Sudhir Agarwal, J.@mdashRespondent No. 1 Sri Pradeep Jain and election petitioner Harishanker Jijauriya (hereinafter referred to as the
''petitioner'') sought to contest parliamentary election 2009 from 46th Jhansi Parliamentary Constituency. Nomination form of the petitioner was
rejected by R.O., vide order dated 11.4.2009 and as a result thereof, the petitioner could not contest the election, polling whereof took place on
30.4.2009 and result was declared on 16.5.2009, wherein respondent No. 1 returned as elected candidate. It is this election of respondent No. 1,
as Member of Parliament, from 46th Jhansi Parliamentary Constituency, which has been challenged in the present election on the ground that
nomination of petitioner was illegally and invalidly rejected by R.O. as a result whereof, the petitioner could not contest the election and, hence,
election of respondent No. 1 is illegal, being in the teeth of Section 80-A read with Section 100(1)(c) of the Representation of the People Act,
1951 (hereinafter referred to as ""Act 1951"").
2. Certain facts which are not in dispute but relevant for adjudication of this matter are summarized as under:
3. Election Commission of India (hereinafter referred to as ""E.C.I."") notified parliamentary election for 46th Jhansi Parliamentary Constituency on
2.4.2009, on which date, election notice was also issued by Returning Officer (hereinafter referred to as ""R.O.""), declaring election programme as
under:
4. The petitioner submitted his nomination form before R.O. on 8.4.2009. On the same day, a notice was issued to petitioner by R.O., alleging that
particulars mentioned in nomination form about petitioner and his proposers do not tally with electoral details in the voters list, therefore, he should
submit evidence about voters list on 11.4.2009. The notice was issued u/s 33(5) of Act 1951.
5. The petitioner vide letter dated 11.4.2009 informed R.O. that he has applied for certified copy of voters list but the same has not been made
available by the office of R.O., for which, he (petitioner) is not responsible. It thus cannot be said that he (petitioner) has submitted any wrong or
incorrect information, deliberately. He requested R.O. to afford him another opportunity of hearing on nomination form and permit him to
participate in the election. The said application admittedly was submitted on or after 9 p.m. in the evening since the letter contained an averment
that certified copy of voters list was not made available till 9 p.m.
6. The petitioner however, received order dated 11.4.2009, communicating him about rejection of his nomination by R.O. Nomination was
rejected mainly on the ground that proposers'' particulars mentioned in nomination form did not tally with the details in the voters'' list and therefore,
nomination form was not in accordance with Rules. On 13.4.2009 the R.O. published final list of candidates whose nominations were found in
accordance with statute and it had 18 candidates, out of which, 4 belong to recognised National and State level Political parties, 6 to the registered
political parties other than National or State level and 8 independents. Respondent No. 1 was candidate of Indian National Congress and
ultimately returned elected on 16.5.2009.
7. Respondent No. 1 has contested this petition by filing his written statement/reply dated 18.12.2009. It states that the petitioner was negligent in
giving exact description of proposers with electoral number, correct address and their constituency. He committed several discrepancies in the
nomination form, which was rightly rejected by R.O., being not in accordance with statute.
8. Initially, petitioner had impleaded E.C.I. and R.O. also as respondent Nos. 2 and 3 respectively. On an application, raising objection about their
impleadment, this Court vide orders dated 26.4.2011 and 20.11.2009 deleted both the aforesaid respondents from array of parties. Presently,
only Pradeep Kumar Jain, returned candidate is the sole respondent in this case.
9. The following issues were framed by Court''s order dated 18.5.2011.
(1) Whether or not it was incumbent upon the petitioner to get the nomination paper scribed by 10 proposers being electors of the 46th Jhansi
Parliamentary Constituency by mentioning their names and electoral roll numbers as entered in electoral roll of the constituency?
(2) Whether the statutory requirement of mentioning of the electoral roll numbers of the proposers as entered in electoral roll of the constituency, as
required u/s 33(4) of the Representation of Peoples Act, 1951, could be substituted by appending the copy of their so called voter identification
cards, as alleged?
(3) Whether or not it was the duty of the petitioner to get all the requisite documents ready and prepared prior to the date of nomination, especially
when the election was declared and notified much prior to the date of nomination, and if the petitioner has failed to comply with the statutory
requirement, its effect?
(4) Whether the rejection of nomination paper of a candidate for non compliance of statutory requirement of mentioning of the electoral roll
numbers of the proposers can be assailed u/s 100(1)(c) of the Representation of Peoples Act 1951 merely on the ground that the candidate could
not obtain the certified copy of the electoral roll within time, and if so, whether the election held in a constituency can be put to stake on account of
the latches on the part of an individual?
(5) Whether rejection of nomination of the petitioner was even otherwise valid? If not, what is its effect on the election.
(6) To what relief the petitioner is entitled in case the aforesaid issues are answered in his favour.
10. The petitioner initially sought to adduce oral evidence by adducing 9 witnesses including election petitioner himself. The said request made vide
application No. 225062 of 2011 was allowed vide order dated 14.3.2012 and summons were issued to the following 11 witnesses i.e. (1) Hari
Shanker Jijauriya (2) Sunil Sahu (3) Smt. Sunita (4) Ram Singh (5) Umesh (6) Purshottam (7) Devi Das (8) Phool Chandra Sahu (9) Bhola
Sahu(10) Munna Lal (11) Prashant.
11. Besides the petitioner also requested to summon the following documents from the office of District Election Officer, Jhansi.
1. Petitioner''s nomination paper, the treasury challan for Rs. 10,000/- alongwith the documents filed by the election petitioner with nomination
paper on 8.4.2009. in respect of 46-Jhansi parliamentary constituency of District Jhansi.
