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1983 DIGILAW 408 (RAJ)

Ganga Ram v. Yaru Ram

1983-09-09

D.L.MEHTA

body1983
JUDGMENT 1. The petitioner, Gangaram was elected as Sarpanch, Gram Panchayat, Malasar on December 14, 1981. In the election for the post of Sarpanch, about eight persons filed their nomination forms on December 12, 1981. The nomination form of one Shri Pemaram was rejected and rest of the nominations were accepted. The election was only contested by the petitioner Gangaram and respondent No.1 Taruram as rest of the persons had withdrawn their nominations. 2. Respondent No. 1 "Taruram and respondent No. 2 Beerma Ram, an elector filed an election petition against the petitioner Gangaram under r. 78 of the Rajasthan Panchayat & Nyaya Panchayat Election Rules. 1960 (hereinafter referred to as the Rules'). Respondents No. 1 & 2 had submitted various grounds in the election petition and the relief sought was to the effect that the election of Gangaram as Sarpanch may be quashed and respondent No. 1 Taruram may be declared elected as Sarpanch of the Gram Panchayat. One of the grounds on which the election petition was filed was that the nomination form of Shri Pemaram was wrongly rejected. 3. The petitioner contested the election petition and submitted that the nomination form of Pema Ram was correctly rejected. The learned Civil Judge, Bikaner framed as many as nine issues. After hearing both the parties, the learned Civil, Judge, i. e. Election Tribunal accepted the election petition tiled by respondent No. 1 and 2 and set aside the election of the petitioner as Sarpanch of Gram Panchayat Malasar vide his judgment dated July 27, 1983. 4. Being aggrieved by the Judgment dated July 27, 1983 of the Election Tribunal, the petitioner has filed this writ petition. In the writ petition he has prayed that an order, direction or a writ including a writ in the nature of certiorari be issued and the order/Judgment dated July 27, 1980 of the Election Tribunal he quashed. 5. I have heard Mr. H.M. Parekh, learned counsel for the petitioner and Mr. M. M. Singhvi, learned counsel for respondent No. 1 (Caveator). 6. 5. I have heard Mr. H.M. Parekh, learned counsel for the petitioner and Mr. M. M. Singhvi, learned counsel for respondent No. 1 (Caveator). 6. In the first instance, learned counsel for the petitioner has challenged the .Judgment dated July 27, 1983 of the Election Tribunal on the ground that Pemaram had mentioned in his nomination form that his name appears in Ward No. 1 at serial No 58 in the voters-list of Grain Panchavat, Malasar and under r. 18(3)(b) of the Rules, the Returning Officer may reject the nomination form of the person whose number or name on the voters-list and the nomination form does tally and, therefore, the Election Tribunal has erred in observing that the name of Pemaram appears is the electoral roll of the Grain Panchayat Malasar in Ward No. 5, Serial No. 58. In the writ petition, the petitioner has taken on additional ground also that Pema Ram was a covering candidate and the rejection of his nomination form will not substantially affect the results of the election.Learned counsel for the petitioner has alto challenged the guidelines issued by the State Govt. and has submitted that the guidelines issued by the State Government arc inconsistent with the provisions of the Rules and, therefore, the Election Tribunal was not within its jurisdiction in considering the guidelines and deciding the election petition on the basis of the said guidelines. It was further submitted by the learned counsel for the petitioner that a joint election petition by a defeating candidate and an elector cannot he and, therefore, the Election Tribunal should have rejected the election petition. He has also submitted that the election petition suffers from misjoinder of parties as respondent No. 1 who was a defeated candidate could not join with respondent No 2 who was an elector as their cases were different and their challenge was also on different grounds. It may be mentioned here that though in the writ petition, the petitioner has taken a plea that the Returning Officer is a necessary party but learned counsel for the petitioner has not argued this point before me. 7. On the other hand, Mr. It may be mentioned here that though in the writ petition, the petitioner has taken a plea that the Returning Officer is a necessary party but learned counsel for the petitioner has not argued this point before me. 7. On the other hand, Mr. M.M. Singhvi, learned counsel for respondent No. 1 has submitted that in the election petition, it was specifically mentioned that the name of Pemaram son of Imarata Ram was entered in the Electoral Roll of Grant Panchayat, Malasar in Ward No. 5 at serial No. 58 and this averment was not denied by the petitioner Gangaram in his reply to the election petition. He has further submitted that the name of Pema Ram was duly entered at serial No. 58 of Ward No. 5 of the Electoral Roll of the Gram Panchayat, Malasar and, therefore, merely because Ward No. 1 was wrongly mentioned in the nomination form which was redundant and not required and the Returning Officer was not justified in rejecting the nomination paper of Pemaram as held by the Election Tribunal. It was submitted by the learned counsel for respondent No. 1 that the petitioner has deliberately made a misstatement of fact in the writ petition that no Electoral Roll of the Gram Panchayat, Malaser had been filed and that there was no legal evidence to corroborate the finding that the name of Petnaram appears in the Electoral Roll of Ward No. 5 at serial No. 58. According to Mr. Singhvi, learned counsel for respondent No.1, the authenticated Electoral Roll was summoned and was proved by the statement of A.W.I. Ramesh Chander, Upper Division Clerk attached to the Election Branch of the Office of Sub- Divisional Magistrate North, Bikaner, which has been marked as Annexure-R. 1. It was further submitted that the petitioner Gangaram in his statement dated February 5, 1983 admitted in cross-examination that the name of Penaram and the members of his family is entered in the voter's list of Ward No. 5. It was further submitted that the petitioner Gangaram in his statement dated February 5, 1983 admitted in cross-examination that the name of Penaram and the members of his family is entered in the voter's list of Ward No. 5. The material portion of the statement of the petitioner Gangaram reads as follows : " isekjke esjk lxk HkkbZ gSA isekjke iq= bejrkjke iq= bejrkjke uke ds bl isekjke iapk;r {ks= esa ugha gSA isekjke ds rhu yM+ds gSA jsoUrjke] jkedj.k o jkefd'kuA isekjke dh iRuh dk uke ehjk gSaA isekjke o mlds ifjokj ds lnL;ksa ds uke oksVj fyLV esa okMZ ua0 5 esa ntZ gSA pquko ds le; isekjke xkao esa FkkA muesa oksV fn;k ;k ugha irk ughaA bl pquko ds igys ls Hkh 'kq: ls isekjke o mlds ifjokj ds oksVksa dk uke lwph esa pyk vk jgk gSA " Mr. Singhvi, learned counsel for respondent No. 1 submits that the writ petition is liable to be dismissed on this ground alone that the petitioner is guilty of making a deliberate misstatement of fact on a very material point. 