PETITIONER:
LILA KRISHAN
Vs.
RESPONDENT:
MANI RAM GODARA & ORS
DATE OF JUDGMENT08/05/1985
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION:
1985 AIR 1073 1985 SCR Supl. (1) 592
1985 SCC Supl. 179 1985 SCALE (1)991
CITATOR INFO :
F 1985 SC1079 (5)
ACT:
Representation of the People Act, 1951, ss. 33 (4) and
36(4)-Scrutiny of Nomination Papers-Scope of-Whether
Returning Officer is under an obligation to verify the
entire Electoral Roll to establish identity of proper.
HEADNOTE:
Respondents challenged in the High Court the election
of the appellant to Fatehbad Constituency of the Haryana
Legislative Assembly under s.100(1) (c) of the
Representation of the People Act 1951 (Act, for short) on
the ground that the nomination papers of two candidates
being Mani Ram Chhapola and Raj Tilak had been improperly
rejected by the Returning Officer. The proposer of Mani Ram
Chhapola was one Brij Bhushan while the proposer of Raj
Tilak was one Upender Kumar. Brij Bhushan's serial number in
the electoral roll was 26 while Upender Kumar's was 77. In
Form 3A, these numbers were correctly indicated. But in the
nomination papers the numbers had been shown as 126 and 177
respectively The Returning Officer rejected these nomination
papers as the serial number of the proposers as disclosed in
the nomination papers did not tally with reference to the
electoral roll. The High Court set aside the election of the
appellant holding that the Returning Officer acted mala fide
and had either directly or indirectly been responsible for
the alteration in the nomination papers, since the
nomination papers when filed were in order and while they
were in the custody of the Returning Officer's
Establishment, interpolations had been made and on the basis
thereof the nomination papers had been rejected.
Allowing the appeal to this Court by the appellant,
^
HELD: 1. (i) When admittedly the nomination papers have
been handled by the staff in the establishment of the
Returning Officer and by the candidates and their agents
before scrutiny began, it is difficult to ascribe the
insertion of figure '1' to the Returning Officer. Therefore,
the conclusion of the High Court that the Returning Officer
either by himself or through somebody caused the
interpolation to be done is totally unwarranted even if this
Court accepts as a fact that the figure '1' appearing before
the rest of the number in the column for serial number in
the electoral roll was not there when the nomination papers
had been filed. Strictly speaking, the insertion in the
instant case is a forgery and amounts to a criminal etc. To
put that responsibility on the Returning Officer without
cogent evidence is highly improper. [597H; 598A; C-D]
593
1. (ii) From the evidence it is clear that the
nomination papers were taken up for scrutiny one after the
other and the Returning Officer has stated that he used to
pass orders either of acceptance or rejection of each of the
nomination papers after due scrutiny. That position has also
been accepted by witnesses on the sides of the election
petitioners. The evidence on the side of the election
petitioners does indicate that the nomination papers were
first shown to the candidates and their agents and scrutiny
followed thereafter. The Returning Officer had denied, as
already pointed out, that he had made an open declaration
that all the nomination papers were in order. Mani Ram
Chhapola has admitted in his deposition that by 2 P.M. on
the date of scrutiny the fact that his nomination paper had
been rejected on the ground indicated had been notified to
him by the Returning Officer. If the Returning Officer
wanted to play any mischief he could have avoided intimating
the fact of rejection or at any rate delayed the same. In
the absence of cogent evidence on the side of the election
petitioners and accepting the evidence of the Returning
Officer that he had scrutinised the nomination papers one
after the other and contemporaneously accepted or rejected
the same by providing grounds of rejection, there is no
doubt that contemporaneous order rejecting the nomination
papers had been made in the instant cases. [598 F-H; 599A]
2(i) Indisputably the insistence on disclosure of the
serial number in the prescribed column against the proposer
is for the purpose of identifying the proposer and
