JUDGMENT
k. Sahai, J.
1. Two candidates, namely, Ramkishun Singh and Chetu Ram, were declared elected to the Bihar Legislative Assembly from the Warsaliganj double-member constituency in Nawada Sub-division of Gaya District. They have filed this appeal against the order of Mr. A. K. Saran, sole Member of the Election Tribunal, whereby he has declared their election to be void on the ground that the Returning Officer improperly rejected the nomination papers of Mohammad Manzoor Hassan and Kishun Ram who were candidates for the general and reserved seats, respectively.
2. The facts of the case are these. The constituency was called upon to elect two members to the Bihar Legislative Assembly by a notification dated 19-1-1957. The last date for filing nomination papers was 29-1-1957. The two appellants as well as Mohammad Manzoor Hassan, Kishun Ram and others filed nomination paper. On behalf of Kishun Ram. four nomination papers bearing numbers A/107 to A/109 and A147 were filed. Exhibits
1 and 1 (a) are the papers bearing Nos. A/107 A/108, respectively.
In both these papers, the proposer described the candidate’s name as ‘Kishun Ram’, and the candidate Himself also signed as ‘Kishun Ram’. In nomination paper bearing numbers A/109 and A/147, which do not appear to have been put in as ex-liibits, the proposer described the candidate’s name as ‘Kishun Ram Pasi’, and the candidate signed as ‘Kishun Ram’.
The Returning Officer rejected the papers bearing numbers A/107, A/108 and A/147 on the date fixed for scrutiny, i. e., 1-2-1957, the first two on the ground that Kishun Ram’s name did not find place in the electoral roll and a certified copy of any order showing that his name was on the electoral roll was also not produced and the third on the ground that the candidate’s father’s name had not been mentioned.
Consideration of the paper bearing number A/109 was postponed to the 2nd February when it was also rejected on the ground that the name ‘Kishun Ram Pasi’ as given by the proposer differed from the name ‘Kishun Ram’ as signed by the candidate himself. I have mentioned the grounds for rejection of papers bearing numbers A/147 and A/109 as I have gathered them from the Tribunal’s order. I have not been able to see the papers themselves as they are not exhibits in the case,
3. Mohammad Manzoor Hassan appears to have filed only one nomination paper (Exhibit 1 (b)) which the Returning Officer rejected on the 1st February on the ground that it was mandatory for the candidate to give the names of three symbols in the nomination paper in order of preference but he had given the name of only one symbol.
4. Mr. S. N. Prasad was the Sub-Divisional Officer of Nawada, and he was also appointed as Electoral Registration Officer and Returning Officer. Kishun Ram filed a petition (Exhibit 2) before Mr, Prasad on 28-1-1957, in which he stated that his name appeared by mistake in the electoral roll as ‘Rishun Ram’, and prayed that the entry should be corrected to read ‘Kishun Ram’, the other descriptions being perfectly correct. Acting as the Electoral Registration Officer, Mr. Prasad passed an order (Exhibit 2 (a)) on the same date saying “Cor-rect the entry as it is a clerical error”,
It is not now in dispute that the correction was not actually made before Kishun Ram’s nomination papers were rejected. The sudhi patra (exhibit 3), which is the same thing as exhibit C (1), shows that the entry of Kishun Ram’s name was amended in due course, and the sudhi patra was accordingly printed. The endorsement (exhibit C (4)) shows that 100 printed copies of the Sudhi Patra were re-CEIVED at Nawada on 19-2-1957.
5. In the electoral roll of Nawada Constituency, an elector’s name was entered against serial No. 71 as ‘Manzoor Hussain’ son of Akhtar Rahim. This entry appears to have been made on the baas of Mohammad Manzoor Hassan’s application dated 1-9-1956. On 28-1-1957, he filed a petition (exhibit D) before the Electoral Registration Officer for correction of the entry so as to read ‘Mohammad Manzoor Hasan’ son of ‘Mohammad Abdur Rahim’ as prayed for by him in his petition dated 1-9-1956, all other descriptions in the entry being correct.
