S M SOLAIMAN Vs. NOOR MAHOMMED

JUDGEMENT

(1.) The petitioner was a candidate for election to the Calcutta Corporation from the Mahomedan Constituency of Ward No. 25. There was only one vaqancy to be filled up from that ward. There were three candidates. The petitioner filed six nomination papers; they were all rejected at the scrutiny by the returning officer, Dr. S. Z. Ahmad, respon. dent 2 and respondent 1, Mr. Noor Maham-mad was elected Councillor defeating the other candidate, Mr. Mahammad Ali Khan. The respective number of votes obtained by each was 142 and 109 respectively. The petitioner seeks to set aside the election on the ground that the returning officer illegally and unfairly rejected his nomination paper. He alleges that the result of the election has been mate-rially affected by this illegal and wrongful rejection. The admitted and unchallenged facts are these. On 28 February 1944 the petitioner delivered to the returning officer six nomination papers. The returning officer received and marked them serially with the numbers 9 to 14. The proposers and seconders in the respective nomination papers were as follows: It should be noted that in nomination paper No. 14 the Seconder's number in the electoral roll was given as 12 whereas in the electoral roll his number was 102.

(2.) At the time of scrutiny the returning officer; first took up nomination paper No. 14 and rejected it on the ground that the person whose number in the electoral roll was 12 was not Shawkat Ali but some one else. He purported to act under Rule 14 (1) (iv) of the rules framed by the Government under the Calcutta Municipal Act. He then took up nomination paper No. 9 and rejected it on the ground that K. Ahmed, the proposer named therein, had also subscribed his name as proposer in nomination paper No. 14. He held that there being only one vacancy a proposer was entitled to subscribe one nomination paper only under Rule 6 of the aforesaid rules and that consequently the nomination paper no. 9 waa also bad. Thereafter he took up the other nomination papers and rejected them on the same-ground. The first point urged by the petitioner is that nomination paper No. 9 having been first received by the returning officer it could not be rejected on the ground that the proposer had subscribed as proposer on another nomination paper inasmuch as a paper first received must be deemed to be valid so far as this defect is concerned. He relies on Rule14 (2) (b) which is in these terms: Where a person has subscribed whether as proposer or seconder a larger number of nomination papers than there are vacancies to be filled, those of the papers so subscribed which have been first received, up to the number of vacancies to be filled, shall be deemed to be valid. The Sub-rule is quite clear. If nomination paper No. 9 had been first received by the returning officer then, in spite of the fact that the same proposer had subscribed his name in the subsequently received nomination papers, that nomination paper must be deemed to be valid. The learned Advocate-General appearing for respondent 1 agrees that this must be so; but he contends that Sub- rule (2) (b) of Rule 14 cannot apply as all the nomination papers were made over to the returning officer by the candidate "in a lump" and it was not possible to say that paper no. 9 was first received. If his view be correct then a candidate cannot avail himself of the benefit of this Sub-rule unless he hands over his nomination papers one after the other with an interval of time between each handing over. I cannot imagine that there could have been any such intention in the authority that made the rule. A candidate is allowed under the Act to deliver to the returning officer as many nomination papers as he chooses. If he has several nomination papers ready before going to the returning officer it would be but natural for him to make them over in one bundle to the returning officer. It would be unreasonable to hold that unless he made them over one after the other with a pause between each handing over he must be deprived of the benefit of Rule 14 (2) (b). It may be to avoid an argument of this nature that Rule 10 provides that on receiving a nomination paper the returning officer shall enter on it its serial number and shall sign a certificate stating the date on which and the hour at which the nomination paper has been delivered to him. Here the time of receipt entered on all the six nomination papers is the same. They were undoubtedly handed over in one bundle but the returning officer had to put serial numbers on them; the first serial number was No. 9 and it was put on the nomination paper under consideration. In my opinion although all the papers were delivered in a bunch it is just and reasonable to hold that the paper which bears the earliest serial number is the paper which was first received. Delivery and receipt are not the same thing. A thing is received when a person takes it with the intention of accept, ing it. The returning officer signifies his acceptance on receipt of a document when he puts a serial number on it. The receipt is complete when the serial number is put. After this the next document is taken up and the receipt is completed in the same way. In myr opinion although all the nomination papers were delivered in a bundle nomination paper No. 9 must be taken to have been first received for the purposes of Rule 14 (2) (b). That being so it is entitled to the benefit of that Rule and must be deemed to be valid in spite of the fact that the proposer named therein has subscribed his name as proposer in the other nomination papers received later. The returning officer was therefore wrong in rejecting this paper. I next take up for consideration the rejection of nomination paper No. 14. The returning officer has rejected it, purporting to act in accordance with the provisions of Rule 14 (1) (iv) which is as follows: 14. (1) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds: (iv) that the candidate or the proposer or seconder is not identical with the person whose electoral number is given in the nomination paper as the number of such candidate, proposer or seconder, as the case may be. As stated before, the seconder Shawkat Ali's number in the electoral roll is 102 but in the nomination paper his electoral roll number was erroneously given as 12. It is not suggested that the seconder is not identical with Shawkat Ali. The one is identical with the other. It is nobody's case that the name of a fictitious seconder has been put on the nomination paper or that some one has personated some one else. Put shortly the nomination paper has been rejected because Shawkat Ali's roll number has been wrongly given or, as has been stated by the returning officer, because the "number of the seconder as given in the nomination paper does not tally with his number in the electoral roll." Now, does Rule 14 (1) (iv) direct a nomination paper to be rejected on a ground like this ? The learned Advocate- General argues that it does. I am unable to agree. The Sub-rule does not contemplate a case where a seconder is by mistake given a wrong electoral number in the nomination paper. It presupposes that the electoral number given in the nomination paper to the person named as seconder and the number of that person in the electoral roll tallies and enacts that if the seconder is not identical with the person who bears that electoral number then the nomination paper will be rejected; in other words, what the Rule provides is that if the person bearing that electoral number (and if I am right in my interpretation he will also bear the same name as that given in the nomination papers) comes forward and says he is not the seconder or if some one else proves that such person is not the Seconder the nomination paper will be rejected. The Sub-rule does not contemplate the rejection of a nomination paper merely because an erroneous number is given. I agree that the drafting of pule 14 (1) (iv) does not make its meaning very clear but I am convinced for the further reasons which I shall presently give that the meaning is as stated above and not as suggested by the returning officer and the learned Advocate-General. My reasons for holding that the Sub-rule is based on the presumption that there has been no mistake regarding the electoral number are based principally on Rule 9 which is as follows: 9. On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and numbers on the electoral roll of the candidate and his proposer and seconder as entered in the nomination paper are the same as those entered in the electoral roll. Where necessary he shall direct that the former be amended so as to be in accordance with the latter. It shall be also competent for the returning officer to alter or amend any entry in the nomination paper presented to him with a view to ensuring accurate and adequate publication under Rule 10 of the names of candidates and of persons who have subscribed the nomination paper as proposer and seconder.

