OM PRABHA JAIN Vs. GIAN CHAND

JUDGEMENT

(1.) This is an appeal under section 116A of the Representation of the People Act, 1951, against an order of the Election Tribunal declaring the appellant's election to the Punjab Vidhan Sabha, invalid. The facts are not in dispute, and the appeal turns wholly on a question of law.

(2.) The appellant, Shrimati Om Prabha Jain, was elected to the Punjab Vidhan Sabha from the Kaithal Constituency in the Karnal district. The notification calling upon the constituency to elect a member was issued by the Governor on the 19th January 1957. The last date for filing nomination papers was fixed as the 29th January 1957 and the date for the scrutiny of nomination papers was the 1st February, 1957. It appears that the appellant's name was not on the electoral roll when the constituency was called upon to elect their representative, but she made an application to the Chief Electoral Officer for the inclusion of her name on the ground that she was qualified. This application was allowed and the appellant's name ordered to be included in the electoral roll of the Jind Constituency on the 31st January 1957. The appellant filed her nomination paper on the 29th January 1957, as she was bound to, that being the last date. In the column for filling the electoral roll number, the appellant mentioned that she had applied for her name being entered on the roll but, of course, she could not mention any roll number. After her name was included in the roll, the appellant obtained a certified copy of the electoral roll of the Jind Constituency, and this certified copy she presented to the returning officer at the time of the scrutiny of the nomination paper on the 1st February, 1957. Objection was raised at that stage to the appellant's nomination on the ground that when she had filed her nomination paper, she was not an elector, as her name was not on the electoral roll. The returning officer, however, overruled this objection, finding that the appellant's name was included in the electoral roll as shown by the certified copy produced by her. The returning officer was of the view that as the appellant was qualified to stand for election on the 1st February, 1957, her nomination paper could not be rejected. At the polls the appellant secured the largest number of votes and was, therefore, declared elected. This led to an election petition by Gian Chand respondent, challenging the election on the ground that the appellant's nomination paper had been improperly accepted and that had materially affected the election. The argument, again, was that the appellant's name not being on the electoral roll at the time her nomination paper was filed, she was not qualified to stand for election. This argument found favour with the Election Tribunal and the election was, therefore, declared invalid.

(3.) It is contended on behalf of the appellant that the returning officer was required to scrutinize the nomination papers on the 1st February, 1957 and that he could have rejected the appellant's nomination only on one of the grounds mentioned in section 36 of the Representation of the People Act, 1951, and, as none of those grounds existed, the returning officer could not have rejected her nomination paper, as indeed he did not, and his order cannot be called improper. The question, therefore, is whether the returning officer acted improperly in accepting the appellant's nomination paper. This, of course, he did on the 1st February, 1957. It is clear that he could have rejected the nomination paper only if any of the grounds mentioned in section 36 of the Act of 1951 existed. On these matters both counsel are in substance agreed. The controversy merely is whether any valid ground for the rejection of the appellant's nomination paper existed on the 1st February, 1957. The respondent's contention is, as held by the Election Tribunal, that because the appellant's name was not on the electoral roll on the 29th January 1957, she could not have been validly nominated to stand for election and, that being so, the nomination should have been rejected. This argument ignores the state of facts existing on the 1st February, 1957 and focusses attention on the state of things, existing on the 29th January 1957. It is, however, clear that the returning officer was required to apply his mind to the validity of the nomination only on the 1st February, 1957, and it is admitted that he could not have rejected the nomination on the 29th January 1957. It seems to me, therefore, that the state of facts existing on the 1st February, 1957 had more importance than the facts existing on the 29th January 1957 and the returning officer was justified in giving due weight to those facts. It is said that if this view prevails, then anybody not qualified to stand for election on the date of nominations would still be entitled to do so in case the disqualification happens to be removed by the date of scrutiny. That would be so, but I see no harmful consequence resulting from it, and, if a person is in fact qualified to stand for election at the time his or her nomination paper is scrutinized, there seems no reason why her or she should be debarred from so doing. There is nothing in the Representation of the People Act, 1951, as it now stands, to indicate that Parliament's intention was to place all the emphasis on the date of the nomination and none on the date of the scrutiny, and if, therefore, the returning officer in this case held that the appellant was entitled to stand for election--as she was on the date of the scrutiny qualified to do so- it seems to me difficult to say that his decision was improper.