ascertaining that he is competent to propose. The scope of
scrutiny is obviously to verify the contents of the
nomination paper with a view to ascertaining whether the
form is in order and what is required to be complied with by
the election law has been duly complied with. This Court has
repeatedly held that election proceedings are strict in
nature and what is required to be performed in a particular
manner has to be done as required and substantial compliance
has ordinarily no place while dealing with the Act or the
Rules made thereunder. That is why an exception has been
made by inserting sub-s. (4) of s.36 of the Act. Therefore,
to cast the obligation of the Returning Officer to look
through the entire electoral roll of a particular part with
a view to finding out the identity of the proposer is not
the requirement of the law. To read that as an obligation is
likely to lead to a unworkable position. [601 C-F]
2(ii) The contents of the proviso to S.33 sub-s. (4)
and the provisions of sub-s. (4) of s. 36 of the Act when
read together make it clear that the mistake with reference
to the serial number was such an error in this case which
could be corrected. Under section 36(1) of the Act, on the
date fixed for scrutiny of nominations, election agents, one
proposer of each candidate and one another person duly
authorised in writing by each candidate are entitled to
appear before the Returning Officer, and such persons are
entitled to reasonable facilities for examining the
nomination papers The purpose of making such provision is to
facilitate scrutiny. The presence of candidate, his election
agent and another person acquainted with the Constituency
would certainly facilitate the process of scrutiny. Defects
covered by the proviso to s. 33(4) could easily be resolved
if people authorised under s. 36(1) of the Act are present
at the time of the scrutiny. [603 B-D]
594
2(iii) In the instant case, no one was available, for
instance, when the Returning Officer took up the nomination
paper of Mani Ram Chhapola, to indicate to the Returning
Officer that his serial number in the electoral roll was 26
and not 126. If this had been pointed out and on summary
enquiry Returning Officer was satisfied that it was a
mistake, clerical in nature, and the identity of Brij
Bhushan was not in dispute, there would have been end of the
matter. If the correlation has not been made and the
Returning Officer has no assistance to fix up the
identification it cannot be said to be a defect not of
substantial character. Moreover, it could not be statutory
obligation of the Returning Officer to scrutinise the
electoral roll for finding out the identity of the proposer
when the serial number turns out to be wrong. But if
interested and competent persons point out to the Returning
Officer that it is a mistake, it would certainly be his
obligation to look into the matter to find out whether the
mistake, is inconsequential and has, therefore, either to be
permitted to be corrected or to be overlooked. When scrutiny
was taken up Mani Ram Chhapola and Raj Tilak on their own
showing were not present before the Returning Officer.
Similarly, the proposers, Brij Bhushan and Upender Kumar
were also absent. Though there is evidence on the side of
the election petitioners that the Assistant Returning
Officer was present at the time of scrutiny, he as PW.4 has
categorically denied that fact. The Returning Officer, RW.3,
has stated that the Assistant Returning Officer was not
present when he took up scrutiny on the nomination papers.
There is also evidence from the side of the appellant that
the Assistant Returning Officer was not present. In the
circumstances, if the nomination papers have been rejected
for mistake in the nomination papers it is the candidates
themselves who have to thank their lot and no mistake can be
found with the Returning Officer. Therefore, the nomination
papers were validly rejected. Brij Mohan v. Sat Pal, C.A.
No. 2650/84 disposed of on 13.3.85 followed. [603 E-H; 599
B-D; 604 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4123 of
1984.
From the Judgment and Order dated 28.8.84 of the Punjab
and Haryana High Court in E.P. No. 1 of 1984.
H.L. Sibal, O.C. Mathur, S. Sukumaran and D.N. Misra
for the Appellant.