By an order (exhibit D (1)) of the same date, the Electoral Registration Officer allowed the petition, and directed the correction to be made under Section 22 (1) of the Representation of the People Act, 1950 (to be referred to as the Act of 1950). The
entry was not, however, corrected because the office reported on the same date that the applicant had not specified what spelling mistake in the electoral roll had to be corrected. On the 31st January, Mohammad Manzoor Hassan filed another petition (exhibit A) before the Electoral Registration Officer.
In this petition, he gave full specification, and stated that his correct name was ‘Mohd. Manzoor Hassan’ and his father’s name was ‘Abdur Rahim’, and that his prayer in his petition dated the 28th January was for these names to be entered in place of the name of ‘Manzoor Hussain’ son of ‘Akhtar Rahim’ as printed incorrectly against serial No. 71 of Sudhi Patra No. 2 of the electoral roll. By an order of the same date, the Electoral Registration Officer allowed this petition.
6. Some common points arise for consideration in this appeal and in Election Appeal No. 3 of 1957 (Manzoor Ahmad v. Budhi Lal) in which Mr. A. N. Chakravarty has argued before us on behalf of the appellant. Judgment in that case is also being delivered today. It will be necessary for me to refer in this judgment to arguments advanced not only by Mr. P. R. Das on behalf of the appellants in this appeal but also, on some points, to arguments put forward by Mr. Chakravarty.
7. I propose first to consider the question of improper rejection of the nomination papers of Kishun Ram. The first point which has to be considered in this connection is whether the Electoral Registration Officer acted legally and within the ambit of his jurisdiction in allowing Kishun Ram’s petition dated 28-1-1957, and in directing correction of the entry relating to his name on the ground that it was a clerical error.
Mr. Das attempted, at first, to argue that the Electoral Registration Officer had no jurisdiction to direct any such correction after final publication of the electoral roll under Rule 23 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956 (which I will refer to as the Electoral Rules in the rest of this judgment). Sub-section (1) of Section 21 of the Act of 1950 provides for the final publication of the electoral roll for each constituency in accordance with the rules framed under that Act, and it may be mentioned that the Electoral Rules have been framed by the Central Government in exercise of the powers conferred upon it by Section 28 of the Act.
Sub-section (2) of Section 21 provides for periodical revision of the electoral roll, and Sub-section (3) lays down that, under the direction of the Election Commission, there may be a special revision at any time. Sections 22 and 23 of the same Act provide, respectively, for correction of entries in electoral, rolls and inclusion of names of electors when those names are omitted from the rolls in which they should have been entered. Rule 23 of the Electoral Rules provides for final publication of the roll of each constituency, and Rule 25 relates to final publication of the roll together with lists of amendments after annual revision. Rule 26 lays down the procedure for disposal of applications for inclusion of names under Section 23 of the Act of 1950.
A perusal of these provisions makes it quite clear that the stage of correction of entries under Section 22 and inclusion of names under Section 23 of the Act of 1950 comes after the final publication under Rules 23 and 25 of the Electoral Rules. When these provisions were pointed out to Mr. Das, he abandoned his- argument relating to want of jurisdiction in the Electoral Registration Officer.
8. The proviso to Rule 23 of the Electoral Rules gives power to the Electoral Registration Officer to (sic) at any time any clerical or printing error which he may discover in an electoral roll. The proviso to Sub-section (4) of Section 33 of the Representation of the People Act, 1951 (to be referred to as the Act of 1951 in the rest of the judgment) gives a similar power to the Returning Officer.
It lays down that the Returning Officer may permit any clerical or technical error in the nomination paper to he corrected, and that, where necessary, he may also direct that any clerical or printing en or in an electoral roll shall be overlooked. Subsection (1) of Section 22 of the Act of 1950 gives power to the Electoral Registration Officer to order correction of any entry if he is satisfied that it relates to the applicant and is erroneous or defective in any particular. It is perfectly clear that an error which the Electoral Registration Officer can amend under this section need not necessarily be a mere clerical or printing error.
