REJECTION OF NOMINATION PAPERS - FOR NON FILING OF ELECTORAL ROLL AS HE BELONGS TO ANOTHER CONSTITUENCY - HIGH COURT SET ASIDE THE ELECTION OF RETURNED CANDIDATE AND REINSTATED THE PETITIONER ON THE GROUND NO ONE FILED - APEX COURT HELD THAT HIGH COURT DID WRONG . AS PER SEC.33 (5) ANOTHER CONSTITUTION PERSON IF CONTESTED HAS TO FILE ELECTORAL ROLL OF LATEST - HELD THAT accordingly, we set aside the judgment of the High Court, treat the election of the appellant as valid and further direct that the appellant shall get the entire remuneration for the period for which he was elected as a member of the legislative Council and we say so on the basis of the Constitution Bench decision in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].=
The Returning Officer, while
accepting the nomination papers of all the candidates, rejected the
nomination paper of the respondent on the ground that he had not filed
the relevant electoral roll which was required to be done, for he
belonged to another constituency.=
Section 33(5) of the Act is seemly. It reads as follows:
-
“”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.”
14. The said provision came to be interpreted in B. Dandapani Patra
v. Returning Officer-cum-Sub-Divisional Officer, Berhampur and
others[3], wherein a two-Judge Bench placed reliance on Ranjit Singh
v. Pritam Singh[4] and came to hold as follows: -
“… it has been held that when Section 33(5) of the said Act
refers to a copy of the relevant part of the electoral roll, it
means a part as defined in Rule 5 of the said Rules of 1960.
The complete copy would carry the various amendments made in the
roll to enable the Returning Officer to see whether the name of
the candidate continues in the roll.”
15. The facts of the aforesaid decision would show that
unless the
current electoral roll is filed along with the nomination paper, that
would tantamount to non-compliance of Section 33(5) of the Act.
In
the instant case, on a perusal of evidence of PW-1, the respondent
herein, and the Returning Officer, it is perceptible that the said
respondent had not filed the electoral roll of 1998 which was the
latest electoral roll as on 1.1.2002.
On the date of scrutiny, the respondent was absent.
The High Court, as noticeable, has referred to
the order of rejection of nomination paper by the Returning Officer
and opined that none had filed the electoral roll of 1.1.2002 and,
therefore, the nomination paper could not have been rejected.
The
aforesaid view is the resultant of erroneous perception of fact.
The
ground that was indicated by the Returning Officer was that the valid
electoral roll as on 1.1.2002 had not been filed. It has come in the
evidence that no electoral roll was prepared on that date and the
latest electoral roll was that of 1998. The respondent had not filed
the same. In fact, he had filed the electoral roll of 1995. It is
also clear from the evidence that at the time of scrutiny, he was not
present.
16. In view of the foregoing analysis, we have no scintilla of doubt
that the High Court has fallen into serious error by setting aside the
election of the appellant and,
accordingly, we set aside the judgment
of the High Court, treat the election of the appellant as valid and
further direct that the appellant shall get the entire remuneration
for the period for which he was elected as a member of the legislative
Council and we say so on the basis of the Constitution Bench decision
in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].
17. The appeal is accordingly allowed. There shall be no order as
to costs.
2014 (May. Part) http://judis.nic.in/supremecourt/filename=41545
DIPAK MISRA, N.V. RAMANA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 888 OF 2009
Balram Singh Yadav@ Balram Yadav … Appellant
Versus
Abhay Kumar Singh …Respondent
J U D G M E N T
Dipak Misra, J.
In this appeal, the question that is required to be determined
is whether the High Court by the order impugned was justified in
invalidating the election of the appellant who was elected as a member
of Bihar Legislative Assembly in the election held on 10.7.2003.
2. Bereft of unnecessary details, the facts which are essential to
be stated are that the respondent filed his nomination paper along
with fifty others to enter into the contest as the member of Bihar
Legislative Council from 20-Saharsha-cum-Medhepura-cum-Supaul Local
Authority Election Constituency. The Returning Officer, while
accepting the nomination papers of all the candidates, rejected the
nomination paper of the respondent on the ground that he had not filed
the relevant electoral roll which was required to be done, for he
belonged to another constituency.
