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Chhattisgarh High Court · body

2008 DIGILAW 249 (CHH)

PREMCHAND SONWANI v. DHANENDRA SAHU

2008-09-08

D.R.DESHMUKH

body2008
ORDER 1. In the election petition filed under Sections 80, 80A and 81 of the Representation of the People Act, 1951 (henceforth 'the Act, 1951 ') the following issue arises for determination : "Whether the nomination paper of the petitioner has been improperly rejected?" 2. Another issue was framed by this Court, which is as under: "Whether the election petition is liable to be dismissed under Section 86 for non-compliance of the provisions of Section 81(3) of the Representation of the People Act, 1951 ?" On 25-08-2008, Dr. N.K.Shukla, learned Senior Advocate for the respondent No.1 did not press the above issue. It is, therefore, unnecessary to dwell on it. 3. Section 100(1)(c) of the Act, 1951 empowers the High Court to declare the election of the returned candidate to be void if it is of the opinion that any nomination has been improperly rejected. 4. It is not in dispute that the petitioner had filed nomination for election of the member of Legislative Assembly of the State of Chhattisgarh from Constituency . No.42, Le., Abhanpur within the time prescribed for filing of nominations, i.e. on 14-11-2003 at 02:45 P.M. before the retuning officer. It is also not in dispute that Shri C.K.Khetan, witness No.2 for the respondent No.1 was the returning officer for Abhanpur Constituency and had rejected the nomination of the petitioner on the following ground. 5. The petitioner alone testified in support of the petition. The respondent No.1, i.e., the elected candidate deposed before the tribunal and examined his election agent Bramhanand Singh Thakur as R.I. W.3 and Shri C.K.Khetan, the returning officer as R. W.-2. 6.. In Part 3d of the nomination paper, the petitioner was required to state in "Yes" or "No" as to whether he was convicted for any offence under subsection (1) or (2) of Section 8 of the Act, 1951 or was, upon conviction for any other offence, sentenced to imprisonment for two years or more. The petitioner opted to answer in the affirmative by ticking the word "Yes" and scoring off the word "No". 7. The petitioner opted to answer in the affirmative by ticking the word "Yes" and scoring off the word "No". 7. In the format of Part 3d only if the answer to the above query was in the affirmative, the petitioner would be further required to furnish the following information: (i) The Case Number/F.I.R. Report Number, (ii) Name of the Police Station, District and State, (ill) The Sections and brief description of the offences for which he was convicted, (iv) Date of the conviction, (v) Description of the Court which had convicted the petitioner, (vi) The imprisonment awarded or fine imposed by the Court, (vii) The date of release from prison, and (viii) Whether any appeal was preferred against the said conviction (to be answered in "Yes"/''No''). The petitioner answered to the query No.(i) by giving complaint case number 965/90 before the Judicial Magistrate First Class, Raipur. To the queries No.(ii), (iv), (v), (vi) and (vii) he did not furnish any information and simply marked 'X' against them. To the query No.(iii), the petitioner wrote ''No''. To the query No.(viii), he scored off the word "Yes" and ticked the word "No". Queries No.(ix) to (xii) were related to appeals against the judgment of conviction. Since the petitioner had ticked the word "No" in answer to the query No.(viii), he was not required to furnish any information in answer to the queries No.(ix) to (xii). 8. Along with the nomination form, the petitioner submitted an affidavit sworn on 13-11-2003 stating as under: 9. The petitioner also submitted information in relation to Section 8 of the Act, 1951 pertaining to disqualification on conviction for certain offences and also swore affidavit in Fonn 26. Paragraph 2 of the affidavit is quoted as under: 10. Section 36 of the Act, 1951, which deals with scrutiny of nomination, is as under: "Sec. 36 : Scrutiny of nomination. - (1) On the date fixed for, the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds : (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions , that may be applicable, namely: Articles 84, 102, 173 and 191. Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. (7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950). (8) hnmediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board." A plain reading of the above provision shows that under Section 36(4) of the Act, 1951, a duty is cast on the returning officer not to reject any nomination paper on the ground of any defect which is not of a substantial character. 11. Submissions of Shri B.P.Sharma, learned counsel for the petitioner and that of Dr. N.K.Shukla, learned Senior Advocate for the respondent No.1 were heard at length. Record and case law cited by them are perused. 12. In sum and substance, the arguments advanced Dy Shri B.P.Sharma, learned counsel for the petitioner is that although due to an inadvertent error, the petitioner had scored off the word "No" instead of "Yes" and ticked the word "Yes", instead of "No" to the query relating to conviction for any offence under sub-section (1) or (2) of Section 8 of the Act, 1951 and regarding the conviction for any other offence for which he was sentenced to imprisonment for two years or more yet the information supplied by the petitioner in Form No.3(cn) and the proforma and affidavit mentioned above left no room for any doubt that the petitioner had neither been convicted for any offence mentioned in sub-section (1) or (2) of Section 8 of the Act, 1951 nor sentenced for any offence for two years or more. Therefore, the defect in inadvertently scoring off the word "No" and ticking the word "Yes" was not of a substantial character and, therefore, the returning officer erred in rejecting the nomination paper of the petitioner on the sole ground that the petitioner had declared in Part 3d that he had been convicted. 