NAVUBA GOKALJI CHAVDA v. RETURNING OFFICER — 1982 DIGILAW 45 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) IN this petition under Article 226 of the Constitution of India the petitioners who are the voters residing within the local limits of Khanusa Gram Panchayat in Vijapur taluka of Mehsana district have challenged the action of respondent No. 1-returning officer rejecting the nomination paper of petitioner No. 1 whereby she was prevented from contesting the election from ward No. 7-J of the Khanusa Gram Panchayat held in the closing months of year 198j. Petitioner No. 1 was the sole contestant from that ward wherein only one seat was ear-marked as reserved for women. Petitioner No. 1 was not opposed by any rival female candidate. She filled in the nomination form on 27-11-1980 for contesting from the aforesaid ward on the reserved seat for women. Her nomination form came to be rejected by the returning officer by his order dated 29-11-1980 on the ground that on scrutiny of the nomination paper it was found that the candidate had not mentioned her number in the voters list. The aforesaid order below the nomination form as passed by the first respondent-returning officer rejecting the nomination paper is annexed as Annexure `a to the petition. It is obvious that when petitioner No. 1 being the sole candidate was not permitted to contest the election to Khanusa Gram Panchayat on the reserved seat no candidate was returned from the said ward on the reserved seat and the said seat remained vacant. In the meanwhile petitioner No. 1 alongwith petitioner No. 2 who is also a voter from the same ward brought this petition under Article 226 before this court praying for the relief that respondent No. 1 be directed to accept the petitioner No. 1s nomination paper and to declare petitioner No. 1 as duly elected to the reserved seat for women from ward No. 7-J of the Khanusa Gram Panchayat. It was also prayed that respondents be restrained from holding election of the Deputy Sarpanch for the said Gram Panchayat. ( 2 ) MR. N. J. Mehta learned Advocate appearing for the petitioners contended that the first respondent-returning officer had patently erred in law in rejecting the nomination paper of petitioner No. 1 on the ground that she had not stated her number in the voters list. ( 2 ) MR. N. J. Mehta learned Advocate appearing for the petitioners contended that the first respondent-returning officer had patently erred in law in rejecting the nomination paper of petitioner No. 1 on the ground that she had not stated her number in the voters list. He submitted that this was at the highest a technical error of trivial nature which could have been got rectified by the returning officer in exercise of his powers under rule 10 (2) of the Gujarat Gram and Nagar Panchayats Election Rules 1962 (hereinafter called the election rules) whereunder the returning officer is required to hold a summary inquiry for considering the objections regarding given nomination form before deciding to reject the concerned nomination paper. Inasmuch as the first respondent returning officer failed to exercise his aforesaid powers coupled with duty as enjoined upon him under rule 10 (2) of the said rules his decision is patently erroneous and liable to be quashed. In this connection Mr. Mehta heavily relied upon a decision of A. N. Surti J. in special civil application No. 95 of 1981 decided by him on 4/5-2-1981. (Kalidas Karsandas Chavda v. Returning off Vadodara Jilla Panchayat XXII G. L. R. 1050 ). ( 3 ) ON the other hand Mr. Mankad learned Advocate appearing for respondent no. 2 Panchayat submitted that the present petition under Article 226 is totally misconceived. That the petitioner has got equally efficacious alternative remedy by way of election petition under sec. 24 of the Gujarat Panchayats Act. That the petitioners equally had an alternative remedy by way of an appeal under rule 11 (4) of the Election rules and consequently this petition was liable to be dismissed on the preliminary ground that the petitioners ought to have exhausted the alternative remedies available to them. On merits Mr. Mankad contended that provisions of rule 8 of the said Rules were mandatory in character and as petitioner No. 1 had failed to comply with the mandatory requirements of form A-1 prescribed under rule 8 laying down various requirements of a valid nomination paper the first respondent was quite justified in rejecting the nomination paper. ( 4 ) MR. K. J. Vaidya learned Advocate appearing for the election authority and the returning officer on the other hand submitted to the orders of the court. ( 4 ) MR. K. J. Vaidya learned Advocate appearing for the election authority and the returning officer on the other hand submitted to the orders of the court. ( 5 ) BEFORE considering the merits of the controversy between the parties I shall deal with the preliminary objection raised by Mr. Mankad learned Advocate appearing for respondent No. 2 panchayat. He in the first instance invited my attention to a decision of the Division Bench of this court Consisting of B. J. Divan C. J. (as he than was) and B. K. Mehta J. in special civil application No. 2964 of 1980 with special civil application No. 3007 of 1980 decided on 19-8-1981 (Ravjibhai Bhikhabhai Patel v. Chief of Hon. Billimora Nagarpalika 23 (1) GLR 6 (1 ). In the said decision B. K. Mehta J Speaking for the Division Bench held that which remedy lay way of election petition can be resorted to direct petition under Article 226 or :227 of the Constitution would not be normally