Full Judgment Text
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CASE NO.:
Appeal (civil) 4023 of 2001
PETITIONER:
Shaligram Shrivastava
RESPONDENT:
Naresh Singh Patel
DATE OF JUDGMENT: 19/12/2002
BENCH:
R.C. Lahoti, Brijesh Kumar & H.K. Sema.
JUDGMENT:
JUDGMENT
BRIJESH KUMAR, J.
The defeated candidate in the bye-election held in
February, 2000 to the legislative assembly, Madhya Pradesh
from Bhojpur assembly constituency, filed an election petition in
the High Court of Madhya Pradesh challenging the declaration of
the respondent as elected from the aforesaid assembly
constituency. The election petition has been dismissed, hence
this appeal.
Briefly, the facts are that nomination paper of one
Bhagwan Singh was rejected at the time of scrutiny on the
ground that he had not filled up the proforma prescribed by the
Election Commission vide letter dated 28.8.97. The said
proforma was required to be filled up to ascertain as to whether
the candidate had been convicted or not for any offence
mentioned in Section 8 of the Representation of People Act,
1951 (for short the ’Act’). Interestingly, the candidate, namely,
Bhagwan Singh had filed an affidavit that information given in
the proforma was correct but the proforma itself was left blank.
He had though filled the nomination paper on Form 2-B as
prescribed under Rule 4 of the Conduct of Elections Rules, 1961
declaring that the candidate was qualified and also not
disqualified for being chosen to fill the seat. According to the
Election petitioner the nomination paper of Bhagwan Singh could
not be rejected on the ground that he had not filled up the
proforma prescribed under the letter dated 28.8.97, since no
such proforma was statutorily provided under the provisions of
the Act nor under the rules framed thereunder. It is contended
that the commission could not legislate to prescribe a proforma;
at best it can only be an executive instruction of the Election
Commission whereas the petitioner had filled the form
prescribed under the Rules which did not suffer from any defect.
Yet another ground taken up by the petitioner was
that failure to comply with executive direction of the Election
Commission would not entail the consequence of rejection of the
nomination paper much less where it is not provided that failure
to fill up the proforma would result in rejection of the nomination
paper.
The High Court considering the points raised by the
petitioner came to the conclusion that non-submission of the
declaration as required under the instruction dated 28.8.97 is a
defect of substantial character. Hence the nomination paper was
rightly rejected by the Returning Officer. At this juncture it may
also be mentioned that a question seems to have been raised,
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as to whether election petition could be entertained, in view of
the fact that Bhagwan Singh, whose nomination paper was
rejected neither approached the court nor he ever raised any
objection to the rejection of his nomination paper, but this
point does not seem to have been pursued before the High Court
nor this court was addressed on the said point. We therefore,
need not digress on that question and proceed to consider the
matter on merit of the appeal on the grounds canvassed before
us.
