Samar Singh v. Kedar Nath — 1986 DIGILAW 267 (ALL)

ORDER A.S. Srivastava, J. - By means of this Election Petition filed under S. 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) petitioner "Samar Singh" son of "S. B. Singh" has prayed that the election of Kedar Nath alias K. N. Singh, respondent No. 1 as a Member of the 8th Lok Sabha from 79-Hapur Parliamentary Constituency be declared void and illegal. Form 2-A (See Rule 4) Nomination paper Election in the House of the People. I nominate as a candidate for election to the House of the People from the ........ Parliamentary constituency ....... Candidate's name. ....... Father's/Husband's Name..... His name is entered at S. No........ in Part No......... of the electoral roll for.......... 2. (*Assembly constituency comprised within)........ Parliamentary constituency. My name is .......... and it is entered at S. No........... in Part No........ of the electoral rolls for..... 2(*Assembly constituency comprised within) ........ Parliamentary constituency. Date...... (Signature of proposer) I the above-mentioned candidate, assent to this nomination and hereby declare....... (a) That I have completed........ years of age; *(b) that I am (set up) at this election by the ........... party; (c) that the symbols I have chosen are in order of preference (i) .......... (ii) ........... and (iii). (d) that my name and my father's/husband's name have been correctly spelt out above in....... (name of the language) I further declare that I am a member of the ............ **caste/tribe which is a schedule **caste/tribe of the State of ........ in relation to........ (area) in that State. Date .......... (Signature of candidate). ........................ 3. Since this nomination paper was filed in the name of "Samay Singh" son of S. P. Singh, even the petitioner had given the certificate (d) in the above form as under : "that my name and my father's name have been correctly spelt out above......". 4. Thus the nomination paper which was filed by the petitioner was not only in the name of "Samay Singh" but that it also contained his certificate about the correctness of the spelling of his name as well as his father's name as mentioned in the nomination paper. As stated above, this nomination paper fully corresponded with the electoral roll. Therefore, after scrutiny, it was accepted by the Returning Officer. As stated above, this nomination paper fully corresponded with the electoral roll. Therefore, after scrutiny, it was accepted by the Returning Officer. In consequence thereof and after expiry of the period fixed in this regard, the name of "Samay Singh" was brought on the list of contesting candidates prepared in accordance with S. 38(1) read with R. 10 of the Rules. 5. In the meantime i.e. on 30-11-1984 Samar Singh filed Civil Misc. Writ No. 16341 of 1984 in this Court for directing the Election Authorities to substitute his name in the electoral roll as well as in his nomination paper in place of "Samay Singh". which, according to him, is incorrect printing of his name. This petition was dismissed in limine on the same day by a Division Bench of this Court by the following order - "We are afraid that we have no jurisdiction in the matter. The election process has begun. The matter has to be decided by the Returning Officer, who we are sure, will decide it on merits and in accordance with law. Thereafter if occasion arises, the petitioner may have a remedy by means of an election petition". 6. On 30-11-1984 the petitioner had moved the Returning Officer also with a similar prayer in which he had also made a reference to the writ petition which he had filed in this Court on that date. It is alleged that the Returning Officer refused to entertain his above application. It has also to be borne in mind that 30-11-1984 was date fixed for the scrutiny of nomination papers. The Returning Officer however, received the petitioner's application on 1-12-1984. On this day i.e. on 1-12-1984 the petitioner made one more application to the Returning Officer with almost a similar prayer. Both these applications were disposed of by the Returning Officer by a single order reproduced below :- (Matter in vernacular omitted - Ed.) 7. The polling was held on 24-12-1984. The ballot paper contained the name of "Samay Singh". The name in which the nomination paper was filed was corresponding to the name printed in the electoral roll. That is, both in the electoral roll and in the nomination paper name Samay Singh son of S.P. Singh was mentioned. The name Samar Singh son of S. B. singh was neither mentioned in the electoral roll nor the nomination paper was filed in this name. That is, both in the electoral roll and in the nomination paper name Samay Singh son of S.P. Singh was mentioned. The name Samar Singh son of S. B. singh was neither mentioned in the electoral roll nor the nomination paper was filed in this name. Admittedly "Samay Singh" son of S. P. Singh is not the name of the petitioner. In that event petitioner Samar Singh was neither an "elector" nor a "candidate" in the said election. 