 SC 1049 , is that the omission of the petitioners to give in their nomination papers a declaration indicating their choice about symbols totally invalidated the nomination papers. 5. In our opinion, all these petitions must be granted. We have pointed out in our order passed today disposing of Shivkaran vs. Supervising Officer, 1968 JLJ 961 =1965 JLJ SN 77 and other connected petitions that rule 13 (1) (i) is mandatory and that when that rule says that nomination paper shall be completed in Form IV, it means that the form must be strictly and literally followed and the requirements of that Form must be complied with and further that the rigour of this rule is softened only because of clause (vi) of rule 13 (1) and to this extent that if the defect in compliance with the requirements of the Form is not of a substantial character, then the Supervising Officer cannot reject the nomination paper. The question, therefore, that arises for determination is whether the declaration requirement of Form IV is a mandatory requirement the total non-compliance with which renders the nomination paper invalid or whether such an omission is merely a defect of an unsubstantial character in the form. The question, therefore, that arises for determination is whether the declaration requirement of Form IV is a mandatory requirement the total non-compliance with which renders the nomination paper invalid or whether such an omission is merely a defect of an unsubstantial character in the form. The principle that runs through the decisions of the Supreme Court in Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 , Brijendralal vs. Jwalaprasad, AIR 1960 SC 1049 , Dev Kanta Barooah vs. Kusha Ram Nath, AIR 1961 SC 1125 , Rangilal vs. Dahu Sao, AIR 1962 SC 1248 , is that if a requirement in the nomination form in which a defect or omission has occurred goes to the root of the matter and therefore must be strictly complied with, then the defect of the omission in the nomination paper would be fatal that, on the other hand, if the requirement is only directory, a breach of which can be overlooked, then the failure to comply with the requirement would be merely a defect or omission of an unsubstantial character, not entailing the rejection of the nomination paper. 6. In the present case, it is plain from rule 15 that the matter of allotment of symbols to a contesting candidate is a post-nomination matter. In the allotment of symbols, the Supervising Officer has to consider the choice of symbols expressed by contesting candidates in their nomination papers and to follow the rules and any general or special direction issued on the subject by the State Government. The decision of the Supervising Officer with regard to allotment of any symbol to a candidate is final unless it is inconsistent with the rules made or directions issued by the State Government on the subject. The Supervising Officer is not bound to allot the symbols according to the preferences indicated by the contesting candidate and an allotment made by him disregarding the choice expressed by the candidate is not illegal. This is clear from clause (a) of rule 15 (1) which says that the Supervising Officer may allot different symbols to the contesting candidates, in conformity as jar as possible with their choice. The words "as far as possible" are very significant. This is clear from clause (a) of rule 15 (1) which says that the Supervising Officer may allot different symbols to the contesting candidates, in conformity as jar as possible with their choice. The words "as far as possible" are very significant. Thus the final selection and allotment of symbols is entirely in the discretion of the Supervising Officer, which discretion has to be exercised in conformity with the rules and directions issued by the State Government on the subject. The whole object of requiring a candidate to declare in the nomination paper his choice of symbol is to enable the Supervising Officer to make the allotment of symbols to candidates whose nomination papers have been accepted and who have not withdrawn, without any loss of time after the expiry of the period within which candidatures may be withdrawn under rule 17. Rule 15 enjoins on the Supervising Officer the duty of making the allotment of symbols immediately after the expiry of this period. It is easy to see that the declarations made by candidates in their nomination papers about the choice of symbols is only to help the Supervising Officer in making the allotment. Where there is no declaration by the candidate in his nomination paper about his choice of symbol, the Supervising Officer is not disabled from making the allotment. If there is no declaration about the choice of symbol by contesting candidate, then so far as the allotment of symbol to that candidate is concerned, the discretion of the Supervising Officer is untrammelled and he is free to allot to the candidate any symbol that may be permissible. It is thus clear that the omission on the part of a candidate to make a declaration in the nomination paper about the choice of his symbol in no way renders the Supervising Officer powerless in making allotment of symbol in accordance with the provisions of rule 15. It is difficult to see how when the allotment of symbols is a matter of consequence only after a nomination paper is accepted as valid, the making of a declaration in the nomination paper about the choice of symbols is a matter going to the root and validity of the nomination paper. It is difficult to see how when the allotment of symbols is a matter of consequence only after a nomination paper is accepted as valid, the