2. Electoral roll 2009 issued by District Assistant Election Officer, Jhansi in respect of polling Station 121, 127, 88, 122, 107, 125.
3. Application dated 11.4.2009 alongwith treasury challan dated 11.4.2009 filed by election petitioner before District Election Officer, Jhansi for
issuance of extract of electoral rolls.
4. Objection filed by Election petitioner on 11.4.2009.
12. Pursuant to Court''s order dated 30.7.2012, requisite documents were produced by Sri Atul Kumar, Senior Assistant District Electoral Office,
Jhansi on 1.10.2012 and the same were directed to be kept in sealed cover and if the parties want to examine allow them to do so and re-seal the
same.
13. However, petitioner actually examined only himself as a witness (PW 1) which examination concluded on 22.11.2012. Others were
discharged.
14. On behalf of respondent No. 1 also one Rajeev Kumar Agarwal was examined and thereafter, evidence stood closed and petition was finally
heard.
15. Mr. N.K. Pandey and S.P. Sharma appeared and advanced their arguments on behalf of election petitioner, while on behalf of respondent No.
1, Sri M. Islam and Sri S.N. Pandey, Advocates have made their submissions.
16. Election of respondent No. 1 actually has been assailed on the ground that nomination of petitioner has been improperly rejected. All the issues
framed above from their very nature and looking to the petitioner''s premise in this case, can be dealt with together.
17. The procedure for nomination of candidate is contained in Part V of Act 1951. Section 33 talks of the procedure in respect of presentation of
nomination form and requirement for a valid nomination. Relevant extract, i.e., sub-sections (1), (4), (5) and (6) read as under:
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 u/s 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:
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 of 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"".
(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 in any case where the description in regard to the name of the 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) Where the candidate is an elector of 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 in such roll shall, unless it has been filed alongwith the nomination paper, be produced before the returning
officer at the time of scrutiny.
(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for
election in the same constituency.
(emphasis added)
18. Section 33-A requires a candidate to furnish certain further information, like his criminal antecedents etc., but the same being not relevant for
the purpose of this case, is being skipped thereat.
19. Section 33-R provides that an information not required by the Act or Rules framed thereunder, no candidate shall be liable to disclose or
furnish such information.
20. Section 34 deals with deposit to be made by the candidate concerned before submitting his nomination and both the provisions, also being not
relevant for the present case may be skipped.
21 Section 35 talks of notice of nomination and time and place for scrutiny which has to fee given by R.O. on receiving nomination paper. Section
36 talks of scrutiny of nomination and both the provisions (Sections 35 and 36) since have material bearing on the issue in question, are
reproduced as under:
35. Notice of nominations and the time and place for their scrutiny.--The returning officer shall, on receiving the nomination paper under sub-
section (1) or, as the case may, be, sub section (1-A) of Section 33, inform the person or persons delivering the same of the date, time and place
fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number and shall sign thereon a certificate stating the date on
which and the hour at which the nomination paper has been delivered to him, and shall, as soon as may be thereafter, cause to be affixed in some
conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the
candidate and of the proposer.
(emphasis added)
36. Scrutiny of nominations.--(1) On the date fixed for the scrutiny of nominations u/s 30, the candidates, their election agents, one 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,
Parts II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 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 authorize 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 irregularity 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 in 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, 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 scrutinised 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.
(emphasis added)
22. For conduct of election, Rules have also been framed i.e., Conduct of Election Rules 1961 (hereinafter referred to as ""Rules 1961"").
23. Rule 2(1)(e) of Rules 1961 defines ""electoral roll"" and 2(1)(f) defines ""electoral roll number"" and read as under:
(e) ""electoral roll"", in relation to an election by an assembly members, means the list maintained u/s 152 by the R.O. for that election;
(f) ""electoral roll number"" of a person means-
(i) the serial number of the entry in the electoral roll in respect of that person;
(ii) the serial number of the part of the electoral roll in which such entry occurs; and
(iii) the name of the constituency to which the electoral roll relates;
24. Rule 2(1) (g) defines ""Form"" which reads as under:
(g) ""Form"" means a Form appended to these rules and in respect of any election in a State, includes a translation thereof in any of the languages
used for official purposes of the State;
25. Rule 4 provides that every nomination paper presented under sub-section (1) of Section 33 shall be completed in such one of the Forms 2-A
to 2-E as may be appropriate. It also contains a proviso which reads as under:
Provided that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not
be deemed to be a defect of a substantial character within the meaning of sub-section (4) of Section 36.
26. In the present case, it is not disputed by the parties before this Court that appropriate form is Form 2A. Rule 4-A provides for the form of
affidavit to be filed at the time of delivery of nomination paper and reads as under:
The candidate or his proposer, as the case may be, shall, at the time of delivering to the R.O. the nomination paper under sub-section (1) of
Section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26.
(emphasis added)
27. The proposers signing a nomination form are supposed to give particulars like, name of the component assembly constituency, electoral roll
number, Part No. of electoral roll, serial No. in that part, full name, signature and date. For a Parliamentary Constituency, election nomination
paper of an independent is required to be subscribed by ten proposers, who are electors of the constituency concerned, vide proviso to Section
33(1) of Act 1951.
28. In the present case, from a perusal of record, it is evident that in Part 2, Form 2A the particulars of ten proposers in column 1 to 5 were filled
in as under
29. Copies of electoral roll are also before the Court. I find that following entries of respective proposers do not tally:
30. Part number of electoral roll and serial number in that part with respect to Munna Lal as per copy of electoral roll are 125 and 659
respectively, while in the nomination paper the same are mentioned as 85 and 826 respectively.