S.N. Kacker, Mahabir Singh, L.K. Pandey, N. S. Bishnoi,
P.K. Sandhir and D.K. Garg for the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal under Section 116A(1)
of the Representation of the People Act, 1951 (‘Act’ for
short) is directed against the judgment of the Punjab &
Haryana High Court
595
setting aside the election of the appellant to Fatehabad
Constituency of the Haryana Legislative Assembly. By
Notification dated November 23, 1983, the Constituency was
called upon to elect a member at the by-election. November
30, 1983, was appointed as the last date for receipt of
nomination papers. Scrutiny was scheduled for December 1,
1983. Poll was held on December 23, 1983 and appellant was
declared as the returned candidate by securing 1339 votes in
excess of votes polled by respondent 1 who had been fielded
as the common opposition candidate. On February 2, 1984, the
respondents filed an Election Petition asking the election
of the appellant to be set aside on the ground provided
under s.100(1)(c) of the Act by the pleading that the
nomination papers of two candidates being Mani Ram Chapola
and Raj Tilak had been improperly rejected by the Returning
Officer.
The appellant pleaded that the nomination papers were
defective and, therefore, liable to be rejected and the
Returning Officer had acted properly in rejecting them. It
was further pleaded that defective nomination papers had
been intentionally filed with a view to challenging the
election in case it went in favour of the appellant.
Both sides led oral evidence. On the side of the
election petitioners, the Assistant Returning Officer among
others was examined as PW.4 while for the returned candidate
(respondent before the High Court), the Returning Officer
was examined as R.W.3. The nomination papers as also the
orders of rejection were produced and duly exhibited. The
High Court came to hold that the nomination papers when
filed were in order and while they were in the custody of
the Returning Officer’s establishment, interpolations had
been made and on the basis thereof the nomination papers had
been rejected. Though the election petitioners failed to
establish their plea contained in paragraph 16 of the
election petition that the Returning Officer acted mala fide
at the behest of the Chief Minister of the State, the Court
took the view that the Returning Officer acted mala fide and
had either directly or indirectly been responsible for the
alteration in the nomination papers. Accordingly the
election has been set aside and the Returning Officer’s
conduct has been criticised and he has been directed by the
High Court to share the liability of half the costs of the
election petition. The Returning Officer had filed a
separate appeal which is being disposed of today by a
separate judgment.
There is no dispute before us that if the nominations
of the two candidates-Mani Ram Chapola and Raj Tilak are
found to
596
have been improperly rejected the election of the appellant
must be held to have been rightly set aside. That is the
effect of s.100(1) (c) of the Act. The only question
relevant for the disposal of this appeal is, therefore, to
examine and decide whether the High Court was right in its
conclusion that the two nomination papers had been
improperly rejected. The relevant nomination papers relating
to Mani Ram Chapola and Raj Tilak have been produced and
proved as Exhibits P-1 and P-6 respectively. The orders made
by the Returning Officers rejecting the two nomination
papers have also been produced and marked as Exhibits.
Similarly, the notice in statutory form 3A as required under
rule 7 of the Conduct of Election Rules, 1961, to be
published in the notice board of the Returning Officer has
been produced and exhibited.
The Returning officer’s order of rejection in respect
of both the nomination papers is almost in similar terms.
We, therefore, propose to extract one of them for
convenience. The order of rejection reads thus:
“S.No. of the vote of proposer does not tally with
S.No. mentioned in voter list. Hence rejected.”
The order is cryptic and there is force in the submission of
Mr. Kacker appearing for the respondents that the order has
to be interpreted; otherwise it makes no meaning. All
parties have agreed before us that the true import of the
order is that the serial number of the proposer disclosed in
the nomination paper did not tally with the serial number
given in the electoral roll. On that ground each of the
nomination papers has been rejected.
It is the case of the election petitioners and the High
Court has accepted that stand that the nomination papers
were received by the Assistant Returning Officer, PW.4, and
he caused the notice in form 3A to be prepared for being put
in the notice board. The proposer of Mani Ram Chapola was
one Brij Bhushan while the proposer of Raj Tilak was one
Upender Kumar. Brij Bhushan’s serial in the electoral roll
was 26 while Upender Kumar’s was 77. In form 3A these
numbers have been correctly indicated. But in the nomination
papers the number have been shown as 126 and 177
respectively. The discrepancy has arisen on account of the
appearance of the figure ‘1’ before the correct number in
the electoral roll. The Assistant Returning Officer P.W.4
has stated:
597
“I had received the nomination papers from the
candidates who wanted to contest election to the
Fatehabad constituency in the by-election between
26.11.1983 to 30.11.1983 in my capacity as Assistant
Returning Officer of that constituency. I have seen Ex
P.I 1, the nomination paper of Shri Mani Ram Chapola
and Ex.P6, the nomination paper of Shri Raj Tilak when
I received these two nomination papers. I had compared
the vote number of the candidate and the proposer with
the electoral roll of that constituency.”
