CASE NO.: Appeal (civil) 3653 of 1999 PETITIONER: KRISHNA MOHINI RESPONDENT: MOHINDER NATH SOFAT DATE OF JUDGMENT: 26/10/1999 BENCH: DR. A.S. ANAND CJI & S. RAJENDRA BABU & R.C. LAHOTI JUDGMENT:
JUDGMENT
1999 Supp(4) SCR 76
The Judgment of the Court was delivered by
R.C. LAHOTI, J. This is an appeal under Section 116A of the Representation
of the People Act, 1951 preferred by a candidate, who, though successful at
the polls, has lost in the election petition before the High Court. For the
sake of convenience, the parties shall be referred to as they were arrayed
in the election petition filed before the High Court.
Mohinder Nath Sofat, the defeated candidate, filed an election petition
putting in issue the election of Smt. Krishna Mohini, the returned
candidate, alleging improper rejection of the nomination papers of Sarvshri
Pritam Chand and Mohan Singh and also that the result of election insofar
as it concerns the returned candidate having been materially affected by
the improper acceptance of nomination paper of Jagdish Chander Bhardwaj.
The two grounds were covered by Section 100(l)(c) and Section 100(1)(b)(i)
of the Representation of the People Act, 1951 (hereinafter referred to as
the `Act’, for short). Both the pleas have prevailed with the learned
Designated Election Judge of the High Court of Punjab and Haryana, The
election petition has been allowed and the election of the returned
candidate set aside.
Legislative Assembly elections including for 14-Solan Constituency of
Himachal Pradesh Vidhan Sabha were held in the months of January and
February, 1998 as per the programme notified by the Election Commission of
India. Nomination papers were to be filed between 28.1.1998 and 4.2.1998
(both days inclusive). Scrutiny of nomination papers was to take place on
5.2.1998. Last date for withdrawal of candidature was 7.2.1998 upto 3 p.m.
Allotment of symbols was to take place after 3 p.m. on 7.2.1998. Date of
polling was 28.2.1998. Counting of ballots was to take place on 2.3.1998.
The petitioner filed his nomination as a candidate of Bhartiya Janta Party,
a registered and recognised political party. The respondent filed her
nomination as a candidate of Indian National Congress (I), a registered and
recognised political party. One Pritam Chand son of Bahadur Ram, filed his
nomination (Ex. PW 1/P) as a candidate of Shiv Sena (a registered –
unrecognised political party). On the date of scrutiny, his nomination was
rejected by the Returning Officer by an order passed as under :
“Since the nomination of main candidate has been accepted, he being
substitute candidate, his nomination papers are rejected.”
One Mohan Singh son of Shiv Ram had filed his nomination (Ex. PW I/R) as a
candidate of Himachal Vikas Congress (a registered- unrecognised political
party). His nomination was also rejected by the Returning Officer by an
order passed as under :-
“The main candidate since has been accepted hence his nomination is
rejected.”
Jagdish Chander Bhardwaj (PW 2) had filed his nomination (Ex. PW 1/ N) as a
candidate of Communist Party of India (CPI). The date and time of
presentation of nomination as endorsed on his nomination paper are
“4.2.1998” and “12.45. p.m.” The Oath Form (Ex. PW I/O) bears the date and
time of the Oath having administered by the Returning Officer as “4.2.1998”
and “12.44 am.”
There were four other candidates whose nomination papers were found to be
in order and were accepted by the Returning Officer. Thus, there were in
all seven candidates in the fray. The contesting candidates secured the
votes as under :-
S. No. Name of Candidate Party affiliation No. of votes polled 1. Ms. Krishna Mohini Indian National (respondent) Congress 2. Jagdish Chand Bhardwaj C.P.I 598 3. Mohinder Nath Sofat Bhartiya Janta Party 12,184(Petitioner) 4. Ravinder Nath Parihar Samajwadi Party 512 5. Vinod Kumar Himachal Vikas Congress 1,063 6. Smt. Satya Devi Shiv Sena 72 7. Harminder Singh Thakur Independent 9,739
In accordance with the above result of counting, the respondent-Krishna
Mohini was declared elected. She had defeated her nearest rival, the
petitioner, by a margin of 26 votes.
According to the petitioner, the nomination papers of Sarvshri Pritam Chand
and Mohan Singh were wrongly rejected by the Returning Officer. Though
these two candidates, as per their nomination papers, had claimed
themselves to be alternate candidates of Shiv Sena and Himachal Vikas
Congress respectively, but each of the nomination papers was proposed by
ten electors of the Constituency and as such both were entitled to be
treated as independent candidates and none of the nomination papers filed
by them could have been rejected inspite of the nomination papers of the
main candidates having been accepted by the Returning Officer. Improper
rejection of any nomination paper is by itself a ground for avoiding the
election of the returned candidate under Section l00(1)(c) of the Act.
Jagdish Chander Bhardwaj had not taken oath after the submission of the
nomination paper before the Returning Officer, who was authorised by the
Election Commission of India to administer the oath or affirmation as
required by Article 173 of the Constitution and hence his nomination paper
was illegally accepted which has resulted into the result of election being
materially affected.
