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PETITIONER:

HARI VISHNU KAMATH

Vs.

RESPONDENT:

GOPAL SWARUP PATHAK

DATE OF JUDGMENT:

18/12/1969

BENCH:

SIKRI, S.M.

BENCH:

SIKRI, S.M.

SHELAT, J.M.

BHARGAVA, VISHISHTHA

MITTER, G.K.

VAIDYIALINGAM, C.A.

CITATION:

1970 AIR 819 1970 SCR (3) 334

1970 SCC (1) 143

ACT:

Presidential and Vice-Presidential Elections Rules, 1962

framed under s. 21 of Presidential and Vice-Presidential

Elections Act (31 of 1952)Rule 4(1) requiring nomination

papers to be presented personally by candidate or proposer

or seconder-Nomination paper sent by post whether properly

presented-Whether "received" within the meaning of r. 4(2)-

Returning Officer whether can reject such nomination paper

before date of scrutiny-Rule 4(1) whether mandatory or

directory.

HEADNOTE:

At the election for the office of Vice-President held in

1969 the nomination paper of one 'S' was sent by post. The

Returning Officer rejected it forthwith on the ground that

it did not comply with the requirements of r. 4(1) of the

Presidential and Vice-Presidential Rules, 1952 inasmuch as

it had not been presented by the candidate or his proposer

or seconder. in person. The said nomination paper was

not put up for scrutiny under r. 6. The respondent won the

election. The petitioner who was one of the losing

candidates filed an. election petition under Art. 71 of the

Constitution and s. 14 of the Presidential and Vice-

Presidential Elections Act. 1952 and prayed that the

election of the respondent be declared void under s. 18 of

the Act. The questions that fell for consideration were :

(i) whether the nomination of S had been wrongly rejected on

the ground given; (ii) whether the Returning Officer had

power to reject the nomination before the date of scrutiny;

(iii) whether r. 4(l) was directory or mandatory.

HELD:(i) Rule 4(1) provides only one method of

presentation i.e. delivery either in person by the candidate

or by his proposer or seconder. Further it mentions the

time within which the nomination paper can be delivered i.e.

between the hours of eleven in the forenoon and three in the

afternoon. Therefore, if the nomination paper is not

presented in person either by the candidate or by the

proposer or seconder it cannot be deemed to have been

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presented at all. There is good reason for making this rule

because otherwise not only the authenticity of the person

sending the nomination paper but also the time of delivery

of the nomination paper would be in doubt. Since the rule

provides only one method of presentation that method must be

followed. The provisions of rr. 4(2), 5 and 6 support the

above conclusion.

The nomination paper of 'S' could be rejected on the ground

that it had not been presented in person and received before

3 O'clock in the afternoon on the last date appointed under

cl. (a) of sub-Jr. (1) of r. 4. Such a nomination paper

could not be treated to have been 'received' within the

meaning of sub-r. (2) or r. 4 and the Returning Officer was

entitled to reject it. [340 F-341 C, HI

(ii)There was no force in the submission that the Returning

Officer should have waited till the date of the scrutiny.

As soon as the Returning Officer finds that a nomination

paper has not been duly presented and received he must

reject it outright at the time it is handed over to him.

[341 H-342 Al

335

(iii)Rule 4(l) is mandatory. To hold otherwise would

lead to utter confusion and delay in the completion of the

election. The Returning Officer would not know who and

where to inform about the date of scrutiny, he would not be

certain whether it is genuine, and would have to take

evidence as to whether it is a genuine nomination paper or a

forged paper. [342 B]

JUDGMENT:

ORIGINAL JURISDICTION : Election Petition No. 6 of 1969.

Petition under Art. 71 of the Constitution of India and S.

14 of the Presidential and Vice-Presidential Election Act

(Act XXXI of 1952).

Sarjoo Prasad, P. Paramegwara Rao and K. C. Dua, for the

petitioner.

M.C. Setalvad, N. A. Palkhivala, M. C. Chagla, J. B.

Dadachanji, Ravinder Narain and 0. C. Mathur, for the

respondent.

Jagdish Swarup, Solicitor-General, L. M. Singhvi and S. P.

Nayar, -for the Election Commission and Union of India.

The Judgment of the Court was delivered by

Sikri, J. This is a petition under Art. 71 of the

Constitution and S. 14 of the Presidential , & Vice-

Presidential Elections Act (XXXI of 1952)-hereinafter

referred to as the Act-praying for a declaration that the

election of Shri Gopal Swarup Pathak, respondent, to the

office of the Vice-President of India is void.