9. Mr. Das has argued that the name ‘Bishun Ram Pasi’ as entered in the roll is a name which is capable of being home by any one belonging to the Pasi caste. He has submitted that this name cannot be held to have been entered on account of any clerical or printing error for the name ‘Kishun Ram’ or ‘Kishun Ram Pasi’. In other words, he has contended that this is a case of mistaken identity and not one of only an error.
The rolls are printed in Hindi. There is a very little difference between the letter ^c* and the
letter ^d* in Devanagri Script. ^fc* can easily [e. written or printed by mistake for ^fd*- Mr. Das
has admitted that there is no evidence in this case to show that there is any one bearing the name “Bishun Ram’ with the descriptions as given in the entry which Kishun Ram claims to relate to himself.
That entry stands against serial No. 1392 in village Sherpur Sarnbey, Tola Warsaliganj, Police Station Warsaliganj, and the father’s name which is claimed by Kishun Ram to be correct is “Rohan Ram’. The fact that he is a Pasi appears from his declaration in his nomination papers (exhibits 1 and 1 (a)). In these circumstances, there is no question of mistaken identity at all, and the Electoral Registration Officer was perfectly right in treating the error to be a clerical error and in directing its correction.
The Electoral Registration Officer could direct its correction under Section 22 (1) of the Act of 1950, even if the error was more serious than a clerical or printing error, if he was satisfied that the entry related to Kishun Ram, the applicant. It is obvious that he was so satisfied and, in fact, no one else appears to have come up to claim that the entry related to him. As I have indicated,” however, the error in this case was patently a clerical one, and the Electoral Registration Officer was not called upon to exercise bis power under Section 22 (1).
10. Mr. Das has next contended that the Returning Officer was, in any event, right in rejecting the nomination papers of Kishun Ram because he failed to produce, on the 1st February and also on the 2nd February, a certified copy of the order (exhibit 2 (a)) directing correction of his name in the relevant entry of the electoral roll. Taking advantage of the fact that nomination papers bearing Not-A/109 and A/147 have not been put in evidence in this case, he has urged that we must presume that paper No. A/109 was rejected on the 2nd February because Kishun Ram failed to produce
even on that date a certified copy of the order (exhibit 2 (a)) directing correction.
In my opinion, there is no substance at all in his contention. I have mentioned that it appears from the Tribunal’s order that nomination paper No. A/109 was rejected for a reason other than the failure of Kishun Ram to produce a certified copy of the order (exhibit 2 (a)); but I do not think that we can act upon this statement of fact because the nomination paper in question is not in evidence and hence we are not in a position to know why it was rejected.
Whatever may be the reason for rejection of nomination paper No. A/109 on the 2nd February, the question is whether the other three nomination papers were properly or improperly rejected on the 1st February. It is unnecessary to consider nomination paper No. A/147 because, as I have already said, that paper is also not in evidence. Mr. Das has contended that, even if one of the nomination papers is held to have been properly rejected, the election cannot be held to be void even though the other papers were improperly rejected. This argument is manifestly erroneous.
There can be no doubt that, if one nomination paper is properly accepted, the improper rejection of other nomination papers will be immaterial because the candidate will have to be held to be validly nominated within the meaning of Sub-section (3) of Section 36 of the Act of 1951. But the converse is not true. If all the nomination papers of a candidate are rejected with the result tliat he is prevented from contesting the election, the mere fact that a few of those papers were rightly rejected can be of no avail. Even if it is shown that all except one of those papers were rightly rejected and only one was improperly rejected, there will be no option but to declare the election to be void under Section 100 (1) (c) of the Act of 1951.
11. I have already mentioned the grounds given by the Returning Officer for rejecting the nomination papers (exhibits 1 and 1 (a)). It is obvious that objection was taken to the acceptance of those papers either by the Returning Officer himself or by or on behalf of any of the other candidates, and, upholding the objection, he has used it as a ground for rejection. Under Sub-section (2) of Section 36 of the Act of 1951, the Returning Officer has power to hold a summary enquiry before rejecting any nomination on the basis of any objection or on his own motion. Under the proviso to Sub-section (5) of the same section, he may allow time to the candidate concerned to rebut the objection by a day “not later than the next day but one following the date fixed for scrutiny”.
