Civil Appeal No 720 of 1978
Appeal under section 116 A of the Representation of People Act 1951 from the Judgment and Order dated 7 2 1978 of the Punjab and Haryana High Court in EP No 1577
Hardev Singh for the Appellant
P P Rao O P Sharma R Venkataramiah and R C Bhatia for the Respondents
The Judgment of the Court was delivered by SHINGHAL J
This appeal by election petitioner Harjit Singh Mann is directed against the judgment of the Punjab and Haryana High Court dated February 7 1978 dismissing the petition by which he had challenged the election of Umrao Singh respondent No 1 hereinafter referred to as the respondent from the Nakodar constituency of the Punjab Legislative Assembly
The result of the election was declared on June 14 1977 according to which the respondent was declared elected as he secured the highest votes at the poll
503 Appellant Harjit Singh Mann could not contest the election as his nomination papers were rejected by the Returning Officer on May 19 1977 which was the date fixed for the scrutiny of the nominations
That was taken as one of the grounds for filing the election petition the other ground being the commission of some corrupt practices by the respondent
The respondent traversed the allegations
The trial court examined some of the preliminary objections and framed eight issues
The first two issues were decided in favour of the appellant
As regards issue No 3 the trial court held that a part of the allegation of corrupt practice which was sought to be incorporated in the amended petition could not be taken into consideration as the amendment was applied for after the expiry of the period of limitation and it was therefore ordered to be deleted
The correctness of the above findings has not been challenged before us
In fact we are required to consider the trial court s findings only on issues Nos 4 5 and 6 which have all gone against the appellant
Issues Nos 7 and 8 have not been pressed for our consideration
We shall therefore concern ourselves with three issues Nos 4 5 and 6 and deal with them one by one
Issue No 4 was to the following effect Whether Jit Ram proposer of the petitioner reached the office of the Returning Officer at 250 pm and filed the nomination papers of the petitioner before 300 pm on 18 5 1977 and whether the endorsement made on the nomination papers that the nomination papers were received at 310 pm was wrongly made and thereby illegally rejected the nomination papers of the petitioner on 19 5 1977  If so to what effect
 The appellant s allegation in this respect was that although Jit Ram PW 7 who had proposed his candidature reached the office of the Returning Officer after depositing the necessary security in the bank at 250 pm on May 18 1977 and the Returning Officer placed the nomination papers on his table he wrongly asked Jit Ram to take back the nomination papers saying that the time for filing them had expired
It was further alleged that the Returning Officer got annoyed when Jit Ram protested that he had filed the nomination papers in time and that he wrongly noted down the time of presentation of the nomination papers as 1510 hours
As has been stated the trial court has disbelieved the averment of the petitioner in this respect and found the issue against him
We have gone through the statement of Jit Ram PW 7 who according to the appellant s case presented the nomination papers to 504 the Returning Officer
The witness has however admitted in cross examination that when he was trying to deliver the nomination papers the Returning Officer said that he objected to the delivery of the nomination papers as the time was over
The witness no doubt claimed that he reached the office of the Returning Officer after depositing the security at about 245 pm and that when the Returning Officer told him that the time for the filing of the nomination papers had expired some four other persons standing in the office of the Returning Officer said that still two minutes remained for it becoming 3 O clock and some said that one minute still remained
The trial court disbelieved that version of Jit Ram
He really could not even read the time in the clock of the trial court for when he deposed that it was 319 pm the time accordingly to that clock was 36 pm
Jit Ram did not therefore have the capacity of reading or stating the time correctly and it may in fact be said that what he deposed about the presentation of the nomination papers a couple of minutes or a minute before 3 pm was nothing but hearsay
The trial court has examined the other evidence of the parties including the statement of Returning Officer Manohar Singh RW1 and we have no doubt that its finding that the nomination papers were filed 10 minutes after 3 pm is fully borne out by the evidence on the record and is correct
It has to be appreciated that it is the requirement of the law that the Returning Officer should mention the time of the presentation of the nomination papers and that endorsement exhibit PW119 has been proved by the Returning Officer
It shows that the nomination papers were presented on May 18 1977 at 1510 hours by the proposer and the endorsement to that effect was duly signed by the Returning Officer
There is no reason to disbelieve that evidence