According to the respondent, the nomination papers of Pritam Chand and
Mohan Singh were rightly rejected by the Returning Officer as they were
mere alternate or substitute candidates Of Shiv Sena and Himachal Vikas
Congress respectively. Inasmuch as the nomination papers of Smt. Satya Devi
and Shri Vinod Kumar, the candidates set up by the said two political
parties respectively, were found to be in order and accepted, the question
of accepting nomination papers of alternate/substitute candidates did not
arise. Their nomination papers were rightly rejected by the Returning
Officer. So far as Jagdish Chander Bhardwaj is concerned, the timings
endorsed on the nomination paper and oath form suffer from a clerical error
merely. Oath was administered to Jagdish Chander Bhardwaj by the Returning
Officer after the presentation of nomination paper by him and, therefore,
his nomination paper was rightly accepted by the Returning Officer.
On the basis of the pleadings of the parties, the following issues were
framed by the learned Designated Election Judge ;-
“1. Whether the petitioner does not disclose full, concise and material
facts and does not disclose a cause of action? If so, its effect? OPR
2. Whether the petitioner has knowingly and intentionally concealed the
material facts? If so, its effect? OPR
3. Whether the nomination papers of S/Shri Pritam Chand and Mohan Singh
have been wrongly and improperly rejected and the election of respondent
No. i is liable to be declared void under Section 100(1)(c) of the
Representation of People Act? OPP
4, Whether the nomination papers of Jagdish Chand Bhardwaj were wrongly
accepted and the result of election has been materially affected thereby?
OPP
3. Relief”
Issues Nos. 1 and 2 were not pressed for decision by the learned senior
counsel for the respondent before the High Court and they were accordingly
decided against the respondent. Shri O.P. Sharma, learned senior counsel
for the appellant, has disputed the correctness of the factual statement
recorded by the High Court that the two issues were not pressed for
decision. However, we are not persuaded to entertain such a plea. Firstly,
no application disputing the correctness of the factual statement recorded
by the learned Designated Election Judge in his judgment has, been moved
before the same Judge. Secondly, we also do not find any merit in the plea
contained in the written statement filed in the High Court on which the two
issues have been framed. Even if pressed for decision, these two issues
would have been liable to be decided in favour of the petitioner.
Issue Nos. 3 and 4 have been decided in favour of the election petitioner
allowing the relief of setting aside the election of the respondent under
Issue No. 5. The findings on these issues are under challenge in this
appeal.
We would first take up the Issue No. 3.
Exhibit PW-l/G is the nomination paper of Mohan Singh, which was filed at
2.55 p.m. on 4.2.98, It has been subscribed by ten proposers, who are
electors of the Constituency, In part-III of the nomination paper, Mohan
Singh has declared himself to have been set up at the election by the
Himachal Vikash Congress party. For the choice of symbols, he has given
`telephone’ as the first preference and left blank the space meant for
second and third preferences.
Pritam Chand filed his nomination paper at 1.55 p.m. on 4.2.98. In Part-Ill
of the nomination paper, he has declared himself to have been set up as a
candidate by Shiv Sena, a registered unrecognised political party. The
space meant for giving the choice of three symbols in the order of
preference has been left blank. The nomination paper is subscribed by ten
proposers, all being electors of the Constituency.
Exhibit R-l is the communication in form-A made on behalf of Himachal
Vikash Congress to the Chief Electoral Officer, Himachal Pradesh and the
Returning Officer for the 14-Solan Constituency, pursuant to para 13(b),
(c) and (d) of the Election Symbols (Reservation and Allotment) Order, 1968
declaring Shri Chaman Lal, General Secretary of the party, as the person
authorised for 14-Solan Constituency appending his specimen signatures.
Exhibit R-3 is form-B filed under the signature of the said Chaman Lal on
3.2.98 before the Chief Electoral Officer, 14-Solan Constituency, pursuant
to paragraph 13(b), (c) and (d) of the Election Symbols (Reservation and
Allotment) Order, 1968 whereby it was declared that the `approved
candidate’ was Vinod Kumar and Mohan Singh was `substituted candidate’ who
will step-in as a contesting candidate on the approved candidate’s
nomination being rejected on scrutiny or his withdrawing from the contest.
Similarly, form-A was filed before the Chief Electoral Officer, Himachal
Pradesh, and the Returning Officer for the Solan Constituency on behalf of
Shiv Sena forwarding the specimen signatures of Shri Satish Pradhan `Rajya
Sampark Neta’ of Shiv Sena, as the person authorised for the purpose. Form-
B was filed under the signature of Shri Satish Pradhan declaring Satya Devi
to be the `approved candidate’ of Shiv Sena and Pritam Chand as `substitute
candidate’ who will step-in as contesting candidate, on the approved
candidate’s nomination being rejected on scrutiny or his withdrawing from
the contest.
It is to be noted that neither form-A nor form-B bears the signatures of
any candidate. Indeed there is no provision in any Act, Rules or Order
which requires any such form to be signed or subscribed to by a candidate.
At the scrutiny, the nomination papers of Pritam Chand and Mohan Singh were
rejected by the Returning Officer as already stated.
The learned Designated Election Judge has held both the rejections to be
illegal, which finding has been vehemently attacked by Shri O.P, Sharma,
the learned senior counsel for the appellant.
