JYOTI BHUSHAN v. BODH RAM MURITRAM — 1972 DIGILAW 152 (MP)

JUDGMENT : ( 1. ) THE petitioner by this petition calls into question the election of the respondent to the Legislative Assembly of Madhya Pradesh from the Katghora Assembly Constituency. ( 2. ) THE petitioner was a rival candidate who lost in the election. The election is solely challenged on the ground that the nomination of one Lal Kisan Paswan, another candidate, was wrongly rejected. The nomination of Paswan was proposed by one Gulal Mukardam. The Returning Officer rejected the nominati6n on the ground that the name of the constituency in which the proposer was entered as a votor was not mentioned in the nomination paper and, therefore, it was not possible to know whether the proposer was entered as a votor in the Katghora constituency. The petitioner alleges that Gulal Mukardam was a voter whose name was entered at S. No. 165 in Part 154 of the Electoral Roll for the Katghora constituency and that as the serial number and the part of the electoral roll were mentioned in the nomination paper, the Returning Officer could have easily ascertained that the propose was entered as a votor in the constituency. The petitioner contends that omission to mention the name of the constituency as a particular of the electoral roll number of the proposer was not a defect of substantial character and the returning Officer was wrong in rejecting the nomination. ( 3. ) THE respondent denies that Gulal Mukardam was a votor and submits that the rejection of the nomination was proper on the ground on which it was made by the Returning Officer. He also supports the rejection of the nomination on an additional ground that Paswan had not deposited Rs. 250 as security under section 34 of the Representation of the People Act, 1951, but had only deposited a sum of Rs. 1 on a declaration that he is a member of a Tribe called as Dusadh which is a Scheduled Tribe for Patna District in the State of bihar. The respondent alleges that Lalkisan Paswan, a resident of Madhya pradesh, cannot for an election in the State of Madhya Pradesh claim to be a member of a Scheduled Tribe or Caste of Dusadh which is not a Scheduled caste or Tribe for Madhya Pradesh. ( 4. ) THE following three issues were framed: (1) Was Gulal Mukardam a duly recorded voter? ( 4. ) THE following three issues were framed: (1) Was Gulal Mukardam a duly recorded voter? (2) Was the nomination paper of Lalkisan Paswan improperly rejected by the Returning Officer? (3) Whether the nomination paper of Lalkisan Paswan was liable for rejection as he had not deposited Rs. 250 as security as required under section 34 of the R. P. Act, 1951? ( 5. ) THE petitioner and the respondent examined themselves as witnesses and did not examine any other witness. Issue No. 1: ( 6. ) THE petitioner has produced and proved relevant voters list Ex. P-2 and it is clear from its perusal that the name gulal Mukardam is entered at s. No. 165 in Part 154 of the Electoral Roll of the Katghora Constituency. The correct name of the proposer is Gulal Mukardam and "mukarchham" in the voters list which is in Hindi is a printing mistake for "mukardam". Such a mistake has to be ignored; [see proviso to section 34 (4)]. Indeed, the learned counsel for the respondent has not seriously challenged that Gulal Mukardam, the proposer, is entered as a votor. Issue No. 2: ( 7. ) THE nomination paper of Paswan was filled in a Hindi form. In accordance with the English version of the form it will read as follows : "election to the Legislative Assembly of Madhya Pradesh. I nominate as a candidate for election to the Legislative Assembly from the Katghora assembly Constituency. Candidates name: Lalkisan Paswan his Postal address : P. O. Banki Mogra, Tah Katghora, District Bilaspur. His name is entered at S. No. 1136 in Part No. 86 of the electoral roll for the Katghora assembly constituency. My name is Gulal Mukardam and it is entered at S. No. 165 in Part 154 of electoral roll for the. . . . . . . . . . . . . . . . . . . . . . . . assembly constituency. Date. . . . . . . . . . . . . . . Sd/- Gulal (Signature of proposer)I, the above mentioned candidate, assent to this nomination and hereby declare- (a) that I have completed 37 years of age; (b) that I am set up at this election Independent (c) that the symbols I have chosen are, in order of preference (i) Hut (ii) Engine and (iii ). . . . . . . Sd/- Gulal (Signature of proposer)I, the above mentioned candidate, assent to this nomination and hereby declare- (a) that I have completed 37 years of age; (b) that I am set up at this election Independent (c) that the symbols I have chosen are, in order of preference (i) Hut (ii) Engine and (iii ). . I further declare that I am a member of the Dusadh tribe which is a scheduled tribe of the State of Bihar in relation of Patna district (area) in that State. Date Sd /- Lalkisan Paswan (Signature of candidate ). " ( 8. ) ELECTORAL Roll is prepared for every constituency (section 15 of Representation of People Act, 1950 ). The roll for every assembly constituency is divided into convenient parts which are numbered consecutively ; (Rule 5 of registration of Electors Rules, 1960 ). The number of names included in any part of the