A candidate cannot possibly be expected to be ready to meet whatever objections may be raised to his nomination papers. In this particular case, Kishun Ram knew that the order for correction of the relevant entry was passed by the same officer (Mr. S. N. Prasad) on the 28th January. He could not expect that an objection would be entertained by that very officer that his name did not find place in the electoral roll. It was, therefore, not possible for him to be ready to rebut the objection which was raised.
The Returning Officer must exercise the discretion vested in him in a proper manner so that no one is prejudiced by his order. He cannot act arbitrarily. Unless a nomination paper is invalid on the face of it and no rebuttal of the objection can be reasonably expected, he ought to give time to rebut it. It is clear that, in the facts and circumstances of this case, the Returning Officer should
have decided in favour of holding a summary enquiry and giving time to Kishun Ram to rebut the objection. He did not do so.
It was not possible for Kishun Ram to produce a certified copy of the order (exhibit 2 (a)) just then, and the Returning Officer was, therefore, wrong in rejecting his nomination papers immediately on the ground that he did not produce it. Exhibit 1 is a certified copy of the application (exhibit 2) and the order (exhibit 2 (a)). It shows that urgent copy was applied for on the 1st February, and that the copy, having been made ready, was delivered on the same date. As it was filed before the Election Tribunal by Kishun Ram, there can be no doubt that Kishun Ram had it in his possession sometime on the 1st February, and could have produced it before the Returning Officer even if time had been allowed to him until the next day, i. e., the 2nd February.
12. Mr. Das has contended that the Tribunal could not take fresh materials but was bound to decide on the materials which were before the Re-turning Officer as to whether the nomination papers had been properly or improperly rejected. In support of this contention, he has submitted that the Tribunal is a creature of statute, and that its powers are limited to those which have been conferred upon it expressly or by implication by the enactment which has created it.
He has relied upon Ashubury Rly. Carriage and Iron Co. v. Riche, (1875) 7 HL 653, which has been followed in Grey v. Chamsila Dasi, ILR 39 Cal 53. It is unnecessary to consider these cases because, in my opinion, the question as to the limits of the Tribunal’s powers does not arise for determination in this case.
13. The decision of a Bench of this Court in Parmeshwar Kumar v. Lahtan Chaudhary, 1958 Pat LR 171: (AIR 1959 Pat 85), in which my learned brother delivered the judgment, Sinha J., concurring, is a complete answer to the argument of Mr. Das that the Tribunal could not arrive at its decision on materials which were not before the Returning Officer. In that case, my learned brother Untwalia J., has observed:
“The Returning Officer is not a court has been held in the case of Virindar Kumar Satyawadi v. The State of Punjab, (S) AIR 1956 SC 153 …..
The enquiry before him is a summary enquiry. The provisions of the statute beginning from Section 80 to Section 122 would show that the Election Tribunal acts as a Court in the matter of hearing election petitions and it is meant to give scope of a fuller enquiry with regard to the various matters for declaring any election void.
Objections before the Returning Officer need not be in writing, nor is it incumbent upon the Returning Officer to hold the enquiry in any prescribed manner, nor is he under any obligation to reduce to writing the statements made before him by the persons present before him. He may make the enquiry as he thinks fit, may not note down the names of all the persons from whom he makes the enquiry and may not discuss in detail the materials upon which he bases his decision of the enquiry.
In that view of the matter it is difficult to accept the proposition that the powers of the Tribunal are restricted to see as to whether the nomination papers had been properly rejected by the Returning Officer on the materials available before him. ….. But the materials before the Returning
Officer are not available before the Tribunal. The entire oral evidence taken by the Tribunal would of course be fresh material before it and if the con-
tention raised by Mr. Singh were to be accepted, the entire oral evidence has got to be rejected and one will be driven to an absurd position.”
