ivil Appeal No 673 of 1986
From the Judgment  Order dated 1721986 of the Madhya Pradesh High Court in Election Petition No 41 of 1985
SS Khanduja YP Dhingra and B K
Satija for the Appel lant
Mrs J Wad for the Respondent
The Judgment of the Court was delivered by KASLIWAL J
This appeal under Section 116 A of the Representation of People Act 1951 in short the Act is directed against the Judgment of the High Court of Madhya Pradesh dated 17th February 1986
Election of Legislative Assembly of the State of Madhya Pradesh was held in the month of February 1985
One of the Constituencies was No 14 Lahar District Bhind
The nomination papers were filed before 6th February 1985 and the scrutiny was done on 7th February 1985
Several persons filed their nomination papers
The nomination paper of Ramprakash was rejected by the Returning Officer in the scrutiny
The order passed by the Returning Officer rejecting the nomination paper reads as under Candidate is not identified as per electoral roll
His representative has accepted this mistake also
Hence reject ed
Advised for correction but did not correct
The candi date did not correct after advising to correct mistake
Even did not appear at the time of scrutiny to correct mistake
Hence rejected
See section 334 RPA Result of the election was declared on 5th March 1985 and Shri 506 Mathura Prasad appellant declared elected
Ajeem Khan one of the voters of the Constituency filed an election petition under Sec 88 of the Act challenging the election of Mathura Prasad on several grounds but it is not necessary to state all the grounds as the controversy in the present appeal centres round the wrongful rejection of the nomination paper of Ramprakash
The ground in this regard taken in the election petition was that the nomina tion paper of Ramprakash was wrongly rejected as the defect in his nomination paper was not of a substantial character
It was alleged that in the nomination paper filed by Rampra kash the column meant for stating the candidate s serial number in the electoral roll was left blank
1t was thus alleged that the said defect was not of a substantial char acter and the nomination paper should not have been rejected in view of the provisions contained in Section 364 of the Act
On the other hand the case of Mathura Prasad the elect ed candidate was that neither Ramprakash nor any other person on his behalf was present before the Returning Offi cer when the nomination paper of Ramprakash was taken up for scrutiny
At the time of scrutiny the Returning Officer had pointed out that voter number was not mentioned in the nomination paper and Jaiprakash RW3 who was the proposer of Ramprakash had told the Returning Officer that he would inform Ramprakash regarding the above defect
The Returning Officer then put that nomination paper aside and took other nomination papers for scrutiny
Jaiprakash remained present in the hail awaiting the arrival of Ramprakash
The Return ing Officer after scrutinising all the other nomination papers again called out the name of Ramprakash
As Rampra kash had not arrived till then Jaiprakash left the hall after informing the Returning Officer that he would fetch Ramprakash
Jaiprakash left the place and went in search of Ramprakash but his efforts to search Ramprakash went in vain and he did not return back before the Returning Officer
In view of the above circumstances the Returning Officer passed the order rejecting the nomination paper of Rampra kash under sec
334 of the Act
On the pleadings of the parties Learned Single Judge of the High Court who tried the election petition framed Issue No 1 in this regard which reads as under i Whether rejection of the nomination paper of Ramprakash by the Returning Officer was illegal as alleged 507 Both the parties lead evidence in support of their case
The petitioner in support of his case regarding the above issue examined himself Mitthookhan Gourishanker and Pahalwan
By the evidence of the aforementioned witnesses a story was put forward that shortly before the nomination paper of Rampra kash was taken up for scrutiny Ramprakash had gone out for passing urine
He had left behind Mitthookhan as his repre sentative and when the nomination paper of Ramprakash was taken up for scrutiny and the defect was pointed out Mit thookhan after informing the Returning Officer went out for calling Ramprakash
He alongwith Ramprakash returned back after five minutes only but the nomination paper had already been rejected by the Returning Officer
On the contrary Mathura Prasad examined himself and Jaiprakash who was not only the proposer of Ramprakash but was also his cousin
Jaiprakash fully supported the case of Mathura Prasad
Learned Single Judge after analysing the evidence of both the parties arrived to the conclusion that the entire story as advanced by the election petitioner and his wit nesses was obviously a fabrication
He further held that such story being fabricated it deserved to be rejected outright
He further observed as under The versions of the respondent RW 1 are corroborated not only by the returning officer Shri Hoshiyarsingh exam ined by the petitioner himself as PW 1 but also by the petitioner s cousin Jaiprakash RW 3 who was also his proposer and the evidence is also consistent with the grounds of rejection stated by the returning officer in his order
The returning officer Shri Hoshiyarsingh PW 1 is an independent witness and Jaiprakash RW 3 who is cousin and proposer of Ramprakash PW 4 also has no reason to tell lies
I therefore see no reason to disbe lieve the versions of the respondent PW 1 as to what transpired when the nomination paper of Ramprakash PW 4 came up for scrutiny and under which circumstances it was rejected by the returning officer