Before entering into the merits of the other points it would
be appropriate to deal with one question raised by the appellant
to the effect that the instructions dated 28.8.97 contained in
letter P-1 and the letter dated 6.1.98 have not been issued by
the Election Commission. On the other hand it is submitted that
these letters have been issued by the officers of the
Commission, hence Article 324 of the Constitution will not be
attracted. This point though argued at length, holds no water
and it is destined to be rejected. Referring to letter dated
28.8.97 it is submitted that it has been issued only by the
Director (Law) of the Election Commission. It is further pointed
out that the said letter has been issued only to operationalise
the directive of the Commission. The Commission had desired
that at the time a nomination paper is filed, the candidate should
also fill up the proforma annexed therewith seeking information
with a view to ascertain, at the time of scrutiny, as to whether
his candidature is valid in the light of the provision of Section 8
of the Act or not. The instructions of the Commission alongwith
copy of the letter of the Commission dated 28.8.97 were
furnished to all Returning Officers and Assistant Returning
Officers for their information, guidance and strict compliance. It
may be pointed out that the letter written by the Director (Law)
itself refers to the instructions issued by the Commission dated
28.8.97 under Article 324 of the Constitution. It has not been
anybody’s case that letter dated 28.8.97 issued by the Director
(Law) is the instruction issued by the Election Commission
under Article 324 of the Constitution. The letter of the Director
(Law) only indicates the gist of the instructions of the
Commission issued on the same date. The appellant has chosen
not to file the instructions issued by the Election Commission
dated 28.8.97 under Article 324 of the Constitution. It may
further be indicated that the main document is the proforma
which is required to be filled up by the candidate as per
instructions of the Election Commission, seeking information
which was considered necessary at the time of scrutiny of the
nomination paper. The letter dated January 6, 1998 issued by
the Secretary of the Election Commission clearly indicates in
para 2 that revised proforma was issued along with letter of the
Commission dated 28.8.97. Therefore there is no substance
whatsoever in the submission made on behalf of the appellant,
with some vehemence too, that the proforma as well as the
instructions were issued by the officers of the Election
Commission and not by the Commission itself. Apart from what
has been indicated above it may also be noticed that such a
ground was never canvassed before the High Court nor it has
been taken in the special leave petition; rather it has been
mentioned at all the places that the instructions and proforma
were issued by the Election commission. It is only on the basis
of oral submission that such a point was tried to be made out.
For the above reasons we repel this contention of the appellant.
We thus feel that mainly two aspects of the matter require
our consideration, the first being the status of the instruction
issued by the Election Commission and its binding nature by
virtue of Article 324 of the Constitution and the next point as to
the nature and scope of inquiry as well as the power of the
Returning Officer under Section 36 (2) of the Act at the time of
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scrutiny. That is to say suppose it is held that the instructions
and the proforma issued by the Commission does not have the
force of instructions issued under Article 324 of the Constitution
on the ground that the field is already covered by legislation as
canvassed or on any other ground whatsoever, could the
Returning Officer still in exercise of its power under Section
36(2) of the Act, seek necessary information and reject the
nomination paper or not. We propose to deal with the second
point first. It will be appropriate to peruse the relevant
provisions contained under Sections 30, 33, 34 and 36 of the
Act. They read as follows:-
"30. Appointment of dates for nominations,
etc.- As soon as the notification calling upon a
constituency to elect a member or members is issued,
the Election Commission shall, by notification in the
Official Gazette, appoint -
(a) the last date for making nominations, which
shall be the [seventh day] after the date of
publication of the first mentioned notification
or, if that day is a public holiday, the next
succeeding day which is not a public holiday;
(b) the date for the scrutiny of nominations, which
shall be [the day immediately following] the
last date for making nominations or, if that day
is public holiday, the next succeeding day
which is not a public holiday;
(c) the last date for the withdrawal of
candidatures, which shall be [the second day]
after the date for the scrutiny of nominations
or, if that day is a public holiday, the next
succeeding day which is not a public holiday;
(d) the date or dates on which a poll shall, if
necessary, be taken which or the first of which
shall be a date not earlier than the [fourteenth
day] after the last date for the withdrawal of
candidatures; and
(e) the date before which the election shall be
completed.
Xxx xxx xxx
33. Presentation of nomination paper and
requirements for a valid nomination - (1) On or
before the date appointed under clause (a) of section
30 each candidate shall, either in person or by his
proposer, between the hours of eleven O’clock in the
forenoon and three O’clock in the afternoon deliver
to the returning officer at the place specified in this
behalf in the notice issued under section 31 a
nomination paper completed in the prescribed form
and signed by the candidate and by an elector of the
constituency as proposer :
[Provided that a candidate not set up by a
recognised political party, shall not be deemed to be
duly nominated for election from a constituency
unless the nomination paper is subscribed by ten
proposers being electors of the constituency.
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Provided further that no nomination paper shall
be delivered to the returning officer on a day which
is a public holiday.
