{"id":236209,"date":"1993-07-16T00:00:00","date_gmt":"1993-07-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kaka-joginder-singh-dharti-pakad-vs-k-r-narayanan-vice-president-of-on-16-july-1993"},"modified":"2015-11-18T12:42:33","modified_gmt":"2015-11-18T07:12:33","slug":"kaka-joginder-singh-dharti-pakad-vs-k-r-narayanan-vice-president-of-on-16-july-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kaka-joginder-singh-dharti-pakad-vs-k-r-narayanan-vice-president-of-on-16-july-1993","title":{"rendered":"Kaka Joginder Singh @ Dharti Pakad vs K.R. Narayanan Vice-President Of … on 16 July, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kaka Joginder Singh @ Dharti Pakad vs K.R. Narayanan Vice-President Of … on 16 July, 1993<\/div>\n
Bench: J.S. Verma, K.J. Reddy, Y. Dayal, G.N. Ray, S.P. Bharucha<\/div>\n
           CASE NO.:\nElection Petition  3 of 1992\n\nPETITIONER:\nKAKA JOGINDER SINGH @ DHARTI PAKAD \n\nRESPONDENT:\nK.R. NARAYANAN  VICE-PRESIDENT OF INDIA\n\nDATE OF JUDGMENT: 16\/07\/1993\n\nBENCH:\nJ.S. VERMA & K.J. REDDY & Y. DAYAL & G.N. RAY & S.P. BHARUCHA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1993(1) Suppl.SCR 245 = 1993 (3)Suppl.SCC  607 = 1993( 4 )  JT  163 =
\n1993(3)  SCALE 85<\/p>\n
The Judgment was delivered by VERMA, J.\n<\/p>\n
VERMA, J. –\n<\/p>\n
This election petition calls in question the election of Shri K. R.
\nNarayanan as the Vice-President of India. A notification dated July 17,
\n1992 was issued by the Returning Officer for the election of the Vice-
\nPresident of India, specifying July 31, 1992 as the last date for filing
\nthe nominations. Petitioner Kaka Joginder Singh alias Dharti Pakad and
\nscrutiny held on August 1, 1992, the nomination papers of both of them,
\nwere found to be valid by the Returning Officer. Petitioner raised
\nobjection to the validity of the nomination papers filed by the respondent.
\nAt the time of scrutiny, but the objections were rejected. These two
\npersons alone were declared to be validly nominated candidates; and the
\npolling was held on August 19, 1992, as a result of which the respondent,
\nShri K. R. Narayanan, was declared duly elected as the Vice-President of
\nIndia. On September 17, 1992, this election petition was filed challenging
\nthe election<\/p>\n
2. The election of the returned candidate is challenged by the petitioner
\non two grounds, namely, (i) wrong acceptance of the nomination of the
\nreturned candidate, a ground under Section 18 (1) (c) of the Presidential
\nand Vice-Presidential Elections Act, 1952 (called ‘the Act’); and (ii)
\ncommission of the offence of undue influence at the election, a ground
\nunder Section 18 (1) (a) of the Act, by issuance of a whip by the Congress\n<\/p>\n
(i) Party to vote for the respondent at the election. The material part of
\nSection 18, for the purpose of the present election petition, is under<\/p>\n
“18. (1) If the Supreme Court is of opinion, –\n<\/p>\n
(a) that the offence of bribery or undue influence at the election has been
\ncommitted by the returned candidate or by any person with the consent of
\nthe returned candidate; or<\/p>\n
(b) * * *(c) that the nomination of any candidate has been wrongly rejected
\nor the nomination of the successful candidate has been wrongly accepted;\n<\/p>\n
the Supreme Court shall declare the election of the returned candidate to
\nbe void<\/p>\n
(2) For the purposes of this section, the offences of bribery and undue
\ninfluence at an election have the same meaning as in chapter IX-A of the
\nIndian Penal Code.”\n<\/p>\n
3. The facts relevant for the aforesaid two grounds on which the election
\npetition has been filed are now stated. The competence of the petitioner to
\nfile this election petition as a candidate is not in dispute. The only
\nquestion is : Whether both or any of the grounds on which the election
\npetition has been filed have been made out?\n<\/p>\n
4. To support the ground in Section 18 (1) (c) of wrong acceptance of the
\nnomination of the returned candidate – The respondent, the petitioner
\nalleges that there was substantial defect in all the nomination papers of
\nthe returned candidate which required their rejection in accordance with
\nSection 5-E (3) (e) of the Act by the Returning Officer, at the time of
\nscrutiny. It is alleged that there was a failure to comply with the
\nrequirement of sub-sections (1) and (2) of Section 5-B, in as much as the
\nnomination papers of the returned candidate were not completed in the
\nprescribed form, and no nomination paper was accompanied by ‘a certified
\ncopy of the entry relating to the candidate in the electoral roll for the