After recording the above finding the Learned Single Judge took into consideration the fact that in the nomination paper of Ramprakash his name his father s name his postal address the number and name of the Constituency to which nomination paper related and the 508 number of the part of the electoral roll of the same con stituency in which part his name was entered as a voter were duly and correctly filled up
It was further observed that Exhibit P 1 a certified copy of that part of the electoral roll showed that the total number of voters registered therein was 10 11 and the name of Ramprakash was entered therein at serial No 735
At the time of scrutiny the Returning Officer must have naturally been assisted by some members of his subordinate staff
Learned Single Judge further observed that according to the Returning Officer himself the nomination paper was put of by him in the midst of the scrutiny proceedings and it was rejected subsequently after the scrutiny of all other nomination papers was over
There was thus ample time to locate the serial number of the candidate in the above mentioned part of the electoral roll
The Returning Officer had admitted that no effort was made by him to locate it
Learned Single Judge thus concluded that it was not the contention of the Returning Officer that it was not possible for him to locate the name of Ramprakash in the electoral roll and find out his serial number but in fact the Returning Officer made no effort in this regard
Learned Single Judge distinguished a decision of this Court in Lila Krishan vs Mani Ram Godara  Ors 1985 Suppl
SCR 1 592
He further held that candidate s absence was immaterial and the Returning Officer could have himself found out the electoral number of the candidate Ramprakash readily with a very little effort by referring to the elec toral roll part mentioned in the nomination paper and the same being also available with him at the time of scrutiny the electoral number could have been found out without the assistance of any of the persons mentioned in Sec
361 of the Act and the defect in the nomination paper cannot be held to be of a substantial character
Issue No 1 was thus decided in favour of the petitioner Ajeem Khan and as a result of which the election petition was allowed and the election of Mathura Prasad was declared void
Aggrieved against the decision of the High Court Mathu ra Prasad the winning candidate filed the present appeal before this Court
We have heard learned counsel for both the parties and in our view this appeal has to be allowed
As already mentioned above the Learned Single Judge himself did not accept the story as put forward by the petitioner Ajeem Khan rather it was held that the entire story narrated by him was a fabrication and the same de served to be rejected outright
The Returning Officer who was an independent witness and Jaiprakash who was a proposer of Ramprakash were believed and it was held that the entire 509 circumstances under which the nomination paper of Ramprakash came up for scrutiny and was rejected were correct
Thus a perusal of the circumstances put forward by these witnesses at the time of scrutiny and rejection of the nomination paper of Ramprakash shows that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Rampra kash
The order passed by the Returning Officer rejecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per electoral roll
His representative had accepted the mistake also and was advised for correction but did not correct the same
The candidate did not correct after advising to correct the mistake
It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mis take
In the circumstances mentioned above we have no hesi tation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash
It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature
It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature where the identity of the candidate can be ascer tained by him on the material made available to him
He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect
However in case neither the candidate nor his representative be present and without removing such defect in the nomination paper the identity of the candidate cannot be ascertained then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the Material placed before him and to remove such defect himself
We may also refer to some cases cited before us at the bar
Dalip Kumar Gon vs Durga Prasad Singh AIR 1974 SC 2343 is the case on which strong reliance has been placed by Learned counsel for Ajeem Khan
In the above case in the column of printed nomination form meant for making a decla ration of the candidates of the Scheduled CasteTribe con testing for a reserve seat Abdul Hamid contesting from general constituency had not a filled his specific caste in the blank meant for that purpose and further b he had in that column left the words Scheduled Castes  unscored
The Returning Officer rejected the nomination papers on the ground that the failure of the candidate to delete the words Scheduled Castes  means that he belongs to Scheduled Caste which is not true and consequently the 510 nomination papers were not filled up properly
An electoral of the constituency filed an election petition on the ground that the nomination papers of Abdul Hamid and Khatir Ali had been improperly rejected
Learned Single Judge of the High Court upheld the above rejection of nomination paper by the Returning Officer and held that the candidate s filling of these enteries were on the face of it not proper and did not comply with the requirements of law
It was further held that this defect was not trivial or technical but of a substantial character
On appeal before the Supreme Court the Judgment of the High Court was set aside and it was held as under The High Court s view that in scoring out only the word Jan Jati  tribe and leaving the word Jati  caste untouched in the aforesaid column of the nomination form Abdul Hamid had failed to comply with the requirement of the law on the subject was entirely misconceived