Provided also that in the case a local
authorities’ constituency, graduates’ constituency or
teachers’ constituency, the reference to "an elector
of the constituency as proposer" shall be construed
as a reference to ten per cent of the electors of the
constituency or ten such electors, whichever is less,
as proposers.]
(1A) . . . . . . . . . .
(2) . . . . . . . . .
(3) . . . . . . . . .
(4) On the presentation of a nomination paper,
the returning officer shall satisfy himself that the
names and electoral roll numbers of the candidate
and his proposer as entered in the nomination paper
are the same as those entered in the electoral rolls:
[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 clerical, 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 is such as to be commonly understood; and the
returning officer shall permit any such misnomer or
inaccurate description or clerical, technical or
printing error to be corrected and where necessary,
direct that any such misnomer, inaccurate
description, clerical, technical or printing error in the
electoral roll or in the nomination paper shall be
overlooked.]
(5) . . . . . . . .
(6). . . . . . .
[(7). . . . . . .
34. Deposits:[(1)A candidate shall not be deemed
to be duly nominated for election from a
constituency unless he deposits or causes to be
deposited,-
(a) . . . . . .
(b) . . . . . .
(2) . . . . . . .
Xxx xxx xxx
36. Scrutiny of nominations.- (1)On the date
fixed for the scrutiny of nominations under section
30, the candidates, their election agents, one
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proposer of each candidate, and one other person
duly authorised in writing by each candidate but no
other person, may attend at such time and place as
the returning officer may appoint; and the returning
officer shall give them all reasonable facilities for
examining the nomination papers of all candidates
which have been delivered within the time and in the
manner laid down in section 33.
(2) The returning officer shall then examine the
nomination papers and shall decide all objections
which may be made to any nomination and may,
either on such objection or on his own motion, after
such summary inquiry, if any, as he thinks
necessary, [reject] any nomination on any of the
following grounds :-
[(a) [that on the date fixed for the scrutiny of
nominations the candidate] either is not qualified or
is disqualified for being chosen to fill the seat under
any of the following provisions that may be
applicable, namely :-
Articles 84, 102, 173 and 191,
[Part II of this Act and sections 4 and 14 of the
Government of Union Territories Act, 1963 (2) of
1963)]; or
(b)that there has been a failure to comply with any
of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the
proposer on the nomination paper is not genuine.]
(3) Nothing contained in [clause (b) or clause (c) of
sub-section (2) shall be deemed to authorise the
[rejection] of the nomination of any candidate on the
ground of any irregularity in respect of a nomination
paper, if the candidate has been duly nominated by
means of another nomination paper in respect of
which no irregularities has been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect which
is not of a substantial character.
(5) The returning officer shall hold the scrutiny on
the date appointed in this behalf under clause (b) of
section 30 and shall not allow any adjournment of
the proceedings except when such proceedings are
interrupted or obstructed by riot or open violence or
by causes beyond his control:
Provided that I case [an objection is raised by
the returning officer or is made by any other person]
the candidate concerned may be allowed time to
rebut it not later than the next day but one following
the date fixed for scrutiny, and the returning officer
shall record his decision on the date to which the
proceedings have been adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or rejecting
the same and, if the nomination paper is rejected,
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shall record in writing a brief statement of his
reasons for such rejection.
[(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 constituency shall be conclusive
evidence of the fact that the person referred to in
that entry is an elector for that constituency, unless
it is proved that he is subject to a disqualification
mentioned in section 16 of the Representation of the
People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination
papers have been scrutinized and decisions
accepting or rejecting the same have been recorded,
the returning officer shall prepare a list of validly
nominated candidates, that is to say, candidates
whose nominations have been found valid, and affix
it to his notice board.]