maintainable. The Division Bench has laid down various principles applicable to such cases. Alley read as under :" (1) Though the extraordinary jurisdiction of High court under Articles 226 and 227 of the Constitution is very wide the court should be slow in exercising the said jurisdiction where an alternative efficacious remedy under the Act is available. However if the impugned order is an ultra vires order or is a nullity as being ex-facie without jurisdiction the question of exhausting the alternative remedy could hardly arise. (2) It is well recognized on principle and in authority that where a right or liability is created by a statute which gives a special remedy for enforcing it only the remedy provided by that statute must be availed of. (3) The right to vote or stand as a candidate at the election is not a civil right but is a creature of a statute or a special law and must be subject to limitations imposed on it. If the legislature entrusts the determination of all matters relating to election to a special tribunal and invests it with a new and unknown jurisdiction that special jurisdiction alone could be invoked for enforcement of that right. If the legislature entrusts the determination of all matters relating to election to a special tribunal and invests it with a new and unknown jurisdiction that special jurisdiction alone could be invoked for enforcement of that right. (4) In matters of election disputes the court should refuse to exercise jurisdiction under Article 226 of the Constitution of India when the statute conferring right to vote or stand at the election prescribes a statutory remedy embracing the disputes pertaining to all aspects of the entire process of election. (5) Merely because the challenge is to the plurality of returned candidates or for that matter to the entire election it is fallacious to urge that it can be only redressed by a writ petition. (6) It is a well recognized principle and a matter of public importance that elections should be concluded as early as possible according to the time schedule and all controversial matters as well all disputes arising out of the elections should be postponed till after the elections are over so as to avoid an implement or hindrance in the election proceedings. In other words there is a provisional finality in the matters pertaining to the various stages of elections. (7) The bar of estoppel cannot be pleaded against a person challenging the election merely because he takes part in the said election by standing as a candidate or by exercise of his right of franchise therein especially when the impugned election is patently illegal and void an in to due to the fact such as it being held pursuant to an ultra vires provision in a statute or the rules. There is no question of approbation and reprobation in case of a person standing or voting at the election nor is there any bar of leaches if he does not challenge such void election at the initial stage and approaches the court after the said election is over. There is no question of approbation and reprobation in case of a person standing or voting at the election nor is there any bar of leaches if he does not challenge such void election at the initial stage and approaches the court after the said election is over. (8) Subject to the principle stated immediately here in above if the entire conduct of a petitioner is so eloquent that he can be said to have acquiesced in the act which subsequently he has been complaining as a wrongful act it may be one of the factors which the court exercising jurisdiction under Article 226 of the Constitution in a petition for a writ of quo warrant would bear in mind and may in appropriate circumstances refuse to exercise its extraordinary jurisdiction of granting a writ i the nature of quo warrant. (9) The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution is not required to examine the question when the election is challenged on the ground of it being vitiated at its inception due to the fact such as it being held in pursuance of or in accordance with an ultra vires provision of the statute or the rules as to whether the election of a returned candidate is matereally affected at such election by operation of the ultra vires provision. (10) Subject to the principles stated immediately here in above an order to successfully challenge an election by a writ petition on the ground of breach of any mandatory provision contained in the Municipal Act or the Panchayat Act or the rules thereunder it must be established that the election of the returned candidate was materially adjusted thereby. The aforesaid decision of the Division Bench therefore makes it clear that if effective remedy by way of election petition is available the present petition under Article 226 would not be maintainable. In this connection Mr. Mankad also rolled upon a Division Bench decision of this court in Kanchanbhai v. Maneklal 6 G. L. R. 200. In the aforesaid decision Bhagwati J. (as be then was) considered the scope and ambit of sec. 24 of the Act and held that"the word election in sec. 24 of the Gujarat Panchayats Act 1961 has a wider meaning which is used to connote the entire process culminating in a candidate being declared elected. In the aforesaid decision Bhagwati J. (as be then was) considered the scope and ambit of sec. 24 of the Act and held that"the word election in sec. 24 of the Gujarat Panchayats Act 1961 has a wider meaning which is used to connote the entire process culminating in a candidate being declared elected. If the returning officer has