It overlooked the fact that the Jamtara Constituency was a General  Constituency and the seat for which the candidates wanted to contest the election was not a Reserved seat
Section 332 of the Representation of the People Act 195 1 or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat and not for a Reserved Seat to specify in his declaration his caste or tribe
Further the Returning Officer appear ing as RW 2 had clearly admitted that at the time of the scrutiny of the nomination papers he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs250 as security
The omission to strike off the column in the printed nomination form relating to Sched uled CasteTribe did not amount to a defect in the eye of law much less was it a defect of a substantial character warranting rejection of the nomination papers in Amolak Chand vs Raghuveer Singh  1968 SC 1203
The nomination papers of two candidates contesting for a general constituency were rejected on a similar ground
Holding that the rejection was improper Ramaswami J Speaking for the Court stated the law on tile point thus The printed form 2 A is meant both for general and reserved constituencies but why it is obligatory for candidates in the reserved constituency to make a declaration in the proper 511 column that he is a member of a particular caste or tribe there is no such rule with regard to general constituency
332 of the Act imposes an obligation on the candidate in the reserved constituency to make a declaration in the proper column but there is no such direction in the statute with regard to the general constituencies
In our opinion the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contest ing in a general constituency
In the light of what has been said above we would reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly reject ed by the Returning Officer
In the above case the facts were entirely different and it lends no assistance to the case set up by Ajeem Khan respondent before us
In the above case it was clearly held that Sec
332 of the Act or any other Statutory provision does not enjoin upon a candidate who is contesting the election for a general seat and not for a reserved seat to specify in his declaration his caste or tribe
However the Returning Officer had clearly admitted that at the time of the scrutiny of the nomination papers he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs250 as security
Thus it was held that the omission to strike of the column in the printed nomina tion form relating to Scheduled CastesTribe did not amount to a defect in the eye of law much less it was a defect of a substantial character
In Brij Mohan vs Sat Pal  one Dog Ram had filed his nomination papers for contesting election to the Haryana Legislative Assembly from Jind Constituency
His name was proposed by Ram Pratap an elector of the Constitu ency
Dog Ram was registered as an elector at serial No 177 and house number 57 in part 39 of the electoral roll of the constituency whereas his proposer Ram Pratap was registered as electoral at serial No 313
and house number 6 in part 39 of the same constituency
The name and postal address of Dog Ram were correctly given in the nomination papers but the part of the electoral roll was mentioned as 57 instead of 39 by an inadvertant mistake committed by the person who filed the nomination papers
512 Similarly in the case of the proposer the serial number of the elector and the members of the constituency were given correctly but the number of his house was wrongly entered in the column meant for the part of the electoral roll
At the time of scrutiny no other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram but the Returning Officer of his own rejected the nomination paper on the ground that particulars of the candidate and the proposer had been wrongly entered in the nomination papers
The High Court considered the question as to whether the nomination paper of Dog Ram was improperly rejected
On the evidence led by the parties the Single Judge found that the candidate Dog Ram and his proposer were registered as voters in the constituency and were qualified to contest the elec tion and propose the candidate respectively
It was further found that errors in regard to electoral roll numbers of the candidates and the proposer in the electoral roll and the nomination paper do not constitute defects of a substantial character as mentioned in the Proviso to Section 334 of the Act
Learned Single Judge accepted the evidence of the proposer PW2 to the effect that when he and the candi date presented the nomination paper the Returning Officer told them that it was in order and that the Returning Offi cer had tripped them into an error and if the Returning Officer had told them that there were some discrepancies in the nomination paper they would have either made corrections then and there and could have gone more fully prepared to make objections at the time of the scrutiny
The High Court in these circumstances allowed the election petition on the ground that the nomination paper of Dog Ram was improperly rejected
On appeal to this Court by the elected candidate it was held that the Returning Officer could not be said to have improperly rejected the nomination paper of Dog Ram
This Court did not believe the evidence of proposer PW2 which was not corroborated by the evidence of any other witness
In the facts and circumstances of the case it was held that the Single Judge was not justified in accepting the evidence of PW2 and in holding that the Returning Officer was guilty of tripping the candidate and the proposer by any assertion on his part into anyone believing that there was nothing wrong in the nomination paper
