AB GAFFAR Vs. SHAMIM AHMAD SHAMIM

JUDGEMENT

(1.) THIS is an Election petition filed by Abdul Gaffar under Section 81 of the Representation of the people Act of 1951 (hereinafter called the Act) for declaring the election of respondent No, 1 as void, pursuant to the improper rejection of the nomination paper of Shri Saif -ud -Din Qari a detenu (under the Preventive Detention Act) in the Central Jail Srinagar by the Returning; Officer Parliamentary Constituency Srinagar.

(2.) THE petitioner has averred that he is an elector of the Parliamentary Constituency Srinagar and is registered as such at No. 301 Part 2 -346/SMG/5/18, Ward No. 5 in the Electoral Roll of Srinagar Parliamentary Constituency and as such was entitled to vote at the election. In pursuance of Notification of the President of India published in the Gazette of India calling upon all the parliamentary Constituencies to elect members for the House of People, nomination papers were filed for the election, of the Srinagar Parliamentary Constituency by various candidates including Shri Saif -ud -Din Qari and Shri Shamim Ahmad Shamim. The last date for making nominations was notified as 8 -2 -71 and the date for scrutiny of nomination papers was notified as 9 -3 -1971. When the scrutiny was held on due date the nomination papers of Shri Saif -ud -Din Qari and Shri Ghulam Hassan were rejected by the Returning Officer respondent No, 2. Nomination papers of the remaining candidates were accepted -and in all 8 candidates were validly nominated The petitioner has averred that Shri Saif -ud -Din Qari was at all material times qualified to be chosen to fill a seat in the House of the People under Article 84 of the Constitution of India and his name is entered at Serial No.592 in part No. 2 -272/SMG -4/12 of the Electoral Roll of Srinagar Parliamentary Constituency. The Said Shri Saif -ud -Din Qari was detained in Central Jail Srinagar under the Jammu and Kashmir Preventive Detention Act and has been in detention since then. On 6th of Feb. 1971 the name of Shri Saif -ud -Din Qari was proposed for nomination as candidate in the Election to the House of People from the Srinagar Parliamentary Constituency by four nomination papers signed by (i) Shri Ghulam Mohd. (ii) Shri Abdul Salam, (iii) Shri Nazir Ahmad and (iv) Shri Ghulam Nabi whose names are entered at relevant serial numbers in the Electoral Roll for the Srinagar Parliamentary Constituency. The petitioner has filed certified copies of the four nomination papers which are annexures II(A), II(B), II(C) and II(D). One Shri Raghunath Veshnavi Advocate addressed a letter to the Superintendent Central Jail Srinagar on 6th Feb. 1971 to the effect that Shri Saif -ud -Din Qari the detenue be permitted to put his signatures on the nomination papers which were enclosed and to make and subscribe the oath as required by the Constitution of India before him at his office in the Central Jail Srinagar. It was further stated in the letter that the nomination papers and the oath form were to be delivered to the Returning Officer Srinagar Parliamentary Constituency on that day. The Superintendent Central Jail was requested to attest the signatures and the making and subscribing of the oath by the said Shri Saif -ud -Din Qari (vide copy of the letter Annexure III). Four nomination papers were sent to the said Superintendent Central Jail the first part of which had been duly filled in and bore the signatures of the proposers in token of having nominated Shri Saif -ud -Din Qari candidate for the election. On permission being granted by the Superintendent Central Jail Shri Saif -ud -Din Qari assented to the nomination of his name as a candidate for election to the Lok Sabha from the Srinagar Parliamentary Constituency and in token thereof he put his signatures on each one of the four nomination papers before the Superintendent Central Jail on 6th of Feb. 1971. The Superintendent Central Jail was requested that Shri Saif -ud -Din Qari be allowed to make and subscribe the oath as required by the Constitution as he (Superintendent) was authorised by the Election Commission as the person before whom oath could be made and subscribed to. After putting the signatures on the four nomination papers Shri Saif -ud -Din Qari made and subscribed the oath before the Superintendent Central Jail Srinagar on 6th of February 1971 and the latter issued a certificate to the effect that the candidate had -made and subscribed the oath as required by the Constitution before him at his office at Central Jail Srinagar at 1445 hours on 6th February 1971 (vide copy Annexure iv). The prescribed time for receiving the nomination papers by the Returning Officer was on any day before the last day upto 3 P.M. The oath having been made and subscribed at 2:45 P.M. there were hardly 15 minutes left to reach the office of the Returning Officer at 3 P.M. On 6th Feb. 1971 in view of the distance from Central Jail to the office of the Returning officer, 7th Feb. being Sunday was a public holiday on which nomination papers could not be delivered to the Returning Officer ; therefore the nomination papers alongwith various papers were delivered to the Returning officer by the proposers on 8th of Feb. 1971. At the time of Scrutiny held on 9th Feb. 1971, the certificate of the Superintendent Central Jail certifying that the requisite oath had been made and subscribed was produced before the Returning Officer. An objection was raised that the oath under Section 84 of the Constitution of India had been taken by Saif -ud -Din Qari before his process of nomination was complete, i.e. when he was not yet nominated. This objection though not tenable prevailed with the Returning Officer notwithstanding the fact that an application supported by an affidavit was filed by Shri R. N. Veshnavi Advocate before the Returning Officer informing him that Shri Saif -ud -Din Qari had first assented to his nomination papers and had signed at the requisite place .and thereafter he made and subscribed the requisite oath and that therefore he had subscribed the oath after having been nominated. The Returning Officer rejected all the nomination, papers of Shri Saif -ud -Din Qari on the ground that the. oath or the solemn affirmation could be made and subscribed by a candidate only after his nomination papers were delivered under section 33 to the Returning Officer and that process of nomination was complete only after the nomination papers were delivered to the Returning Officer. As Shri Saif -ud -Din Qari had made and subscribed the oath on 8th Feb. 1971 before the nomination papers were delivered to the Returning Officer, therefore, he, it was held, was not qualified to be chosen under section 36(2) sub -Section (a) of the Act. The petitioner has called in question the rejection of the nomination papers of Mr. Qari on the ground that it is a fraud on the Constituency and the nomination papers have been rejected improperly so as to attract the provisions of Section 100(l)(c) of the Act. The Returning Officer has misconstrued the provisions of Sections 30, 31, 32 and 33 of the Act and also the judgment of the Honble Supreme Court in -Pashupatl Nath Singh V/S Hari Har Parshad reported in A.I.R. 1968 S,C. 1064. The Returning Officer has failed to grasp the generic concept of nomination and has signally failed to appreciate the distinction between the factum of nomination which according to the petitioner was consummated with the assent of the candidate to his nomination by his proposer or proposers and the delivery of the nomination papers to the Returning Officer. He has also failed to grasp the distinction between nomination simpliciter and a valid nomination. The Constitutional requirement as given in the prescribed oath form is "having been nominated as candidate" and not having been validly or duly nominated as a candidate. Shri Qari therefore after executing his assent in terms of the prescribed oath could claim as having been nominated and thus could make and subscribe the requisite oath thereafter even before the nomination papers were delivered to the Returning Officer. Since these requirements were complied with by Mr. Qari he could be said to have been nominated on 6th February 1971 when he completed the nomination papers in the prescribed form and signed the same. In view of this the Returning Officer was wrong in rejecting the nomination papers of Shri Saif -ud -Din Qari. The petitioner has, therefore, prayed that the court may declare the Election of the returned candidate respondent No. 1 to be void and his election be set aside. A sum of Rs. 2000.00 towards security for the cost of the petition has been deposited by the petitioner.