The provisions of Sections 33 and 36 of the Act insofar as relevant for our
purpose, are extracted and reproduced hereinunder :-
“33. Presentation of nomination paper and requirements for a valid
nomination.-(1) On or before the date appointed under clause (a) of Section
30 each candidate shall, either in person or by his proposer, between the
hours of eleven O’ clock in the forenoon and three O’clock in the afternoon
deliver to the returning officer at the place specified in this behalf in
the notice issued under section 31 a nomination paper completed in the
prescribed form and signed by the candidate and by a elector of the
constituency as proposer,
[Provided that a candidate not setup by a recognised political party, shall
not be deemed to be duly nominated for election from a constituency unless
the nomination paper is subscribed by ten proposers being electors of the
constituency;
Provided further that no nomination paper shall be delivered to the
returning office on a day which is a public holiday;
Provided also that in the case of a local authorities’ constituency,
graduates’ constituency or teachers’ constitutency, the reference to “an
elector of the constituency as proposer” shall be construed as a reference
to ten per cent of the electors of the constituency or ten such electors,
whichever is-less, as proposers.”]
xxx xxx
xxx
36. Scrutiny of nominations.-(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.]; 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)…………(not reproduced)
(4) The Returning Officer shall not reject any nomination paper on the
ground of any defect which is not of a substantial character.”
xxx xxx xxx [underlining by us]
the first and third provisos to sub-section (1) of Section 33 have been
added by the Representation of the People (Amendment) Act, 1996 [Act 21 of
96] w.e.f. 1.8.1996. Prior to this, there was only one proviso which is now
the second proviso in the present form.
In exercise of the powers conferred by Article 324 of the Constitution read
with Section 29A of the Representation of the People Act, 1951 and Rules 5
and 10 of the Conduct of Elections Rules, 1961 and all other powers
enabling it in this behalf, the Election Commission of India has issued the
Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter
referred to as the “Symbols Order”, for short). This order provides for
allotment of symbols to the contesting candidates, for classification of
symbols into reserved symbol-reserved for exclusive allotment to contesting
candidates set up by a recognised political party, and free symbol -which
is a symbol other than a reserved symbol. Para 6 classifies political
parties into recognised and unrecognised political parties. To be a
recognised political party in a State, a political party must satisfy the
conditions specified in clause (A) or clause (B) of sub-para (2) of Para 6
of the Symbols Order. A recognised political party may be a National party
or a State party. A candidate set up by a recognised party in an election
contest can choose only a symbol reserved for that political party.
Candidates set up by political parties other than recognised ones and
independent candidates are entitled to free symbols. A candidate other than
a candidate set up by a recognised National or State Party in that State or
a candidate set up by a State party at elections in other State, has to
choose and to be allotted a free symbol. A free symbol chosen by only one
candidate must be allotted to him and to no one else. Where the same free
symbol has been chosen by several candidates at such election the manner
how the symbol shall be allotted as amongst those several candidates is
laid down in sub-para 3 of para 12 of the Symbols Order.
Para 13 of the Symbols Order [as substituted by O.N. 2G3-E dt. 5.8.1996,
and effective at the relevant time] provides as under :-
“13. When a candidate shall be deemed to be set up by a political party.-
For the purposes of this Order, a candidate shall be deemed to be set up by
a political party if, and only if,-
(a) the candidate has made a declaration to that effect in his nomination
paper;
(b) a notice in writing to that effect has, not later than 3 p.m. on last,
date for making nominations, been delivered to the Returning Officer of the
constituency and the Chief Electoral Officer of the State;
(c) the said notice is signed by the President, the Secretary or any other
office bearer of the party and the President, the Secretary or such other
officer bearer is authorised by the party to sent such notice; and
(d) the name and specimen signature of such authorised person are
communicated to the Returning Officer of the constituency and to the Chief
Electoral Officer of the State not later than 3.00 p.m. on the last date
for making nominations.”
For the purpose of Symbols Order, as defined in clause (h) of Para 2,
“Political Party” means an association or body of individual citizens of
India registered with the Commission as a political party under Section 29A
of the Representation of the People Act, 1951. The scheme of the Symbols
Order shows that it does not deal with unregistered political parties. It
deals with registered political parties by sub-dividing them into
recognised and unrecognised political parties and with independent
candidates. To be entitled to the benefit of allotment of symbols reserved
to a recognised political party, the candidate has to be one set up by a
recognised political party arid in a manner prescribed by Para 13 of the
Symbols Order. The privilege enjoyed by a candidate set up by a recognised
political party, as spelt out by a combined reading of Section 33 of the
Act with the provisions of Symbols Order, is that his nomination paper is
complete, inter alia, if proposed by an elector, (i.e., one only) of the
Constituency. If the candidate be one not set up by a recognised political
party, i.e., if he be a candidate set up by an unrecognised political party
or be an independent candidate, his nomination paper must be subscribed by
ten proposers being electors of the Constituency. Nomination paper filed by
a candidate set up by an unrecognised political party or an independent
candidate, cannot be proposed by a single elector of the Constituency or by
electors less than ten.
Prior to the amendment in the body of the Act introduced by Act No, 21 of
1996, which inserted, inter alia, the first proviso to sub-section (1) of
Section 33 of the Act, the expression “recognised political party” was not
to be found used in the Act. The Representation of the People (Amendment)
Act, 1989 (Act No. 1 of 1989) introduced, w.e.f. 15.6.1989, Section 29A as
also clause (f) in sub-section (1) of Section 2 of the Act. Section 2(l)(f)
defines “political party” to mean an association or a body of individual
citizens of India registered with the Election Commission as a political
party under Section 29A. The latter provision lays down the manner of such
registration. Symbols Order, 1968 divides `registered political parties’
into recognised and unrecognised ones. For the purpose of Symbols Order as
defined by Para 2(1 )(h) thereof, `political party’ is a political party
registered with the Commission under Section 29A of the Act. The Act does
not define recognised political party. The expression “recognised political
party” as occurring in first proviso to sub-section (1) of Section 33 of
the Act must be assigned the same meaning as assigned to it by the Symbols
Order.