rejected a nomination paper otherwise than in accordance with the grounds mentioned in sub-rule (21 of Rule 14 of the Gujarat District Panchayats Election Rules 1962 the rejection of the nomination paper would clearly amount to a breach or non-compliance with sub-rule (2) of Rule 14 and if in consequence of that the result of the election has been materially affected which it undoubtedly would be the election can be set aside by the civil Judge". It has been observed in this connection :"leading sec. 24 along with sub-rule (8) of Rule 14 and applying the rule of construction it is clear that so far as the machinery of election is concerned the decision of the Returning officer regarding acceptance or rejection of nomination papers is final in the sense that it cannot be questioned until the election is completed but when the election is completed any aggrieved person may prefer an application before the civil Judge under sec. 24 within fifteen days from the date if declaration of the result questioning the validity of the election on the ground that the nomination paper was improperly accepted or rejected in breach if or non-compliance with sub-rule (2) of Rule 14". ( 6 ) IN support of his preliminary objection Mr. Mankad also relied upon a decision of the Division -Bench of this court consisting of M. P. Thakkar J. (as he then was) and R. C. Mankad J. in Letters Patent Appeal No. 17 of 1981 decided on 3-2-1981. In the aforesaid decision it has been held that when alternative remedy by way of election palliation is available a direct petition under Article 226 of the constitution challenging the order of the returning officer rejecting the nomination paper of a given candidate would not be maintainable. In the aforesaid decision it has been held that when alternative remedy by way of election palliation is available a direct petition under Article 226 of the constitution challenging the order of the returning officer rejecting the nomination paper of a given candidate would not be maintainable. But in the last path of the said judgment it has been made clear as under:" We wish to make it clear that inasmuch as the impugned decision of the Returning officer turned on a disputed question of fact which Cannot be agitated in the course of a petition under Article 226 of the Constitution we do not consider it proper to express any opinion on the moot question whether the ad-hoc finally can come in the way of exercise of Constitutional powers when the decision of the returning officer is not built on any disputed question of fact and the order is patently erroneous". Mr. Mankad also relied upon a decision of A. N. Surti J. in special civil application No. 410 of 1981 decided on 19-2-1981 wherein Surti. J refused to interfere in proceedings under Article 226 when alternative remedy by way of election petition for challenging the result of the concerned election was available to the petitioners. The aforesaid decisions on which Mr. Mankad has placed reliance clearly indicate that in case where the petitioner in a petition under Article 226 raises a question which can be effectively thrashed out in election petition remedy under Article 226 cannot be normally made available to the concerned petitioner and the petitioner would be relegated to the alternative Act remedy by way of election petition where the disputed question can be thrashed out on evidence. So far as the facts of the present case are concerned it has been seen above that the petitioner No. 1 was the sole contestant on the reserved seat for women from ward No. 7-J and once her nomination paper was rejected there remained no candidate in the contest and as a direct consequences the said reserved seat remained vacant. If in the meanwhile a fresh election would have been held and any candidate was returned on the said seat the petitioner No. 1 would certainly have been required to resort to the alternative remedy by way of election petition under sec. 24. If in the meanwhile a fresh election would have been held and any candidate was returned on the said seat the petitioner No. 1 would certainly have been required to resort to the alternative remedy by way of election petition under sec. 24. But on the peculiar facts of the present case it is found that the remedy under sec. 24 of the Act would not be available to the petitioners herein. A mere look at sec. 24 shows that remedy by way of election petition contemplated by the said section pertains to a case where validity on election of a member of the Panchayat is brought in question by any person contesting the election or qualified to vote at the election to which such question refers. Consequently in such an election petition election of the concerned returned candidate can be brought in challenge by either unsuccessful contestant or even by other persons who are qualified to vote at the concerned election. But all the same there must be a contest between the election petitioner on one hand and the returned candidate on the other. On the peculiar facts of the present case no such possibility of challenging the election of any returned candidate from ward no. 7-J at all arises for consideration. In fact as petitioner No. 1 was the sole contestant once her nomination paper was rejected there remained no question of holding at that stage any election for the reserved seat for women from the said ward. It is therefore impossible to ask petitioner No. 1 to go by way of election petition and to challenge the result of the election from ward No. 7-J when no election is held forward No. 