The witness further said:
“The correct position of these nomination papers
which I found regarding the vote numbers of the
candidate and the proposer is reflected in notice in
form 3A,-the office copy of which is Ext. P-3 and the
original taken away from the notice board and produced
by the election petitioners has been marked as Ex.P-
10”.
In view of the statement by PW.4, the High Court was
right in its conclusion that the respective nomination
papers contained the correct serial numbers in the electoral
roll of the proposer in each of them. These nomination
papers were made over by the Assistant Returning Officer
between 9 and 9.30 A.M. to the Naib Tashsildar incharge of
elections on December 1,1983, under instructions from the
Returning Officer. December 1, 1983, was the date appointed
for scrutiny and as the evidence shows, the Assistant
Returning Officer was not available at the time of scrutiny
as deposed to by him as also by the Returning Officer. There
is no evidence that the nomination papers were handled by
the Naib Tahsildar, Elections, and the Kanungo, Elections,
as also other members of the staff at the time when form 3A
was typed out. Even when the work of scrutiny began the
nomination papers which were 45 in number were taken by the
candidates and their agents for inspection and for some time
they were handled by them. We have looked into the
nomination papers with great care but by merely looking at
them it is difficult to say at what point of time the figure
‘1’ has been inserted in the prescribed column against the
proposer’s serial number in both of them. When admittedly
the nomination papers have been handled by the staff in the
establishment of the Returning Officer and by the candidates
and
598
their agents before scrutiny began, it is difficult to
ascribe the insertion of figure ‘1’ to the Returning
Officer. We agree with the High Court that for the effective
functioning of democracy in a large polity as ours the
election process has got to be free from blemish and
officers in whom trust has been reposed to conduct the
electoral process in a fair and decent way cannot be
permitted to hobnob or interpolate with valuable documents
like nomination papers. At the same time it must be
remembered that the credibility of public officers assigned
the sacred trust should not be doubted on mere suspicion and
without acceptable evidence. The conclusion of the High
Court that the Returning Officer either by himself or
through somebody caused the interpolation to be done is
totally unwarranted even if we accept as a fact that the
figure ‘1’ appearing before the rest of the number of the
column for serial number in the electoral roll was not there
when the nomination papers had been filed. Strictly
speaking, the insertion in the instant case is a forgery and
amounts to a criminal act. To put that responsibility on the
Returning Officer without cogent evidence is highly improper
and the conclusion of the High Court does not commend itself
to us.
The election petitioners had pleaded that they were
present before the Returning Officer when the process of the
scrutiny started. They alleged that the Returning Officer
made an announcement that all the nomination papers were in
order and after hearing the same most of them and in
particular the two candidates whose nomination papers were
rejected went away. From the evidence it is clear that the
nomination papers were taken up for scrutiny one after the
other and the Returning Officer has stated that he used to
pass orders either of acceptance or rejection of each of the
nomination papers after due scrutiny. That position has also
been accepted by witnesses on the election petitioners. The
evidence on the side of the election petitioners does
indicate that the nomination papers were first shown to the
candidates and their agents and scrutiny followed
thereafter. The Returning Officer has denied, as already
pointed out, that he had made an open declaration that all
the nomination papers were in order. Mani Ram Chhapola has
admitted in his deposition that by 2 P.M. on the date of
scrutiny the fact that his nomination paper had been
rejected on the ground indicated has been notified to him by
the Returning Officer. If the Returning Officer wanted to
play any mischief he could have avoided intimating the fact
of rejection or at any rate delayed the same. In the absence
of cogent evidence on the side of the election petitions and
accepting the evidence of the
599
Returning Officer that he had scrutinised the nomination
papers one after the other and contemporaneously accepted or
rejected the same by providing grounds of rejection, we hold
that the orders of rejection nomination papers in the two
cases relevant for the appeal, contemporaneous ordered had
been made.
