Full Judgment Text
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PETITIONER:
PARMAR HIMATSINGH JUGATSINGH
Vs.
RESPONDENT:
PATEL HARMANBHAI NARSIBHAI
DATE OF JUDGMENT22/02/1974
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
ALAGIRISWAMI, A.
CITATION:
1974 AIR 951 1974 SCR (3) 453
1974 SCC (2) 115
CITATOR INFO :
R 1979 SC1148 (4)
F 1988 SC1796 (8)
ACT:
Representation of the People Act, 1951-s. 33(5) and 36(4)-
Scope of.
HEADNOTE:
The appellant challenged the collection of the respondent to
the state Assembly. He alleged that at the time of the’
scrutiny of nomination papers the returning officer
improperly rejected the nomination paper of one of the,
candidates for the election. The name of the rejected
candidate was, found not on the electoral rolls of the
constituency in which he had filed his nomination papers,
but on the rolls of another constituency. Since his name
was not correctly printed on the electoral rolls, he had
obtained a corrigendum to the electoral roll, a certified
copy of which was enclosed with the nomination paper.
Objection having been raised by the respondent, his
nomination paper was rejected on the ground that the
provisions of s. 33(5) of the Representation of People Act
were not complied. with inasmuch as he had not produced the
certified copy of all the relevant entries in the electoral
roll at the time of scrutiny of the nomination papers.
Section 33(5) of the Representation of the People Act
provides that where the candidate is an elector to a
different constituency a copy of the electoral roll of
that constituency or of the relevant part thereof or a
certified copy of the relevant entries of such roll shall.
unless it has been filed along with the nomination
paper, be produced before the returning officer at the time
of scrutiny.
The High Court dismissed the election petition of the
appellant.
Dismissing the appeal to this Court,
HELD: Non-compliance with s 33(5) is a defect of a
substantial character and is ’not covered by s. 36(4) of the
Act. The Returning Officer rightly rejected the nomination
paper and rejection cannot be held to be improper. Evidently
the rejected candidate is an elector be a different
constituency. That being the position he could have
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complied With s. 33(5) by following one or the other
of the three modes provided in that sub-section namely : (1)
he could have produced a copy of the electoral roll of
constituency in which his name appeared, or (2) he
could have produced a copy of the relevant part of the
electoral roll of that constituency in which his name
appears or (3) he could have produced a certified copy of
the relevant entries in the electoral roll of that
constituency. He however selected the third mode by
enclosing a certified copy of the corrigendum to the
electoral roll. (457 D-F; 459 C-D]
It is clear that the corrigendum did not furnish all the
particulars : which would be available if a certified copy
of the relevant entries in the original electoral roll as
well as the corrigendum were produced before the Returning
Officer at the time, of scrutiny. Since the original
electoral roll may be corrected and amended it was
absolutely necessary for the, satisfaction ,of, the
Returning Officer that a certified copy of not only the
original electoral roll containing the relevant entry as
also a certified copy of the amendment list concerning the
candidate were produced at the time of scrutiny if this had
not already been filed along with the nomination paper. [457
F-G]
Sri Baru Ram v. Shrimati Prasanni & Others, [1959] S.C.R.
1403/14, 1421 and Narbada Prasad v. Chhagan Lal and Ors
[1659] 1 S.C.R. 499/502, followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal, No. 297 of
1973.
Appeal from the Judgment and order of the Gujarat. High
Court in Election Petition No. 7 of 1972.
454
K. Rajendra Chaudhuri and P. ’C. Kapur, for the
appellant.