14. Mr. Das has, however, urged that the above observations are obiter because that case could be disposed of on the basis of the conclusion that the proper thing for the Returning Officer to do was to adjourn the hearing of the objections raised against the petitioner’s nomination papers to the effect that they did not bear the genuine signatures of the proposers of the candidate.
I am unable to accept this argument because Untwalia J., has proceeded to make the observations quoted above after stating that it had not been urged before him that it was obligatory for the Returning Officer to adjourn the enquiry and hence the rejection could not be said, on that basis, to be without jurisdiction.
15. Mr. Das has also contended that the principle laid down in Parmeshwar’s case, 1958 Pat LR 171: (AIR 1959 Pat 85), is incorrect because it runs counter to the decision in Durga Shanker Mehta v. Raghuraj Singh, 1955-1 SCR 267: (AIR .1954 SC 520). The constituency in question in that case was a double-member constituency of Madhya Pradesh Legislative Assembly, one seat being reserved for scheduled tribes and another being general. The appellant was declared to have been elected to the general seat and Vasant Rao, respondent No. 2, to the reserved seat.
The Tribunal had declared the election to be wholly void on the ground that Vasant Rao was under the age of 25 years at all material times, and was, therefore, disqualified for election under Article 173 (b) of the Constitution. It may be mentioned that no objection had been taken before the Returning Officer relating to this disqualification of Vasant Rao. Mukherjee J., (as he then was), who delivered the judgment of the Court, has observed:
“In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly.
As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which Section 100 (1) (c) of the Act contemplates”.
16. Their Lordships accepted the contention that the case was not one of improper acceptance of nomination paper under Sub-section (1) (c) of Section 10C but was one of constitutional disqualification of the candidate as contemplated by Sub-section (2) (c) of Section 100 It may be mentioned here that their Lordships were then dealing with the Act of 1951 as it stood before it was amended by the Representation of the People (Second Amendment) Act (XXVII of 1956).
17. Mr. Das has submitted that the observations which I have quoted above show that the ques tion of proper or improper acceptance or rejection of a nomination paper is to be determined from the point of view of the Returning Officer and or the materials which were before him. I do not think that their Lordships cart be said to have laid down such a proposition even by implication. If no ob-jection is taken to a nomination paper before a Re-turning Officer, it cannot be said that its acceptance
by him is improper unless there is anything on the the face of the nomination paper to show that there is any fatal defect in it.
In the present case, however, I am not dealing with a situation of that kind. The Returning Officer has, in this case, rejected nomination papers and has not accepted them. Durga Shanker Mehta’s case, 1955-1 SCR 267: (AIR 1954 SC 520), was distinguished in this court in Parmeshwar’s case, 1958 Pat LR 171: (AIR 1959 Pat 85), and, in the case of Raja Nainar v. Velusami Thevar, AIR 1958 Mad 198, a Bench of the Madras High Court has held that that case cannot be understood to be a conclusive pronouncement on the question of scope of the trial before an Election Tribunal.
In this connection, their Lordships of the Madras High Court have referred to Vashisht Narain Sharma v. Devchandra, 1955-1 SCR 509: (AIR 1954 SC 513), and have stated that the question was left open in that case. Their Lordships have come to the following conclusion:
“We are clearly of opinion that the enquiry before the Tribunal must be restricted to the objections which the Returning Officer had to consider and decide but not necessarily to the material placed before the Returning Officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material even if that material be other than that placed before the Returning Offi-cer”.
These observations fully support the view taken in Parmeshwar’s case, 1958 Pat LR 171: (AIR 1959 Pat 85). In these circumstances, I am unable to agree with the argument of Mr. Das.
18. There is also one other reason which leads to the conclusion that the nomination papers- (exhibits 1 and 1 (a)) were improperly rejected, I have mentioned that Kishun Ram is a Pasi, and I have already held that the name ‘Bishun Ram Pasi’ was entered in the electoral roll by reason of a clerical mistake for ‘Kishun Ram’. Under the proviso to Sub-section (4) of Section 33 of the Act of 1951, therefore, Mr. S. N. Prasad, acting then as Returning Officer, should have directed the mistake to be corrected or overlooked.
