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Madhya Pradesh High Court · body

1965 DIGILAW 11 (MP)

Shivkaran v. Supervising Officer, Tahsildar Jaora

1965-01-21

P.V.DIXIT, S.B.SEN

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ORDER P.V. DIXIT, J. 1. This order will also govern the disposal of Misc. Petitions Nos. 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 and 53 all of 1964. 2. The petitioners in these 14 applications under articles 226 and 227 of the Constitution seek writs of certiorari for quashing orders of the Supervising Officer of 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 further pray that the Supervising Officer be directed to accept their nomination papers and declare them as having been duly elected from the wards concerned unopposed. 3. The nomination papers of all the petitioners were rejected by the Supervising Officer on a common ground, namely, that each of the petitioners had failed to give in his nomination paper the name of the ward from which he was seeking election; that be only mentioned the number of the ward and that thus there was non-compliance on the petitioners' part with clause (i) of rule 13 (1) of the Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962, (hereinafter called the Rules). The Sub-Divisional Officer, Jaora agreed in appeal with the view taken by the Supervising Officer. The Supervising Officer also rejected the nomination papers filed by all other candidates, who sought election from the same wards as the petitioners, albeit on different grounds. After the rejection of the nomination papers of all the petitioners and of the respondent-candidates in each petition, a fresh programme for election of the Councillors from different wards of Jaora Municipality was notified by the Collector, Ratlam. As because of the rejection of all the nomination papers no election from any ward was held and no notification of election as required by section 45 of the Madhya Pradesh Municipalities, Act, 1961 (hereinafter called the Act), could be made, the remedy under section 20 of the Act of an election petition for calling into question any election was not available to the petitioners. They have, therefore, invoked the jurisdiction of this Court under articles 226 and 227 of the Constitution. 4. They have, therefore, invoked the jurisdiction of this Court under articles 226 and 227 of the Constitution. 4. Before dealing with the contention advanced on behalf of the petitioners and the respondents, it is necessary to refer to the relevant provisions of Act and the Rules. Under section 29 of the Act, the State Government is required to divide the Municipality into wards and to define the limits of each such ward, subject to the Madhya Pradesh Municipalities (Wards) Rules, 1963, framed under the Act. Those rules lay down the mode of dividing a Municipality into wards and the procedure for the same. Rule 4 of the aforesaid Wards Rules of 1963, which is very material here, is as follows:– "4. Name of ward–Each ward shall be known by the number given to that ward serially. In adition, a name to the ward shall also be given." Rule 13 of the M.P. Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962, so far as it is material here, is in the following terms:– "13. (1) (i) On or before the date fixed for filing nomination paper of candidates, each candidate shall, either in person or by his proposer or seconder, between the hours of 11 O' clock in the noon and 3 O' clock in the afternoon, deliver to the supervising officer a nomination paper completed in Form IV and subscribed by the candidate himself as assenting to the nomination and by two duly qualified voters of the ward proposer and seconder. ** ** ** ** ** (iv) (a) On presentation of a nomination paper, the supervising officer shall satisfy himself that the names and roll numbers of the candidates and his proposer and seconder as entered in the nomination paper, are the same as those entered in the roll. Provided that the supervising officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with corresponding entries in the roll and where ecessary direct that any clerical or printing error in the said entries shall be overlooked. Provided that the supervising officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with corresponding entries in the roll and where ecessary direct that any clerical or printing error in the said entries shall be overlooked. (b) The supervising officer on receiving a nomination paper under clause (i) shall enter in the paper its serial number and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in the municipal office a notice of the nomination in Form V containing description similar to those contained in the nomination paper both of the candidates and of the persons who have subscribed the nomination paper as proposer and seconder. (v) On the date fixed for the scrutiny of the nomination papers, the candidates and one proposer and one seconder of each candidate but no other person, may attend the Municipal office at 1 P.M. and the supervising officer shall give them all reasonable facilities for examining all nomination papers which may have been delivered to him. He shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or of his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:– ** ** ** ** ** (c) That there has been any failure to comply with any of the provisions of clauses (i) and (ii). "(vi) The supervising officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." Form IV referred to in rule 13 (1) (i) contains as item no.1 the heading "Name of the Ward for which the candidate is nominated." The heading of column-6 of Form V mentioned in rule 13 (1) (iv) (b) is "Name of the ward for which nominated and the Number of the candidate in the electoral roll." 5. By a notification issued on 7th June 1963, in the exercise of the powers under section 29 (1) (b) of the Act, the State Government divided the Jaora Municipality into twenty wards, defining the limits of each ward as per schedule to the notification. The Schedule enumerated the twenty wards thus:– "1. Mahidpur Darwaja. 2. Kadachurpura. 