7-J. Consequently remedy of sec. 24 of the Act is not available to the petitioners in the peculiar facts of this case. It is pertinent to note at this stage that the aforesaid decisions to which Mr. Mankad invited my attention were concerned with the fact situations wherein elections had taken place for the concerned wards of the municipalities or panchayats as the case may be and there were returned candidates whose elections could be challenged by way of election petitions. It is in the background of the aforesaid fact situations that the ratio of various decisions relied upon by Mr. Mankad will have to be appreciated. It is in the background of the aforesaid fact situations that the ratio of various decisions relied upon by Mr. Mankad will have to be appreciated. As in the peculiar facts of this case there was no election from ward to. 7-J and there was no returned candidate for the reserved seat for worn no occasion arises for asking the petitioners to prefer an election petition under sec. 24 for determination of validity of such election. Alia. Mankad submitted that the word election as mentioned in sec. 24 has wide collection as laid down by Bhagwati J (as he then was) in the case of Kanchanlal (supra ). It is true that Bhagwati J. speaking for the Division Bench observed in that decision that the word election in sec. 24 of the Gujarat Panchayats Act 1961 has a wide meaning which is used to connote the entire process culminating in a candidate being declared elected and in the said process rejection of nomination paper would form part of the entire process. However it is pertinent to note that in the aforesaid decision there had resulted an election from the given ward and a candidate was declared as successful. Consequently petition under sec. 24 could have been filed on the facts. Of the aforesaid case. In the present case also if during the pendency of this petition respondent No. 1 had held fresh election for ward No. 7-J and if there was already a duly elected candidate in the field the petitioners would have been required to pursue the act remedy under sec. 24. But as there is no such creation for the said ward till today it is no use asking the petitioners to prefer an election petition under sec. 24 against a non-existing returned candidate or to challenge the validity of election for ward No. 7-J which has never taken place. Under these circumstances in the background of the peculiar facts of this case it must be held that the remedy by way of election petition under sec. 24 is not available to the petitioners in the present case. It is also required to be noted that no disputed questions of facts arise for decision in the present case. Under these circumstances in the background of the peculiar facts of this case it must be held that the remedy by way of election petition under sec. 24 is not available to the petitioners in the present case. It is also required to be noted that no disputed questions of facts arise for decision in the present case. Only question in controversy between the parties is as to whether the 1st respondent was justified in rejecting the nomination form of the petitioner No. 1 only because she had admittedly not mentioned in the nomination form her serial no in the voters list. The relevant provisions of law are to be applied to the admitted facts of the case for resolving the above controversy. This is an additional ground why relegation of the petitioners to the remedy under sec. 24 of the Act does not appear to be called for in the present case even assuming that such an election petition can lie. ( 7 ) SO far as the second plank of the preliminary objection of Mr. Mankad is concerned he invited my attention to Rule 11 (4) of the Election Rules. It reads as under;" (4) Any candidate whose nomination paper has been rejected may prefer an appeal to the election authority against the order of the Returning Officer within two days of the date of the order and send a copy of the appeal to the Returning Officer. The election authority shall within three days of the presentation of the appeal give his decision thereon and immediately communicate the decision to the Returning Officer. The order passed by the Election authority shall be final". It is obvious that the said remedy which was available to the petitioners has got totally stale by now. The nomination form of petitioner No. 1 was rejected by the first respondent on 296 1980 that is before one year and four months from today. The appeal could have been filed within two days of the order and was required to be disposed of within three days thereafter. Thus the appellate proceedings under the rules could have been over by the beginning of December 1980 We are at the fag end of March 1982. No useful purpose can be served therefore in directing the petitioners now to approach the election authority by way of an appeal. Thus the appellate proceedings under the rules could have been over by the beginning of December 1980 We are at the fag end of March 1982. No useful purpose can be served therefore in directing the petitioners now to approach the election authority by way of an appeal. Apart from the question of delay and the question of its condonation by the concerned appellate authority no useful purpose can be served by the said appeal at this late stage as the appellate authority being the appellate election authority under rule 11 (4) is itself a party respondent before me and has submitted to the orders of this court. It is further pertinent to note that interim relief was granted pending admission by