The fact of late presentation of the nomination papers was reiterated by the Returning Officer in his order of scrutiny exhibit PW 120 on May 19 1977
In that order he clearly stated that as the nomination papers was delivered to him on May 18 1977 after 3 pm ie at 1510 hours by the proposer Shri Jit Ram he rejected it for that reason and also for the reason that the required oath or affirmation was not made by the candidate
It may be mentioned that the form of the nomination paper prescribed by the Conduct of Election Rules 1961 provides for the issue of a receipt for the nomination paper and the notice of scrutiny which has to be handed over to the person presenting the nomination paper
The serial number of the nomination paper the name of the candidate the name of the constituency the date and time of presentation of the nomination paper and the date and time fixed for its scrutiny had therefore to be mentioned in that receipt and we find from the judgment of the trial court that the 505 non production of that receipt by the appellant has rightly been taken as a circumstance against him
On the evidence before it the trial court was justified in finding issue No 4 against the appellant and in holding that the nomination papers were filed after the expiry of the time prescribed for them ie at 310 pm
An attempt was made to argue that the delay in the presentation of the nomination papers in question could not justify its rejection as it was not a defect of a substantial character within the meaning of sub section
4 of section 36 of the Representation of the People Act 1951 hereinafter referred to as the Act
In order to appreciate the argument it is necessary to make a cross reference to sub s1 of section 33 of the Act which provides as follows 331 On or before the date appointed under clause a of section 30 each candidate shall either in person or by his proposer between the hours of eleven O clock in the forenoon and three o clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer
It is therefore the requirement of that sub section that inter alia the nomination paper shall be delivered to the Returning Officer between the hours of eleven O clock in the forenoon and three O clock in the afternoon so that a nomination paper delivered after three O clock in the afternoon cannot be said to comply with that provision of section 33
Sub section 2 of section 36 of the Act which provides for the examination of the nomination papers for the purpose of deciding all objections made to any nomination requires that the Returning Officer shall reject any nomination paper on the grounds mentioned in the sub section
We are concerned with ground No b which provides as follows b that there has been a failure to comply with any of the provisions of section 33 or section 34
So as there was failure to comply with that provision of section 33 which required the delivery of the nomination paper between the hours of eleven O clock in the forenoon and three O clock in the afternoon the Returning Officer had really no option but to reject the nomination paper
We have considered the argument that such a defect was not of a substantial character within the meaning of sub section
4 of section 36 of the 506 Act but we are unable to uphold it in the face of the clear requirement of ground b of sub section
2 of section 36 referred to above
It has to be appreciated that any other view would make the requirement for the presentation of the nomination paper before the last date for making nominations and within the specified period of time unworkable for it will not then be possible to draw a line upto which the delay in the delivery of the nomination papers could be condoned
In fact if the requirement of the law in that respect is not observed and its breach is considered to be a defect which was not of a substantial character it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and time fixed for the scrutiny of the nominations
That would not only cause administrative inconvenience but put the other candidates to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of the scrutiny of the nominations
We have no hesitation therefore in taking the view that the failure to comply with the requirement that the nomination papers shall be delivered between the hours of eleven O clock in the forenoon and three O clock in the afternoon is mandatory and the Returning Officer was justified in rejecting the nomination paper in question because of its breach
A similar provision in an election rule has been stated to be mandatory in Rogers on Elections Volume III twentyfirst edition at page 74 and it has been observed that the rule must be literally complied with
Reference in this connection may be made to Cutting vs Windsor
There Avory J referred to the requirement of r 7 in Part II of the third Schedule to the Municipal Corporations Act 1882
according to which the nomination paper had to be delivered before five O clock in the afternoon of the last day for the delivery of nomination papers and rejected the argument that what had occurred there was a pure technicality
He held as follows So far as rule 7 provided for the time within which nomination papers must be delivered at the town clerk s office it was mandatory
