Case: Hira Singh Pal Vs. Madan Lal

entered at S1. No. 504 of Part No. 2 of Arki Assembly Constituency Electoral Roll: despite opportunity he has not cared to correct the entry.(Sd.) R. C. Gupta,Returning Officer, 21-1-67,3-15 P. M.9-Arki AssemblyConstituency.Date 21-1-67* * * *5. In the first nomination paper, the proposer was one Anant Ram. It was mentioned in the nomination paper that he is the elector shown at serial No. 380 of Part 13 of the Electoral Roll of Arki Assembly Constituency. This was clearly a mistake. His name is really found at serial No. 380 of Part 23. In the second nomination paper the candidate is shown as the elector at serial No. 504 of Part 2 of 9-Arki Assembly Constituency; but really his name is found at serial No. 504 of Part 12 of that Constituency. Hence the question is whether the grounds on which the Returning Officer rejected the nomination papers of the respondent were substantial grounds as contemplated by Section 36 of the Representation of the People Act, 1951.6. Before we deal with that question, it is necessary to set out few more facts. According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket; nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his party candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.7. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 of Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial No. 504 in Part 12 of that constituency, but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent has only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. Before we deal with that question, it is necessary to set out few more facts. According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket; nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his party candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.7. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 of Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial No. 504 in Part 12 of that constituency, but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent has only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under S. 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act.