In these circumstances, I have come to the conclusion that the Tribunal has rightly held that the Returning Officer improperly rejected the two nomination papers (exhibits 1 and 1 (a)).
19. The question which has now to be considered is whether the Tribunal’s finding that the Returning Officer improperly rejected the nomination paper (exhibit 1 (b)) of Mohammad Manzoor Hassan is correct. Mr. Das has submitted that the slight discrepancy in the omission of ‘Mohammad’ from the name in the electoral roll as it stood before it was corrected at the instance of Mohammad Manzoor Hassan and the slight difference between the name ‘Hussain’ as it stood previously and the name ‘Hassan” as given by the candidate can be ignored as clerical or printing errors but there is a great difference between ‘Akhtar Rahim’ and ‘Abdur Rahim’.
He has argued that ‘Akhtar Rahim’ can well be the name of a Muhammadan, and hence it is a case of mistaken identity, and it cannot be said that ‘Akhtar Rahim’ was printed by mistake for ‘Abdur Rahim’. He has not been able to point out anything in the evidence on the record to show that there is a man named Akhtar Rahim in village Nawada, headquarters of Nawada Sub-Division of Gaya District (where Mohammad Manzoor Hassan resides), and that a man of that name has a son named ‘Manzoor Hussain’ or ‘Mohammad Manzoor Hassan’.
The sudhi patra which was printed after correction at the instance of Mohammad Manzoor Hassan and was received at Nawada on the 19th February, 1957, shows the name of Mohammad Manzoor Hassan against serial No. 71, his father’s name being Abdur Rahim and his residence being at village Nawada. In these circumstances, there is no reason why the Electoral Registration Officer should not have felt satisfied that entry No. 71 related to Mohammad Manzoor Hassan who was the applicant before him.
It cannot be said that the man whose name was entered as elector against serial No. 71 before correction was ordered by the Electoral Registration Officer was a man different from Mohammad Manzoor Hassan. Section 22 (1) of the Act of 1950 clearly gives the power to an Electoral Registration Officer to amend an entry in certain circumstances, and I am satisfied that he rightly exercised that power in this case.
Admittedly, the fact that Mohammad Manzoor Hassan is registered as an elector in Nawada Constituency and he filed his nomination paper in War-saliganj Constituency is immaterial because an elector of one constituency can stand as a candidate for election from a different constituency in the same State under Section 5(c) of the Act of 1951.
20. In Election Appeal No. 3 of 1957 (Manzoor Ahmad v. Budhi Lal), the Electoral Registration Officer, acting under Section 22 of the Act of 1950, directed the inclusion of a person’s name in the electoral roll. Sudhi Patra was printed but was not actually stitched to or pasted in the finally published electoral roll.
Mr. Chakravarty has pointed out that, under Article 325 of the Constitution and several other provisions, there must be one electoral roll for each constituency, and has contended that, unless a correction ordered under Section 22 or an inclusion of name ordered under Section 23 of the Act of 1950 is actually made in the roll, or, in other words, is integrated with it, the correction or inclusion cannot be said to be part of the roll.
His argument is that the sudhi patra, containing the correction or inclusion of the name, can only be deemed to form a different electoral roll so long as it is not integrated with the roll maintained for the constituency, and that the sudhi patra in such a situation must be ignored because there cannot be two or more electoral rolls. In my opinion, this argument is completely unfounded,
It is perfectly true that there must be one electoral roll for each constituency; but I do not agree that a correction or inclusion of name directed by the proper authority must be ignored until it is actually made or integrated with the original electoral roll. Once the Electoral Registration Officer has passed an order under Section 22 or 23 of the Act of 1950, the elector whom it concerns immediately gets the right to exercise his franchise.
The mere fact that assistants or daftaries, i.e., the office staff of the Electoral Registration Officer, do not carry out the officer’s order immediately or in time cannot deprive him of that right. Mr. Das has not supported Mr. Chakarvarty’s argument and, in fact, he has submitted that the maxim “Equity looks on that as done which ought to be done” can properly be applied to decide the question as to when the officer’s order would be effective.
