| Representation of the People Act, 1951-Sections 33 and 36- Nomination paper-Substantial Defect-Meaning of-Name of candidate incorrectly mentioned in the electoral roll-No objection raised at the time of scrutiny of nominations-Held, the mistake was inadvertent or accidental and only technical-No substantial defect-Election Law. Representation of the People Act, 1951-Section 87-Election Petition- Challenge to election of a candidate-Burden of Proof-Held, burden lies on the person who challenges the election-No evidence led by any party to the election petition-Held, election petition would fail- Election Law. Legal Maxims : Falsa demonstratio non nocet cum be corrore constat-Meaning of. The appellant as well as the respondent filed their nomination papers for election to a legislative assembly. In the nomination paper of the respondent, his name was mentioned as "Babu Lal Marandi". In the electoral roll of the constituency from where he was contesting, his name was present but was mentioned as "Babu Marandi" instead of "Babu Lai Marandi" though his father's name and village were correctly mentioned. Against the names of his wife and his son, which appeared immediately after the name of the respondent, the correct name of the respondent, i.e. "Babu Lal Marandi" was mentioned. The respondent filed an application supported with affidavit before the returning officer pointing out the said mistake and seeking correction thereof. At the time of the scrutiny of the nomination paper, the electoral roll of the constituency was seen by the returning officer. No objection was raised by any of the candidates or the appellant at that time. The returning officer entered into a suo moto enquiry for his own satisfaction and being satisfied accepted the nomination paper of the respondent. The respondent was declared elected in the election. The appellant filed an election petition before the High Court challenging the election of the respondent on the ground that in the nomination paper, the name of the respondent was mentioned as "BabuLal Marandi" which did not appear in any of the electoral roll of any assembly constituency. He further alleged that the respondent has not filed certified copy of the electoral roll of any constituency reflecting his name therein and therefore, the respondent was not competent to contest the election. No evidence was led either by the appellant or by the respondent before the High Court. The High Court rejected the election petition filed by the appellant. Against the said order, the appellant preferred appeal under Section 116 A of the Representation of the People Act, 1951. | |
| Citation: | 2004 AIR 1067,2003(4 )Suppl.SCR1170,2003(8 )SCC613 ,2003(9 )SCALE74 ,2003(8 )JT460 |
| Court Name: | Supreme Court |
Dismissing the appeal, the Court HELD : 1.1. The omission of the second name `Lal' from the voters' list is inadvertent or accidental and in any case merely technical. In the voters' list as well as the nomination paper the respondent was correctly described. There is no doubt about the identity of the respondent. [1183-C, 1181-F-G, 1183-D] 1.2. Acceptance or rejection of the nomination paper by the returning officer shall depend on his forming an opinion as to whether the defect is of a non-substantial character or of a substantial character. A bare reading of the provisions of Section 33 of the Representation of the People. Act, 1951 shows that so far as sub-section (4) is concerned the effect of non-compliance may be merely an irregularity which would not necessarily entail the rejection of nomination paper. [1180-F, E-F] Harcharan Singh v. S. Mohinder Singh and OTHERS , AIR (1968) SC 1500; Viveka Nand Giri v. Nawal Kishore Sahi, [1984] 3 SCC 10 and Karnail Singh v. Election Tribunal Hissar and OTHERS , 10 ELR 189, referred to. 2.1. If the want of qualification does not appear on the face of the nomination paper or the electoral roll but is a matter which could be established only by evidence, an inquiry at the stage of the scrutiny of nomination papers is required under the Representation of the People Act, 1951 only if there is an objection to the nomination. The returning officer is then bound to make such inquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. [1183-G-H, 118-A] Durga Shankar Mehta v. Raghurai Singh and OTHERS , AIR (1954) SC 250, relied on. 2.2. On the face of the nomination paper the respondent was not disqualified in any manner. The returning officer satisfied himself as to the identity of the respondent and, the electoral roll of the constituency, which was available with him to be seen, pointed out only an inconsequential technical variation in description. If the contention of the appellant is that the respondent was not an elector of the constituency and his nomination paper was therefore liable to be rejected for failure to file a certified copy of entries of the relevant electoral roll, then it was for the appellant to raise that objection so as to put the returning officer on notice, who in his turn would have afforded the respondent an opportunity of meeting the objection. [ 1184-B-D] 2.3. In the present case, the appellant did not raise any objection to the validity of the nomination filed by the respondent. He never submitted the name of the respondent as appearing in the nomination did not agree with the name as appearing in the voters' list and therefore the nomination was not valid. Nor did he object that the respondent was not an elector registered in the voters' list