It was not within the discretion of the town clerk to receive nomination papers after the hour specified in the rule nor was it competent to that Court to say that the delivery of a nomination paper after the prescribed time constituted a good nomination
Mr Windsor had never been duly nominated and his election must be declared void
Mr Cutting was the only other candidate and he must be declared to have been duly elected
507 Horridge J agreed with him saying that if Windsor had never been nominated it was impossible for the Court to say that his election was in accordance with the principles laid down in the body of the Act
The same view has been expressed in Parker s Conduct of Parliamentary Elections 1970 on page 137 The returning officer has no power to extend the time for delivery see Howes vs Turner  Cutting vs Windsor 40 Times LR 395
The matter has been dealt with in Parliamentary Elections by A Norman Schofield second edition on pages 149 150 under the rubic Delivery at wrong time and it has been held that the requirement in that respect is mandatory
So as the provision of section 36 regarding the delivery of the nomination papers between the hours of eleven O clock in the forenoon and three O clock in the afternoon was not complied with the Returning Officer had no option but to reject the nomination paper in question as required by section 362 b of the Act and the finding of the trial court in that respect is quite correct
Issue No 5 raises the question whether the appellant reached the office of the Returning Officer at 345 pm on May 18 1977 and took oath in the presence of the Returning Officer who however failed to make the necessary endorsement on the nomination paper
It is not in controversy that it was obligatory under cl
a of article 173 of the Constitution for the appellant to make and subscribe before a person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule and that he could not be qualified to be chosen to fill a seat in the Legislature of a State without doing so
The importance of that requirement of the Constitution has been reiterated in sub section
2 of section 36 of the Act for ground No a thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nomination the candidate was inter alia not qualified to be chosen to fill the seat in the Legislative Assembly under article 173 of the Constitution
The requirement for the making and subscribing the oath or affirmation was therefore clearly mandatory
The appellant tried to establish the plea that he reached the office of the Returning Officer at 345 pm on May 18 1977 and took 508 oath in the presence of the Returning Officer who however failed to make the necessary endorsement to that effect
That averment was denied on behalf of the respondent and we find that the trial court has adequately dealt with the evidence on the record in that respect
It will be sufficient for us to mention that the Election Commission took care to point out the importance of the requirement for the making and subscribing the oath or affirmation in their Handbook for Returning Officers and directed that the authorised person before whom that was done would forthwith give a certificate to the candidate that he had made and subscribed the oath before him on the date and hour mentioned in the certificate
It has been emphasised that the certificate would be given to the candidate without his applying for it for that would avoid all controversy later on as to whether he had taken the oath or not
Annexure VI provides for the issue of that certificate in the portion which appears just below the perforated portion of the form of oath or affirmation prescribed by the Constitution
It may be pointed out in this connection that the appellant admitted in his statement that he was given a slip by his proposer Jit Ram PW 7 in which it was mentioned that he should take oath or make the affirmation before the Returning Officer on May 19 1977
It is therefore quite clear that the oath or affirmation had not been made or subscribed at the time of the presentation of the nomination papers and as the appellant was not able to produce the certificate of his making or subscribing the oath or affirmation before the Returning Officer thereafter in the manner alleged by him there is nothing wrong with the view taken by the trial court that he did not really do so and we do not think it necessary to reappraise the evidence in that connection
Issue No 6 dealt with the question whether the respondent was guilty of the corrupt practice of bribery alleged in paragraph 11 of the petition
The allegations were amended by the appellant but a part of them were ordered to be deleted and there is no grievance in that respect
The remaining allegation was to the following effect 11
That after the last Parliament Elections and installation of Janta Party Government at the Centre it became evident that the State Government would be toppled and the Ministers of the Previous Congress Government and specially respondent No 1 with a view to bribe the voters or the Constituency he started giving large sum of dis 509 cretionary grants in the Constituency
To name a few Bara Pind Littran Dalla etc
He used his influence in the Department that the funds were released during the Elections