The main ground on which this declaration is sought is, that

the nomination paper of Dr. Ram Sharan Dass Sakhuja was.

wrongly rejected by the Returning Officer on August 6, 1969.

The respondent apart from meeting thus ground has raised a,

number of other issues including the issue whether the

nomination paper of Dr. Ram Sharan Dass Sakhuja was genuine,

and if not, whether the petition is maintainable. The

learned counsel for the respondent strongly pressed on us

that we should first try this issue suggested by him but as

we have come to the conclusion that the petition must fail

on the ground that the nomination paper of Dr. Ram Sharan

Dass Sakliuja was rightly rejected on August 6, 1969, it is

not necessary to consider the other issues that arise out of

the pleadings of the parties.

The two issues suggested by the petitioner which we propose-

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to discuss are

1. Whether the nomination of Dr. Ram Sharan Dass, Sakchuja

has been wrongly rejected on the ground that the nomination

paper was not delivered in person;

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2. Whether the Returning Officer had power to reject the

nomination even before the date of scrutiny.

The relevant facts for determining these issues may now be

set out. On 19th or 20th July, 1969, the office of the

Vice President of India fell vacant on the resignation of

the then incumbent, Shri V. V. Giri. The Election

Commission appointed Shri B. N. Banerjee, Secretary, Rajya

Sabha, as Returning Officer for the election of the Vice-

President of India. The Election Commission issued a

notification under s. 4 appointing August 9, 1969, as the

last date for filing nomination for election to the ,office

of the Vice-President Of India and August 11, 1969, for

scrutiny of nomination papers. A number of candidates filed

nomination papers and on August 11, 1969, the Returning

Officer made a record of proceedings. The relevant part of

the pro-ceedings reads as follows

"I held the scrutiny of nomination papers for the Vice-

Presidential Election today, the 11th August, 1969, at I I

A.M. in my office (Room No. 29) in Parliament House, New

Delhi, 24 nomination papers were delivered to me within the

time and in the manner laid down in rule 4 of the

Presidential and Vice-Presidential Election Rules, 1952.

These nomination papers related to :-

1. Shri S. Nagappa (One nomination paper)

2. Shri G. S. Pathak (Seventeen nomination papers)

3. Shri Sivashanniugam (Two nomination papers)

(Jagannathan Pillai)

4. Smt. Manohara Nirmala (One nomination paper) Holkar

5. Shri B. P. Mahaseth (One nomination paper)

6. Shri Hari Vishnu Kamath (.Two nomination

papers)

3.I gave the candidates and the others present all

-facilities for examining the nomination papers -of all the

candidates delivered to me. The nomination paper were

examined by them. No objection was raised to any nomination

papers by any candidate or his representative. I

scrutinised all the nomination papers and I found that they

satisfied the requirements of a valid nomination paper. I

accordingly accepted all the nomination papers as valid and

made endorsements on all the 24 nomination papers accepting

them.

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4. I also brought to the notice of those present that I

had received some nomination papers, and some other papers-

purporting to be nomination papers, by post, and that I

could not treat them as valid nomination papers as they were

not delivered to me in accordance with sub-rule (1) of rule

4 of the Presidential and Vice-Presidential Election Rules,

1952, and that they also did not comply with, the provisions

of law in other respects. I further mentioned to those

present that there werein addition three other papers

which, though presented to me in person, did not comply

with the requirements of the law as they were not

accompanied by the certified extracts from the electoral

roll and suffered from other defects. I had not given any

serial number to any of these papers and had rejected all of

them."

One of the nominations referred to in para 4 of the proceed-

ings was that of Dr. Ram Sharan Dass Shakuja. It appears

that. the nomination papers of Dr. Shakuja, alleged to be

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complete in every respect, were not delivered in person

either by Dr. Shakuja. or by the proposer or seconder in

person to the Returning Officer but were received by him by

post on August 6, 1969. On that very day the Returning

Officer did not treat the papers as valid as they were not

delivered to him in accordance with sub-r. (1) of r. 4 of

the Presidential and Vice-Presidential Elections Rules,

1952.

In order to discuss the issues mentioned above it is

necessary to set out the relevant statutory provisions.