31. In respect of Sunil, nomination paper mentioned 122 and 821, in column 3 and 4 respectively, but electoral roll'' shows that in Part 122, Serial
number 821 name of Dhanna wife of Bhagwan Das is mentioned. I am told that name of Sunil finds mention in Part 88 of electoral roll, at serial
number 323 which was not at all mentioned in any of the columns in the entire list of proposers.
32. Similarly, in respect of Smt. Sunita, columns number 3 and 4 contain entries as 81 and 805 respectively, though actually her name finds
mention in Part 121, Serial No. 780 of electoral roll.
33. 10th proposer Munna Lal has been shown as voter in Part 85, Serial No. 826 of electoral roll but the learned counsel for the petitioner admits
that his name does not find mention in any electoral roll in the concerned constituency and he is not at all a voter of the constituency.
34. In respect of another proposer, Devi Das, Part 122 has been mentioned in column 3 whereas column 4, regarding his Serial number is blank.
Copy of electoral roll shows name of Devi Das at Serial No. 549.
35. Learned counsel for petitioner submitted that mere wrong mention or non mention of one or other columns meant for proposers cannot be said
to be a defect of substantial nature. The R.O. could have verified the above details if some labour would have been put in by him going through the
electoral roll of the constituency. Therefore, for this reason alone, rejection of nomination form of petitioner is patently illegal and unjust. He
submitted that neither certified copy of electoral roll was made available to him nor R.O. himself made such enquiry himself, though he could have
done, since copy of electoral roll was available with him, but having failed to perform his duty effectively, he was not justified in penalising petitioner
by rejecting nomination form, that too, for technical error which was identifiable and rectifiable. Hence rejection of nomination of petitioner being
wholly illegal and contrary to procedure prescribed in the statute, is vitiated and same is liable to be set aside.
36. Per contra, learned counsel appearing for respondent submitted that duty to correctly complete nomination form and submit with requisite
information lies upon the candidate concerned. The R.O. is not supposed to engage in a meticulous enquiry if candidate himself has not cared to
furnish complete information or has given incorrect information, and has not attempted to rectify, even till the date of scrutiny. in the circumstances,
the R.O. had no option but to reject such nomination form and therefore, he has not committed any error or illegality or otherwise in rejecting
nomination of petitioner, finding the same as not fulfilling the requirement of first proviso to Section 33(4) of Act 1951. Election petition is
misconceived having been filed to unnecessarily harass the elected candidate and therefore, liable to be dismissed with exemplary costs. It is
contended that flaws and illegality committed in the nomination form were well within the knowledge of petitioner and he had chosen to drag the
candidate into unnecessary litigation for which this Court should pass an order imposing exemplary costs and also to give a message so that any
person like the petitioner should not dare to institute such frivolous and baseless litigation to harass an innocent per-son.
37. Having heard counsel for the parties and perusing the record, I may now proceed to adjudicate the issues formulated hereinabove collectively
so as to find out whether nomination form of the petitioner has been rejected illegally and, if so, whether it would render the result of election
declaring the respondent elected, vitiated. The statute lays down a very detailed procedure for filing of nomination papers for prospective
candidates aspiring to context an election and quite minute details have been taken care by the legislature. Simultaneously, this is also evident that
the legislature has intended that there should not be any casual attempt to reject a nomination paper for titbit or minor irregularity. The R.O. must
look into the matter with sincere endeavour to ensure that a valid nomination is filed and taken on record giving genuine opportunity to candidate
concerned to contest election. Part-III deals with the notification of General Elections for State and Central both. As soon as notification is issued
calling upon a constituency to elect a member or members, the roll of E.C.I. commences. Immediately thereafter the E.C.I. is required to issue a
notification in the official gazette appointing various dates, namely, last date for making nomination, date for scrutiny of nomination, last date for
withdrawal of candidature, date or dates on which poll shall, if necessary, be taken and date before which election shall be completed, as per
requirement of Section 30 of Act 1951. Thereafter comes the roll of R.O. concerned who is supposed to give public notice of intended election in
the form and manner as prescribed, inviting nomination of candidates for such election and specify the place at which the nomination papers are to
be delivered. This is what requirement of Section 30(1) is. Section 32 talks of the candidate eligible to seek nomination for election. Any person
qualified to be chosen to fill the seal for which notification of election has been issued may be nominated as a candidate for election to such a seat.
Then comes the procedural part. I may summarise the various step''s as discerned from a cumulative reading of Sections 33, 33-A, 34, 35, 36 and
the Rules 1961.
38. Nomination papers shall be delivered to R.O. at the place specified in the notice issued u/s 31, either by the candidate himself or by his
proposer. Various steps and requirements are as under:
(i) Nomination paper has to be submitted on or before the date appointed under clause (a) of Section 30 i.e. last date for making nomination;
(ii) time within which nomination paper can be delivered to the R.O. is 11 a.m. to 3 p.m. of each date;
(iii) nomination paper must be in the prescribed form complete in respect to all the entries and signed by candidate as also proposer(s);
(iv) as soon as nomination paper is presented before R.O., he shall satisfy himself about correctness of names and electoral roll number of
candidate and his proposer(s) as entered in nomination paper vis a vis electoral roll;
(v) R.O. if finds any clerical or printing error, inaccurate description or misnomer in regard to name of candidate or his proposer(s) or in regard to
any place mentioned in electoral roll or nomination paper, he shall permit such misnomer, inaccurate description etc. to be corrected by the person
presenting/delivering nomination paper to him;
(vi) R.O. on receiving nomination paper shall inform the person or persons delivering the same, the date, time and place fixed for scrutiny of
nomination;
(vii) simultaneously, R.O. shall enter on nomination paper its serial number and, shall also sign on the same date and almost simultaneously a
certificate, stating the date on which nomination paper has been delivered to him;
(viii) R.O. shall also cause to be affixed in some conspicuous place in his office a notice of nomination containing description similar to those
contained in nomination paper both of the candidate and of proposer(s).