\nparliamentary constituency in which the candidate is registered as an
\nelector’. These provisions have to be read along with Rule 4 of the
\nPresidential and Vice-Presidential Elections Rules, 1974 (called ‘the
\nRules’) and Form 3 therein which prescribes the form of the nomination
\npaper for election to the office of the Vice-President of India. Form 3
\nrequires mention of the name of the parliamentary constituency in the
\nelectoral roll for which the candidate is registered as an elector. In the
\nnomination papers of the respondent, the name of the parliamentary
\nconstituency in the electoral roll for which the returned candidate is
\nshown to be registered as an elector is mentioned as ‘Ottapalam (SC)’. To
\neach of the nomination papers, to satisfy the requirement of sub-section
\n(2) of Section 5-B, a certificate is attached, as under<\/p>\n
“CERTIFICATE<\/p>\n
Certified that the name of Shri K. R. Narayanan, Kocheril House, Ward No.
\nVIII of Uzhavoor Panchayat, Meenachil Taluk, Kottayam District, Kerala
\nState is included in the voters list 1989 of 94 Palai Assembly
\nConstituency, Part No. 101. The true extract of which is reproduced below<\/p>\n
Sl. No. House No. House Name Name of voter<\/p>\n
192 61 (Kocheril) K. R. Narayanan<\/p>\n
Name of the Guardian Sex Age as on 1-1-1989<\/p>\n
Raman Male 68<\/p>\n
The age of Shri K. R. Narayanan as on January 1, 1992 is 71<\/p>\n
(Seventy-one). Certified further that voters list 1989 of which<\/p>\n
extract has been quoted above is the latest and the current list<\/p>\n
Taluk Office<\/p>\n
Meenachil<\/p>\n
Dated : 29-7-1992<\/p>\n
sd\/-\n<\/p>\n
Electoral Registration<\/p>\n
Officer and Tahsildar<\/p>\n
Meenachil.”\n<\/p>\n
5. The petitioner’s contention is, that the above certificate annexed to
\neach nomination paper of the returned candidate does not satisfy the
\nrequirement of sub-section (2) of section 5-B, in as much as it is not ‘a
\ncertified copy of the entry relating to the electoral roll’; and this
\ncertificate shows that the returned candidate was registered as an
\nelectoral in the electoral roll of ’94 Palai Assembly Constituency’ which
\nis not in ‘Ottapalam (SC)’ parliamentary constituency mentioned in the
\nnomination paper but in ‘Muvattupuzha’ parliamentary constituency. The
\npetitioner further contends that the certificate shows the ‘Name of the
\nFather\/Mother\/Guardian\/Husband’. These defects, according to the
\npetitioner, rendered invalid all the nomination papers filed for the
\ncandidature of the respondent, and, therefore, liable to rejection<\/p>\n
6. The other ground taken in the election petition to challenge the
\nelection, us of ‘undue influence’ under Section 18 (1) (a) of the Act. In
\nview of a strong objection on behalf of the returned candidate that there
\nare no requisite pleadings in the election petition to constitute the
\nground under Section 18 (1) (a), it would be appropriate to quote the
\nentire pleadings relating to this ground, on which the petitioner has
\nrelied for this purpose. The only pleading in the election petition
\nrelating to the ground in Section 18 (1) (a) of the Act is in paras 10, 11
\nand grounds (I) and (III) in para 14 thereof, which are as under<\/p>\n
“10. That the Returning Officer unconstitutionally, illegally accepted the
\nnomination papers of respondent under pressure or undue hope of profit in
\nfuture, without passing any order on the written objections<\/p>\n
11. That the ruling party in power, competent to change the future issued
\nthe whip in favour of returned candidate, the respondent affecting the
\nelection is violative of the provisions of the Constitution. A copy of whip
\nis attached and marked as Annexure ‘D’<\/p>\n
14. That the petitioner is approaching this Hon’ble Court on the following
\namongst other<\/p>\n
Grounds<\/p>\n
I. That the whip Annexure ‘D’ is violative of Article 66 of the
\nConstitution of India in view of Anti-Defection Act as the proposers of 5
\nMPs of BJP were facing disciplinary action during the period of Election
\nhence all the political parties and their leaders made a mockery of the
\nElection of the Vice-President of India by proposing the returned candidate
\nShri K. R. Narayanan as a representative of Scheduled Caste candidate which
\nis against the preamble of the Constitution of India hence it is violative
\nof Articles 14, 21 and 38 of the Constitution of India<\/p>\n
III. That all sorts of undue influences by way of whip by the ruling party
\nand opposition parties have been used which amounts to corrupt practices in
\nthe Election as the 80 proposers violates Article 66 of the Constitution of
\nIndia in view of Anti-Defection Act.”\n<\/p>\n