In the above case this Court observed as under It is not possible to say generally and in the abstract that all errors in regard to electoral rolls or nomination papers do not constitute defects of a substantial character
They 513 would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll
If that is not the case he would be commit ting a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency
The candidate andthe proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by Returning Officer himself suo motu at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the Returning Offi cer had received the nomination paper without raising any objection
It is at the time of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny
In the above case this Court clearly held that the defects would not be of a substantial character only if at the time of scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll
It no where lays down that it is the statutory duty of the Returning Officer himself to cure the defect at the time of the scrutiny
We cannot read in the above authority as sought to be argued by the Learned counsel for the respond ent that in the case before us even though Ramprakash or any other representative on his behalf was not present to cure the defect still it was the duty of the Returning Officer himself to find out the correct identity of Rampra kash
As already discussed above the learned Single Judge had himself held that the case set up by Ajeem Khan was a fabricated one and the story put forward by the winning candidate Mathura Prasad and his witnesses was correct
From the evidence of Returning Officer it was clear that the defect in the nomi 514 nation paper of Ramprakash was brought to the notice of his proposer Jaiprakash and the nomination paper was not reject ed in the first round
An ample opportunity was given to Jaiprakash to bring Ramprakash but he failed to turn up
The nomination paper was then rejected after the scrutiny of all other nomination papers was over
The Returning Officer in the above circumstances was perfectly justified in rejecting the nomination paper of Ramprakash
Learned Single Judge wrongly distinguished the case of Lila Krishan vs Mani Ram Godara  Ors 1985 Suppl
1 SCR 592 supra
In this case the election of Lila Krishan from Fatehbad Constituen cy of Haryana Assembly was challenged on the ground that the nomination papers of two candidates being Mani Ram Chhapola and Raj Tilak had been improperly rejected by the Returning Officer
The Proposer of Mani Ram Chhapola was one Brij Bhushan while proposer of Raj Tilak was one Upendra Kumar
Brij Bhushan s serial number in the electoral roll was 26 while Upender Kumar s was 77
In form 3A these numbers were correctly indicated but in the nomination papers the numbers had been shown as 126 and 177 respectively
The Returning Officer rejected these nomination papers as the serial numbers of the proposers as disclosed in the nomination papers did not tally with reference to the electoral roll
The High Court set aside the election of Lila Kishan holding that the Returning Officer acted mala fide and had either directly or indirectly been responsible for the alteration in the nomination papers since the nomination papers when filed were in order and while they were in the custody of the Returning Officer s establishment interpolations have been made and on the basis thereof of nomination papers had been rejected
Appeal filed in Lila Krishan was allowed by this Court and it was held that the conclusion of the High Court that the Returning Officer either by himself or through somebody caused the interpolation to be done was totally unwarranted
On the basis of the above facts it was held as under Indisputably the insistence on disclosure of the serial number in the prescribed column against the proposer is for the purpose of indentifying the proposer and ascertaining that he is competent to propose
The scope of scrutiny is obviously to verify the contents of the nomination paper with a view to ascertaining whether the form is in order and what is required to be complied with by the election law has been duly complied with
This Court has repeatedly held that election proceedings are strict in nature and what is 515 required to be performed in a particular manner has to be done as required or the Rules made thereunder
That is why an exception has been made by inserting Sub section
4 of Sec tion 36 of the Act
Therefore to cast the obligation of the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law
To read that as an obligation is likely to lead a unworkable posi tion
In the instant case no one was available for instance when the Returning Officer took up the nomination paper of Mani Ram Chhapola to indicate to the Returning Officer that his serial number in the electoral roll was 26 and not 126
If this had been pointed out and on summary enquiry the identity of Brij Bhushan was not in dispute there would have been end of the matter
If the correlation has not been made and the Returning Officer has no assistance to fix up the identification it cannot be said to be a defect not of substantial character
Moreover it could not be statutory obligation of the Returning Officer to scrutinise the elec toral roll for finding out the identity of the proposer when the serial number turns out to be wrong
But if interested and competent persons point out to the Returning Officer that it is a mistake it would certainly be his obligation to look into the matter to find out whether the mistake is inconsequential and has therefore either to be permitted to be corrected or to be overlooked
When scrutiny was taken up Mani Ram Chhapola and Raj Tilak on their own showing were not present before the Returning Officer
Similarly the proposers Brij Bhushan and Upender Kumar were also absent
Though there is evidence on the side of the election peti tioners that the Assistant Returning Officer was present at the time of scrutiny he as PW 4 has categorically denied that fact