This was done with the object of influencing the electors of those villages to vote in favour of respondent No 1
Respondent No 1 went to village Bara Pind on 25 5 1977 at 500 pm and in the presence of Master Jasmel Singh handed over a cheque No K 314781 dated 29 4 1977 for a sum of Rs 20000 out of the accounts of Punjab State Sports Council to the lady Sarpanch Smt
Banti and Biant Kaur and gave a lecture requesting the co villagers to vote for him since he had given the money
On 27 5 1977 respondent No 1 went to village Littran at 4 pm and gave a cheque of Rs 5000 in the presence of about 50 villagers including Chanan Singh Mistri to section Balwant Singh Bali a cheque No K 314782 and called upon those present to vote for him
The cheque was issued out the funds of Punjab State Sports Council
It is hardly necessary to say that the allegations were traversed by the respondent and the trial court found that they had not been established
The corrupt practice which was thus alleged against the respondent was one under section 1231 a b according to which any gift offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever with the object directly or indirectly of inducing an elector to vote or refrain from voting at an election is a corrupt practice
In view of the allegations mentioned above it appears that it was not the allegation of the appellant that the gift offer or promise was made as a reward to an elector for having voted or refrained from voting within the meaning of sub cl
ii and it could only be said to fall under sub clause b of section 1A as the allegation was that the bribery was meant to induce the electors to vote for the respondent
It is nonetheless an essential ingredient of the definition of the corrupt practice of bribery that the gift offer or promise should be by the candidate or his agent or by any other person with the consent of the candidate or his election agent
Part VI of the Act deals with disputes regarding elections and Part VII deals with Corrupt Practices and Electoral Offences
Section 79 of the Act provides that both in Parts VI and VII unless the context otherwise requires the definitions mentioned in it would govern the interpretation of those parts
Clause 510 b of the section defines the expression  candidate  as follows  Candidate  means a person who has been or claims to have been duly nominated as a candidate at any election
It has therefore to be seen whether the respondent had been duly nominated as a candidate at the election in question or whether he claimed to be duly nominated at that election at the time when the corrupt practice was alleged to have been committed by him
It is nobody s case that the respondent laid any such claim at any point of time until his nomination paper was scrutinised and he was held to be a validly nominated candidate only after the nomination was scrutinised by the Returning Officer on May 19 1977
He could not therefore be said to be a candidate  within the meaning of section 123 read with section 79 of the Act until that date
The allegation in paragraph 11 of the election petition was to the effect that the cheque of Rs 20000 was delivered at village Bara Pind on May 25 1977 and the votes were solicited on that date
As regards village Littran the allegation was that a cheque of Rs 5000 was delivered on May 27 1977 and votes were solicited
It is not disputed however that the precise evidence against the respondent was that he made an order for the delivery of Rs 20000 on April 17 1977 in respect of village Bara Pind and on April 29 1977 in respect of village Littran in his capacity as the Minister for Revenue
Both these orders were therefore made before the respondent was a candidate at the election in question and it is not disputed before us that he ceased to be a minister on April 30 1977 when Punjab was brought under the President s rule
So even if it were assumed that the respondent sanctioned the two payments for the purpose of gaining popularity in Bara Pind and Littran villages with an eye to his ultimate candidature from Nakodar Assembly constituency it cannot be said that his action amounted to a gift offer or promise by him as a candidate at the election in question so as to amount to the corrupt practice of bribery under cl
1 of section 123 of the Act
As regards the alleged distribution of cheques on May 25 and May 27 1977 it will be enough to say that even if it were presumed that the respondent was allowed to do so after he ceased to be a Minister the mere delivery of cheques could not possibly amount to bribery when as has been stated there was no element of bargain in regard to it
It may be mentioned that the trial court rightly took the view that it was necessary for the purpose of proving the corrupt practice 511 of bribery to establish that there was an element of bargaining in what the respondent was alleged to have done for Bara Pind and Littran
Reference in this connection may be made to the decision of this Court in Ghasi Ram vs Dal Singh and others where it was held with reference to the decision in Amirchand vs Surendra Lal Jha and others that if a Minister redress the grievances of a class of the public or people of a locality or renders them any help on the eve of an election it is not a corrup practice unless he obtains promises from the voters in return as a condition for his help