Procedure to be observed on the date of scrutiny
39. The candidates, their election agents, one proposer of each candidate and on other person duly authorised in writing by each candidate may
attend the place fixed by R.O. for scrutiny of nomination at the place and time fixed by him. The R.O. shall give the aforesaid persons all
reasonable facilities for examining nomination-papers of all candidates which he was delivered within time and manner laid down in Section 33.
R.O. shall himself examine nomination papers and decide all objections made to any nomination. He can reject any nomination if (a) candidate is
not qualified or is disqualified for being chosen to fill the seat for which nomination has been submitted (b) if there is failure to comply Section 33 or
Section 34(iii) signature of candidate or proposer(s) on nomination paper is not genuine.
40. If the candidate concerned has submitted more than one nomination papers and in one of such papers his nomination is found in order, his
candidature shall not rejected or any of the grounds of non-compliance of Sections 33 and 34 or in respect to signatures. The R.O. shall not reject
nomination paper for a defect which is not of a substantial character. Proceedings of scrutiny shall not be adjourned except with interrupted or
obstructed by riot, or open violence or by causes beyond his control. R.O. shall endorse his decision of acceptance or rejection of nomination.
41. If a nomination paper is rejected, the R.O. shall also record brief statement of reasons in writing for such rejection. After nomination papers are
scrutinized and decision accepting or rejecting the same is complete in respect to all the nomination papers, immediately thereafter R.O. shall
prepare a list of validly nominated candidates and affix the same to his notice board.
42. From the above, it is evident that the legislature on the one hand has stressed upon observance and compliance of requirements of Sections 33
and 34 of Act 1951, simultaneously, has not authorised the R.O. to reject nomination if the defect is not substantial one. and/or if there are some
discrepancies like, misnomer, inaccurate description or clerical, technical or printing error in regard to name of candidate or his proposer or any
other person or in regard to any place. These errors may be either in electoral roll, or in the nomination paper but they shall not authorise the R.O.
to reject the nomination paper as such, and, he is required to allow the candidate to rectify/correct the errors and/or such error etc. shall be
overlooked.
43. Now the question cropped up for consideration would be, what is the meaning of the phrase ""defect not substantial one"".
44. A Constitution Bench in Karnail Singh v. Election Tribunal, Hissar, and others, 1954 ELR (X) 189 : AIR 1954 SC 207, considered whether
omission to state Part of electoral roll in which candidate''s name appeared to be a fatal defect or not. The Court said, if there was no difficulty in
identifying the candidate and the candidate himself pointed out to the R.O. the entry of his name in the electoral roll, defect in such a case must not
be taken to be fatal but it was a technical one and rejection of nomination paper for this very reason was improper.
45. The purpose of mentioning of sub division in electoral roll in which serial number occurs is for assistance of R.O. and to facilitate identification
of proposer etc. so that no time is wasted in ascertaining whether the proposer is a person qualified to act as such, when there is no doubt about
identify of proposer or his capacity to act as proposer. A mere omission of a small detail in his description on nomination paper-ought not affect
the matter.
46. In Ram Awadesh Singh Vs. Smt. Sumitra Devi and Others, , Two-Judge''s Bench of Supreme Court considered whether misdescription as to
electoral roll and electoral roll number would constitute a material defect, justifying rejection of nomination paper. The Court observed that so far
as the candidate is concerned, he was admittedly qualified to be nominated for election. The only thing said against is that nomination paper was
not properly filled in. Referring to Section 33(4) of Act 1951 the Court said:
... a duty is imposed on the Returning Officer by sub-section (4) of Section 33 to look into the nomination paper when it is presented and to satisfy
himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination paper are the same as
those entered in the electoral roll.
47. The Court also observed, if the Returning Officer would have looked into nomination paper, he could not have asked the candidate either to
correct the mistake or to file a fresh nomination. Commenting upon the implication of Section 33(4) the Court said:
But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their
electoral roll numbers is not a matter of substantial importance. That is why the legislature requires the Returning Officer to look into them and if
there are any mistakes to get them corrected. What is of importance in an election is that the candidate should possess all the prescribed
qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other
information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed
qualification and that he is not otherwise disqualified. In other words those informations relate to the proof of the required qualifications.
48. It went further by observing that legislature itself has made distinction between acceptance of nomination and rejection. Whenever a nomination
has to be rejected, R.O. is under statutory duty to give reasons in writing, though there is no such requirement for accepting a nomination. In para
15 of judgment the Court said:
From a combined reading of Sections 33 and 36, it is clear that a misdescription as to electoral roll number of the candidate or of the proposer in
the nomination paper is not to be considered as a material defect in the nomination paper.
49. In Rangilal Choudhury Vs. Dahu Sao and Others, , a candidate mentioned the name of constituency as Bihar instead of Dhanbad. The Court
held that it is not a mistake justifying rejection of nomination and after referring to Section 33(4) and 36(2)(b) and (4) the Court said.