8. Mr. Singhvi, learned counsel for respondent No. I however, submits that it is not permissible for the petitioner to adduce any additional evidence by way of an affidavit in the writ jurisdiction. He submits that apart from the fact that there is no provision in the Rules for filing a nomination paper by a covering candidate. He further submits that there is no plea in the written statement that Penta Ram was a covering candidate of the petitioner Gangaram and that Pemaram did not even elect to enter the witness-box and, therefore, the petitioner Gangaram is not entitled to raise any such plea. It was also submitted that a duty has been enjoined upon the Returning Officer to ascertain the identity of the candidate and also to tally the serial number of the candidate in the Electoral roll, and the Returning Officer could not reject the nomination paper on the mere ground that the ward number was incorrectly stated in the nomination paper. 9. 9. It will be useful here to quote the following finding of the Election Tribunal : " isekjke dk euksu;u fuokZpu vf/kdkjh us bl dkj.k ls jn~n fd;k fd mldk uke dze la[;k dk feyku ugha gksrk] fdUrq isekjke&bejrk ogh O;fDr gS vFkok ugha] bl fcUnw ij fuokZpu vf/kdkjh us dksbZ tkap ugha dhA isekjke ftlus ljiap ds in ds fy, iznZ'ku ukekadu i= izLrr fd;kA ogh isekjke gSa ftldk uke xzke iapk;r eksyklj dh okMZ la0 5 dh ernkrk lwph esa dze la[;k 58 ij vafdr gSA bl fcUnq ij i{kdkjku ds e/; dksbZ fookn ugha gSA ;g isekjke foi{kh xaxkjke dk lgksnj gS o xzke eksyklj dk fuoklh gSA ;g rF; Hkh i=koyh ij miyC/k gSA " From the aforesaid finding, it is clear that Pema Rant is a resident of Ward No. 5 of Gram Panchayat, Malasar and that his name has been entered at serial No. 58 of Ward No. 5. It will further be clear from the material portion of the statement of the petitioner Gangaram which has been referred above that there is no other person in the name of Pema Ram son of Imarta Ram in the Gram Panchayat. Malasar; that Pema Ram has three sons viz. Rewant Ram, Ramkaran and Ramkishan and that the names of that persons of the family of Pemaram have been entered in the vesters' list of Ward No. 5. M.M. Singhvi has invited my attention to the case of Bhagwati Prasad Gupta v. Prakash Bhalotia (1981) 3 SCC 329 , wherein their Lordships of the Supreme Court have held that examination of appeal on merits would be abuse of process of the court where the appellant takes and insists on a false stand, entirely inconsistent with the indisputable and established facts of the case. He has further cited the case of Vijay Kumar v. State of Haryana, AIR 1983 SC 622 . wherein, it was held that the petitioners by making false representation obtaining order of status quo have disentitled themselves from getting any relief or assistance from the Supreme Court and the Special Leave Petitions were liable to be dismissed. 10. Mr. He has further cited the case of Vijay Kumar v. State of Haryana, AIR 1983 SC 622 . wherein, it was held that the petitioners by making false representation obtaining order of status quo have disentitled themselves from getting any relief or assistance from the Supreme Court and the Special Leave Petitions were liable to be dismissed. 10. Mr. H.M. Parekh, learned counsel for the petitioner has invited my attention to Para 8(1)(b) of the writ petition which reads as follows : "(b) That the learned Judge has erred in observing that the name of Pemaram appears in the electoral roll of the Gram Panchayat, Malasar in Ward No. h Serial No 58. It may be submitted that no electoral roll of the Gram Panchayat, Malasar has been filed and there is no legal evidence to support this finding and the finding is wholly unsustainable. The evidence of Rameshchand A.W. 1 cannot prove the electoral roll, as the electoral roll has not been filed and cannot be used to prove in law the electoral roll of the Gram Panchayat, Malasar." Mr. Parekh submits that learned counsel for respondent No. 1 is not interpreting rightly the submissions made by him in para 8(1)(b) of the writ petition. He further submits that he has not denied that the name of Pema Ram does not find place in Ward No. 5 at serial No. 58 of Grain Panchayat, Malasar. He submits that only the extract of the electoral roll has been produced before the Court and the Court has committed an error in accepting the extracts of the electoral roll. Though the petitioner has stated the facts in para 8(1)(b) of the writ petition in a way which may mislead the Court but I will not like to dismiss the writ petition on this sole ground. 11. Mr. H.M. Parekh, learned counsel for the petitioner contends that under r. 79(1) of the Rules, a petition under r. 78 of the Rules may be presented by an elector or by any candidate at such election or co-option, as the case may be, and that the election petition cannot be filed jointly by an elector and the candidate. 11. Mr. H.M. Parekh, learned counsel for the petitioner contends that under r. 79(1) of the Rules, a petition under r. 78 of the Rules may be presented by an elector or by any candidate at such election or co-option, as the case may be, and that the election petition cannot be filed jointly by an elector and the candidate. Sufficient time was granted to the learned counsel for the petitioner while hearing the writ petition to cite any authority in support of his aforesaid contention but lie could not lay hand on any of the authorities which may support his contention. 