Under s. 4 of- the Act the Election Commission by

notification appoints for every election (a) the last date

for making nominations, (b) the date for scrutiny of

nominations, (c) the last date for the withdrawal of

candidatures, and (d) the date on which poll -shall, if

necessary, be taken. Under s. 5 any person may be nominated

as a candidate for election to the office of Vice-President

if he is qualified to be elected to that office under the

Constitution. Subsection (2 ) of s. 5 prescribes that each

candidate shall be nominated by a nomination paper completed

in the prescribed forms and subscribed by the candidate

himself as assenting to the nomination and by two electors

as proposer and seconder.

We may assume for the purpose of this case that the condi-

tions laid down in s. 5(2) were complied with.

Section 6 deals with the withdrawal of candidature and pro-

vides that any candidate may withdraw his candidature by a

notice in writing in the prescribed form subscribed by him

and delivered before three o'clock in the afternoon on the

date fixed

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under clause (c) of subsection (1) of section 4, to the

Returning Officer either by such candidate in person or by

his proposer ,or seconder who has been authorised in this

behalf in writing by such candidate.

The learned counsel for the petitioner rightly conceded that

if .a candidate wants to withdraw Ms candidature the notice

in writing must be delivered to the Returning Officer in

person by such candidate or by his proposer or seconder who

has been authorised. In other words no candidate can

withdraw by sending a notice in writing by post.

Section 18 gives the grounds for declaring the election of

a .returned candidate to be void. One of the grounds is

"If the Supreme Court is of opinion that the nomination of

any candidate has been wrongly rejected or the nomination of

the successful candidate or of any other candidate who has

not withdrawn his candidature has been wrongly accepted, the

Supreme Court shall declare the election of the returned

candidate to be void."-

Section 21 gives powers to the Central Government to make

rules and the two matters, among others, on which rules can

be made are:

"(d) the form and manner in which nominations may be made

and the procedure to, be followed in respect of the

presentation of nomination papers;

(e)the scrutiny of nominations and, in particular, the

manner in which such scrutiny shall be, conducted and the

conditions and circumstances under which any person may be

present or may enter objections there at."

In pursuance of these, powers rules were framed. Rule 4

deals with the presentation of nomination papers and is in

the following terms

"4. (1) On or before the date appointed under clause (,a) of

sub-section (1) of section 4, each candidate shall, either

in person or by his proposer or seconder, between the hours

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of eleven in the forenoon and three in the afternoon,

deliver to the Returning Officer at the place specified in

this behalf in the public notice a nomination paper

completed in Form 2 in the case of a Presidential election,

and in Form 3 in the case ,of a Vice-Presidential election,

together with a certified copy of the entry relating to the

candidate in the electoral roll for the Parliamentary

constituency in which he is registered.

339

(2)Any nomination paper which is not received before three

o'clock in the afternoon on the last date appointed under

clause (a) of sub-section (1) of section 4 or to which the

certified copy referred to in subrule (I) of this rule is

not attached shall be rejected."

Rule 5 prescribes the procedure on receipt of nomination

papers as follows :

"5. On the presentation of a. nomination paper, the

Returning Officer shall-

(a) sign thereon a certificate stating the date and time of

presentation of the nomination paper and enter thereon its

serial number;

(b) inform the person or persons presenting the nomination

paper of the date, time, and place fixed for the scrutiny of

nominations; and

(c) cause to be affixed in some conspicuous place in his

office a copy of the nomination paper as certified and

numbered under clause (a) of this rule."

Rule 6 provides for the scrutiny of nominations and is in

the following terms :

"6. (1) The candidates, one proposer and one seconder of

each candidate, and one other person duly authorised in

writing by such. candidate, shall be entitled to be present

at the time of scrutiny of nominations; and the Returning

Officer shall give them all reasonable facilities for

examining the nomination papers, of all candidates which

have been delievered within the time and in the manner laid

down in rule 4.

(2) The Returning Officer shall then examine the nomination

papers and decide all objections which may be made to any of

them.

(3)The Returning Officer may, either on such objection or on

his own motion, and after such summary inquiry, if any, as

he thinks necessary, reject a nomination paper on any of

the, following grounds, namely :

(a)that the candidate is not eligible for election as

President or Vice-President, as the case may be, under the

Constitution; or

(b)that the proposer or seconder is not qualified to

subscribe a nomination paper under sub-section

(2) of section 5; or

340

(c)that the signature of the candidate, proposer or

seconder is not genuine or has been obtained by fraud; or

(d)that the nomination paper has not been duly completed and

the defect or irregularity is of a substantial character; or

(e)that the proposer or seconder has subscribed, whether as

proposer or seconder, another nomination paper received

earlier by the Returning Officer at the same election.

