BALBIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) IN this writ petition under Arts. 226 and 227 of the Constitution of India the five petitioners have prayed for the issue of a writ in the nature of certiorari or mandamus or any other writ for quashing an order dated 9th June, 1977, passed in revision by the Deputy Secretary to Government, Punjab, Co--operation Department. By that order election to the Managing Committee of Ghungrali Sewak Co--operative Agricultural Service Society had been set aside. The petitioners had been elected without a contest, as the nomination papers of respondents Nos. 3 to 15 had been rejected by the Returning Officer at the time of scrutiny. This defect was found common to all these respondents that the name of the Society to whose Managing committee election was sought was missing. The order about the rejection of nomination papers was upheld in appeal by the Deputy Registrar, Co--operative Societies, Ludhiana, through an order passed on 12th July, 1976. There was a further appeal under S. 62 of the Punjab Co--operative Societies Act, which was again dismissed by the Joint Registrar, Co--operative Societies, on 29th October, 1976. Petitioner No. 5 is Harnek Singh. It was found by the Joint Registrar that he had been convicted under S. 304-A of the Indian Penal Code. It is provided by R. 25 (d) of the Punjab Co--operative Societies Rules that a person who has committed any offence involving dishonesty or moral turpitude during the period of 5 years prior to the date of scrutiny of nomination papers was not eligible for election as a member of the Committee. Thus in appeal, election of petitioner No. 5 was quashed by the Joint Registrar but the appeal against the other petitioners was dismissed. There was then a revision on behalf of respondents Nos. 3 to 15 which was accepted by the Deputy Secretary to Government of Punjab on 9th June, 1977, who took this view that the defect in the nomination papers was such as could be got corrected by the Returning Officer. The nomination papers were held to have been rejected on a flimsy ground,

(2.) THE State of Punjab and the Joint Registrar have been impleaded as respondents Nos. 1 and 2. In the written statements filed by them and the one filed by respondents 3 to 15 it has been canvassed that no material irregularity had been committed in the nomination papers by non--mention of the Society to whose Managing Committee the election was sought. It was urged before me that election was being held in relation to one Managing Committee and the Returning Officer could not have been in any doubt about the Society to which the nomination papers related.

(3.) IN the impugned order reliance was placed on Shopat Rai v. The Registrar Co--operative Societies, Punjab, 1973 Pun LJ 757. This was a case under the Punjab Co--operative Societies Rules. It is laid down therein that if there is any mistake in filling nomination papers it is the duty of the Returning Officer to render help for the rectification of the mistake. The nomination papers had been rejected only on the ground that the member had not mentioned the zone from which he was seeking election in the relevant column. This finding was given that nomination papers could not have been rejected for failure to mention the zone. The learned counsel for the petitioners contended that there were two authorities of the Supreme Court to the contrary. One of those is Dharam Singh Rathi v. Hari Singh, MLA, AIR 1975 SC 1274. Nomination papers not giving full and proper postal address were rejected as the omission amounted to a defect which could not be rectified at the time of the scrutiny. It was, however, remarked that there could be some such defects which of necessity should be rectified. In the absence of a correction the nomination papers were liable to be rejected. In this ruling sub--s. (4) of S. 36 of the Representation of the People Act was being interpreted. It says that the Returning Officer shall not reject any nomination papers on the ground of any defect which is not of a substantial character. The omission referred to above was held to be of a substantial character, and hence rejection of the nomination papers was said to be not improper. The main reliance of the learned counsel for the petitioners is, however, on the other ruling of the Supreme Court reported as Prahladdas Khandelwal v. Narendra Kumar Salve, AIR 1973 SC 178. Rejection of nomination papers for omission to mention name of constituency was held to be of a substantial character and said to be not falling within those provisions where the Returning Officer was enjoined either to get that defect rectified or to ignore it. It was a case of mid--term election to the Lok Sabha from a constituency in the Madhya Pradesh. There was a prescribed form and the name of the Parliamentary constituency was required to be mentioned therein. In the absence of the name, the Returning Officer could not know from which constituency the election was being sought. From the side of the respondents Rangilal Choudhury v. Dahu Sao, AIR 1962 SC 1248, was cited. In this case the non--mention of the name of constituency in the nomination papers for election to Bihar Assembly was held to be not a mistake of a substantial character. It was a case relating to by--election to one constituency. This ruling was considered in Rajbali Singh v. Shyamalal, AIR 1973 SC 276. The observations made in para 5 of the judgment delivered by the Supreme Court in this case are very much relevant and they require to be quoted as follows:-