7. In reply, it was contended by Shri Soli J. Sorabjee, learned counsel for
\nthe returned candidate that no triable issue relating to the ground of
\ncommission of the offence of undue influence contained in Section 18 (1)\n<\/p>\n
(a) of the Act arises in the absence of the requisite pleadings for that
\npurpose; and the ground contained in Section 18 (1) (c) is not made out
\nsince the defect, if any, in the nomination papers of the returned
\ncandidate is not of a substantial character. On this basis it was
\ncontended, that the Returning Officer could not reject the nomination
\npapers, as clearly provided in sub-section (5) of section 5-E of the Act.
\nShri Sorabjee also submitted that the objection now taken in the election
\npetition for raising the ground under Section 18 (1) (c) of the Act was not
\neven raised before the Returning Officer at the time of scrutiny, the
\nobjection taken then being merely of misdescription of the proposers and
\nseconders, and not submitted that the ground raised now is a clear after
\nthought and of no consequence since there was never any ambiguity in the
\nidentity of the returned candidate from his description given in the
\nnomination papers, the only object of the particulars required in the
\nnomination paper being to clearly identify the candidate and to determine
\nhis eligibility for the election. It was also submitted that such an
\nobjection, if raised, at the time of scrutiny would have enabled correction
\nof the technical defect in the nomination papers of the returned candidate
\ncan, at the most, be only a misdescription of the candidate whose identity
\nwas clear and unambiguous and, therefore, the defect, if any, is not of a
\nsubstantial character to permit rejection of the nomination papers on that
\nground. The learned Attorney General supported the submissions of Shri
\nSorabjee<\/p>\n
8. It was common ground before us that no evidence was required to be
\nadduced in the election petition which could be decided on admitted facts
\nand the documents produced by the parties, the contents of which were
\nadmitted. The arguments of both sides were, therefore, heard on that basis<\/p>\n
9. The ground of ‘undue influence’ contained in Section 18 (1) (a) of the
\nAct is taken up first for consideration. As the above quoted provision
\nclearly shows, to constitute the ground, the essential ingredients are :
\n(1) commission of the offence of undue influence at the election; and (2)
\nits commission by the returned candidate or by any person with the consent
\nof the returned candidate. Thus, the offence of undue influence at the
\nelection, as defined in Section 171-C contained in Chapter IX-A of the
\nIndian Penal Code, must have been committed; and that offence must have
\nbeen committed either by the returned candidate himself or by any person
\nwith the consent of the returned candidate. Unless both these ingredients
\nto constitute the ground under Section 18 (1) (a) are pleaded and proved,
\nthis ground for declaring the election to be void cannot be made out. The
\nentire pleading relating to this ground in the election petition has been
\nquoted above. A bare perusal of the same is sufficient to indicate that at
\nleast one of the two essential ingredients of the ground is not even
\npleaded in the election petition<\/p>\n
10. There is no averment anywhere in the election petition that the offence
\nof undue influence alleged to have been committed by issuance of the whip
\nby the Congress (I) Party was committed either by the candidate himself or
\nby any person with the consent of the returned candidate. There is not even
\na whisper or casual assertion that the returned candidate was in any manner
\nassociated with, involved or instrumental in issuance of the whip by the
\nCongress (I) Party or any other political party to its members, at the
\nelection. The letter dated August 14, 1992 (Annexure-D to the election
\npetition) issued by the Chief Whip of the Congress (I) Party also nowhere
\nmentions any role of the returned candidate K. R. Narayanan as ‘a consensus
\ncandidate’, obviously meaning that he was the candidate chosen by consensus
\nof several political parties. It may also be mentioned that the respondent
\nin his counter-affidavit has even without any such pleading in the election
\npetition, expressly denied that he had any role in the issuance of the whip
\nby the Congress (I) Party to its members. There is no rejoinder to this
\ndenial. It is significant that no other candidate had been set up by any
\npolitical party and the respondent had the support of all the political
\nparties, being the candidate chosen by consensus of the political parties.