roll do not ordinarily exceed two thousand; [rule 5 (4) ibid]. The names of electors in each part of the roll are numbered consecutively with a separate series of numbers beginning with the number one; [rule 6 (2) ibid ]. In the nomination paper apart from other matters the proposer has to give particulars of the electoral roll number of the candidate as also of himself. These particulars are the serial number of the entry, the number of the part in which the entry occurs and the name of the Assembly Constituency to which the roll relates. The name of the Assembly Constituency from which the candidates name is proposed is to be separately mentioned. The candidate can be an elector from any Assembly Constituency of the State [section 5 (c)], but the proposer has to be an elector from the same constituency from which the nomination is proposed [section 33 (1)]. ( 9. ) IN the instant case there was no other defect noticed by the Returning Officer in the nomination paper except that the proposer did not mention the name of the Assembly Constituency in which he was entered as an elector, although he did mention the serial number and the number of the part of the roll. ( 9. ) IN the instant case there was no other defect noticed by the Returning Officer in the nomination paper except that the proposer did not mention the name of the Assembly Constituency in which he was entered as an elector, although he did mention the serial number and the number of the part of the roll. The nomination paper was rejected by the Returning Officer by the following order : "the name of the constituency in which the name of the proposer is recorded has not been mentioned and thus it cannot be said that the proposer was eligible to be a proposer at the time of presentation of nomination paper. The nomination paper is therefore rejected. " ( 10. ) THE evidence of the petitioner and the respondent does not throw any light whether at the time of presentation of the nomination paper of paswan the Returning Officer detected any omission and felt any difficulty in satisfying himself as required by section 32 (4) that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper were the same as those entered in the electoral roll. It is also not clear whether at the time of scrutiny any objection was taken by any one other than the Returning Officer to the validity of Paswans nomination and whether paswan or his proposer was present at the time. ( 11. ) AFTER a review of earlier authorities bearing upon the question [karnail Singh v Election Tribunal, Hissar (10 E T R 189) and Bangilal v. Dahu Sao ( AIR 1962 SC 1248 )] the supreme Court in Ram Awadesh Singh v. Sumitra Devi ( AIR 1972 SC 580 ) has ruled as follows : "from a combined reading of sections 33 and 36, it is clear that a misdescription as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered a material defect in the nomination paper. " Learned counsel for the respondent has distinguished the above case on the ground that it was a case of acceptance and not of rejection of nomination and that the person concerned was in that case present at the time of scrutiny and he produced the relevant entry for the examination of the Returning Officer, and, therefore, the misdescription in the nomination paper could not prejudice him. It is argued by the learned counsel that as in the instant case the candidate and his proposer were absent and as no one was present on their behalf to inform the Returning Officer at the time of scrutiny the name of the constituency in which the proposer was entered as an elector, the Returning Officer was not in a position to verify whether the proposer was an elector from the katghora constituency from which Paswan sought to contest the election and, therefore, he was right in rejecting the nomination. ( 12. ) IN my opinion, correctness of rejection of a nomination on the ground of misdescription in the entries relating to the electoral roll numbers in the nomination paper ought to be judged in the light of the facts of each case; [see Madanlal v. Hira Singh (AIR 1960 Delhi 110.) and the cases referred to therein]. It may be conceded that if the misdescription is of such a magnitude that the electoral roll number of the candidate or the proposer, as the case may be, cannot be readily ascertained and the candidate or his proposer do not co-operate at the stage when the nomination is presented or even at the stage of scrutiny, the returning Officer may have no option but to reject the nomination. But the position will be different if the candidate or the proposer points out the relevant entries at the time of scrutiny or if in spite of the misdescription the returning Officer on his own is able to ascertain the correct entry ; in such cases the misdescription will be of no consequence. In other words, if the misdescription or omission in the statement of particulars of the electoral roll number is trifling which does not really prevent the Returning Officer in ascertaining quickly whether the proposer is really an elector in the constituency, he cannot fold his hands and blame the proposer. In other words, if the misdescription or omission in the statement of particulars of the electoral roll number is trifling which does