RANGILAL CHOUDHURY Vs. DAHU SAO

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the Patna High Court in an election matter. The brief facts necessary for present purposes are these. There was a bye-election held on December 21 and 22, 1958, to fill up a vacancy in the Bihar Legislative Assembly from the Dhanbad constituency. Nomination papers for the same were to be filed on or before November 8, 1958. A large number of persons filed their nomination papers on or before that date and among them were the appellant Rangilal Choudhury and the respondent Dahu Sao. In the present appeal we are only concerned with these two. The nomination paper of the respondent was rejected by the returning officer after scrutiny on November 11, 1958. The bye-election was duly held and the appellant was declared elected by a majority of votes. Thereafter the respondent filed an election petition challenging the election of the appellant on a large number of grounds. In the present appeal we are only concerned with one of the grounds that the nomination paper of the respondent was improperly rejected. The appellant's contention in this connection was that the nomination paper was rightly rejected. The election tribunal held that the nomination paper was rightly rejected and thereafter dismissed the petition. The respondent went in appeal to the High Court, and the main point pressed in appeal was that the election tribunal was wrong in holding that the nomination paper of the respondent was rightly rejected. The High Court agreed with the contention of the respondent that his nomination paper was improperly rejected and therefore allowed the appeal and set aside the election of the appellant. The appellant's application for leave to appeal to this Court having been rejected by the High Court, he applied for and obtained special leave from this Court; and that is how the matter has come up before us.

(2.) The only ground on which the nomination paper was rejected by the returning officer was that the proposer had nominated the candidate for election from Bihar and not Dhanbad assembly constituency. The nomination was made on a Hindi form printed for the purpose by the Government. Unfortunately the printed form did not exactly conform to the Hindi printed form in the Rules framed under the Representation of the People Act, No. LXIII of 1951, (hereinafter called the Act). The heading in the specimen printed form in the Rules requires the name of the State in which the election is held, to be filled in the blank space there; but in the printed form supplied to the respondent the name of the State was already printed in the heading and therefore the blank space had to be filled in with the name of the constituency. The candidate therefore filled in the name of the constituency in the blank space in the heading. Thereafter the proposer filled in the next part of the form which has five columns, after the main part which says that the proposer nominates so and so for such and such constituency. In this main part, the name of the candidate and the name of the constituency have to be filled in by the proposer. In the particular form with which we are concerned now the name of the candidate was rightly filled in but the proposer instead of putting down the name of the constituency namely Dhanbad, put down the name Bihar there. So the proposal read as if the candidate was being nominated for the Bihar Assembly constituency. The only objection taken before the returning officer was that the proposer had not mentioned the constituency for which he was proposing the candidate for election and therefore the nomination form was defective and should be rejected. This found favour with the returning officer, who rejected the nomination paper as already said, on the ground that the proposer had nominated the candidate for election for Bihar assembly constituency and not Dhanbad assembly constituency. It may be mentioned that it is no one's case that there is any constituency like Bihar assembly constituency. It may also be mentioned that this was a bye-election and not a General Election; and the question whether the nomination paper was rightly rejected will have to be considered in this background.

(3.) Now S. 33 (1) of the Act requires that a nomination paper completed in the prescribed form and signed by the candidates and by an elector of the constituency as proposer shall be filed on or before the date appointed for the nomination. Section 33 (4) lays down that 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 the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. Section 36 then prescribes for the scrutiny of nomination papers and sub-sec. (2) (b) thereof lays down that the nomination paper shall be rejected if there has been a failure to comply with any of the provisions of S. 33. But sub-sec. (4) lays down that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. 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 form; 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 a substantial character.