The submission of Shri O.P. Sharma, the learned senior counsel for the
appellant, is that setting up or otherwise of a candidate by a recognised
political party is an integral part of the scheme of sub-section (1) of
Section 33 of the Act and hence an essential requirement of a valid
nomination paper. A candidate, who claims to have been set up by a
political party, but fails in substantiating such claim, would be deemed to
have not complied with the provisions of sub-section (1) of Section 33 of
the Act. He would attract the wrath of clause (b) of sub-section (2) of
Section 36 of the Act resulting in the rejection of his nomination paper.
The learned counsel further submitted that Pritam Chand and Mohan Singh had
both claimed to have been set up by Shiv Sena and Himachal Vikas Congress
respectively. Both failed in substantiating their such claim. Both the
political parties had set up Satya Devi and Vinod Kumar respectively as
their approved candidates. The Returning Officer was, therefore, justified
in rejecting their nomination papers. Neither Pritam Chand nor Mohan Singh
was present at the time of scrutiny. Neither of the two had at any time
declared or expressed before the Returning Officer his desire of contesting
the election as an independent candidate either in writing or orally. The
Returning Officer was, therefore, fully justified in rejecting their
nomination papers. The finding to the contrary recorded by the learned
Designated Election Judge is wholly unsustainable in law and is liable to
be set aside.
In our opinion, the submission of Shri Sharma, the learned senior counsel
for the appellant, is based on a misappreciation of the correct scope and
purport of the relevant provisions of law and hence has not appealed to us.
The historical background and the Objects and Reasons leading to the
issuance of the Symbols Order have been traced and set out by this Court in
Sadiq AH and Anr. v. The Election Commission of India, New Delhi and Ors.,
AIR (1972) SC 186 vide paras 17 and 18, This Court has observed :-
“17. Perusal of the different paragraphs of the Symbols Order makes it
manifest that they provide, as is made clear by its preamble, for
specification, reservation, choice and allotment of symbols at elections in
Parliamentary and assembly constituencies as well as for the recognition of
political parties in relation thereto and for matters connected therewith.
One such matter is the decision of a dispute when two rival sections or
groups of a recognised political party claim to be that party for the
purpose of the Symbols Order………
18…………..It may be pertinent to find out the reasons which led to
the
introduction of symbols. It is well known that overwhelming majority of the
electorate are illiterate. It was realised that in view of the handicap of
illiteracy, it might not be possible for the illiterate voters to cast
their votes in favour of the candidate of their choice unless there was
some pictorial representation on the ballot paper itself whereby such
voters might identify the candidate of their choice. Symbols were
accordingly brought into use. Symbols or emblems are not a peculiar feature
of the election law of India. In some countries, details in the form of
letters of alphabet or numbers are added against the name of each candidate
while in others, resort is made to symbols or emblems. The object is to
ensure that the process of election is as genuine and fair as possible and
that no elector should suffer from any handicap in casting his vote in
favour of a candidate of his choice. Although the purpose which accounts
for the origin of symbols was of a limited character, the symbol of each
political party with the passage of time acquired a great value because the
bulk of the electorate associated the political party at the time of
elections with its symbol………”
Though Rule 4 of the Conduct of Elections Rules requires every nomination
paper presented under sub-section (1) of Section 33 to be complete in such
one of the Form 2-A to 2-E as may be appropriate and, therefore, the blank
space meant for showing three symbols in order of preference as symbols of
the candidate’s choice, has to be filled in, however, non-filling of the
space as to choice of symbol is not a defect of substantial character. Such
deficiency in the nomination paper is saved by the proviso to Rule 4 of the
Conduct of Elections Rules, 1961 which provides that a failure to complete
or defect in completing, the declaration as to symbols in a nomination
paper shall not be deemed to be a defect of a substantial character within
the meaning of sub-section (4) of Section 36, Choosing a wrong symbol,
leaving blank the space meant for filling the choice of symbols and an
error in describing the symbol-are all defects not of substantial
character. An independent candidate may mention as his preference the
symbol reserved for a recognised political party, but that again will not
be a defect of substantial character. Dealing with such cases, this Court
has held in K.S. Abdul Azeez v. Ramanathan Chettiar and Ors., AIR (1967) SC
85, that the question of symbols should not play an important part because
symbols can be assigned by political parties till the date for withdrawal
and nomination paper should not be cancelled (on this ground) during the
interval.
In N.T. Veluswami Thevar v. Raja Nainar and Ors,, AIR (1959) SC 422, this
Court has held that there can be no rejection of nomination paper outside
sub-section (2) of Section 36, Under S. 32 of the Act, any person may be
nominated as a candidate for election if he is duly qualified under the
provisions of the Constitution and the Act-Section 36(2) authorises the
returning officer to reject any nomination paper on the ground that he
either is not qualified or is disqualified for being chosen under the
provisions referred to therein. If there are no grounds for rejecting a
nomination paper under S, 36(2), then it has to be accepted, and the name
of the candidate is to be included in a
list of validly nominated candidates vide Sec. 36(8).
