PARMAR HIMAlllNGH JUGATSD'IGH

PATEL Jb\RMA)IBHAI NAll.SIBHM

February ii. 1974.

[P, )If, BltAGWA'U''.tND ],';· K: ~AllU, JJ;]

Revm<11t•lion <Jf. lhe P'ople Act, 1951-s .. 33(5) ~1id 36(4)..,..ScoPe v/.

Tho appellallt challenged the electl.\Ofl of the -resPondot)I: t~ tbe Stole J\.ssem bly.

He_ alleged ; that at the. tiip.o .. of. ttie. srut_inv of nom1nat100. P8L?~I'$ th_e retitrnin"a. otfir _improperly rect¢ _the om1ation, pape_r ... of Oll; e of the tand1dates-: for the' election. The name of the r_e1ected can41date _was found, not on the electoral 'ri>Us of the constituency in which he hat! filed hiS non1ill3.tirin l)Opers, but on the rolls oranotPer: constituency .. Since his _name was •not corrtct1y printed-on the el(:ctoral rolls;_. he_ had obtained :a cogend, um to_.the electoral roll, a certified copy Of whic_h was . enclose.d with the nomin, ation P~r.

Objection having been raised b:Y the respondent, his nomina.tion P~.r . Was rejected on the ground that the provisions of s. 33(5) of the Repre'Sentation of People Act were not complied with inasmuch as he had not produced the certified conv of all the relevant entries in the electoral roll at the time of scrutiny of ihe nomination papers.

Section 33(5) of the Representation of the People Act providCS 'that where the candidate is an elector to a different constituency a copy of the electoral roll of that constituency or of the relevant part thereof Or a certified copy of the relevant entries of such roll shall, unless it has been filed .alon.'t with the nomination paper, be produced before the returning officer at the time of !itnitiny;

The High Court dismissed the election petition of the appellant.

Dismissing the appeal to this Court, HELD: Non-compliance withs. 33(5) is a defect of a_sUtantial c_haractcr aua is not covered by s. 36(4) of the Act. The Returning Officer rightly rejected the nomination paper and rejection cannot be held . to be impiope-r.

Evidently the rejected candidate is an elector be a different constituency. Tb.a1 being the position he could have complied witft .. s .. 33-(S) by folloing one .or the other of the three modes provided in that subsectlon namely : ( 1) he could have produced a copy of the electoral roll of constituency in which his name

ao_oeared, 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 rotl Qf that constituency. He however selected the third mode by. enclosing a certified copy of the corrigendum to the electoral roll. [457 O.:-F; 459 C-D]

It is clear that the corrigendum did 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 Ofticer at the time of scrutiny. Since the original electoral roll may be corrected and amended it was. absolutely necessary for the satisfaction Of the Returning Officer that a certified copv of not only the original .electoral roli containin.: the relevant entry as also a certified copy of the amendment list conccrnin2 the candidate were produced at the time of scrutiny if this had not already been filed along with the nomination paper. [457 F-G]

Sr; Baru Rani v. ~!Vin1atl Prasanni & Others, [1959] S.C.R. 1403/14, 1421 and Narbada Prasad v. Cli/UJga1i I.al mid Ors. [1659] I S.C.R. 499/502, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 297 of 1973.

Appeal from the Judgment and order of the Gujart High Court in Election Petition No. 7 of 1972.

K. RajenJra Cltaudlturi and P. C. Kapur, for the appellant.

V. B. Patel and H. s. Parihar, for the respondent,

The Judgment of the Court was deliverec! by

GoswAMI, J. This appeal under.section U6-A of the Representation of the People Act, 1951 (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 the Guja; at State Legislative Assembly. The . appellant challenged the election of the respondent who had been <leclared duly elected to the State Legislative Assembly from this particular constituency in the general elections to the Legislative Assembly held in March

1972. The appellanfs principal ground of challenge was that at the time of the scrutiny of the nomination papers on February 9, 1972, the Returning Officer . improperly rejected the nomination paper of one Christian Suleman Jiyabhai (hereina(ter to be described for brevity as Jivabhai). Jivabhai was not an elector in the Mahudha co)lstituency of the Legislative Assembly.

He was an elector from Shahpur constituency in Ahmedabad city.

Along with the nomination form Jivabhai had enclosed a certified copy of the corrigendum to the Electoral Roll issued by the Registration Officer, who was officer incharge of preparation of the Electoral Rolls.

On objection being raised by the respondent the nomination paper of Jivabh~ was rejected on the ground that the provisions of section 33(5) of the Act were not complied with inasmuch as he had not produced a certified copy of all the relevant 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"

\Vas substituted b'y the name ~'Suleman". The correct name, therefore, stands as "Christian Suleman Jivabhai" as a result of the corrigendum.

It appears that the practice of the Electoral Registration Officer is not to issue a corrected Electoral Roll very time some entry in the Electoral Roll is amended or corrected but the officer jssues corrigenda and amendment limits without 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.