12. Mr. M. M. Singhvi, learned counsel for respondent No. 1 has invited my attention to Kashi Nath v. Shibbanlal, AIR 1959 All. 54 . In that case, the election petition was presented by all elector Kapildeo and subsequently, he presented an application for withdrawal of the election petition under section 109 of the Representation of Peoples Act. Opposite party No. 1 filed an objection against that application for withdrawal and the Election Tribunal dismissed the objection of opposite party No. 1 and allowed the application of withdrawal presented by Kapildeo the election petitioner. Notice of withdrawal was published in the official Gazette by the Tribunal and thereafter, opposite party No. 1 made an application for being substituted as petitioner in the election petition in place of Kapildeo whose withdrawal had been published in the Gazette. An objection against this application was filed by Shri Kashi Nath Pandey (petitioner in that case) and the Tribunal rejected the objection and allowed the application of opposite party No. 1 for substitution as petitioner in the election petition. Thus, opposite party No. 1 who was defeated candidate was substituted as petitioner in the election petition filed by one Kapildeo. A Division Bench of the Allahabad High Court ill that case after considering various aspects of the matter have held that right to challenge the election of the petitioner vested in Sri Kapildeo as well as Sri Shibbanlal concurrently and existed in both of them simultaneously. No doubt, Sri Shibbanal acquired that right in his capacity as a candidate while Shri Kapildeo acquired that right in his capacity as an elector, but once those rights had been acquired simultaneously by those two persons the legal remedy which they could seek in pursuance of it was identical. No doubt, Sri Shibbanal acquired that right in his capacity as a candidate while Shri Kapildeo acquired that right in his capacity as an elector, but once those rights had been acquired simultaneously by those two persons the legal remedy which they could seek in pursuance of it was identical. It was further held that the requirement of law is that both must be entitled to come before the same forum also existed and either of them filing an election petition had to present it in the same manner and that petition had to be tried by the same procedure. It was observed as follows : "The cause of action which is the third factor to be taken into account was also identical, being the existence of a ground under Section 100 of the Representation of Peoples Act on account of which the election of the present petitioner could be declared void. Finally, there was identity of relief' The same relief could have been claimed by Shri Shibbanlal Sexena which could and actually was claimed by Sri Kapildeo." In Mathra Das v. Dara Singh, 4 E.L.R. 441 , while considering a joint petition by rejected candidate and voters, it was observed as follows : "A candidate whose nomination was rejected and some of the electors of the constituency may join as petitioners and file a single election petition for declaring the election of the returned candidate void." In Deo Chand and others v. Vashist Narain and Ors., 6 E.L.R. 138 a somewhat similar question arose and it was ruled as under : "An election petition can be presented by two or more electors jointly. There is also no objection to a candidate and some electors making a joint petition. In the case of a joint petition, a single security of Rs. 1,000/- is sufficient even if there are two or more petitioners." Applying the propositions laid down in the above referred cases, I am of the view that a joint election petition can be presented by an elector and a candidate at such election. 13. Mr. Singhvi, learned counsel appearing for respondent No. I contends that an elector had a right to challenge the election on the ground that any nomination was imporperly rejected and it candidate can also challenge the election on the very ground that the nomination was improperly rejected. 13. Mr. Singhvi, learned counsel appearing for respondent No. I contends that an elector had a right to challenge the election on the ground that any nomination was imporperly rejected and it candidate can also challenge the election on the very ground that the nomination was improperly rejected. In Assembly and Parliamentary elections, it is not necessary that a candidate must be the resident or elector of that very constituency. A candidate who is an elector of Jodhpur can contest the election of Assembly from Barmer. Similarly, a candidate who is the resident of elector of Jaipur can contest the election from any other constituency. So the, position of the candidate and the elector in the Assembly and Parliamentary elections are concerned, they may be different in some cases. A candidate may not be an elector or resident of the Constituency of which election results are under challenge However in the elections of Sarpanch, the candid- ate is an elector of that Panchayat and he holds double position: firstly, that he is an elector of the Panchayat; and secondly. he is the candidate a,ad that only because, he is a candidate he does cease to be an elector. For this reason also, a candidate being an elector can tile the election petition jointly with the other electors of that Panchayat. R. 85 of the Rules relates to the cider of Court. It does not discriminate between an election petition filed by an elector or a candidate separately or jointly. 11' the legislature in its wisdom aright have considered that the election filed by the elector should be limited only to the ground that results of the election may be declared void then r 85 of the Rules may not apply in that case. Even on the election petition filed by the elector, the court passes the order under r. 85 of the Rules. R.85 is as follows: "85 Order of Court.-(I) Upon the conclusion of the hearing, the Munsif or Civil Judge shall make an order- (a) dismissing the petitioner, or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. 2. 2. The Munsif or the Civil Judge, as the case may be, after pronouncing the order made under sub-rule (I) shall send a copy thereof to the Collector for taking further action in pursuance thereof." This, it is clear that an elector can make a prayer that any other candidate may be declared duly elected. There is no prohibition for making such prayer. Apart from that, so far as the declaration of the result of the petitioner to be void is concerned, respondent No. 1. defeating candidate and respondent No. 2, elector had a concurrent right which existed in each of them simultaneously. Both of them were entitled to come before the same forum. The cause of action which is the third factor had also accrued to both of them on the grounds stated in the election petition. So fat as the relief is concerned, the first part of the relief that election of the petitioner may be d, it is separable one and even if we assume that the elector cannot make such a relief, the first part of the relief can be granted on the election petition filed by the parties jointly. Thus, I hold that a joint election petition filed by an elector and a candidate is not fatal and it can be presented by two or more electors jointly or by an elector and a candidate jointly and a single security is sufficient even if they are two or more petitioners. 14. Now, I will take up the question regarding the validity of the guide- lines issued by the State Government. 