To summarise the legal position as emerging from
the above provisions we find that Section 30 of the Act provides
for fixing of dates for filing of nomination paper for election of a
member from a Constituency. Section 32 provides that a person
may be nominated as candidate for election to fill a seat who is
qualified to be chosen to fill that seat under the provisions of the
Constitution and the Act. Section 33 relates to presentation of
nomination paper and requirements for a valid nomination. The
nomination is to be in the prescribed form signed by the
candidate and by an elector of the Constituency as proposer.
Other clauses of Section 33 indicate a number of requirements of
a valid nomination. A notice of scrutiny of the nomination paper
indicating the date and time for the purpose is to be issued and
affixed in some conspicuous place as provided under section 35
of the Act. Under Section 36 of the Act, a nomination paper is
scrutinized by the Returning Officer. Sub-section (2) of Section
36 provides that the Returning Officer on the objections filed to
any nomination, or on his motion may hold a summary enquiry
in connection thereof. A nomination can be rejected on the
grounds: (i) the candidate is not qualified or is disqualified for
being chosen to fill the seat under any of the provisions namely,
Articles 84, 102,173 and 191 of the Constitution or under Part II
of the Act (Section 8 of the Act falls in Part II); (ii) the
nomination paper can also be rejected on failure to comply with
provisions of Section 33 or Section 34 of the Act or; (iii) The
signature of the candidate or the proposer on the nomination
paper is not genuine. Sub-section (4) of Section 36 provides that
the Returning Officer shall not reject any nomination paper on
the ground of any defect which is not of substantial character.
The prescribed form B-2 for filing the nomination contains
a declaration that the candidate is qualified and not disqualified.
No further facts, details or information is contained in the
prescribed form in relation to his qualification or disqualification.
Section 8 of the Act which falls in Part II, provides for
disqualification which a person may incur on being convicted. It
may be noted that every conviction may not result in
disqualification. It depends upon the nature of the offence and
provisions under which the offence is committed, as also the
period of sentence awarded.
At the time of scrutiny the Returning Officer is entitled to
satisfy himself that a candidate is qualified and not disqualified.
Sub-section (2) of Section 36 authorises him to hold an enquiry
on his own motions, though summary in nature. The Returning
Officer furnished a proforma to the candidates to be filled on
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affidavit and filed on or before the date and time fixed for
scrutiny of the nomination paper. Therefore providing a
proforma, eliciting necessary and relevant information in the
light of Section 8 of the Act to enquire as to whether the person
is qualified and not disqualified, is an act or function fully
covered under sub-section(2) of Section 36 of the Act. The
Returning Officer is authorized to seek such information to be
furnished at the time or before scrutiny. If the candidate fails to
furnish such information and also absents himself at the time of
the scrutiny of the nomination papers, is obviously avoiding a
statutory enquiry being conducted by the Returning Officer
under Sub-section (2) of Section 36 of the Act relating to his
being not qualified or disqualified in the light of Section 8 of the
Act . It is bound to result in defect of a substantial character in
the nomination.
The letter dated 28.8.97 issued by Director (Law) was
addressed to the Chief Electoral Officer of all the States and
Union Territories and it drew attention to the instructions issued
by the Election Commission under Article 324 of the Constitution
saying that in view of decisions of some High Courts, the
disqualification of a candidate for election under Section 8 of the
Act would commence from the date of conviction, regardless of
the fact whether he is intending to be a candidate, is on bail or
not except where the conviction is covered under Sub-section
4 of Section 8 of the Act.