The maxim is well illustrated in cases of conversion. If a Court orders the sale of realty belonging to A, and A dies before such sale, the property is deemed to be personalty and not realty for the
purposes of devolution to the next of kin — vide Hyett v. Mekin, (1884) 25 Ch D 735 and Fauntleroy v. Beebe, (1911) 2 Ch 257. I need not cite other cases. The submission of Mr. Das appears to me to be perfectly correct.
21. Mr. Chakarvarty has not been able to point out any provision of law or any precedent in support of his contention that the Electoral Registration Officer’s order under Sections 22 and 23 cannot become effective until it is actually carried out and correction or inclusion of name made in the electoral roll. In my opinion, the order becomes fully effective immediately after it is passed. Mr. Chakarvarty’s contention must, therefore, fail.
22. Just as Mohammad Manzoor Hassan gave the name of only one symbol in his nomination, paper, one Lakshmi Narayan Singh, who was one of the candidates in Election Appeal No. 3 of 1957, gave only one symbol. Mr. Chakarvarty has put forward the argument that a candidate for election to the Legislative Assembly is bound to fill up his nomination paper in form 2B which is one of the forma attached to the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956 (hereinafter to be referred to as the Election Petitions Rules) framed by the Central Government in exercise of powers conferred upon it by Section 169 of the Act of 1951.
He has pointed out that the column which is meant to be filled by the candidate contains three numbers under (b) which requires symbols to be mentioned in order of preference. He has argued that unless a candidate gives names of all the three Symbols, he does not comply with Sub-section (1) of Section 33 of the Act of 1951 nor with Rule 4 of the Election Petitions Rules. Section 33 (1) provides that a nomination paper is to be completed in the prescribed form, and Rule 4 lays down that every nomination paper shall be completed in the form which is appropriate.
Sub-rule (2) of Rule 5 provides that every nomination paper presented under Sub-section (1) of Section 33 of the Act of 1951 shall contain three symbols in order of. preference. The second proviso to this sub-rule, however, runs :
“Provided further that any non-compliance with the provisions of this sub-rule shall not be deemed’ to be a defect of a substantial character within the meaning of Sub-section (4) of Section 36.”
That sub-section reads :
“(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character”.
23. Mr. Chakarvarty has argued that the second proviso to Sub-rule (2) of Rule 5 conflicts with Section 33(1) of the Act of 1951 read with Rule 4, and hence the provisions of Section 33 must prevail. In my opinion, there is no conflict at all between the second proviso to Rule 5 and Section 33(1) or Rule 4. There is nothing in the entire Act of 1951 to show the nature and importance of any defect or irregularity in complying with the provisions of Section 33, (1) and Rule 4.
Sub-rule (2) of Rule 5 deals with only one column of the nomination paper, and says that the candidate must give three symbols in order of preference. The provision definitely requiring the mention of three symbols in order of preference is, therefore, to be found in Sub-rule (2) of Rule 5 and not in Section 33 U) or in Rule 4. The second proviso to Sub-rule (2) of Rule 5 does not say that non-compliance with that sub-rule would not amount to a defect or irregularity. All that it lays down is that it will not be a defect of a substantial character within the meaning of Sub-section (4) of Section 36.
As there is no provision anywhere else that the defect would be one of a substantial character within the meaning of that sub-section, there is no case of conflict whatsoever. Quite clearly, the second proviso to Sub-rule (2) of Rule 5 must be given full effect to. I may add that Mr. Das has not supported Mr. Chakarvarty even on this point.
24. It is abundantly clear that the Returning
Officer’s decision that omission to supply the names of two out of three required symbols amounted to a defect of a substantial character is erroneous, I, therefore, hold that the Tribunal has rightly come to the conclusion that the Returning Officer improperly rejected the nomination paper of Moham-
mad Manzoor Hassan.
25. For the reasons given above, I do not see any merit in this appeal. It is, therefore, dismissed with costs. The hearing fee is assessed to Rs. 250/-.
N.L. Untwalia, J.
26. I entirely agree.