of that constituency. The identity of the respondent was never called in question. [1181-B-C] 3.1. It is true that mere failure of the appellant in raising objection to the validity of the nomination paper filed by the respondent before the returning officer does not stop or exclude him from raising a plea before the High Court that the nomination paper filed by the respondent was liable to be rejected or could not have been accepted. But the fact remains that it will be for the election petitioner to raise necessary pleadings and, if traversed, to substantiate the same by adducing the necessary evidence. [1184-E-G] N.T. Veluswami Thevar v. G. Raja Nainar AND OTHERS , AIR (1959) SC 422, referred to. 3.2. The success of a winning candidate is not to be lightly interfered with. The burden of proof lies on the one who challenges the election to raise necessary pleadings and adduce evidence to prove such averments as would enable the result of the election being set aside on any of the grounds available in law. In an election petition if nobody adduces evidence it is the election petitioner who fails. [1185-B-C] 3.3. Before the High Court, the appellant has chosen not to adduce any evidence to demonstrate that the returning officer was not right in arriving at the satisfaction which he did or that the respondent was not enrolled in the electoral list of that constituency or was the one enrolled in some other constituency. The High Court has not erred in holding that the election of the respondent is not liable to be set aside. [1183-E-F] 4. Maxim "Falsa demonstratio non nocet cum de corrore constat" means mere false description does not vitiate, if there be sufficient certainty as to the object. "Falsa demonstratio" means an erroneous description of a person or a thing in the written instrument; and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the device: the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. [1182-G-H, 1183-A] Broom's Legal Maxims 10th Edition, referred to. Shaligram Shrivastava v. Naresh Singh Patel, [2003] 2 SCC 176, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5841 of 2002.
CASE NO.:
Appeal (civil) 5841 of 2002
PETITIONER:
Harikrishna Lal
RESPONDENT:
Babu Lal Marandi
DATE OF JUDGMENT: 30/10/2003
BENCH:
R.C. LAHOTI & ASHOK BHAN
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
An election, to choose one member to the Jharkhand Legislative
Assembly from 23-Ramgarh Assembly Constituency, was held in the
month of January-February 2001 to fill up the vacancy caused by the
death of the then sitting member. Though there were more than two
candidates in the election fray, the legal battle in the Court arena has
continued only between the appellant and the respondent, the two out
of the several candidates, in the backdrop of the controversy arising
for decision. The nomination paper filed by the appellant was rejected
by the returning officer. He could not participate in the elections. The
respondent was declared elected on 23.2.2001. An election petition,
laying challenge to the election of the respondent and seeking setting
aside of his election, was filed in the High Court of Jharkhand at
Ranchi. The facts relevant for the purpose of appreciating the issues
arising for decision in this appeal, are briefly set out hereunder.
As per the election programme notified by the Election
Commission of India, the nomination papers could be filed on January
25, 2001 through January 31, 2001 between 11 a.m. and 3 p.m.
before the returning officer who was the Sub-Divisional Officer of
Ramgarh. The scrutiny of the nominations took place on February 1,
2001. February 3, 2001 was the date for withdrawal of nomination, if
any. The nomination paper filed by the appellant was rejected by
reference to Section 8 of the Representation of the People Act, 1951
(hereinafter 'the Act', for short) for failure of the appellant to furnish
certain information in a prescribed proforma supported by an affidavit,
stating as to whether the petitioner was not disqualified to contest the
election due to any conviction for committing any offence as required
under Section 8 of the Act. The prescribed proforma for furnishing the
information and the form of affidavit, though supplied to the petitioner
by the returning officer, were not filed up to the date and time
appointed for scrutiny of nominations. So far as this aspect of the
case is concerned, the controversy stands resolved by a recent
decision of this Court in Shaligram Shrivastava Vs. Naresh Singh
Patel, (2003) 2 SCC 176. The appellant appearing in-person has very
fairly stated that he does not want to pursue any further this plea,
disputing the rejection of his nomination paper, in view of the
abovesaid decision of this Court.
The next controversy, and now the only one surviving for
decision, is as to whether the nomination paper filed by the
respondent suffered from any defect of a substantial character.
Inasmuch as this issue has been highlighted by the appellant from
very many angles, it would be useful to reproduce and set out from
the averments made in the election petition itself as to what the
appellant's case is. According to the appellant __
"The returning officer ought to have rejected
the nomination papers of the respondent on the
following grounds:-
(a) That the respondent's name is 'Babulal'. His
surname is Marandi. He is known,
recognized, addressed and identified every
where by this name 'Babulal Marandi' alone
and not by any other name or surname
whatsoever.