A. N. Surti J. on 15-1-1981 and later on the petition was admitted to final hearing on 5-2-1981. In the meantime the respondents appeared through their learned Advocate before this court. Mr. Mankad learned Advocate for respondent No. 2 states before me that he had appeared before Surti J. last year when the petitioner had come up for admission hearing. The learned Advocates for the returning officer as well as the election authority had also appeared before Surti J. last year at the time when the petition came up for admission hearing. If at that time the preliminary objection regarding preferring of appeal under rule 11 (4) was taken up this court at that stage could have asked the petitioners to exhaust the said readly. Now it is too late in the day to raise such a preliminary objection when this petition was admitted last year and at that stage the respondent did not think it proper to raise such a contention regarding on-maintainability of the petition on the ground of available alternative remedy under rule 11 (4 ). They must therefore be held to have waived this objection at that stage. In that view of the matter after a passage of more than one year after the admission of the present petition by this court it is neither fair nor proper to ask the petitioners to be relegated to the remedy under rule 11 (4) by way of preferring an appeal to the election authority respondent No. 3 herein. In that view of the matter after a passage of more than one year after the admission of the present petition by this court it is neither fair nor proper to ask the petitioners to be relegated to the remedy under rule 11 (4) by way of preferring an appeal to the election authority respondent No. 3 herein. Even otherwise it has to be kept in view that decisions of the returning officer or the election authority as appellate authority regarding rejection or acceptance of nomination forms have only ad-hoc finality and ultimately the said questions can be thrashed out either by way of election petition or by way of a petition under Article 226 if otherwise they are maintainable on the facts of a given case. As I have found on the peculiar facts of the present case that the Act remedy by way of election petition under sec. 24 is not available to the petitioners the second preliminary objection regarding non-exhausting of the remedy by way of appeal before the election authority under rule 11 (4) cannot be entertained at this stage and consequently both these preliminary objections raised by Mr. Mankad on behalf of respondent No. 2 stand over-ruled. ( 8 ) THAT takes me to the consideration of the merits of the controversy between the parties. In order to appreciate the grievance between the parties pertaining to the nomination form of petitioner No. 1 it is necessary to turn to the relevant election rules applicable to the fact of the present case. Rule 8 of the Gujarat Gram and Nagar panchayats Election Rules 1962 provides-"on any day appointed for the nomination of candidates under rule 7 between the hours of eleven Oclock in the forenoon and three Oclock in the after noon each person desirous of standing as a candidate for election as a member of the panchayat shall fill in a nomination paper in form A1 and each person desirous of standing as a candidate for election as a Sarpanch shall fill in a nomination paper in from A2 and each such person shall sign the nomination paper concerned and present it either in persons or through a representative authorised in writing in this behalf by him to the returning officer. (2) On receiving a nomination paper under sub-rule (3) the returning officer shall enter therein his serial number and shall endorse thereon a certificate stating the date on which and the exact time at which nomination paper was delivered to him. Rule 10 provides for security of nomination. Sub-rule (1) of rule 10 states -" (1) At the time and place appointed for the scrutiny of nominations intending candidates and nay other person duly authorised in writing by each such intending candidate shall alone be entitled to be present. The returning officer shall allow such persons reasonable facilities for examining the nomination papers of intending candidates". Sub-rule (2) of rule 10 is relevant and it reads thus :-" (2) The returning officer shall examine the nomination papers and decide all objections raised before him against any nomination and may either on such objection or on his own motion and after such summary inquiry if any as he considers necessary reject a nomination paper on any of the following grounds namely - (I) that the candidate is disqualified under the Act or these rules for election; or (II) that the candidate has failed to comply with any of the provisions required by these rules or the Act. (III) that the signature of the candidate is not genuine or has been obtained by fraud. Under sub-rule (3) of rule 10 it has been provided that for the purpose of sub-rule (1) the production of a certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it proves that the candidate is disqualified. Sub-rule (4) provides that the returning officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. ( 9 ) AS per rule 8 petitioner No. 1 was required to fill in the nomination paper as prescribed under form A-1. Form A-1 does mention that amongst other details the concerned candidates has to mention the name of the electoral division for which the candidate is nominated and the number in the voters list. The nomination form filled in by petitioner No. 1 gave all other details but missed to state