DHARAMPAL SINGH Vs. JASMA DEVI

JUDGEMENT

(1.) General elections to the Haryana Legislative Assembly were held in May/June, 1987. Smt. Jasma Devi respondent was elected on the ticket of the Indian National Congress (I) (for short 'Congress (I)') from 79 Adampur Constituency. Her election has been called in question by the petitioners on the ground that the nomination paper of Azad Singh petitioner 2 was improperly rejected. Dharampal Singh petitioner 1 was a candidate for election from the same constituency on Lok Dal (B) party ticket, but he was defeated by the respondent by a margin of nearly 10,000 votes. Besides petitioners 1 and 2, Dalbir petitioner 3, is an elector from the same constituency.

(2.) The last date for making nominations was May 25, 1987. Azad Singh presented his nomination paper Ex.P.W. 2/1 before the Returning Officer. Since he was an illiterate person, he affixed his left thumb-impression on Ex.P.W. 2/1 and the same was attested by the Returning Officer. The scrutiny of the nomination papers took place on 26-5-1987. The nomination paper of Azad Singh (Ex.P.W. 2/1) was rejected by the Returning Officer vide his order Ex.P.W. 2/1-C. The order is to the following effect :-

(3.) The petitioners contend that when Azad Singh filed his nomination paper on 25-5-1987 before the Returning Officer, he being illiterate, disclosed his identity to the Returning Officer and thumb-marked the nomination paper in his presence. The Returning Officer, on being satisfied as to his identity, attested his thumb-impression under his own signatures as required under R.2(2)(b) of the Conduct of Election Rules, 1961 (for short 'the Rules'). The Returning Officer on receiving the nomination paper of Azad Singh indicated to him that the nomination paper was "all right" and thereafter the Returning Officer administered the prescribed oath to him and issued the receipt of security, certificate of oath and notice for scrutiny which was to take place on 26-5-1987. The Returning Officer under S.33(4) of the Representation of the People Act, 1951 (for short 'the Act') is mandatorily required to satisfy himself that the name 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. Where the name and electoral roll number do not tally, it is the statutory duty of the Returning Officer to have the same corrected under the proviso to S.33(4) of the Act. It was, therefore, illegal and improper on the part of the Returning Officer not to carry out his statutory duty and later on to make his own omission the basis for rejecting the nomination paper. The Returning Officer was debarred from rejecting the nomination paper on such a ground. Section 36(4) of the Act gives a mandate that the nomination paper shall not be rejected on any defect which is not of a substantial character. The part number of the electoral roll, namely 102, was correctly mentioned in the nomination paper. Only the serial number was wrong. The said part of the electoral roll contained the names of only 726 electors and there was only one elector by the name of Azad Singh appearing at Sr. No. 231. The Returning Officer could, therefore, have easily located the name of Azad Singh petitioner No. 2 from the electoral roll without any difficulty.