The name of the respondent Babu Lal
Marandi has not been enrolled as an elector
in the electoral roll of any Assembly
constituency of Legislative Assembly of
Jharkhand State.
He has not filed certified copy of any
Assembly constituency of Jharkhand
Legislature to the Returning Officer either at
the time of filing his nomination papers or at
the time of scrutiny showing therein that his
name 'Babu Lal Marandi' has been registered
as an elector in that Assembly Constituency.
Thus, the respondent is not competent to
contest the said election. His nomination
papers filed to the returning officer suffer
from a defect of substantial character under
Section 36(4) of the R.P. Act, 1951 and they
ought to have been rejected by the
Returning Officer."
The respondent has in his written statement denied the
averment made by the election petitioner and submitted __
"that the name printed in the Electoral Roll is Babu
Marandi instead of Babu Lal Marandi and his
father's name is correct, village is correct and in
between 'Babu' and 'Marandi', 'Lal' is not printed.
In this regard, it is submitted that answering
respondent filed an application before the
Returning Officer, Ramgarh on 29.1.2001
mentioning there that the correct name of the
respondent is Babu Lal Marandi son of Sri Chhotu
Marandi, Village Kodaibank, P.O. Chandauri, P.S.
Tisri, District Giridih but by mistake in the Voter
List, his name is printed as Babu Marandi son of Sri
Chhotu Marandi and requested him to correct his
name."
It is further submitted in the written statement that the respondent is
known as Babu Marandi and also as Babu Lal Marandi. Apparently, in
the Voters List, the word 'Lal' in between 'Babu' and 'Marandi' has
been left out due to mistake. It is clear from the fact that below the
respondent's name, the name of his wife Shanti Marandi, wife of Babu
Lal Marandi (the respondent) is mentioned. In continuity the name of
the respondent's son Sanstan Marandi, son of Babu Lal Marandi (the
respondent) is mentioned. A photocopy of the Voters List supporting
the above said plea was annexed with the written statement. The
respondent had also moved an application duly supported by an
affidavit seeking rectification of the above said error in the Voters List.
Copies of the application, the affidavit, and the receipt showing the
deposit of fee for correction were also filed with the written statement.
The respondent has then submitted that such a printing mistake in the
Voters List did not affect the identity of the respondent and is certainly
not a ground on which his nomination paper could have been rejected.
The electoral roll of the constituency was seen by the returning officer
at the time of scrutiny and the nomination paper, having been found in
order, was accepted. There was no objection raised by anyone or the
election petitioner at the time of the scrutiny. The returning officer
rightly accepted the nomination paper of the respondent.
On the pleadings of the parties, one of the issues framed by the
learned designated Election Judge was:-
"Whether the real name of the respondent Babulal
Marandi is not registered in the electoral roll of any
of the Assembly Constituencies of the Jharkhand
Legislative Assembly and, as such, he is not
qualified to contest the election from 23-Ramgarh
Assembly Constituency?"
The case was posted for trial. The election petitioner declared
that he was not adducing any evidence. The respondent too chose not
to adduce any evidence. The arguments were heard. The High Court
has found the averment made in the election petition not
substantiated. In the opinion of the High Court the returning officer
has not erred in accepting the nomination paper of the respondent.
The election petition has been directed to be dismissed.
The election petitioner has filed this appeal under Section 116A
of the Act.
We have heard the appellant, appearing in-person, who argued
the case from all possible angles and Shri Sanyal, the learned senior
counsel for the respondent. We are satisfied that no fault can be
found with the view taken by the High Court in dismissing the election
petition and consequently this appeal too is liable to be dismissed.
The relevant statutory provisions which would clinch the singular
issue surviving for decision in this appeal are extracted from the Act
and reproduced hereunder:
33. Presentation of nomination paper
and requirements for a valid
nomination. –
(1) to (3) xxx xxx xxx
(4) On the presentation of a nomination
paper, the returning officer shall satisfy
himself 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 rolls:
[Provided that no misnomer or inaccurate
description or clerical, technical or printing
error in regard to the name of the candidate
or his proposer or any other person, or in
regard to any place, mentioned in the
electoral roll or the nomination paper and
no clerical, technical or printing error in
regard to the electoral roll numbers of any
such person in the electoral roll or the
nomination paper, shall affect the full
operation of the electoral roll or the
nomination paper with respect to such
person or place in any case where the
description in regard to the name of the
person or place is such as to be commonly
understood; and the returning officer shall
permit any such misnomer or inaccurate
description or clerical, technical or printing
error to be corrected and where necessary,
direct that any such misnomer, inaccurate
description, clerical, technical or printing
error in the electoral roll or in the nomination
paper shall be overlooked.]