8. According to the petitioner he is an elector as well as candidate in the said election because the name "Samay Singh" son of S. P. singh in the electoral roll was a "misnomer" resulting from mis-printing. The nomination paper was, therefore, filed in incorrect name. The name in the nomination paper was also, therefore "misnomer". The petitioner having secured only 617 votes at the poll on account of the ballot paper being printed in the name of "Samay Singh" could not be declared elected. 9. Sri S. S. Bhatnagar, counsel for respondent No. 1, on the other hand, contended that the name printed in the electoral roll was not a "misnomer" nor was it so treated by the petitioner when the nomination paper was filed on his behalf. The petitioner being "Samar Singh" son of "S. B. Singh" has no right to file this election petition as he was neither an "elector" as defined in S. 2(1)(e) of the Act nor was he a candidate in the election. He urged that S. 81 of the Act permits filing of an Election Petition only by (i) a candidate or by (ii) an elector. Admittedly, Samar Singh who has filed this petition was not mentioned in the electoral roll. He was therefore not an "elector" as defined in S. 2(1)(e) of the Act He further argued that the person who had contested the election was "Samay Singh" and not "Samar Singh". The nomination paper having been filed in Form 2-A ibid in the name of Samay Single. "Samar Singh" cannot now claim to be a candidate in that election. According to him the name "Samay Singh" son of "S.P. Singh" mentioned in the electoral roll cannot be said to be the result of incorrect printing. In fact the name printed in the electoral roll is a different name and is not a "misnomer". 10. "Samar Singh" cannot now claim to be a candidate in that election. According to him the name "Samay Singh" son of "S.P. Singh" mentioned in the electoral roll cannot be said to be the result of incorrect printing. In fact the name printed in the electoral roll is a different name and is not a "misnomer". 10. The word `elector' is, as stated above, defined in S. 2(1)(e) as under : " "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950)". 11. The words "a person whose name is entered in the electoral roll" leave no room for doubt that the name of a person who claims to be an "elector" of a constituency must be entered in the electoral roll of that constituency. Admittedly the name "Samar Singh" was not entered in the electoral roll on the basis of which the election was held. The name Samay Singh son of S. P. Singh entered in the electoral roll is not the petitioner's name. Therefore, he is not an "elector". The nomination paper was also filed in the name of "Samay Singh" son of S. P. Singh and not in the name of "Samar Singh". Consequently it was Samay Singh who shall be treated a candidate at the election. It was on this account that the petitioner, after the presentation of the nomination paper not in his name, applied to the Returning Officer to correct his name both in the electoral roll and in the nomination paper by substituting "Samar Singh son of S. B. Singh" in place of "Samay Singh son of S. P. Singh". According to the Returning Officer was under an obligation to do so because of the proviso to S. 33(4) of the Act. He contends that his name being incorrectly printed in the electoral roll did not render his nomination paper invalid though filed in a wrong name corresponding to the name mentioned in the electoral roll. According to the Returning Officer was under an obligation to do so because of the proviso to S. 33(4) of the Act. He contends that his name being incorrectly printed in the electoral roll did not render his nomination paper invalid though filed in a wrong name corresponding to the name mentioned in the electoral roll. He contends that proviso to S. 33(4) of the Act placed a duty on the Returning Officer to correct the petitioner's name both in the electoral roll as well as in the nomination paper when this fact was brought to his notice by the petitioner by means of his application. 12. It follows from the above contentions of both the sides that the petitioner "Samar Singh cannot be held to be an "elector" or a "candidate" under the Act unless it is held that the name in the electoral roll printed as "Samay Singh son of S. P. Singh" and the name in which the nomination paper was filed by the petitioner was a misnomer of such a nature that it could be corrected by the Returning Officer under S. 33(4) at the time of scrutiny. 13. The meaning of the word "misnomer" has been considered by this Court in Masood v. Bikram Singh, AIR 1975 All 402 a case cited by the petitioner, wherein it had been held that "misnomer" really means giving an incorrect or wrong name to a person even in legal document. Therefore, what is to be presently considered is whether the name "Samay Singh" "son of S. P. Singh" mentioned in the electoral roll is really a wrong name printed therein describing no person other than the petitioner "Samar Singh son of S.B. Singh". It is not disputed that till the last date for filing nomination paper, this was not the stand of the petitioner. Even the nomination paper was filed in the name printed in the electoral roll i.e. in the name of "Samay Singh son of S. P. Singh". On presentation of this nomination paper, the Returning Officer had to examine it for satisfying himself whether the name of the candidate and the name of his proposer as entered in the nomination paper were the "same" as those entered in the electoral roll. On presentation of this nomination paper, the Returning Officer had to examine it for satisfying himself whether the name of the candidate and the name of his proposer as entered in the nomination paper were the "same" as those entered in the electoral roll. It is clear from S. 33(4) itself which reads as under : "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". 