3. After the election was over, the respondent instituted Election
Petition No. 4 of 2003 in the High Court of Patna seeking a
declaration that rejection of his nomination paper was incorrect and
inappropriate, and hence, the election of the elected candidate was
void. Challenge to the rejection was based on two counts, namely,
that he had filed the requisite voters’ list as contemplated under
Section 33(5) of the Representation of the People Act, 1951 (for
brevity, ‘the Act’) and second, the Returning Officer, at the time of
scrutiny, had not pointed out the defect to him for which he was
deprived of the opportunity of rectifying the mistake.
4. In the election petition it was asseverated that the Returning
Officer accepted the electoral roll for other candidates for the year
1998, but as far as the respondent was concerned, there was insistence
for production of the valid electoral roll as on 1.1.2002 which was
not essential. The stand and stance put forth by the election
petitioner was seriously controverted by the present appellant on many
a ground including the one that in the absence of any pleadings in the
petition to substantiate the fact his contesting in the election would
have materially affected the results of the election, the election
petition was totally devoid of any substance.
5. The High Court framed the following four issues for
adjudication:
“(1) Whether this election petition, as framed is maintainable?
(2) Whether this election petition is vitiated by non-joinder
of necessary parties?
(3) Whether the nomination paper of the petitioner was
improperly rejected by the Returning Officer?
(4) Whether the petitioner is entitled to any relief or
reliefs?”
6. Both the parties adduced oral evidence and marked certain
documents as exhibits. The High Court treated issue No. 3 as the
principal issue and the issue No. 4 as consequential to it. The
respondent brought on record the order of rejection passed by the
Returning Officer as Ext. P-2. There was no dispute before the High
Court that the first respondent did not belong to the constituency
and, therefore, he was required to comply with Section 33(5) of Act.
The High Court, adverting to the said aspect, observed as follows: -
“Petitioner does not deny that he had filed an extract of 1995
electoral roll and even in the electoral roll of 1998 the Part
and Serial Number where the petitioner’s name figured was
identical. If the Returning Officer had bothered to turn the
pages of 1998 electoral roll at the time of scrutiny then the
above declaration of the petitioner in the nomination paper
would have stood verified and corroborated. But then the reason
for rejection of the nomination of the petitioner is not that
the petitioner had not annexed 1998 electoral roll. The reason
assigned is that he did not have the Aharta as on 1.1.2002 and
he had not annexed Styapit (certified) extract of the electoral
roll in the regard.”
7. Thereafter, considering the oral evidence, the High Court opined
thus: -
“The Court also decides to have a look at the oral evidences
which have been adduced on this score. Five witnesses were
produced on behalf of the petitioner. P.W. 1 is the petitioner
himself where he has stated that he was one of the candidates
for the “Constituency” of the Local Body and was a voter of 110-
Raghopur Assembly Constituency. He stated that his nomination
papers were illegally rejected. He filed two sets of nomination
papers which were duly signed by him and his proposers. In one
of the nomination papers a detailed reason for rejection was
recorded but in the second nomination paper the word “Aswikrit
Karta Hun” (rejected) only mentioned. He has furnished the
details of his name, the Part and the Serial Number of 110-
Raghopur Assembly Constituency which is reflected in the voter
list of 1998. His name figured at serial no. 444 in Part 11.
He also states that a demand of voter list for the year, 2002
was made from him orally but there was no voter list of the year
available to his knowledge. He also denied that he had received
any kind of memo much less memo no. 10. He does accept that he
was personally not present at the time of scrutiny but he had
authorized one Sri Prabhakar Singh, Advocate to participate in
the same but he was not allowed to go to the place of scrutiny.”
8. We have heard Mr. Nagendra Rai, learned senior counsel for the
appellant. Despite service of notice, there is no appearance on
behalf of the respondent.