3. Minipura (Reserved for Scheduled Caste) 4. Hathi Khana. 5. Khatripura (Reserved for Scheduled Caste) 6. Narsinghpura. 7. Pathantoli. 8. Pipli Bazar. 9. Somwaria. 10. Sutharpura. 11. Neemchauk. 12. Bazza Khana. 13. Tambaku Bazar. 14. Nazar Bag. 15. Ikbal Ganj (Reserved for Scheduled Caste). 16. Iftikhar Ward. 17. Station Road. 18. Unt Khana. 19. Pool Pukhta. 20. Bada Mandir." In his nomination paper presented to the Supervising Officer, each of the petitioners, instead of giving the name of the ward for which he was nominated for election, gave only the serial number of the ward as specified in the Schedule reproduced above. Shri Garg, learned counsel appearing for the petitioners, urged that there was no non-compliance by any of the petitioner with the provisions of rule 13 (1) (i); that in their nomination papers the petitioners stated the wards from which they were seeking election with reference to their numbers; that the identity of the wards from which they were seeking election was thus fully established and the omission on their part to describe the wards by name was at the most a defect of an unsubstantial character and that, therefore, the Supervising Officer erred in rejecting the nomination papers contrary to the mandatory direction contained in rule 13 (1) (vi) that he "shall not reject any nomination paper on the ground of any defect which is not of it substantial character." To support his contention that the omission to give in the nomination papers the names of the wards was not a defect of a substantial character learned counsel referred as to Rangilal vs. Dahu Sao, AIR 1962 SC 1248 , Rosamma vs. Balkrishnan, AIR 1958 Kerala 154 and Dev Kanta Barooah vs. Kusha Ram Nath, AIR 1959 Assam 68. 6. 6. In reply, Shri Balwant Singh, learned Government Advocate, appearing in each case for the election authorities and Shri Chitale, learned counsel appearing for the fourth respondent in each petition, contended that the direction contained in rule 13 (1) (i) that the nomination paper must be completed in Form IV was mandatory; that there could be no departure from the requirement of this Form, that the "name of the ward" for which the candidate was nominated must be stated in the nomination paper; that this description of the ward was necessary for placing beyond doubt it, identity as also for the purpose of exhibition under rule 13 (1) (iv) (b) of the notice in the prescribed Form V of the nomination papers received; that thus the description of the ward with reference to its name went to the root of the matter and if a nomination paper did not give this description, then there would be a non-compliance with the provisions of rule 13 (1) (i) entitling the Supervising Officer to reject the nomination paper; that the total omission to give in the nomination paper the name of the ward could not be regarded as any defect in stating the description or name of the ward so as to bring clause (vi) of rule, 13 (1) into play. 7. In our judgment, all these petitions must be dismissed. It was not disputed before us and indeed could not be, that rule 13 (1) (i) is mandatory when it lays down 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. It is also plain from clause (v) (c) of rule 13 (1) that 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). It is easy to see that in the case of non-compliance with the provisions of clause (i) of rule 13 (1) there may be either total non-compliance or a defect in compliance, with the rule. It is easy to see that in the case of non-compliance with the provisions of clause (i) of rule 13 (1) there may be either total non-compliance or a defect in compliance, with the rule. It is only if there is not a total failure to comply, but a defective compliance, that a mandatory duty has been cast on the Supervising Officer not to reject any nomination paper if the defect in the compliance is not of a substantial character. 8. Now, rule 13 (1) (i) says that a nomination paper shall be completed in Form IV. It does not use the words "in accordance with Form IV." There is material distinction between the words "in accordance with Form IV" and "in Form IV". The nomination paper would be substantially in accordance with the prescribed form, if it does not depart from it in any material respect. But when the rule says that the nomination paper shall be completed in Form IV that means that the Form must be strictly and literally followed. Thus the requirements of Form IV must be complied with. 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 shall not reject the nomination paper. The question, therefore, that arises for determination is whether total non-compliance with the requirement of Form IV that the "name of the ward" for which the candidate is nominated shall be stated can in any sense be regarded as a defect in the Form and if so, whether that defect is of an unsubstantial character. It is plain enough that the statement in the nomination form of the ward for which the nomination has been made is an essential part of the Form. It is plain enough that the statement in the nomination form of the ward for which the nomination has been made is an essential part of the Form. The Supreme Court has observed in Rangilal vs. Dahu Sao, AIR 1962 SC 1248 , that if the nomination paper does not disclose at all the name of the constituency for which the nomination bas been made, the defect would be of a substantial character, for there would then be no way of knowing the constituency for which the candidate is being nominated but where the nomination form shows the constituency for which the nomination is being made, then even though the form may not have been properly filled in that respect, the defect in filling the form would not be of a substantial character. 