The result of these provisions is that the proposer and the candidate are expected to file the nomination papers complete in all respects in
accordance with the prescribed from; but even if there is some defect in the nomination paper in regard to either the names or the electoral roll
numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and if necessary
to allow them to be corrected, in order to bring them into conformity with the corresponding entries in the electoral roll. Thereafter on scrutiny the
returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of S. 33 subject
however to this that no nomination paper shall be rejected on the ground of any defect which is not of substantial character
50. In Ram Awadhesh Singh v. Smt. Sumitra (supra) the Court also observed in para 19 of the judgment that that the very fact that the law
requires the R.O. to look into nomination paper, when filed and get any mistake regarding the name or electoral number of the candidate or his
proposer corrected, shows that the mistake regarding them is not a material defect.
51. In Brijendralal Gupta and Another Vs. Jwalaprasad and Others, , the Court said that the word ''defect'' in Section 36(4) included an omission
to satisfy the details prescribed in the nomination.
52. A three Judge Bench of Apex Court in Rakesh Kumar Vs. Sunil Kumar, , again considered the scope of Section 36(5) read with Section 33
of Act 1951 and held that the R.O. has been vested with discretion to fix time to enable a candidate to rebut an objection to the validity of a
nomination paper. Such a discretion has to be fairly and judicially exercised. It was imperative upon him to give opportunity to the candidate to
meet the said objection. If there is a failure to exercise his jurisdiction to postpone the decision as to validity of the nomination paper of the
candidate concerned, despite he had sought time to meet the objection, it would amount to invalid rejection of nomination. The Court said in para
21 as under:
The Returning Officer is not expected to reject a nomination paper, without giving an opportunity to the candidate or his representative present at
the time of scrutiny to meet an objection, capable of being met, particularly where such an opportunity is sought for by the candidate or his
representative and no one present on behalf of the other candidates had opposed the claim made by the respondent.
53. In Ram Bhual Vs. Ambika Singh, , in para 6, the kind of irregularity in the nomination paper has been noticed by the Court which reads as
under:
It is clear that the rejection of the nomination of PW 2 by the Returning Officer was only on the ground that out of the ten proposers, the ninth
proposer Sant Lal, was described as the voter at Serial No. 392 in Part 91 of the voters'' List. It is also clear and it is not disputed, that the name
of Sant Lal is actually included in the voters'' list, but at Serial No. 352 in Part 91 of the voters'' list. It is also clear that both Serial No. 352 and
Serial No. 392 of Part 91, are printed on the same page of the voters'' list. Therefore, it required no detailed search by the Returning Officer to
find out or to satisfy himself that Sant Lal, the proposer, was a voter in that constituency.
54. In para 8 of the judgment the Court said:
It is clear from Section 36(4) of the Act that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of
a substantial character, Section 33(4) of the Act provides that on the presentation of a nomination paper, the Returning Officer has to satisfy
himself that the names and the electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those
entered in the electoral roll. The proviso thereto clearly provides 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 and in a case where there was
an error in the nomination paper in regard to the description, he shall direct that the same be corrected and he could even overlook such errors. It
is in the context of the proviso to Section 33(4), that the case set up by the appellant of Sita Ram drawing the attention of the Returning Officer to
the defect being only an error in the serial number and that Sant Lal, the ninth proposer, was actually at Serial No. 352 on the same page of the
voters'' list assumes great significance. It is a minor defect which obviously should have been got corrected by the Returning Officer even while
accepting the nomination and certainly he could not have rejected the nomination on that ground in the light of Section 36(4) of the Act.
55. The cases which may give rise to a ground for challenge an election u/s 100(1)(c) and 100(1)(d)(i), were considered by the Apex Court in
N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, and the Court said:
...Under Section 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the
Constitution and the Act. Section 36(2) authorises the Returning Officer to reject any nomination paper on the ground that he is either not qualified,
that is, under Sections 3 to 7 of the Act, or is disqualified under the provisions referred to therein. If there are no grounds for rejecting a nomination
paper u/s 36(2), then it has to be accepted, and the name of the candidate is to be included in a list. vide Section 36(8). Then, we come to Section
100(1)(c) and Section 100(1)(d)(i), which provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly
accepting any nomination. In the context, it appears to us that the improper rejection or acceptance must have reference to Section 36(2), and that
the rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer from any of the
disqualifications mentioned in Section 36(2) would be improper within Section 100(1)(c), and that, likewise, acceptance of a nomination paper of
a candidate who is not qualified or who is disqualified will equally be improper u/s 100(1)(d)(i).
56. The Apex Court noticed the instructions contained in Handbook of ECI in respect to what is required to be done by R.O. while nomination
paper is to be scrutinized and in para 29 of the judgment in Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite-Patil, , the Court said in para
29 as under:
29. While exercising his quasi-judicial power, in terms of the provisions of the Act, it was incumbent upon the Returning Officer to follow the
instructions contained in the Handbook. It provides for:
(i) opportunity to be given to candidate to rebut the objections by placing sufficient materials on record:
(ii) A presumption of validity of such nomination paper.
57. It cannot be disputed that the instructions contained in the Handbook of ECI are binding being statutory in nature as held in Rakesh Kumar v.
Sunil Kumar (Supra) reiterated in Uttamrao Shivdas Jankar (Supra) (vide para 30 of the judgment). The Court also observed that with respect to
correctness of nomination paper there is presumption of correctness and that too, being statutory in nature. In paragraph 35 of the judgment in
Uttamrao Shivdas Jankar (supra) the Court said:
35. The presumption of correctness of the nomination paper being statutory in nature, as intention of the Parliament as also the Election
Commission was that even if somebody had filed an improper nomination, but for which he can be given benefit of doubt being a possible subject-
matter of an election petition...