9. To appreciate the controversy from a proper perspective, it is
apposite to refer to Section 100 of the Act. It reads as follows:-
“100. Grounds for declaring election to be void.- (1) Subject to
the provisions of sub-section (2) if the High Court is of
opinion-
a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act or the Government of Union
Territories Act, 1963 (20 of 1963); or
b) that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with
the consent of a returned candidate or his election agent; or
c) that any nomination has been improperly rejected; or
d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected –
i) by the improper acceptance of any nomination, or
ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his
election agent, or
iii) by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void,
or
iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders
made under this Act,
the High Court shall declare the election of the returned
candidate to be void.”
10. Be it stated, before this provision was incorporated by the
Representation of the People (2nd amendment) Act, 1956, Section
100(1)(c) read as follows:-
“If the Tribunal is of opinion that the result of the election
has been materially affected by the improper acceptance or
rejection of any nomination, the Tribunal shall declare the
election to be wholly void.”
Interpreting the said provision, the Constitution Bench in
Surendra Nath Khosla and another v. S. Dalip Singh and others[1] ruled
thus:-
“It appears that though the words of the section are in general
terms with equal application to the case of improper acceptance,
as also of improper rejection of a nomination paper, case law
has made a distinction between the two classes of cases. So far
as the latter class of cases is concerned, it may be pointed out
that almost all the Election Tribunals in the country have
consistently taken the view that there is a presumption in the
case of improper rejection of a nomination paper that it has
materially affected the result of the election. Apart from the
practical difficulty, almost the impossibility, of demonstrating
that the electors would have cast their votes in a particular
way, that is to say, that a substantial number of them would
have cast their votes in favour of the rejected candidate, the
fact that one of several candidates for an election had been
kept out of the arena is by itself a very material
consideration. Cases can easily be imagined where the most
desirable candidates from the point of view of electors and the
most formidable candidate from the point of view of the other
candidates may have been wrongly kept out from seeking election.
By keeping out such a desirable candidate, the officer rejecting
the nomination paper may have prevented the electors from voting
for the best candidate available. On the other hand, in the case
of an improper acceptance of a nomination paper, proof may
easily be forthcoming to demonstrate that the coming into the
arena of an additional candidate has not had any effect on the
election of the best candidate in the field. The conjecture
therefore is permissible that the legislature realising the
difference between the two classes of cases has given
legislative sanction to the view by amending Section 100 by the
Representation of the People (Second Amendment) Act, 27 of 1956,
and by going to the length of providing that an improper
rejection of any nomination paper is conclusive proof of the
election being void. For the reasons aforesaid, in our opinion,
the majority decision on the fourth issue is also correct.”
11. After the amendment, a three-Judge Bench in Mahadeo v. Babu Udai
Partap Singh and others[2], after referring to the decision in
Surendra Nath Khosla (supra), opined as follows:-
“11. This position has now been clarified by the Legislature
itself by amending S. 100 in 1956. The amended S. 100(1)(a), (b)
and (c) refer to three classes of cases where the election is
set aside on proof of facts enumerated in the said clauses.
Clause (a) refers to a case where a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act at the date of his election.
As soon as this fact is proved, his election is set aside.
Similarly, under Cl. (b), if any corrupt practice is shown to
have been committed by a returned candidate or his election
agent or by any other person with the consent of a returned
candidate or his election agent, the election of the returned
candidate is set aside and declared void. Likewise, Cl. (c)
provides that the election of a returned candidate shall be
declared void if it is shown that any nomination has been
improperly rejected. It would thus be seen that the view which
the Election Tribunals and the Courts had been consistently
taking in dealing with the question about the effect of the
improper rejection of any nomination paper, has been confirmed
by the Legislature and now, the position is that if it is shown
that at any election, any nomination paper has been improperly
rejected, the improper rejection itself renders the election
void without any further proof about the material effect of this
importer rejection.”
12. In view of the abovestated enunciation of law, the submission
that there was no pleading and no evidence was adduced to establish
that the election of the elected candidate was materially affected, is
sans substance. Once the court comes to the conclusion that the
nomination paper had been improperly rejected, it is obliged in law to
declare the election void.
13. Presently, we shall proceed to deal with the issue whether the
High Court was justified in accepting the plea of the respondent that
his nomination paper was improperly rejected. In this regard,
reference to Section 33(5) of the Act is seemly. It reads as follows:
-
“”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.”