(4)The Returning Officer shall hold the scrutiny on the date

appointed in this behalf under clause (b) of sub-section (1)

of section 4 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 made, the candidate

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concerned shall, if he so requires, 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 on which the proceedings have been

adjourned.

(5)The Returning Officer shall endorse on each nomination

paper his decision either accepting or rejecting it and if

the nomination paper is rejected, he shall record in writing

a brief statement of his reasons for rejecting it."

The question whether a candidate is entitled to send his

nomination papers by post to the Returning Officer may now

be considered. It will be noticed that r. 4 provides only

one manner of presentation, i.e., delivery either in -person

by the candidate or by his proposer or seconder. Further it

mentions the time within which it can be delivered, i.e.,

between the hours of eleven in the forenoon and three in the

afternoon. It seems to us that if the nomination paper is

not presented in person either by the candidate or by the

proposer or the seconder. it cannot be deemed to have been

presented at all. There seems to be good reason for making

this rule because otherwise not only the authenticity of the

person sending the nomination paper will be in doubt but

also the time of the delivery of the nomination paper would

be in doubt.

Be that as it may, if the rule provides one method of

presentation that method of presentation must be followed.

That this

341

is the only method of presentation of nomination papers is

home out by subsequent provisions. Sub-rule (2) of r. 4

provides that any nomination paper which is not received

before 3 o'clock in the afternoon on the last date appointed

under cl. (a) of sub-s. (1) of s. 4 shall be rejected.

This shows that even if a nomination paper is presented

personally but after 3 o'clock in the afternoon it has to

be rejected. The rule proceeds on the basis that the

presentation must have been either 'in person or by the pro-

poser or the seconder. If a nomination paper is received by

post it would be difficult to say that it has been presented

and received before 3 o'clock on the last date appointed

under cl. (a) of sub-s. ( 1 ) of s. 4.

Rule-5 also proceeds on the basis that the presentation of a

nomination paper must be in person because it requires the

Returning Officer to sign thereon a certificate stating the

date and time of presentation of the nomination paper and

inform the person or persons presenting the nomination paper

of the date, time and place fixed for the scrutiny of

nominations. It is clear that r. 5 contemplates only one

method of presentation. This is again evident from r. 6

which directs the Returning Officer inter alia to give the

candidates and other authorised persons present reasonable

facilities for examining the nomination papers of all

candidate s which have been delivered within the time and in

the manner laid down in r. 4. In other words, the nomination

papers which have not been delivered within time and in the,

manner laid down in r. 4 have not to be shown for purposes

of scrutiny.

The learned counsel for the petitioner contends that sub-r.

(2) of r. 4 gives two grounds of rejection, one that the

nomination paper is not received before 3 o'clock in the

afternoon of the last date appointed under cl. (a) of sub-s.

(1) of s. 4, and the second that the certified copy referred

to (in sub-r. (1) of r. 4 is not attached. He further says

that r. 6 gives five more grounds of rejection. He says

that the ground on which the nomination paper of Dr. Ram

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Sharan Dass Shakuja has been rejected is not covered by

either sub.-r. (2) of r. 4 or r. 6 and accordingly the

nomination paper of Dr. Ram Sharan Dass Shakuja could not

have been validly rejected.

It seems to us that this nomination paper could be rejected

on the ground that it has not been presented in person and

received before 3 o'clock in the afternoon on the last date,

appointed under cl. (a) of sub-r. ( 1 ) of r. 4. Such a

nomination paper could not be treated to have been received

within the meaning of sub-r. (2) of r. 4 and the Returning

Officer was entitled to reject it.

There is no force in the second submission that at any rate

the Returning Officer should have waited till the date of

the scrutiny

L7Sup.(CI)170-7

342

because as soon as he finds that a nomination paper has not

been duly presented and received he must reject it outright

at the time it is handed over to him.

The learned counsel contends that even if there has been a

breach of r. 4(l), the rule is not mandatory and the breach

of it should not be deemed fatal. We are unable to agree

with this submission. As we have mentioned before, the

rules contemplate only one method of presentation and if

that method is not followed the nomination papers cannot be

held to be validly presented and must be rejected outright.

To hold otherwise would lead to utter confusion and delay in

the completion of the election. The Returning Officer would

not know who and where to inform about the date of scrutiny;

he would not be certain whether it is genuine, and would

have to take evidence as to whether it is a genuine

nomination paper or a forged paper.

In the result the petition fails and is dismissed with

costs. The petitioner will pay to the respondent Rs. 500 as

total amount of costs.

G.C. Petition dismissed.

343