58. There are some authorities of the Apex Court which have been relied by respondents and it would be appropriate to discuss the same also so
as to examine the facts of the present case in the light of exposition of law in all the authorities of Supreme Court to find out whether rejection of
nomination of petitioner is valid, just legal or not.
59. In Rattan Anmol Singh and Another Vs. Atma Ram and Others, , the question up for consideration before the Apex Court was what is the
meaning of word ''subscribed'' in Section 33(1) and what is its effect on nomination paper. The Court observed that ''subscribe'' means ''signing''.
In para 12 of the judgment the Court said:
It is true the word ""subscribe"" is not defined but it is equally clear, when the Act is read as a whole alongwith the form in the second schedule, that
subscribe"" can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of ""signature"" are to be
made, we are bound to give effect to it. In the case of a person who is unable to write his name his ""signature"" must be authenticated in ""such
manner as may be prescribed."" The prescribed manner is to be found in Rule 2(2) of the Representation of the People (Conduct of Elections and
Election Petitions) Rules, 1951.
60. Then in para 13, the Court said that nomination papers having not been ""signed"" by the proposers and seconders in the usual way by writing
their names, and as their marks were not attested it would lead to an inference that there are no valid signatures either of proposer or seconder in
any nomination paper and, therefore, R.O. would be bound to reject u/s 36(2)(d) unless he could and should have resort to Section 36(4) of Act
1951. This Court considered whether the aforesaid error is a mere technical or substantial and held:
In our opinion, this provision is an necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the
subscribing"" required in the case of the candidate himself. If there is no signature and no mark the form would have to be rejected and their
absence could not be dismissed as technical and unsubstantial. The ""satisfaction"" of the Returning Officer which the rules require is not, in our
opinion, any the less important and imperative.
61. Then in para 15 of the judgment it was held that attestation and satisfaction etc. is all an exercise to be taken before scrutiny and the R.O.
cannot permit any rectification at the stage of scrutiny. In para 15 of the judgment the Court said:
...attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently
validated any more than the omission of a candidate to sign at all could have been. Section 36 is mandatory and enjoins the Returning Officer to
refuse any nomination when there has been ""any failure to comply with any of the provisions of Section 33...
The only jurisdiction the Returning Officer has at the scrutiny stage is to see whether the nominations are in order and to hear and decide
objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on
the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical
and unsubstantial it will not matter. If it is not, it cannot be set right.
62. In Bhogendra Jha Vs. Manoj Kumar Jha, , a three Judge Bench of the Apex Court considered as to what is a defect of substantial character.
The Court referred to its decision in Rafiq Khan v. Laxmi Narayan Sharma (C.A. No. 6478 of 1995 decided on 14.3.1996) and observed as
under:
Unless the defect is one which can be per se noticed and corrected at the stage of Section 33(4) or later at the stage of Section 36(4) without the
need to refer to various other documents the same cannot be said to be of a non-substantial character. In the instant case also the defect as to the
number could have been said to be not of a substantial character if the appellant had shown that the name of the proposer appeared on the very
same sheet at serial number 138 instead of 136 i.e. only two steps away. In that case one can say that the Returning Officer could have verified the
same if he had exercised due diligence. In such a situation even if the appellant had his proposer absent the Court could have taken the view that
the defect was not of a substantial nature. But the defect cannot be noticed unless the Returning Officer is required to sift through various other
documents or the voters list or is required to undertake an enquiry as to whether the proposer''s name appears anywhere else in the voters list. The
defect may not be one capable of being cured without the assistance of the candidate or his proposer and in such a situation he would be justified
in rejecting the nomination paper.
63. The exercise which could have been undertaken by R.O. u/s 36(4) has further been elaborated in paragraphs 7 and 8 of the judgment
observing:
Under Section 36(4) of the Act, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a
substantial character. u/s 36(1), the Returning Officer has the power to conduct an enquiry. It is settled law that it is a summary enquiry. When the
Returning Officer scrutinises the nomination paper, the parties or the nominees are required to be present and if they seek liberty to place the
necessary material, the Returning Officer is enjoined to adjourn the case to the next day. In case they are able to place the necessary material and
satisfy the Returning Officer of the correctness of the enrolment as a candidate or the address of the nominee, the Returning Officer would consider
the same. But he is not expected to sift the evidence and find the placement in the electoral roll, the name and particular of the nominee. (para-7)
In this case, PWs 4 and 6 who were the candidates and had filed their nominations, though admittedly were present, did not ask for an
opportunity nor attempted to satisfy the Returning Officer as to the correctness of the particulars furnished by them in the nomination papers of
their proposers. Therefore, the Returning Officer was not expected to make a roving enquiry to find out whether the names of the proposers found
place in the electoral roll. It is the duty of the candidate/proposer to satisfy the Returning Officer.
64. In an earlier decision similar observations were made i.e. Brij Mohan Vs. Sat Pal, . In para 20 of the judgment the Court said:
...The candidate and the proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by
the Returning Officer himself suo motu at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the
Returning Officer had received the nomination paper without raising any objection. It is at the time of scrutiny which is done in the presence of all
concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no
estoppel in regard to the statutory duty of scrutiny
65. In para 22 of the judgment the Court also said that R.O. is not expected to make a roving inquiry and has also to find out himself correct part
number of the electoral roll.
66. In Hira Singh Pal Vs. Madan Lal, , the Court observed:
As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the
nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was
required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination
papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the
Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required
information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the
proposer of the candidate was really an elector in the constituency or not; but when he came to the second nomination paper where the proposer''s
name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true
that in that nomination paper, it had been mentioned that the candidate''s name is found at serial No. 504 of part 2 of 9 Arki Assembly
Constituency, though in fact it is found at serial No. 504 in part 12 of that constituency; but from the first nomination paper, the Returning Officer
could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination
papers for the reason that the respondent was only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate
there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore, it is quite clear that the respondent''s
nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the
election u/s 100 of the Representation of the People Act.