13. On the other hand, the crux of the arguments advanced by Dr.N.K.Shukla, learned Senior Advocate for the respondent No.1 .is that the defect in the nomination form which was duly supported by an affidavit is of a substantial character. The petitioner admitted in para 3 of .the petition that he had notice of the date and time of the scrutiny of nominations to be conduced by the returning officer. In his testimony, the petitioner had further admitted that despite being present he did not enter the hall where the scrutiny of nomination papers was being conducted by the returning officer. The nomination form of the petitioner was filledin-by Shri K.R.Banjare, a practicing Advocate, who had represented the petitioner in the criminal prosecution. No malice was attributed to the returning officer by the petitioner in the petition. It was argued that in the petition the petitioner had mentioned the criminal case number 965/99, whereas in the nomination form it was shown as 965/90 and in the affidavit it was shown as 965/02. In his deposition, the petitioner had stated that the criminal case number was 965/90. Thus, there was no material in the nomination form, the declaration form and in the affidavit sworn by the petitioner, which would have in any manner facilitated the returning officer to come to a definite conclusion that the admission of the petitioner in the first part of Part 3d Was due to an inadvertent error. Learned Senior Advocate for the respondent No.1 also drew the attention of the Court to the fact that although the affidavit was sworn by the petitioner before the Notary on 13-11-2003, the same along with the nomination form were signed on 14-11-2003. On the basis of these glaring features, Dr. N.K.Shukla, learned Senior Advocate for the respondent No.1 argued that the returning officer was wholly justified in rejecting the nomination paper of the petitioner because the defect in the nomination paper was of a substantial character. 14. On the basis of these glaring features, Dr. N.K.Shukla, learned Senior Advocate for the respondent No.1 argued that the returning officer was wholly justified in rejecting the nomination paper of the petitioner because the defect in the nomination paper was of a substantial character. 14. The question that arises for consideration in this petition is whether the abovementioned defect in the nomination paper of the petitioner was of a substantial character? 15. Sub-section (4) of Section 33 of the Act, 1951 is as under: "Sec.33 : Presentation of nomination paper and requirements for a valid nomination. - xxxxx xxxxx xxxxx xxxxx (4) 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 lli! 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 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 ofthe 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. 16. Under Section 33(4) of the Act, 1951, on the presentation of a nomination paper, a duty is cast on the returning officer to 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. 16. Under Section 33(4) of the Act, 1951, on the presentation of a nomination paper, a duty is cast on the returning officer to 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. Under the proviso to sub-section (4) of Section 33 of the Act, 1951, the returning officer has been authorized to permit any such misnomer or inaccurate description or clerical or technical or printing error in regard to the name of a candidate or his proposer or any other person or in regard to any place mentioned in the electoral roll or the nomination paper to be corrected (emphasis supplied by me) or to direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. A plain reading of sub-section (4) of Section 33 of the Act, 1951 leaves no room for any doubt that under this provision the returning officer was not obliged to get any error in the entry in the first part of Part 3d of the nomination form corrected since the petitioner had, in support of those entries, also sworn an affidavit as mentioned in paragraph 8 (supra) which could not be got corrected by the returning officer. 17. Section 8 of the Act, 1951, which falls in Part II and provides for disqualification, which a person may incur on being convicted, is as under: "Sec. 8 : Disqualification on conviction for certain offences. 17. Section 8 of the Act, 1951, which falls in Part II and provides for disqualification, which a person may incur on being convicted, is as under: "Sec. 8 : Disqualification on conviction for certain offences. - (I) A person convicted of an offence punishable under(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or subsection (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in anyplace of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability arising therefrom; or (c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or (d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or (e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or (f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985): or (g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (prevention of Misuse ) Act, 1988 (41 of1988); or (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; or j) section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991, or (k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or (l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be disqualified, where the convicted person is sentenced to (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (2) A person convicted for the contravention of- (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961), and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. ] (4) Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation.-In this section(a) "law providing for the prevention of hoarding or profiteering" means any law, or any order, rule or notification having the force of law, providing for(i) the regulation of production or manufacture of any essential commodity; (ii) the control of price at which any essential commodity may be brought or sold; (iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity; (iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale; (b) "drug" has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940); (c) "essential commodity" has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955); (d) "food" has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954)." 18. It is noteworthy that every conviction may not result in disqualification. It depends upon the nature of the offence and provisions under which the offence is committed, as also the period of sentence awarded. It is noteworthy that every conviction may not result in disqualification. It depends upon the nature of the offence and provisions under which the offence is committed, as also the period of sentence awarded. At the time of scrutiny the Returning Officer is entitled to satisfy himself that a candidate is qualified and not disqualified. Sub-section (2) of Section 36 authorises him to hold an enquiry on his own motion, though summary in nature. The returning officer had furnished a proforma of declaration to the petitioner to be filled on affidavit and filed on or before the date and time fixed for scrutiny of the nomination paper. Therefore providing a pro forma, eliciting necessary and relevant information in the light of Section 8 of the Act to enquire as to whether the person is qualified and not disqualified, is an act or function fully covered under sub-section (2) of Section 36 of the Act. The returning officer is authorized to seek such information to be furnished at the time or before scrutiny. Acceptance or rejection of the nomination paper by the Returning Officer shall depend on his forming an opinion as to whether the defect is of a non-substantial character or of a substantial character. Within the meaning of the proviso to sub-section (5) of Section 36 the Returning Officer has to record his decision by way of acceptance or rejection of the nomination paper. If the nomination paper is rejected, a brief statement of his reasons for such rejection has to be recorded in writing. 19. It was admitted by the petitioner in his testimony that four sets of nomination papers were supplied to him and three out of four had been spoiled due to errors therein. He further admitted that his nomination paper was filled by one Shri K.R.Banjare. It was admitted by Shri B.P.Sharma, learned counsel for the petitioner before this Court on 30-04-2008 that Shri K.R.Banjare is a practicing Advocate who had also represented the petitioner in the criminal case. The petitioner admitted that he was present outside the hall where scrutiny of nomination papers was being done by the returning officer and he did not enter the hall despite announcement of rejection of his nomination. The petitioner admitted that he was present outside the hall where scrutiny of nomination papers was being done by the returning officer and he did not enter the hall despite announcement of rejection of his nomination. Bramhanand Singh Thakur, R.I. W.3 has also deposed that name of the petitioner was announced thrice at the time of scrutiny, but the petitioner did not present himselfbefore the returning officer. It is, thus, clear that the returning officer was under no obligation to get the substantial defect, which was duly sworn by the petitioner on affidavit to be true, corrected from the petitioner at the time of scrutiny of nomination. In this petition also, the petitioner had mentioned the case number of the complaint case filed against him before the Judicial Magistrate First Class as 965/99. In Part 3Cf1 of the nomination form, the case number has been mentioned as 965/90. In the affidavit filed by the petitioner in support of the declaration form, the case number was mentioned as 965/02. In paragraph 2 of the affidavit the petitioner would be required to furnish information only if he was convicted for an offence under sub-section (1) or (2) of Section 8 of the Act, 1951 or for any offence other than an offence mentioned in sub-section (3) of Section 8 of the Act, 1951. Once the petitioner mentioned an altogether different case number, i.e., 965/02, he ought to have furnished detailed information regarding clauses (ii) to (vi), but the petitioner did not furnish any information under this clause. The petitioner mentioned different case numbers, i.e., Case No.965/90 at one place and Case No.965/02 at another and did not furnish the necessary details required under the form and the affidavit. Although the affidavit mentioned in paragraph 9 supra in support of the declaration was signed by the petitioner on 14-11-2003, whereas it had already been sworn before a Notary on 13-11-2003. No explanation is forthcoming from the petitioner for this. Although the affidavit mentioned in paragraph 9 supra in support of the declaration was signed by the petitioner on 14-11-2003, whereas it had already been sworn before a Notary on 13-11-2003. No explanation is forthcoming from the petitioner for this. Therefore, once the petitioner answered the first question in Part 3Cfi of the nomination paper in affirmative and admitted of having been convicted for an offence under subsection (1) or (2) of Section 8 of the Act, 1951 or for any other offence for which he was sentenced to imprisonment of two years or more and also provided different criminal case numbers, he incurred a disqualification under Section 8 of the Act, 1951 for membership to the Legislative Assembly of the State under Section 8 of the Act, 1951. The above defect in the nomination for was of a substantial character and, therefore, the returning officer was justified in rejecting the nomination of the petitioner. Accordingly, Issue No.(i) is answered in the negative against the petitioner. 20. The election petition has no merit. It is accordingly dismissed. Petition Dismissed.