9. In the cases before us, no petitioner gave in his nomination paper the name of the ward for which he was nominated. He only gave the number of the ward. The requirement of Form IV is that the name of the ward for which the candidate is nominated must be entered in the nomination paper. The name of the ward is not the same thing as its number. This is clear from rule 4 of the Wards Rules of 1963, which says that "each ward shall be known by the number given to that ward serially" and that "in addition a name to the ward shall also be given." This rule thus draws a distinction between the serial number of the ward and its name. For the purpose of a nomination paper, the identity of the ward has to be established not with reference to the serial number but with reference to its name. The reason for requiring that in the nomination form the name of the ward should be stated is plainly to prevent any voter or candidate from being misled as regards the ward from which the candidate filing the nomination paper is seeking election. A clear description and name of the ward for which a person has been nominated is also necessary for enabling the parties interested to raise objections to the nomination as may be open to them. A clear description and name of the ward for which a person has been nominated is also necessary for enabling the parties interested to raise objections to the nomination as may be open to them. This becomes clear from sub-clause (b) of clause (1) (iv) of rule 13, which enjoins on the Supervising Officer to get a notice in Form V of the nomination affixed in some conspicuous place in the municipal office containing "description similar to those contained in the nomination paper, both of the candidate and of the papers who have subscribed the nomination paper as proposer and seconder." The description of the ward for which the candidate has been nominated with reference to the name of the ward is thus so much a characteristic of the Form as to make its omission fatal to its validity. When, therefore, the petitioners failed to give in their nomination papers the names of the wards for which they had been nominated, there was a total failure on their part to comply with an essential requirement of the nomination form. It is not that they described the names of the wards in some way but that description was in some respect defective. The utter non-compliance with the requirement of Form IV in giving the names of the wards from which the petitioners were seeking election clearly constituted a non- compliance with Rule 13 (1) (i). That being so, the Supervising Officer acted rightly in rejecting the nomination paper of the petitioners. He could not have treated the aforesaid non-compliance with the requirement of Form IV as merely a defect in complying with that requirement and accepted the nomination papers after holding that the defect was not of a substantial character. 10. Turning to the authorities cited by the learned counsel for the petitioners, none of them covers the point whether when in the nomination paper the constituency or the ward for which the nomination has been made has to be disclosed by stating the name of the constituency or the ward and when under the prescribed rules the constituency or the ward has, been given a specific name, the description of the constituency or the ward in any other mode is nothing but a defect in the form of an substantial character. In Rangilal vs. Dahu Sao, AIR 1962 SC 1248 , the defect in potting down in the nomination paper the name of the constituency as Bihar Assembly Constituency instead of Dhanbad Assembly Constituency was regarded not of a substantial character in the background that the election was a bye election and not a general election and the mistake occurred in the printing form and it was quite clear that the nomination was for the Dhanbad constitutency. On the other hand, the observations in that case that if the nomination paper does not disclose at all the name of the constitutency for which the nomination has been made, the defect would be of a substantial character, only go to show that if the name of the constitutency is not at all stated in the nomination paper, then the nomination paper would be invalid. The Assam case, namely, Dev Kanta Barooah vs. Kusha Ram Nath, AIR 1959 Assam 68, dealt with the question whether when in the nomination paper a constitutency has been described in the same terms as it was described in the notification under section 30 (c) of the Representation of the People Act, 1951, further description of the constituency by adding the words "Assembly Constituency was necessary." In Rosamma vs. Balkrishnan, AIR 1958 Kerala 154, the question decided was as to a mistake in giving the number of electoral roll of the proposer. It was held that the mistake did not in any way mislead anyone as regards the identity of the proposer. The above cases as well as the decisions in Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 . Brijendralal vs. Jwalaprasad, AIR 1960 SC 1049 and Dev Kanta Barooah vs. Kusha Ram Nath, AIR 1961 SC 1125 , all proceed on the footing whether the requirement in the nomination paper, in which a defect or omision has occurred, is fatal and goes to the root of the matter and that it must he strictly complied with or whether it is only directory and a breach of which can be overlooked if there is substantial compliance with it and no prejudice ensues. The same principal has to be applied here and on that principle it cannot but be held that when under the Wards Rules of 1963 the wards into which a municipality is divided have been given specific names and when rule 13 (1) (i) and Form IV require that a ward for which a nomination has been made must be disclosed in the nomination paper by stating the name of the ward, then a breach of these provisions cannot be overlooked as the disclosure of the ward for which a person has been nominated is vital and goes to the root of the matter. 11. For all these reasons, our conclusion is that the nomination papers of all the petitioners were rightly rejected by the Supervising Officer. The result is that all these petitions are dismissed. The petitioner in each case shall pay costs of the respondents Nos. 1 to 4 in each petition. Counsel's fee with regard to respondents Nos. 1 to 3 in each petition is fixed at Rs.100. Counsel's fee for respondent No. 4 is also assessed at Rs. 100. The outstanding amount of security deposit, if any after deduction of costs shall be refunded to the petitioner in each case.