V. B. Patel and H.S Parihar for the, respondent,
The Judgment of the Court was delivered by
GOSWAMI, J. This Appeal under section 11 6-A of the
Representation of the People Act, 1951 (briefly the Act) is
directed against the judgment of the High Court of Gujarat
dismissing the election petition of the appellant who is an,
elector from Mahudha constituency for the Gujarat :State
Legislative Assembly. The appellant challenged the election
of the respondent who had been declared duty elected to the
State legislative Assembly from this particular constituency
in the general elections to the Legislative Assembly held in
March 1972. The apellant’s principal ground of challenge
was that at the time of the scrutiny of the nomination
papers on February 9, 1972, the Returning Officer improperly
rejected the nomination paper of one Christian Suleman
Jivabhai (hereinafter to be described for brevity as
Jivabhai). livabhai was not an elector in the Mahudha
constituency of the Legislative Assembly. He was an elector
from Shahpur constituency in Ahmedabad city. Along with the
nomination form Jivabhai had enclosed a certified copy of
the corrigeridum to the Electoral Roll issued by the
Registration Officer, who was officer incharge of
preparation of the Electoral Rolls. On objection being
raised by the respondent the nomination paper of Jivabhai
was rejected on the ground that the provisions of section
33(5) of the Act were not complied with inasmuch as he had
not produced a certified copy of all the relevant entries in
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the Electoral Ron before the Returning Officer at the time
of scrutiny of the nomination papers. What was produced was
only the certified copy of the corrigendum issued by the
Electoral Registration Officer which showed the correct-ion
in the name of Jivabhai. Originally, Jivabhai was shown in
the Electoral Roll as Christian Soloman Jivabhai and by the
correction shown in the corrigendum, the name of "Soloman"
was substituted by the name "Suleman". The correct name,
therefore, stands as "Christian Suleman Jivabhai." as a
result of the corrigendum. It appears that the practice of
the Electoral Registration Officer is not to issue a
corrected Electoral Roll every time some Entry in the
Electoral Roll is amended or corrected but the officer
issues corrigenda and amendment limits Without making any
alterations in the original Electoral Roll. The High Court
accepted the objection with regard to the non-compliance, of
section 33(5) of the Act :and rejected the nomination paper
of Jivabhai.
The appellant contends that that the High Court committed an
error of law in rejecting the nomination,,paper. of Jivabhai
in view of the provisions of section 36(4) of the Act.
Section 33 provides for presentation of nomination papers
and requirements for a valid nomination. We are concerned
in this appeal with subsection (5) of that section which may
be quoted:
33 (5 ) "Where the candidate, is an elector
of a different constituency, a copy of the
electoral roll of that constitu-
455
ency or of the relevant par thereof or a
certified copy of the relevant entries in such
roll shall unless it has been filed along with
the nomination paper be produced before the
returning officer at the time of scruitiny."
Section 36. provides for scrutiny of
nominations and we may quote sub-section (4)
of that section which is material.
36(4) "The returning officer shall not reject
any nomination paper on the ground of any
defect which is not of a substantial
character".
In the present ease, Jivabhai, whose nomination paper was
rejected, submitted along with his nomination paper only a
certified copy of the corrigendum of the particular entry in
the Electoral-Roll. Since he was an elector of another
constituency namely, Shahpur, and was contesting in the
Mahudha constituency, he was required under section 33(5) to
produce ’before the Returning Officer at the time of
scrutiny either a copy of the Electoral Roll of Shahpur con-
stituency or of the relevant part thereof or a certified
copy of the relevant entries in the Electoral Roll of
Shahpur constituency. In the instant case, Jivabhai
preferred to enclose with his nomination paper a certified
copy of the corrigendum of the Electoral Roll correcting his
name therein. It appears that neither Jivabhai nor his
proposer was present at the time of scrutiny of the
nomination papers and, therefore, no other document was
produced by him during scrutiny. Even if he had not earlier
enclosed the relevant entries of the Electoral Roll, it
would have been in order if the same were produced before
the Returning Officer at the time of scrutiny, Section 36(7)
provides as follows:
36(7) "For the purposes of this section, a
certified copy of an entry in the electoral
roll for’ the time, being in force of a
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constituency shall be conclusive. evidence of
the ’fact that the person referred to in that
entry is an elector for that constituency,
under it is proved that he is subje
ct to a
disqualification mentioned in sect-ion 16 of
the Representation of the People Act, 1950
(4B. of. 1950)’".
The short question that arises for consideration in this
appeal is whether the nomination paper of Jivabhai was
Improperly rejected’ by the Returning Officer. A certified
copy, which was enclosed with the nomination paper, was as
follows:-
"List of voters of Shahpur ward of Gujarat State Legislative
Assembly ’for the. year 1971 District Ahmedabad,
456
City Ahmedabad, Ward, Shahpur-1, Part No. 39/84, continued.