The appellant contends that the High Court committed. an error of law in rejecting the nomination paper of Jivabhai in view of the provisions of section 36( 4) of the Act.

Section 33 provides for presentation of nomination papers and requirements for a valid nomination. We are concerned in this appeal with sub-section (5) of that section which may be quoted :

33 ( 5) "Where the candidate is an elector of a different constituency. a copy of the electoral roll of that constitu-

PARMA~ Hl1'(ATS!NG I' .. PATEL HARMANBHAI (Goswami, J.) 455

ency or of the relevant part thereof or a certified copy of the relevant entries in such roll s)lall, unless it has been filed along with the nomination paper,- be. produced heforc the ; returning officer at 'the time of rutlrry".

Section 36 pr_ovides for scrutiny of nomillations and \vc mf!Y 'tfflofc sub-section ( 4) of that section which is material.

36(4) 'The returning officer shall not reject any nomi nation paper on tho ground of any defect which is not of a substantial character".

Jn the present case, Jivabhai, whose non1ination paper \Vas rejected, submitted along with his nomination paper only a certified copy of the corrigendum of the particular entry in the Electoral Roll.

Since he was an elector of another constituency namely, Shahpur, and was contesting in the Mahudha co0:stituency, he was required under section 33 ( 5) to produce before the Returning Officer at the time of scrutiny either a copy of the Ele<:toral Roll of Shahpur con stituency or of the relevant part thereof or a certified copy of the relevant entries in the Electoral Roll of Shahpur constituency. In the instant case, Jivabhai preferred to enclose with his nomination paper a certified copy of the corrigendum of the Electoral Roll correcting his name therein. It appears that neither Jivabhai nor his proposer was present at the time of scrutiny of the nomination papers and, therefore, no other document was produced by him during scrutiny.

Even if he hall not earlier enclosed the relevant entries of the Electoral "Roll, it would have been in order if the same were produced before the Returning Officei: at the time of scrutiny. Section 36(7) provides as follows :

36( 7) "For the purposes of this section, a certified copy nf an entrv in the electoral roll for the time, being in force of a constituency shall bi; conclusive evid-oncc of the fact that lhe person referred to in that entry is an elector for that constituency, unless it is proved that. he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of -1950)".

The short question that arises for consideration in this appeul is whether the nomination paper of Jivabhai was improperly rejected by the Returning Officer. A certified copy, which was enclosed with the nomination paper, was as follows :-

"List of voters Qf Shahpur ward. of Gujarat State Legblativc Assembly for the year 1971, District Ahmedabad,

City Ahmedabad, Ward Shahpur-l, Part No. 38/84 continued.

l\Je1110r11n4um or List or -I Scrili1 Number in Name of Voter in Present uncorrcct- Entry to read as Voters List Votcn List. ed. entry in the corrected.

Voters List. 595 Christian Soloman Soloman Suloman Jivabhai Ahmedabad Sd/- G. B. Xhah, 28-1-1972.

Electroral Officer".

Before proceedin~ further it may be necessary to take note of .certain rules in the Registration of Electors Rules, 1960 (briefly tre Rules). Under rule 2(e) "'roll' means the electoral roll for a constituency".

Under rule 4 "the roll for each constituency shall be ; Prepared in such form and in such language or languages as the Election Commission may direct".

Under rule 5 (I), "the roll shall be divided into convenient parts which shall •be numbered consecutively". By rule 10 "as soon as the roll for a constituency is ready, the registration officer shall publish it in draft by making a copy thereof available for inspection and displaying a notice in Form 5" in the places specified in that rule.

Rule 11 provides for further publicity to the roll and notice. Rule f2 provides for lodging claims ; and objections. Rule 22 may be set out in full : 22 "Final publication of roll-( I ) The regi; tration ofticer shall thereafter- ( a) prepare a list of amendments to carry out his decisions under rules .18, 20, 21 and 21A and correct any clerical or printing error or other inaccurrancies subsequently discovered iri the roll; and

(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for. inspection and displaying a notice in Form 16 at his office.

(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency. ('3) Where the roll (hereafier in this sub-rule . referred

to. anhe basic roll), together with th.e .list of amend: ments, beeomes the eltoral, roll. for a: cpnstltuency undei .sub'.'ru)e (2), t!\e, Registration '\llliccr may, for

the 'CQ'nyeilienc~ of :a1! conc'erned; jntegrte, ubjct to 'any general or 'speciat ilireetions t.su-id by the

Eletion' CofumlSsioil iri ille behalf, the list into the

ba5ic roll :bY iitduding the .. mimes of electors in the Us, t together with am partiCulars relating io. . such eleetots. in' the relevant parts of the . l)aic,, roll itse)f, 'so. :nowever'that 'no 'chaniie shall be made.in the pro'

ces~ ; IJf such integiatioii in 'the. name or itny electors or any rtjcuhits rera\jnil to any elector .. is given io

thcHist"of amendments''.· , Rule' 23 priYvidl!~ for appeals agrupst decisi, ons ·:of the 1legi5tratio11 'Oflket under nlle8"20; 21 , or 2 lA Under sub-tufe f<f) of that rµte ·"every del:ision Of' the 'iippellate olli.er' shall b~ final, but in so far

PARMAR HIMATSINGH v. PATEL HAJl.MANBHAI (Goswami, /.) 4~7

as it reverses .of modifies a decisioa of the tegiSlralilmndllicef,. shall take effect only from the date of the decision in api)oals" By sub rule ( 5) "the registration alliccr shall CllUBe; dil:h amendments to be ma@ in the roll as may be'iiecessary to gi~ effect to the deci•ions of the appellate officer under this rule".