When scrutiny was taken up Mani Ram Chhapola and Raj
Tilak on their own showing were not present before the
Returning Officer. Similarly, the proposers, Brij Bhushan
and Upender Kumar were also absent. Though there is a
evidence on the side of the election petitioners that the
Assistant Returning Officer was present at the time of
scrutiny, he as P.W.4 has categorically denied that fact The
Returning Officer, RW.3 has stated that the Assistant
Returning Officer was not present when he took up scrutiny
of the nomination papers. There is also evidence from the
side of the appellant that the Assistant Returning Officer
was not present. We accept as a fact that the Assistant
Returning Officer was not present at the time of scrutiny.
There were 45 nomination papers to be scrutinised. It is the
evidence of the Returning Officer that he scrutinised all
the nomination papers one by one. PW.5 who is a practising
Advocate and was a proposer of one of the election
petitioners examined as PW.3 has stated:
“After the departure of some of the people, the
Returning Officer compared the entries in the
nomination papers one by one with the relevant
electoral rolls.”
In view of such evidence there was no justification to hold
otherwise.
The evidence of RW.4, the Returning Officer was placed
before us once by Mr. Sibal for the appellant and over again
by Mr. Kacker for the respondents. The Returning Officer has
deposed that he passed the orders of rejection of nomination
papers at the time of scrutiny and he rejected those
nomination papers as the serial number of the proposers as
disclosed in the nomination papers did not tally with
reference to the electoral roll.
In the two nomination papers the Returning Officer put
tick marks against the name of the candidate as also the
name of the proposer and specification of the part in the
electoral roll of the proposer. He has put cross marks as
against the serial number. RW.3, stated in Court: “At the
time of scrutiny I had the nomination papers before me. The
election staff, including Election Naib-
600
Teshsildar, Quanungo, etc. were helping me in tracing out
the relevant entries from other records, like electoral
rolls etc. When after location they used to put before me, I
used to tick-mark on the nomination papers. At the time of
scrutiny when I found the entries in the nomination papers
are correct, I used to tick-mark each entry. In those
nomination papers I found the entries not to be tallying
with the other records and on this basis I found those to be
incorrect, I used to put cross.” Coming to the specific
nomination papers, the witness stated: “I have seen
nomination paper Ex.P-1 of Shri Mani Ram Chhapola. In this
after reading the name of Brij Bhushan I tick-marked it
because that was held correct. I have crossed his vote
number because it was not found to tally with the electoral
roll.” The witness again said: “I had seen vote number 126
in the relevant voters list, which did not contain the name
of Brij Bhushan:” With reference to tick marks in Ext. P-1
which is the nomination paper of Mani Ram Chhapola, we find
that there has really been no tick mark against the name of
Brij Bhushan, the proposer. If the Returning Officer had
really put a tick mark against the name of Brij Bhushan
there should have been four tick marks with pencil. As a
fact there are only three tick marks. Mr. Kacker strongly
contended that in view of the statement of the witness he
had tick marked the name of Brij Bhushan we must not
entertain a different view by a look at the document. Having
seen the document with some amount of care and having looked
into other nomination papers for the pattern of tick marking
by the Returning Officer, we have no doubts in our mind that
the statement by the witness has been made out of confusion.