\nThe petitioner, who was the only other candidate, obtained only one vote,
\nas stated by him at the hearing<\/p>\n
11. The question whether even in such a situation the issuance of a whip by
\na political party can amount to undue influence does not arise for decision
\nin the present case, on account of the absence of requisite pleadings to
\nraise a triable issue on the point<\/p>\n
12. It is sufficient to refer to a recent Constitution Bench decision of
\nthis Court in Mithilesh Kumar v. Shri R. Venkataraman<\/a> to indicate that such
\ndeficiency in pleadings in the election petition is fatal; and the ground
\ncontained in Section 18 (I) (a) of the Act does not arise for consideration
\non merits, in such a situation. In a similar situation where the ground of
\nundue influence contained in Section 18 (1) (a) of Act was raised by reason
\nof the fact that a whip had been issued by the Congress (I) Party, but
\nthere was no allegation that any act amounting to undue influence was
\ncommitted either by the returned candidate himself or by any other with his
\nconsent, it was held that it was unnecessary to examine whether issuance of
\nsuch a whip by any political party amounts to undue influence vitiating the
\nelection. This aspect, with reference to the earlier decisions of this
\nCourt, was considered at length therein and, therefore. It is unnecessary
\nto reiterate the same herein. Following that decision, it must be held that
\nthe pleadings relating to the ground contained in Section 18 (1) (a) do not
\ndisclose any cause of action to raise a triable issue on this point; and,
\ntherefore, the election petition, in so far as it relates to the ground
\ncontained in Section 18 (1) (a), must be rejected for this reason alone<\/p>\n
13. The only question remaining for consideration now, is : Whether the
\nnomination of the returned candidate was wrongly accepted, to make out the
\nground for setting aside the election under section 18 (1) (c) of the Act?
\nThe provisions in the Act relevant for this ground are the following<\/p>\n
“5-B. (1) On or before the date appointed under clause (a) of subsection
\n(1) of Section 4, each candidate shall, either in person or by any of his
\nproposers or seconders, between the hours of eleven o’clock in the forenoon
\nand three o’clock in the afternoon, deliver to the Returning Officer at the
\nplace specified in this behalf in the public notice issued under Section 5
\na nomination paper completed in the prescribed form and subscribed by the
\ncandidate as assenting to the nomination, and<\/p>\n
(a) in the case of Presidential election, also by at least ten electors as
\nproposers and at least ten electors as seconders;\n<\/p>\n
(b) in the case of Vice-Presidential election, also by at least five
\nelectors as proposers and at least five electors as seconders : Provided
\nthat no nomination paper shall be presented to the Returning Officer on a
\nday which is a public holiday<\/p>\n
(2) Each nomination paper shall be accomplished by a certified copy of the
\nentry relating to the candidate in the electoral roll for the parliamentary
\nconstituency in which the candidate is registered as an elector<\/p>\n
5-E * * *<\/p>\n
(3) The Returning Officer shall then examine the nomination papers and
\nshall decide all objections which any be made to any nomination paper and
\nmay, either on such objection or on his own motion, after such summary
\ninquiry, if any, as he thinks necessary, reject any nomination on any of
\nthe following grounds :-\n<\/p>\n
(e) that there has been a failure to comply with any of the provisions of
\nSection 5-B or Section 5-C<\/p>\n
(5) The Returning Officer shall not reject any nomination paper on the
\nground of any defect which is not of a substantial character<\/p>\n
(8) For the purpose of this section, a certified copy of an entry in the
\nelectoral roll for the time being in force shall be conclusive evidence of
\nthe fact that the person referred to in that entry is an elector for that
\nconstituency, unless it is proved that he is subject to any of the
\ndisqualifications mentioned in Section 16 of the Representation of the
\nPeople Act, 1950.”\n<\/p>\n
14. The defect in the nomination papers of the returned candidate, on which
\nthis ground is based, has already been indicated. The undisputed fact, on
\nthe basis of the affidavits filed by both sides, is that the respondent, K.