15. Learned counsel for the petitioner has invited my attention to Rules 15. 16, 17 and 18 of the Rules R. 15 casts duties on the Returning Officer. It provides that in addition to the duties imposed and powers conferred on it Returning Officer by or under these Rules it shall be his general duty to do all such acts and things as may be necessary for conducting effectively an election under these Rules. It further provides that the Returning Officer shall see that the poll. if livid, is fairly conducted at such station Front the perusal of 'r 15 of the Rules, it is clear that the duties cast on the Returning Officer enumerated therein are not exhaustive. It further provides that the Returning Officer shall see that the poll. if livid, is fairly conducted at such station Front the perusal of 'r 15 of the Rules, it is clear that the duties cast on the Returning Officer enumerated therein are not exhaustive. The words to do all such acts and things as may bat necessary for conducting effectively an election under these Rules" are very wide in scope. and the Returning Officer has to take all necessary steps which are necessary for conducting effectively election under the Rules. Even if we look to clause (b) of Section 15 of the Rules, we will find that it is the duty of the Returning Officer to see that the poll. if held is fairly conducted at such station. The words 'conducting effectively an election' need interpretation by this Court.S.36(4) of the Representation of the Peoples Act, 1951 (hereinafter referred to be as -the Act') reads as under: "4. The returning officer shall not reject any nomination paper on the ground of any defect which is not of it substantial character." S.33(4) of the Act provides that 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 proposer as entered in the nomination paper are the same as those entered in the electoral rolls. Thus, s 36(4) of the Act has been inserted with an intention that the elections should be conducted effectively and fairly and no person should be deprived of on the ground of technical error in mentioning in the nomination paper the electoral rolls number of the candidate and his proposer etc From the perusal of S 33(l) and 36 4) of the Act, it is clear that file Parliament in its wisdom considered it proper that no nomination form should be rejected on clerical ground in mentioning the wrong electoral rolls number of the candidate and his proposer. The State Govt. The State Govt. in its wisdom has issued administrative instructions while publishing the book "CHATURTH PANCHAYAT CHUNAV 1981 KI NIRDESH PUSTIKA', in item No. 34 (K), a direction has been given to the Returning officers to see that at the time of the presentation of the nomination form, they should see that the electoral roll numbers of the candidate have been rightly mentioned or not and it they are incorrect, they should ask the candidate to correct the same. These directions are of the same nature as provided in section 33(4) of the Act. Learned counsel for the petitioner submits that directions issued by the State Govt. cannot be equated I with the Provisions of the Act and the Rules framed thereunder He further submits that the Election Tribunal has committed a mistake in considering the directions issued by the State Govt., and, therefore, only on this ground alone, the writ petition should be accepted. 16. I have perused the judgment dated July 27, 1983 of the Election Tribunal. The Election Tribunal has specifically used the word in its judgment. It has applied the law after considering the provisions of r. 18 and has also taken support of the instructions so issued by the State Govt. I have already stated that r. 15 of the Rules is not exhaustive. On the contrary, there is a direction that in addition to the duties imposed and powers confer red on a Returning Officer by or tinder these Rules, it shall be his general duty to do all such acts an I things as may be necessary for conducting effectively an election under these Rules. Thus, r.15 of the Rules casts more duties on the Returning Officer to do all such necessary acts and things as may be necessary for conducting effectively an election. The Parliament in its wisdom has inserted section 33(4) of the Act and a duty has been cast on the Returning Officer that 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 proposer as entered in the nomination paper are the same as those entered in the electoral rolls. The State Govt. has rightly issued the directions which are consistent with the provisions of sections 33(4) and 36(4) of the Act. Even leaving aside the directions issued by the State Govt. The State Govt. has rightly issued the directions which are consistent with the provisions of sections 33(4) and 36(4) of the Act. Even leaving aside the directions issued by the State Govt. for the time being, we find that it is the obligatory duty of the Returning Officer to see that the elections are conducted effectively. The rejection of nomination form, on technical ground that there exist' it clerical error in it, will tantamount to not conducting effectively the elections. For the purpose of conducting effectively elections, it is the obligatory duty of the Returning Officer to find out the identity of the person who is contesting the election from the electoral rolls. The administrative instructions issued by the State Government are supplementary in nature and they advise the Returning Officers that their duties are more than that which has been stated in r 15 of the Rules. Thus, I do not find any thing wrong in considering the administrative instructions issued by the State Govt. deciding the election petition. The State Govt. has tightly issued the administrative instructions to achieve the object laid down in the Rajasthan Panchayat Act, 1953. R.16 of the Rules provides that on or before the day appointed under sub-clause (a) of clause (ii) of sub rule (1) of r. 14 for the presentation of nomination papers, any person qualified under section 11 for election as a Panch and desiring to seek such election hereafter in this chapter referred to as a candidate, shall deliver in person to the Returning Officer. his nomination Form in Form I duly filled in and signed by the candidate. The words -any person qualified' used in r. 16 of the Rules are very relevant for he purpose of under- standing the intention of the legislature. Thus, in my opinion a person who is contesting the elections for the post of Sarpanch and who has wrongly mentioned the redundant description of ward number in his nomination paper is a qualified person. 