“.,.,…………..the improper
rejection or acceptance must have reference to S. 36(2), and the rejection
of a nomination paper of a candidate who is qualified to be chosen’ for
election and who does not suffer from any of the disqualifications
mentioned in S. 36(2) would be improper within S. 100(l)(c).”
The distinction between nomination filed by a candidate set up by a
recognised political party and a candidate not set up by a recognised
political party is precise. A perusal of first proviso to sub-section (1)
of Section 33 of the Act makes it clear that a candidate not set up by a
recognised political party, meaning thereby a candidate set up by an
unrecognised political party or an independent candidate, in order to be
duly nominated for election must have his nomination paper subscribed by
ten proposers being electors of the Constituency. If such nomination paper
be subscribed by only one elector as proposer or by a number of electors
less then ten, then it will amount to non-compliance with the provisions of
Section 33. A candidate, who is merely a substitute or a cover candidate
set up by a recognised political party, may file his nomination paper
proposed by only one elector of the Constituency. If the nomination paper
of the approved candidate of that political party is accepted, the
nomination paper filed by the substitute or cover candidate, shall be
liable to be rejected because there can be only one candidate set up by a
recognised political party. In order to be a candidate set up by a
registered and recognised political party so as to take advantage of being
proposed by a single elector, all the four requirements set out in clauses
(a), (b), (c) and (d) of Para 13 of the Symbols Order must be satisfied. If
any one or more of the requirements are not satisfied, the benefit of
nomination being proposed by a single elector is not available to him. A
situation can be visualised where more candidates than one may be aspiring
to be the candidates each set up by the same recognised political party.
The one in respect of whom notice and communication in forms A and B
referable to sub-para (b),
(c) and (d) of Para 13 of Symbols Order have been filed not later than 3.00
p.m. on the last date for making nominations shall be treated as a
candidate set up by such political party. His nomination paper, even if
subscribed to by single elector as proposer, shall be valid subject to
satisfying other conditions as to validity. If any of the requirements
contemplated by sub-para (b), (c) and
(d) of Para 13 of the Symbols Order are not complied with by filing the
requisite notice and communication, then the candidate shall not be deemed
to be one set up by the recognised political party. His nomination, if
subscribed by a single elector or electors less than ten, shall be liable
to be rejected. If the nomination paper of such a candidate is subscribed
to by ten proposers being electors of the Constituency within the meaning
of first proviso to sub-section (1) of Section 33 of the Act, then the
nomination paper cannot be rejected because an error or omission as regards
symbol or choice thereof being a defect not of a substantial character,
would not come in the way of the nomination being accepted. The nomination
paper shall be accepted as valid and an appropriate symbol to which the
candidate may be entitled in accordance with the Symbols Order shall be
allotted by the Election Commission.
In the nomination paper (Ex. PW- 1/P) filed by Pritam Chand, he claimed to
have been set up by Shiv Sena, a registered but unrecognised political
patty. Vide Para 5 of the Election Petition, it is alleged that Shiv Sena
was an unrecognised political parry. Similarly, Mohan Singh in his
nomination (Ex. PW-l/R) claimed to have been set up by Himachal Vikas
Congress a registered unrecognised political party. Vide Para 6 of the
Election Petition, it is averred that Mohan Singh was the candidate of an
unrecognised political party, Himachal Vikas Congress. These facts are not
disputed in the written statement vide paras 5 and 6, Thus, it is not in
dispute that both these candidates were set up by unrecognised political
parties. Both the nomination papers were subscribed each by ten electors of
the Constituency as proposers. The Returning Officer had no other option
but to accept their nomination forms as none of them was otherwise
disqualified and the nomination forms also did not suffer from any other
infirmity. In fact, the filing of Forms `A’ and `B’ as regards them was not
of any significance. The only question to which the Returning Officer was
called upon to apply his mind was as regards the allotment of symbol to
each one of them and that stage would have arisen only after the scrutiny
was over and the stage for allotment of symbol arrived after 3.00 p.m. on
7.2.98. Each one of them was to contest the election either as a candidate
set up by an unrecognised political party or as an independent candidate.
The nomination paper of Pritam Chand did not mention the choice of any
symbol. The nomination paper of Mohan Singh mentioned Telephone’, the
symbol of Himachal Vikas Congress, as the symbol of first preference and
left the second and third preference blank. The Election Commission could
have allotted an appropriate symbol to each one of the candidates to which
he was entitled subject to the symbols having been accepted by the
Returning officer.
A candidate may be aspiring for being set up by a recognised political
party. He can pin his hopes for being sponsored by such political party
upto the hour by which the time for filing the nomination papers expires.
If he fails to obtain such sponsorship by the recognised political party in
accordance with the provisions contained in Para 13 of the Symbols Order,
then he has the choice of continuing his candidature as an independent
candidate subject to his satisfying the requirement of having been proposed
by ten electors of the Constituency and other requirements as to the
validity of a nomination paper. If he does not withdraw his candidature,
then he would be a candidate validly nominated. Such a candidate who has
not been able to secure sponsorship by a recognised political party at the
time of filing his nomination papers but is still hopeful of securing such
sponsorship, has the choice of filing nomination papers more than one. In
one of the nomination papers subscribed by one elector of the Constituency
he may declare himself to have been set up by a recognised political party.