\nR. Narayanan, son of Raman was registered as an elector in the electoral
\nroll of ’94 Palai Assembly Constituency’ which falls within Muvattupuzha
\nparliamentary constituency and not Ottapalam (SC) parliamentary
\nconstituency. There is no inaccuracy or defect in the description of the
\nrespondent as an elector in the certificate issued by the ‘Electoral
\nRegistration Officer and Tahsildar’, Meenachil, which was annexed to the
\nnomination paper when it was filed. The certificate clearly says that the
\nname of the respondent was included in the electoral roll of ’94 Palai
\nAssembly Constituency, Part No. 101′. It further contains the ‘true
\nextract’ of that electoral roll of 1989 and certifies it to be the extract
\nfrom the latest and current electoral roll<\/p>\n
15. Section 5-B (2) requires that ‘a certified copy of the entry relating
\nto the candidate in the electoral roll for the parliamentary constituency
\nin which the candidate is registered as an elector’ shall accompany each
\nnomination paper. The contents of the certificate, so annexed to each
\nnomination paper, fully satisfy the requirement of ‘a certified copy of the
\nentry relating to the candidate in the electoral roll’ for the assembly
\nconstituency in which the respondent was registered as an elector. The
\ncertificate does not name the parliamentary constituency as ‘Ottapalam
\n(SC)’ instead of ‘Muvattupuzha’. The question is : Whether this difference
\nis of a substantial character to warrant rejection of the nomination paper?\n<\/p>\n
16. Section 13-D of the Representation of the People Act, 1950 is in Part
\nII-B thereof relating to ‘Electoral Rolls for Parliamentary Constituencies’
\nand Section 15 is in Part iii relating to ‘Electoral Rolls for Assembly
\nConstituencies’, which read as under<\/p>\n
“13-D. Electoral rolls for parliamentary constituencies – (1) The electoral
\nroll for every parliamentary constituency, other than a parliamentary
\nconstituency in the State of Jammu and Kashmir or in a Union Territory not
\nhaving a Legislative Assembly, shall consist of the electoral rolls for all
\nthe assembly constituencies comprised within that parliamentary
\nconstituency; and it shall not be necessary to prepare or revise separately
\nthe electoral roll for any such parliamentary constituency<\/p>\n
15. Electoral roll for every constituency – For every constituency there
\nshall be an electoral roll which shall be prepared in accordance with the
\nprovisions of this Act under the superintendence, direction and control of
\nthe Election Commission.”\n<\/p>\n
17. It is clear from the above provisions that there is no separate
\nelectoral roll for a parliamentary constituency and the electoral roll for
\nthe parliamentary constituency consists of the electoral rolls for all the
\nassembly constituencies comprised within that parliamentary constituency.
\nThus, the parliamentary constituency of which ’94 Palai Assembly
\nConstituency’ forms a part would be the parliamentary constituency in which
\nthe respondent was registered as an elector; and his name had to be found
\nin the electoral roll of the assembly constituency therein in which he was
\nso registered. The respondent, in the present case, was registered as an
\nelector in the electoral roll of ’94 Palai Assembly Constituency’ as
\nclearly mentioned in the certificate annexed to each nomination paper.