14. The said provision came to be interpreted in B. Dandapani Patra
v. Returning Officer-cum-Sub-Divisional Officer, Berhampur and
others[3], wherein a two-Judge Bench placed reliance on Ranjit Singh
v. Pritam Singh[4] and came to hold as follows: -
“… it has been held that when Section 33(5) of the said Act
refers to a copy of the relevant part of the electoral roll, it
means a part as defined in Rule 5 of the said Rules of 1960.
The complete copy would carry the various amendments made in the
roll to enable the Returning Officer to see whether the name of
the candidate continues in the roll.”
15. The facts of the aforesaid decision would show that unless the
current electoral roll is filed along with the nomination paper, that
would tantamount to non-compliance of Section 33(5) of the Act. In
the instant case, on a perusal of evidence of PW-1, the respondent
herein, and the Returning Officer, it is perceptible that the said
respondent had not filed the electoral roll of 1998 which was the
latest electoral roll as on 1.1.2002. On the date of scrutiny, the
respondent was absent. The High Court, as noticeable, has referred to
the order of rejection of nomination paper by the Returning Officer
and opined that none had filed the electoral roll of 1.1.2002 and,
therefore, the nomination paper could not have been rejected. The
aforesaid view is the resultant of erroneous perception of fact. The
ground that was indicated by the Returning Officer was that the valid
electoral roll as on 1.1.2002 had not been filed. It has come in the
evidence that no electoral roll was prepared on that date and the
latest electoral roll was that of 1998. The respondent had not filed
the same. In fact, he had filed the electoral roll of 1995. It is
also clear from the evidence that at the time of scrutiny, he was not
present.
16. In view of the foregoing analysis, we have no scintilla of doubt
that the High Court has fallen into serious error by setting aside the
election of the appellant and, accordingly, we set aside the judgment
of the High Court, treat the election of the appellant as valid and
further direct that the appellant shall get the entire remuneration
for the period for which he was elected as a member of the legislative
Council and we say so on the basis of the Constitution Bench decision
in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].
17. The appeal is accordingly allowed. There shall be no order as
to costs.
………………………..J.
[Dipak Misra]
………………………..J.
[N.V. Ramana]
New Delhi;
May 13, 2014.
-----------------------
[1] AIR 1957 SC 242
[2] AIR 1966 SC 824
[3] (1990) 1 SCC 505
[4] (1996) 3 SCR 543
[5] (1985) 4 SCC 621
The Returning Officer, while
accepting the nomination papers of all the candidates, rejected the
nomination paper of the respondent on the ground that he had not filed
the relevant electoral roll which was required to be done, for he
belonged to another constituency.=
Section 33(5) of the Act is seemly. It reads as follows:
-
“”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.”
14. The said provision came to be interpreted in B. Dandapani Patra
v. Returning Officer-cum-Sub-Divisional Officer, Berhampur and
others[3], wherein a two-Judge Bench placed reliance on Ranjit Singh
v. Pritam Singh[4] and came to hold as follows: -
“… it has been held that when Section 33(5) of the said Act
refers to a copy of the relevant part of the electoral roll, it
means a part as defined in Rule 5 of the said Rules of 1960.
The complete copy would carry the various amendments made in the
roll to enable the Returning Officer to see whether the name of
the candidate continues in the roll.”
15. The facts of the aforesaid decision would show that
unless the
current electoral roll is filed along with the nomination paper, that
would tantamount to non-compliance of Section 33(5) of the Act.
In
the instant case, on a perusal of evidence of PW-1, the respondent
herein, and the Returning Officer, it is perceptible that the said
respondent had not filed the electoral roll of 1998 which was the
latest electoral roll as on 1.1.2002.
On the date of scrutiny, the respondent was absent.
The High Court, as noticeable, has referred to
the order of rejection of nomination paper by the Returning Officer
and opined that none had filed the electoral roll of 1.1.2002 and,
therefore, the nomination paper could not have been rejected.
The
aforesaid view is the resultant of erroneous perception of fact.