Memorandum or List of amendment
Serial Number in Name of Voter in Present uncorrect Entry
to read as
Voters List Voters List. ed entry in the
corrected
Voters List.
595 Christian Soloman SolomanSuloman
Jivabhai
Ahmedabad Sdl- G. B. Xhah,
28-1-1972. Electroral Officer".
Before proceeding, further it may be necessary to take note
of ,certain rules in the Registration of Electors Rules’
1960 (briefly tre Rules). Under rule 2(e) " ’roll’ means
the electoral roll for a- constituency". Under rule 4 "the
roll for each constituency shall be prepared in such form
and in such language or languages as the Election Commission
may direct" Under rule 5(1), "the roll shall be divided into
convenient parts which shall be numbered consecutively". By
rule 10 "as soon as the roll for a constituency is ready,
the registration officer shall publish it in draft by making
a copy thereof available for inspection and displaying a
notice in Form 5" in the places specified in that rule.
Rule 11 provides for further publicity to the roll and
notice. Rule 12 provides for lodging claims and objections.
Rule 22 may be set out in full:
22 "Final publication of roll-(1) The
registration officer shall thereafter-
(a) prepare, a list of amendments to carry
out his decisions under rules 18, 20, 21 and
21A and correct any clerical or printing error
or other inaccurranicies subsequently
discovered in the roll; and
(b) publish the roll, together with the list
of amendments, by making a complete copy
thereof available for inspection and
displaying a notice in Form 16 at his office.
(2) On such publication, the roll together
with the list of amendments shall be the
electoral roll of the constituency.
(3) Where the roll (hereafter in this sub-
rule referred to as the basic roll), together
with the list of amendments, becomes the
electoral roll for a constituency under sub-
rule (2), the Registration Officer may, for
the convenience of all concerned ’integrate
subject to, any general or special directions
issued :by the Election Commission,-.in the
behalf, the list into the basic roll by
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including the names. of electors in the List
together with all particulars relating to
such electors in the relevant parts of the
basic roll itself, so however that no, change
shall be made in the process of such
integration in the name of any electors or any
particulars relating, to any elector as. given
in the list, of amendments".
Rule 23 provide for appeals against decisions of the
Registration. Officer under rule 20, 21 or 21A.Under,sub-
rule (4) of that rule every, decision, of that appellate
officer, shall be final, but in so far
457
as it reverses or modifies a decision of the registration
Officer. shall take effect only from the date of the
decision in appeals". By subrule (5) "the- registration.
Officer shall cause such amendments to be made in the
roll’as may be necessary to give ’effect to the decisions of
the appellate officer under this rule".
Section 22 of the Representation of the People Act. 1950.
provides for correction of entries in Electoral Rolls and
Section 24 provides for appeals against orders made under
sections 22 and 23 of that Act in the manner prescribed by
the Rules.
From an examination of the above material provisions it is
clear that the entries in the Electoral Roll may be
corrected at different stages provided under the law and
there is also provision for appeal against decisions of the
Registration Officer. At the time of scrutiny, the
Returning Officer has to be satisfied about the identity of
the candidates and will have to decide all objections with
regard to the nomination paper. The scrutiny will have to
be made by him carefully even if there is no objection
raised against the nomination paper. We are required to
consider in this, case whether Jivabhai has complied with
section 33(5) of the Act.Evidently he is an elector of a
different constituency. That being’ the position he could
have complied with section 33(5) by following one or the
other of the three. modes provided in that sub-section,
namely, (1) he could have produced a copy of the Electoral
Roll of Shahpur constituency, or (2) he could have produced
a copy of there levant part of the Electoral Roll of that
constituency in which his name appears, or (3) he could have
produced a certified copy of the relevant entries in the
Electoral, Roll of that constituency. He, however, selected
the third mode by enclosing a certified copy of the,
corrigendum to the Electoral Roll.