\nThere was thus no ambiguity in the description of the respondent as an
\nelector on reading the nomination paper along with the certificate annexed
\nto it. The mistake, however, was in mentioning the name of the
\ncorresponding parliamentary constituency for ’94 Palai Assembly
\nConstituency’ as ‘Ottapalam (SC)’ instead of ‘Muvattupuzha’ in the
\nnomination paper of the respondent. This mistake did not misled anyone, not
\neven the petitioner, which is evident from the fact that such an objection
\nwas not taken at time of the scrutiny even by the petitioner, since there
\nwas no doubt in the mind of anyone about the correct description of the
\nrespondent as a candidate at the election. The other mistake pointed out
\nis, that the name of respondent’s father ‘Raman’ is written under the
\ncolumn ‘Name of the Guardian’ when the heading of that column according to
\nthe petitioner, should have been been ‘Name of the
\nFather\/Mother\/Guardian\/Husband’. In our opinion, this can hardly be called
\na defect, since the omission, if any, is in giving the full heading of that
\ncolumn and not in mentioning the name of respondent’s father thereunder<\/p>\n
18. The ultimate question is : Whether this discrepancy in describing the
\nparliamentary constituency corresponding to ’94 Palai Assembly
\nConstituency’ in which the respondent was registered as an elector, and the
\ndeficiency in the heading of the column under which the name of
\nrespondent’s father is written, are defects of substantial nature which
\nrequired rejection of the nomination on the ground contained in Section 5-E
\n(3) (e) of the Act? We do not think so<\/p>\n
19. The decisions of a Constitution Bench of this Court in Karnail Singh v.
\nElection Tribunal, Hissar holding that rejection of nomination is not
\npermissible only for a technical defect which is not of a substantial
\ncharacter, has been consistently followed. In that case, the nomination
\npaper did not record the name of the part of the electoral roll in which
\nthe name of the candidate appeared but there was no difficulty in
\nidentifying the candidate. It was held by the Election Tribunal that
\nrejection of nomination paper on that ground was improper. This Court
\naffirmed the view of the Election Tribunal and held thus<\/p>\n
“… The only defect pointed out was that the name of the sub-division was
\nnot stated therein, but on the evidence it was quite clear that there was
\nno difficulty in identifying the candidate and the candidate himself
\npointed out the Returning Officer the entry of his name in the electoral
\nroll. The defect, in these circumstances, was a technical one and the
\nTribunal was perfectly right in holding that the defect was not of a
\nsubstantial character and that the nomination paper should not have been
\nrejected….”\n<\/p>\n
20. It is sufficient to refer to the decision in Ram Awadesh Singh v.
\nSumitra Devi<\/a> in which the decisions of this Court starting with Karnail
\nSingh are referred, indicating the object of such a provision and the
\nnature of a substantial defect which permits rejection of the nomination
\npaper. The ground taken there was of improper acceptance of nomination
\npaper of the returned candidate, in as much as the name of the constituency
\nin which the returned candidate was registered as an elector was wrongly
\nmentioned in the nomination paper. The earlier decisions of the Court were
\nreferred to, and it was held that a misdescription as to the electoral roll
\nnumber of the candidate or of the proposer in the nomination paper is not
\nto be considered as a material defect in the nomination paper. It was also
\npointed out that the Returning Officer while scrutinising the nomination
\npapers can permit the correction of any mistake therein, which indicates
\nthat every mistake in filling the nomination paper is not to be treated as
\nsubstantial in nature. In our opinion, sub-section (5) of Section 5-E,
\nwhich inhibits the Returning Officer and does not permit rejection of any
\nnomination paper on the ground of any defect which is not of a substantial
\nnature, expressly provides for such a situation. We have no doubt that
\nrejection of any nomination paper of the respondent in the present case on
\nthe ground alleged by the petitioner would have been an improper rejection
\nof the nomination paper, and in violation of Section 5-E (5) of the Act. It
\nis, therefore, erroneous to contend that the nomination papers of the
\nrespondent were wrongly accepted by the Returning Officer<\/p>\n
21. The nature of mistake or defect in the nomination papers of the
\nrespondent, viewed from a different angle, also leads to the same
\nconclusion. The object of the particulars required to be filled in the
\nnomination paper, in accordance with sub-sections (1) and (2) of Section 5-
\nB of the Act read with Rule 4 and Form 3 of the Rules, is to correctly and
\nunambiguously identify the candidate, and to indicate that the conditions
\nof eligibility for being a candidate at the election are satisfied. The
\nReturning Officer is also required to permit correction of any
\ndiscrepancies, to remove any ambiguity or misdescription. It is, therefore,
\nclear that unless the defect in the nomination paper or the deficiency
\ntherein is of a substantial character, Section 5-E (5) enjoys the Returning
\nOfficer not to reject the nomination paper. It is, therefore, obvious that