14. It is evident from the above section that the acceptance or rejection of a nomination depends on satisfaction of the Returning Officer after a comparison of the names in the nomination paper and the electoral roll that the two names corresponded. It is also not disputed that nomination paper of the petitioner was accepted by the Returning Officer after scrutinising his nomination paper as his name as entered in the nomination paper corresponded with the name entered in the electoral roll. 15. However, it was after the presentation of the nomination paper that the petitioner, for the first time, took the stand that the name printed in the electoral roll was a "misnomer" and prayed for correction of the electoral roll as well as the nomination paper filed in the name of "Samay Singh", The Returning Officer, while accepting the nomination paper filed in the name of Samay Singh, refused to accept the above contention of the petitioner and grant his prayer. 16. It is contended by the petitioner that when the question was raised by him before the Returning Officer, he was under a duty to accept his contention and order the rectification of the electoral roll as well as his nomination paper. 16. It is contended by the petitioner that when the question was raised by him before the Returning Officer, he was under a duty to accept his contention and order the rectification of the electoral roll as well as his nomination paper. For this contention, he places reliance on the proviso to S. 33(4) which is as under : "Provided that the misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer 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 paper, shall 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 overlooked." 17. In order to decide the above contention of the petitioner, the effect of the above proviso on the main S. 33(4) to which it is appended will have to be examined, For doing so, it is necessary to advert again to S. 33(4) already extracted above. A plain reading of this Section shows that it does not envisage any enquiry into questions of fact of the above nature at the stage of scrutiny of nomination paper. I do not agree with the petitioner that the decision in Masood's case ( AIR 1975 All 402 ) (supra) has laid down any such law. What has been considered in that case is the scope of proviso to this S. 33(4) in a case where a name printed in an electoral roll was apparently on the face of the materials before the Returning Officer a misnomer. Such a mistake must be apparent that any ordinary man of average intelligence could have easily concluded from the details appearing from the scrutiny of the electoral roll. Such a mistake must be apparent that any ordinary man of average intelligence could have easily concluded from the details appearing from the scrutiny of the electoral roll. In that case, the mistake was apparent merely on a perusal of the materials before the Returning Officer. It is evident from the following observations made in that case at page 405 :- "A comparison of the two electoral rolls which were before the Returning Officer and were actually considered by him together with other material brought to his notice will show that any ordinary man of average intelligence could have easily concluded from all the details appearing from serial No. 72 to serial No. 81 that the person described at serial No. 76 was Madood and that only his name was wrongly printed as Masood in Ext. P-13 the electoral roll of 1973". 18. It was in the above circumstances that the proviso to sub-section (4) of S. 33 of the Act was applied to the facts of that case. But the fact of this case is materially different. In this case the materials before the Returning Officer were :- (i) Electoral roll having no entry in the name of "Samar Singh son of S. B. Singh". (ii) It contained an entry in the name of "Samay Singh" son on S. P. Singh" which is not the petitioner's name. (iii) The nomination paper filed before him in Form 2-A was in the name of "Samay Singh son of S. P. Singh" and not in the name of "Samar Singh son of S. B. Singh". (iv) The nomination paper also contained a certificate signed by the petitioner as "Samay Singh" son of S. P. Singh. (v) By this certificate, it was certified unambiguously that the name of the candidate as well as his father's name were correctly "spelt" in the nomination paper. 