serial number of petitioner No. 1 in the voters list. Form A-1 does mention that amongst other details the concerned candidates has to mention the name of the electoral division for which the candidate is nominated and the number in the voters list. The nomination form filled in by petitioner No. 1 gave all other details but missed to state serial number of petitioner No. 1 in the voters list. The aforesaid infirmity resulted in rejection of petitioner No. 1s nomination form at the hands of the first respondent-returning officer. Mr. Mehta learned Advocate for the petitioners contends that the first respondent could not have rejected the nomination form on account of the aforesaid infirmity for two obvious reasons. Firstly the concerned defect in the nomination form was not of substantial character and hence under rule 10 (4) there was prohibition against the returning officer requiring him not to reject such a nomination form on the ground of the aforesaid technical defect. The second reason given by Mr. Mehta is that under rule 10 (2) before rejecting the nomination form the returning officer was required to hold a summary inquiry and in the said summary inquiry he could have permitted the petitioner to rectify the error and as that opportunity was not given to petitioner No. 1 by respondent No. 1 herein his order rejecting the nomination form is patently erroneous in law. So far as the first contention of Mr. Mehta is concerned Mr. Mankad learned Advocate for respondent no. 2 raises a serious controversy and submits that nonmentioning of the name in the voters list is not a technical defect but it is a defect of substantial character. In order to support his aforesaid submission on merits he invited my attention to a decision of the Supreme court in Dharam Singh Rathi v. Hari Singh M. L. A. and Others (1979) 2 S. C C. 240. In the aforesaid decision the Supreme court was concerned with the question regarding validity of the election held under the provisions of the Representation of People Act 1951 The returning officer in that case had rejected certain nomination papers on the ground that the person concerned had not given the name of his father and his full address. In view of the returning officer this defect was a technical one but as there was no one present at the time of the scrutiny of the nomination papers rectification could not be made. In view of the returning officer this defect was a technical one but as there was no one present at the time of the scrutiny of the nomination papers rectification could not be made. The High Court of Punjab and Haryana took a contrary view and held that the defect of non-compliance with the requirements of sec. 33 (1) of the said Act was a substantial defect and hence the nomination papers were held to be rightly rejected by the returning officer. The Supreme Court speaking through Untwalia J. concurred with the aforesaid decision of the said High Court. The provisions of sec. 36 of the Representation of People Act 1951 were noticed by the Supreme Court and it was held that under suh-sec. (4) of sec. 36 the returning officer had rejected the nomination paper on the ground of a defect of substantial character Non-supply of postal address was held to be a defect of substantial character. It is difficult to appreciate how the aforesaid decision of the Supreme Court can he pressed in service by Mr. Mankad in the peculiar facts of the present case. The question posed for my consideration is entirely different. In the present case the nomination form substantially complies with the requirements of form A-1 save and except to the limited extent that voters list No. of the candidate viz. petitioner No. 1 is not mentioned. So far as such a defect is concerned it cannot be considered to be a defect of substantial character for the simple reason that ward No. is clearly mentioned The nature of the reserved seat is also pointed out. Full name and address of the candidate is also mentioned. So far as non-mention of the voters list number is concerned there is internal indication provided by rule 10 (3) itself that Such a defect would not be substantial in character. I have also referred to rule 10 (3) of the aforesaid rules. To recapitulate it has been provided therein that for the purpose of sub-rule (1) the production of a certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified. To recapitulate it has been provided therein that for the purpose of sub-rule (1) the production of a certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified. This shows that production of certified copy of entry made in the list of voters would furnish an independent and conclusive evidence regarding the position of the concerned voter in the list of voters. Under these circumstances non-mentioning of the voters list number in the nomination form by itself and standing as a lone circumstance cannot be said to be such a defect which would go to the root of the matter and would render it a defect of substantial character. It must be hold that such a defect would be a defect of technical nature which could not have been pressed in service by the first respondent for outright rejection the nomination form of petitioner No. 1. Even sec. 33 of the Representation of People Act 1951 indicates that such type of defects are not considered by the legislature to be substantial defects which could have any vitiating effect on the nomination forms of the persons who are contesting elections to the Parliament or Legislative Assemblies. The relevant provisions of sec. Even sec. 33 of