We cannot loss sight of the fact that the Returning Officer
had accusations to face and he was possibly puzzled and
bewildered when he was facing cross-examination. The tick
mark appearing above the name of Brij Bhushan related to the
candidate’s particulars. As we have just pointed out, if
Brij Bhushan’s name had been tick marked, one more tick mark
should inevitably be found in the document. Similar comments
are available with reference to the nomination paper of Raj
Tilak. The stand adopted by Mr. Kacker, learned counsel for
the election petitioners-respondents is that if Brij Bhushan
name had been tick-marked, even if the serial number was
wrong by the time the nomination paper came before the
Returning Officer, finding out the correct serial number was
not a problem and the Returning Officer who was being
assisted by other public officers would have easily found it
out. Connected with this stand and the submission, reliance
is placed on s.36(4) of the Act which provides
601
that the Returning Officer shall not reject any nomination
paper on the ground of any defect which is not of a
substantial character.
We have already come to the conclusion that the
Returning Officer had not ticked the names of Brij Bhushan
and Upender Kumar. Mr. Kacker not being satisfied with that
conclusion which we had indicated during hearing, relied
upon the position that the Returning Officer personally knew
both Brij Bhushan and Upender Kumar and there could be no
difficulty in the Returning Officer fixing them up properly
with reference to the electoral roll. This aspect requires
closer examination.
Indisputably the insistence on disclosure of the serial
number in the prescribed column against the proposer is for
the purpose of identifying the proposer and ascertaining
that he is competent to propose. The scope of scrutiny is
obviously to verify the contents of the nomination paper
with a view to ascertaining whether the form is in order and
what is required to be complied with by the election law has
been duly complied with. This Court has repeatedly held that
election proceedings are strict in nature and what is
required to be performed in a particular manner has to be
done as required and substantial compliance has ordinarily
no place while dealing with the Act or the Rules made
thereunder. That is why an exception has been made by
inserting sub-s.(4) of s.36 of the Act.
The Returning Officer made reference to the electoral
roll and did not find the name of the proposer against the
disclosed serial number in either case. The High Court has
taken the view that it was the obligation of the Returning
Officer to verify the electoral roll and find out the serial
number, the mistake, if any, was not of substantial
character so as to expose the nomination papers to rejection
and the rejection on such a ground was improper. To cast the
obligation on the Returning Officer to look through the
entire electoral roll of a particular part with a view to
finding out the identity of the proposer is not the
requirement of the law. To read that as an obligation is
likely to lead to a unworkable position. The prescribed form
of nomination (form 2-B) does not require to specify the
name of the father of the proposer. That actually does not
become necessary because once the name and the serial number
in the voters’ list are given, the cross-verification become
easy and the father’s name is available in the electoral
roll. In one part of the electoral roll on the average names
of about a thousand voters
602
appear. Out of one thousand name it is quite possible that
there would be more than one voter by the same names.
Identification of any particular voter out of such list even
when there are more voters with the same name is possible
only with further reference to the father’s name. To cast
the obligation of verifying the entire electoral roll of a
particular part is actually requiring the Returning Officer
to do almost an impossible fact. It may not be so if there
be a few candidates and it be a case of a by-election but
when general election takes place and every Returning
Officer is supposed to handle about seven or eight Assembly
Constituencies and there may be instances of even 300
candidate contesting from one seat as it happened in the
1985 elections in the Belgaum Constituency of Karantaka
State, the Returning Officer would find it physically
impossible to grapple with such a situation. The election
schedule is a very tight one. Under the law the day
following the last day fixed for receipt of nomination
papers is the date of scrutiny and soon thereafter follows
the date fixed for withdrawal. If nomination papers are not
scrutinised with due haste and promptness the election
schedule may not be operative in the strict manner and
dislocation are bound to follow.
It is not the submission of Mr. Kacker, and rightly so,
that even if the Returning Officer has not been in a
position to the proposer with reference to his serial number
in the electoral roll, he can accept the nomination paper to
be valid. If that to be so, it is the obligation of the
Returning Officer to comply with the requirements of the law
by satisfying himself that the name of the candidate has
been proposed by a voter entitled to propose. The proviso to
s.33, sub-s.(4), run thus:
“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
electoral 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 in such as to be commonly
understood and the returning officers all permit
603
any such misnomer or inaccurate description, clerical,
technical or printing error in the electoral roll or in
the nomination paper shall be overlooked.”