19. Unlike Masood's case, ( AIR 1975 All 402 ) (supra), no ordinary man of average intellingence could on the above facts easily conclude that the name Samay Singh son of S. P. Singh was a misprint and a misnomer for the petitioner. For such a conclusion the returning officer had to enter into an enquiry by permitting the petitioner to produce evidence in support of his claim and then making an assessment of that evidence. For such a conclusion the returning officer had to enter into an enquiry by permitting the petitioner to produce evidence in support of his claim and then making an assessment of that evidence. In other words, such a conclusion was probably not possible on a mere scrutiny of the electoral roll. The question then arises is whether the proviso to S. 33(4) envisages such an enquiry by the returning officer at the time of scrutiny of the nomination paper filed before him. 20. While examining this question it will not be out of place to refer to the well settled dictum that ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main section. The proviso has to operate in the same field. If the language of the main section is clear, it cannot be used for the purpose of interpreting the main section in a manner so as to enlarge its scope or to state a general rule not envisaged by the main section. Rather a proviso is generally added to the main section to qualify or to create an exception to what is in the main enactment. The effect of such an excepting or qualifying proviso, according to rules of construction, is except out of the preceding portion of the section, or to qualify something enacted therein which but for the proviso would be within it. 21. The language of the proviso to S. 33(4) is plain enough and leaves no room for doubt about its effect on the main section. It has not the effect of enlarging the scope of main section by providing something by way of addendum. It is also not a qualifying proviso. It is of the nature of an excepting proviso by making a provision for enabling the returning officer to direct correction or overlooking of some kinds of mistakes in the electoral roll and the nomination paper which the main section declares to be final for the returning officer at the time of comparing a nomination paper with the electoral roll. As pointed out in Masood's case ( AIR 1975 All 402 ) (supra), mistakes which are apparent to any ordinary man of average intelligence would be attracted by this proviso. As pointed out in Masood's case ( AIR 1975 All 402 ) (supra), mistakes which are apparent to any ordinary man of average intelligence would be attracted by this proviso. But for this proviso, the Returning Officer has no other power to correct it during the conduct of elections S. 33 is in part V of the Act. Part V deals with "Conduct of Elections". The Returning Officer has to make use of the proviso to S. 33(4) to facilitate the conduct of elections in such a manner that the full operation of the electoral roll is ensured and at the same time, it is not affected by any "misnomer" or "inaccurate description" or "clerical, technical or printing error" in regard to name of any candidate. But it leaves no room for doubt that the description of names is such, which is "commonly understood". It is, therefore, evident that the function of the proviso is not to empower a returning officer to take upon himself the task of rectification of an electoral roll depending upon facts which require enquiry or investigation before it is accepted. Such an enquiry during the conduct of election by a Returning Officer is not envisaged in the main S. 33(4) and the proviso has also not provided such, an addendum to it. The correction envisaged in the proviso must be of the nature described in Masood's case i.e. must be easily discernible even to an ordinary man of an average intelligence and the correction of which is warranted ex debito justitiae. The word "misnomer" in the proviso cannot, therefore, be given an extensive interpretation as desired by the petitioner. 22. Thus the proviso relied upon by the petitioner did not empower the Returning Officer to permit substitution of a name in the electoral roll and the nomination paper which was not apparent on a mere perusal of the materials before him, the materials which have already been enumerated above. The rejection of such a prayer of the petitioner by the Returning Officer did not suffer from any error of law. On the other hand at this stage S. 23(3) of the Act prohibited the amendment of the entry in the electoral roll. 23. Further, Form 2-A in which nomination paper was filed in Masood's case, ( AIR 1975 All 402 ) was different from the Form 2-A of the present case. On the other hand at this stage S. 23(3) of the Act prohibited the amendment of the entry in the electoral roll. 23. Further, Form 2-A in which nomination paper was filed in Masood's case, ( AIR 1975 All 402 ) was different from the Form 2-A of the present case. By Ministry of Law, Justice and Company Affairs So. No. 7(1)/84 LEG II dated 4-8-84, Forms 2-A and 2-D were amended. A nomination paper now filed in the amended Form 2-A contains the certificate not only about the correctness of the name in which the nomination is filed but also about the correctness of its spelling. In view of this amendment in this Form, the proviso to S. 33(4) has become rather superfluous because the candidate is now required to give correct spelling of his name in the nomination paper. This is another ground which disables the petitioner to base his claim on the proviso to S. 33(4). 