The
ground that was indicated by the Returning Officer was that the valid
electoral roll as on 1.1.2002 had not been filed. It has come in the
evidence that no electoral roll was prepared on that date and the
latest electoral roll was that of 1998. The respondent had not filed
the same. In fact, he had filed the electoral roll of 1995. It is
also clear from the evidence that at the time of scrutiny, he was not
present.
16. In view of the foregoing analysis, we have no scintilla of doubt
that the High Court has fallen into serious error by setting aside the
election of the appellant and,
accordingly, we set aside the judgment
of the High Court, treat the election of the appellant as valid and
further direct that the appellant shall get the entire remuneration
for the period for which he was elected as a member of the legislative
Council and we say so on the basis of the Constitution Bench decision
in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].
17. The appeal is accordingly allowed. There shall be no order as
to costs.
2014 (May. Part) http://judis.nic.in/supremecourt/filename=41545
DIPAK MISRA, N.V. RAMANA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 888 OF 2009
Balram Singh Yadav@ Balram Yadav … Appellant
Versus
Abhay Kumar Singh …Respondent
J U D G M E N T
Dipak Misra, J.
In this appeal, the question that is required to be determined
is whether the High Court by the order impugned was justified in
invalidating the election of the appellant who was elected as a member
of Bihar Legislative Assembly in the election held on 10.7.2003.
2. Bereft of unnecessary details, the facts which are essential to
be stated are that the respondent filed his nomination paper along
with fifty others to enter into the contest as the member of Bihar
Legislative Council from 20-Saharsha-cum-Medhepura-cum-Supaul Local
Authority Election Constituency. The Returning Officer, while
accepting the nomination papers of all the candidates, rejected the
nomination paper of the respondent on the ground that he had not filed
the relevant electoral roll which was required to be done, for he
belonged to another constituency.
3. After the election was over, the respondent instituted Election
Petition No. 4 of 2003 in the High Court of Patna seeking a
declaration that rejection of his nomination paper was incorrect and
inappropriate, and hence, the election of the elected candidate was
void. Challenge to the rejection was based on two counts, namely,
that he had filed the requisite voters’ list as contemplated under
Section 33(5) of the Representation of the People Act, 1951 (for
brevity, ‘the Act’) and second, the Returning Officer, at the time of
scrutiny, had not pointed out the defect to him for which he was
deprived of the opportunity of rectifying the mistake.
4. In the election petition it was asseverated that the Returning
Officer accepted the electoral roll for other candidates for the year
1998, but as far as the respondent was concerned, there was insistence
for production of the valid electoral roll as on 1.1.2002 which was
not essential. The stand and stance put forth by the election
petitioner was seriously controverted by the present appellant on many
a ground including the one that in the absence of any pleadings in the
petition to substantiate the fact his contesting in the election would
have materially affected the results of the election, the election
petition was totally devoid of any substance.
5. The High Court framed the following four issues for
adjudication:
“(1) Whether this election petition, as framed is maintainable?
(2) Whether this election petition is vitiated by non-joinder
of necessary parties?
(3) Whether the nomination paper of the petitioner was
improperly rejected by the Returning Officer?
(4) Whether the petitioner is entitled to any relief or
reliefs?”
6. Both the parties adduced oral evidence and marked certain
documents as exhibits. The High Court treated issue No. 3 as the
principal issue and the issue No. 4 as consequential to it. The
respondent brought on record the order of rejection passed by the
Returning Officer as Ext. P-2. There was no dispute before the High
Court that the first respondent did not belong to the constituency
and, therefore, he was required to comply with Section 33(5) of Act.
The High Court, adverting to the said aspect, observed as follows: -
“Petitioner does not deny that he had filed an extract of 1995
electoral roll and even in the electoral roll of 1998 the Part
and Serial Number where the petitioner’s name figured was
identical. If the Returning Officer had bothered to turn the
pages of 1998 electoral roll at the time of scrutiny then the
above declaration of the petitioner in the nomination paper
would have stood verified and corroborated. But then the reason
for rejection of the nomination of the petitioner is not that
the petitioner had not annexed 1998 electoral roll. The reason
assigned is that he did not have the Aharta as on 1.1.2002 and
he had not annexed Styapit (certified) extract of the electoral
roll in the regard.”