He may file yet another nomination paper declaring his candidature as an
independent subscribed by ten electors of the Constituency as proposers. A
single nomination paper though containing a declaration by the candidate of
his having been set up by a recognised political party, may itself be
subscribed by ten electors of the Constituency as proposers. In either
case, his nomination would be valid insofar as the aspect of proposing is
concerned.
Consequent upon amendments having been made in the Representation of the
People Act, 1950 and 1951 by the Amendment Act, 1996 (Act No. 21 of 1996)
w.e.f. 1.8.96, the Election Commission of India issued a Circular dated
9.8.96 for the guidance of the Chief Electoral Officers of all the States
and the Union Territories. Paragraphs 7,14 and 15 thereof are relevant for
our purpose, which are extracted and reproduced hereunder :-
“7. Under the amended section 33 of the Representation of the People Act,
1951, the nomination of a candidate at the election to the House of the
People or a State Legislative Assembly shall be required to be subscribed
by-
(i) One elector of the constituency as proposer, if the candidate has been
set up either by a recognised National Party or by a recognised State party
in the State or States in which it is recognised as a State party :
(ii) ten (10) electors of the constituency as proposers, if the candidate
has been set up by a registered-unrecognised political party or if he is an
independent candidate.
14. It may be further noted that having regard to the changed law, the
Returning Officer will have to be satisfied at the time of the scrutiny of
nominations whether a candidate who claims to have been set up by a
recognised National or State party and whose nomination paper is subscribed
only by one elector as proposer has in fact been duly set up by such
recognised party or not, so as to decide the validity or otherwise of his
nomination paper. Therefore, it is essential that the political parties
intimate the names of the candidates set up by them to the Returning
Officers concerned and Chief Electoral Officer of the State well before the
date of scrutiny of nominations. Accordingly, the Commission has decided
that all political parties must hereafter give the formal intimation in
regard to the candidates set up by them to the aforesaid authorities NOT
LATER THAN 3.00 P.M. ON THE LAST DATE FOR MAKING NOMINATIONS IN FORMS `A’
AND `B’ prescribed for the purpose by the Commission under para 13 of the
Election Symbols (Reservation and Allotment) Order, 1968. The said para 13
of the Symbols Order has also been amended by the Commission accordingly.
15. As a result of the aforesaid amendments made to the Forms of nomination
paper and paragraph 13 of the Symbols Order, certain consequential
amendments have also become necessary in the above referred Forms `A’ and
`B’ in which the political parties give formal intimation with regard to
the candidates set up by them. A copy each of the revised Forms `A’ is also
enclosed herewith for your information and use at all future elections. It
will be observed from the revised Form `B’ that the parties have still been
given an option in that Form to intimate the name of the substitute
candidate who will step-in, if the nomination of the main approved
candidate of the party is rejected on scrutiny. But such substitute
candidate shall be deemed to have been set up by the party, only if all the
requirements under the said para 13, as amended, of the Election Symbols
(Reservation and Allotment) Order, 1968 have been fulfilled in his case.
If, however, the nomination of the main approved candidate of the party is
found valid on scrutiny, the substitute candidate shall not be deemed to
have been set up by that party for the purposes of the amended section 33
of the Representation of the People Act, 1951 and his nomination paper will
be scrutinised by the Returning Officer having regard to the other
provisions of that Act.”
So are the instructions for the guidance of the Returning Officers
contained in the Handbook for Returning Officers, 1998 vide paragraphs 10.3
(iii), 10.3 (iv) and 10.3 (vii) of Chapter-VI as under :-
“(iii) If a candidate has filed one nomination paper with both parts I and
II thereof filled and he fails to bring notice in Forms `A’ and `B’ from
the authorised officer-bearer of the concerned political party, the
nomination paper may be accepted if Part II is properly filled subscribed
by ten electors as proposers, as there will be substantial compliance with
the provisions of Section 33 of the Representation of the People Act, 1951.
(iv) If a candidate, Who filled his nomination paper as candidate claiming
to be set up by an un-recognised political party, fails to bring in his
favour a notice from the concerned political party in Forms `A’ and `B’,
his nomination paper will be accepted if it is subscribed by ten electors
as proposers, and he would be deemed to be an independent candidate.
xxx xxx xxx
(vii) The nomination paper of a substitute candidate of a recognised
political party will be rejected if the nomination paper of the main
approved candidate of that recognised political party is accepted, However,
if such substitute candidate has also filed another nomination paper
subscribed by ten electors as proposers, this latter nomination paper will
be scrutinised independently by treating the candidate as an independent
candidate. Further, if the nomination paper of the main approved candidate
of the parry is rejected, then also the nomination paper of the substitute
candidate will be accepted, provided that the party has intimated his name
as its substitute candidate in Form `A’ and `B’ filed before 3 p.m. on the
last date for making nominations.”
In our opinion, the above-said Circular and guidelines issued by the
Election Commission of India are consistent with the statutory provisions
and correctly bring out the position of law.