It is clear that the corrigendum does not furnish all the
particulars which would be available if a certified copy of
the relevant entries in the original Electoral Roll as well
as the corrigendum were pro-duced before the Returning
Officer at the time of scrutiny. Since the original
Electoral Roll may be corrected and amended, even sometimes
by deleting some names, it is absolutely necessary for the
satisfaction of the Returning Officer that a certified copy
of not only the original Electoral Roll containing the
relevant entry as also a certified copy of the amendment
list concerning the candidate are produc-ed at the time of
scrutiny, if these had not already been filed along with the
nomination paper. In the instant case the candidate remained
satisfied by filing a certified copy of only the corrigendum
which did not satisfy the Returning Officer as regards the:
identity of the candidate. When, therefore, the Returning
Officer rejected the nomination paper, the order can be
supported on the grounds that a certified copy of’ the entry
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in, the original Electoral ’Rolf was, not furnished along
with the certified copy of the entry in the list,of
amendntents. It cannot , therefore, be said that the
rejection of the nomination paper, under section 36(2)(b) in
this case is improper. In this connection we may
458
refer to a decision of this Court in Sri Baru Ram v.
Shrimati- Prasanni and others(1):, where an identical.
question came up for consideration. The following extract
from the decision will be apposite:
"Sub-section 5 of s. 33 deals with the stage
of the scrutiny of the nomination papers and
it provides that where la candidate is an
elector of a different constituency, a copy if
the electoral roll of that constituency or the
relevant part thereof or a certified copy of
the relevant entry of such roll shall, unless
it is filed along with the nomination paper,
be produced before the returning officer at
the time of the scrutiny. It is thus clear
that when the stage of scrutiny is reached the
returning officer has to be satisfied that the
candidate is an elector of a different
constituency and for that purpose the statute
has provided that mode of proof. Section 36,
sub-s. (7) lays down that the certified copies
which are required to be produced under s.
33(5) shall be conclusive evidence of the
fact, that the person referred to in the
relevant entry is an elector of that
constituency. In other words, the scheme of
the Act appears to be that where a candidate
is an elector of a different constituency he
has to prove that fact in the manner
prescribed and the production
of the
prescribed copy has to be taken as conclusive
evidence of the said fact. Section 33(5)
requires the candidate to supply the
prescribed copy and s. 36(2) (b) provides that
on his failure to comply with the said’
requirement his nomination paper is liable to
be rejected. In other words, this is a case
where the statute requires the candidate to
product the prescribed evidence and provides a
penalty for his failure to do so. in such’ a
case it is direct to appreciate the relevance
or validity of the argument that the
requirement of s. 33(5) is not mandatory but
is directory, because the statute itself has
made it clear that the failure to comply with,
the said requirement leads to the rejection of
the nomination paper. Whenever the statute
requires a particular, act to be done in a
particular manner and also lays down that
failure to comply with the said requirement
leads to a specific consequence it would be
difficult to accept the, argument that the
failure to comply with.the said requirement
should, lead:, to any other consequence There;
is no doubt, that the,, essential object of
the scrutiny of nomination papers is that the
returning Officer should be satisfied that the
candidate who is not an elector in the
constituency in question is, in fact, an
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elector of a different constituency.The
satisfaction of the returning Officer thus the
matter of substance in these proceedings; and
if the statue provides the mode in which the
returning officer has,
(1) [1959] S.C.R. 1403/1418-1421.
459
to be satisfied by the candidate it is that
mode which the candidate must adopt.....
The same view was expressed by this Court in
Narbada Prasad v. Chhagan Lal and Ors.(1)
"There was no compliance with the provisions
of s. 33(5) of the Representation of the
People Act and there was no power in the court
to dispense with this requirement. It is a
well-understood rule of law that if a thing is
to be done in a particular manner it must be
done in that manner or not at all. Other
modes of compliance are excluded".
We are, therefore, clearly of the view that non-compliance
with section 33(5) is a defect of a substantial character
and is not covered by section 36(4) of the Act. The
Returning Officer in this case rightly rejected the
nomination paper of Jivabhai and the reject-in cannot be
held to. be improper. In the result the appeal fails and is
dismissed with costs.
P.B.R.
Appeal dismissed.
(1)[1969] (1) S.C.R. 499/502.
460