making of a declaration in the nomination paper about the choice of symbols is a matter going to the root and validity of the nomination paper. In our judgment, the requirement of Form IV in regard to the declaration about symbols is merely directory and if a person filing a nomination paper has omitted to make the declaration or has made it in a defective manner, then such a defect in the nomination in regard to the declaration is a defect of unsubstantial character. If this defect is not of a substantial character, then having regard to clause (vi) of rule 13 (1) the Supervising Officer cannot reject the nomination paper on the ground that a candidate has omitted to make or has made a defective declaration about the choice of symbol. The Supervising Officer, therefore, was not right in rejecting the nomination paper of the petitioners on the ground that he did. 7. As we read the decision of the Supreme Court in Brijendralal vs. Jwalaprasad, 1960 JLJ 1113 = AIR 1960 SC 1049 = (1960) 3 SCR 650 , relied on by Shri Garg, it does not support the contention advanced by him that the omission on the part of the petitioners to make the declaration in their nomination papers about the choice of symbols was fatal to the validity of their nomination papers. In that case, the question that the Supreme Court considered was whether the omission to make a declaration about age in the nomination paper amounted to a defect of a substantial character. The Supreme Court held that the failure to specify age in the nomination paper amounted to a defect of substantial character under section 36 (4) of the Representation of the People Act, 1951, as a statement about age of the candidate was required to be made by him for the purpose of showing his eligibility to stand as a candidate. It was while dealing with this question that the Supreme Court by way of a contrast incidentally referred to the declaration in a nomination paper required of a candidate in regard to his choice of symbols. It was while dealing with this question that the Supreme Court by way of a contrast incidentally referred to the declaration in a nomination paper required of a candidate in regard to his choice of symbols. The Supreme Court said:– "In this connection it is relevant to refer to the fact that the declaration as to the symbols which the prescribed form of the nomination paper requires the candidate to make is by the proviso to rule 5 given a subsidiary place. The proviso to rule 5 shows that any non-compliance with the provisions of sub-rule (2) of rule 5 shall not be deemed to be a defect of a substantial character within the meaning of section 36, sub-section (4). In other words, this proviso seems to suggest that, according to the rule-making authority, failure to comply with the requirements as to the declaration of symbols as specified in rule 5, sub-rule (2) would have been treated as a defect of a substantial character that is why the proviso expressly provides to the contrary. This would incidentally show that the failure to specify the age cannot be treated as defect of an unsubstantial character." The above observations cannot be read as meaning that if there had been no proviso to rule 5 of the Election and Election Petitions Rules, 1956, providing that any non-compliance with the provision of the rule relating to a declaration about the choice of symbol shall not be deemed to be a defect of a substantial character within the meaning of section 36, then the non-compliance would have been a defect of a substantial character. The Supreme Court had no occasion to consider this question. It is important to note that in the passage reproduced above from the judgment of the Supreme Court, what the Supreme Court said was that the proviso seemed to suggest that according to the rule making authority the failure to comply with the requirements as to declaration of symbols would have been regarded as a defect of substantial character. The Supreme Court did not say that according to the opinion of the Court also if there had been non-compliance, then the failure to comply with the requirement as to declaration of symbol would have been regarded as a defect of a substantial character. The Supreme Court did not say that according to the opinion of the Court also if there had been non-compliance, then the failure to comply with the requirement as to declaration of symbol would have been regarded as a defect of a substantial character. The proviso to rule 5 (2) of the Election and Election Petitions Rules of 1956 only made an express provision on a matter which was otherwise very clear. In our judgment the observations of the Supreme Court in Brijendralal vs. Jwalaprasad, AIR 1960 SC 1049 , are not of any assistance to the respondents. Having regard to the object and purpose of a declaration in the nomination paper about the choice of symbols, which we have already explained, it is impossible to hold that a failure on the part of a candidate to make a declaration in the nomination paper about the choice of his symbol invalidates the nomination paper. 7. For the foregoing reasons, all these petitions are allowed and the decisions of the Supervising Officer and the Sub-Divisional Officer of Jaora rejecting the nomination papers of the petitioners are quashed. The Supervising Officer is directed to accept the Domination papers of each of the petitioners and declare him as having been duly elected unopposed from his ward if he is the sole candidate. In the circumstances of the case, there will be no order as to costs. The outstanding amount of security deposit shall be refunded to the petitioner in each case.