In the case of Pritam Chand and Mohan Singh, the controversy before the
Returning Officer was confined to the allotment of symbol only. The
question of testing validity of nomination papers by reference to first
proviso to sub-section (I) of Section 33 of the Act, did not arise at all
for that proviso is confined in its application to the candidates set up or
claiming to have been set up by a recognised political party. It had no
application to the nominations filed by Pritam Chand and Mohan Singh. The
learned Designated Election Judge was, therefore, right in holding that
none of the two nomination papers suffered from any defect of substantial
character and the Returning Officer was, therefore, not right in rejecting
the said nomination papers. We agree with the finding so recorded.
It was submitted by the learned senior counsel for the appellant before us
that inspite of the above-said findings, the election of the returned
candidate (the appellant) was not liable to be set aside inasmuch as Pritam
Chand and Mohan Singh were dummy and non-serious candidates. Such an
inference, according to him, flows from the circumstance that none of them
was present at the scrutiny of nomination papers. On the nomination papers
being rejected, none of them tried to obtain copies of orders rejecting
their nominations. On the contrary, they withdrew their security deposits.
None of them has filed any Election Petition on his own. We are not
impressed with submission. That apart illegal rejection of a nomination is
by itself a ground for setting aside an election without further proof of
the result of the election of the returned candidate having been materially
affected, this Court’s decision in Hira Singh Pal v. Madan Lal, AIR (1968)
SC 1179 is a complete answer to the contention forcefully advanced by the
learned counsel.
In Hira Singh Pal’s case (supra), one Hari Das was the approved candidate
of Indian National Congress. Madan Lal was set up as a substitute candidate
of the same party. The respondent had asked for the Congress symbol,
namely, a pair of bullocks, which was also asked, for by the approved
candidate. At the time of scrutiny, the respondent was absent. His
nomination was rejected being defective. The respondent did not ask for a
copy of the order of the Returning Officer rejecting his nomination. He had
also acted as a counting agent of Hari Das, the approved candidate of the
political party, who had contested the election. The respondent had also
actively canvassed for the approved candidate. This Court arrived at a
finding from the facts and circumstances established in the case that the
respondent was at no time a genuine candidate and in fact the rejection of
his nomination paper was being availed for undoing the result of the
election in view of the approved candidate having lost at the election.
This Court further held ;-
“AH that we have to consider in this appeal is whether the Returning
Officer was right in rejecting the nomination of the
respondent…………….Obviously, he rejected the nomination papers for
the reason that the respondent was only a dummy candidate but that was not
a matter for him to decide. Ff he was a dummy candidate there was occasion
for him to withdraw his candidature after the scrutiny of the nomination
papers. Therefore, it is quite clear that the respondent’s nomination
papers were improperly rejected. Such a rejection was impermissible under
S. 36 and the same is a ground for setting aside the election under Section
100 of the Representation of the People Act,”
Vide Issue No. 4, the High Court has arrived at a finding that the
nomination paper of Jagdish Chander Bhardwaj was filled on 4.2.98 at 12.45
p.m. However, the Form of Oath accompanying the nomination papers shows the
oath as required by Article 173 of the Constitution having been subscribed
by Jagdish Chander Bhardwaj at 12.44 a.m. on 4.2.98, which means that the
oath was taken by him much before the filing of the nomination paper.
Inasmuch as the oath was not taken by the said Shri Bhardwaj after his
having been nominated as a candidates, his nomination paper was liable to
be rejected. It was illegally accepted. He secured 598 votes. The
difference between the votes secured by the returned candidate (appellant)
over the votes secured by the defeated candidate, was only 26 votes. On the
question whether the result of the election has been materially affected by
illegal acceptance of nomination paper of said Shri Bhardwaj, the learned
Designated Election Judge made a review of the law available on the point
and referred to the observations made by this Court in J. Chandrasekhra Rao
v. Jagapathi Rao and Ors., [1993] Supp. 2 SCC 229 and Chhedi Ram v. Jhilmil
Ram and Ors., [1984] 2 SCC 281 and held that the margin of votes by which
the returned candidate has succeeded being small while the number of votes
secured by the candidate whose nomination was accepted was many a number of
times in proportion to the margin, the result of the election can be
assumed to have been materially affected. In arriving at this finding, the
learned Judge also drew strength from the factum of non-examination of the
returned candidate in the Court.
Article 173 of the Constitution (the relevant part thereof) provides as
under :-
“A person shall not be qualified to be chosen to fill a seat in the
legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation
accordingly to the form set out for the purpose in the Third Schedule;
(b)……………..,…………; and
(c)………………………….”
the form of oath reads as under :-
“Form of oath or affirmation to be made by a candidate for election to the
Legislature of a State :-
I………………….having been nominated as a candidate to fill a seat
in
the Legislative Assembly (or Legislative Council), do swear in the name of
God/Solemnly affirm that I will bear true faith and allegiance to the
Constitution of India as by law established and that I will uphold the
sovereignty and integrity of India.”
[Emphasis supplied]
Section 32 of the Act provides as under :-
32. Nomination of candidates for election.-Any person may be nominated as a
candidate for election to fill a seat if he is qualified to be chosen to
fill that seat under the provisions of the Constitution and this Act or
under the provisions of the Government of Union Territories Act, 1963 (20
of 1963), as the case may be.”