7. Thereafter, considering the oral evidence, the High Court opined
thus: -
“The Court also decides to have a look at the oral evidences
which have been adduced on this score. Five witnesses were
produced on behalf of the petitioner. P.W. 1 is the petitioner
himself where he has stated that he was one of the candidates
for the “Constituency” of the Local Body and was a voter of 110-
Raghopur Assembly Constituency. He stated that his nomination
papers were illegally rejected. He filed two sets of nomination
papers which were duly signed by him and his proposers. In one
of the nomination papers a detailed reason for rejection was
recorded but in the second nomination paper the word “Aswikrit
Karta Hun” (rejected) only mentioned. He has furnished the
details of his name, the Part and the Serial Number of 110-
Raghopur Assembly Constituency which is reflected in the voter
list of 1998. His name figured at serial no. 444 in Part 11.
He also states that a demand of voter list for the year, 2002
was made from him orally but there was no voter list of the year
available to his knowledge. He also denied that he had received
any kind of memo much less memo no. 10. He does accept that he
was personally not present at the time of scrutiny but he had
authorized one Sri Prabhakar Singh, Advocate to participate in
the same but he was not allowed to go to the place of scrutiny.”
8. We have heard Mr. Nagendra Rai, learned senior counsel for the
appellant. Despite service of notice, there is no appearance on
behalf of the respondent.
9. To appreciate the controversy from a proper perspective, it is
apposite to refer to Section 100 of the Act. It reads as follows:-
“100. Grounds for declaring election to be void.- (1) Subject to
the provisions of sub-section (2) if the High Court is of
opinion-
a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act or the Government of Union
Territories Act, 1963 (20 of 1963); or
b) that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with
the consent of a returned candidate or his election agent; or
c) that any nomination has been improperly rejected; or
d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected –
i) by the improper acceptance of any nomination, or
ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his
election agent, or
iii) by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void,
or
iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders
made under this Act,
the High Court shall declare the election of the returned
candidate to be void.”
10. Be it stated, before this provision was incorporated by the
Representation of the People (2nd amendment) Act, 1956, Section
100(1)(c) read as follows:-
“If the Tribunal is of opinion that the result of the election
has been materially affected by the improper acceptance or
rejection of any nomination, the Tribunal shall declare the
election to be wholly void.”
Interpreting the said provision, the Constitution Bench in
Surendra Nath Khosla and another v. S. Dalip Singh and others[1] ruled
thus:-
“It appears that though the words of the section are in general
terms with equal application to the case of improper acceptance,
as also of improper rejection of a nomination paper, case law
has made a distinction between the two classes of cases. So far
as the latter class of cases is concerned, it may be pointed out
that almost all the Election Tribunals in the country have
consistently taken the view that there is a presumption in the
case of improper rejection of a nomination paper that it has
materially affected the result of the election. Apart from the
practical difficulty, almost the impossibility, of demonstrating
that the electors would have cast their votes in a particular
way, that is to say, that a substantial number of them would
have cast their votes in favour of the rejected candidate, the
fact that one of several candidates for an election had been
kept out of the arena is by itself a very material
consideration. Cases can easily be imagined where the most
desirable candidates from the point of view of electors and the
most formidable candidate from the point of view of the other
candidates may have been wrongly kept out from seeking election.
By keeping out such a desirable candidate, the officer rejecting
the nomination paper may have prevented the electors from voting
for the best candidate available. On the other hand, in the case
of an improper acceptance of a nomination paper, proof may
easily be forthcoming to demonstrate that the coming into the
arena of an additional candidate has not had any effect on the
election of the best candidate in the field. The conjecture
therefore is permissible that the legislature realising the
difference between the two classes of cases has given
legislative sanction to the view by amending Section 100 by the
Representation of the People (Second Amendment) Act, 27 of 1956,
and by going to the length of providing that an improper
rejection of any nomination paper is conclusive proof of the
election being void. For the reasons aforesaid, in our opinion,
the majority decision on the fourth issue is also correct.”