not really prevent the Returning Officer in ascertaining quickly whether the proposer is really an elector in the constituency, he cannot fold his hands and blame the proposer. In this connection it is to be kept in view that the Returning Officer is empowered to make a summary enquiry at the stage of scrutiny and is directed not to reject any nomination paper on the ground of any defect which is not of a substantial character ; [section 36 (2) and (4)]. ( 13. ) NOW, in the instant case the name of the constituency from which the candidate sought to contest the election was clearly mentioned as katghora constituency. The description of the electoral roll number of the candidate was complete. As regards the proposer the number of the part of the Roll and the serial number at which his name was entered in the Roll were mentioned. All that was wanting was the name of the constituency in the Roll of which the proposers name was entered. As the proposer is required under law to be from the same constituency from which the name of the candidate is proposed, the only thing the Returning Officer was to ascertain in respect of the proposer was whether he was an elector in the Katghora constituency and this he could have easily ascertained by referring to that part and serial number of the roll of this constituency which was indicated by the proposer in the nomination paper. The learned counsel for the respondent submits that to ascertain the entry of the proposers name in the roll without any indication as to the name of the constituency one will have to search and go through all the rolls of the different constituencies and such a time consuming enquiry is not contemplated at the time of scrutiny. This argument is entirely unrealistic. The Returning Officer was only to ascertain whether the proposer was an elector from Katghora constituency and not whether the proposer was entered in any constituency as an elector. This argument is entirely unrealistic. The Returning Officer was only to ascertain whether the proposer was an elector from Katghora constituency and not whether the proposer was entered in any constituency as an elector. As the proposer had mentioned the number of the part of the roll and the serial number of his entry, the Returning Officer should have seen the entry at the serial number in that part of the roll of the Katghora constituency and if he had done so he would have ascertained in minutes that the proposer was an elector in that constituency. The order of the Returning Officer which I have earlier quoted clearly shows that he rejected the nomination without making any effort to see if the proposers name was entered in the electoral roll of the Katghora constituency. The defect in the nomination paper on which it was rejected was, in my opinion, not of a substantial character and, therefore, the Returning Officer was not competent to reject the nomination on that ground. ( 14. ) LEARNED counsel for the respondent has relied upon the following observations in Ramayan v. Rajendra Prasad Singh (AIR 1959 Pat. 410, p. 422.) : "it also seems to me that the proposer should have given the name of the constituency against items No. 2 and 5 of the nomination papers as required by rule 2 (b) (iii) of the election Petitions Rules of 1956. The note in form 2b itself, which I have quoted, leaves no room for any mistake. Even an illustration has been given so as to make the requirement absolutely clear. Mr. Verma has not denied that the omission to give the name of the constituency against those items is a defect; but he has argued that the Tribunal was right in holding that it was not a defect of a substantial character. " "in support of this argument, the first submission which he has made is that the Returning Officer could have assumed that the proposer and the seconder were registered in the same constituency, and, in any case, he could have ascertained the correct position on enquiry from these who were present before him at the time of scrutiny. " "in support of this argument, the first submission which he has made is that the Returning Officer could have assumed that the proposer and the seconder were registered in the same constituency, and, in any case, he could have ascertained the correct position on enquiry from these who were present before him at the time of scrutiny. He has drawn our attention to sub-section (1) of section 33 of the Act of 1951 which requires that the proposer must be an elector of the constituency from which the candidate desires to stand for election. The point which he has attempted to make is that the proposer had to be an elector of Durauli Assembly Constituency, and, even though he did not say so against item No. 2 in the nomination paper, he should have been assumed to be an elector of that constituency. There seems to be no substance at all in this point. There is no presumption in law that a properly-qualified proposer has signed as proposer in a nomination paper. The Returning officer holds the scrutiny for the purpose of ascertaining, among other things, whether the candidate is properly qualified to stand for election and the proposer is qualified to sign as proposer. He cannot make any assumption of the kind urged by