It was also held that the evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election and that if there was good evidence that the Minister bargained directly or indirectly for votes the result might have been different
The decision in Ghasi Ram s case supra was followed in Om Prabha Jain vs Abnash Chand and another Bhanu Kumar Shastri vs Mohan Lal Sukhandia and others and Chaitanya Kumar Adatiya vs Smt
Sushila Dixit and others
It was therefore necessary for the appellant to plead and prove that there was bargaining between the respondent and the voters and he did what he is alleged to have done in Bara Pind and Littran for that reason but as the trial court has pointed out there was no such allegation in the election petition
So when the element of bargain was completely absent from the allegation against the respondent the trial court was justified in holding that the alleged corrupt practice had not been established
The trial court has considered the evidence on the record in this respect and its finding on issue No 6 is quite correct and nothing worthwhile has been urged before us to require its reconsideration
As there is no merit in this appeal it is dismissed with costs
NKA Appeal dismissed


Summary:
The appellant was a voter in the Constituency from which the Respondent was elected as a member of the State Legislative Assembly
His nomination paper was rejected by the Returning Officer on the ground that it was filed beyond the time prescribed for filing nomination paper and that he had not made and subscribed an oath on it as required by law
In his petition before the High Court the appellant contended that 1 the filing of nomination paper late by 10 minutes could not be a ground for rejecting the nomination paper and it was not a defect of substantial character within the meaning of section 364 of the Act 2 the allegation that he had filed to make and subscribe the oath before the Returning officer as required by article 173 of the Constitution was not true and 3 the respondent was guilty of corrupt practice of bribery
The High Court rejecting all the contentions dismissed the petition
Dismissing the appeal this court  HELD  1a It is the requirement of law that the Returning officer should mention the time of presentation of the nomination papers
The endorsement by the Returning officer shows that the nomination paper was presented on May 18 1977 at 1510 by the proposer and that the endorsement to that effect was duly signed by the Returning officer
504 E F b It is not correct to say that the delay in presentation of the nomination paper was not a ground for its rejection as it was not a defect of substantial character within the meaning of Section 364 of the Representation of the People Act
In the face of the clear requirement of section 362b of the Act any other view would make the requirement for the presentation of the nomination paper before the last date and within the specified period of time unworkable for it will not then be possible to draw a line upto which the delay in the delivery of the nomination papers could be condoned
If the requirement of the law in that respect is not observed and its breach is considered to be a defect which was not of a substantial character it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and time fixed for the scrutiny of the nominations
That would not only cause administrative inconvenience but put the other candidate to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of scrutiny of the nominations
505 H 506 A C 502 c The requirement that the nomination papers shall be delivered between the hours of eleven O clock in the forenoon and three O clock in the afternoon is mandatory and the Returning officer has no option but to reject the nomination paper as required by Section 362 of thee Act
505 G H 2 The trial court held that the oath ar affirmation which was required to be made or subscribed by the candidate had not been made and subscribed at the time of the presentation of the nomination papers
As the appellant was not able to produce the certificate of his making and subscribing the oath or affirmation before the Returning officer thereafter in the manner alleged by him there is nothing wrong with the view taken by the trial court that he did not really do so 508 A B D E 3 It is an essential ingredient of the definition of corrupt practice of bribery that the gift offer or promise should be by the candidate or his agent or by any other person with the consent of the candidate or his Election Agent
The trial court rightly took the view that it was necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of bargaining in what the respondent was alleged to have done for two villages
When the element of bargain was completely absent from the allegation against the respondent the trial court was justified in holding that the alleged corrup practice had not been established
809G 510H 511A D E Ghasi Ram vs Dal Singh and others   Amir Chand vs Surendra Lal Jha and others  Om Prabha Jain vs Abnash Chand and another   Bhanu Kumar Shastri vs Mohan Lal Sukhadia and others   Chaitanya Kumar Adatiya vs Smt
Sushila Dixit and others  referred to