Case: Parmar Himatsingh Jugatsingh Vs. Patel Harmanbhai Narsibhai

1. This appeal under Sectionof the Representation of the People Act1951 (briefly the Act) is directed against the judgment of the High Court of Gujarat dismissing the election petition of the appellant who is an elector from Mahudha constituency for theState Legislative Assembly. The appellant challenged the election of the respondent who had been declared duly elected to the State Legislative Assembly from this particular constituency in the general elections to the Legislative Assembly held in March 1972. The appellants principal ground of challenge was that attime of the scrutiny of the nomination papers on February 9, 1972, the Returning Officer improperly rejected the nomination paper of one Christian Suleman Jivabhai (hereinafter to be described for brevity as Jivabhai). Jivabhai was not an elector in the MahudhaAssembly. He was an elector from Shahpurty. Along with the nomination form Jivabhai had enclosed a certified copy of the corrigendum to the Electoral Roll issued by the Registration Officer, who wasof preparation of the Electoral Rolls. On objection being raised by the respondent the nomination paper of Jivabhai was rejected on the ground that the provisions of Section 33(5) of the Act were not complied with inasmuch as henot produced a certified copy of allrelevant entries in the Electoral Roll before the Returning Officer at the time of scrutiny of the nomination papers. What was produced was only the certified copy of the corrigendum issued by the Electoral Registration Officer which showed the correction in the name of Jivabhai. Originally, Jivabhai was shown in the Electoral Roll as Christian Soloman Jivabhai and by the correction shown in the corrigendum, the name of "Soloman" was substituted by the name "Suleman". The correct name, therefore, stands as "Christian Sulemanas a result of the corrigendum. It appears that the practice of the Electoral Registration Officer is not to issue a corrected Electoral Roll every time some entry in the Electoral Roll is amended or corrected but the officer issues corrigenda and amendmentwithout making any alterations in the original Electoral Roll. The High Court accepted the objection with regard to the non-compliance of Section 33(5) of the Act and rejected the nomination paper of Jivabhai.

Court's reasoning:
From an examination of the above material provisions it is clear that the entries in the Electoral Roll may be corrected at different stages provided under the law and there is also provision for appeal against decisions of the Registration Officer. At the time of scrutinythe Returning Officer has to be satisfied about the identity of the candidateand will have to decide all objections with regard to the nomination paper. The scrutiny will have to be made by him carefully even if there is no objectionagainst the nomination paper. We are required to consider in this case whether Jivabhai has complied with Section 33(5) of theEvidently he is an elector of a different constituency. That being the position he could have complied with Section 33(5) by following one orother of the three modes provided in thatnamely, (1) he could have produced a copy of the Electoral Roll of Shahpur constituency, or (2) he could have produced a copy of the relevant part of the Electoral Roll of that constituency in which his name appears, or (3) he could have produced a certified copy of the relevant entries in the Electoral Roll of that constituency. He, however, selected the third mode by enclosing a certified copy of the corrigendum to the Electoral Roll.It is clear that the corrigendum does not furnish all the particulars which would be available if a certified copy of the relevant entries in the original Electoral Roll as well as the corrigendum were produced before the Returning Officer at the time ofthe original Electoral Roll may be corrected and amended, even sometimes by deleting some names, it is absolutely necessary for the satisfaction of the Returning Officer that a certified copy of not only the original Electoral Roll containing the relevant entry as also a certified copy of the amendment list concerning the candidate are produced at the time of scrutiny, if these had not alreadyfiled along with the nomination paper. In the instant case the candidate remained satisfied by filing a certified copy of only the corrigendum which did not satisfy the Returning Officer as regards the identity of the candidate. Whentherefore, the Returning Officer rejected the nomination paper, the order can be supported on the ground that a certified copy of the entry in the original Electoral Roll was not furnished along with the certified copy of the entry in the list of amendments. It cannot, therefore, be said that the rejection of the nomination paper under Section 36) in this case isare, therefore, clearly of the view that non-compliance with5) is a defect of a substantial character and is not covered by Section 36(4) of the Act. The Returning Officer in this case rightly rejected the nomination paper of Jivabhaiand the rejection cannot be held to be improper.