Case: Harjit Singh Mann Vs. S. Umrao Singh and Ors

Appellant Harjit Singh Mann could not contest the election as hi s 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.

Reasoning:
The trial court has examined the other evidence of the parties, including the statement of Returning Officer Manohar Singh R.W.1, and we have no doubt that its finding that the nomination papers were filed 10 minutes after 3 p.m. 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 Ex. P.W.1/19 has been proved by the Returning Officer. It shows that the nomination papers were presented on May 18, 1977 at 15.10 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 Ex. P.W. 1/20 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 p.m. i.e. at 15.10 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 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 i.e. at 3.10 p.m.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-s. (4) of s. 36 of the Representation of the People Act, 1951, hereinafter referred to as theis 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 Oclock in the forenoon and three Oclock in the afternoon, so that a nomination paper delivered after three Oclock in t he afternoon cannot be said to comply with that provision of s. 33. Sub-section (2) of s. 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 theas there was failure to comply with that provision of s. 33 which required the delivery of the nomination paper between the hours of eleven Oclock in the forenoon and three Oclock 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-s. (4) of s. 36 of the Act, but we are unable to uphold it in the face of the clear requirement of ground (b) of sub-s. (2) of s. 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 no t 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 Oclock in the for enoon and three Oclock 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 v. 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 Oclock in the afternoon of the last day for the delivery of nomination papers, a nd rejected the argument that what had occurred there was a pureIt is not in controversy that it was obligatory under cl. (a) of Art. 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-s. (2) of s. 36 of the Act for ground No. (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground tha t 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 Art. 173 of the Constitution. The requirement for the making and subscribing the oath or affirmation was therefore clearlyappellant tried to establish the plea that he reached the office of the Returning Officer at 3.45 p.m. on May 18, 1977, and took 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 P.W. 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 thatIt 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 nobodys 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 w as scrutinised by the Returning Officer on May 19, 1977. He could not therefore be said to be a candidate within the meaning of s. 123 read with s. 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. 20, 000/- 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. 5, 000/- 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. 20, 000/- 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, 19 77, when Punjab was brought under the Presidents 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 s. 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 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 v. Dal Singh and others where it was held with reference to the decision in Amirchand v. 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 Rams case (supra) was followed in Om Prabha Jain v. Abnash Chand and another, Bhanu Kumar Shastri v. Mohan Lal Sukhandia and others and Chaitanya Kumar Adatiya v. 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 bar gain 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.