24. It follows from the above discussion that the petitioner's name "Samar Singh son of S. B. Singh" was not entered in the electoral roll. Therefore, "Samar Singh" petitioner was not an "elector" as defined in the Act. The nomination paper filed in the election was also not in the name of "Samar Singh, son of S.B. Singh petitioner. It was the nomination paper presented in the name of "Samay Singh son of S. P. Singh" which was accepted. Thus Samar Singh son of S. B. Singh" was not a candidate also at the election. Therefore, I agree with, Sri Bhatnagar that "Samar Singh, son of S. B. Singh" has no right to present this petition because under S. 81 of the Act an election petition can be presented only by "a candidate" at the election or by an elector in the constituency. This petition is, therefore, liable to be dismissed on this ground alone. 25. It may also be pointed out that the above ground is not a ground covered by any of the section 100 or 101 of the Act. According to the petitioner, this ground is covered by S. 100(d)(iv) of the Act. Section 100(d)(iv) reads as under : "by any non-compliance with, the provisions of the Constitution or of this Act or of any rules or orders made under this Act." 26. According to the petitioner, this ground is covered by S. 100(d)(iv) of the Act. Section 100(d)(iv) reads as under : "by any non-compliance with, the provisions of the Constitution or of this Act or of any rules or orders made under this Act." 26. It is urged by the petitioner that the Returning Officer did not comply with, the requirement of proviso to S. 33(4) by refusing to direct the correction of is name in the electoral roll and the nomination paper. Such a refusal to comply with, the requirement of the proviso was a breach of statutory duty on the part of the Returning Officer. It has consequently rendered the election of respondent No. 1 void. 27. As has already been discussed above, the proviso to S. 33(4) has no application in this case. Therefore, the Returning Officer cannot be held to have committed breach of any statutory duty. The above contention of the petitioner cannot, therefore, be accepted and the election of the respondent No. 1 cannot, therefore, be declared void on this ground. 28. It may no doubt be also urged in this connection that, in case there is no person in the village having the name of Samay Singh son of S. P. Singh i.e., having the name entered in the electoral roll and that this entry is referable to none but the petitioner, then the petitioner is left with no remedy. Firstly, this contention presupposes following questions of fact : (i) there is no person in the village having the name of "Samay Singh son of S. P. Singh" and (ii) that the entry in this name in the electoral roll relates to none but the petitioner. 29. As already pointed out above enquiries into such questions of fact are not within the scope of the proviso to S. 33(4) relied upon by the petitioner. Therefore, he is not entitled to get the election nullified on this ground. However, even if the above facts are assumed for a moment, the petitioner has no claim in equity also because of the very nature of the law of elections. Therefore, he is not entitled to get the election nullified on this ground. However, even if the above facts are assumed for a moment, the petitioner has no claim in equity also because of the very nature of the law of elections. The nature of this law is enunciated by the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 at p. 212 in the following words : "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power.". 30. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 also the Supreme Court reiterated the above decision of the Jagan Nath's case by saying at page 986 that : "An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it." 31. In fact, to use the language of the Jyoti Basu's case (supra) in election disputes, court is put in a straight-jacket. The entire election process commencing from issuance of notification calling upon a constituency to elect a member up to the final resolution of disputes is regulated by the Representation of the People Act, 1951. different stages of the process being dealt with by different specific provisions of the Act. That being the position the above contention of the petitioner can also not be permitted to sustain. 32. In the result, the petitioner's nomination paper filed in the name of "Samay Singh son of S.P. Singh" cannot be held to have been wrongly accepted by the Returning Officer. He had rightly refused to accede to this prayer of the petitioner to order correction of the electoral roll or the nomination paper at the stage when the nomination papers were being scrutinised by him for preparing a list of contesting candidates in accordance with S. 38(1) read with R. 10 of the Rules. He had rightly refused to accede to this prayer of the petitioner to order correction of the electoral roll or the nomination paper at the stage when the nomination papers were being scrutinised by him for preparing a list of contesting candidates in accordance with S. 38(1) read with R. 10 of the Rules. The petitioner has, therefore, no cause of action to maintain this petition. 33. The application of the contesting respondent under O. VII R. 11 C.P.C. is accordingly allowed and the election petition of the petitioner is rejected. There will, however, be no order as to costs.