Case: Prahladdas Khandelwal Vs. Narendra Kumar Salve

2. Some of the material dates may be noticed. The notification calling for the election was issued on January 27, 1971. The last date for filing the nomination paper was February 3, 1971; the scrutiny was to take place on February 4, 1971. The election was to be actually held on March 4, 1971 and the election result was to be declared on March 11, 1971.      3. The appellant filed his nomination paper on February 2, 1971. An acknowledgement of the receipt of the nomination paper was given by the Assistant Returning Officer. The Assistant Returning Officer gave a certificate under Art. 34 of the Constitution that the appellant had been administered the oath as required under that Article. In this certificate there was a mention of 26th Betul Parliamentary Constituency. According to the evidence of the Assistant Returning Officer Shri S. K. Sharma R. W. 2, in the nomination paper which the appellant filed there was no mention of the Parliamentary Constituency from which he was contesting the election. This defect was pointed out to him by the Assistant Returning Officer but it appears that the appellant did not cure that defect. On February 4, 1971 which was the date fixed for scrutiny the nomination paper of the appellant was rejected by the Returning Officer Shri Komal Singh Thakur, Collector of Betul on the objection of one Goverdhandas. The ground given for rejection was that the name of the Constituency for which the appellant had filed the nomination paper was not mentioned therein. The Returning Officer held that owing to this defect which was of a substantial character the nomination paper was invalid.      4. The sole ground in the election petition filed by the appellant was that his nomination paper had been erroneously and wrongly rejected by the Returning Officer. In paragraph 6 it was stated that a blank nomination form had been purchased by him from the Election Office, Betul. All the details mentioned in the form were properly filled in. There was no separate space left in the form to mention the name of the Constituency. It was asserted that there was difference between the nomination form in Hindi and in English and even if the name of the Constituency was necessary to be mentioned the Assistant Returning Officer should have got it filled up under proviso to S. 33 (4) of the Representation of the People Act 1951. In other paragraphs of the petition it was pleaded that the certificate relating to the oath clearly contained a mention of the 26th Betul Parliamentary Constituency and, therefore, the Returning Officer was in a position to know from which Constituency the appellant was contesting the election. It was claimed that the alleged defect was not of a substantial character and the nomination paper could not have been rejected by the Returning Officer.      5. The respondent resisted the election petition on the ground, inter alia, that there was no defect in the nomination form supplied to the appellant. The omission to mention the name of the Constituency was a defect of substantial character. It was denied that it was the duty of the Assistant Returning Officer to get the substantial defect in the nomination form rectified. The sole issue which arose for decision was whether the nomination paper of the appellant had been wrongly rejected. The High Court gave the following findings(1) The nomination paper in Hindi (Ext. P-2) is the authoritative text of the form prescribed under the Act and the rules made thereunder;      (2) Neither the name nor the number of the Constituency was mentioned in the nomination paper, (Ext. P-2).      (3) The omission to mention the name of the Constituency was a defect of a substantial character.      (4) The Returning Officer was not enjoined under the law to go beyond the nomination paper and to find out for which Constituency a particular candidate had been nominated.      (5) The statutory requirements of the Election Law have to be strictly applied. As the nomination paper of the appellant was found to be defective the defect being of a substantial character the Returning Officer was justified in rejecting it. Apart from that the appellant did not get the defect rectified even though the same had been pointed out to him bys the Asstt. Returning Officer.

Court's reasoning:
9. The next question is whether the omission to mention the name of the 26th Betul Parliamentary Constituency in Ext. P-2 was a defect of a substantial character by reason of which the nomination paper must be rejected by the ReturningSection 33 deals with the presentation of the nomination paper and requirements for a valid nomination. It has to be presented after being completed in the prescribed form and signed by the candidate and by an elector of the Constituency as proposer. Sub-section 4 of that section is to the following effect :On the presentation of a nomination paper, the returning Officer shall satisfy that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rollsSection 36 deals with scrutiny of nominations. Sub-s. (2) thereof provides that the Returning Officer shall examine the nomination papers and decide all objections which may be made to any nomination and may, either on such objection or on his own motion after a summary inquiry, reject the nomination paper on the ground given in clauses (a), (b) and (c). Clause (b) is that there has been a failure to comply with any of the provisions of S. 33 or section 34. Sub-section (4) furnishes the key to the point under consideration. According to it the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The proviso to rule 4 may also be noticed. It says that a failure to complete or defect in completing the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of sub-s. (4) of S. 36. It is thus clear that in the statute and the rules those defects have been indicated for which the nomination paper cannot be rejected and the Returning Officer has to permit the correction of those defects; (vide proviso to S. 33 (4) of the Act and Rule 4 of the Rules). But S. 36 (4) clearly contemplates that where the defect is of a substantial character the Returning Officer is not enjoined to have it rectified and he has to reject that nomination paper. The matter is not res integra and is settled by a series of decisions of this court. We need refer only to two of such decisions viz. Rattan Anmol Singh v. Atma Ram, (1955) 1 SCR 481  = (AIR 1954 SC 510 ) and Ram Dayal v. Brijraj Singh, (1970) 1 SCR 530  = (AIR 1970 SC 110 ). In the first case it was laid down in categorical terms that Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been any failure to comply with any of the provisions of Section 33. The only jurisdiction the Returning Officer has at the scrutiny stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is not open to him to reject a nomination paper on the ground of a technical defect which is not of a substantial character. But he cannot remedy that defect. He must leave it as it is. If it is technical and non-substantial it will not matter. In the second case the following observations at page 533 are noteworthy :The requirement under Sec. 33 (1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory. Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Attestation is not a mere technical or unsubstantial requirement within the meaning of Section 36 (4) of the Act and cannot be dispensed with. The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have beenIn this case the earlier decision in Rattan Anmol Singhs case was followed10. There can be no manner of doubt that in the present case there has been a failure to comply with the provisions of Section 33 inasmuch as the name of the Constituency was not stated in the nomination paper which, therefore, could not be treated as having been completed in the prescribed form as required by S. 33 (1) of the Representation of the People Act. This defect was essentially of a substantial character and did not fall within those provisions where the Returning officer is enjoined either to get the defect rectified or ignore it. It was not the duty of the Returning Officer at the stage of the scrutiny to draw the attention of the appellant to the aforesaid substantial defect for the purpose of getting the same cured. The Returning officer was fully justified in rejecting the nomination paper.