Section 22 Of the Representation of the People Act, 1950, provides for oorrcction of entries in Electoral Rolls and Section 24 provides for apPeals against orders made under sections 22 and 23 of that Act in the manner prescribed' by_ the Rule&.-

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 scrutiny, the Returning Offier [\as to be satisfied about the identity of the candidates and 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 objection raised against the nomination paper.

We are required to consider in this case whether Jivabhai has complied with section 33(5) of the Act.

Evidently he is an elector of a different constituency.

That being the position he could have complied with section 33(5) by following one or the other of the three modes provided in that sub-section, namely, ( 1) he could have produced a copy of the Elecoral Roll of Shahpur constituency, or (2) he could have produced a copy of the relevant part of tbe 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 Electora1 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 furoish all the particulars which would be available if a certified copy of the relevnnt entries in the original Electoral Roll as well s the corrigeudum were produced before the Returning Officer at the time of scrutiny. Since the 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 amenliment list concerning the candidate are produced at the time of scrutinv. if the.se had not already been filed along with the nomination pper. fa th¥ instant case the candidate remained satisfied by jiling a .; ertified copy of only the corrigendum which did not satisfy the Returnin~ Ol!Wer as reards the.: ide11lity . of the candidate. When, therefore,_ t, he Returajitg Officer rejected the nomination paper, the, order can. '?e supported, on,!be g; ound tht a.cer\ified copy of the entry m the ongmal EleCtciral R, oll was not furmihed nlong with the certified .copy of the entry in the list of amendiru:nts. H cannot. therefore, be !iai<! .that the rejection of the nomiilaiion paper under section 36(2)(b) iihhis case is improper. In this con.netiori we may

refer to a decision of this Court in Sri Baru Ram v. Shri111aii P-rcoauni

and others( 1), where an identical question came up for consideration.

The following extract from the decision will be apposite :

"Su\J-section 5 of s. 33 deals with the stat: of the scrutiny of the nomination papers and it provides that where

acndidate is an elector of a different constituency, a copy or tJleelectoral roJI of that constituency or tl'e rclvant part

theroof or a certified copy of the relevant entry of such roll shall, unless it is filed along .with the nomination paper, be produced before the returning officer at tho time of the scrutiny. It is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different constituency and for ihat purpose the statute has provided the mode of proof.

Section 36, sub-s. (7) lays down that the certified copies which are required to be produced unde.r s. 33(5) shall be conclusive evidence of the fact that the person referred to in the relevant entry is an elector of that constituency.

In other words, the scheme of the Act appears to be that where a candidate is an elector of a different constituency he has w prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive cvidc:tcc of the said fact ..... Section 33 (5i requires the candidate to supply the prescribed copy a.1d s. 3!i(Z) (b) provides that on his failure to comply wit.b tile said requirement his nomination paper is ]iable to be rejected.

Jn other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty

for his failure to do so.

In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of s. 33(5) is. not mandatory but is directory, because the statute itself bas made it clear that the failure to comply with the said requircinent leads to the rejection of th.e nomination paper.

Whenever the statute requires a particular act to be done in a particular manne.r and also :lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the a.rgument that the failure to c<>mply with the said requirement should .lead to any other consequence .....

There is no doubt that the essential object of the scrutiny of nomination papers is that the returning officer should be satisfied that the candidate who is not an elector in the constitllency in question is in fact an elector of a different constituency.

The .satisfaction of the returning officer is thus the matter of substance in these proceedings; and if the statute provides the mode in which the returning officer has

(t) ft959] S.C.R. t403/14t8-142t.

PARMAR HIMATSINGH v. PATEi. HARMANBHAI (Goswami, /.) 459

A to be satisfied by the candidate it is that mode which the candidate must adopt . , ... "

The same view was expressed by this Court in Narbada Prasad v.

Chhat?an Lal and Ors.( 1 ) :-

"There was no compliance with the provisions of s. 3315l of the Representation of the People Act and there was no power in the court to dispense with this requirement.

It is a well-understood rule of law that ii a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded';.

We are, therefore, clearly of the .view that non-compliance with section 33(5) 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 aomination paper of Jivabhai 'and the rejccil0n

cannot be held to be improper.

In the result the appeal fails and is dismissed with costs.

P.B.R.

Appeal dismissed-

(I) [19691 (1) S.C.R, 4~/SOi.