\nif there be any mistake or defect in the nomination paper which is a mere
\nmisdescription of the candidate, but the misdescription is such that it
\ndoes not misled anyone, and the identity of the candidate is not in doubt
\nto enable the Returning Officer to perform his duty of scrutinising the
\nnomination paper to find out whether the candidate has been validly
\nnominated, then the mistake, if any, is not a substantial character<\/p>\n
22. The requirements for a valid nomination in sub-sections (1) and (2) of
\nSection 5-B are : the nomination by specified number of proposers and
\nseconders, assent of the candidate to the nomination, a certified copy of
\nthe entry in the electoral roll showing the candidate to be a registered
\nelector, presentation of the nomination paper completed in a prescribed
\nform within the specified place, and fulfilment of the conditions of
\neligibility as a candidate. For this purpose, correct identification of the
\ncandidate is necessary. There is not even a remote suggestion in the
\npresent case that there was any difficulty or doubt in identifying the
\nrespondent as the candidate nominated by the nomination papers filed for
\nhis candidature, due to any mistake in describing the parliamentary
\nconstituency corresponding to ’94 Palai Assembly Constituency’ in which the
\nrespondent was registered as an elector or showing the name of his father
\n‘Raman’ under the column written as ‘Name of Guardian’ instead of ‘Name of
\nFather\/Mother\/Guardian\/Husband’. Even the petitioner was not misled but
\nthese defects, and it is for this reason that no such objection was taken
\nby the petitioner to the nomination of the respondent even though the
\npetitioner did raise objection at the time of scrutiny for other reasons<\/p>\n
23. The mistake in mentioning the name of the parliamentary constituency as
\n‘Ottapalam (SC)’ instead of ‘Muvattupuzha’ when the assembly constituency
\nin which the respondent was registered as an elector therein was correctly
\ndescribed as ’94 Palai Assembly Constituency’ was at best a misnomer which
\nmisled no one, not even the petitioner, and it was, therefore, not a defect
\nof substantial nature. The true test for determining whether a
\nmisdescription is a mere misnomer or defect of substantial nature was
\nindicated in Davies v. Elsby Brothers Ltd., as under<\/p>\n
“… In English law as a general principle the question is not what the
\nwriter of the document intended or meant, but what a reasonable man reading
\nthe document would understand it to mean; and that is the test which ought
\nto be applied as a general rule in cases of misnomer – Which may embrace a
\nnumber of other situations apart from misnomer on a writ, for example
\nmistake as to identity in the making of a contract. The test must be : How
\nwould a reasonable person receiving the document take it? If, in all the
\ncircumstances of the case and looking at the document as a whole, he would
\nsay to himself : ‘Of course it must mean me, but they have got my name
\nwrong’, then, there is a case of mere misnomer. If, on the other hand, he
\nwould say : ‘I cannot tell from the document itself whether they mean me or
\nnot and I shall have to make inquiries’, then it seems to me that one is
\ngetting beyond the realm of misnomer…”\n<\/p>\n
24. Viewed in this manner also, there can be no doubt that the mistake of
\ndefect, if any, in the nomination paper of the respondent was not of a
\nsubstantial character and, therefore, it could not be a ground to permit
\nrejection of the nomination paper in accordance with Section 5-E (3) (e) of
\nthe Act. Had the defect been pointed out by anyone at the time of scrutiny,
\nthe Returning Officer would have certainly, and rightly, permitted
\ncorrection of the same, since it was only a technical defect. However, no
\none, not even the petitioner, had any such doubt. As the identity of the
\nrespondent and his eligibility as a candidate was undisputed. For this
\nreason, this objection was not even raised at the time of scrutiny, but
\nonly as an afterthought in the election petition<\/p>\n
25. The fact, however, remains that this technical defect crept into the
\nnomination papers of the respondent in spite of the association of a galaxy
\nof men drawn from the top echelons of several political parties in the
\nfiling of his nomination papers. The election petition does serve the
\npropose of revealing this discrepancy which that galaxy of men completely
\nmissed. It is a different matter that the defect is merely technical and
\nnot substantial in nature, so that it has no adverse consequence<\/p>\n
26. Accordingly, the ground contained in Section 18 (1) (c) of the Act is
\nalso not available to challenge the validity of the election of the
\nrespondent. Consequently, the election petition is dismissed. No costs<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kaka Joginder Singh @ Dharti Pakad vs K.R. Narayanan Vice-President Of … on 16 July, 1993 Bench: J.S. Verma, K.J. Reddy, Y. Dayal, G.N. Ray, S.P. Bharucha CASE NO.: Election Petition 3 of 1992 PETITIONER: KAKA JOGINDER SINGH @ DHARTI PAKAD RESPONDENT: K.R. NARAYANAN VICE-PRESIDENT OF INDIA DATE OF JUDGMENT: 16\/07\/1993 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-236209","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKaka Joginder Singh @ Dharti Pakad vs K.R. 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