17. In Surajmal v. Prithvisingh ( AIR 1957 Raj. 383 ) , a Division Bench of this Court held that a mere slight difference in the name of a proposer will not be a good ground for rejection of a nomination paper, if his identity can be established among the persons entitled to propose and second. 18. 17. In Surajmal v. Prithvisingh ( AIR 1957 Raj. 383 ) , a Division Bench of this Court held that a mere slight difference in the name of a proposer will not be a good ground for rejection of a nomination paper, if his identity can be established among the persons entitled to propose and second. 18. A Division Bench of this Court in Balji v. Murarka Radhey Shyam Ramkumar (1965 R.L.W. 67) , had occasion to consider the provisions of sections 33 (4), 35 act 36 of the Act and has held that the provisions of section 33 (4) of the Act are directory in nature. It was observed as follows : "The reason for the rejection of the appellants nomination paper was that the proposer had given his electoral roll number as 105, Ward No. 13 (Navalgarh); but the name of Atmaram son of Ramgopal appeared in the relevant Electoral roll against the said particulars and wrong particulars given by the proposer constituted a defect of substantial nature. It was held that the proper question which falls for consideration in a case of this kind is whether the defect disclosed in nomination paper is one of a merely technical or a clerical nature or is a more radical or a fundamental one and is one of a substantial character. It was further held : "that if the defect is of the former type., it is capable of being remedied and other evidence may be given and identity of the candidate or the proposer as the case may be could be established by a summary inquiry with the result that the nomination need not and should not be rejected. But if on the other hand, the defect is of a substantial character, then no other inquiry is possible and the nomination paper has to be rejected under section 36 (2) (b) of the Act. The defect in the present case is anything but unsubstantial and such a defect could neither be corrected at the stage of the presentation of the nomination paper nor it could be ignored at the subsequent such of the scrutiny thereof Section 36 (2) (b) of the Act is at once attracted into application and must lead to the rejection of the nomination paper. There is no scope for any further inquiry as to the identity of the candidate or the proposer in such a case." According to section 33 (1) of the Act, a nomination paper shall be completed in the prescribed from. The form as prescribed by rule 4 of the Conduct of Election Rules. 1961 says that every nomination paper presented under sub-sec. (1) of 's :33 shall be completed in such one of the forms 2-A to 2-B as may be appropriate. The form relevant for out purpose is Form- 2A. Clause(l) of this form deals with the full name of the proposer and clause(2) with the electoral roll number. The footnote No. (iv) to this form in connection with the electoral roll number is instructive which leads as follows : "(iv) the serial number of the entry in that part. Illustration-Lucknow Parliamentary constituency; Part I : No. 358," It will be relevant here to refer the material portion of part 24 of Balji's case(7) : "Now we have it from the Returning Officer Shri Rajgopal R.W. 2 that the electoral roll of the Nawalgarh Assembly Constituency consists of 90 parts, and in each part, the serial number of voter starts with No. 1. We are prepared to accept that where an electoral roll is not divided into parts the number of the part may not be given, and that the omission to mention the particular part would not be a defect of a substantial nature. But where the electoral roll is divided into a number of parts, and each part consists of hundreds of persons, as in the case before us, and where each part beings with the serial number of the voters therein contained as No. 1, we cannot but hold that the number of the part is a matter of substance, because if the number of the part is not given, the Returning officer would be put to the almost impossible task of wading through all the 90 parts, or as many more as may be in a given case, to hunt out where the name of the proposer (or a candidate as the case may be) happens to be enrolled." Mr. M.M. Singhvi, learned counsel for respondent No. I submits that in the parliamentary elections -the serial number of the entry in that part has to be mentioned and is mandatory in nature. M.M. Singhvi, learned counsel for respondent No. I submits that in the parliamentary elections -the serial number of the entry in that part has to be mentioned and is mandatory in nature. He invited my attention to Form I appended to the Rules, which is as follows : FORM I (See Rule 16) Election to/....................... .Panchayat .........................Panchayat Samiti ................. District. (XXXXX) I hereby give notice that I propose myself ... ... ..as a candidate for election as Panch/Sarpanch to the above Panchayat from Ward No.... ... ... 1. Full Name.. ... ... ... ... 2. Sex of Candidate... ... ... ... 3. Caste of the Candidate (to be filled by person belonging to the scheduled caste/tribe only). 4. Number in the list of Voters . ... ... ... 5. Name of the candidate's father, husband... ... ... ... I further declare that (1) I am qualified to be Panch Sarpanch under the provisions of the Rajasthan Panchayat Act, 1953, and, (2) I am not subject to any of the disqualifications specified in section 11 of the said Act. (3) I/do not belong to the Scheduled Castes/Scheduled Tribes. Date... ... ... ... Place... ... ... ... Signature of the candidate He submits that in cl. 4 of the aforesaid form, number in the list of voters is only to be given and ward number is not to be mentioned. He further submits that there is no provision in the form or there is no clause in the form where ward number should be shown. He submits that redundant entry cannot be made a basis for rejection. Thus, he distinguishes the form prescribed under the Representation of Peoples Act and under the Rules relating to Panchayat Elections. In the Form prescribed under the Act, Serial number in the list of voters and the part both have been mentioned but in the Form prescribed under the Rules, the Ward number of part is not mentioned. For this reason alone. Balji's case (7) is not applicable to the case on hand. In Panchayat, there are few wards, may be eight or so, whereas in Parliamentary elections, there are more than 100 parts and it is very difficult to find out the correct number of part in Parliamentary elections but in the Panchayat elections, it can be found out without much difficulty. 19. In Panchayat, there are few wards, may be eight or so, whereas in Parliamentary elections, there are more than 100 parts and it is very difficult to find out the correct number of part in Parliamentary elections but in the Panchayat elections, it can be found out without much difficulty. 