the Representation of People Act 1951 indicates that such type of defects are not considered by the legislature to be substantial defects which could have any vitiating effect on the nomination forms of the persons who are contesting elections to the Parliament or Legislative Assemblies. The relevant provisions of sec. 33 (4) of the Representation of People Act 1951 along with the proviso read as under:"33 On the presentation of a nomination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposes as entered in the nomination paper are the same as those entered in the electoral rolls:provided that no misnomer or inaccurate description or clerical technical or printing error in regard to the name of the candidate or his proposes or any other person or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in Regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical technical or printing error to be corrected and where necessary direct that any such misnomer inaccurate description. clerical technical or printing error in the electoral roll or in the nomination paper shall be over looked". It is therefore obvious that such defects about mentioning or nonmentioning of electoral roll numbers in nomination forms are not considered by legislature to be detects of substance for major elections like Parliament and Assembly elections and hence much less can it be said that for the election to local body like the Gram Panchayat such defect would stand elevated to the pedestral of a substantial defect. It must therefore be held that the first respondent was not justified in rejecting the nomination form of petitioner No. 1 only on the ground that serial number in the voters list was not mentioned by petitioner No. 1 in her nomination form. It must therefore be held that the first respondent was not justified in rejecting the nomination form of petitioner No. 1 only on the ground that serial number in the voters list was not mentioned by petitioner No. 1 in her nomination form. It was an error of technical nature which could have been got corrected and in any case it cannot result in vitiation of the nomination form as such. In fact rule 10 (4) of election rules prohibits respondent No. 1 from rejecting the nomination form on the ground of such a technical defect. ( 10 ) THE second ground on which Mr. Mehta assailed the order of the rejection of nomination form at the hands of the first respondent was that under rule 10 (2) of the Election Rules the first respondent ought to have held a summary inquiry regarding the defect in question and ought not to have rejected the nomination paper straight way. So far as the aforesaid contention of Mr. Mehta is concerned he placed strong reliance on a decision of this court rendered in special civil application No. 95/1981 by Surti J. on 4/5-2-1981 (supra) In the aforesaid case before Surti J. a grievance was made in the petition under Article 226 of the Constitution by the petitioner whose nomination paper was rejected on the ground that the petitioner had in that case omitted to mention the name of the scheduled caste to which he belonged. The petitioner in that case was seeking election to the concerned panchayat for which relevant election rules were the Gujarat Taluka and District Panchayat Election Rules 1975 Rule 15 (2) of these rules is pari materia with rule 10 of the election rules in the present case. Interpreting the said election rule Surti J. made the following pertinent observations :"this is a clear case where the returning officer had not discharged his function as contemplated by rule 15 (2 ). When the returning officer examined the nomination papers he should have noticed the aforesaid technical defect in the nomination paper particularly in view of the objection from respondent No. 2 that the petitioner had not mentioned the name of the scheduled caste to which he belongs in the nomination paper. When the returning officer examined the nomination papers he should have noticed the aforesaid technical defect in the nomination paper particularly in view of the objection from respondent No. 2 that the petitioner had not mentioned the name of the scheduled caste to which he belongs in the nomination paper. When such a pointed attention was drawn of the returning officer by the contesting candidate was it not the duty of the returning officer to make the summary inquiry ? Was it not the duty and the statutory function of the returning officer to draw the attention of the petitioner that the petitioner had not mentioned in the nomination paper that he belongs to a particular scheduled caste? In any event in my view having regard to the fact and circumstances of the case the aforesaid technical error was not of a substantial character. He merely omitted to mention the name of the scheduled caste to which he belongs and such a technical error in the best interest and furtherance of the democratic set up at all levels in our country should not defeat the right of the petitioner to contest the election". On the analogy of the aforesaid decision it must be held that in the present case the first respondent failed to discharge his statutory obligation of holding a summary inquiry under Rule 10 (2) of the election rules wherein he could have given an opportunity to petitioner No. 1 to correct the technical error of non-mentioning of her serial number in the voters list instead of straightway rejecting the nomination paper of petitioner No. 1. This is an additional ground on which the order passed by the first respondent cannot be sustained petition allowed. .