(3.) The section clearly lays a duty upon the returning officer at the time of receiving the nomination paper to satisfy himself that the electoral number is correctly given. If it is not correctly given it is his duty to direct the candidate to correct the mistake. If the candidate does not correct it or if he discovers the error when the candidate is not available he is given the power to make the correction himself. After making these corrections he is directed to publish a notice containing descriptions similar to those given in the nomination paper. The reason for having every thing corrected before publication is obvious. The voters and other candidates must have a correct statement of the names and numbers of the proposer, seconder and candidate in Order to decide as to whom they should give their votes and also to decide if they will take any objection at the time of the scrutiny. Rule 9 has been enacted to ensure that the names and electoral numbers shall be correct and shall tally before publication. Scrutiny and rejection come after publication. This stage is dealt with by Rule 14. The law always presumes that official duties are duly performed. Rule 14 must therefore be based on the presumption that the returning officer has done his duty in accordance with Rule. 9 and that he has satisfied himself that the names and numbers on the electoral roll of the candidate and his proposer and seconder as entered in the nomination paper are the sane as those entered in the electoral roll. I am here quoting the very words of Rule 9. If that be correct, can it be reasonable to inter, pret Rule 14 as directing the same returning officer to reject a nomination paper because the electoral number in the nomination paper does not tally with the electoral number in the electoral roll ? In other words can this Rule mean that the returning officer is to reject a nomination paper and debar a candidate from standing for election because he (the returning officer) has failed to perform the duties imposed upon him by the earlier Rule 9 ? Such an interpretation would be absurd. The absurdity of this construction can be demonstrated in another way. If this construction be adopted I would have to hold that the law has given the returning officer two conflicting directions, one to correct the erroneous electoral number in the nomination paper and another to reject the nomination paper because it contains an erroneous electoral number. In my opinion, an interpretation leading to this result is manifestly absurd. If the Sub-rule be carefully analysed it will, I think, be clear that this is not the meaning of the relevant words used. They are: ....the seconder is not identical with the person whose electoral number is given in the nomination paper as the number of such ... seconder ....