19. In Sunderlal Chechani v. Sampatlal (1963 RLW 583) , a Division Bench of this Court held that failure to give name of constituency is defect to substantial nature and similarly, failure to mention name of village in postal address and merely giving name of post office is not sufficient compliance of law. Mr. M.M. Singhvi, learned counsel for respondent No. I submits that in Assembly and Parliamentary elections, it is not necessary for a candidate to be the resident of that very constituency. For this reason, this case is not applicable at all. 20. In Netram v. Lakshman Pd. AIR 1960 MP 368 , it was observed as under: "Therefore, where in the nomination papers, only the electoral roll numbers are given but not the serial number of the part of the electoral roll in which they occur; it is not merely a clerical or technical error permissible under section 33(4) but a defect of a substantial character within the meaning of section 36(4). justifying that rejection of nomination paper. Mr. Singhvi, learned counsel for respondent No. I has submitted the very same argument while referring the case of Balji . Netrant's case is not applicable in the facts and circumstances of this case. 21. In Gulappa v. Election Officer, N.T. Panchayat ( AIR 1965 Mys. 62 ) , it was observed as tinder : "An error in the roll number of proposer mentioned in nomination paper amounts to failure to comply with the provisions of r. 8. Mysore Village Panchayat Local Board Election Rules, 1959 and the Election Officer is competent under r. 12 of the said Rules to reject the nomination paper if no permission is sought to correct the error." Rule 8. sub-rule, (4) of the Mysore Village Panchayat Local Board Election Rules. 1959 proviso provides that the Election Officer shall permit any clerical or technical error in the nomination paper to be corrected, and this could be done only if at the time of scrutiny the candidate sought for such permission. Gulappa's case does not help to the case of the petitioner. 22. 1959 proviso provides that the Election Officer shall permit any clerical or technical error in the nomination paper to be corrected, and this could be done only if at the time of scrutiny the candidate sought for such permission. Gulappa's case does not help to the case of the petitioner. 22. It was observed by their Lordships of the Supreme Court in Dharam Singh Rathi v. Hari Singh ( AIR 1975 SC 1274 ) , as under : "A nomination paper has to be delivered to the Returning Officer by the candidate or his proposer in accordance with section 33 (1) of the Act. The nomination paper must be completed in the prescribed form. The requirement of sub-section (4) is that the Returning Officer shall satisfy himself on the presentation of a nomination paper that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. Generally speaking the kinds of defects mentioned in the proviso to Section 33 (4) would not be of a substantial character so as to justify the rejection of a nomination paper. There may, however, even amongst those types of defects be some such that necessitate their rectification and if not rectified that may retake the nomination paper liable to be rejected. But the defect of non-supply of postal address is not covered by the proviso. It is a defect which falls for consideration at the time of scrutiny of the nomination paper. If the defect is substantial one then the nomination paper has got to be rejected Sub-section (4) of Section 36 enjoins the Returning Officer not to reject any nomination paper on the ground of any defect which is not of a substantial character. But if it is of a substantial character then sub-section (2) provides that the Returning Officer shall reject the nomination paper when 'there has been a failure to comply with any of the provisions of Section 33 or Section 34." Non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address is a failure to comply with the provisions of Section 33 (1) and hence the nomination paper was validly rejected." Mr. Singhvi, learned counsel for respondent No. 1 submits that Dharam Singh's case will help him. Singhvi, learned counsel for respondent No. 1 submits that Dharam Singh's case will help him. He further submits that in Dharmsingh's case , it was held that the non-supply of postal address of the candidate not covered by the proviso to sub-sec. (4) of is 33 of the Act and for this reason, their Lordships have dismissed the appeal.Mr. M.M Singhvi, learned counsel for respondent No. 1 has invited my attention to Samela Ram v. Chandanmal (1967 RLW 238) , wherein a learned single judge of this Court has held that mere difference in spelling of name does not justify rejection. It was further held that r. 78 (c) of the Rajasthan Panchayats and Nyaya Panchayats Election Rules gives an elector a right to challenge an election on the ground that any nomination paper was wrongly rejected and this right is independent to the willingness of the person, whose nomination paper has been rejected to support the petitioner. 23. In Vidya Vrat Shastri v. Returning Officer, Weir (1957 R.L. W. 108) , a Division Bench of this Court observed as follows : "Under section 58 (2) the Sarpanchas and Panchas of all the Panchayats in the Tehsil constitute an Electoral College for the election of Sarpanch. The proposer in this case was a Panch of Village Panchayat, Ballabhgarh in the nomination paper. By the rules, it is not required that the proposer or seconder should also give any other description of theirs and it was not necessary for the proposer in this case to give any description regarding his residence. However, the proposer described his place of residence in the nomination paper which was different from the description of residence given in the list of voters prepared under r. 21 of the Rajasthan Panchayat Election Rules, 1954. It may he pointed out that when the law did not require description of residence to be given in the nomination paper it was not proper and necessary for the Returning Officer to go into this point ill refusing the nomination paper specially when the identity of the person was not disputed. In this view of the matter the ground on which the Returning Officer rejected the nomination paper can be considered to be irrelevant and his order consequently cannot be regarded anything but perverse. In this view of the matter the ground on which the Returning Officer rejected the nomination paper can be considered to be irrelevant and his order consequently cannot be regarded anything but perverse. 