To elicit the relevant information in regard to Section 8,
the Commission had indicated a proforma which was to be
handed over to the candidates who were supposed to fill the
same on affidavit. In this context we may peruse Section 8 of
the Act which reads as under:-
Disqualification on conviction for certain
offences - (1) A person convicted of an offence
punishable under -
(a) section 153A (offence of promoting enmity
between different groups on ground of religion, race,
place of birth, residence, language, etc., and doing
acts prejudicial to maintenance of harmony) or
Section 171 E (offence of bribery) or section 171 F
(offence of undue influence or personation at an
election) or sub- section (1) or sub-section (2) of
Section 376 or section 376A or Section 376B or
Section 376C or section 376D (offences relating to
rape) or section 498A (offence of cruelty towards a
woman by husband or relative of a husband) or sub
section (2) or sub section (3) of Section 505 (offence
of making statement creating or promoting enmity,
hatred or ill will between classes or offence relating
to such statement in any place of worship or in any
assembly engaged in the performance of religious
worship or religious ceremonies) or the Indian Penal
Code (45 of 1860), or
(b) the Protection of Civil Rights Act, 1955 (22 of
1955 ), which provides for punishment for the
preaching and practice of "untouchability", and for
the enforcement of any disability arising therefrom;
or
section 11 (offence of importing or exporting
prohibited goods) or the Customs Act, 1962 (52 of
1962); or
(d) sections 10 to 12 (offence of being a member of
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an association declared unlawful, offence relating to
dealing with funds of an unlawful association or
offence relating to contravention of an order made
in respect of a notified place) of the Unlawful
Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46
of 1973); or
(f) The Narcotic Drugs and Psychotropic Substances
Act, 1985 (61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or
section 4 (offence of committing disruptive activities)
of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the
provisions of Section 3 to 6) of the Religious
Institutions (Prevention of Misuse) Act, 1988 (41 of
1988); or
(i) section 125 (offence of promoting enmity
between classes in connection with the election) or
section 135 (offence of removal of ballot papers from
polling stations) or section 135A (offence of booth
capturing) or clause (a) of sub section (2) of section
136 (offence of Fraudulently defacing or fraudulently
destroying any nomination paper) of this Act;
(j) section 6 (offence of conversion of a place or
worship) of the Places of Worship (special
Provisions) Act 1991
(k) section 2 (offence of insulting the Indian National
Flag or the Constitution of India) or section 3
(offence or preventing singing of National Anthem) of
the Prevention of Insults to National Honour Act,
1971 (69 of 1971) shall be disqualified or a period
of six years from the date of such conviction.
(2) A person convicted for the contravention of -
(a) any law providing for the prevention of
hoarding or profiteering; or
(b) any law relating to the adulteration of food or
drugs; or
(c) any provisions of the Dowry Prohibition Act,
1961 (28 of 1961); or
(d) any provisions of the Commission of Sati
(Prevention) Act, 1987 (3 of 1988),
and sentenced to imprisonment for not less than six
months, shall be disqualified from the date of such
conviction and shall continue to be disqualified for a
further period of six years since his release.
(3) A person convicted of any offence and sentenced
to imprisonment for not less than two years [ other
than any offence referred to in sub-section (1) or
sub section (2) shall be disqualified from the date of
such conviction and shall continue to be disqualified
for a further period of six years since his release]
(4) Notwithstanding anything (in sub section (1) sub
section2 and sub section (3) a disqualification under
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either sub section shall not, in the case of a person
who on the date of the conviction is a member of
Parliament or the Legislature of a State take effect
until three months have elapsed from that date or, if
within that period an appeal or application for
revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed
of by the court.
Explanation - In this section -
(a) "law providing for the prevention of hoarding or
profiteering" means any law, or any order, rule or
notification having the force of law, providing for -
(i) the regulation of production or manufacture
of any essential commodity;
(ii) the control of price at which any essential
commodity may be brought or sold;
(iii) the regulation of acquisition, possession,
storage, transport, distribution, disposal,
use or consumption of any essential
commodity;
(iv) the prohibition of the withholding from sale
of any essential commodity ordinarily kept
for sale;
(a) "drug" has the meaning assigned to it in the Drugs
and Cosmetics Act, 1940 ( 23 of 1940);
(c) "essential commodity" has the meaning assigned to
it in the Essential Commodities Act, 1955 (10 of
1955)
(b) "food" has the meaning assigned to it in the
Prevention Food Adulteration Act, 1954 (37 of 1954).