(3.) IN his written statement Shri Shamim Ahmad Shamim respondent 1 has admitted the contents of paras Nos 1, 2, 3, 4, 5, 6 and 7. He has expressed his ignorance in regard to the fact of Shri Saif -ud - Qari having filed four nomination papers as a candidate for the election to the House of People for Srinagar Parliamentary Constituency. He has denied that Shri R. N. Veshnavi Advocate addressed a letter to the Superintendent Central Jail Srinagar seeking his permission to put the signatures of Shri Saif -ud -Din Qari on the nomination papers and also to make and subscribe the oath to the detenue in the Central Jail Srinagar. The fact of the proposers of Shri Saif -ud -Din Qari having signed the nomination papers and also of Shri Saif -ud -Din Qari having given his assent by way of signing the nomination papers and also the fact of making and subscribing the oath and the filing of the nomination papers have also been denied by the respondent No. 1. It is denied that Shri Saif -ud -Din Qari made and subscribed the oath on 6th of Feb. 1971 at 2.45 P.M. before the Superintendent Central Jail Srinagar. Mr Qari had not taken and subscribed the oath in accordance with the constitutional provisions and he was not qualified to be chosen as a candidate under section 36 (2) sub -section (a) of the Act. He did not comply with the constitutional requirements and his nomination papers were rightly rejected by the Returning Officer. Respondent No. 2 has not filed any written statement. The following issue was framed in the case: - 1. Was the nomination papers of Shri Saif -ud -Din Qari improperly rejected and if so, what is its impact on the election of respondent No. 1 ?.