'The petitioner has been prevented from contesting the election on account of the rejection of his nomination paper when according to law he had a right to contest it.Their Lordships of the Supreme Court in Ram Awadesh Singh v. Sumitra Devi, AIR 1972 SC 580 , have observed: "13. The first question that we have got to decide is whether the defects found in the nomination paper of the appellant are of substantial character. As mentioned earlier, the appellant was fully qualified to be nominated for the election. The only thing said against his nomination is that his nomination paper was not properly filled in. We have earlier seen that a duty is imposed on the Returning Officer by sub-s. (4) of Section 33 to look in to the nomination paper when it is presented and to satisfy himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination paper arc the same as those entered in the electoral roll. In this case, it is proved that the Returning Officer did look into the nomination paper but unfortunately lie also did not notice that the name of the appellant had been removed from the electoral toll of Arrah constituency. If he had noticed that fact, he would have asked the appellant either to correct the mistake or to file a fresh nomination paper. We have earlier noticed that the appellant filed his nomination paper on the 6th of January 1969 and the last date for filing the nomination paper was the 8th of that month. That being so, there would have been no difficulty for him either to correct the nomination paper filed or to file a fresh nomination paper. We have earlier noticed that the appellant had with him a certified copy of the electrol roll of the Sandesh Constituency and he had shown the same to the Returning Officer. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters last but overlooked the deletion noted in a separate list. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters last but overlooked the deletion noted in a separate list. But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That iss why the legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected What is of importance in an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that he is not otherwise disqualified. In other words, those informations relate to the proof of the required qualifications." "14. It may also be noted that the legislature itself has made distinction between the acceptance of a nomination and the rejection of a nomination. The Returning Officer is required to give reasons for rejecting a nomination whereas he is not required to give reasons for accepting a nomination. Further sub-s. (2) of section 36 says that "he may reject the nomination paper." It is further seen that the proviso to sub-s. (4) of section 33 says that no inaccurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the nomination paper shall affect the full operation of the nomination. "15. "15. From 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 as a material defect in the nomination paper." A Division Bench of this Court in Ganpat Singh v. J.N. Mathur (1959 R.L.W. 329) ruled as follows : "The omission to put in electoral number of the three necessary persons is not fatal to the nomination paper and if there is any doubt in the mind of the Returning Officer regarding the identity of any of these three persons, it is for him to call upon the interested person or persons to establish the identity." In Mohana Ram v. Rajendra Singh 1962 R.L.W. 577 , a learned single Judge of this Court held as under: "Another ground was that the nomination paper of Madansingh was wrongly rejected. This nomination paper was rejected on two grounds. The first ground was that he did not give his ward number alongwith the number in the voters' list in column No. 2 of form I prescribed under the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. The column itself reads "number in the list of voters." It does not require the candidate to give the ward number alongwith the number in the list of voters. As such the nomination paper cannot be rejected by the Returning Officer merely on the ground that the candidate has not given the number of the ward alongwith the number in the list of voters. The Returning Officer should enquire from the candidate his ward number and if his name cannot be found in the list of voters for the ward in which he says he is residing at the number given in the nomination paper then alone the nomination paper can be rejected. If the nomination paper is so rejected the Returning Officer should state clearly and specifically in his reasons for rejection that he asked the candidate to give the number of the ward in which he is residing and either he was unable to do so or that his name is not entered in the electoral roll of that ward at the number given in the list of voters. The learned Munsif also came to the same finding in connection with the nomination paper of Mohana Ram who had also not given the ward number alongwith the number in the list of voters in his nomination paper. The statutory right of an elector to stand of a candidate cannot be defeated without substantial reasons." A Division Bench of this Court in Mool Chand v. Maharaj Kumar Jai Singh I.L R. (1963) 13 Raj. 533 , has observed : "An election petition challenging the election of a successful candidate who is returned by the majority of the electorate must strictly conform to the requirement of the law. An election contest is a purely statutory proceeding unknown to the Common Law and therefore, equitable considerations in such matters have no place." It was further observed as under; "In a case where several persons make a joint petition, a presentation by one or more of them under cl. (a) (i) of section 81(2) would be a valid presentation on behalf of himself and others and the election petition should not be dismissed simply because all of them were not present when the application was presented. If one of the several petitioners attests the copies is a substantial compliance of the provisions of sub-s. (3), because attestation by other petitioners would not advance the case any further." Applying the propositions laid down in the above referred cases. I will have to consider the relevant provisions of the Rules. 24. I have already held that under r. 15 of the Rules, the Returning Officer is bound to do all such acts and things as may be necessary for conducting effectively an election under these Rules. I have further held that r.15 of the Rules is not exhaustive and so the instructions given by the State Government vide "CHATURTH PANCHAYAT CHUNAV, 1981 KI NIRDESH PUSTIKA, are supplementary in nature.R. 18(3) (b) of the Rules reads as under: "18. Scrutiny of nomination papers.