67. In Lila Krishan Vs. Mani Ram Godara and Others, , the Apex Court in para 13 of the judgment said:
13. Indisputably the insistence on disclosure of the serial number in the prescribed column against the proposer is for the purpose of identifying the
proposer and ascertaining that he is competent to propose. The scope of scrutiny is obviously to verify the contents of the nomination paper with a
view to ascertaining whether the form is in order and what is required to be complied with by the election law has been duly complied with. This
Court has repeatedly held that election proceedings are strict in nature and what is required to be performed in a particular manner has to be done
as required and substantial compliance has ordinarily no place while dealing with the Act or the Rules made thereunder. That is why an exception
has been made by inserting sub-section (4) of Section 36 of the Act.
68. Further in para 14 of the judgment the Court said:
To cast the obligation on the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of
the proposer is not the requirement of the law. To read that as an obligation is likely to lead to a unworkable position. The prescribed form of
nomination (form 2-B) does not require to specify the name of the father of the proposer. That actually does not become necessary because once
the name and the serial number in the voters'' list are given, the cross-verification become easy and the father''s name is available in the electoral
roll. In one part of the electoral roll on the average names of about a thousand voters appear. Out of one thousand name it is quite possible that
there would be more than one voter by the same names. Identification of any particular voter out of such list even when there are more voters with
the same name is possible only with further reference to the father''s name. To cast the obligation of verifying the entire electoral roll of a particular
part is actually requiring the Returning Officer to do almost an impossible feat. It may not be so if there be a few candidates and it be a case of a
by-election but when general election takes place and every Returning Officer is supposed to handle about seven or eight Assembly Constituencies
and there may be instances of even 300 candidate contesting from one seat as it happened in the 1985 elections in the Belgaum Constituency of
Karnataka State, the Returning Officer would find it physically impossible to grapple with such a situation. The election schedule is a very tight one.
Under the law the day following the last day fixed for receipt of nomination papers is the date of scrutiny and soon thereafter follows the date fixed
for withdrawal. If nomination papers are not scrutinised with due haste and promptness the election schedule may not be operative in the strict
manner and dislocation are bound to follow.
69. Ultimately, in para 16 the Court said:
But if the Returning Officer is not in a position to correlate and identify the proposer, the mistake would indeed be not one which can be covered
by Sub-section (4) of Section 36 of the Act. That view has been taken recently by this Court in Brij Mohan v. Sat Pal, Civil Appeal No. 2650/84
disposed of on 13.3.85, to which two of us are parties. We endorse the ratio of the decision and applying the same, we agree with Mr. Sibal that
the nomination papers were validly rejected in this case.
70. Going by exposition of law as set out above, I find that admittedly, the electoral roll to verify the particulars of proposers therefrom, was not
available with the petitioner. The petitioner himself has admitted in para 11 of election petition that he applied for certified copy of voter list
regarding himself as well as 10 proposers on 11.4.2009 i.e., on the date of scrutiny. In the oral deposition, the petitioner PW 1 has admitted that
prior to 11th April 2009 he had not submitted any application for supply of voter list. The reason he has given is that it was not necessary at all
since the computers are available and entire information is fed therein, the officers could have verified details of the proposers from the computer.
His statement reads as under:
I had not applied for voter list prior to 11.4.2009 because the same was not needed. Now computers are available and all names are therein.
Officers themselves verify about the proposers from computers."" (English Translation by Court)
71. Electoral rolls are prepared and finalised before issuance of notification under Sections 30 and 31 of Act 1951. Section 13-D of Part IIB of
the Representation of the People Act, 1950 (hereinafter referred to as ""Act 1950"") provides for electoral rolls for parliamentary constituencies.
The electoral roll for every parliamentary constituency, other than a parliamentary constituency in the State of Jammu and Kashmir or in a Union
territory, not having a Legislative Assembly, shall consist of the electoral rolls for all the assembly constituencies comprised within that
parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency.
72. Part III of Act 1950 contains provision with respect to electoral rolls for Assembly Constituencies. Preparation and revision of electoral rolls
are provided in Section 21 of Act 1950 which reads as under:
21. Preparation and revision of electoral rolls.--(1) The electoral roll for each constituency shall be prepared in the prescribed manner by reference
to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act.
(2) The said electoral roll-
(a) shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by
reference to the qualifying date-
(i) before each general election to the House of the People or to the Legislative Assembly of a State; and
(ii) before each bye-election to fill a casual vacancy in a seat allotted to the constituency; and
(b) shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election
Commission:
Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be
affected.
(3) Notwithstanding anything contained in sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special
revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit:
Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such
direction, shall continue to be in force until the completion of the special revision so directed
73. Correction of entries in electoral roll is permissible as per procedure prescribed in Section 22 of Act 1950 which reads as under:
22. Correction of entries in electoral rolls.-- If the electoral registration officer for a constituency, on application made to him or on his own motion,
is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency-
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within
the constituency, or
(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise
not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special directions, if any, as may be given
by the Election Commission in this behalf, amend, transpose or delete the entry:
Provided that before taking any action on any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person
concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that
constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action
proposed to be taken in relation to him.