According to sub-section (2) of Section 36 of the Act, one of the grounds
on which a nomination can be rejected is that on the date fixed for
scrutiny of the nominations, the candidate was not qualified for being
chosen to fill the seat under Article 173 of the Constitution,
Under sub-section (1) of Section 33 of the Act, a candidate is deemed to
have been nominated only after his nomination paper complete in all
respects in the prescribed form and signed by the candidate and proposer
has been delivered to the Returning Officer between 11,00 a.m. and 3,00
p.m. The law has been settled in Pashupati Nath Singh v. Harihar Prasad
Singh, AIR (1968) SC 1064 by a three-Judge Bench that the oath or
affirmation has to be taken by the candidate after he has been nominated,
i.e., after he has submitted the nomination papers, but before the date of
scrutiny. It follows that an oath or affirmation taken before the
submission of nomination form and on or after the day of scrutiny would be
invalid depriving the nomination paper of its validity. Following the law
laid down by this Court in the case of Pashupatti Nath Singh, (supra) and
Khaje Khanavar Khadarkhan Hussain Khan and Anr, v, S. Nijatingappa and
Anr., AIR (1969) SC 1034, the Election Commission has issued instructions
contained in paragraphs 22.1 and 22.2 of Chapter-V of the Handbook for
Returning Officers, which read as under :-
“22.1. The oath or affirmation should be made and subscribed before the
date fixed by the Election Commission for scrutiny or nomination papers at
that election. The decisions of the Supreme Court in Pashupati Nath Singh
v. Harihar Prasad Singh, AIR (1968) SC 1064 and Khader Khan Hussain Khan
and Ors. v. Nijalingappa, [1970] 1 SCR 548 have clarified the position and
removed all doubts in regard to the actual making and subscribing the oath
or solemn affirmation.
22.2. According to these decisions, the oath or solemn affirmation can be
made and subscribed by a candidate only after his nomination paper has been
delivered and it cannot be so made and subscribed on the date of scrutiny.
You should, therefore, advise the candidate to make the oath or affirmation
immediately after presenting their nomination papers and in any case not
later than the day previous to the date of the scrutiny.”
The above-said instructions correctly bring out the legal position.
However, the finding arrived at by the learned Designated Election Judge
betrays too pedantic an approach and overlooks the effect of oral testimony
adduced by the respondent. Tek Chand (RW3), the Returning Officer, has very
clearly stated that the nomination paper (Ex. PW-l/N) was presented by Shri
Jagdish Chander Bhardwaj before him on 4.2.98 at 12.45 p.m. After the
nomination paper was presented to him, he had carried out the preliminary
examination thereof which took 2-3 minutes, whereafter he had administered
the oath to the candidate. The Oath Form (Ex. PW I/O) was signed by the
candidate in his presence. The date and tune recorded on Ex, PW 1/N and Ex,
PW 1/O were in the handwriting of Khiali Ram, Election Kanungo, who was
assisting him. The time recorded as `12,44′ a.m. on Ex, PW I/O was clearly
a clerical error. The witnesses very emphatically stated that Oath was
administered only after the submission of nomination paper (Ex. PW 1/N),
the time where of insofar as the witness could recollect was 12,46 p.m. No
objection to the validity of nomination was taken by anyone at the time of
scrutiny, Khiali Ram, Election Kanungo, has also appeared in the witness
box as RW-4. He too has stated mat the time recorded on Ex. PW I/O was
wrong and appears to be an outcome of rush of work in the office at the
time of filing of the nomination papers. Jagdish Chander Bhardwaj (RW-2)
has in his statement narrated the facts, which find support from the
testimony of the Returning Officer and the Election Kanungo assessing him.
He has stated that on submission of the nomination papers the same were
examined in about one or two minutes by the Returning Officer and then the
Returning Officer asked him to take Oath in the prescribed form which he
did. Sitting in a comer of the office of the Returning Officer he signed
the oath form.
The learned Trial Judge is certainly not right in recording the finding
that the oath was administered before the filing of the nomination papers
by literally accepting the time of oath at 12.44 a.m., as recorded on the
oath form. The oath could not and must not have been administered on the
midnight intervening 3rd and 4th day of February, 1998, If the oath was
administered by the Returning Officer, it was certainly between 11.00 a.m.
and 3.00 p.m. of 4.2.98. That shows that the time 12.44 a.m. as recorded on
the oath form was an obvious effort. Once this fact is accepted, the weight
of overwhelming testimony coming from the mouth of the Returning Officer
and the Officer assisting him, both being public officers having no obvious
reason to tell a lie, should have been assigned due weight. Taken it into
consideration as corroborating the testimony of Jagdish Chander Bhardwaj,
the learned Trial Judge should have held that the oath was administered
after the presentation of the nomination forms before the Returning
Officer. We hold it to be so and accordingly set aside the finding to the
contrary recorded by the learned Designated Election Judge. In our opinion,
the nomination form of Jagdish Chander Bhardwaj was not illegally accepted.
The acceptance was legal. We need not, therefore, examine the legal-issue
whether the result of the election can be said to have been materially
affected by the acceptance of the nomination paper of Jagdish Chander
Bhardwaj as it is not necessary.
Inasmuch as the finding as to illegal rejection of the nomination papers of
Pritam Chand and Mohan Singh, as recorded by the learned Designated
Election Judge, has been upheld, the election was void and has been rightly
held to be so by the High Court. Under clause (d) of sub-section (1) of
Section 100 of the Act, improper rejection of any nomination is by itself
enough to avoid the election without requiring further proof of the result
of the election having been materially affected.
For the foregoing reasons, the appeal is liable to be dismissed and is
dismissed accordingly though without any order as to costs.