11. After the amendment, a three-Judge Bench in Mahadeo v. Babu Udai
Partap Singh and others[2], after referring to the decision in
Surendra Nath Khosla (supra), opined as follows:-
“11. This position has now been clarified by the Legislature
itself by amending S. 100 in 1956. The amended S. 100(1)(a), (b)
and (c) refer to three classes of cases where the election is
set aside on proof of facts enumerated in the said clauses.
Clause (a) refers to a case where a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act at the date of his election.
As soon as this fact is proved, his election is set aside.
Similarly, under Cl. (b), if any corrupt practice is shown to
have been committed by a returned candidate or his election
agent or by any other person with the consent of a returned
candidate or his election agent, the election of the returned
candidate is set aside and declared void. Likewise, Cl. (c)
provides that the election of a returned candidate shall be
declared void if it is shown that any nomination has been
improperly rejected. It would thus be seen that the view which
the Election Tribunals and the Courts had been consistently
taking in dealing with the question about the effect of the
improper rejection of any nomination paper, has been confirmed
by the Legislature and now, the position is that if it is shown
that at any election, any nomination paper has been improperly
rejected, the improper rejection itself renders the election
void without any further proof about the material effect of this
importer rejection.”
12. In view of the abovestated enunciation of law, the submission
that there was no pleading and no evidence was adduced to establish
that the election of the elected candidate was materially affected, is
sans substance. Once the court comes to the conclusion that the
nomination paper had been improperly rejected, it is obliged in law to
declare the election void.
13. Presently, we shall proceed to deal with the issue whether the
High Court was justified in accepting the plea of the respondent that
his nomination paper was improperly rejected. In this regard,
reference to Section 33(5) of the Act is seemly. It reads as follows:
-
“”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.”
14. The said provision came to be interpreted in B. Dandapani Patra
v. Returning Officer-cum-Sub-Divisional Officer, Berhampur and
others[3], wherein a two-Judge Bench placed reliance on Ranjit Singh
v. Pritam Singh[4] and came to hold as follows: -
“… it has been held that when Section 33(5) of the said Act
refers to a copy of the relevant part of the electoral roll, it
means a part as defined in Rule 5 of the said Rules of 1960.
The complete copy would carry the various amendments made in the
roll to enable the Returning Officer to see whether the name of
the candidate continues in the roll.”
15. The facts of the aforesaid decision would show that unless the
current electoral roll is filed along with the nomination paper, that
would tantamount to non-compliance of Section 33(5) of the Act. In
the instant case, on a perusal of evidence of PW-1, the respondent
herein, and the Returning Officer, it is perceptible that the said
respondent had not filed the electoral roll of 1998 which was the
latest electoral roll as on 1.1.2002. On the date of scrutiny, the
respondent was absent. The High Court, as noticeable, has referred to
the order of rejection of nomination paper by the Returning Officer
and opined that none had filed the electoral roll of 1.1.2002 and,
therefore, the nomination paper could not have been rejected. The
aforesaid view is the resultant of erroneous perception of fact. The
ground that was indicated by the Returning Officer was that the valid
electoral roll as on 1.1.2002 had not been filed. It has come in the
evidence that no electoral roll was prepared on that date and the
latest electoral roll was that of 1998. The respondent had not filed
the same. In fact, he had filed the electoral roll of 1995. It is
also clear from the evidence that at the time of scrutiny, he was not
present.
16. In view of the foregoing analysis, we have no scintilla of doubt
that the High Court has fallen into serious error by setting aside the
election of the appellant and, accordingly, we set aside the judgment
of the High Court, treat the election of the appellant as valid and
further direct that the appellant shall get the entire remuneration
for the period for which he was elected as a member of the legislative
Council and we say so on the basis of the Constitution Bench decision
in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].
17. The appeal is accordingly allowed. There shall be no order as
to costs.
………………………..J.
[Dipak Misra]
………………………..J.
[N.V. Ramana]
New Delhi;
May 13, 2014.
-----------------------
[1] AIR 1957 SC 242
[2] AIR 1966 SC 824
[3] (1990) 1 SCC 505
[4] (1996) 3 SCR 543
[5] (1985) 4 SCC 621