Mr. Verma. " These observations no doubt to some extent support the learned counsel. But i respectfully differ. In ascertaining whether the proposer is an elector from the constituency from which the candidate is proposed by looking into the electoral roll of that constituency, the Returning Officer does not make any assumption, rather he seeks to enquire into the only qualification relevant for a proposer. And, if other particulars such as number of the part of the roll and serial number of the entry are correctly stated in the nomination paper, as was done in the instant case, only few minutes will be needed to see that the proposer is or is not entered in the constituency, for the Returning Officer will have to see only one entry in one part of the roll. I fail to understand why the Returning Officer should not take even this much of trouble and reject the nomination on an unsubstantial defeat. ( 15. I fail to understand why the Returning Officer should not take even this much of trouble and reject the nomination on an unsubstantial defeat. ( 15. ) RELIANCE was also placed on Netram v Lakshman Prasad ( 1960 MPLJ 883 =a 1 R 1960 M P 368.), but that case is distinguishable because in it not only the name of the constituency but the number of the part of the roll in which the relevant entry occurred was also not mentioned. I have already stated that entries in each part of the roll constitute separate series beginning with number on therefore, if there are numerous parts of the roll of a constituency mere information as to serial number of the entry cannot easily lead to the relevant entry and for a quick or summary enquiry knowledge of the number of the part is material. That difficulty does not arise in the instant case as number of the part of the roll and serial number of the entry in respect of the proposers name were mentioned in the nomination paper. ( 16. ) REFERENCE was also made to the decision of the Supreme Court in pralhad Das Khandelwal v. Narendra Kumar Salve (Civil Appeal No. 2004, decided on the 11th Sept. 1972.) but the point involved in that case was entirely different. There the name of the constituency from which the candidate was proposed was not at all mentioned and, therefore, it was held to be a defect of substantial character. ( 17. ) MY conclusion, therefore, is that in the circumstances of this case the omission to mention the name of the constituency as a particular of the electoral roll number of the proposer was not a defect of a substantial character and the Returning Officer was not justified in rejecting the nomination of Lalkisan Paswan on that ground. Issue No. 3 ( 18. ) THE question covered by this issue is whether the nomination paper of Lalkisan Paswan ought to have been rejected on the ground of non-compliance with section 34 of the Act. The order of the Returning Officer rejecting the nomination does not proceed on this ground, but the respondent can before this Court support the rejection on additional grounds; [see mangilal v. Dahu Sao ( AIR 1962 SC 1248 , pp. 1251, 1252)]. ( 19. ) I have already stated that Paswan deposited only Rs. The order of the Returning Officer rejecting the nomination does not proceed on this ground, but the respondent can before this Court support the rejection on additional grounds; [see mangilal v. Dahu Sao ( AIR 1962 SC 1248 , pp. 1251, 1252)]. ( 19. ) I have already stated that Paswan deposited only Rs. 125/- under section 34 and gave a declaration in the nomination paper that he belonged to Dusadh Tribe which is a Scheduled Tribe in Patna District of the State of bihar. The declaration forms a part of the nomination paper which has already been quoted. Reference to Constitution (Scheduled Castes) Order, 1956 and the Constitution (Scheduled Tribes) Order, 1956 however, shows that Dusadh is not a Schedule Tribe but a Scheduled Caste in relation to the whole of the State of Bihar. Dusadh is neither a Scheduled Tribe nor a Scheduled Caste in relation to any part of the State of Madhya Pradesh. ( 20. ) ARTICLE 341 of the Constitution which authorises the President to notify Scheduled Castes reads as follows : "341. Scheduled Castes.- (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. " Section 2 of the Constitution (Scheduled Castes) Order, 1950, which was made by the President under Article 341 reads : "2. Subject to the provisions of this Order, the Castes, races or tribes or parts of, or groups within, castes or tribes, specified in Parts 1 to XVII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule. " Part III of this order relates to Bihar and Part VI to Madhya Pradesh. The Caste Dusadh is entered in Part III for throughout the State of Bihar but is not entered at all in Part VI relating to Madhya Pradesh. ( 21. " Part III of this order relates to Bihar and Part VI to Madhya Pradesh. The Caste Dusadh is entered in Part III for throughout the State of Bihar but is not entered at all in Part VI relating to Madhya Pradesh. ( 21. ) A reading of Article 341 of the Constitution and section 2 of the scheduled Castes Order shows that members of Dusadh Caste which are residents in the State of Bihar can alone be deemed to be members of this scheduled Caste. Further, the members of that caste