(5) Where the candidate is an elector of 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 in such roll shall, unless it
has been filed along with the nomination
paper, be produced before the returning
officer at the time of scrutiny.
36. Scrutiny of nominations. – (1)On the
date fixed for the scrutiny of nominations
under section 30, the candidates, their
election agents, one proposer of each
candidate, and one other person duly
authorized in writing by each candidate but
no other person, may attend at such time
and place as the returning officer may
appoint; and the returning officer shall give
them all reasonable facilities for examining
the nomination papers of all candidates
which have been delivered within the time
and in the manner laid down in section 33.
(2) The returning officer shall then
examine the nomination papers and shall
decide all objections which may be made to
any nomination and may, either on such
objection or on his own motion, after such
summary inquiry, if any, as he thinks
necessary, reject any nomination on any of
the following grounds :-
[(a) [that on the date fixed for the scrutiny
of nominations the candidate] either is not
qualified for being chosen to fill the seat
under any of the following provisions that
may be applicable, namely:-
Articles 84, 102, 173 and 191,]
[Part II of this Act and sections 4 and 14 of
the Government of Union Territories Act,
1963 (20 of 1963); or
(b) that there has been a failure to
comply with any of the
provisions of section 33 or
section 34; or
(c) that the signature of the
candidate or the proposer on
the nomination paper is not
genuine.]
(3) xxx xxx xxx
(4) The returning officer shall not reject
any nomination paper on the ground of any
defect which is not of a substantial
character.
(5) The returning officer shall hold the
scrutiny on the date appointed in this behalf
under clause (b) of section 30 and shall not
allow any adjournment of the proceedings
except when such proceedings are
interrupted or obstructed by riot or open
violence or by causes beyond his control :
Provided that in case [an objection is
raised by the returning officer or is made by
any other person] the candidate concerned
may be allowed time to rebut it not later
than the next day but one following the date
fixed for scrutiny, and the returning officer
shall record his decision on the date to which
the proceedings have been adjourned.
(6) The returning officer shall endorse on
each nomination paper his decision accepting
or rejecting the same and, if the nomination
paper is rejected, shall record in writing a
brief statement of his reasons for such
rejection.
[emphasis supplied]
It is pertinent to point out that the proviso to sub-section (4) of
Section 33 was not to be found in the Act as originally enacted; the
same was inserted by Amending Act 47 of 1966 with effect from
14.12.1966. Notes on Clauses of the Bill proposing the amendments
speak of the abovesaid proviso as under:
". . . . . . . . . . The new proviso to sub-section (4)
is comprehensive in nature and it is on the lines of
sub-section (5) of section 39 of the U.K.
Representation of the People Act, 1949. This has
been done to remove all possible doubts about the
power of the returning officer to correct any
misnomer or inaccurate description in regard to the
name of a candidate or his proposer or any other
person or in regard to any place mentioned in the
electoral roll or in the nomination paper."
(See Gazette of India, Extraordinary, dated August 29, 1966, Part 2
Section 2 page 667, 699).
A bare reading of the provisions shows that so far as sub-
section (4) of Section 33 is concerned the effect of non-compliance
may be merely an irregularity which would not necessarily entail the
rejection of nomination paper. Acceptance or rejection of the
nomination paper by the returning officer shall depend on his forming
an opinion as to whether the defect is of a non-substantial character or
of a substantial character. A statutory duty is cast on the returning
officer to scrutinize the nomination papers on the appointed date
without adjourning the proceedings. If the returning officer finds any
irregularity or defect in the nomination paper he may hold an enquiry
suo motu affording the candidate, whose nomination is under scrutiny,
an opportunity to satisfy the returning officer that no such defect or
irregularity exists. An objection may be raised by any other person
and in that case also the candidate concerned may be allowed time to
rebut the objection. Within the meaning of proviso to sub-section (5)
of Section 36 the returning officer has to record his decision by way of
acceptance or rejection of the nomination paper. If the nomination
paper is rejected a brief statement of his reasons for such rejection
has to be recorded in writing.