The contents of the aforesaid proviso and the provisions of
sub-s.(4) of s.36 when read together make it clear that the
mistake with reference to the serial number was such an
error in this case which could be corrected. Under section
36(1) of the Act, on the date fixed for scrutiny of
nominations election agents, one proposer of each candidate
and one other person dully authorised in writing by each
candidate are entitled to appear before the Returning
Officer, and such persons are entitled to reasonable
facilities for examining the nomination papers. The purpose
of making such provision is to facilitate scrutiny. The
presence of candidate, his election agent and another person
acquainted with the Constituency would certainly facilitate
the process of scrutiny. Defects covered by the proviso to
s.33(4) could easily be resolved if people authorised under
s. 36(1) of the Act are present at the time of the scrutiny.
What could be resolved or overlooked in case proper stops
were taken in due time has become a major issue leading to
rejection of nomination papers in the instant case mainly on
account of the absence of the candidate, their election
agents of persons interested in them at the time of
scrutiny. No one was available, for instance, when the
Returning Officer took up the nomination paper of Mani Ram
Chhapola, to indicate to the Returning Officer that his
serial number in the electoral roll was 26 and not 126. If
this had been pointed out and on summary enquiry the
Returning Officer was satisfied that it was a mistake,
clerical in natural, and the identity of Brij Bhushan was
not in dispute, there would have been end of the matter. If
the correlation has not been made and the Returning Officer
has no assistance to fix up the identification it cannot be
said to be a defect not of substantial character. We
reiterate that it could not be a statutory obligation of the
Returning Officer to scrutinise the electoral roll for
finding out the identity of the proposer when the serial
number turns out to be wrong. But if interested and
competent persons point out to the Returning Officer that it
is a mistake, it would certainly be his obligation to look
into the matter to find out whether the mistake is
inconsequential and has, therefore, either to be permitted
to be corrected or to be overlooked.
As a result of scrutiny nomination papers are either
accepted or rejected. Once a nomination paper is rejected,
the candidate
604
loses his opportunity to contest and is kept out from the
electoral fray. Every genuine candidate is expected to be
very much interested in ensuring clearance of his nomination
paper at the stage of scrutiny. It is indeed surprising that
before scrutiny was done and the nomination papers were
accepted by the Returning Officer, the two candidates and
people interested in them went away from the place of
scrutiny and did not remain available to the Returning
Officer. In the circumstances, if the nomination papers have
been rejected for mistakes in the nomination papers it is
the candidates themselves who have to thank their lot and no
mistake can be found with the Returning Officer. We may not
be understood to say that a mistake of the type if properly
clarified would not be unsubstantial in character. But if
the Returning Officer is not in a position to correlate and
identify the proposer, the mistake would indeed be not one
which can be covered by sub-s.(4) of s 36 of the Act. That
view has been taken recently by this Court in Brij Mohan v.
Sat Pal, to which two of us are parties. We endorse the
ratio of the decision and applying the same, we agree with
Mr. Sibal that the nomination papers were validly rejected
in this case. Mr. Sibal thereafter contended that Mani Ram
Chhapola and Raj Tilak had designedly entered wrong
references to the electoral roll in respect of their
proposers with a view to challenging the election of the
returned candidate if necessary. The evidence on record is
not impressive as apart from bare suggestions there is no
material worth the name to accept it as a fact. We are also
of the view that once we have reached the conclusion in the
manner indicated above, it is totally unnecessary to go into
such an aspect. On the analysis indicated, the view taken by
the High Court cannot be sustained. We allow the appeal,
vacate the judgment of the High Court and uphold the
election of the appellant as the returned candidate from the
Constituency in question. The appellant shall be entitled to
his costs before the High Court as also before this Court.
Hearing fee in this Court is assessed at. Rs. 3,000
M.L.A. Appeal allowed.
605