According to the petitioner information furnished in the
form 2-B prescribed under Rule 4 for the nomination is sufficient,
as it contains the declaration of the candidate that he is qualified
and not disqualified to be a candidate for being chosen from the
constituency. In our view the bald declaration that the
candidate is qualified and not disqualified is not at all sufficient
to scrutinize the nomination paper from the angle of Section 8 of
the Act. Clause (a) of sub-section 2 of Section 36 provides for
scrutiny of the nomination paper to see whether he is
disqualified for being chosen to fill the seat or not, amongst
others in the light of part II of the Act; as indicated earlier,
Section 8 falls in part II of the Act. Therefore, the declaration in
the nomination paper that the candidate is qualified and not
disqualified may only be a mere basic statement necessary to fill
up the nomination paper but it contains no information or facts
relevant for the purposes of scrutinising the nomination paper in
the light of Section 8 of the Act which falls in Part II of the Act.
For the purpose of scrutiny further information is
necessary. The scrutiny may call for even suo motu inquiry by
the Returning Officer though summary in nature. It is one of
the statutory duties of the Returning Officer to scrutinize the
nomination paper in the light of section 8 of the Act and he is
statutorily authorised to hold a summary inquiry about the
qualification and disqualification of a candidate (See Birad Mal
Singhvi vs. Anand Purohit, AIR 1988 SC 1796). Such a power
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which vests in the Returning Officer is not dependent upon any
instructions issued by the Election Commission, therefore, it is
not necessary to enter into the controversy which is sought to
be raised as to whether the instructions issued by the Election
Commission are in exercise of its power under Article 324 or not.
The returning Officer is supposed to have the necessary
information at the time of scrutiny of the nomination paper and
for that purpose he can very well require a candidate to furnish
information relevant for the purpose of section 8 of the Act
before or on the date of scrutiny. At best it can be said that the
Election Commission by its letter dated 28.8.1997 had brought
to the notice of the Returning Officers certain decisions of
different High Courts in regard to disqualification under Section 8
of the Act. It was further desired that such a scrutiny be made
by the Returning Officers looking to the menace of
criminalisation of the politics. Barring the fact that the
instructions apprised the Returning officers of the position under
law in the light of the judgments of the High Courts, nothing else
was provided thereunder which was already not within the power
of the Returning Officer under the statutory provisions rather it
was a part of their duty to scrutinize the nomination papers in
the light of Section 8 of the Act which implies that he is
authorised to seek necessary information for the purpose. It can
be suo motu as well.
Since such information is necessary and relevant for the
purpose of scrutiny of the nomination paper under Section
36(2), in the light of Section 8 of the Act, it can well be furnished
on a format provided to the candidate by the Returning Officer
and it becomes his duty to furnish such information so that a
Returning Officer may discharge its statutory duty to scrutinize
the nomination paper effectively, properly and in consonance
with the provisions of law.
Here we would like to point out that the directive of the
Commission states "when a candidate files his nomination paper
the Returning Officer or, as the case may be, the Returning
Officer receiving the nomination paper shall hand over to him the
enclosed letter, together with the proforma of affidavit annexed
thereto to ascertain at the time of scrutiny of nomination as to
whether the candidature is valid from the angle of Section 8 of
RP Act, 1959", it would be better that for future the directive
may find it feasible to require the Returning Officer to hand over
the proforma of affidavit while issuing the nomination paper
itself.
In the case in hand the candidate had failed to furnish
such information as sought on the proforma given to him and
had also failed to be present personally or through his
representative at the time of scrutiny. The statutory duty/power
of Returning Officer for holding proper scrutiny of nomination
paper was rendered nugatory. No scrutiny of the nomination
paper could be made under Section 36(2) of the Act in the light
of Section 8 of the Act. It certainly rendered the nomination
paper suffering from defect of substantial character and the
Returning Officer was within his rights in rejecting the same.
The appeal therefore, lacks merit and it is dismissed
with costs.