In the present case, the appellant did not raise any objection to
the validity of the nomination filed by the respondent. He never
submitted that the name of the respondent as appearing in the
nomination did not agree with the name as appearing in the voters' list
and therefore the nomination was not valid. Nor did he object that the
respondent was not an elector registered in the voters' list of that
constituency. The identity of the respondent was never called in
question. It seems from the plea taken in the written statement and
the annexures filed with the written statement that the returning
officer suo motu asked the respondent to satisfy him on the minor
discrepancy which appeared in the voters' list and the nomination
paper, i.e., while the voters' list of the constituency contained the
entry "Babu Marandi, father's name - Chotu Marandi, sex - Male, age -
37 years, resident of village Kodaibank, P.S. Tisri, Distt. Giridih", the
nomination paper mentioned the name of the respondent as 'Babulal
Marandi', with all other particulars remaining the same as entered in
the voters' list. Thus, the only variation in the name of the respondent
was that of 'Babu Marandi' and 'Babulal Marandi'. The respondent
contended before the returning officer by filing an affidavit that he was
known both as 'Babu Marandi' and 'Babulal Marandi', and that the
omission of 'Lal' in the voters' list was inadvertent, erroneous and in
any case technical. It is well-known that in Indian society the name of
a person consists of the first name, the second name and the surname
or the family name. The first name and the family name of the
respondent tallied; the second name was mentioned in the nomination
paper but was not found to be mentioned in the voters' list. According
to the plea taken in the written statement all other descriptions such
as father's name, age, sex and residence etc. of the respondent as
given in the voters' list and as appearing in the nomination paper
tallied. There was thus no defect in the nomination paper. The
respondent being a candidate from that very constituency wherein he
was enrolled as an elector, it was not necessary for him to file a
certified copy of the relevant entries in electoral roll or to produce the
same at the time of scrutiny.
In Harcharan Singh Vs. S. Mohinder Singh and Ors. - AIR
1968 SC 1500 the purpose of the provisions contained in Sections 33
and 36 of the Act was stated by their Lordships in these words – "The
primary purpose of the diverse provisions of the election law which
may appear to be technical is to safeguard the purity of the election
process and the Courts will not ordinarily minimize their operation."
Their Lordships further observed that "the statutory requirements of
election law must be strictly observed. An election dispute is a
statutory proceeding unknown to the common law: it is not an action
at law or in equity. But under S.36(4) the Returning Officer is entitled
to accept the nomination paper even if it be defective, if the defect is
not of a substantial character. He is enjoined not to reject the
nomination paper unless the defect is of a substantial character."
Harcharan Singh's case (supra) was one where the details for
identifying the appellant as an elector were duly furnished and his age
though mentioned in the nomination paper was not to be found in the
certified copy produced by him and no objection was raised to the
acceptance of the nomination paper on behalf of the contesting
candidate. The returning officer satisfied himself by personal enquiry
that the appellant was above the age of 25 and therefore competent to
stand for election. It was held that even though the copy produced
was defective because of the absence therefrom of the house number
entered in the electoral register, yet the defect was not of a
substantial character and hence the returning officer was justified in
not rejecting the nomination paper. In Viveka Nand Giri Vs. Nawal
Kishore Sahi – (1984) 3 SCC 10 there was a difference in the age as
recorded in the electoral roll and as stated in the nomination paper. It
was held that the nomination paper would fall in the category of an
inaccurate description and the returning officer could not have rejected
the nomination. In Karnail Singh Vs. Election Tribunal, Hissar and
Ors. - 10 ELR 189 the name of the Sub-Division was not stated in the
nomination paper. However, it was quite clear that there was no
difficulty in identifying the candidate. The defect was held to be a
technical one and not of substantial character.
A reference may usefully be made to the maxim "Falsa
demonstratio non nocet cum de corrore constat" which means mere
false description does not vitiate, if there be sufficient certainty as to
the object. 'Falsa demonstratio' means an erroneous description of a
person or a thing in a written instrument; and the above rule
respecting it signifies that where the description is made up of more
than one part, and one part is true, but the other false, there, if the
part which is true describes the subject with sufficient legal certainty,
the untrue part will be rejected and will not vitiate the devise: the
characteristic of cases within the rule being that the description, so far
as it is false, applies to no subject at all, and, so far as it is true,
applies to one only. (See Broom's Legal Maxims, 10th Edition, pp. 426-
427). Broom quotes (at page 438) an example that an error in the
proper name or in the surname of the legatee should not make the
legacy void, provided it could be understood from the will what person
was intended to be benefited thereby.