-(3). I have further held that r.15 of the Rules is not exhaustive and so the instructions given by the State Government vide "CHATURTH PANCHAYAT CHUNAV, 1981 KI NIRDESH PUSTIKA, are supplementary in nature.R. 18(3) (b) of the Rules reads as under: "18. Scrutiny of nomination papers.-(3). The Returning Officer shall decide all such objections & he may, either on the basis of such objection or on his own motion, reject any nomination paper on any of the following ground, namely:- (b) that he is not identical with the person whose number or name on the voters' list is stated in the nomination paper to be the number and name or the candidate:" I will have to examine also the provisions of r.6 of the Rules for the purpose of interpreting the provisions of rr 15 to 18 of the Rules. R 6 deals with preparation of voters lists, it reads as under:R6. Preparation of Voters Lists. (1) The list of voter for each ward shall be prepared in Hindi in Deonagri Script in accordance with the provisions of sections 10. (2) The names of the electors in each list shall be arranged in the order of the serial number of houses comprised in each ward. (3) Whenever limits of wards of Panchayat Circle are revised or when a Panchayat is constituted or reconstituted, such lists shall be prepared by adopting the electoral roll of State Assembly Constituency relatable to the area comprised in the wards and shall also contain names of all other persons entitled to be registered as electors under the Act after enquiry from house to house. R.6 of the Registration of Electors Rules, 1960 reads as under: "6. Order of names.-(1) The names of electors in each part of the roll shall he arranged according to house number, unless the chief electoral officer, subject to any general or special instructions issued by the Election Commission, determines in respect of any part that the alphabetical order is more convenient or that the names shall be arranged partly in one way and partly in the other. (2) the names of electors in each part of the roll shall be numbered, so far as practicable, consecutively with a separate series of numbers beginning with the number one." Thus, there is a broad distinction between r.6 of the Rules and the Registration of Electors Rules, 1960 R.6(2) of she Registration of Electors Rules, 1960 provides that the names of electors in each part of the roll shall be numbered so far as practicable consecutively with a separate series of numbers beginning with the number one. However. cl. (2) of r.6 of the Rules provides that the names of the electors in each list shall be arranged in the order of the serial number of houses comprised in each ward. 'Thus, in r.6 of the Rules, the importance has been given to the serial number of houses and it has no where been mentioned that the voters' list of each ward shall be prepared consecutively with a separate series of numbers beginning with the number one as provided in r.6(2) of the Registration of Electors Rules. 1960. For this reason, the legislature in its wisdom has provided Form-I and in Form-l, it is not necessary to mention the ward No., and only in column No. 4, the number in the list of voters has to be mentioned. In the instant case, the number has rightly been mentioned and only the ward No. has wrongly been stated. There is a finding of the Tribunal that the mistake of ward No. was pointed out to the Returning Officer and he was informed that the name of Pemaram find, place in ward No. 5 instead of Ward No. 1. In these circumstances, the identity of Pemaram was not in dispute and the dispute was only relating to Ward number. Entry of ward number was redundant. In the facts and circumstances of the case, I think that the nomination form of Pemaram has wrongly been rejected and the Election Tribunal was justified in holding that there is violation of the Rules. 25. It was lastly contended by the learned counsel for the petitioner that Pemararu was the covering candidate. Mr. Singhvi, learned counsel for respondent No. 1 submits that no such ground was taken by the petitioner in reply to the election petition and so, this ground cannot be allowed to be taken here. 25. It was lastly contended by the learned counsel for the petitioner that Pemararu was the covering candidate. Mr. Singhvi, learned counsel for respondent No. 1 submits that no such ground was taken by the petitioner in reply to the election petition and so, this ground cannot be allowed to be taken here. Apart front that, Pemaram has not appeared in the witness box also before the Election Tribunal and it will not be justified to take the additional evidence while exercising the writ jurisdiction. 26. In Madanlal v. Hirasingh, AIR 1968 Del. 110 , it was held that the law does not recognise -covering" or -substitute" candidate and such candidate can call in question the election of returned candidate if his nomination is improperly rejected. 27. Their Lordships of the Supreme Cows in Hirasingh Pal v. Madanlal, AIR 1968 SC: 1179 , have observed: "that the Returning Officer has the duty to scrutinise the nomination papers when they are presented for finding out whether there are any clerical mistakes in the same. Under the provisions of Section 36 he is required to find out whether the names of the candidates as Well as their proposers and seconders are correctly mentioned in the nomination papers. 'The nomination paper cannot be rejected on the ground that the candidate was only a dummy candidate. It is not a matter for him to decide." In she instant case, the petitioner has not challenged the findings recorded by the Election Tribunal on this point. There is a clear finding of the Election Tribunal that at the time of the scrutiny, it was pointed out to the Returning Officer that the name of Pema Ram finds place in Ward No. 5 and that finding has not been challenged in any forum. In such circumstances also, it was obligatory on the Returning Officer to accept the nomination paper of Pema Ram and the rejection of the nomination paper of Pema Ram was not justified. In these circumstances, I find that the Election Tribunal has not committed an error either on the point of law or on the facts. Thus, the Election Tribunal was right in accepting the election petition I find that the nomination piper of' Pema Ram was improperly rejected. 28. For the reasons mentioned above, I find no force in this writ petition. Thus, the Election Tribunal was right in accepting the election petition I find that the nomination piper of' Pema Ram was improperly rejected. 28. For the reasons mentioned above, I find no force in this writ petition. The writ petition is, accordingly, dismissed In the circumstances of the case, the parties shall bear their own costs. *******