resident in Bihar can be recognised as members of a Scheduled Caste only in relation to that State. Again, if a person of Dusadh caste who originates from the State of Bihar ceases to be resident of that State and shifts to some other State, he will cease to be a member of the Scheduled Caste and will not be recognised as such even in the State of Bihar. The qualification of residence sometimes leads to anomalous results, yet it is this test which has so far been applied in the orders issued by the President under Articles 341 and 342. Reference in this connection may be made to the following observations in Kishorilal v. Raja Ram (AI R 1972 SC 598, p. 604.): "article 341 of the Constitution provides for specification of caste, race or tribes etc. for the purpose of the Constitution in relation to that State or Union territory, as the case may be. In the Twelfth Report of the Commission for Scheduled Caste and Scheduled tribes 1962-63 it has been pointed out at page 12 that person may belong to a caste or tribe declared to be a Scheduled caste in his originating State but who may have been residing for a long time in another State (say for the sake of service or business) where his caste/tribe is not recognised as a Scheduled Caste / Tribe. In the relevant statutory provisions and Orders such a person would be denied the benefits under the Constitution even though he may actually continue to suffer from the effects of the disabilities resulting from the practice of untouchability. The Commissioner suggested that they should be treated as eligible for benefits made available to the Schedule Castes / Tribes in the home State etc. " ( 22. The Commissioner suggested that they should be treated as eligible for benefits made available to the Schedule Castes / Tribes in the home State etc. " ( 22. ) SECTION 34 (1) (b) of the Act, the non-compliance of which is in question, reads as follows : "34. Deposits- (1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited- (b) in the case of an election from an Assembly or Council constituency, a sum of two hundred and fifty rupees or where the candidate is a member of a Scheduled Caste or scheduled Tribe, a sum of one hundred and twenty-five rupees. " ( 23. ) IT has already been seen that Paswan deposited only Rs. 125/-under section 34 on a declaration that he is Dusadh which is a Scheduled Tribe in Bihar. Tribe in the declaration is a mistake for caste. The deposit of rs. 125/-can be valid only if Paswan was a member of a Scheduled Caste on february 8, 1972 the date of nomination. Dusadh not being a Scheduled caste for Madhya Pradesh, Paswan could claim to be a member of a Scheduled Caste on the basis of the Presidents order relating to Bihar provided that he was resident in Bihar on the date of nomination. On the question of residence of Paswan the evidence of the petitioner is material. According to the petitioners own evidence Paswan in December 1971 lived in Banki Mogra and after the election shifted to Korba ; Banki Mogra and Korba are both in Madhya Pradesh. The petitioner has further stated that Paswan originally belonged to Bihar and he along with other labourers came to Madhya pradesh to work in coal mines. The petitioner was unable to say as to from which place or district of Bihar Paswan shifted to Madhya Pradesh. It will be clear from the evidence of the petitioner that Paswan, even if he originally belonged to Bihar, had shifted to Madhya Pradesh and before the elections was residing in Banki Mogra. This evidence will show that Paswan was resident in Madhya Pradesh at the time of nomination. It will be clear from the evidence of the petitioner that Paswan, even if he originally belonged to Bihar, had shifted to Madhya Pradesh and before the elections was residing in Banki Mogra. This evidence will show that Paswan was resident in Madhya Pradesh at the time of nomination. It is also to be noted that Paswan is entered as an elector in the Katghora constituency as stated in the nomination paper which also shows that he is ordinarily resident in that constituency, for unless a person is ordinarily resident he cannot be entered as an elector; (section 19 of the R. P. Act, 1950 ). My finding, therefore, is that at the time of nomination Paswan had shifted from Bihar and was not resident in that State ; and that he was resident in Banki Mogra in the State of Madhya pradesh. On this finding it is not possible to say that Paswan was a member of a Scheduled Caste on the date of the nomination. He was, therefore, not entitled to the concession of making a deposit of Rs. 125 /- only and ought to have deposited Rs. 250/-under section 34. Thus, Paswan did not comply with section 34 and his nomination was liable to rejection on that account under section 36 (2) (b) and the Returning Officer should have rejected the nomination on this ground. Relief: ( 24. ) THE result is that the rejection of Lalkisan Paswans nomination by the Returning Officer is upheld, although on a different ground. The petitioner has thus failed to establish the only ground alleged by him for setting aside the election. The petition accordingly fails and is dismissed with costs of Rs. 500/-, to be paid by the petitioner to the respondent. Petition dismissed.