There is no manner of doubt that the respondent is a duly
enrolled elector in the voters list of No.23 Ramgarh Assembly
Constituency. In the voters list as well as in the nomination paper the
respondent was correctly described. The omission of his second name
'Lal' from the voters list is inadvertent or accidental and in any case
merely technical. There is no doubt about the identity of the
respondent. Apparently that is why none of the candidates including
the writ petitioner and no one else raised any objection to the
acceptance of the nomination paper by submitting that the respondent
was not a registered elector of the constituency. The returning officer
entered into suo moto enquiry for his own satisfaction, and felt
satisfied by looking into the electoral list of the constituency available
with him, that the respondent Babu Lal Marandi was the same person
who was mentioned as Babu Marandi in the electoral list. Being an
elector in the same constituency wherefrom he was contesting election
it was not necessary for him to have filed a certified copy of the
relevant entry from the voters list. Before the High Court, the writ
petitioner has chosen not to adduce any evidence to demonstrate that
the returning officer was not right in arriving at the satisfaction which
he did or that the respondent was not enrolled in the electoral list of
that constituency or was the one enrolled in some other constituency.
The High Court has not erred in holding the election of the respondent
not liable to be set aside.
In Durga Shankar Mehta Vs. Raghuraj Singh and Ors. –
AIR 1954 SC 250 the Constitution Bench has held that if the want of
qualification does not appear on the face of the nomination paper or of
the electoral roll but is a matter which could be established only by
evidence, an enquiry at the stage of the scrutiny of the nomination
papers is required under the Act only if there is any objection to the
nomination. The Returning Officer is then bound to make such enquiry
as he thinks proper on the result of which he can either accept or
reject the nomination. But when the candidate appears to be properly
qualified on the face of the electoral roll and the nomination paper and
no objection is raised to the nomination, the Returning Officer has no
other alternative but to accept the nomination.
The law so laid down by the Constitution Bench squarely applies
to the present case. On the face of the nomination paper the
respondent was not disqualified in any manner. The returning officer
satisfied himself as to the identity of the respondent and, the electoral
roll of the constituency, which was available with him to be seen,
pointed out only an inconsequential technical variation in description,
as already stated hereinabove. If the contention of the appellant is
that the respondent was not an elector of the constituency and his
nomination paper was therefore liable to be rejected for failure to file a
certified copy of entries of the relevant electoral roll, then it was for
the appellant to raise that objection so as to put the returning officer
on notice, who in his turn could have afforded the respondent an
opportunity of meeting the objection. Clearly there is no merit in the
plea raised by the appellant.
It is true that mere failure of the appellant in raising objection to
the validity of the nomination paper filed by the respondent before the
returning officer does not stop or exclude the election petitioner from
raising a plea before the High Court that the nomination paper filed by
the respondent was liable to be rejected or could not have been
accepted. The enquiry which the returning officer has to make under
Section 36 of the Act is summary in character, which he may make as
he thinks necessary either suo moto or on an objection being raised.
Whether such an enquiry was held or not and if held whatever may
have been the result, the propriety of rejection or acceptance of a
nomination paper can always be raised by way of election
petition.(See N.T. Veluswami Thevar Vs. G. Raja Nainar & Ors.,
AIR 1959 SC 422). But the fact remains that it will be for the election
petitioner to raise necessary pleadings and, if traversed, to
substantiate the same by adducing the necessary evidence. This the
election petitioner has failed to do before the High Court. The
inevitable consequence of the election petition being dismissed has
rightly followed.
Even otherwise we find no substance in the plea raised by the
election petitioner.
The appellant submitted that in the election petition it was
specifically alleged that the respondent was not an elector belonging to
the constituency and that it was further obligatory for the respondent
to adduce evidence to show that he was qualified to be a candidate
without the need of filing the certified copies of entries in the electoral
roll before the returning officer. Such a submission runs counter to
basics of election law. The success of a winning candidate is not to be
lightly interfered with. The burden of proof lies on the one who
challenges the election to raise necessary pleadings and adduce
evidence to prove such averments as would enable the result of the
election being set aside on any of the grounds available in the law. In
an election petition if nobody adduces evidence it is the election-
petitioner who fails. The High Court rightly framed the issue placing
the burden of proof on the election- petitioner. As no evidence was
adduced by the election-petitioner, the High Court rightly dismissed
the election petition.
The appeal is devoid of any merit and liable to be dismissed. It
is dismissed though without any order as to the costs.