The Returning Officer RW 3 has stated that the Assistant Returning Officer was not present when he took up scrutiny on the nomination papers
There is also evidence from the side of the appellant that the Assistant Returning Officer was not present
In the circumstances if the nomi nation papers have been rejected for mistake in 516 the nomination papers it is the candidates themselves who have to thank their lot and no mistake can be found with the Returning Officer
Therefore the nomination papers were validly rejected
Thus in the above case it was clearly laid down that to cast an obligation on the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law
In the case before us even if it may be considered for a moment that by making some effort by the Returning Officer the identity of Ramprakash could have been ascertained there being no statutory duty cast on him to do so coupled with the fact that neither the candidate Ramprakash nor any representative on his behalf was ready to assist the Return ing Officer in curing the defect and in proving the correct identity of Ramprakash it cannot be said that the Returning Officer committed any error in rejecting the nomination paper of Ramprakash
The Returning Officer not only granted ample time but even brought the defect to the notice of Jaiprakash proposer but still the defect in the nomination paper was not removed
In the result this appeal is allowed the Judgment of the High Court dated 17th February 1986 is set aside and it is held that the Returning Officer rightly rejected the nomination paper of Ramprakash
The appellant would also be entitled to costs
RNJ Appeal al lowed


Summary:
The appellant defendant No 1 in the suit from which the appeal arises and the father of defendants 2 to 7 as the highest bidders obtained a seventeen years  lease of a salt factory from the Government and the license to manufacture and sell salt under the Madras Salt Act 1889
They entered into a partnership with the plaintiffs to carry on their business for the period of the lease
On the death of their father defendants 2 to 7 were admitted into the partnership
The partnership agreement made no provision for the continuation of the partnership on expiry of the lease or for the acquisition of a fresh lease on behalf of the partnership
The lease expired the license came to an end and the partnership stood automatically dissolved
The Government changed its old policy of granting leases to the highest bidders and adopted one of renewing them in favour of previous lessees in whom they had confidence
The appellant 10 74 and defendants 2 to 7 applied for the renewal of the lease that stood in their names
The plaintiffs also applied for a grant of it to them
No premium was called for and none had to be paid
The Revenue Authorities chose to renew the lease in favour of the appellant and the said defendants f or a further period of 25 years
The plaintiffs filed the suit claiming that the renewal of the lease was an asset of the dissolved partnership
The trial Court found against them but the High Court on appeal reversed that finding
The suit was instituted months before the renewal of the lease and years before the renewal of the license which alone could enable the licensee to manufacture and sell salt
The Courts below found that the allegation of the plaintiffs that the goodwill and assets of the firm had been utilised for obtaining the renewal of the lease was unfounded as they had failed to prove that a partnership firmatall existed
It was also found that during the last three years of the existence of the partnership the parties had fallen apart and lost mutual confidence
The question for decision was whether section 88 of the Indian Trusts Act applied and the renewal of the lease in favour of the appellant and the said defendants for running the salt factory could be treated as an asset of the dissolved partnership between the contesting parties
Held that in order that a case might be brought within the purview of section 88 of the Indian Trusts Act it must be shown either that 1 a person had a fiduciary character and was thus in duty bound to protect the interests of others or that 2 he had placed himself in such a position as to render his interest adverse to those of the others and had thereby obtained a pecuniary interest which he must hold for their benefit as well
As in the instant case the fiduciary character of the partners came to an end with the termination of the original lease and of the partnership business along with it there could no longer be any subsisting interest in a partner which another was bound to protect nor could one partner be said to have availed of his character as a partner when he obtained the fresh lease
Section 88 of the Indian Trusts Act or the illustrations d or e thereto could therefore have no application nor could section go of the Act which in terms had no application even if applied improve the position of the plaintiffs
No question of a constructive trust could also arise under the general law apart from the statute
There is no absolute rule of law or equity in England that renewal of a lease by one partner must necessarily enure to the benefit of all the partners
There is however a presumption of fact that there is an equity in favour of the renewal of the lease enuring to the benefit of all the partners
Such a presumption may be rebutted by the facts of a particular case
The Indian law as enacted in the Indian Trusts Act and particularly sections 88 and go of that Act is substantially the same
In the instant case the facts and circumstances amply rebut that presumption
75 Featherstonhaugh vs Fenwick   Clegg vs Fishwick   Clements vs Hall   Clegg vs Edmondson   In Ye Biss Biss vs Biss and Griffith vs Owen 1907 I Ch 195 G considered