74. Section 23 of Act 1950 lays down procedure for inclusion of names in electoral rolls. Sub-section (3) of Section 23 reads as under:
(3) No amendment, transposition or deletion of any entry shall be made u/s 22 and no direction for the inclusion of a name in the electoral roll of a
constituency shall be given under this section, after the last date for making nominations for an election in that constituency or in the parliamentary
constituency within which that constituency is comprised and before the completion of that election.
75. After the last date for making nomination for election in the assembly constituency or parliamentary constituency, as the case may be, no
amendment, transposition or deletion of any entry u/s 22 or inclusion thereunder is permissible. It is not the case of the petitioner, and, in fact, it has
not been pleaded that with respect to particulars of his 10th proposer Munna Lal, there was any attempt on his part or on the part of his proposer
to make any correction or inclusion in the name of electoral roll on or before 9.4.2009 which was the last date for making nomination. Since the
petitioner applied for certified copy of electoral roll only on 11.4.2009, meaning thereby, that by that time, no change whatsoever, was permissible
in electoral roll in view of Section 23(3) of Act 1950. Section 33(1) of Act 1951 read with Rule (2) (1) (e) and (f) of Rules 1961 talk of elector
and electoral roll. The term ''elector'' has been defined in Section 2(e) of Act 1951 which reads as under:
elector"" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and
who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950
(emphasis added)
76. Therefore, information and particulars of proposers which have to be mentioned in the nomination paper must tally with electoral roll and not
anything else. The R.O. is entitled to verify the particulars from electoral roll as available with him and is not supposed to look into any other matter
ignoring the electoral roll made and finalized upto last date of nomination as available to him. Question Nos. 1 and 2, in view of above have to be
answered against the petitioner and are answered accordingly.
77. Now coming to question Nos. 3, 4 and 5 collectively, it has already come on record that particulars filled in by petitioner in the nomination
paper in respect of some of proposers did not tally with the corresponding entries in the electoral roll of relevant constituency. Name of one of
proposers, in fact did not find mention in any of electoral rolls of respective constituencies. The petitioner admittedly had no material to assist or
inform the R.O. about correct position either on the date of nomination or even on the next date. On the date of scrutiny also he did not possess
any such material.
78. The record shows that he had filed application before R.O. only on 11.4.2009 itself to supply certified copy of electoral roll and not earlier
thereto though it is alleged that he moved application earlier. That fact could not be substantiated. On the contrary, he admits in his oral deposition
that before 11.4.2009 he had not submitted any application requesting for copy of electoral roll though the same could have been supplied by R.O.
as is permitted and provided in Section 152 of Act 1951.
79. In Lila Krishan v. Mani Ram Godara (supra), the Court observed that prescribed form of nomination does not require to specify the name of
father of proposer looking to the fact that a number of candidates may have filed their nomination before R.O. and thousands and thousands
voters'' electoral roll is available with him. To cast an obligation on R.O. to look though entire electoral roll of a particular Part with a view to find
out identity of proposer(s) would amount to place an reasonable and unwarranted burden upon R.O., which may render his functioning almost
impracticable and impossible. The above observations clearly apply in this case also. It cannot be said that in absence of any assistance
whatsoever from the petitioner in respect of verification of particulars of proposers, it should be taken an obligation on the part of R.O. to check
and verify the same.
80. In the absence of any assistance by petitioner to R.O. so as to verify particulars of proposers, particularly in respect of Munna Lal, Sunil and
Smt. Sunita whose particulars of electoral roll number, serial number in the Part of Electoral Roll were not only incorrect but had wide deviation, it
was not only difficult but impossible for R.O. to verify from the list of electors running in thousands since it was a General Election for a
Parliamentary seat. Similarly, in respect of Devi Das also, non-mention of Serial Number in column 4 is a serious and substantial defect particularly
in the circumstances, when petitioner was not in a position to satisfy or assist R.O. to find out name of proposer in electoral roll. Over and above
all these, a fatal blow comes from the fact that name of Munna Lal has not been found mentioned in any electoral roll of the concerned
constituency. It is not disputed before this Court that he was not a voter in the concerned constituency. This single defect results in, that, there
remains only nine proposers of relevant constituency for the petitioner. Hence, the nomination form being not proposed by ten electors of the
constituency, as contemplated in Section 33(1), first proviso, it was liable to be rejected and has rightly been done so by R.O.
81. All the three question Nos. 3, 4 and 5 are thus answered in negative and against the election petitioner.
82. In the result, to summarise, issues framed, stand answered in the following manner:
(a) Issue No. 1 is answered in affirmance, holding that it was incumbent upon the petitioner to get nomination paper scribed by ten proposers,
being electors of 46 Jhansi Parliamentary Constituency by giving their relevant particulars, names, electoral roll number and serial number in the
nomination paper;
(b) Issue No. 2 is answered in negative, i.e., against the petitioner and it is held that whatever is required by the Rules and the information required
to be given in nomination paper, is to be complied with in the manner prescribed and could not have been altered or substituted by the candidate in
the manner he likes, i.e., appending copy of voter''s card.
(c) Issue No. 3 is also answered in affirmance to the extent that it was duty of the petitioner to prepare himself by getting all relevant material to
satisfy R.O. when the nomination paper was delivered about the correctness of entries mentioned therein, till the last date of nomination or within
such time as permitted but before the date of scrutiny of nomination paper;
(d) Issue No. 4 is answered in favour of the respondent, returned candidate.
(e) Issue No. 5 is decided against the petitioner, holding that his nomination paper was rejected validly.
(f) Having regard to findings on issues No. 1 to 5, the petitioner is not entitled to any relief. Issue No. 6 stands decided accordingly.
Resultantly, the election petition is dismissed with costs, quantified to Rs. Five Thousand only.
